MARILEE DROUHARD-NORDHUS, as special administrator of THE ESTATE OF DONALD M. DROUHARD, Deceased, and on Behalf of the Heirs-at-law of DONALD M. DROUHARD, Appellant,
NEIL ROSENQUIST, M.D., Appellee, and R. LARRY BEAMER, M.D., Defendant
Review of the judgment of the Court of Appeals in an unpublished opinion filed October 18, 2013.
Appeal from Sedgwick District Court; MARK A. VINING, judge.
BY THE COURT
1. To prevail on a medical malpractice claim, a plaintiff must establish: (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 proximately resulted from the health care provider's breach of the standard of care.
2. Proximate cause is that cause which in natural and continuous sequence, unbroken from an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.
3. Proximate cause incorporates concepts falling into two categories: causation in fact and legal causation. To prove causation in fact, a plaintiff must prove a cause-and-effect relationship between the defendant's conduct and the plaintiff's loss by presenting sufficient evidence from which a jury could conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred. To prove legal causation, the plaintiff must show it was foreseeable that the defendant's conduct might create a risk of harm to the victim and that the result of that conduct and contributing causes was foreseeable.
Gerard C. Scott, of Scott Law, P.A., of Wichita, argued the cause and was on the briefs for appellant.
Shannon L. Holmberg, of Gilliland & Hayes, LLC, of Hutchinson, argued the cause, and was on the briefs for appellee.
[301 Kan. 619] BILES, J.:
This is a medical malpractice case in which we consider whether plaintiff put forth sufficient evidence of causation to survive summary judgment. The district court granted Dr. Neil Rosenquist's summary judgment motion, holding there was insufficient evidence of a cause-and-effect relationship between the radiologist's alleged negligent diagnosis and the patient's death. The Court of Appeals affirmed the district court's granting of summary judgment on Rosenquist's motion. Drouhard-Nordhus v. Rosenquist, 311 P.3d 415, 2013 WL 5737363 (Kan. App. 2013) (unpublished opinion). We affirm because the plaintiff failed to marshal evidence of causation sufficient to defeat the summary judgment motion.
Factual and Procedural Background
The parties agree to the following facts as alleged in Rosenquist's statement of uncontroverted facts from his summary judgment motion. Plaintiff did not allege additional uncontroverted facts pertinent to this appeal.
On August 23, 2007, Donald Drouhard went to the Harper Hospital District No. 5 Emergency Department complaining of abdominal pain and a history of nausea and dry heaving. CT scans of Drouhard's abdomen, pelvis, and chest were performed and sent to the defendant radiologist, Dr. Neil Rosenquist, who gave a verbal report to Stan Wedman,
a physician assistant. Rosenquist later dictated a written report, but it never reached the subsequent treating physicians.
Wedman's notes from Rosenquist's verbal report indicate the radiologist suspected an obstructive process of the gallbladder. Based on that verbal report, Wedman contacted Dr. Larry Beamer, a surgeon, at Via Christi Regional Medical Center for a surgical consult. Drouhard was transferred to Via Christi, and the CT scans were sent with him.
During a discovery deposition, Beamer testified that the only thing he was told about Rosenquist's interpretation of the CT scans was that Drouhard had an enlarged gallbladder, funny-shaped liver, and an absent spleen. Once at Via Christi, Drouhard was seen [301 Kan. 620] by Beamer's resident, Dr. Stanley Jones, who testified during a deposition that he took Drouhard's CT scans to Via Christi's radiology department, where an unidentified radiologist told Jones the CT scans appeared normal. According to Jones, that radiologist read the scan to show mild distention of the gallbladder, no stones, a congenital abnormally shaped liver, and no evidence of small bowel obstruction.
Beamer further testified that he reviewed the CT scans personally and with another unidentified Via Christi radiologist. Beamer's impression from the CT scans was " dilated gallbladder without evidence for acute inflammatory change. Abnormal shape ...