Defendant's Attorney: Stephen S. Burchett

Description:

Pikeville, Kentucky personal injury medical malpractice lawyer represented the Plaintiff on a negligence theory.

On December 13, 2016, Dyal filed a medical malpractice action in Pike Circuit Court against Chaaya and PMC, claiming they were liable for a neck injury she allegedly sustained during an esophagogastroduodenoscopy (EGD) procedure Chaaya performed on her at PMC's hospital.[1] Relevant to this appeal, she alleged:

8. On December 14, 2015, Dyal was admitted to PMC [Pikeville Medical Center] . . . under the care of Dr. Chaaya for an EGD procedure. During the procedure and while under anesthesia Dyal sustained a neck injury. In recovery Dyal persistently complained of severe pain in her neck and upon discharge Dyal "cried" due to the severity of the pain in [sic] route home. [Throughout] the night the pain persisted and the following day Dyal was seen by a Physician and diagnosed with a herniation at the C-5/C-6 level. As a result of this injury Dyal underwent surgery but continues to suffer from pain and limitations which interfere with her daily life and employment opportunities. She has sustained medical bills and will continue to incur medical bills in to the future. This injury and the associated damages were caused by the negligent conduct of Dr. Chaaya and/or other employees and/or agents and servants of PMC[.]

Chaaya and PMC filed answers denying liability and, in October 2021, moved for summary judgment. They argued Dyal had failed to produce expert witness testimony establishing the pertinent standard of care, breach of such standard of care, and injury therefrom.

Responding, Dyal maintained expert testimony was unneeded because, in her view, a layperson could easily recognize the negligence of Chaaya and PMC and thus res ipsa loquitur applied. Alternatively, if her res ipsa loquitur argument was not accepted by the circuit court, Dyal asked for an extension of time to procure any expert testimony necessary to support her claims. Dyal filed her "preliminary expert witness disclosures" shortly afterward, identifying her proposed experts and describing their anticipated testimony in relevant part as follows:

1. Leonard F. Milewski, M.D., F.A.C.S.

....

Based upon his review of the medical records and other documents, as well as his education, professional knowledge, training, and expertise, Dr. Milewski will opine, with a reasonable degree of medical probability, that the Defendants deviated from the standard of care during the surgical procedure of December 14, 2015. He is further of the opinion the deviation from the standard of care was a substantial factor in causing injury to Amanda Sue Madden-Dyal, which was a herniation at the C5-6 level of the spine, treatment as a result thereof, expenses for said treatment, pain and suffering from the same, and the resultant conditions caused as a result thereof described in the records.

....

3. Dr. Tamara Musgrave, M.D.

Dr. Musgrave is a treating physician of Ms. Madden-Dyal. Therefore, no report was requested or obtained from this doctor. It is anticipated Dr. Musgrave will testify in accordance with her medical records as of the date of trial. Dr. Musgrave is expected to opine that, based upon her treatment of Ms. Madden-Dyal, both before and after the subject EGD procedure, that the herniation of the cervical spine occurred during the EGD procedure of December 14, 2015. She is further expected to testify that Amanda Madden-Dyal is 100% disabled due to the injuries and resultant conditions. Other opinions asked of this witness may include the nature and extent of the injuries Ms. Madden-Dyal sustained, the treatment provided Ms. Madden-Dyal, and her prognosis for Ms. Madden-Dyal.

4. Dr. Brenden Coughtry, M.D.

Dr. Coughtry is a treating physician of Ms. Madden-Dyal. Therefore, no report was requested or obtained from this doctor. It is anticipated Dr. Coughtry will testify in accordance with his medical records as of the date of trial. Dr. Coughtry is expected to opine that, based upon his treatment of Ms. Madden-Dyal, both before and after the subject EGD procedure, that he observed a dramatic change in Amanda after the EGD procedure of December 14, 2015. Other opinions asked of this witness may include the nature and extent of the injuries Ms. Madden-Dyal sustained, the treatment provided Ms. Madden-Dyal, and his prognosis for Ms. Madden-Dyal.

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As concerns medical malpractice cases, the Kentucky Supreme Court recently stated the following:

It is elementary for all tort cases that the plaintiff must establish a duty, breach thereof, causation, and injury. "In medical malpractice cases the plaintiff must prove that the treatment given was below the degree of care and skill expected of a reasonably competent practitioner and that the negligence proximately caused injury or death." Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982). "The burden of proof in a malpractice case is, of course, on the party charging negligence or wrong. That must be established by medical or expert testimony unless the negligence and injurious results are so apparent that laymen with a general knowledge would

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have no difficulty in recognizing it." Johnson v. Vaughn, 370 S.W.2d 591, 596 (Ky. 1963). The failure to provide expert medical testimony when necessary is "truly a failure of proof" and merits summary judgment. Adams v. Sietsema, 533 S.W.3d 172, 177 (Ky. 2017) (quoting Blankenship v. Collier, 302 S.W.3d 665, 668 (Ky. 2010)).

Saint Elizabeth Medical Ctr., Inc. v. Arnsperger, 686 S.W.3d 132, 138 (Ky. 2024) (footnote omitted).

Madden-Dyal v. Chaaya, 2023-CA-0874-MR (Ky. Ct. App. Nov 15, 2024)

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

Comments: