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March 13, 2026 Get Citation Alerts Download PDF Add Note

Ellen Sullivan v. Broadening Horizons, Inc.

Court of Appeals of Kentucky

• Citations: None known
• Docket Number: 2025-CA-0601
• Precedential Status: Non-Precedential
• Judges: Eckerle

• Disposition: OPINION AFFIRMING

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (19.9K)

• PDF

Disposition

OPINION AFFIRMING

Combined Opinion

RENDERED: MARCH 13, 2026; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0601-MR

ELLEN SULLIVAN APPELLANT

APPEAL FROM PULASKI CIRCUIT COURT
v. HONORABLE TERESA WHITAKER, JUDGE
ACTION NO. 23-CI-00486

BROADENING HORIZONS, INC.;
AMANDA TROXTELL, IN HER
CAPACITY AS COORDINATOR FOR
BROADENING HORIZONS, INC.;
AND KAREN WHITAKER, IN HER
CAPACITY AS PRESIDENT AND
DIRECTOR OF BROADENING
HORIZONS, INC. APPELLEES

OPINION
AFFIRMING

---

BEFORE: COMBS, ECKERLE, AND MOYNAHAN, JUDGES.

ECKERLE, JUDGE: Appellant, Ellen Sullivan (“Sullivan”), seeks relief from an

order of the Pulaski Circuit Court granting summary judgment to Appellees,

Broadening Horizons, Inc. (“Broadening Horizons”), Executive Director Karen
Whitaker (“Whitaker”), and Coordinator Amanda Troxtell (“Troxtell”). After

careful review, we affirm.

I. Factual and Procedural History

In 2017, Sullivan contracted with Broadening Horizons as a family

home provider under the Medicaid Supports for Community Living (“SCL”)

waiver program. It is undisputed that the contract identifies the relationship as one

of an independent contractor agreeing to provide care within the guidelines and

regulations governing that program. By early 2022, Sullivan had three participants

in her home through individual placement agreements with Broadening Horizons.

The underlying claims in this case arise out of a medication error that

occurred in May of 2022. The parties agree that Sullivan’s job included filling,

picking up, and administering medications to the participants in accordance with

their physicians’ orders and Broadening Horizons’ internal policies. They also

agree that Sullivan had received yearly retraining on these duties, which included

required steps to verify, administer, and document the medication administered

accurately and in compliance with state and federal regulations. Broadening

Horizons retained control over financial accounts for participants and paid

pharmacy bills on their behalf.

Appellees and Sullivan offer competing explanations for the

underlying cause of the medication error, but there are a number of facts on which

-2-
the parties do agree. First, all concede that Sullivan switched her participants’

prescriptions to the Sav-Rite Pharmacy in Somerset in March of 2022. This act fell

within her discretion to do as a family home provider. Second, they also

acknowledge that the balances for the prescriptions filled on the accounts of

Sullivan’s three participants were not paid in March, April, or the first three weeks

in May of 2022.1 Third, participant B.P. had a prescription refill for cetirizine

(“Zyrtec”) due on May 13, 2022, one day before he received his last remaining

dose from the previous prescription filled on April 14, 2022. This prescription was

not acquired on May 13, 2022.2 Fourth, the parties concede that participant B.P.

did not receive any doses of Zyrtec for eight days until the medication was

retrieved and administered on May 23, 2022.

Significant disagreement exists regarding the communication between

Sullivan and Broadening Horizons during those eight days. In her deposition

testimony, Sullivan asserts that she spoke daily with Troxtell, who managed the

family home providers for Broadening Horizons, and that Sullivan had conveyed

that the lack of payment had resulted in a hold from the pharmacy on her

participants’ medications. However, Troxtell insisted in her deposition that she had

1
The cause of this failure to pay the required bills is the subject of significant deposition
testimony and speculation by all parties, but it is ultimately not material to the claims at issue in
this case.
2
The cause of the failure to obtain the medication that day is also hotly contested by the parties,
with each alleging wrongdoing by the other.
-3-
not understood that there was an issue in obtaining the medication from the

pharmacy, and that she did not know that the participant had not been receiving his

medication. She testified that she believed the problem rested with the

prescription, and she counseled following up with the prescribing provider.

Regardless of these disputed facts, the parties agree that Sullivan

eventually picked up all prescriptions for her participants on May 23, 2022, and

she informed Executive Director Whitaker of the issue on the following day after

encountering her in the parking lot at Broadening Horizons. The sequence of

events that occurred after this report is the subject of the underlying tort claims in

this case.

First, Appellees confirmed with the pharmacy that there were

outstanding balances that had not been paid. However, the pharmacy stated that no

prescriptions were considered to be on hold at that time and noted that Sullivan had

picked up all the medications prior to payment of the outstanding bills.3 Invoices

from the pharmacy confirm that the bills were not due until May 27, 2022. The

letter from Sav-Rite Pharmacy confirms that its procedure would be to refuse to fill

3
At the request of Broadening Horizons, Kimberly Windham, the owner and manager of Sav-
Rite Pharmacy in South Somerset, prepared a letter dated May 31, 2022, detailing the
pharmacy’s account of the medication issue and the pharmacy technician’s recollections of
interactions with Sullivan and the staff of Broadening Horizons. See Appellant’s Brief Tab 3.
-4-
any further medications in June if the bill had not been paid by that date; but the

May prescriptions could still be picked up prior to payment.

After learning of this information, Broadening Horizons opened an

investigation into the reported medication error. Kristopher Godby (“Godby”), the

Program Director of Broadening Horizons, made necessary notifications to the

participant’s guardian and case manager before submitting required reports to

Adult Protective Services (“APS”) and the Department of Community Based

Services (“DCBS”) as required for any instances of suspected abuse, neglect, or

exploitation of a participant. In deposition testimony offered on behalf of

Broadening Horizons, Godby explained that one of the required reports classified

the medication error as a “critical” incident under the regulations.4 With the

assignment of a critical incident, Godby testified that he and Whitaker determined

that all of Sullivan’s participants would need to be removed pursuant to

Broadening Horizons’ policies to ensure the safety of the participants.5

4
Exhibit C of the Motion for Summary Judgment includes copies of the reports filed with APS
and DCBS for the participants in Sullivan’s home. This includes a “Risk Mitigation and Incident
Report” that details the steps taken to protect the other participants who had no known
medication errors at that time.
5
Exhibit D of the Motion for Summary Judgment documents Broadening Horizons’ policies and
procedures in the event of suspected abuse, neglect, or exploitation. These include reporting
mandates, investigation requirements, and safety of participants during the pendency of the
investigation process.
-5-
Although APS declined to pursue the medication error further,

Broadening Horizons conducted its own internal investigation as part of the

mitigation efforts reported to DCBS. Because of the number of missed doses

involved in the medication error, Broadening Horizons determined that Sullivan

had been negligent in her care of B.P., and that she would no longer be approved to

care for participants with complex medication needs. As a result, none of the three

participants would be allowed to return to her home through Broadening Horizons.

When Sullivan did not receive any communications about the

investigation within the 45-day window that Broadening Horizons had established

for sending results, she signed a contract with another SCL provider. She never

returned to work for Broadening Horizons, and her contract was never renewed.

One of the three participants did ultimately return to her care through the new SCL

provider. The guardians of the other two participants declined to follow her or

return their participants to her care.

Sullivan filed suit alleging a number of tort claims against Broadening

Horizons, as well as Whitaker and Troxtell in their capacities as Executive Director

and Coordinator. After completing discovery and depositions of all parties, the

Appellees moved for summary judgment on all claims. The Circuit Court held oral

arguments on the motion, which it eventually granted. Sullivan made a motion to

-6-
alter, amend, or vacate the order, which the Circuit Court denied. This appeal

followed.

II. Standard of Review

Because this is an appeal from an order granting summary judgment,

we review the Circuit Court’s conclusions de novo and without deference.

Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010) (citations omitted). “On

appellate review of the trial court’s grant of summary judgment, we must

determine whether the record, examined in its entirety, shows there is ‘no genuine

issue as to any material fact and the moving party is entitled to judgment as a

matter of law.’” Philadelphia Indem. Ins. Co, Inc. v. Tryon, 502 S.W.3d 585, 587

(Ky. 2016) (citing Kentucky Rules of Civil Procedure 56.03).

“Determination that a fact is material or immaterial rests on the

substantive law’s identification of which facts are critical and which facts are

irrelevant.” Kearney v. Univ. of Ky., 638 S.W.3d 385, 397 (Ky. 2022) (citations

omitted). “The inquiry should be whether, from the evidence of record, facts exist

which would make it possible for the non-moving party to prevail. In the analysis,

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). Summary

judgment is improper unless it would be “impossible for the respondent to produce

-7-
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).

III. Analysis

Sullivan asserts that material questions of fact exist that make

summary judgment inappropriate. Accordingly, we must consider each of

Sullivan’s claims individually to determine whether summary judgment was proper

after reviewing the substantive law at issue for each claim.

1. Claim for Retaliation Under Kentucky Revised Statutes (“KRS”) 216B.165

After reviewing the evidence in the light most favorable to Sullivan as

the non-moving party, the Circuit Court held that Sullivan could not state a claim

for retaliation on two grounds. Primarily, that Court held that Sullivan failed to

prove that Broadening Horizons was a healthcare facility subject to the statute. As

the basis of her argument, Sullivan contends that the descriptor of a “family care

home” offered in 907 Kentucky Administrative Regulations (“KAR”) 20:041

covers substantially and more appropriately the same types of services provided by

those who contract with Broadening Horizons. Sullivan also argues that the fact

that the SCL waiver program is governed by the reporting requirements in KRS

Chapter 209 does not bar it from being governed by KRS Chapter 216B as well.

However, this assertion obscures the fact that KRS 216B.015(13) explicitly applies

to a “health care facility or service licensed under this chapter” (emphasis added).

-8-
Principles of statutory construction require us “to give effect to the

intent of the General Assembly.” Jefferson Co. Bd. of Educ. v. Fell, 391 S.W.3d

713, 718 (Ky. 2012) (citations omitted).

We derive that intent, if at all possible, from the language
the General Assembly chose, either as defined by the
General Assembly or as generally understood in the
context of the matter under consideration . . . . We
presume that the General Assembly intended for the
statute to be construed as a whole, for all of its parts to
have meaning, and for it to harmonize with related
statutes.

Id. at 718-19.

Reviewing KRS 216B.165 as a whole, the plain language of the

statute limits its application to health care facilities and services that are licensed

under that chapter. Broadening Horizons is not so licensed. Instead, the legislature

established the SCL waiver program with KRS 205.6317 and instructed the

Cabinet of Health and Family Services to promulgate regulations in accordance

with the federal requirements of the program. Those regulations include specific

definitions for a SCL provider and a family home provider, and the requirements to

certify for each are different from the legislature’s definition of a “family care

home” in KRS Chapter 216B. See 907 KAR 1:145 and 12:010. They do not

-9-
require licensure for either under KRS Chapter 216B, and Sullivan has offered no

proof of licensure other than the asserted plain reading of the statute.6

In addition to the failure to prove that Broadening Horizons and

Sullivan were covered by KRS 216B.165, Sullivan also failed to seek relief under

KRS 446.070 to recover damages for a violation of a state statute where no penalty

or forfeiture is imposed by the statute. Because the pleading failed to seek

appropriate relief, the Circuit Court correctly noted that Sullivan would be unable

to recover even in the event that the statute could have been applied. For both of

these reasons, summary judgment was proper as a matter of law on Sullivan’s

retaliation claim.

1. Claim for Wrongful Discharge

Sullivan alleges that Appellees should be liable for wrongful discharge

on the grounds that her contract was terminated as retaliation for reporting the

medication error that she alleges was caused by Appellees’ failure to pay the

outstanding pharmacy bills. In reviewing this claim, the Circuit Court properly

reviewed the elements for wrongful discharge under Kentucky law:

“An employee has a cause of action for wrongful
discharge when the discharge is contrary to a
fundamental and well-defined public policy as evidenced
by existing law . . . . The public policy must be

6
Sullivan’s deposition testimony actually acknowledges this distinction. She testified that she
had previously been licensed as a family care home by the State but that she had “sent back” the
license many years prior to certifying as a family home provider.
-10-
evidenced by a constitutional or statutory provision. An
employee cannot be fired for refusing to violate the
constitution or a statute. Employers will be held liable
for those terminations that effectuate an unlawful end.”
Firestone Textile Co. Div., Firestone Tire & Rubber Co.
v. Meadows, 666 S.W.2d 730, 731 (Ky. 1983).

(Appellant’s Brief Tab 1 at 6.)

Appellees assert that Sullivan’s contract was never actually terminated

and counter her assertions that the removal of her participants acted as a

constructive termination. However, for the purpose of summary judgment, the

Circuit Court properly reviewed the claim in the light most favorable to Sullivan

and proceeded to review the evidence under the assumption that Sullivan had

actually been terminated.

At every level of the proceedings, Sullivan has asserted that the

appropriate test to determine her status as an employee would be to extend the

“economic realities” test adopted by the Kentucky Supreme Court for disputes

under the Kentucky wage and hour laws and for workers’ compensation

proceedings. Mouanda v. Jani-King Int’l, 653 S.W.3d 65 (Ky. 2022) (adopting the

economic realities test for wage and hour disputes); Oufafa v. Taxi, L.L.C., 664

S.W.3d 592 (Ky. 2023) (extending its use to workers’ compensation proceedings).

In her Appellant and Reply Briefs, Sullivan again urges that her status as an

employee is a question of fact that should be submitted to a jury under the

economic realities test.
-11-
After reviewing the elements articulated in Firestone, the Circuit

Court concluded that Sullivan was not an employee based on KRS 67.750(4),

which provides that a person classified as an independent contractor under the

Internal Revenue Code shall not be considered an employee. Based on the

available discovery, primarily the contract between Broadening Horizons and

Sullivan designating the intent for the parties to have the relationship that an

independent contractor would, we agree with the Circuit Court that Sullivan was an

independent contractor. Ultimately, though, we do not need to reach the question

of Sullivan’s status as an employee or independent contractor, because she has also

failed to assert proof of the second requirement set forth in Firestone that the

discharge be contrary to a fundamental and well-defined public policy.

In Firestone, the Kentucky Supreme Court adopted the Wisconsin

Supreme Court’s holding that “[t]he determination of whether the public policy

asserted is a well-defined and fundamental one is an issue of law and is to be made

by the . . . court.” Firestone, 666 S.W.2d at 733. Our Supreme Court expanded on

this holding in Hill v. Kentucky Lottery Corp., 327 S.W.3d 412 (Ky. 2010), noting

that Firestone established the following requirements for a wrongful discharge

claim under Kentucky law: “1) The discharge must be contrary to a fundamental

and well-defined public policy as evidenced by existing law. 2) That policy must

be evidenced by a constitutional or statutory provision. 3) The decision of whether

-12-
the public policy asserted meets these criteria is a question of law for the court to

decide, not a question of fact.” Id. at 420-21 (citing Firestone, 666 S.W.2d at 731).

The Court in Hill explained that it had held previously that the only

situations in which discharging an at-will employee would be so contrary to public

policy as to be actionable despite the absence of “explicit legislative statements

prohibiting the discharge” would be: “1) Where the alleged reason for the

discharge of the employee was the employee’s failure or refusal to violate a law in

the course of employment; or 2) When the reason for the discharge was the

employee’s exercise of a right conferred by well-established legislative

enactment.” Id. at 421-22 (citing Grzyb v. Evans, 700 S.W.2d 399, 402 (Ky.

1985)). Subsequent cases offer examples of fundamental and well-defined policy

such as: authorizing a labor union to represent an employee under the collective

bargaining statute (Pari-Mutuel Clerks’ Union v. Ky. Jockey Club, 551 S.W.2d 801

(Ky. 1977)); filing a workers’ compensation claim (Firestone, 666 S.W.2d 730);

and refusing to offer false testimony on behalf of an employer during a legal

proceeding (Hill, 327 S.W.3d 412; Northeast Health Mgmt., Inc. v. Cotton, 56

S.W.3d 440 (Ky. App. 2001)).

Sullivan alleges that the public policy element of her wrongful

discharge claim is her protected report of the medication error under KRS

216B.165. However, as discussed above, this statute does not apply to Broadening

-13-
Horizons or the SCL waiver program. Thus, it cannot satisfy the requirements for

a specific legislative statement. Sullivan does not identify any other statute or facts

that suggest that one of the exceptions identified in Hill would apply here. There is

no evidence that Broadening Horizons instructed Sullivan to break the law in any

way. Rather, the evidence showed that it based its own actions following the

confirmed medication error on attempts to comply with Kentucky and federal laws

governing the SCL waiver program.

Sullivan’s argument that her report of the missed medication should

be considered public policy under the more generalized whistleblower statutes is

similarly unpersuasive. Although Sullivan reported the missed payments to

Whitaker as Executive Director, she also reported her own errors in medication

administration. These mistakes resulted in one participant’s failing to receive

required prescription medication for more than one week. Pursuant to the

regulations and Broadening Horizons’ policies, failing to administer prescribed

medication for multiple days is itself an error and does not require showing that the

participant suffered any severe negative effects from the error.

Based on the regulations and relevant policies governing Broadening

Horizons, Appellees removed the participants from Sullivan’s home in response to

her failure to follow up with the appropriate staff members when she believed that

she could not pick up the prescribed medication. It is the very act of the removal

-14-
of the participants that Sullivan asserts constituted her constructive termination.

However, the determination to remove them from the home pursuant to state and

federal guidelines cannot realistically be considered counter to well-established

public policy. Thus, this claim must also fail as a matter of law.

1. Claim for Tortious Interference with a Business Relationship

In reviewing Sullivan’s claim for tortious interference with a business

relationship, the Circuit Court identified the six-part test required to establish the

claim under Kentucky law. The Circuit Court described the applicable law as

follows:

First, “The existence of a valid business relationship or
expectancy.” Second, “That the defendant was aware of
this relationship or expectancy.” Third, “That the
defendant intentionally interfered” with the business
relationship. Fourth, “That the motive behind the
interference was improper.” Fifth, the defendant’s
conduct was in proximity with the interference, similar to
an element of causation. Finally, the court will examine
whether special damages are in order. PBI Bank, Inc. v.
Signature Point Condos, LLC., 535 S.W.3d 700, 715 (Ky
Ct. App. 2016); CMI, Inc. v. Intoximeters, Inc., 918 F.
Supp. 1068 (W.D. Ky. 1995). The court has been clear
that to prevail on this claim, a plaintiff would have to
show the defendant acted with malice or “significantly
wrongful conduct.” In other words, there must be some
kind of intentional interference without justification on
the part of the defendant for this claim to be successful.
PBI Bank, Inc. at 715.

(Appellant’s Brief Tab 1 at 6-7.)

-15-
While listing the six elements, the Circuit Court nonetheless did not

clearly articulate the ways in which Sullivan failed to meet each part of the test.

Instead, the Circuit Court offered a series of facts that it concluded failed to meet

the requirements. Regardless, the Circuit Court reached the correct result, as we

will detail below.

Sullivan argues that Appellees Troxtell and Whitaker’s conduct

interfered with her business relationships with Broadening Horizons, the individual

participants placed in her home, and potential future employers who might be

hesitant to hire her due to the reports filed with DCBS. Specifically, she argues

that the first two prongs of the six-part test are met by the existence of her

independent contractor agreement with Broadening Horizons. She claims that

Whitaker and Troxtell interfered with that agreement sufficiently to meet parts

three through five of the test. We are unpersuaded.

Troxtell and Whitaker cannot be considered to have interfered with

Sullivan’s relationship with Broadening Horizons, because they committed all

alleged conduct while acting in their capacities as its agents. Under Kentucky law,

“[a]gents of a party to a contract who act within the scope of their employment

cannot interfere with that party’s contract.” Harstad v. Whiteman, 338 S.W.3d 804,

814 (Ky. App. 2011). Thus, as a matter of law, Sullivan cannot succeed on her

claim of tortious interference with a business relationship.

-16-
Sullivan also alleges in her Reply Brief that the interference with her

business activities was the initial removal of the three participants from her home,

which she argues was intended to terminate Sullivan and protect Broadening

Horizons from adverse action from the state. As she argues, “Whether their

interference was ‘improper’ and motivated by a desire to deflect responsibility or

preserve reputation rather than participant safety is a factual question[,] and

Appellant was denied the opportunity to present her evidence of such and her

theory before a jury.” (Reply Brief at 5-6.)

Sullivan raises the possibility of improper motives of Troxtell and

Whitaker in an attempt to establish element four of the PBI Bank test. As stated

above, this effort fails because she cannot meet the other elements as a matter of

law. Regardless, the alleged interference involves mandated reporting, required

investigation, and necessary acts to protect the welfare of the SCL participants in

Sullivan’s home. Whether Appellees might also have harbored some other and

even improper motive is irrelevant because all of the acts of alleged interference

were required reports or agency policy in response to an admitted critical

medication error. Where the Appellees were bound by regulations to report and

address medication errors, it follows that they cannot be found liable for an alleged

tort that results from legally-mandated compliance. Any contrary ruling would

disincentivize reporting and render it perilous. Therein lies the reasoning of the

-17-
PBI Bank Court’s holding that some intentional interference is not tortious where it

is made with “justification.” PBI Bank, 535 S.W.3d at 715. It necessarily follows

that Appellees are justified in compliance with mandatory reporting and

investigation.

Finally, Sullivan asserts that Troxtell and Whitaker harmed her future

employment prospects by reporting her to DCBS for the medication error that she

attributes to their own failure to pay the pharmacy bill in a timely manner.

However, again Sullivan has failed to offer evidence that the Appellees’ conduct

actually interfered with her ability to find future employment or resume placement

with the removed participants through another SCL provider. As the Circuit Court

observed, Sullivan testified that she had established contracts with multiple other

SCL providers as a family home provider after leaving Broadening Horizons, and

one of the guardians did approve the participant’s return to her care through

another agency. Accordingly, this assertion of tortious interference also fails.

None of these alleged interferences satisfies all parts of the PBI Bank test, even

with the facts construed in the light most favorable to Sullivan as the party

opposing summary judgment.

1. Claim for Intentional Infliction of Emotional Distress

After reviewing the record, the Circuit Court concluded that Sullivan

had failed to meet the required elements for a claim of intentional infliction of

-18-
emotional distress. The Court applied the four elements set forth in Craft v. Rice,

671 S.W.2d 247 (Ky. 1984), to establish this claim under Kentucky Law:

First, the wrongdoer’s conduct must be intentional or
reckless. The court states, “This element is satisfied
where the wrongdoer had the specific purpose of
inflicting emotional distress,” or if the wrongdoer knew it
was likely that emotional distress would result from his
actions. Second, “the conduct must be so outrageous and
intolerable that it offends the generally accepted
standards of decency . . . .” The court specifically
attempts to limit the use of [intentional infliction of
emotional distress] claims here. Third, there must be a
“causal connection between the wrongdoer’s conduct and
the emotional distress.” Lastly, the emotional distress
must be severe. A plaintiff must demonstrate severe
mental stress or emotional injury acknowledged by
medical or scientific experts. Osborne v. Keeney, 399
S.W.3d 1 (Ky. 2012).

In its analysis, the Circuit Court relied primarily on findings that Sullivan failed to

provide any proof that Broadening Horizons’ actions were committed for the

purpose of causing emotional distress; and that she had not actually experienced

severe emotional distress. We agree.

As a SCL provider, Broadening Horizons established guidelines to

respond to medication errors as required by state and federal regulations. See 907

KAR 12:010. The report of the error, removal of SCL participants from Sullivan’s

home during an investigation, and ultimate decision not to allow those participants

with complex medication needs back into her home are each in line with all of

those policies. Sullivan has offered no evidence to suggest that Broadening
-19-
Horizons had any discretion to refrain from reporting or taking necessary steps

once the report had been made.

Turning to Whitaker and Troxtell, even assuming Sullivan’s

contention that they intentionally used Sullivan’s failure to administer medication

to deflect from the lack of payment on the pharmacy account, Sullivan fails to

satisfy the other elements of her claim. The alleged “outrageous and intolerable”

conduct in this case is the notification of the medication error and removal of the

SCL participants during the investigation, notifications that are compelled in their

ordinary course. Craft, 671 S.W.2d at 250-51.

In her deposition testimony, Sullivan also alleges wrongdoing in the

failure of Broadening Horizons to communicate the outcome of the report to Adult

Protective Services and DCBS or her internal investigation within the 45-day

window given to her at the time of removal. Ultimately, though, and again, her

allegations describe behavior that is not only appropriate but required by state

regulations and Broadening Horizons’ own policies on abuse, neglect, and

exploitation.

Finally, the Circuit Court correctly noted that Sullivan failed to

present evidence of severe emotional distress. Although Sullivan asserts that this

ultimate issue should have been one for expert testimony at trial, she has failed to

articulate any evidence of alleged harm that could form the basis for a finding of

-20-
severe emotional distress. (Appellee Brief at 15 (citing Sullivan Deposition at

201)). Other than heart problems, which she testified in her deposition had been

present prior to the incidents at issue in this case, she noted no objective symptoms

or treatment that would establish this claim. Expert testimony cannot correct this

deficiency.

1. Concert of Action Between Troxtell and Whitaker

As the final claim considered by the Circuit Court, Sullivan alleged a

concert of action between Troxtell and Whitaker in their roles as Coordinator and

Executive Director when they proceeded to report Sullivan’s medication error

without acknowledging Broadening Horizons’ failure to pay the outstanding

pharmacy bills.

The Circuit Court cited Farmer v. Newport, 748 S.W.2d 162 (Ky. App.

1988), which lists out the elements for a claim of Concert of Action borrowed from

the RESTATEMENT (SECOND) OF TORTS § 876 (1979):

For harm resulting to a third person from the
tortious conduct of another, one is subject to liability if
he (a) does a tortious act in concert with the other or
pursuant to a common design with him, or (b) knows that
the other’s conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to
conduct himself, or (c) gives substantial assistance to the
other in accomplishing a tortious result and his own
conduct separately considered[] constitutes a breach of
duty to the third person.

-21-
As the Circuit Court explained, “To prevail on this claim, one would need to act

with another, know that the other’s conduct was causing harm and give substantial

assistance to him, or cause harm himself while giving assistance to another.”

(Appellant Brief Tab 1 at 8.) The Circuit Court held that Sullivan had not shown

any evidence that Troxtell and Whitaker worked in concert with one another to

cause her harm when they reported the medication error and followed the required

procedures for notifying the proper parties and conducting an internal

investigation. On review, Sullivan has failed to establish that the Appellees

committed any tortious act or breached a duty owed to her.

As Sullivan established, Appellees acted in response to the confirmed

failure to administer a medication to a program participant for eight days. While

there is strenuous disagreement about whose conduct caused the delay in obtaining

the medication from the pharmacy, it is undisputed that the medication was not

administered for eight days. Based on Godby’s deposition testimony, the DCBS

portal classified the incident as critical due to the cumulative effect of multiple

missed medication doses. All of the depositions from Broadening Horizons’

employees confirm that it is agency policy to treat all medication errors the same,

though they acknowledged that it is unlikely that the invoice for the medication

would have been overlooked if it had been for a controlled substance, such as a

prescribed narcotic or mental health medication.

-22-
Assuming, arguendo, that Sullivan did report the pharmacy dispute to

Troxtell, and that she was informed that the medication could not be picked up

without payment, it is still undisputed that she did not follow up with any other

member of Broadening Horizons staff until May 23 or 24 despite knowing her

participant had missed multiple days of a prescribed medication. The lapsed

medication would still require a report to be filed, and Sullivan would remain the

responsible party under her contract with Broadening Horizons that places her in

charge of providing care in accordance with the SCL program regulations.

Accordingly, these facts do not support Sullivan’s quest to overturn the grant of

summary judgment on this claim as a matter of law.

IV. Conclusion

Based on the foregoing, we affirm the Circuit Court’s grant of

summary judgment in favor of Broadening Horizons, Whitaker, and Troxtell.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES

Sarah E. Cooley Katherine J. Hornback
Masten Childers, III Lexington, Kentucky
Justin S. Peterson
Kellie M. Collins
Lexington, Kentucky

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