Review of the judgment of the Court of Appeals in an unpublished opinion filed April 6, 2007. Appeal from Cowley district court; JACK L. LIVELY, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded.
1. In considering summary judgment, the court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.
2. When considering a summary judgment motion, the court must refrain from assessing witness credibility and weighing evidence, which are proper functions for the factfinder at trial. Summary judgment should not be used to prevent the necessary examination of conflicting testimony and credibility in the crucible of a trial.
3. Summary judgment is seldom proper in negligence cases, including medical malpractice cases. However, negligence is never presumed and may not be inferred from a lack of success or an adverse result. The plaintiff in a medical malpractice case bears the burden of showing, ordinarily through expert medical testimony, not only the doctor's negligence, but that the negligence caused the plaintiff's injury.
The opinion of the court was delivered by: Johnson, J.
Jesse D. and Michelle Lee Esquivel, the parents of Jadon David Esquivel, deceased, seek review of the Court of Appeals decision affirming the district court's granting of summary judgment in favor of Dr. Aaron T. Watters, a defendant in the parents' civil action arising from Jadon's death. Finding that summary judgment was inappropriate, we reverse.
In August 2001, Dr. Watters began prenatal treatment of Michelle at the Ark City Clinic. On November 15, 2001, Michelle used a gift certificate from the Clinic to have a gender determination sonogram performed at the South Central Kansas Regional Medical Center. The ultrasound technician observed a fetal abnormality which he believed was gastroschisis, a condition in which the bowel is situated outside the body.
Contrary to standard procedure, the technician took pictures during the sonogram. The radiologist refused to review the film because a gender determination sonogram is not a diagnostic procedure. The radiologist told the technician to contact Dr. Watters, the attending physician. The technician called Dr. Watters to advise of the observed abnormality. The call was not documented in Michelle's medical records.
Dr. Watters told his assistant to call Michelle and advise her that he needed to see her right away. The assistant attempted to contact Michelle numerous times over the next several days, finally speaking with a man she believed was Jesse on November 26 and asking him to have Michelle call the doctor. The assistant did not disclose the fetal abnormality.
Michelle did not appear for her scheduled appointment on November 26, and Dr. Watters did not see her until January 4, 2002. By that time, Dr. Watters had forgotten about his conversation with the ultrasound technician. Consequently, the doctor did not discuss the fetal abnormality with Michelle or take any action to medically deal with the problem. Michelle returned on February 4 for a routine visit, during which no mention was made of the gastroschisis.
On February 8, Michelle became extremely ill and went to the hospital emergency room. The following day, Jadon was delivered by emergency Caesarean section, and the gastroschisis was discovered. Dr. Watters was out-of-town at the time and did not participate in the delivery. Neither the parents nor the delivery team had any knowledge of the suspected gastroschisis.
Jadon was stabilized to the highest capability of the South Central Kansas Regional Medical Center and then was transferred to Wesley Medical Center, where he was admitted some 5 hours after delivery. Once at Wesley, Dr. Philip Knight performed surgery on Jadon and discovered that most of the baby's bowel was dead, which rendered hopeless any chance of survival. Jadon was discharged from Wesley on February 20 and remained in hospice care at home until his death on March 3, 2002.
Michelle and Jesse commenced an action against Dr. Watters, the Ark City Clinic, and the South Central Kansas Regional Medical Center. Ultimately, the district court ordered summary judgment in favor of all of the defendants. Summary judgment for the Ark City Clinic, whose radiologist refused to examine the sonogram films, was not appealed.
In granting summary judgment to Dr. Watters, the district court opined that plaintiffs had failed to present expert testimony to establish that the doctor had deviated from the applicable standard of care or that the doctor's failure to notify Michelle of the abnormal sonogram was the proximate cause of Jadon's postnatal suffering and death. In granting South Central Kansas Regional Medical Center's motion for summary judgment, the district court opined that the facility did not owe Michelle and Jesse the duty upon which they based their claims and that the claims were barred by the release form ...