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Donna Schlaikjer v. James D. Kaplan

January 25, 2013


Appeal from Johnson County District Court; STEVE LEBEN, judge.


SYLLABUS BY THE COURT 1. The plain language of K.S.A. 60-3412 applies to any witness who would give expert testimony on the standard of care in a medical malpractice action, regardless of whether the prospective witness is a treating physician. 2. A district court's decision on a motion in limine involves a two-prong test. To grant the motion, the court must determine that (1) the material or evidence will be inadmissible at trial; and (2) a pretrial ruling is justified, as opposed to a ruling during trial, because (a) the mere offer or mention of the evidence during trial may cause unfair prejudice, confuse the issues, or mislead the jury; (b) the consideration of the issue during trial might unduly interrupt and delay the trial; or (c) a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation. 3. When a district court's decision on the admissibility prong of the motion in limine test is based on interpretation of a statute, the appellate court exercises de novo review of that interpretation. When a district court makes a factual finding in evaluating a motion in limine-and thus a motion for summary judgment entirely driven by the motion in limine outcome-an appellate court reviews the finding to determine whether it is supported by substantial competent evidence. 4. When applying K.S.A. 60-3412, "actual clinical practice" means "patient care," which is not limited to care delivered face-to-face and can include "advising on" and "addressing" care for a patient. It also can include hands-on-training or teaching of surgical resident and clinical research. 5. Evidence of a physician's personal treatment preferences is inadmissible on direct examination to establish the standard of care in a medical malpractice action but may be admissible for other purposes.

Per curiam.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 5, 2008.

Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded to district court.

Plaintiff Donna Schlaikjer seeks reversal of the Court of Appeals' decision affirming summary judgment in favor of defendant James D. Kaplan, M.D. Schlaikjer sued Kaplan for medical malpractice arising out of surgeries to treat her tracheal stenosis. Kaplan filed a successful motion in limine to prevent Schlaikjer's subsequent treating physician and designated expert, Joel Cooper, M.D., from testifying about the standard of care. The district court granted the motion in limine because Cooper did not meet the requirements of K.S.A. 60-3412. In the absence of expert testimony on the standard of care, Schlaikjer could not, as a matter of law, carry her burden of proof; and summary judgment in Kaplan's favor followed.

The Court of Appeals affirmed the district court's summary judgment in favor of Kaplan. Schlaikjer now pursues four claims on petition for review to this court: (1) The 50 percent rule for expert witnesses under K.S.A. 60-3412 is inapplicable to treating physicians; (2) K.S.A. 60-3412 violates both the federal and state constitutions; (3) testimony of physicians on their treatment preferences may be used to prove standard of care in medical malpractice cases; and (4) the district court's grant of summary judgment was improper.

Because we hold that Schlaikjer's arguments on her first and fourth appellate claims require disposition of this appeal in her favor, we do not reach her constitutional challenges to K.S.A. 60-3412. See Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 519, 242 P.3d 1179 (2010) (citing to Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 [2003]) (appellate courts avoid unnecessary constitutional decisions when alternative ground provides relief). We discuss her third claim only because of the possibility that it will arise on remand.


Tracheal stenosis is a narrowing of the trachea that causes difficulty in breathing. As part of Schlaikjer's treatment for the condition, Kaplan, a pulmonary and critical care specialist, placed two metal stents in Schlaikjer's trachea-the first in September 2000 and the second in October 2001. The stents caused the development of granulation tissue that further obstructed Schlaikjer's trachea, and she continued to experience difficulty breathing. Kaplan referred Schlaikjer to Cooper when the stents failed to improve Schlaikjer's condition.

Cooper is a thoracic surgeon. He diagnosed Schlaikjer with a rare condition called idiopathic subglottic tracheal stenosis, which is a narrowing of the trachea below the vocal chords. Cooper removed the stents and performed a number of procedures to treat the damage he believed to have been caused by their placement. By March 2006, Cooper's treatment had fully resolved Schlaikjer's condition.

Schlaikjer sued Kaplan, alleging medical malpractice; failure to obtain informed consent; and misrepresentation about the ease with which the first stent could be removed, which induced her consent.

Schlaikjer filed her K.S.A. 60-226(b)(6)(B) expert witness designation with the district court, identifying Cooper as both her treating physician and her only expert witness. Cooper was deposed twice. During those depositions Cooper was asked to detail how he spent his professional time, but he expressed difficulty in providing exact figures. Cooper said he worked primarily in a teaching hospital, and much of his time spent as a teacher and researcher overlapped with time spent on direct patient care.

Specifically, the following exchange occurred during Cooper's first deposition:

"Q. Over the last two years, have you been engaged in treating patients and working on patients' cases?

"A. That is correct.

"Q. About how many hours a week over the last couple of years have you been working on patients or patients' cases?

"A. If-of course my activities involve operating time and seeing patients in an outpatient setting. If you add all of that together, they would probably add up to 25 hours a week.

"Q. Do you also teach medical school?

"A. Yes, I do. I teach primarily residents in training for-for training in general surgery and thoracic surgery. My actual medical school activities are limited to one or two lectures a year.

"Q. Okay. So do you put in over 50 percent of your professional time working on patients or seeing patients?

"A. Yes-no. When I calculate my total work hours, the amount of time I devote to clinical practice-remember, we're talking about an 80 hour or 90 hour workweek. I believe that about 25 percent of my time is direct clinical activity. The remaining 75 percent, there's administration research and teaching effort which involves clinical conferences and working with residents and fellows.

"Q. How much on average each week are you spending in the classroom strictly teaching?

"A. My classroom is the operating room and the clinic. I do not spend time in the classroom except for rare lectures to medical students once or twice a year.

"Q. Okay. So when you're teaching, usually you're in the operating room teaching-

"A. Correct.

"Q. -by operating on a person?

"A. That is correct. Most-most surgical training is really an apprenticeship.

"Q. Okay. So when you say 25 hours a week on average working on clinical cases, does the include the time that you're teaching by being in a clinical setting working on a patient?

"A. Some of that is teaching time. If I'm in the operating room twice a week for eight hours each time, I am with a resident, and so I'm delivering patient care, but at the same time there's a teaching component. Additional activities involve seeing patients in an outpatient setting usually without the resident, and then of course there's time spent with the residents and fellows when there are no patients involved.

"Q. About what percentage of your time on average each week is involved in administrative[?]

"A. I would say 30 percent of my time has been involved in administrative activities until recently.

"Q. Has it been that way over the last five years?

"A. Yes, sir."

Cooper's second deposition included the following exchange:

"Q. Dr. Cooper, I wanted to ask you about your practice during the two years ...

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