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Tom Bates and v. Dodge City Healthcare

January 11, 2013


Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge.


SYLLABUS BY THE COURT 1. For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). The language from Wood v. Groh,269 Kan. 420, Syl. ¶ 1, 7 P.3d 1163 (2000), and similar caselaw is clarified accordingly. 2. A trial court is required to give a jury instruction supporting a party's theory if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence. 3. Among the four elements necessary to establish a claim for medical malpractice are: (1) The health care provider owes the patient a duty of care, which obligated the provider to meet or exceed a certain standard of care to protect the patient from injury; and (2) the health care provider breached that duty or deviated from the applicable standard of care. 4. The standard of medical and hospital care which is to be applied in each case is not a rule of law, but strictly a matter to be established by the testimony of competent medical experts. 5. "Locality" has to do with population, location, hospital and laboratory facilities, staff, and the medical practitioners and specialists available. It is simply one of the factors to be considered in defining the standard of care. 6. "Vicarious liability" is a term generally applied to legal liability which arises solely because of a relationship and not because of any act of negligence by the person held vicariously liable for the act of another. 7. Under the facts of this nursing malpractice case, a jury instruction which was a verbatim recitation of PIK Civ. 3d 123.01, was an accurate and fair statement of Kansas law. Accordingly, the trial court did not err in issuing the instruction.

The opinion of the court was delivered by: Nuss, C.J.

Review of the judgment of the Court of Appeals in an unpublished opinion filed August 21, 2009.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

The opinion of the court was delivered by

This is a case about instructing the jury in a medical malpractice action. Tom Bates and Michelle Entriken, individually and on behalf of their daughter, Hayley Bates, allege obstetrical nurse Linda Unruh breached the standard of care which caused permanent injury to Hayley. For Unruh's purported negligence, the parents sued her employer, Dodge City Healthcare Group, L.P. d/b/a Western Plains Regional Hospital (hospital) under respondeat superior. The jury returned a verdict for the hospital, and the parents appealed a number of issues.

After the Court of Appeals affirmed, we granted the parents' petition for review under K.S.A. 20-3018(b) on one issue. We must decide if under the facts of this case it was proper for the jury to receive the stock instruction of PIK Civ. 3d 123.01. It states Unruh's duty as nurse was to use "that degree of learning and skill ordinarily possessed and used by members of that profession in the community in which she practices, or in similar communities." (Emphasis added.)

The parents contend this instruction-No. 9-erroneously directed the jury to apply a "community" nursing standard of care when all 12 of their negligence claims were governed by a national standard. The hospital concedes that 11 claims were governed by a national standard. But it argues Instruction No. 9 was nevertheless proper because the parents' remaining claim of negligence-alleging Unruh's failure to activate and timely follow through on her medical "chain of command"-was governed by a community standard of care.

For several reasons, we affirm the lower courts.


Because the 5-week jury trial spawned only one issue on appeal to this court, our factual recitation will be limited to some background facts and those deemed necessary to resolve that single issue. Michelle Entriken is an insulin dependent diabetic. On December 20, 1996, she awoke in pain at 5 a.m. Because Michelle was between 34 and 35 weeks pregnant, she believed she was in labor. After being driven to Western Plains Regional Hospital in Dodge City, she went straight to the obstetrical department. According to her testimony, she arrived at around 6:25 a.m. But the hospital records show her departmental admission at 7:20 a.m.-almost 1 hour later.

In the obstetrical department Michelle met with Linda Unruh, who has been a labor and delivery nurse for 33 years. Unruh helped Michelle into a hospital gown, obtained a medical history, and started a fetal heart monitor. The fetal heart rate was within normal parameters for a baseline. The rate also had good variability, a term which applies to the fluctuations in the heart. According to the evidence, these are signs of fetal well-being.

Unruh testified that at 7:40 a.m. she called Michelle's obstetrician, Dr. Anupong Chotimongkol. According to Unruh, she informed the doctor that Michelle was at the hospital. She also told him Michelle was having preterm contractions and that she was diabetic, in much pain, and had a sterile vaginal exam. Dr. Chotimongkol ordered an IV, pain medication as necessary, and admitted Michelle to the hospital for observation.

Two minutes later, at 7:42 a.m., "prolonged decelerations to [the] fetal heart rate" began. According to the evidence, deceleration can cause insufficient bloodflow to the fetus' brain, which in turn compromises the fetus' oxygen supply. The parents were to later allege the decelerations are a symptom of a placental abruption that actually began compromising the fetus. Unruh then turned Michelle on her left side, started her on oxygen, and raised her feet higher than her head.

At 8:10 a.m., Unruh called Dr. Chotimongkol a second time. She told the doctor about difficulty with the fetal heart tones and the decelerations. She also said she had been unable to start the IV and that Michelle had a tense uterus. According to Unruh, she asked Dr. Chotimongkol, who lived 5 to 10 minutes away, to come to the hospital. The doctor then ordered a sonogram "stat," i.e., to be performed immediately. Unruh testified that in her experience, Dr. Chotimongkol responded promptly when asked to come to the hospital.

By 8:20 a.m. Dr. Chotimongkol had not arrived, so Unruh paged him "stat," which meant he should come immediately. At 8:38 a.m. Dr. Chotimongkol arrived and ordered an immediate C-section to be performed. At 9:11 a.m. Hayley was delivered.

Hayley did not breathe during her first 5 minutes after birth. She was flown to Wesley Medical Center in Wichita, where she spent 1 month in the neonatal intensive care unit. Hayley has been diagnosed with cerebral palsy; she has severe spastic quadriplegia with a seizure disorder. The evidence reveals her condition is unlikely to improve.

The parents sued only the Dodge City hospital, alleging that under respondeat superior the hospital was vicariously responsible for the negligence of its employee, Unruh. The parents ultimately alleged Unruh breached the nursing standard of care owed to a patient by failing to:

(1) promptly assess Michelle and her unborn child when Michelle presented to the hospital;

(2) accurately interpret the fetal heart tracings;

(3) obtain an adequate fetal heart tracing;

(4) provide appropriate nursing interventions in a timely manner;

(5) accurately inform Dr. Chotimongkol of Michelle's condition and the condition of her fetus;

(6) recognize the signs and symptoms of placental insufficiency and/or placental abruption;

(7) activate the chain of command and timely and appropriately contact her supervisor and the C-section team while waiting for Dr. Chotimongkol to arrive;

(8) communicate timely with Dr. Chotimongkol regarding Michelle's and Hayley's signs and symptoms;

(9) be in Michelle's room to monitor her and her unborn baby from 7:40 a.m. to 8 a.m.;

(10) communicate to Dr. Chotimongkol at 7:40 a.m. that he was needed in the hospital on an urgent basis;

(11) follow the hospital's own policies and procedures; and (12) see and evaluate Michelle at the time she arrived at the hospital at approximately 6:30 a.m., and not seeing her until 7:20 a.m. (Emphasis added.)

At the heart of this appeal is the claim that Unruh failed to activate and timely follow through on her medical chain of command, e.g., allegation of negligence number 7 above.

The Expert Testimony on the Standard of Care:

At least five expert witnesses testified about the nursing standard of care-three for the parents and two for the hospital.

The first expert witness for the parents was Linda Chagnon, a registered nurse and the Director of Women's Services at Overlake Hospital Medical Center in Bellevue, Washington. Her hospital contains 320 to 340 beds. Chagnon testified about the existence of a national standard of care for a labor and delivery nurse, which means a patient should be cared for in the same manner whether having a baby in Bellevue, Washington, or Florida.

Chagnon also testified that she and Unruh both were members of the Association of Women's Health Obstetric and Neonatal Nursing (AWHONN), and the AWHONN nursing standard applies whether the nurse works in Dodge City, Seattle, Tampa, or Tulsa. She further testified Unruh breached that standard by failing to perform numerous tasks between the time she checked Michelle into the labor and delivery unit until Dr. Chotimongkol arrived and ordered an emergency C-section.

According to Chagnon, the standard of care required that Unruh call Dr. Chotimongkol at 7:42 a.m. when the decelerations to the fetal heart rate began. She testified that if Dr. Chotimongkol "doesn't come in, then you go up your chain of command. You go to your supervisor, your manager, whoever was there that day." This eventually would have included the chief of medical staff for the hospital. She specifically testified that Unruh's failure to execute the chain of command was substandard care. Prior to Chagnon's testimony, Unruh had testified that she did not try to see if there was any other doctor available to deliver Michelle's baby because she expected Dr. Chotimongkol to come to the hospital.

The second expert witness for the parents was Dr. Reid Goodman, an obstetriciangynecologist from Denver, Colorado. He testified that even though he is a physician, he was familiar with, and qualified to testify about, the nursing standard of care, because he "lives it."

According to Dr. Goodman, the standard of care "for a nurse notifying the physician" was the same whether the nurse worked in Denver or Dodge City. He testified that the size of the community did not matter because "if you offer obstetric services then you are bound to uphold the standard for providing obstetric services." Regarding the issue of chain of command, Goodman testified that Unruh breached the standard of care because she failed to find another surgeon to perform the C-section after Dr. Chotimongkol did not promptly arrive. He further testified that Unruh should have prepped Michelle for surgery while waiting on the doctor to arrive. According to Dr. Chotimongkol, when he arrived Michelle was undergoing the sonogram he had ordered. He looked at the sonogram and then made the "split-second" decision to order the C-section.

On cross-examination, Dr. Goodman admitted that the Dodge City hospital was different than his hospital in Denver which has 100 obstetricians on staff because the Western Plains Regional Hospital only has two. He agreed that the likelihood of finding someone available at any given moment at his hospital is much greater than at the Dodge City hospital. He also admitted that the small community hospitals cannot always do the same things that a large hospital can do.

The parents' third expert witness was Michelle Murray, a nurse from Albuquerque, New Mexico, who teaches at nursing seminars throughout the country. Murray testified about the existence of a national standard of care for labor and delivery nurses. According to her, whether the nurse is in Dodge City, Denver, Kansas City, or Wichita does not matter because "it's basically what a reasonable nurse would do in a similar situation. We're not asking for the highest level of practice. We're just saying what's reasonable, and that's the way it should be nationally." Regarding the issue of chain of command, Murray testified that once Unruh learned that Dr. Chotimongkol was unable or unwilling to perform an immediate C-section, Unruh had a responsibility to "call the chain of command and to find a physician who would respond properly." In Murray's expert opinion, Unruh's failure was a breach of her standard of care.

Testifying for the hospital were Mark Donnell Akin, M.D., an obstetriciangynecologist from Austin, Texas, and Susie Lye, R.N., a labor and delivery nurse from Tulsa, Oklahoma. According to Dr. Akin, the basic nursing care standards are the same regardless of location. But he testified that "we cannot expect certain things to be the same in a very small world hospital as compared to a large city hospital." He testified that the biggest difference was "[m]ostly availability of resources of specialists that might be immediately available." Dr. Akin further testified that Unruh met the standard of care, e.g., she acted appropriately in how and when she communicated with Dr. Chotimongkol.

Nurse Lye also testified that national standards of care exist for labor and delivery nurses because there are things that should be done regardless of location. She testified that the national standard applies to things such as interpreting fetal monitor tracings, performing an admission assessment, general patient monitoring, and communicating with physicians. But according to Lye, there are "slight differences in care . . . depending on what size of a hospital you're in." Some options may not be available to the ...

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