Medical negligence, experts, and SJ: COLLIER V. CARITAS HEALTH SERVICES, INC. (COA 11/9/2007)


DATE RENDERED: 11/09/2007

Short Digest:  In a medical negligence case, the trial court must first determine if experts are required to prove negligence, and then the plaintiff must be given a reasonable time to disclose those experts.  In this case, the trial court properly concluded experts were needed but failed to give the plaintiff’s sufficient time to produce the experts and thus vacated the summary judgment dismissing the claim since it was used a discovery sanction.

COA vacated summary judgment dismissing Horace Collier’s medical negligence claim and remanded for further proceedings.   

Mr. Collier filed his complaint in the circuit court, alleging that after he was admitted to Caritas, he was not re-evaluated or treated in a timely manner and thus sustained personal injuries as a result of the Appellees’ negligence.

Mr. Collier failed to meet the expert witness deadline and on February 2, 2006, a hearing was held wherein Mr. Collier requested an extension through February 28, 2006, to identify expert witnesses. This motion was granted, but Mr. Collier still failed to disclose an expert witness. Both Appellees (doctor and hospital) then filed motions for summary judgment arguing that Mr. Collier could not meet his prima facie case of negligence absent expert proof that their treatment of Mr. Collier failed to meet the required standard of care of medical professionals.

Rather than grant the summary judgment motion, the court, after a hearing on the issue, made a determination that an expert was needed and granted the plaintiff thirty days to name an expert. This required the trial court to continue the trial date. The trial court informed the plaintiff that if she failed to name an expert in the time given, dismissal would be granted. This was consistent with the Kentucky Supreme Court which has noted that "the trial court properly exercised its discretion to announce a ruling on the necessity of an expert witness and to grant [plaintiff] a reasonable time in which to procure an expert." Baptist Healthcare Sys., Inc., 177 S.W.3d at 681

However, the COA did conclude that the record compelled vacating summary judgment in this matter. Pursuant to CR 56.03, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  The record showed that Mr. Collier’s answers to interrogatories and
admissions, signed under oath and penalty for perjury, indicate that Mr. Collier or his attorney had spoken to at least one physician regarding standard of care but was not yet prepared (or required) to name an expert at that time.  Under CR 56.03, this is sufficient to defeat summary judgment, at least at the stage in the proceedings and basis for which summary judgment was requested, i.e., failure to have named an expert over seven months before the trial date.

The grant of summary judgment for Mr. Collier’s failure to name a witness by the end of February 28, 2006, was in error.

First, the court must make a determination that an expert is needed before ruling on summary judgment motions.  After that determination has been made, plaintiffs should be given a reasonable time to disclose experts. If plaintiffs fail to disclose expert witnesses in the time granted, sanctions may be appropriate.

However, if plaintiffs have not disclosed their expert witnesses on the eve of trial, dismissal would be warranted.  This Court had held that summary judgments are "not to be used as a sanctioning tool of the trial courts."  Thus, the order of the Jefferson Circuit Court is vacated, and this case is remanded for further proceedings consistent with this opinion.

Digested by Michael Stevens

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