Johnson v. Wood

626 S.W.3d 543

Kimberly JOHNSON, Appellant

v. Honorable Stockton B. WOOD, Judge of the Fleming Circuit Court, AppelleeandDr. Amanda Applegate; Family Medicine Associates of Flemingsburg, P.S.C.; Family Medicine Associates of Flemingsburg (Assumed Name Corporation of Family Medicine Associates of Flemingsburg, P.S.C.); Dr. Richard S. Hartman; Dr. Jennifer Hagenschneider; Dr. Charles Clarke ; Maysville Radiology Associates, P.S.C. ; Fleming County Medical Center, LLC d/b/a Fleming County Hospital; Kristal Humphries; and Gena Barker, Real Parties in Interest

2020-SC-0588-MR

Supreme Court of Kentucky.

JUNE 17, 2021

COUNSEL FOR APPELLANT: J. Dale Golden, Lexington, Laraclay Drake Parker, Golden Law Office.

APPELLEE: Stockton B. Wood, Judge of the Fleming Circuit Court.

COUNSEL FOR REAL PARTIES IN INTEREST, FAMILY MEDICINE ASSOCIATES OF FLEMINGSBURG, P.S.C.; FAMILY MEDICINE ASSOCIATES OF FLEMINGSBURG (ASSUMED NAME CORPORATION OF FAMILY MEDICINE ASSOCIATES OF FLEMINGSBURG, P.S.C.), AND DR. AMANDA APPLEGATE : Clayton Lee Robinson, Lexington, Courtney Lynn Soltis, Robinson & Havens, PSC.

COUNSEL FOR REAL PARTIES IN INTEREST, FLEMING COUNTY MEDICAL CENTER, LLC D/B/A FLEMING COUNTY HOSPITAL, GENA BARKER, AND KRISTAL HUMPHRIES: Ian Charles Baird Davis, Bradley Royal Hume, Chad Owens Propst, Bryan Todd Thompson, Louisville, Joseph Andrew Wright, Thompson Miller & Simpson, PLC.

COUNSEL FOR REAL PARTIES IN INTEREST, MAYSVILLE RADIOLOGY ASSOCIATES, P.S.C., DR. CHARLES CLARKE, DR. RICHARD S. HARTMAN, AND DR. JENNIFER HAGENSCHNEIDER: Benny Charles Epling, II, Steven Brent Black, Lexington, Law Offices of Benny C. Epling, II, PSC.

OPINION OF THE COURT BY JUSTICE KELLER

Kimberly Johnson appeals from the Court of Appeals’ denial of her petition for a writ of mandamus to direct Judge Stockton Wood of the Fleming Circuit Court to issue various orders in her favor. After a thorough review of the law, we affirm the Court of Appeals.

I. BACKGROUND

In November 2014, Johnson presented to her primary care provider, Dr. Amanda Applegate, complaining of pain in her right breast and was consequently sent for a screening mammogram. Her screening mammogram was completed at Fleming County Hospital¹ on December 19, 2014. Radiologist Dr. Richard Hartman interpreted this mammogram, found it inconclusive, and recommended a follow-up exam. Shortly thereafter, Johnson received a telephone call from a representative of FCHD asking that she return for more testing. Johnson returned to FCHD on January 9, 2015, where she underwent a diagnostic mammogram as well as an ultrasound of her right breast. These studies were performed by a radiology technologist, Radiology Tech #1,² and read by radiologist Dr. Jennifer Hagenschneider. The results of these studies and the doctors’ recommendations based on them, as well as the information Johnson received about these studies, are fervently disputed by the parties.

According to Johnson, on January 11, 2015, an FCHD radiology technologist, Radiology Tech #2, printed out a mammogram notification letter from FCHD's system indicating that Johnson's second mammogram "revealed mammographic findings requiring attention." Radiology Tech #2 hand-wrote on this letter that she would "attempt to locate [Johnson's] old films .... This may take a few days, but I will let you know."

According to Johnson, on January 15, 2015, Radiology Tech #2 printed out a second mammogram notification letter informing Johnson that her "recent mammogram examination ... revealed no evidence of cancer." Johnson, however, continued to experience right breast pain throughout 2015. In September 2015, Dr. Applegate referred Johnson to a surgeon at St. Elizabeth Hospital who diagnosed Johnson with malignant invasive ductal carcinoma which had metastasized.

Johnson filed a complaint against Fleming Medical Center, LLC (FMC); Dr. Applegate and her practice, Family Medicine Associates of Flemingsburg, P.S.C. (collectively referred to as Dr. Applegate); and Dr. Hagenschneider, Dr. Richard Hartman, Dr. Charles Clarke, and their practice, Maysville Radiology Associates, P.S.C. (collectively referred to as the radiology defendants) on September 23, 2016, alleging medical negligence. After filing her lawsuit, Johnson learned that at the time of her mammography examinations, Fleming County Hospital was owned by the Fleming County Hospital District (FCHD), which then sold the hospital to Fleming Medical Center LLC (FMC) on July 31, 2015. On November 21, 2016, Johnson filed an amended complaint substituting FCHD for FMC.

Dr. Applegate was served with Johnson's complaint on September 26, 2016, and on September 30, 2016, Dr. Applegate contacted Radiology Tech #2 regarding Johnson's mammograms at FCHD. During this conversation, Radiology Tech #2 told Dr. Applegate that Johnson had been scheduled for a biopsy, and Dr. Applegate requested to see a copy of the document referencing a biopsy. Later that day, Radiology Tech #2 provided a screenshot of Johnson's record from the hospital's mammogram database to Dr. Applegate which noted the record had been modified³ on that day. The screenshot showed that Johnson had been scheduled for a biopsy in January 2015, but her medical records showed no biopsy was done during that time frame. The parties have referred to this screenshot as "the biopsy screenshot." Johnson alleges that this screenshot was taken only after Radiology Tech #2 edited Johnson's medical record to delete any reference to the "cancer free" diagnosis and letter but to leave reference to the biopsy.⁴

On the same day she received the screenshot, Dr. Applegate provided it to her attorney. Dr. Applegate's attorney subsequently provided the biopsy screenshot to the attorneys for the other defendants, but it was not turned over to Johnson. Johnson alleges that prior to her finally receiving the screenshot, the defendants offered perjured deposition testimony and provided false answers to written discovery. She also alleges that additional changes were made to Johnson's medical records, including the printing of fake mammogram notification letters that were included in subpoenaed medical records from Fleming County Hospital.

In December 2017, Johnson filed a second amended complaint adding claims against FMC, Radiology Tech #1, Radiology Tech #2, and Gena Barker, Radiology Tech #1's supervisor. The claim against Radiology Tech #2 was one of medical negligence. The other claims were centered around that of a civil conspiracy engaged in by FMC, radiologist Dr. Hagenschneider, Barker, and Radiology Tech #1 alleging spoliation and fabrication of evidence. Johnson alleged that Radiology Tech #1, at the requests of her supervisor Barker and Dr. Hagenschneider, printed two fake mammography notification letters and included them in Johnson's certified medical records.

On February 22, 2018, and still before Johnson had knowledge of the biopsy screenshot, Johnson settled her claims against FCHD and Radiology Tech #2. The parties expressly recognized that discovery was not yet complete and assumed the risk of possible discovery of additional or different facts. Johnson claims that this settlement was procured by fraud.

On April 26, 2018, Johnson filed a third amended complaint adding multiple claims, including spoliation, abuse of process, obstruction of justice, tortious interference with expectancy, and conversion.

The biopsy screenshot was not turned over to Johnson until November 21, 2018, after the trial court ordered the defendants to produce all documents that they had reviewed which were relevant to Johnson. However, as demonstrated by her amended complaints, Johnson already had suspicions that changes had been made to her medical data and believed fake mammogram notification letters had been produced.

On January 14, 2019, Johnson filed an omnibus motion to strike the defendants’ answers, for costs and attorneys’ fees, to compel discovery and depositions of the attorneys involved, for expedited discovery, and for leave to amend her complaint to reassert claims against FCHD and its insurer sounding in bad faith and fraudulent inducement to a contract. During December 2019 and January 2020, the trial court entered fourteen separate orders. In those orders, it denied Johnson's motion to strike the defendants’ answers. It reserved on her motion for costs and attorneys’ fees. It ordered the defendants to produce certain discovery but denied Johnson's request to invoke the crime-fraud exception to the attorney-client privilege so that she could depose the attorneys for the defendants. The trial court also denied Johnson's motion to amend the complaint. The trial court would not allow Johnson to reassert claims against FCHD based on the settlement agreement she had entered into and her unwillingness to return the money she received from the settlement. The court also noted that "[s]poliation is not a recognized tort claim in the Commonwealth of Kentucky and this Court is not in the position to allow an amended complaint that attaches a claim that cannot be recovered."

On May 27, 2020, and after Johnson's petition for a writ of mandamus was filed in the Court of Appeals, the trial court dismissed Johnson's third amended complaint against Radiology Tech #1, Gena Barker, their employer FMC,⁵ and Dr. Hagenschneider for fabrication of medical records concluding that "the law as it currently exists in Kentucky does not allow a remedy other than civil penalties to be imposed by the [c]ourt." Later that same day, FMC put forth the theory for the first time that the biopsy note contained on the screenshot may have been a clerical error and intended for a different patient with the same last name, similar patient number, and aged within a year of Johnson who had a mammogram and ultrasound studies completed on the same day as Johnson.

Johnson seeks a writ of mandamus directing the circuit court to: (1) award her attorneys’ fees, expert fees, and costs so far expended in the matter; (2) set the matter...