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Keely Foster, A Minor, Through Her Parents and Natural Guardians, Kim Foster and Kevin Foster, and Individually On Their Own Behalf v. Michelle A.

January 11, 2013



SYLLABUS BY THE COURT 1. For jury instruction issues, the analytical progression and corresponding standards of review on appeal are: (a) First, the appellate court considers reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (b) next, the court uses an unlimited review to determine whether the instruction was legally appropriate; (c) then, the court determines whether there was sufficient evidence, viewed in the light most favorable to the party requesting the instruction, that would have supported the instruction; and (d) finally, if the district court erred, the appellate court must determine whether the error was harmless, using the test, degree of certainty, and analysis set forth in State v. Ward, 292 Kan. 541, Syl. ¶¶ 5-6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). 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. To establish a medical malpractice claim, a plaintiff must show: (a) the health care provider owed the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (b) the health care provider breached this duty or deviated from the applicable standard of care; (c) the patient was injured; and (d) the injury was proximately caused by the health care provider's breach of the standard of care. 4. Before a Kansas court may declare an error harmless it must determine the error did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome. The degree of certainty by which the court must be persuaded that the error did not affect the trial's outcome will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded there is no reasonable probability the error will or did affect the trial's outcome. 5. When there is no dispute in the evidence that a physician is a specialist, it is not reversible error for the court to instruct the jury on the standard of care of a general practitioner (PIK Civ. 4th 123.01) even though the standard of care of specialist (PIK Civ. 4th 123.11) applies because these instructions are not inconsistent and the general physician standard of care instruction is at worst superfluous. 6. PIK Civ. 4th 123.11, the "best judgment" instruction, does not misstate the law by instructing the jury that the physicianhas a right to use his or herbest judgment in the selection of the choice of treatment because the instruction also informs the jury that selection must conform with the objective standard of care applicable to medical malpractice claims.

The opinion of the court was delivered by: Jerome P. Hellmer, District Judge, assigned.*fn1

Review of the judgment of the Court of Appeals in 42 Kan. App. 2d 634, 216 P.3d 671 (2009). Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Judgment of the Court of Appeals reversing and remanding the case to the district court is reversed. Judgment of the district court is affirmed.

The opinion of the court was delivered by BILES, J.: This is a medical malpractice case challenging jury instructions used at trial. Keely Foster, a minor, and her parents, Kim and Kevin Foster, sued Dr. Michelle Klaumann, a pediatric orthopedic surgeon, for injury to a nerve in Keely's leg during a surgery to remove tumors. The jury unanimously found Klaumann not at fault. A divided Court of Appeals panel reversed and remanded for a new trial. We consider: (1) whether it was error to instruct the jury on both a general physician standard of care and a specialist standard of care when the parties do not dispute Klaumann is a specialist; and (2) whether the "best judgment" instruction improperly suggests that a physician's subjective beliefs should be considered when establishing negligence because it states the physician has a right to use his or her best judgment when determining the course of treatment.

Although we suggest improvements should be made to the standard PIK instructions from which those instructions were taken, we hold that reversal is not required. We reverse the Court of Appeals and affirm the district court based on the jury's verdict for the doctor.


Keely has multiple hereditary exostosis, a condition causing osteochondromas or bone tumors to grow around the ends of the long bones. The osteochondromas stop forming once a child matures, and most tumors are benign. But they can cause permanent conditions such as pain, loss of motion, deformity, or joint alignment problems.

Klaumann began treating Keely in 1999 when Keely was 5 years old. For the first 6 years, the doctor monitored Keely's condition with periodic examinations and X-rays to track the size and location of any osteochondromas.

In March 2005, Klaumann recommended surgery because Keely was experiencing consistent pain in an area without much soft tissue and those symptoms could relate to a bursa deformity or nerve irritation. Keely's mother, Kim Foster, agreed to surgery. But the parties disputed which tumors she and the doctor agreed would be removed.

Klaumann testified she planned to excise four tumors with two incisions-two tumors on the distal femur, the hook-shaped osteochondroma between the tibia and the fibula, and one on the proximal fibula. But Keely's mother testified that she agreed only to removing two tumors, which she described as "one on top of her leg and then one on the inside of her leg, just below the knee." A note from Klaumann's office in March 2005 summarized the surgery as: "[Kim] would like to have the femoral and proximal fibular osteochondromas removed. This will be done after school is out in late May."

On the day of surgery in May, Klaumann met with Keely's parents, and the scope of the surgery changed. But again the two sides dispute what tumors the parties agreed were to be removed. The Fosters contend the incision endangering the nerve was added the day of surgery, while Klaumann claims the incision added could not have caused the nerve damage that occurred.

After the procedure, Keely experienced foot drop in her left foot. She could not extend her left toes and had numbness. In the following weeks, Keely was still unable to move her foot up (dorsiflexion) or out (eversion). Dorsiflexion is controlled by the deep peroneal nerve, and eversion is controlled by the superficial peroneal nerve. Keely underwent a second surgery with Dr. Rahul Nath, a surgeon specializing in complex nerve injuries, to attempt to restore function in her foot. Keely's peroneal nerve function had not improved 1 year after the second surgery. According to Nath, it is unlikely to return.

Keely's parents filed suit individually and on behalf of their daughter, alleging Klaumann committed medical malpractice. In the pretrial conference order, the Fosters alleged Klaumann violated the applicable standard of care by: (1) failing to give and document an appropriate informed consent; (2) failing to document there was an appropriate indication for surgical removal of the osteochondromas removed during surgery; (3) failing to comply with the standard of care by not identifying the neurovascular structures in order to avoid nerve injury during surgery; (4) transecting the deep peroneal nerve and injuring her superficial and/or common peroneal nerve; (5) failing to recognize and/or report that she transected and injured the nerve during surgery so that Keely could receive prompt specialty consultation; and (6) failing to properly and timely diagnose and treat Kelly's postoperative neurologic injury and to refer Keely to a specialist.

The Jury Instructions

During trial, both parties agreed regarding the surgical claims that Klaumann held herself out as a specialist, so the specialist standard of care instruction, PIK Civ. 4th 123.12, should be issued. But at the jury instruction conference, the parties disputed whether the general physician standard of care instruction from PIK Civ. 4th 123.01 and best judgment instruction from PIK Civ. 4th 123.11 also should be given. The Foster's argued neither was appropriate, while Klaumann argued both were required.

The district court agreed with the doctor. It held the general physician standard of care instruction should be issued because the Fosters' informed consent claim was a general duty as a matter of law. The district court judge further stated, "I think the courses of treatment in this case [are] a . . . gray area mixed between both [the specialist and the general physician standards of care] and that there is sufficient evidence in order to argue that there's been the [applicable] standard presented by both sides."

Regarding the best judgment instruction, the district court held that it should be given because there was testimony on different courses of treatment. It defined those as the expansion of the surgery and "the recommendation as to whether to do one incision, two incisions, each of those variations is a course of treatment." After further argument, the court stated that it might not have given the instruction if the only issue was whether to do the surgery or not, but "the evidence that [the Fosters] presented has to do [with] and was directed toward the change between what [the Fosters] thought was going to happen . . . in March and what the defendant came in and said let's do in May." The district court explained further that the jury should be given the best judgment instruction because Klaumann went from two incisions to three.

Verdict and Posttrial Motions

The Fosters' claims were submitted to the jury, which unanimously found the doctor was not at fault. The Fosters argued for new trial based on numerous claimed errors, including the district court's issuing the general physician standard of care and best judgment instructions. The district court denied the motion.

Regarding the two claimed jury instruction errors, the court observed the PIK Notes on Use approve instructing the jury on both the general physician and specialist standards of care when both are appropriate. (See PIK Civ. 4th 123.11, Notes of Use: "If there is a dispute as to which standard is applicable in light of the evidence in the case, both instructions should be given, with the appropriate modifications . . . if necessary to avoid confusion for the jury;" PIK Civ. 4th 123.01, Notes on Use [similar statements].). The court also reiterated the best judgment instruction was appropriate "given the issue of how one would treat the number of incisions and the number of osteochondromas to be removed at the time of surgery [and] given that there was a long time while everybody knew that the osteochondromas were there but surgery was not indicated or arguably not indicated."

At the Court of Appeals, the Fosters again argued numerous trial errors, including that it was improper to issue the general physician standard of care instruction and the best judgment instruction. They contended these instructions could have misled the jury. A divided Court of Appeals agreed, reversing and remanding the case for a new trial. Foster v. Klaumann, 42 Kan. App. 2d 634, 216 P.3d 671 (2010).

The panel's majority held that the best judgment instruction could have improperly focused the jury on Klaumann's subjective beliefs in determining the appropriate treatment, instead of basing its decision on the objective standard of care. 42 Kan. App. 2d at 666. And as to the standard of care instructions, the majority concluded the district court should have modified the instructions to inform the jury this claim was governed by the lower standard of care. It held the failure to make those modifications could have misled the jury and required reversal. 42 Kan. App. 2d at 652-54.

Judge G. Joseph Pierron dissented on both instruction issues. He found that issuing the general physician standard of care instruction could not have misled the jury because "[a]t worst it is surplusage." 42 Kan. App. 2d at 691. He also indicated the majority panel overlooked cited Kansas caselaw approving the best judgment instruction, noting "there is nothing to indicate that Kansas appellate court approval of the instruction had waned."

42 Kan. App. 2d at 691-92.

Klaumann petitioned this court for review of the two jury instruction issues. Our jurisdiction arises under K.S.A. 20-3018(b) (review of Court of Appeals decision).


The Fosters argue two erroneous jury instructions require reversal and remand for a new trial. First, they assert the district court could have confused or misled the jury by giving both the general physician and specialist standard of care instructions from PIK Civ. 4th 123.01 and PIK Civ. 4th 123.12. They argue that only PIK Civ. 4th 123.12 should have been issued because it establishes the specialist standard of care applicable to all their claims. Second, they argue the district court erred by giving PIK Civ. 4th 123.11 (Physician's Right to Elect Treatment to be Used). The parties and some caselaw ...

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