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Darlene Hubbard v. B. Theo Mellion

May 17, 2013


Appeal from Sedgwick District Court; MARK A. VINING, judge.


SYLLABUS BY THE COURT 1. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. 2. Medical malpractice is negligence of a healthcare professional in the diagnosis, care, and treatment of a patient. 3. In a negligence case alleging medical malpractice, the plaintiff must prove the physician 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, the physician breached this duty or deviated from the applicable standard of care, and the patient was injured and the injury proximately resulted from the physician's breach of the standard of care. 4. Negligence may be proved in a medical malpractice case by direct evidence or by circumstantial evidence. A finding of negligence may not, however, be inferred from facts that merely establish lack of success or an adverse result from treatment. In the absence of direct or circumstantial evidence, negligence will not be presumed. 5. Because the diagnosis, care, and treatment of a patient are typically issues outside the knowledge of an average person who has not received specialized training, expert testimony generally is required to establish the appropriate standard of care in medical malpractice cases. There are, however, exceptions to this requirement. Specifically, experts are not needed to establish the appropriate professional standards of care where either the doctrine of common knowledge or the doctrine of res ipsa loquitur applies. 6. The common knowledge exception in medical malpractice cases applies if what is alleged to have occurred in the diagnosis, treatment, and care of a patient is so obviously lacking in reasonable care and the results are so bad that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind generally. 7. Kansas courts have identified three essential elements to the common knowledge exception: the plaintiff has asserted a claim of medical malpractice, the care or result of the care is patently bad, and a person without the pertinent medical knowledge can assess the wrongfulness of the diagnosis, treatment, or care and attribute the plaintiff's injury to the wrongful conduct without the assistance of expert testimony. Whether or not the common knowledge exception applies to a given set of facts is a question of law. It is a narrow exception and has rarely been applied. 8. Under the facts of this case, the proper procedure for using a rongeur during surgery is not a matter within the province of the common person; thus, a breach of reasonable care would not be apparent to and within the common knowledge and experience of the average person who has not received any specialized training. 9. The doctrine of res ipsa loquitur is one of evidence, rather than substantive law. Generally it becomes applicable in a negligence action where there is no direct proof of negligence, but where circumstances are established so as to leave no conclusion other than that the defendant is at fault. Three conditions must be met for the doctrine of res ipsa loquitur to apply: the thing or instrumentality causing the injury or damage was within the exclusive control of the defendant, the occurrence must be of such kind or nature as ordinarily does not occur in the absence of someone's negligence, and the occurrence must not have been due to contributory negligence of the plaintiff. 10. The doctrine of res ipsa loquitur is available in an appropriate case to a plaintiff alleging medical malpractice based upon negligence. Applicability must be decided on a case-by-case basis. 11. Admissible expert opinions are limited to those based on facts or data perceived by or personally known or made known to the witness at the hearing and within the scope of the special knowledge, skill, experience, or training possessed by the witness. The proponent of expert opinion testimony must lay the foundation to establish these requirements.

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



Darlene Hubbard appeals the district court's granting of summary judgment in favor of B. Theo Mellion, M.D. Hubbard sued Dr. Mellion for medical malpractice after a surgical instrument broke during microdiscectomy surgery and a small piece of metal remained lodged in Hubbard's spinal disc. The district court held that Hubbard had filed a medical malpractice cause of action but she had failed to provide medical expert testimony establishing a standard of care and causal deviation and that neither res ipsa loquitur or the common knowledge exceptions applied to relieve Hubbard of her duty to present medical expert testimony. We reverse.

Hubbard is a registered nurse. On November 28, 2007, she injured her back assisting a patient into bed at Wesley Medical Center in Wichita. Hubbard received workers compensation benefits for her injuries. Hubbard sought treatment from Dr. Mellion for a herniated disc that was causing sharp pain in her buttocks and also down her right leg. Hubbard ultimately decided on surgical intervention in hopes of relieving her pain. On February 20, 2008, Dr. Mellion performed bilateral L5-L6 hemilaminectomies, foraminotomies, and a discectomy with an operating microscope on Hubbard.

During Hubbard's surgery, the tip broke off one of the medical instruments, a 2-mm upbiting pituitary rongeur (rongeur) manufactured by Aesculap, Inc. The rongeur is a forcep-type instrument that is used to reach into the disc space and remove the soft parts of the intervertebral disc. Dr. Mellion attempted to retrieve the broke tip but was unable to do so.

Dr. Mellion halted the surgery and consulted Hubbard's husband regarding the instrument failure and that he was unable to retrieve the broken tip. Dr. Mellion explained the options of either removing the disc (and broken tip) and doing a spinal fusion or stopping the surgery and monitoring Hubbard to see if there were any complications from leaving the tip in the disc. Hubbard's husband followed Dr. Mellion's recommendation and decided to stop the surgery. The pain in Hubbard's right leg was gone after the surgery, but then she had worse pain on her left side. During follow-up visits with Dr. Mellion, x-rays showed that the rongeur piece had not moved and had stayed in the same location in the disc.

Approximately 8 months after surgery, on October 9, 2008, Dr. John Gorecki performed a second surgery consisting of "[a]nterior lumbar interbody fusion L4-5 with SynFix including removal of foreign body followed by bilateral laminectomy with foramintomy L4-5, and posterior lateral fusion L4-5 with nonstructural allograft and autologous bone graft and pedical screws." Dr. Gorecki provided a letter on August 26, 2009, stating:

"This patient underwent complete discectomy and spinal fusion with removal of a retained foreign body with the disc space in October 2008. Clearly the retained fragment of pituitary rongeur within the disc space was a substantial irritant to the disc. It was like having a pebble in a person [sic] shoe. As a direct result the patient required spinal surgery with instrumented fusion."

On November 30, 2009, Hubbard filed a negligence action against Aesculap, Inc., Kansas Spine Hospital, L.L.C., and Dr. Mellion. Hubbard listed five theories of negligence:

"10. The upbiting pituitary instrument manufactured and sold by defendant Aesculap, Inc., was in a dangerous and defective condition due to the negligence of Aesculap, Inc. when it reached its destination, [Kansas Spine Hospital, L.L.C.], before February 8, 2008. "11. Defendant [Kansas Spine Hospital, L.L.C.] negligently failed to inspect, test, and or safely maintain the pituitary instrument and provided same for use by defendant Mellion for the surgery he performed on plaintiff on February 28, 2008.

"12. Defendant Mellion negligently failed to inspect and or test the pituitary instrument before using it for the surgery he performed on plaintiff on February 28, 2008.

"13. Defendant Mellion negligently used the pituitary instrument causing the tip to break off and become lodged in the disc space of the plaintiff.

"14. Defendant Mellion negligently failed to remove the broken piece of the pituitary instrument from the plaintiff at the time of surgery on February 28, 2008."

Aesculap, Inc. and Kansas Spine Hospital, L.L.C. were eventually dismissed without prejudice. The parties proceeded with a lengthy period of discovery.

During Dr. Mellion's deposition, Hubbard's attorney questioned Dr. Mellion on the possible reasons why the rongeur broke. The questioning at the deposition was as follows:

"Q. [HUBBARD'S ATTORNEY]: Well, do you-can you see that there are probably three reasons-one of three reasons why it broke? Number one, operator error, that would be you getting a hold of something that was not supposed to be grabbed and you put pressure on it and it broke, that's a possibility, correct?

"A. [DR. MELLION]: That's a possibility.

"Q. Okay. Number two would be that the rongeur or the forceps was defective in some way in the way it was manufactured?

"A. That's a possibility.

"Q. And then the only other reason I can think of would be that it wasn't taken care of properly by the ...

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