SHANE THOMAS UNDERWOOD ADMINISTRATOR OF THE ESTATE OF GARY THOMAS UNDERWOOD APPELLANT v. LOEY KOUSA APPELLEE

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Court of Appeals of Kentucky.

SHANE THOMAS UNDERWOOD, as ADMINISTRATOR OF THE ESTATE OF GARY THOMAS UNDERWOOD APPELLANT v. LOEY KOUSA, M.D. APPELLEE

NO. 2010–CA–001681–MR

Decided: June 17, 2011

BEFORE:  NICKELL AND THOMPSON, JUDGES;  ISAAC  Double, SENIOR JUDGE. BRIEF FOR APPELLANT:  Elbert Alvin Fletcher Lowmansville, Kentucky BRIEF FOR APPELLEE:  Kenneth Williams, Jr. Catherine C. Hughes Ashland, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Shane Thomas Underwood, as administrator of the estate of Gary Thomas Underwood appeals from a summary judgment granted in favor of Loey Kousa, M.D. The Estate argues that the trial court erred by failing to grant a continuance and finding that it failed to produce an expert opinion on the issue of causation.   For the reasons stated below, we affirm.

Gary Underwood had been a patient of Dr. Kousa since April 2007.   On January 18, 2008, Mr. Underwood called Dr. Kousa's office complaining of strep throat symptoms and requested a prescription for antibiotics.   Dr. Kousa advised Mr. Underwood to come into the office, but Mr. Underwood did not appear that day.   On January 28, 2008, Mr. Underwood visited Dr. Kousa for a regular checkup.   Dr. Kousa's notes do not indicate any complaints other than low back pain.   The next day, Mr. Underwood went to the emergency room of Paul B. Hall Regional Medical Center complaining of a burning sensation in his lower extremities and shortness of breath.   The emergency room physician contacted Dr. Kousa to admit Mr. Underwood under his care, but Dr. Kousa declined and advised that Mr. Underwood required a higher level of care.   Mr. Underwood was transferred to another hospital where he passed away that afternoon.   The cause of death was listed as cardiac arrest resulting from septic shock.

On January 29, 2009, the Estate filed a medical negligence claim against Dr. Kousa.   The trial court entered an order setting a deadline of January 31, 2010, to disclose expert witnesses.   On March 31, 2010, Dr. Kousa filed a motion for summary judgment based on the Estate's failure to comply with the January 31, 2010 deadline.   On April 1, 2010, the Estate filed a motion for additional time to file its expert disclosures, which the trial court granted.   On April 21, 2010, the Estate disclosed Dr. Mark Shoag as its expert witness.

On May 11, 2010, the trial court rescheduled the trial date from July 5, 2010, to August 30, 2010.   Dr. Shoag was deposed on July 14, 2010.   In his deposition, Dr. Shoag stated that he agreed with the cause of death listed on the death certificate and would not offer any opinion on causation at trial.   Based on this testimony, Dr. Kousa filed another motion for summary judgment on August 9, 2010.   The trial court denied the motion in an order entered on August 23, 2010.   On August 24, 2010, the Estate filed a motion to continue the trial because Dr. Shoag would be unavailable without stating any grounds for his unavailability.   On August 25, 2010, the trial court conducted a hearing via telephone conference on the Estate's motion for a continuance and Dr. Kousa's renewed motion for summary judgment.   Following the hearing, the trial court denied the motion for a continuance and granted summary judgment in favor of Dr. Kousa.   This appeal followed.

The Estate first argues it was entitled to a continuance under Kentucky Rule of Civil Procedure (CR) 92(2) and that the trial court abused its discretion by denying the motion.

CR 92(2) states:

Motions for enlargement of time or continuances shall state the reasons therefor and will be granted only for good cause.   Agreed orders pertaining to such matters will not be accepted.

CR 43.03 states:

A motion to postpone a trial on account of the absence of evidence may be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it.   If the motion is based on the absence of a witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant believes them to be true.   If the adverse party will consent that, on the trial, the affidavit may be read as the deposition of the absent witness, the trial shall not be postponed on account of his absence.

The Estate did not present the trial court with any reason for the unavailability of Dr. Shoag nor did it file an affidavit in support of its motion for a continuance.   The former Court of Appeals has held that a trial court properly denied a motion for continuance when the movant failed to file an affidavit in accordance with CR 43.03.  Holthauser v. Cox, 279 S.W.2d 744, 745 (Ky.1955).   Because the Estate failed to file an affidavit as required by CR 43.03 and failed to show good cause under CR 92(2), we hold that the trial court did not abuse its discretion by denying the motion for continuance.

The Estate next argues that the trial court erred by granting summary judgment and that it erroneously concluded that the expert testimony was insufficient.

Liability for medical negligence generally requires expert medical testimony to establish the applicable standard of care, its breach, and consequent causation of injury.  Andrew v. Begley, 203 S.W.3d 165, 170 (Ky.App.2006).   Further, a plaintiff's failure to provide expert medical proof is generally fatal to the cause of action, and such a case is appropriate for summary disposition under CR 56.   See Simmons v. Stephenson, 84 S.W.3d 926, 928 (Ky.App.2002).

At the outset, we note that the complete deposition of Dr. Shoag is not contained in the record nor is there any indication that the deposition was filed in the trial court.   However, two pages of the deposition were appended to the trial court's order.  “It is the appellant's duty to present a complete record on appeal.   Failure to show preservation of claims prohibits this Court's review of those claims.”  Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920, 926 (Ky.2007).  “When a record is incomplete and partially incomprehensible, we may indulge the presumption of correctness of the judgment upon review.”  Commonwealth, Dept. of Highways v. Richardson, 424 S.W.2d 601, 604 (Ky.1967).   Our Supreme Court has consistently held:

it is an appellant's responsibility to ensure that the record contains all of the materials necessary for an appellate court to rule upon all the issues raised.   And we are required to assume that any portion of the record not supplied to us supports the decision of the trial court.

Clark v. Commonwealth, 223 S.W.3d 90, 102 (Ky.2007) (citations in footnotes omitted).

Dr. Shoag was the sole expert identified by the Estate.   Dr. Shoag unequivocally stated that he would not offer any opinion on causation.   Without the remaining portion of the deposition to review, we must presume that it supports the conclusion of the trial court.   Because the Estate has failed to offer any expert testimony on causation, the claim must fail as a matter of law.  Simmons, supra.

Accordingly, the order of the Johnson Circuit Court is affirmed.

NICKELL, JUDGE, CONCURS.

THOMPSON, JUDGE, CONCURS IN RESULT ONLY.

ISAAC, SENIOR JUDGE: