Curty v. Norton Healthcare, Inc., 561 S.W.3d 374

Background

Curty worked <1 year as a medical assistant for Norton and was subject to a point-based attendance policy that terminated employment at 10 points in 12 months.
On July 15, 2015, Curty alleges she had a "stroke-like" episode treated in Norton’s ER and claims an ER physician ordered two days off; deposition evidence showed she worked July 16–17.
On July 17, 2015, Curty had accrued 11.5 attendance points and was terminated for excessive absenteeism.
Curty sued (KCRA disability/discrimination/retaliation and Workers’ Compensation Act retaliation) and requested discovery; she did not specifically request her medical records in initial written discovery responses.
Curty moved to compel production of her medical records after depositions and sought to delay summary judgment pending those records; the trial court denied the motion as premature because she had not tried available methods to obtain her records under CR 26.01.
The trial court granted summary judgment (first partially, then fully on renewed motion) finding Curty was not disabled nor perceived as disabled and that Norton had a legitimate nondiscriminatory reason (attendance) for termination; Curty’s motions to reconsider were denied, and she appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court abused discretion by denying motion to compel Curty’s medical records	Curty argued Norton should have produced her medical records and the denial frustrated discovery needed to oppose summary judgment	Norton argued Curty never properly requested the records in discovery and had means to obtain them herself; no refusal to compel existed	Denial upheld — Curty failed to make a proper discovery request or show Norton refused; court found she hadn’t tried available CR 26.01 methods
Whether summary judgment was premature because discovery was incomplete without Curty’s medical records	Curty argued absence of her medical records made summary judgment "fatally flawed" and she needed more time to complete discovery	Norton argued Curty had ample time (nearly two years) and at least partial records were obtainable; medical records would not create genuine dispute of material fact	Summary judgment affirmed — Curty had ample discovery opportunity and records would not create a genuine issue of material fact
Whether Curty’s claims (retaliation under KCRA/WC Act) survived summary judgment	Curty contended she engaged in protected activity and was unlawfully retaliated against	Norton asserted Curty did not engage in requisite protected activity and termination was for excessive absenteeism	Retaliation claims dismissed — plaintiff did not engage in protected activity
Whether Curty was disabled or perceived as disabled under KCRA	Curty asserted disability/discrimination based on the alleged medical episode	Norton argued Curty was not disabled and decisionmakers did not perceive her as disabled; legitimate nondiscriminatory reason existed	Disability claims dismissed — no evidence Curty was disabled or perceived as such; summary judgment proper

Key Cases Cited

Elwell v. Stone, 799 S.W.2d 46 (Ky. App. 1990) (appellate preservation requirement and sanction discussion)
Massie v. Persson, 729 S.W.2d 448 (Ky. App. 1987) (necessity of presenting issues to trial court before appeal)
Oakley v. Oakley, 391 S.W.3d 377 (Ky. App. 2012) (preservation statement importance and standard of review)
Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999) (abuse of discretion defined)
Metro. Prop. & Cas. Ins. Co. v. Overstreet, 103 S.W.3d 31 (Ky. 2003) (court order appropriate after failure to comply with discovery request)
Pendleton Bros. Vending, Inc. v. Com. Fin. & Admin. Cabinet, 758 S.W.2d 24 (Ky. 1988) (summary judgment proper after ample opportunity for discovery)
Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996) (appellate review standard for summary judgment)
Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188 (Ky. App. 2006) (summary judgment review de novo)