Love v. Walker
2014 Ky. LEXIS 84
Ky.2014Background
- Lisa Walker underwent total thyroidectomy by Dr. Love on Feb 28, 2006, after which she developed vocal cord paralysis and respiratory issues; the Walkers filed a medical malpractice suit in 2007.
- Discovery extended over more than three years; no expert disclosures were made by Walkers prior to summary judgment.
- Dr. Love moved for summary judgment in July 2010 arguing lack of expert proof that care deviated from standard of care.
- Trial court granted summary judgment on failure of proof; Walkers challenged, arguing genuine issues of fact and need for a surgical expert.
- Court of Appeals reversed, finding a dispute about the need for an expert witness; Supreme Court granted discretionary review.
- On review, Court held: (1) there was no legitimate dispute about need for an expert in this case; (2) summary judgment appropriate for lack of proof about Dr. Love’s post-surgical care, but remand needed to address whether surgery was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Need for an expert witness in malpractice claim | Walker argues disputed need for surgical expert | Love argues no genuine dispute; expert necessary | No legitimate dispute; expert needed to evaluate surgery |
| Appropriateness of granting summary judgment for lack of proof | Discovery delay not fatal; evidence raises issues | Lack of expert proof warrants summary judgment | Summary judgment upheld on lack of proof about post-surgical care |
| Remand scope regarding propriety of surgery | Evidence could show improper surgery | Only post-surgical care at issue | Remand limited to propriety of surgery vs. standard of care post-surgery |
Key Cases Cited
- Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010) (establishes two categories of medical malpractice proof and review for abuse of discretion in discovery)
- Ward v. Housman, 809 S.W.2d 717 (Ky.App. 1991) (summary judgment not used for untimely expert disclosures when no proof)
- Perkins v. Hausladen, 828 S.W.2d 652 (Ky. 1992) (general requirement of expert testimony in malpractice actions)
- Police Copas v. Copas, 359 S.W.3d 471 (Ky.App. 2012) (CR 60.02/59.05 discretion; no abuse shown)
- Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999) (abuse of discretion standard for trial court decisions)