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Dickerson v. St. Luke's South Hosp., Inc.

Court of Appeals of Kansas

April 3, 2015


Page 1101

Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge.




1. The district court must give an instruction that a party requests if it is both legally and factually appropriate.

2. Joinder is legally distinct from a request to compare the fault of a nonparty, and only joinder is a defendant-specific right. The language of the nonparty comparative-fault instruction--unlike the language of the comparative negligence joinder statute--does not indicate that it creates a right only for defendants.

3. To promote judicial efficiency, courts should compare the fault of nonparties when the evidence requires it.

James M. Crabtree, of Crabtree Law Office, of Lenexa, for appellant.

Adam S. Davis, Thomas W. Wagstaff, Brandon D. Henry, and Sarah S. Ruane, of Wagstaff & Cartmell, LLP, of Kansas City, Missouri, for appellees.



Page 1102

Arnold-Burger, J.:

This is an appeal from a wrongful-death jury trial in which the jury returned a verdict in favor of the defendants St. Luke's South Hospital, Inc. (St. Luke's), and two doctors. The jury determined that none of the defendants were at fault, and then it attributed 0% of the fault for Nicole Dickerson's death to each defendant. Virginia Dickerson, as lawful heir of Nicole Dickerson (the Estate), appeals this result because it requested that the court instruct the jury to compare the fault of three nonparty doctors along with the named defendants and to list these nonparty doctors' names on the verdict form, but the court refused. The Estate argues this was error because it was entitled to any instruction it had evidence to support, and it presented evidence of the fault of the nonparty doctors. The Estate contends that it is entitled to a new trial because, as a result of the error, the court asked the jury to attribute 100% of the fault to only 50% of the people accused of causing the harm. After a thorough review, we find that the district court erred by not instructing the court as the Estate requested, but the error did not prejudice the Estate's substantial rights or impact the trial's outcome. Adding additional nonparty defendants would not have changed the jury's conclusion that Nicole's death did not result from a medication error caused by the defendant hospital and doctors (and the actions of the hospital's nurses).

Factual and Procedural History

Nicole Dickerson suffered from velocardiofacial syndrome, a birth defect that caused a large hole in her heart. The condition resulted in blood transfer between the left and right sides of her heart and in the underdevelopment of the artery that pumped blood from the right side of Nicole's heart into her lungs for oxygen. Nicole underwent numerous surgeries to have the hole in her heart plugged and the artery bypassed, but these surgeries did not cure her disease, and over the years Nicole developed severe pulmonary hypertension. This means that Nicole's body struggled to get blood to her lungs to get oxygen, which in turn depleted the amount of blood returning to her heart. A side effect of Nicole's condition was liver congestion, which caused fluid to accumulate in Nicole's abdomen.

At 24 years old, Nicole had run out of life-extending options and was living on hospice care, which meant her primary-care physician predicted she had as little as 3 to 6 months left to live. But Nicole's family testified at trial that she remained lively: She was studying at community college, living with her sister--LaTosha Duckworth (a nurse who helped care for Nicole), and preparing to go on vacation when the events that led to this litigation transpired.

On April 10, 2008, Nicole arrived at St. Luke's for an outpatient paracentesis. Nicole had elected to have the paracentesis--a palliative procedure whereby excess fluid is drained from the abdomen--before going on vacation.

In order to admit Nicole for her procedure, the admitting nurse, Chrisan Theobald, completed a medication-reconciliation form. Theobald testified that her job required her

Page 1103

to get the patient's most recent medical records and record the medication doses the patient was prescribed so that the next nurse could double check those doses with the patient before having the doctor confirm them. Generally, Theobald said she tried to get records from as recently as 30 days before the patient came into the hospital, but in Nicole's case, she testified that she believed she had relied on hospital records from 5 months earlier, November 2007, to get a list of Nicole's medications. Theobald indicated that Nicole should receive 2.5 mg of Vasotec twice a day on her form. But Nicole's primary physician had lowered Nicole's dose of Vasotec to half that amount and testified that she had been prescribing Nicole 1.25 mg of Vasotec in the months leading up to her death.

Mary Ann Lambers was the next nurse to speak directly with Nicole and her mother, Virginia Walker (a/k/a Virginia Dickerson), about Nicole's medication. Lambers' job required her to get an accurate account of the medications Nicole was taking as of the time she came in for her procedure and to add or subtract medications or change dosages from Theobald's form and enter the information into the computer system. Lambers testified that while she could not recall the details of her conversation with Nicole and Walker clearly, she knows that she spoke with them because on Theobald's handwritten medication-reconciliation form, some blanks are filled in by Lambers indicating Nicole's current doses of medications.

Walker says that she gave Lambers a container full of Nicole's medications with the accurate dosing information reflected on the pill bottles and that she also gave Lambers a list of Nicole's medications with the correct dosing information. Lambers says she never received any medication lists or pill bottles from Nicole or Walker because these items would have been entered into her notes and tagged for Nicole's file, but they were not. Lambers acknowledged, however, that Walker alleged a major error on Nicole's medication form: Lambers had said that Nicole should receive 2.5 mg of Vasotec twice a day, and Walker said that Nicole had only been taking 1.25 mg twice a day.

While undergoing the paracentesis, the doctors noticed that Nicole had cellulitis--a skin infection--in her leg, and they recommended she undergo a round of antibiotics to treat the condition. Nicole decided to stay overnight at the hospital to have the antibiotics administered intravenously.

Dr. Shelley Edwards was the hospitalist on duty when Nicole was admitted, and she treated Nicole only on Nicole's first night at St. Luke's. When Nicole arrived in Edwards' unit, Nicole had very low blood pressure, with the systolic number at only 68 to 70. Because Nicole's condition seemed dire for a patient admitted into the internal-medicine unit, Edwards made a point to investigate Nicole's condition immediately. Edwards pulled Nicole's chart and learned about her heart disease, about the fact that she was on hospice care, how she had come in for palliative paracentesis, and about the cellulitis in her legs. Edwards said she focused primarily on Nicole's hospitalization in November 2007 to get a sense of what to expect when she visited Nicole. After a quick view of these records, Edwards said she went to see Nicole, who was with her mother.

Edwards described Nicole's appearance as something she had not seen before or since and said that Nicole looked like she was 25 going on 85 with incredible swelling in her abdomen, genitals, and legs because of her heart failure. Edwards said Nicole had gained 20 pounds of fluid since her last visit 5 months before. At Nicole's last visit, she could stand on her own, Edwards said, but when Edwards saw her she could not get out of a chair unless she was hoisted. Edwards also noted that she was dizzy, exhausted, depressed, tearful, and incontinent.

Edwards said Walker was very concerned that Nicole had not been given her medication and that Edwards had initially consented to giving it to Nicole--including the 2.5 mg dose of Vasotec--but then changed her mind when she saw the results from some lab tests she had ordered. The lab results showed Edwards that Nicole was experiencing acute renal failure, which Edwards believed would kill her. Accordingly, Edwards testified that she entered a hold

Page 1104

order on all of Nicole's medications pending a cardiology consultation. In Edwards' notes on Nicole's chart, she mentioned that Nicole often presented with low blood pressure and that Nicole lived with low blood pressure according to Walker. Edwards nevertheless stressed that Nicole suffered from low blood pressure and kidney failure before any medications in any amount were given to her and that paracentesis could cause kidney failure.

Dr. Paul Chan consulted on Nicole's case at Edwards' request for a cardiologist. His nurse practitioner interviewed Nicole and Walker before he met with them, and, like the nurses before her, recorded that Nicole took 2.5 mg of Vasotec twice a day in her notes. Chan admitted he did not follow up on this dosing information and that he would not have knowingly doubled Nicole's dose of the medicine. Chan said, however, that Nicole's dose of the heart medication was so low that doubling it was not necessarily medically significant and stated that taking Nicole off the medication when her blood pressure began dropping might actually have caused her heart to fail more quickly.

Dr. Douglas Anderson took over as the third hospitalist on Nicole's case. Anderson believed he had ordered Nicole's medications in the dosages she had been taking before she had been hospitalized. He said that when he took over Nicole's care he looked at the notes on her chart. He admitted to approving the continuation of Nicole's Vasotec even as her blood pressure continued to drop, and he admitted that low blood pressure could be a side effect of Vasotec, though he cautioned that Nicole took such a low dose of Vasotec that it would not have a negative impact on most patients, as some patients took as much as 40 mg per day and she took only 5 mg. Anderson admitted that he had looked at the cardiologists' notes and that in a handwritten note given to him at trial Nicole's dose appeared to be only 2.5 mg once a day. But Anderson said he had not seen the handwritten note while he had been ...

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