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Defendant's Attorney: Ellen M. Houston and Michael J. Enzweiler

Description: Burlington, Kentucky personal injury lawyer represented Plaintiff, who sued Defendant on a medical malpractice theory.

Four days before the incident giving rise to the negligence claim, Dr. M. B. Shamsi performed surgery on Arnsperger's ankle, including placement of a screw to fixate and stabilize the joint. Despite several complications during surgery, Dr. Shamsi was optimistic about the outcome and preliminarily stated Arnsperger would need no further surgeries, provided his patient followed strict post-operative instructions. Arnsperger could not walk on his ankle or place any weight on it; consequently, he used a wheelchair to move around when he was in public. At home, deponents testified Arnsperger used either crutches or a scooter to move around, both of which conformed to Dr. Shamsi's instructions.

Three days later, Arnsperger saw Dr. Shamsi for his first postoperative visit. The doctor testified that his patient's splint was intact, and his ankle was doing well. The incident giving rise to the negligence claim occurred the next day when Arnsperger returned to the hospital for an x-ray of his ankle.

When Arnsperger arrived, he was placed in a wheelchair with his leg extended with no bend at the knee. A Saint Elizabeth employee, Pamella Tasayco, pushed Arnsperger through the hospital in his wheelchair. As she drew the wheelchair closer to the check-in desk, she failed to stop before Arnsperger's splinted ankle contacted the desk. Arnsperger's mother, his fiancee, and Tasayco described Arnsperger's expression of pain after the impact. His fiancee said he
began sweating, his face turned red, and he thought he was going to be sick. His mother stated his splint was askew after the impact. Arnsperger said he "felt a pop like a bomb had blown up in my foot."

The incident was recorded on the hospital's videotape surveillance equipment, but the angle of view is not ideal. However, the video could support a reasonable juror's inference consistent with either party's interpretation.[1]

Dr. Shamsi examined Arnsperger's ankle after the incident and determined Arnsperger needed another surgery to repair his ankle. In his deposition, Dr. Shamsi stated he had no opinion on how the new injury to Mr. Arnsperger occurred. However, Arnsperger contends the employee's actions caused him further injuries requiring a second surgery on his ankle.

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In Kentucky, to prove common law negligence, one must show "(1) a legally-cognizable duty, (2) a breach of that duty, (3) causation linking the breach to an injury, and (4) damages." Howard v. Spradlin, 562 S.W.3d 281, 286 (Ky. App. 2018) (citing Patton v. Bickford, 529 S.W.3d 717, 729 (Ky. 2016)). When determining the issue of causation, the question is a mixed one of law and fact. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003). Thus, proving causation consists of the plaintiff demonstrating two components: but-for causation and proximate causation. Patton, 529 S.W.3d at 730. "But-for causation requires the existence of a direct, distinct, and identifiable nexus between the defendant's breach of duty (negligence) and the plaintiff's damages such that the event would not have occurred 'but for' the defendant's negligent or wrongful conduct in breach of a duty." Id. It is important to note here that "[o]rdinary negligence . . . can be established without expert testimony." Chamis v. Ashland Hosp. Corp., 532 S.W.3d 652, 656 (Ky. App. 2017) (citing Caniff v. CSX Transp., Inc., 438 S.W.3d 368, 375 (Ky. 2014)).

However, in some instances, a plaintiff needs an expert witness to establish a prima facie case. For example, in the context of a medical malpractice case, a medical expert is required to establish "(1) the standard of skill expected of a reasonably competent medical practitioner and (2) that the alleged negligence proximately caused the injury." Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App. 2006). This is because a layperson does not have the knowledge necessary to intelligently decide whether a medical professional's actions caused a certain result or why a certain action would cause any particular result. Thus, due to the complexity of medical procedures, proof of medical negligence, almost always, must take the form of expert testimony. See Johnson v. Vaughn, 370 S.W.2d 591, 596 (Ky. 1963).

But an expert witness is not needed where "any lay[person] is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care[.]" Perkins v. Hausladen, 828 S.W.2d 652 655 (Ky. 1992).

Here, the circuit court relied on Jarboe v. Harting, 397 S.W.2d 775 (Ky. 1965), for the proposition that Arnsperger needed medical expert testimony to survive summary judgment on the issue of causation. In Jarboe v. Harting, a doctor diagnosed the plaintiff with a tumor in her uterus. Id. at 777. To treat this, the doctor performed surgery on her, only to discover she was six to eight weeks pregnant. Id. Twenty-two days after the surgery, the plaintiff suffered a miscarriage and subsequently filed a medical negligence suit against the doctor.[2]Id. Kentucky's highest court ruled that the plaintiff needed to produce medical expert testimony to demonstrate proximate causation between the surgery and the miscarriage. Id. at 777-78. The Court believed miscarriages and unintended abortions occur for a "myriad" of reasons and the plaintiff produced no evidence to show "the operation was the cause [of the miscarriage] in this particular instance." Id. at 778. Ultimately, the plaintiff had not produced evidence demonstrating why the surgery caused the miscarriage, and the average layperson is not privy to the knowledge necessary to understand the potential cause-and-effect relationship of the surgery and the subsequent miscarriage.
Arnsperger v. Saint Elizabeth Med. Ctr. (Ky. Ct. App. 2022)

Outcome: Affirmed

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Defendant's Experts:

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