RENDERED: JUNE 25, 2026
TO BE PUBLISHED
Supreme Court of Kentucky
2024-SC-0216-DG
DIAGNOSTIC X-RAY PHYSICIANS, PSC APPELLANTS (DXP); CHRISTOPHER DALE HENLEY
M.D.; AND DARREN CAIN M.D.
ON REVIEW FROM COURT OF APPEALS
V. NO. 2023-CA-0748
JEFFERSON CIRCUIT COURT NO. 20-CI-005331
DEBORAH LLOYD; NORTON APPELLEES HOSPITALS, INC. D/B/A NORTON'S
WOMEN'S AND CHILDREN'S
HOSPITAL; AND SHEILA SLONE KCSA
AND
2024-SC-0224-DG
SHEILA SLONE KCSA APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. NO. 2023-CA-0748
JEFFERSON CIRCUIT COURT NO. 20-CI-005331
DEBORAH LLOYD; CHRISTOPHER APPELLEES DALE HENLEY M.D.; DARREN CAIN
M.D.; DIAGNOSTIC X-RAY
PHYSICIANS, PSC (DXP); AND
NORTON HOSPITALS, INC. D/B/A
NORTON'S WOMEN'S AND
CHILDREN'S HOSPITAL
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING
These consolidated appeals arise from allegations of medical negligence
against a surgical assistant and certain radiologists following Deborah Lloyd’s
(“Lloyd”) total knee replacement surgery, during which a suturing needle was
inadvertently left inside her knee after becoming dislodged from its holder
during suturing. In this opinion, we revisit the requirement that expert
testimony is necessary to establish the standard of care in medical negligence
actions. We also address the nuances of our res ipsa loquitur doctrine as it
pertains to the concept of exclusive control in cases involving foreign objects
retained in a surgical patient’s body. Having granted discretionary review,
heard oral arguments, and carefully examined the record, we reverse the Court
of Appeals and reinstate the trial court’s grants of summary judgment in favor
of the appellants.
FACTUAL AND PROCEDURAL BACKGROUND
On December 20, 2019, Dr. Sean Griffin (“Dr. Griffin”), an orthopedic
surgeon, with surgical assistant Sheila Slone (“Slone”) assisting under Dr.
Griffin’s direct supervision, performed a total knee replacement surgery on
Deborah Lloyd’s right knee at Norton Hospitals, Inc. d/b/a Norton’s Women’s
and Children’s Hospital (“Norton”). Slone used a suturing needle to close the
incision. Shortly prior to full closure of the incision, it became apparent to
Slone that a suturing needle had dislodged from its holder and was missing.
Slone attempted to locate the needle through a visual search and by
2
“palpat[ating] the area” but was unsuccessful. Slone immediately reported the
loss of the needle, and the entire surgical team, including Slone and Dr. Griffin,
searched for the needle. When no needle was found, Dr. Griffin ordered an xray of Lloyd’s knee to determine whether the needle was inside her knee. Dr.
Darren Cain (“Dr. Cain”), a radiologist, reviewed the x-ray. Dr. Cain noted that
“[t]here is no unexpected radiopaque foreign body identified.” Dr. Griffin also
reviewed the x-ray and apparently failed to observe the needle. Dr. Griffin
concluded that the needle was likely lost, and he decided against re-opening
the incision to continue searching for the needle. Lloyd’s surgery was allowed
to conclude, and Lloyd was not advised of the possibility that a foreign object
had been left inside her after the surgery. As was customary, another x-ray
was taken in the recovery room to assess the outcome of the surgery. Dr.
Christopher Henley (“Dr. Henley”), a radiologist, reviewed the x-ray but, like Dr.
Griffin and Dr. Cain, appears to have failed to observe the needle.
On January 16, 2020, Lloyd attended a post-operative follow-up visit
with Dr. Griffin. Dr. Griffin ordered another x-ray of Lloyd’s right knee. Dr.
Griffin charted in Lloyd’s medical record that Lloyd was overall doing well, but
that she had a metallic foreign body of unknown origin in her right knee. Dr.
Griffin noted that the foreign body was not palpable and did not appear to be
affecting her, although he also noted that she appeared to have some delayed
healing and blistering. He did not address the foreign object at that time.
3
On February 3, 2020, Lloyd returned to see Dr. Griffin for another followup. This time, Dr. Griffin noted that Lloyd’s knee had developed “superficial
dehiscence” which may have been at least partially caused by the foreign body.
On February 7, 2020, the needle was removed and the wound cleaned
during a follow-up procedure. In Lloyd’s medical record, Dr. Griffin noted that
Lloyd had originally done well after the initial knee replacement,
but she developed central wound dehiscence that was progressive.
Her wound began draining serous fluid. Postoperative x-rays
revealed metallic foreign body in the anterior soft tissues of the knee.
Wound revision with treatment of the surgical wound dehiscence
and removal of the foreign body were indicated in order to prevent
further infectious complications, including knee sepsis.
Dr. Griffin also noted that the foreign object appeared to be a suture needle.
Dr. Griffin did not prescribe additional antibiotics, “as this did not represent an
infection.”
Expert disclosures in the record indicate that Lloyd underwent a third
surgery on February 28, 2020, to remedy the effects of the retained needle.
Additionally, Lloyd had to undergo long term antibiotic use and chronic
suppressive therapy, which caused further health complications and harm to
Lloyd.
Lloyd filed suit in Jefferson Circuit Court in September 2020, originally
naming Slone, Dr. Griffin, Norton, and Ellis and Badenhausen Orthopaedics,
P.S.C. as defendants. Lloyd later amended her complaint to add Dr. Henley,
Dr. Cain, and Diagnostic X-Ray Physicians, P.S.C. (collectively, “Radiologists”)
as defendants. Dr. Griffin reached a settlement with Lloyd and has been
dismissed as a defendant from this case.
4
Kentucky Rules of Civil Procedure (“CR”) 26.02 states that a party may
be required to identify
each person whom the other party expects to call as an expert
witness at trial, to state the subject matter on which the expert is
expected to testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and a summary of
the grounds for each opinion.
A scheduling order directed Lloyd to identify her experts and provide
disclosures by April 2022. Lloyd identified her expert witnesses as Dr.
Morrison, an infectious disease expert, and Dr. Dysart, an orthopedic surgeon.
Dr. Morrison’s disclosure centered around criticisms of Dr. Griffin and did not
specifically criticize the Radiologists or Slone. Because Dr. Griffin is no longer
a party to this action, only Dr. Dysart’s disclosures are relevant for our
purposes.
As it relates to Dr. Dysart’s expected testimony, Lloyd disclosed:
Dr. Dysart is expected to testify that Defendants’ medical care and
treatment of Ms. Lloyd was below the standard of good and proper
medical care during her care and treatment at Norton Women’s and
Children’s Hospital for her complex right total knee replacement
procedure of December 20, 2019. Dr. Sean Griffin failed to locate,
remove, and document a suture needle retained by Plaintiff during
her surgery due to the actions of the surgical assistant, Sheila Slone.
Dr. Griffin failed to properly notify the patient and document the
retained suture needle, which had been confirmed by an incorrect
instrument count. Retained foreign bodies are known to cause great
risk to patients, including but not limited to infection and/or sepsis,
possible re-operation, readmissions and prolonged hospital stays,
severe pain, and even death.
He is further expected to testify that [the Radiologists] had a duty to
review, identify, and document the intra-operative and postoperative x-rays, showing the retained suture needle, and failed to
do so. Failing to locate, identify, and remove the retained suture
needle caused a delay in treatment and significant harm to [Lloyd],
including but not limited to an infection which required two
5
subsequent surgeries on February 7, 2020 and February 28, 2020,
as well as long-term antibiotic use and chronic suppressive therapy
which caused further health consequences and harm to [Lloyd].
Dr. Dysart was deposed on August 16, 2022. During this deposition, Dr.
Dysart went beyond the scope of his disclosures and written report in
criticizing Norton, the Radiologists, and Slone. Dr. Dysart also testified that he
could not opine on the standard of care applicable to radiology:
Q: All right. Do you intend on testifying at trial that Dr. [Cain] failed
to act as a reasonable radiologist under like or similar
circumstances in the services he provided to Ms. Lloyd?
A: I’m not a radiologist.
Q: That’s the tenor of my question.
A: So reasonable will have to go to an expert. All I can say is he
missed a foreign body. I can say that.
Q: All right. And I understand that. I want you to presume that
the question the jury will be given in this case was whether Dr. [Cain]
failed to act as a reasonable radiologist under like or similar
circumstances. And from what I gather from you, you are not
prepared to say that because you are not a radiologist; correct?
A: So I would — I would defer to radiology. Now, from an orthopedic
opinion, he missed it.
Q: However, you’re not going to testify that Dr. [Cain], or Dr. Henley,
for that matter, failed to act as a reasonable radiologist under like
or similar circumstances; true?
A: I don’t know what reasonable means in terms of the Academy of
Radiology. Let them answer that question.
Q: All right. And you understand from this case that Dr. [Cain] is
a radiologist, as is Dr. Henley; correct?
A: Yes, sir.
6
Q: And they would have completed different residency programs
than you; correct?
A: Of course, yes.
Q: All right. And they would, when applying for privileges for the hospital, have applied for different privileges than you; correct?
A: Sure
Q: All right.
A: Yeah, sure.
Q: And they would be board-certified by a different specialty board than you; correct?
A: Are they board-certified?
Q: Yes.
A: I didn’t – okay. Yes, sir.
Q: Okay. And would belong to different professional societies than you; correct?
A: Yes, sir.
Q: All right. And you do not hold yourself out as a radiologist and never have and never will; correct?
A: No, sir.
Q: That is correct?
A: That’s correct.
Q: All right. And you do not consider yourself to be an expert in the field of radiology; correct?
A: Okay. So in my experience dealing with multiple radiologists, we can often read a film better than they can about a specific issue; and the reason is we see many, many more of the same thing. So in my practice, we often didn’t have radiology review films because we considered ourselves adequate and well-enough trained to read
them ourselves, which is what we do routinely. So there are certain
7
situations that we actually are more appropriate reviewing the film
than they are. I will tell you that.
Q: All right. Do you consider yourself to be a radiology expert?
A: Oh, no, sir.
Q: All right. Do you consider yourself to know what the standard
of care is in the field of radiology?
A: No sir.
Additionally, Dr. Dysart’s deposition criticized the actions of a circulating nurse
employed by Norton 1, even though such opinions were outside the scope of his
disclosure. Claiming that the deposition testimony included unexpected
testimony leading to unfair surprise, Norton moved to strike all testimony in
Dr. Dysart’s deposition transcript between pages 169 and 235 where he was
critical of the nurse. The trial court granted this motion, ordering that “the
late-disclosed opinions of Dr. Stanley Dysart contained in Dr. Dysart’s
deposition” be stricken from the record. Lloyd was unsuccessful in challenging
the trial court’s order striking the deposition testimony, which Lloyd claimed
was overbroad and struck non-surprise testimony pertaining to Dr. Dysart’s
criticisms of the Radiologists. Despite Lloyd’s extensive discussion of the
stricken portions of Dr. Dysart’s testimony, she neither filed a cross-motion nor
asked for any relief from the trial court’s order.
1 In addition to her claims against Slone, the Radiologists, and Dr. Griffin, Lloyd
also asserted claims against Norton based on the alleged actions of its employee, a circulating nurse. Aside from this brief mention, those claims are not pertinent to this appeal.
8
On November 15, 2022, Slone filed a motion for summary judgment,
arguing that
the deadline for disclosing experts has expired and Lloyd has not
identified any expert who will testify that Slone breached the
standard of care applicable to surgical assistants. In fact, the only
evidence on the record on that issue came from Dr. Griffin, who
testified that Slone did not deviate from the standard of care
applicable to surgical assistants in Kentucky.
Under Kentucky law, a plaintiff is required to submit expert
testimony on the issue of professional negligence, meaning Lloyd
must submit expert testimony from which a jury could reasonably
conclude that Slone deviated from the applicable standard of care.
There is no such expert, therefore Slone is entitled to summary
judgment in her favor.
Lloyd responded by acknowledging that “[i]t is accurate that both of Plaintiff’s
retained expert witnesses have given deposition testimony indicating that, in
regards to the factual events indicated in the medical records and deposition
testimony, they had no specific criticism of [Slone] regarding a breach of the
applicable standard of care,” but argued that such was not needed because the
case against Slone is one of res ipsa loquitur. 2
2 According to Black’s Law Dictionary, res ipsa loquitur is Latin for the phrase,
“the thing speaks for itself.” RES IPSA LOQUITUR, Black's Law Dictionary (12th ed. 2024). Res ipsa loquitur is defined as,
The doctrine providing that, in some circumstances, the mere fact of an
accident's occurrence raises an inference of negligence that establishes a
prima facie case; specif., the doctrine whereby when something that has
caused injury or damage is shown to be under the management of the
party charged with negligence, and the accident is such that in the
ordinary course of things it would not happen if those who have the
management use proper care, the very occurrence of the accident affords
reasonable evidence, in the absence of the explanation by the parties
charged, that it arose from the want of proper care.
Id.
9
On December 5, 2022, the Radiologists also filed a motion for summary
judgment, premising their motion on the fact that neither of Plaintiff’s experts
claimed that the Radiologists failed to act as a reasonable radiologist in the
same or similar circumstances and that no expert testimony was presented
addressing the applicable standard of care for a radiologist.
In a consolidated opinion and order, the trial court addressed both
motions for summary judgment. The trial court granted summary judgment in
favor of Slone, finding that res ipsa loquitur did not apply:
In the case sub judice and from the facts as they exist in the record,
the only defendant who had control of the instrumentality [the
suture needle] causing Plaintiff’s injury was the certified surgical
assistant, Slone. Thus, while the doctrine of res ipsa loquitur could
be invoked to create a rebuttable presumption of negligence on her
part, that presumption has been rebutted by the facts in the record.
Plaintiff stipulates that “[n]o witness has testified as to a specific act
or lack thereof on the part of Ms. Slone that was contrary to the
protocol in question,” and “[i]t is accurate that both of Plaintiff’s
retained expert witnesses have given deposition testimony indicating
that, in regards to the factual events indicated in the medical records
and deposition testimony, they had no specific criticism of [Slone]
regarding a breach of the applicable standard of care.” Indeed, there
was testimony by Plaintiff’s expert, Dr. Dysart, that the suture
needle could have become detached without any negligence on the
part of Slone. While the Plaintiff opines that further discovery could
unearth facts which could enable a jury to find Slone negligent,
again, in reviewing a motion for summary judgment under CR 56.03,
“the focus should be on what is of record rather than what might be
presented at trial.” Welch [v. Am. Publ’g Co. of Ky., 3 S.W.3d 724,
730 (Ky. 1999)].
(emphasis removed). Notably, the trial court elaborated that because “the
doctrine of res ipsa loquitur is applicable only to those who had full control of
the instrumentality which caused the injury, and only Slone had such control,
the doctrine is inapplicable to Norton and the [Radiologists].” (internal
10
quotation marks omitted). The trial court also granted summary judgment in
favor of the Radiologists, finding that “neither expert has held themselves out
as experts in the field of radiology, and the Court agrees that the standard of
care and any breach thereof by radiologists is not within the common
knowledge or experience of any layman.” Lloyd filed a motion to reconsider the
trial court’s order granting summary judgment to Slone and the Radiologists,
which the trial court denied.
The Court of Appeals reversed the trial court’s grant of summary
judgment to both Slone and the Radiologists. As it pertains to the Radiologists,
the Court of Appeals based its reasoning on the qualifications of expert
witnesses:
The Radiologists assert that plaintiffs in a medical malpractice case
are required to present expert testimony establishing the standard
of care expected of the “class of physicians or specialists to which
he belongs.” However, our caselaw indicates that once the trial court
determines the expert is properly qualified, the jury is responsible
for weighing the expert’s testimony. See Washington v. Goodman,
830 S.W.2d 398, 400 (Ky. App. 1992) (citations omitted) (stating
factors like qualifications, experience, and training go to the weight
of the testimony, not admissibility). . . . Likewise, this Court has
recognized that “[t]here are numerous reported cases where a
physician has been held qualified to express an opinion on medical
matters outside his area of expertise.”
[T]he trial court . . . abuse[d] its discretion in determining that there
was insufficient evidence in Dr. Dysart’s . . . testimony to submit to
a jury on Lloyd’s claims that the Radiologists failed to diagnose or
locate the suture needle. As discussed, testimony from a medical
provider who specializes in a different area of medicine or who is
licensed or practices in a different medical discipline may not carry
as much weight with a jury.
11
Here, the trial court based its summary judgment in favor of the
Radiologists on a determination that it would be impossible for Lloyd
to proceed to trial without an expert qualified in the field of radiology.
However, Dr. Dysart was qualified to testify regarding the
Radiologists; therefore, there was a genuine issue of material fact for
the jury to review.
(some internal citations omitted).
As it pertains to Slone, the Court of Appeals held that expert testimony
was not required based on the doctrine of res ipsa loquitur. The Court of
Appeals explained that “typically, ‘the plaintiff in a medical negligence case is
required to present expert testimony’ establishing both ‘the standard of skill
expected of a reasonably competent . . . practitioner’ and the proximate cause
of the injury.” (quoting Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App.
2006)).
But there are two important exceptions, one involving a situation
where any layman is competent to pass judgment and conclude from
common experience that such things do not happen if there has
been proper skill and care; illustrated by cases where the surgeon
leaves a foreign object in the body or removes or injures an
inappropriate part of the anatomy. The second occurs when medical
experts may provide a sufficient foundation for res ipsa loquitur on
more complex matters.
Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky. 1992) (internal quotation
marks and citations omitted). The Court of Appeals found that both exceptions
were applicable here to prevent summary judgment in favor of Slone.
Both Slone and the Radiologists appealed the Court of Appeals’ reversal
of summary judgment, and their appeals were consolidated. Further facts will
be developed below as necessary.
ANALYSIS
12
The Radiologists ask us to answer whether Dr. Dysart’s expert testimony
is sufficient to satisfy the requirement that, in a medical negligence case, a
plaintiff must bring forth expert testimony as to “the applicable medical
standard of care, any breach of that standard, and the resulting injury.”
Blankenship v. Collier, 302 S.W.3d 665, 675 (Ky. 2010) (citing Perkins, 828
S.W.2d at 655). Slone asks us to decide whether res ipsa loquitur eliminates
the need for expert testimony in a retained-foreign-object case where the
evidence shows that the person who controlled the object until it was lost
inside the patient was not negligent in losing it, and that a different individual
exclusively controlled the subsequent decision to continue or abandon efforts
to locate and retrieve it.
As Slone and the Radiologists raise distinct issues, their claims of error will be
addressed separately.
Standard of Review
Both the Radiologists and Slone appeal the Court of Appeals’ reversal of
summary judgment. Summary judgment “should only be used ‘to terminate
litigation when, as a matter of law, it appears that it would be impossible for
the respondent to produce evidence at the trial warranting a judgment in his
favor and against the movant.’” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807
S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville Hosp. Co. v. Rose, 683 S.W.2d
255, 256 (Ky. 1985)). Furthermore, CR 56.03 states that summary judgment
should be granted if the evidence shows that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
13
matter of law. “The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved
in his favor.” Steelvest, 807 S.W.2d at 480.
“Because summary judgments involve no fact finding, this Court will
review the circuit court's decision de novo.” 3D Enters. Contracting Corp. v.
Louisville & Jefferson Cnty. Metro. Sewer Dist., 174 S.W.3d 440, 445 (Ky. 2005).
On appeal, “[t]he standard of review on appeal of a summary judgment is
whether the circuit judge correctly found that there were no issues as to any
material fact and that the moving party was entitled to a judgment as a matter
of law. Summary judgment is appropriate where the movant shows that the
adverse party could not prevail under any circumstances.” Pearson ex rel. Trent
v. Nat'l Feeding Sys., Inc., 90 S.W.3d 46, 49 (Ky. 2002).
To the extent that the Radiologist’s appeal concerns the trial court’s
ruling on the admissibility of Dr. Dysart’s testimony, this was an evidentiary
determination by the trial court and is reviewed for an abuse of discretion. “A
trial court's ruling on the admission of expert testimony is reviewed under the
same standard as a trial court's ruling on any other evidentiary matter.”
Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 578 (Ky. 2000).
“Generally, we review a trial court's evidentiary determinations for abuse of
discretion—'whether the trial judge's decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.’” Mason v. Commonwealth,
559 S.W.3d 337, 339 (Ky. 2018) (quoting Lopez v. Commonwealth, 459 S.W.3d
867, 872–73 (Ky. 2015)).
14
Radiologists
Lloyd’s case against the Radiologists hinges on whether she can proceed
with only Dr. Dysart’s expert testimony in her medical negligence case against
the Radiologists. 3 “As explained previously, a plaintiff bringing a typical
medical malpractice case is required by law to put forth expert testimony to
inform the jury of the applicable medical standard of care, any breach of that
standard and the resulting injury.” Blankenship, 302 S.W.3d at 675 (citing
Perkins, 828 S.W.2d at 655). No party disputes that, while Dr. Dysart’s
testimony does critique the Radiologists and allege that they have fallen short
of their standard of care, his testimony does not name what that standard of
care for radiologists is. On the contrary, Dr. Dysart admitted under oath that
he does not know the standard of care for radiologists.
The Court of Appeals held that Dr. Dysart was qualified to testify despite
specializing in a different area of medicine, and that after passing the initial
threshold for qualifying as an expert, the question of credibility was left to the
jury. The Court of Appeals explained that, while Dr. Dysart is an orthopedic
surgeon and not a radiologist, “[t]here are numerous reported cases where a
physician has been held qualified to express an opinion on medical matters
outside of his area of expertise.” (quoting Owensboro Mercy Health Sys. v.
Payne, 24 S.W.3d 675, 677–78 (Ky. App. 1999)). The Court of Appeals
3 Per CR 26.02 and the trial court’s scheduling order which set a deadline for
expert disclosures which has now passed, Dr. Dysart’s testimony will be limited in scope to that which was disclosed in Lloyd’s expert disclosure.
15
explained that “testimony from a medical provider who specializes in a different
area of medicine or who is licensed or practices in a different medical discipline
may not carry as much weight with a jury.” (citing Payne, 24 S.W.3d at 677–
78). Nevertheless, the Court of Appeals concluded that,
the trial court based its summary judgment in favor of the
Radiologists on a determination that it would be impossible for Lloyd
to proceed to trial without an expert qualified in the field of radiology.
However, Dr. Dysart was qualified to testify regarding the
Radiologists; therefore, there was a genuine issue of material fact for
the jury to review. See Goodman, 830 S.W.2d at 400. Thus, as to
the Radiologists, we reverse the summary judgment in their favor.
None of this is untrue — it just misapprehends the actual issue at hand.
The Court of Appeals incorrectly framed the issue as “whether it would
be impossible for Lloyd to proceed against the Radiologists without expert
testimony from a physician in the same specialty.” Whether Dr. Dysart meets
the baseline qualification to testify against Radiologists is not the present
controversy. Indeed, as the Court of Appeals points out, “[a] physician or other
medical provider is not automatically disqualified from testifying against a
defendant who specializes in a different area of medicine or who is licensed or
practices in a different medical discipline.” Tapp v. Owensboro Med. Health
Sys., Inc., 282 S.W.3d 336, 341 (Ky. App. 2009). Dr. Dysart could testify, and
his “special knowledge skill, experience, training, or education” would likely
“assist the trier of fact to understand the evidence or to determine a fact in
issue.” See Kentucky Rule of Evidence (“KRE”) 702.
However, even if this case goes to trial and Dr. Dysart testifies, one vital
piece will still be lacking – Lloyd still has no expert to testify as to the standard
16
of care for the Radiologists. Dr. Dysart can assist with testifying as to varying
aspects of a radiologists’ duties and how he has typically seen them performed,
but one thing he has specifically said he cannot do is recite the standard of
care for radiologists. The time afforded to Lloyd to identify her experts has
passed, and unfortunately for her, the aggregate of her two experts still leaves
her coming up short as to the standard of care for radiologists. Expert
testimony as to the applicable standard of care is a requirement in medical
negligence cases:
[A] plaintiff bringing a typical medical malpractice case is required
by law to put forth expert testimony to inform the jury of the
applicable medical standard of care, any breach of that standard
and the resulting injury. Perkins[], 828 S.W.2d at 655. A jury trial
without the requisite proof is a futile exercise, wasteful of judicial
time, jurors' time and the litigants' time and resources. CR 56 is
intended to avoid such unnecessary proceedings. Neal v. Welker,
426 S.W.2d 476, 479-80 (Ky. 1968) “the curtain must fall at some
time upon the right of a litigant” to put forth the most basic level of
proof and the plaintiff's bare assertion “that something will turn up'
cannot be made basis for showing that a genuine issue as to a
material fact exists”; Green v. Owensboro Medical Health System,
Inc., 231 S.W.3d 781, 784 (Ky. App. 2007) (the trial court properly
granted summary judgment for the defendant doctor because the
plaintiff, by not identifying any expert witnesses, “failed to introduce
evidence sufficient to establish the respective applicable standard of
care”).
Blankenship, 302 S.W.3d at 675 (emphasis added).
While Lloyd contends that Dr. Dysart “has performed hundreds of knee
replacements and knows the standard of care for the procedure and role of the
radiologist,” this is in direct contradiction to Dr. Dysart’s own admissions that
he does not know the standard of care for radiologists. In his deposition, he
was directly asked, “[d]o you consider yourself to know what the standard of
17
care is in the field of radiology?” to which Dr. Dysart clearly and plainly
responded, “[n]o sir.” While Dr. Dysart might assist the jury in other aspects of
the case, he, by his own admission, is unable to assist the jury with
determining the standard of care for radiologists, an essential element for a
medical negligence case.
Lloyd contends that Dr. Dysart “admitted during his deposition that he is
not a radiologist [he is an orthopedic surgeon] but he has knowledge of the role
of the Radiologist and what is expected of one doing the imaging for this
operation which he has done hundreds of times.” Lloyd also cites Dr. Dysart
for his assertion that the Radiologists’ oversight was a “stunning miss” as
evidence that the standard of care was breached, even though Dr. Dysart
declined, in the first place, to define the standard of care.
Different medical specialties have different standards of care, and one
will only be held to the standard of care in the specialty in which they are
trained. “In the arena of medical negligence, controlling Kentucky authority
imposes upon a physician the duty to ‘use that degree of care and skill which is
expected of a reasonably competent practitioner in the same class to which [the
physician] belongs acting in the same or similar circumstances.’” Mitchell v.
Hadl, 816 S.W.2d 183, 185 (Ky. 1991) (quoting Blair v. Eblen, Ky., 461 S.W.2d
370, 373 (Ky. 1970)). While Lloyd implicitly argues that Dr. Dysart’s assertion
that the Radiologists made a “stunning miss” is sufficient to imply that the
standard of care was breached, it is impossible to know that a standard was
not met without first defining the standard. We are unwilling to extend the
18
requirement that an expert specify the relevant standard of care to include
testimony that does not define the standard of care but instead invites the
finder of fact to construct the standard of care through a series of inferences.
We are also unwilling to substitute the requirement that a medical
negligence plaintiff present proof of the standard of care with the requirement
that the plaintiff present proof of breach of the standard of care. Our
jurisprudence in this area has always treated the two as distinct requirements,
both of which the plaintiff must prove through expert testimony. See
Blankenship, 302 S.W.3d at 667 (“Pursuant to Kentucky law, in most medical
malpractice cases, a plaintiff is required to put forth expert medical testimony
to establish the applicable standard of care, any breach that occurred and
any resulting injury to the plaintiff.” (emphasis added)); Savage v. Three Rivers
Med. Ctr., 390 S.W.3d 104 (Ky. 2012) (“Upon examination of the testimony, it is
apparent that it does not identify with specificity the relevant standard of care
applicable to a surgeon in a retained object case, nor does it examine [medical
defendant]'s specific conduct during the surgery so as to demonstrate how he
breached the relevant standard of care. . . . Because [Plaintiff] failed to meet its
burden of establishing by expert testimony the standard of care imposed upon
[medical defendant] in a surgery such as this, and that he breached that
standard of care by his specific actions or failure to act, the trial court properly
denied [plaintiff]'s request for an apportionment instruction.” (emphasis
added)); Baptist Healthcare Sys., Inc. v. Miller, 177 S.W.3d 676, 680–81 (Ky.
2005) (“As the standard of care is not within the scope of common experience of
19
jurors, requiring expert testimony as to the standard of care of a phlebotomist
was a proper exercise of trial court discretion.”); Lloyd v. Norton Hosps., Inc.,
No. 2023-CA-0748-MR, 2024 WL 1685440 (Ky. App. Apr. 19, 2024), review
granted (Oct. 16, 2024), not to be published (“typically, ‘the plaintiff in a
medical negligence case is required to present expert testimony’ establishing
both ‘the standard of skill expected of a reasonably competent . . . practitioner’
and the proximate cause of the injury”) (quoting Andrew, 203 S.W.3d at 170).
Further, what may be a “stunning miss” to one specialty is not
necessarily to another specialty. Dr. Dysart testified that in the context of
orthopedic radiology, he thinks he is more qualified to render an opinion in this
case than a radiologist. If we accept this as true, what might be a “stunning
miss” to him still might not fall below the standard of care for radiologists in
general. Dr. Dysart testified that he is unable to testify as to what the
American College of Radiology standards are. Without a specific standard of
care, the rest is pure speculation. We can only hold a professional to the
standards relevant to their level of training and credentialing. To analogize
simply, we cannot hold a paramedic to the same standards as we hold a
cardiologist, although both are trained to recognize and respond to cardiac
emergencies. The same is true here — although both radiologists and
orthopedic surgeons share some competencies, each specialty undergoes a
distinct level of education and training. It would be unfair to hold one specialty
to the standards of another when one receives vastly greater or different
training.
20
“In a medical malpractice action, where a sufficient amount of time has
expired and the plaintiff has still ‘failed to introduce evidence sufficient to
establish the respective applicable standard of care,’ then the defendants are
entitled to summary judgment as a matter of law.” Blankenship, 302 S.W.3d at
668. While the Court of Appeals focused on answering whether Dr. Dysart was
qualified to opine as an expert witness, this was a distinct issue from whether
Lloyd presented expert testimony regarding the relevant standard of care of the
Radiologists. Perhaps Dr. Dysart was qualified to testify about the standard of
care of the Radiologists — he just did not. Because of this glaring omission,
summary judgment was appropriate, and we reverse the Court of Appeals’
reversal of the trial court’s grant of summary judgment in favor of the
Radiologists.
Slone
As discussed above, expert testimony is typically required to prove
medical negligence. However, expert testimony may not be required when
negligence can be presumed, such as through the doctrine of res ipsa loquitur.
As applied to this case [res ipsa loquitur] means nothing more than
whether the facts and circumstances are such that negligence can
be inferred, even in the absence of expert testimony. As Prosser
explains, res ipsa loquitur is a “Latin phrase, which means nothing
more than the thing speaks for itself,” and is simply “[o]ne type of
circumstantial evidence.” Prosser and Keeton on Torts, Sec. 39 (5th
ed. 1984).
Perkins, 828 S.W.2d at 654–55.
The primary question in Slone’s appeal is whether res ipsa loquitur
applies in a retained‑foreign‑object medical negligence case where the
21
defendant had exclusive control over the instrument immediately before it
became lost inside the patient, but the evidence shows that the loss occurred
without any negligence by the defendant and that the defendant had no actual
or constructive control of the instrument after it became lost. As discussed
above, the trial court found that res ipsa loquitur “could be invoked to create a
rebuttable presumption of negligence on [Slone’s] part” but “that presumption
has been rebutted by the facts in the record” — i.e., the evidence that Slone
was not negligent in her actions when the needle became separated from the
holder and became lost inside Lloyd. Consequently, the trial court granted
summary judgment in favor of Slone based upon Lloyd’s lack of expert witness
testimony proving that Slone was negligent.
The Court of Appeals reversed the trial court’s grant of summary
judgment in favor of Slone. The Court of Appeals held that, while normally
most medical malpractice claims cannot be proven without expert testimony
establishing a breach of the applicable standard of care resulting in the
plaintiff’s injuries, the case at hand met both exceptions to this rule.
Speaking to how the [res ipsa loquitur] doctrine applies to the
“question of duty ... in cases of medical malpractice,” Prosser advises
that “ordinarily” negligence cannot be inferred simply from an
“undesirable result”; expert testimony is needed. [Prosser and
Keeton on Torts, § 39, at 256 (5th ed. 1984)]. But there are two
important exceptions, one involving a situation where “any layman
is competent to pass judgment and conclude from common
experience that such things do not happen if there has been proper
skill and care”; . . . The second occurs when “medical experts may
provide a sufficient foundation for res ipsa loquitur on more complex
matters.” Id. at 257.
Perkins, 828 S.W.2d at 654–55.
22
Res ipsa loquitur applies in medical malpractice cases when “any
layman is competent to pass judgment and conclude from common
experience that such things do not happen if there has been proper
skill and care” or “when ‘medical experts may provide a sufficient
foundation for res ipsa loquitur on more complex matters.’ ”
Hausladen, 828 S.W.2d at 655 (quoting [Rose, 683 S.W.2d at 256-57]). The former is “illustrated by cases where the surgeon leaves a
foreign object in the body or removes or injures an inappropriate
part of the anatomy.” Id. at 654. The latter occurs when expert
testimony establishes the “type of injury was not an ordinary risk of
the surgery, that the method by which it occurred was within the
exclusive control of the defendant, and that the injury was not due
to any voluntary action or contribution on the part of the plaintiff.”
Id. at 655. In other words, “when the circumstances and the
probabilities as to the causative factors of an accident lie within the
ken of experts, expert evidence is necessary to establish a
foundation that gives rise to an inference of negligence.” 65A C.J.S.
Negligence § 820 (emphasis added).
St. Elizabeth Med. Ctr., Inc. v. Arnsperger, 686 S.W.3d 132, 138–39 (Ky. 2024).
The Court of Appeals held that this case both involved a situation where “any
layman is competent to pass judgment and conclude from common experience
that such things do not happen if there has been proper skill and care” and
was a situation that “medical experts may provide a sufficient foundation for
res ipsa loquitur on more complex matters.” 4 Id. Thus, the Court of Appeals
held that Lloyd need not present expert testimony to prove her case against
Slone and reversed the trial court’s grant of summary judgment in Slone’s
favor.
The res ipsa loquitur doctrine can be invoked “when a thing which
causes injury, without fault of the injured person, is shown to be under the
4 Curiously, the Court of Appeals holds this second exception applies without
explanation.
23
exclusive control of the defendant, and the injury is such as, in the ordinary
course of things, does not occur if the one having such control uses proper
care, it affords reasonable evidence, in the absence of an explanation, that the
injury arose from the defendant's want of care.” Schechter v. Hann, 205 S.W.2d
690, 692 (Ky. 1947) (emphasis added). “When the facts bring a case within the
doctrine, a presumption of negligence arises and the burden of proof is on the
defendant to rebut the presumption.” Id. Under the doctrine of res ipsa
loquitur, “[t]here may be an inference of negligence when, according to common
knowledge and experience, the accident would not have happened except for the
wrongful act of the defendant.’” Arnsperger, 686 S.W.3d at 139 (quoting Jos.
N. Rice Co. v. Grayson, 341 S.W.2d 238, 239 (Ky. 1960)) (bolded emphasis
added).
Here, in the simplest terms, res ipsa loquitur does not apply against
Slone because expert testimony establishes that she was not negligent in her
actions when the needle broke free from its holder, and she was not in control
of the needle after it left the holder. Dr. Dysart admitted that a suture needle
becoming detached from the holder can happen even if a person is being
careful, and that he “would not conclude . . . at all” that Slone had not been
careful by the fact that the needle became detached from its holder. He noted
that, “It’s happened to me; going to happen to her. It’ll happen to her again.”
In fact, when asked if he had any criticisms of the care Slone provided, Dr.
Dysart answered, “[s]he’s fine.”
24
Further, this is a case of a retained foreign object, not a case where the
initial dropping of the needle caused Lloyd harm. Had the needle been
immediately retrieved, Lloyd would have suffered no harm. It was only the
retention of the needle which caused Lloyd harm. “Applying res ipsa loquitur to
a specific defendant in a specific case requires a showing that the defendant
had full control of the instrumentality which caused the injury.” Savage, 390
S.W.3d at 113. Slone had no control over whether the needle stayed in the
patient’s body or whether more efforts were undertaken to search for the needle
after it went missing.
[A]ny number of people including the surgeon, anesthesiologist,
nursing staff, and other hospital staff may be at fault for having left
an offending item in a plaintiff's body. The varied business
relationships which exist at modern hospitals further complicate the
issue. Because of these various types of relationships, no two
surgical procedures are exactly alike, and the duties and responsibilities of the medical care professionals will likely depend on the
specific facts of each case.
Nazar v. Branham, 291 S.W.3d 599, 604 (Ky. 2009). Surgical assistants in
Kentucky have a limited scope of permitted activities. KRS 311.864(6) defines
the role of a surgical assistant: “‘Surgical assisting’ means providing aid under
direct supervision in exposure, hemostasis, closures, and other intraoperative
technical functions that assist a physician in performing a safe operation with
optimal results for the patient.” “Direct supervision” is statutorily defined as
“supervision by a delegating physician who is physically present and who
personally directs delegated acts and remains immediately available to
personally respond to any emergency until the patient is released from the
25
operating room or care and has been transferred to the care and responsibility
of another physician[.]” KRS 311.864(4).
Slone did everything within her power to find the needle after it had been
lost — she notified Dr. Griffin and the rest of the surgical team and conducted
a visual search for the needle. Beyond that, the responsibility was on Dr.
Griffin to determine next steps. Slone had no authority to order or read an xray; she could not order the patient’s wound to be reopened and manually
searched for the needle; and she had no authority over the patient’s treatment
plan after the surgery was completed. In short, while she had physical control
of the needle during the suturing process, after she lost physical custody of the
needle, the needle became under the constructive control of Dr. Griffin. See
Ashland Coca-Cola Bottling Co. v. Byrne, 258 S.W.2d 475, 476 (Ky. 1953) (“It
must be remembered that the doctrine of res ipsa loquitur is based on the
principle that in the ordinary course of things an injury would not have
occurred in the absence of negligence of the person having management or
control of the agency which caused the injury.” (emphasis added)).
While the Court of Appeals held that this case fell squarely into both res
ipsa loquitur exceptions to the requirement of expert testimony,
one involving a situation where “any layman is competent to pass
judgment and conclude from common experience that such things
do not happen if there has been proper skill and care” [and t]he
second occurs when “medical experts may provide a sufficient
foundation for res ipsa loquitur on more complex matters[,]”
we are not so convinced. Perkins, 828 S.W.2d at 654–55. For the first
exception, a layman would not know whether or when a needle becoming
26
unhoused from its holder during suturing would be the result of a lack of due
care by the suturer. A layman would likely understand, however, that ordering
and reading x-rays or re-opening a sutured incision to conduct a manual
search for a lost needle would be outside the authority of a surgical assistant.
Further, we acknowledge that in Perkins, this Court explained that the first
exception is “illustrated by cases where the surgeon leaves a foreign object in
the body or removes or injures an inappropriate part of the anatomy.” 828
S.W.2d at 655 (emphasis added). However, this is a distinct situation from the
one at hand in which a surgical assistant lost the needle, but a surgeon made
the decisions which caused the patient to retain the needle.
As for the second exception, the Court of Appeals concludes that the
exception applies but gives no reasoning to support its conclusion. However,
we hold that this exception does not fit the facts of this case. Arnsperger
explains that this exception applies when “expert testimony establishes the
‘type of injury was not an ordinary risk of the surgery, that the method by
which it occurred was within the exclusive control of the defendant, and that
the injury was not due to any voluntary action or contribution on the part of
the plaintiff.’” 686 S.W.3d at 138 (quoting Rose, 683 S.W.2d at 256–57). As we
have explained, Slone was not in control of the instrument during the
timeframe relevant to the alleged harm — its retention in Lloyd.
While it is true that many retained foreign object cases are the classic
textbook case of res ipsa loquitor, these cases seem to contemplate situations
where the individual with control over the instrument is either negligent in
27
losing the instrument or is the same individual with control over retrieving the
instrument once lost. Typically, this is the surgeon. See Nazar, 291 S.W.3d at
604 (“juries are free to analyze the reliability and veracity of the defendant's
expert witnesses and weigh it against the likelihood that the surgeon was
negligent in failing to remove an object from the plaintiff's body during
surgery” (emphasis added)); id. (“While the retained foreign object is evidence
of negligence, the jury is free to determine the ultimate issue of the surgeon's
liability from the evidence presented at trial.”); Arnsperger, 686 S.W.3d at 138
(“any layman is competent to pass judgment and conclude from common
experience that such things do not happen if there has been proper skill and
care . . . where the surgeon leaves a foreign object in the body or removes or
injures an inappropriate part of the anatomy.”).
The dissent asserts that summary judgment was inappropriate and that
a jury should get to decide whether Slone breached her duty to Lloyd.
Summary judgment should be granted if the evidence shows 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. CR 56.03. Despite Lloyd’s stipulation that no
expert has criticized Slone’s actions or claimed that she breached her standard
of care, the dissent cites part of Dr. Dysart’s stricken testimony for the
proposition that “Slone could have removed stitches to look for the needle.”
However, Dr. Dysart also acknowledged that he is unaware of whether a
surgical assistant is authorized in Kentucky to reopen a wound, and that he
does not criticize Slone for not reopening the wound to search for the needle.
28
In fact, Dr. Dysart expressed that unless a surgical assistant is authorized to
do so, opening a wound to search for a lost needle would “be a problem.” The
dissent further offers that Slone “still could have been negligent in her efforts to
find the needle or in describing to the surgeon the thoroughness of her efforts
to locate the needle and confidence in concluding that it was not retained in
Lloyd.” Simply put, there is no evidence in the record to support these
hypotheticals, and therefore, summary judgment was wholly appropriate.
While Slone was the last to have physical control over the needle, and
Lloyd’s injuries would not have occurred but for the needle becoming dislodged
during the time that Slone maintained control, this fact cuts only towards
causation, not breach of a duty. Proving causation is merely a prerequisite for
the application of res ipsa loquitur — it does nothing to prove that a duty was
breached. Arnsperger, 686 S.W.3d at 139 (stating that res ipsa loquitur “allows
an inference of negligence in certain cases, not causation; established
causation is a prerequisite to the application of the doctrine.”).
Certainly, “res ipsa loquitur allows the jury to infer negligence solely from
the fact that a surgical item was left in the patient's body.” Savage, 390
S.W.3d at 113. But the inference afforded by res ipsa loquitur that someone
was negligent does not necessarily mean that Slone was negligent. Our
jurisprudence has long recognized that
where the thing is shewn to be under the management of the
defendant or his servants, and the accident is such as in the
ordinary course of things does not happen if those who have the
management use proper care, it affords reasonable evidence, in
29
the absence of explanation by the defendants, that the accident
arose from want of care.
Lewis v. Wolk, 228 S.W.2d 432, 433 (Ky. 1950) (emphasis added) (quoting Scott
v. The London & St. Katherine Docks Co., 159 Eng. Rep. 665 (Ex. 1865)). The
evidence in this case demonstrates that Slone used proper care in performing
her duties. Nevertheless, a needle broke off, and Dr. Griffin made the choice to
cease efforts to locate the needle after misreading an x-ray. The evidence in
this case points to the negligence of Dr. Griffin, but it does not indicate
negligence by Slone. Any regret Lloyd may have about settling with Dr. Griffin
does not justify asserting negligence claims against those for whom the record
shows no fault. To allow an inference of negligence to be made where all facts
indicate the opposite would be an abuse of legal doctrine and contrary to the
original intent of res ipsa loquitur.
In sum, because the record contains no allegations that Slone was
negligent in causing the needle to become separated from its holder, and
because Slone did not maintain control over the decisions that caused the
needle to be retained in Lloyd’s knee, res ipsa loquitur does not apply to Lloyd’s
claims against Slone. Therefore, Lloyd was required to provide expert
testimony detailing the applicable medical standard of care, any breach of that
standard, and the resulting injury. Because the record is void of such expert
testimony, and the time for identifying experts and making the required
disclosures has passed, summary judgment in favor of Slone was appropriate.
Because the Court of Appeals reversed the trial court’s grant of summary
judgment to Slone, we reverse the Court of Appeals.
30
CONCLUSION
For the foregoing reasons, we reverse the Court of Appeals, which
reversed the trial court’s grants of summary judgment to the Radiologists and
Slone. We now reinstate the trial court’s grants of summary judgment.
Lambert, C.J.; Bisig, Conley, Keller, Nickell and Thompson, JJ., sitting.
Lambert, C.J.; Bisig, Conley, and Nickell, JJ., concur. Thompson, J., dissents
by separate opinion. Goodwine, J., not sitting.
THOMPSON, J., DISSENTING: Respectfully, I dissent. Under the doctrine
of res ipsa loquitur, there is a presumption of negligence that shifts the burden
of proof to all members of the surgical team to prove that they do not share
responsibility for the retained object. This presumption is sufficient to raise
material factual issues as to the negligence of the surgical team and,
accordingly, summary judgment was improperly granted to radiologist Dr.
Darren Cain, his employer Diagnostic X-Ray Physicians, and surgical assistant
Sheila Slone. The majority opinion errs in upholding their dismissal as
defendants. The issue as to who is ultimately responsible for Deborah Lloyd’s
injury and damages and their comparative negligence must be resolved by a
jury.
31
Lloyd entered the hospital 5 for what should have been a routine knee
replacement surgery. After the surgery, a needle over one-half of an inch in
length 6 remained in her body.
During surgery, while Slone was suturing Lloyd’s subcutaneous tissue,
Slone noticed that the needle was missing from its holder. She searched the
surgical opening for the needle, searched the operating room, and told surgeon
Dr. Sean Griffin about the missing needle. Dr. Griffin ordered one x-ray to look
for the needle. Radiologist Dr. Cain read that x-ray. Neither Dr. Griffin nor Dr.
Cain observed the needle on that x-ray. Dr. Griffin determined that Slone
should continue suturing Lloyd and conclude the surgery. He did not inform
Lloyd that a needle was possibly retained in her body. The needle was not
observed on subsequent x-rays that Dr. Christopher Dale Henley read later
that day when assessing the success of the knee replacement procedure.
Lloyd experienced problems in healing after the surgery. Dr. Griffin
ordered x-rays a month after the surgery. The needle was identified on those xrays and Lloyd had further surgery to remove the needle.
Lloyd filed a tort action against Dr. Griffin, Slone, and the hospital, and
later added the radiologist defendants. Dr. Griffin subsequently settled with
Lloyd, resolving his liability.
5 Norton Hospitals, Inc. d/b/a Norton Women’s and Children’s Hospital.
6 This suturing needle was one- and one-half centimeters in length; 1.5
centimeters is approximately .59 inches or 19/32 of an inch.
32
The entire surgical team had a sacred duty to protect Lloyd from injury
while she was unconscious and lacked all control over her body. The surgical
team included Dr. Griffin, Slone, and the circulating nurse employed by the
hospital. Dr. Cain was made part of the surgical team when he was tasked with
finding the needle left in her body. I reject the notion that liability devolves
solely to the surgeon as “captain of the ship” as courts have moved away from
this interpretation in recognition of the fact that surgery is a team effort with
various people having roles to play in its successful conclusion.
The majority opinion states that summary judgment was properly
granted to the radiologists because Lloyd does not have an expert who could
testify to the radiological standard of care.
As to Dr. Cain, Lloyd alleged he was a member of the surgical team. The
majority invades the province of the jury by making a finding of fact that he
was not in control of the surgery and therefore is not liable. When a radiologist
is requested to read an x-ray for the purpose of finding a misplaced needle
within a surgical wound before the patient is fully sewn up and taken out of
surgery, there is, at a minimum, a question of fact as to whether the radiologist
then becomes a member of the surgical team with constructive control over the
object he was asked to find. The fact that the conclusion of the surgery was
delayed for this radiologist to evaluate whether the needle was retained in Lloyd
may make him a vital member of the surgical team from that point forward.
When Dr. Cain failed to observe the needle, and that needle was later
located by x-ray a month later, it is obvious that he failed in his duty to protect
33
the patient. Under these circumstances, there is a presumption of negligence
under the doctrine of res ipsa loquitur that shifts the burden to the radiologist
to disprove his comparative fault.
A jury of ordinary people can understand that a surgical implement
should not be left in a patient’s body after surgery. It is within the jury’s
common knowledge that a radiologist, a doctor who is trained at interpreting xrays and in obtaining optimal views to observe the inside of a person’s body,
should be able to observe the presence of a metal foreign object retained in the
patient on an x-ray. Therefore, ordinary people can understand that if a
radiologist fails to spot a needle left in a patient’s body (either through
incorrectly reading an x-ray or through not obtaining the correct images,
through additional x-rays or otherwise), and that needle is later located by xray images, there is substantial evidence that the radiologist failed to
appropriately perform his job.
Similarly, a jury of ordinary people can understand that where a surgical
assistant loses a needle in a patient and then fails to find it, resulting in the
needle remaining in the patient, there is substantial evidence that she failed to
perform her job appropriately.
Summary judgment is precluded where there are issues of material fact
that are not conclusively refuted by the record. I reject the notion that it is
conclusive at this stage in the proceedings that the surgeon alone had control
of the needle after it was lost and, thus, no one else’s conduct qualifies for the
res ipsa loquitur presumption of negligence. As to Slone, the majority opinion
34
turns the doctrine of res ipsa loquitur on its head by concluding that she is
entirely precluded from any liability because she refuted the presumption of
negligence. 7 The majority reaches this conclusion on the basis that no one
testified that Slone was negligent in losing the needle and the actual harm to
Lloyd resulted from the retention of the needle and not the losing of the needle,
a matter which was the sole responsibility of the surgeon. Respectfully, res ipsa
loquitur does not require any further proof of negligence to survive summary
judgment when a foreign object is left in a patient after surgery. The needle
could not be retained without first being lost, and even if Slone was not
negligent in losing the needle, she still could have been negligent in her efforts
to find the needle or in describing to the surgeon the thoroughness of her
efforts to locate the needle and confidence in concluding that it was not
retained in Lloyd.
Dr. Cain and Slone may well be able to produce evidence at trial to refute
the presumption that they were negligent, but at the summary judgment stage
Lloyd was not required to do more to establish their negligence under the
circumstances where some or all of the surgical team was responsible for the
loss of the needle.
7 The majority opinion relies on Lloyd’s expert stating that Lloyd was not
negligent in dropping the needle, while also affirming striking of testimony by that same expert which concluded that Slone could be negligent for failing to undo stitches to look for the needle and failing to follow hospital policy on retained objects.
35
I. THE BASICS OF RES IPSA LOQUITUR AS APPLIED TO RETAINED
FOREIGN OBJECTS DURING SURGERY
“[R]es ipsa loquitur allows the jury to infer negligence solely from the fact
that a surgical item was left in the patient’s body.” Savage v. Three Rivers
Medical Center, 390 S.W.3d 104, 113 (Ky. 2012) (emphasis added). See, e.g.,
Laws v. Harter, 534 S.W.2d 449, 450–51 (Ky. 1975) (retained sponge),
overruled by Nazar v. Branham, 291 S.W.3d 599, 605 (Ky. 2009), as to this
constituting per se negligence; City of Somerset v. Hart, 549 S.W.2d 814, 817
(Ky. 1977) (retained scalpel blade).
Res ipsa loquitur can apply to an entire surgical team, not just the
surgeon. This presumption of negligence would then require individual
members of that team to establish that they were either not in constructive
control of the retained object or were not responsible for the object’s retention.
Usually, retained foreign object cases originate from medical
operations in which multiple medical care professionals perform a
variety of tasks . . . . [A]ny number of people including the surgeon,
anesthesiologist, nursing staff, and other hospital staff may be at
fault for having left an offending item in a plaintiff's body. The
varied business relationships which exist at modern hospitals
further complicate the issue. Because of these various types of
relationships, no two surgical procedures are exactly alike, and the
duties and responsibilities of the medical care professionals will
likely depend on the specific facts of each case . . . . The res ipsa
loquitur approach . . . permit[s] juries to infer negligence from the
fact of the retained foreign object, while granting them the latitude
to analyze other facts and evidence relevant to liability.
Nazar, 291 S.W.3d at 604 (paragraph break omitted). To be clear, as noted in
Nazar, any number of people on the surgical team may be responsible for the
tasks they perform and may be at fault for the retained object. That means that
36
multiple parties may jointly bear responsibility for the retention of the object in
the plaintiff.
Consistent with Nazar, the majority of our sister courts now reject the
view that the surgeon as the “captain of the ship” is the only one who is
responsible for mishaps during surgery. “[T]he theory of the surgeon as
‘captain of the ship’ has given way to the concept of the surgical team in which
everyone in the operating room has a duty to maximize the patient’s safety.”
Surgical fires, Hospital Negligence § 8:4. See Ben A. Rich, The Assault on
Privacy on Healthcare Decisionmaking, 68 Denv. U.L. Rev. 1, 55 n.23 (1991)
(noting “the ‘Captain of the Ship’ doctrine, which holds that the surgeon in the
operating room is ultimately responsible for the acts and omissions of the
entire surgical team, including the anesthesiologist, has all but disappeared in
recognition of the independent roles and responsibilities of each member of the
surgical team”); Nurse’s Failure to Give Physician Timely Notice of Patient’s
Condition, 25 Am. Jur. Proof of Facts 2d 411 (Originally published in 1981)
(recognizing that there is “a trend away from the ‘captain of the ship’ doctrine
and toward recognizing the independent professional nature of nursing, both
inside and outside of the operating room”).
The understanding that multiple people may be jointly at fault for
retained objects during surgery is well understood. “[T]he presence of multiple
defendants in a medical malpractice action does not, of itself, render the
doctrine of res ipsa loquitur inapplicable[,]” so long as “they were in joint control
of the agency causing the injury, it being immaterial that the plaintiff is not able
37
definitely to identify the instrumentality causing the injury.” Physicians and
Surgeons: Res Ipsa Loquitur, or Presumption or Inference of Negligence, in
Malpractice Cases, 82 A.L.R.2d 1262 (Originally published in 1962) (emphasis
added, footnotes omitted). “The res ipsa loquitur doctrine may apply against
two or more defendants if they had joint or shared responsibility or control, or
the right of joint control, of the instrumentality which caused the injury, and in
a proper case it is for the trier of the facts to say whether either or both had
control of the injury-causing instrumentality.” Effect of Joint Control of InjuryCausing Instrumentality by Two or More Persons on Control Requirement, 57B
Am. Jur. 2d Negligence § 1145 (footnotes omitted). See Injuring-Instrumentality
Under Joint Control of Two or More Persons, Negligence Case: Res Ipsa Loquitur
§ 2:17 (“res ipsa loquitur doctrine may apply against two defendants if there is
joint control, and in a proper case it is for the trier of the facts to say whether
either or both had control of the injury-causing instrumentality”); Res Ipsa
Loquitur, Plaintiff's Proof Prima Facie Case § 13:29 (“res ipsa loquitur can be
used to fix responsibility against multiple defendants when they had joint
control of the instrumentality causing the injury”). To the extent that Green v.
Owensboro Med. Health Sys., Inc., 231 S.W.3d 781, 784 (Ky. App. 2007),
appears to hold otherwise, it should be overruled.
“Res ipsa loquitur applies in medical malpractice cases when ‘any layman
is competent to pass judgment and conclude from common experience that
such things do not happen if there has been proper skill and care’ or ‘when
medical experts may provide a sufficient foundation for res ipsa loquitur on
38
more complex matters.’” Saint Elizabeth Med. Ctr., Inc. v. Arnsperger, 686
S.W.3d 132, 138 (Ky. 2024) (quoting Perkins v. Hausladen, 828 S.W.2d 652,
655 (Ky. 1992) (internal citation omitted)). “[I]n determining whether the
evidence was sufficient to support an inference of negligence, both common
knowledge and the testimony of medical witnesses could be relied on,
separately and in combination.” Hausladen, 828 S.W.2d at 655.
I conclude that this is an ordinary res ipsa loquitur situation, which
applies to the whole surgical team. As to Dr. Cain and Slone, common
knowledge establishes that a piece of surgical equipment, here the needle,
should not be left within the surgical site and be retained in a patient following
surgery.
II. KEY EXPERT TESTIMONY REGARDING THE RADIOLOGISTS
Dr. Stanley Dysart is a retired board-certified orthopedic surgeon, with
over forty years of orthopedic surgery experience, who is a graduate of the
University of Georgia, with his orthopedic residency at Walter Reed and a
fellowship in adult reconstructive surgery through Harvard Medical School. He
was retained by Lloyd to evaluate this surgery. His deposition testimony was
that when he viewed the only x-ray taken during surgery, the surgical needle is
“obvious on the x-ray[,]” is “plain as day” and Dr. Griffin’s and Dr. Cain’s
failure to spot it was “a stunning miss” and “totally shocked” him. 8 Dr. Dysart
8 Dr. Dysart explained that he viewed this x-ray on the actual film, through a
png image (rather than a paper printout), which was not as good as the x-ray being viewed on the PACS-type system as would have been done at the hospital.
39
also opined the wrong x-ray was taken and “a second view would have shown
even better that there was a metallic foreign body[,]” so the failure to “get a
second film” was “hugely an error, an error of judgment, an error of
understanding” because getting “a second view” is “just standard.” Dr. Dysart
summarized:
So you have an image in front of you, which is not an AP knee xray. It’s a rotated image. So it’s not a standard AP film, first of all.
It’s one image. That’s all—that’s all we’re look at here.
On that image, you can see the needle. What I’m suggesting,
emphatically stating, is that you need more than one image to
evaluate for a foreign body that’s lost.
You have got to have two images, or, better yet, bring a C-Arm in
and rotate around the whole knee.
This is, like, insane. So that’s what I’m saying.
I mean, you have to understand the gravity of this. This is a—so if
you lose a needle in a patient, this is a big deal.
You have got to solve the issue. And you can’t make assumptions
that it’s laying on the floor or out in the sink or whatever, popped
off, you know, out the window.
You’ve got to look for it. And you’ve got to understand what is
appropriate. This image is completely inappropriate to try to find a
needle, even though I can still see it. It’s obvious.
Dr. Dysart further opined as to the problems regarding the x-ray:
In this case, we have a solid implant, a metal implant which blocks
all the views going through it. . . .
You’re looking for a little needle. You’ve got to get another view to
correctly evaluate the entire surgical field. That’s as plain as it can
be right there.
40
That’s what I’ve been trying to tell everybody. That’s what’s
appropriate. That has to be done. Because the entire surgical field
was not evaluated, and that’s inappropriate.
While Dr. Dysart stated that he did not know the radiology standard of
care, and was not qualified to testify regarding the American College of
Radiology standards, he was also emphatic in stating that Dr. Cain failing to
gain appropriate images was below the standard of care in this specific
situation:
Because even a radiologist—a radiologist should know that you
can—that the entire surgical field is not imaged on that rotational
AP film. It’s just not. He should know that.
Whether—whether I’m an expert in radiology or not, anybody
knows that[.]
The radiologist should know . . . . that.
Dr. Dysart also opined that the actions by the surgeon, his medical staff, the
radiologists, Dr. Cain and Dr. Henley, and the hospital “fell below the standard
of care causing and contributing to the present and continued harm to the
patient.”
III. KEY PROCEDURAL BACKGROUND
Regarding Slone, the trial court opined that she was the only defendant
who had control of the instrumentality (the suture needle), agreed that the
doctrine res ipsa loquitur could be invoked to create a rebuttable presumption
of negligence on her part, but further ruled that this presumption was rebutted
by the facts in the record because Lloyd stipulated that “[n]o witness has
testified as to a specific act or lack thereof on the part of Ms. Slone that was
41
contrary to the protocol in question” and the experts did not criticize her
conduct as breaching the standard of care.
This ruling relied on the trial court’s previous decision to grant the
hospital’s motion to exclude more than sixty pages of Dr. Dysart’s deposition
testimony, as there was not appropriate notice that he would make opinions as
to the hospital’s liability. Among this excised portion of Dr. Dysart’s testimony
was his opinion that the hospital’s policy on retained objects had not been
followed, Slone could have removed stitches to look for the needle, and Dr.
Cain violated a general standard of care requiring at least two x-rays to look for
a retained metal object, especially given that the metal implant could block a
view of the needle.
Based on its ruling that Slone was the only defendant who had control of
the instrumentality when it was lost, the trial court concluded that the doctrine
of res ipsa loquitur was inapplicable to the hospital and the radiologists, and
the lack of expert testimony as to the nursing standard of care and radiology
standard of care meant that the hospital and radiologists should also be
granted summary judgment.
The Court of Appeals correctly determined that, regarding the
radiologists, Dr. Dysart’s expert testimony was sufficient to take the matter
before the jury as it was admissible, and the fact that he was an expert on this
type of surgery rather than an expert in radiology went to the weight to be
given to his testimony. The Court of Appeals reached this conclusion even
though it also ruled that the trial court did not abuse its discretion in striking a
42
large portion of Dr. Dysart’s deposition testimony so that it could not be used
against any defendant, concluding that there was sufficient remaining evidence
from Dr. Dysart that the radiology defendants made a grave error. In reversing
the grant of summary judgment dismissing the radiology defendants, the Court
of Appeals did not examine this issue through the lens of res ipsa loquitur.
The Court of Appeals concluded that res ipsa loquitur was sufficient to
bring the matter of Slone’s liability before the jury because: the retention of a
surgical needle was not an ordinary risk of surgery; the needle was in Slone’s
exclusive control (as the trial court found); Lloyd did nothing to contribute to
this injury; there was evidence of record that the retained needle was the cause
of Lloyd requiring subsequent revision surgery; and even if a surgical needle
could become detached without negligence on the part of Slone, “that alone
does not rebut the reasonable inference that a needle should not remain in the
body of a patient.” The Court recognized that “[t]he fact that the needle was left
and that it caused injury to Lloyd is certainly something that the jury could
infer through common knowledge as something that should not have
happened” in the absence of “proper skill and care.”
The Court of Appeals concluded that summary judgment was properly
granted to the hospital because there was an absence of evidence that its
employee (the circulating nurse who charted what occurred during surgery, the
incorrect instrument count, the efforts to find the needle, and that Dr. Griffin
ordered, read, and cleared an x-ray) was in control of the suture needle that
remained in Lloyd’s knee. The Court rejected the notion that the hospital could
43
be liable when its policies relating to missing instrumentation were not
followed. The Court concluded Dr. Dysart’s testimony regarding the hospital’s
negligence was properly excluded, and a policy itself could not establish
standard of care.
The radiologists and Slone appealed. Lloyd did not cross-appeal the
Court of Appeals’ affirmance as to the hospital. The grant of summary
judgment to the hospital was resolved, is final, and is concluded.
The majority opinion now determines that summary judgment was
properly granted to the radiology defendants as the expert testimony of Dr.
Dysart was insufficient to establish a violation of the standard of care. In
making such a ruling, it implicitly confirms that striking a large portion of his
deposition testimony, which includes his opinion as to a general standard of
care regarding appropriate x-rays, was appropriate.
The majority opinion concludes that summary judgment was properly
granted to Slone because she had overcome the presumption of negligence in
the res ipsa loquitur standard as there was no evidence that she was negligent
in losing control of the needle and there was no evidence that after it was lost
that she had actual or constructive control over the needle. The majority
opinion bases this second finding on the statutory definitions associated with
surgical assistants in Kentucky and makes additional findings that “Slone did
everything within her power to find the needle after it had been lost—she
notified Dr. Griffin and the rest of the surgical team and conducted a visual
search for the needle” and “after she lost physical custody of the needle, the
44
needle became under the constructive control of Dr. Griffin.” This reliance on
Dr. Griffin’s role as precluding liability by others is an improper rejection of the
reality that each member of the surgical team has a legal duty to keep the
patient safe.
IV. LEGAL ANALYSIS
A. Summary Judgment Standard
Summary judgment is only appropriately granted where “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.” Kentucky Rules of Civil Procedure (CR) 56.03.
“The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved
in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480
(Ky. 1991). “A single issue of material fact, the resolution of which could
reasonably change the outcome of the litigation is sufficient to overcome a
motion for summary judgment.” Clair v. Hillenmeyer, 232 S.W.3d 544, 550 (Ky.
App. 2007). “Undisputed facts will not support a summary judgment if contrary
inferences may be drawn therefrom.” Roberts v. Davis, 422 S.W.2d 890, 894
(Ky. 1967).
“Because summary judgment does not require findings of fact but only
an examination of the record to determine whether material issues of fact exist,
we generally review the grant of summary judgment without deference to either
45
the trial court’s assessment of the record or its legal conclusions.” Hammons v.
Hammons, 327 S.W.3d 444, 448 (Ky. 2010). We will uphold a trial court’s grant
of summary judgment only where it correctly found there were no disputed
issues as to any material facts, the moving party was entitled to judgment as a
matter of law, and the adverse party cannot prevail under any circumstance.
Dolt, Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum,
607 S.W.3d 683, 686 (Ky. 2020).
B. Application of the Res Ipsa Loquitur Doctrine.
Normally in a medical malpractice action, expert testimony is required to
establish whether the conduct at issue violated the standard of care and
caused the damages claimed by the plaintiff. Ashland Hosp. Corp. v. Lewis, 581
S.W.3d 572, 578 (Ky. 2019); Blankenship v. Collier, 302 S.W.3d 665, 670 (Ky.
2010). The doctrine of res ipsa loquitur is an exception to this general rule in
circumstances in which lay persons can recognize or infer negligence based on
their common knowledge or experience. Ashland Hosp. Corp., 581 S.W.3d at
578. See Phillips v. Tangilag, 14 F.4th 524, 540 (6th Cir. 2021) (applying
Kentucky law) (explaining “[u]nder the ‘res ipsa loquitur’ exception, a patient
does not need expert testimony about the standard of care if an ordinary
person could conclude that a certain result would not happen if the doctor had
performed with the proper skill”).
Summary judgment cannot be properly granted to the movant if res ipsa
loquitur applies. Expert testimony is not required to survive summary judgment
and summary judgment is not appropriate. See Hausladen, 828 S.W.2d at 654.
46
It is well established that surgery is a team effort in which multiple
members of the surgical team may be responsible for the retention of an object
within the patient. Nazar, 291 S.W.3d at 604. In Morris v. Boerste, 641 S.W.3d
688, 695-97 (Ky. App. 2022), the surgeon and hospital that employed nurses
were both subject to punitive damages when sponges were retained in the
patient.
The whole team may be negligent in certain circumstances. In Se. Ky.
Baptist Hosp., Inc. v. Bruce, 539 S.W.2d 286, 287–88 (Ky. 1976), the surgeon,
anesthesiologist, and surgical technician all had a duty to check the patient’s
identity on her patient identification bracelet before operating but none of them
did; therefore, they were all liable when the wrong patient was operated upon.
Accordingly, res ipsa loquitur may be properly established when a whole
surgical team may be jointly in control of the foreign object which is retained in
a patient and caused the patient’s injury so long as this retention could not
have occurred “if those having control and management had not been
negligent.” Eaton v. Swinford, 424 S.W.2d 118, 119 (Ky. 1967).
C. Dr. Cain and his Employer Should Not Have Been Granted Summary Judgment.
1. Res Ipsa Loquitur Applies to the Radiologists, and Material Issues
of Fact Should Be Resolved by the Jury.
Viewing the evidence in the light most favorable to Lloyd, as required
under the summary judgment standard, I conclude that Lloyd established the
existence of genuine, material issues of fact. The trial court erred by resolving
these factual issues against Lloyd and the majority opinion also erred in
47
making its own factual findings against Lloyd. Therefore, summary judgment
was inappropriately granted to Dr. Cain, his employer, and Slone.
As to Dr. Cain, the standard for res ipsa loquitur was satisfied by
establishing that the needle was within the exclusive joint control of the
surgical team which could include Dr. Cain, when entrusted to locate the
needle within Lloyd or conclusively determine that it was not within her body.
Dr. Cain failed in his duty to properly rule out the needle’s retention.
There are multiple jury questions on issues of fact regarding Dr. Cain’s
conduct and depending upon how they are resolved, he may overcome the
presumption of negligence. The jury needs to decide whether he became part of
the surgical team when he was called upon to read the x-ray to determine
whether the needle was retained in the surgical site and whether he was
constructively in possession of the needle under these circumstances. As to his
negligence in reading the x-ray, a radiologist should be able to identify a metal
object on x-rays. The needle was spotted later on x-rays taken a month after
surgery, showing that the needle always could have been located on x-rays had
proper x-rays been taken and properly interpreted during surgery. The majority
has erred in concluding that negligence cannot be established against Dr. Cain.
2. Alternatively, Res Ipsa Loquitur with the Assistance of Expert
Testimony Applies to the Radiologists.
Lloyd’s negligence claim against the radiologists should also survive
summary judgment because there was relevant expert testimony that clarified
the matter further. Regarding more complex matters, res ipsa loquitur applies
when, “expert testimony [can] establish[] [that] the ‘type of injury was not an
48
ordinary risk of the surgery, that the method by which it occurred was within
the exclusive control of the defendant, and that the injury was not due to any
voluntary action or contribution on the part of the plaintiff.’” Arnsperger, 686
S.W.3d at 138 (quoting Hausladen, 828 S.W.2d at 655). Therefore, in
Hausladen, we stated that in a variety of medical malpractice cases, the res
ipsa loquitur inference of negligence was “sufficiently supplied by medical
testimony of record even though the plaintiff had no expert witness to opine that
the conduct fell below the standard of acceptable professional care.” 828 S.W.2d
at 655 (emphasis added).
Here, Dr. Dysart’s expert medical testimony establishes a foundation that
gives rise to an inference of negligence by Dr. Cain, even if Dr. Dysart cannot
establish the relevant radiological standard of care. Dr. Dysart provided this
foundation by explaining what could be viewed on the x-ray that was taken,
and what type of x-rays are needed in this situation.
Dr. Dysart established that Dr. Cain’s failure to locate the needle in
Lloyd’s body before the surgery was complete (resulting in its retention) was not
an ordinary risk of surgery where the needle could have been located through
x-ray images before the surgery was complete. Dr. Dysart also established that
the needle was not located by Dr. Cain due to an inaccurate reading of the xray that was taken. Dr. Dysart clarified that a minimum of two x-rays were
required to find a metal needle against a metal joint which could mask the
needle and anyone reading x-rays for such a purpose should know this. It
would be a question for a jury to determine whether Dr. Cain should have
49
observed the needle on the x-ray, and what he was obligated and authorized to
do in the situation where the surgeon had not ordered appropriate x-rays of at
least two views of the knee.
3. Striking Portions of Dr. Dysart’s Testimony Against the
Radiologists Was Improper.
CR 26.02(4) requires parties to disclose, upon request before trial, “facts
known and opinions held by experts,” including, “the subject matter on which
the expert is expected to testify, and . . . the substance of the facts and
opinions to which the expert is expected to testify and a summary of the
grounds for each opinion.” The purpose behind CR 26.02(4) “is to allow the
opposing party to adequately prepare for the substance of the expert’s trial
testimony.” Pauly v. Chang, 498 S.W.3d 394, 411–12 (Ky. App. 2015).
If a party fails to make an appropriate disclosure, trial courts are
permitted to exclude such inadequately disclosed expert testimony. However,
“the person requesting exclusion of testimony must show prejudice. Otherwise,
there is no valid basis to exclude or limit testimony.” Equitania Ins. Co. v. Slone
& Garrett, P.S.C., 191 S.W.3d 552, 556 (Ky. 2006).
We review a trial court’s decision to limit or exclude expert testimony for
abuse of discretion. Oliphant v. Ries, 568 S.W.3d 336, 342 (Ky. 2019). Such
discretion is abused when the “decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Baptist Healthcare Sys., Inc. v. Miller,
177 S.W.3d 676, 684 (Ky. 2005).
50
While I agree that it was within the discretion of the trial court to strike
portions of the testimony of Dr. Dysart which related to possible liability to the
hospital due to Lloyd’s failure to disclose that this expert would testify about
the hospital’s liability, I conclude that the trial court abused its discretion to
the extent that it struck portions of his testimony which did not specifically
relate to liability by the hospital, and only related to other defendants. Such a
decision was patently arbitrary, unreasonable, unfair, and unsupported where
the trial court excluded testimony relating to the radiology defendants’
conduct. The radiology defendants received an appropriate disclosure as to
opinions Dr. Dysart would make regarding their conduct and could adequately
prepare for such opinions. The radiology defendants did not ask for anything to
be stricken from Dr. Dysart’s deposition testimony and, additionally, had no
basis for requesting that anything be stricken from the portion of this
testimony.
Lloyd properly opposed this broad exclusion, explaining why the
exclusion of testimony was excessive and inappropriate as it related to the
radiologists and also properly asked for rehearing on this issue. The evidence
relating solely to the radiologists’ conduct could not prejudice the hospital and,
therefore, there was no reason to exclude it.
The opinions Dr. Dysart made regarding the radiologists in this portion
of his deposition testimony are properly admissible against Dr. Cain and his
employer. It would be appropriate to reverse and require the trial court to
determine, now that the hospital has been dismissed as a party, whether any
51
portion of Dr. Dysart’s testimony should still be stricken or excluded. However,
Dr. Dysart’s testimony provided ample grounds upon which a presumption of
negligence by Dr. Cain can be established under the doctrine of res ipsa
loquitur with or without such testimony.
I further conclude that Dr. Dysart’s wrongfully excluded testimony
established that there is a basic, underlying standard of care in any kind of
imaging to locate a lost metal object, that at least two views are necessary. Dr.
Dysart’s opinion regarding standard of care was nuanced. He explained he
could not testify as to what the Academy of Radiology required as far as
standard of care, but he could identify a minimum standard of care for looking
for a retained object; his opinion was that at least two views were needed. This,
also, should have been enough to conclude that summary judgment should not
have been granted in favor of Dr. Cain.
D. Slone Should Not Have Been Granted Summary Judgment.
Slone lost the needle. If Slone had not lost the needle, there would be no
injury. Res ipsa loquitur provides an inference of negligence against Slone.
While Slone’s responsibility as to the retained needle was different from those
of the surgeon and radiologist, she was still a member of the surgical team
responsible for keeping foreign objects from being retained in Lloyd’s body. The
record established that she had control over the needle when it became lost,
and the presumption is that she was negligent in its loss. Once res ipsa loquitur
applies, the questions of whether she was negligent and whether her action
contributed to Lloyd’s damages become jury questions.
52
In addition to informing the surgeon of the lost needle, Slone’s conduct in
looking for the needle in Lloyd’s surgical wound and in the surgical room was
clearly insufficient as she did not discover the needle. How thoroughly she
searched the room and how confidently she informed Dr. Griffin of her belief
that the needle was not in the surgical wound, is conduct for which she is
responsible. Therefore, it is appropriate for the presumption of res ipsa loquitur
to also apply to her other conduct as she could bear some comparative fault for
Lloyd’s injuries.
V. CONCLUSION
As noted in Nazar, 291 S.W.3d at 604, pursuant to the doctrine of res
ipsa loquitur, “juries should generally be permitted to determine a healthcare
professional’s liability in a retained foreign object case.” This is such a case,
and the jury should be permitted to evaluate whether Dr. Cain became a
member of the surgical team and, if so, whether he and his employer are liable
under comparative negligence for Lloyd’s injuries where Dr. Cain failed to find
the surgical needle. The jury should also be permitted to evaluate whether
Slone was also responsible for the damage caused by the retained needle.
Accordingly, I would affirm the Court of Appeals’ opinion that summary
judgment should have been denied to Dr. Cain, Diagnostic X-Ray Physicians,
and Slone.
53
COUNSEL FOR APPELLANTS/APPELLEES, DIAGNOSTIC X-RAY PHYSICIANS,
PSC (DXP); DARREN CAIN, M.D.; AND CHRISTOPHER DALE HENLEY, M.D.:
Robert Lee Whitmer
Dentons Bingham Greenebaum LLP
Craig Louis Johnson
Steptoe & Johnson PLLC
Timothy Bland George, Jr.
Reminger Co. LPA
COUNSEL FOR APPELLANT/APPELLEE, SHEILA SLONE KCSA:
Michael D. Risley
Charles H. Stopher
Edward H. Stopher
Bethany A. Breetz
Stites Harbison PLLC
Kristin Nichole Logan Mischel
Kentucky State Police
COUNSEL FOR APPELLEE, DEBORAH LLOYD:
Kenneth H. Baker
Richard Paul Schiller
Richard P. Schiller Attorney
COUNSEL FOR APPELLEE, NORTON’S HOSPITALS, INC. D/B/A NORTON’S
WOMEN’S AND CHILDREN’S HOSPITAL:
Karen Lee Keith
Virginia Leigh Schell
Stoll Keenon Ogden PLLC
COUNSEL FOR AMICUS, AMERICAN MEDICAL ASSOCIATION AND
KENTUCKY MEDICAL ASSOCIATION:
Philip S. Goldberg
Shook, Hardy & Bacon LLP
Carolyn Purcell Michener
Michener Mullins & Arrington PLLC
54