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Russell v. May

Supreme Court of Kansas

August 25, 2017

Staci Russell, Appellant,
Lisa May, M.D., Victoria W. Kindel, M.D., and Tana Goering, M.D., Appellees.


          FILED OCTOBER 2, 2015.

         1. A party who does not raise an issue in a petition seeking review of a Kansas Court of Appeals decision fails to preserve the issue for review by the Kansas Supreme Court.

         2. On appeal from a decision regarding a motion for judgment as a matter of law under K.S.A. 2016 Supp. 60-260(a), an appellate court applies the same standard as did the district court and reviews the motion de novo. A district court must deny a 60-260(a) motion if evidence exists upon which a jury could properly find a verdict for the nonmoving party. In evaluating the motion, a district court must resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied.

         3. The plaintiff in a medical malpractice action must prove (1) 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; (2) the provider breached this duty by deviating from the applicable standard of care; (3) the patient was injured; and (4) the injury proximately resulted from the breach of the standard of care.

         4. A physician's legal duty to a patient is a question of law over which we exercise unlimited review. As a matter of law, a legal duty arises with the formation of a physician-patient relationship. Once that relationship is formed, a health care provider owes the patient a duty of care that obligates the provider to meet or exceed a certain standard of care to protect the patient from injury.

         5. The determination of whether a physician-patient relationship exists rests on consent, and where there is no ongoing physician-patient relationship, the physician's express or implied consent to advise or treat the patient is required for the relationship to come into being. If the controlling facts relating to whether a physician-patient relationship existed are undisputed, a question of law arises. If, however, the controlling facts are at issue, the existence of a physician-patient relationship is usually a question of fact for the jury.

         6. The determination of whether a physician-patient relationship has ended depends on the circumstances; in other words, it generally presents a question of fact. Typically, the relationship continues until it is ended by consent of the parties or revocation by dismissal of the physician or until the services of the physician are no longer needed.

         7. The standard of medical care which is to be applied in each case is not a rule of law, but strictly a matter to be established by the testimony of competent medical experts, except where lack of reasonable care is apparent to an average layperson from common knowledge or experience.

         8. In general, proximate cause can be defined as a cause that in natural and continuous sequence, unbroken by 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. Proximate cause has two components: cause in fact and legal causation.

         9. Proving causation in fact requires the plaintiff to submit sufficient evidence from which a jury could conclude that more likely than not, but for defendant's conduct, the plaintiff's injuries would not have occurred.

         10. To prove legal causation, a plaintiff must show that it was foreseeable that a defendant's conduct might create a risk of harm to the plaintiff and that the result of that conduct and contributing causes were foreseeable. The concept of intervening cause relates to legal causation and does not come into play until after causation in fact has been established. Often, an intervening cause is one that actively operates in producing harm to another after the actor's negligent act or omission has been committed. But a force set in motion at an earlier time is an intervening force if it first operates after the actor has lost control of the situation and the actor neither knew nor should have known of its existence at the time of his negligent conduct. An intervening cause absolves a defendant of liability only if it supersedes the defendant's negligence. In other words, the superseding and intervening cause component breaks the connection between a negligent act and the harm caused. One more factor-foreseeability-must be considered. If the intervening cause is foreseen or might reasonably have been foreseen by the first actor, his or her negligence may be considered the proximate cause, notwithstanding the intervening cause.

         11. While a negligent health care provider is not solely liable for the subsequent negligence of other treating health care providers, he or she may be held comparatively negligent based on his or her own negligence when the subsequent negligence is foreseeable.

         12. Under the facts of this case, the district court erred in granting judgment as a matter of law and the error cannot be deemed harmless.

         13. Under the facts of this case, any error preserved for appeal did not affect the substantial rights of the plaintiff and does not provide a basis for reversing the jury verdict.

         Appeal from Sedgwick District Court; Mark A. Vining, judge. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part and reversed in part, and the case is remanded.

          Craig Shultz, of Shultz Law Office, P.A., of Wichita, argued the cause and was on the briefs for appellant.

          Lisa A. McPherson, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the cause, and Marcia A. Wood, of the same firm, was with her on the briefs for appellee Lisa May.

          Mark R. Maloney, of Hinkle Law Firm LLC, of Wichita, argued the cause, and G. Andrew Marino, of Gilliland & Hayes, LLC, of Wichita, was with him on the briefs for appellee Victoria Kindel.

          Gregory S. Young, of Hinkle Law Firm LLC, of Wichita, argued the cause, and Brian L. White, of the same firm, was with him on the briefs for appellee Tana Goering.


          LUCKERT, J.

         Staci Russell sued three physicians for their alleged failure to timely diagnose her cancer. During the jury trial, the district court granted a motion for judgment as a matter of law under K.S.A. 2016 Supp. 60-250(a) and dismissed defendant Tana Goering, M.D., who was Russell's primary care physician. The claims against the two remaining defendants-a radiologist and an obstetrician/gynecologist-proceeded to verdict; the jury determined that neither of the remaining defendants was liable for Russell's damages.

         On appeal from those trial proceedings, we hold that the district court erred in granting Dr. Goering judgment as a matter of law. Considering the evidence in the light most favorable to Russell, a reasonable jury could have found that Dr. Goering owed a duty to Russell and breached the standard of care and caused harm to Russell. Further, we reject Dr. Goering's argument that any error was harmless, as the jury's verdict determining the two other physicians were not liable for failing to timely diagnose the cancer does not determine the issues relating to Russell's claim against Dr. Goering.

         We, therefore, remand this case for retrial against Dr. Goering. In doing so, we reject Russell's request to order a retrial regarding the fault of the two other physicians. Under the circumstances of this case, a jury's determination that they were not at fault absolves them of potential liability.

         Facts and Procedural History

         In August 2010, Russell was diagnosed with invasive ductal carcinoma that had spread from her breast to her lymph nodes. She later sued three physicians for medical malpractice relating to the medical care she received in 2008 for a breast lump-a lump she contends was the same lump that was diagnosed in 2010 as cancerous.

         In 2008, when Russell first discovered a lump in her right breast, she scheduled an appointment with Dr. Goering. Dr. Goering palpated the breast and felt a lump she described as firm and movable. Dr. Goering then ordered a diagnostic mammogram and, if needed, an ultrasound or sonogram.

         Lisa May, M.D., a board-certified radiologist, interpreted Russell's mammogram immediately after it was performed. She noted that "[n]o significant masses, calcifications, or other findings are seen in either breast." Nevertheless, because of the palpable lump and because Russell's age and breast characteristics could make a mammogram less reliable, Dr. May ordered a sonogram, which was performed the same day as the mammogram. While Russell remained in the office, Dr. May reviewed the sonogram images and preliminarily concluded the lump was a benign, fatty lobule. Dr. May then physically palpated the lump and performed some additional scanning. Nothing seen or felt in these additional steps changed Dr. May's initial diagnosis. Russell asked whether she required a biopsy, and Dr. May told her she did not. Dr. May instructed Russell to return in five years if nothing changed but to follow up right away with Dr. Goering if Russell noticed any changes in her breasts.

         Dr. May's office sent Dr. Goering, as the referring physician, copies of the imaging reports. In part, the written report stated: "The palpable abnormality correlates with a fatty lobule." The report also indicated "[t]here is no sonographic evidence of malignancy." Dr. Goering did not follow up with Russell.

         Several months later, Russell saw Victoria Kindel, M.D., a board-certified obstetrician/gynecologist for a routine well-woman exam. Russell testified, "I told Dr. Kindel that I had found the lump in August. And that I had gone for a mammogram and ultrasound. And Dr. May didn't think it was anything to worry about." During cross-examination, Russell specified that she told Dr. Kindel the lump was benign:

"Q: [I]s it true that you told Dr. Kindel that you had done this mammogram, and that it was reported to you, between that and the ultrasound, as being benign.
"A: Yes.
"Q: Or no cancer?
"A: Yes."

Dr. Kindel, who did not receive a copy of Dr. May's report, testified that Russell reported the results of the mammogram were benign and she relied on Russell's oral report. Dr. Kindel, however, did palpate the lump as part of her exam. She described her finding to the jury: "Right breast inspection normal palpation, size two by two centimeters, mass is mobile and nontender. Nipples normal, no nipple discharge." Dr. Kindel did not find the lump clinically suspicious. Nevertheless, Dr. Kindel suggested to Russell that if she continued to feel anxious, Russell should see a surgeon for a biopsy. Dr. Kindel provided the names and telephone numbers of two surgeons she recommended for a biopsy. Dr. Kindel did not insist Russell seek follow-up care, and Russell did not contact either surgeon.

         One year later, Russell again saw Dr. Kindel for her annual, routine well-woman exam. Dr. Kindel examined Russell's breasts, noting a "fullness" in the 10 o'clock position of the same breast where the lump had previously been reported. The parties dispute whether Dr. Kindel encouraged Russell to visit Dr. Goering for a follow-up mammogram if she remained concerned.

         Russell noticed the lump began to grow in the summer of 2010. She then called Dr. Goering's office and spoke with Dr. Goering's nurse. Dr. Goering, who had not had any contact with Russell over the two-year period, ordered diagnostic testing. Another radiologist in Dr. May's practice group biopsied the lump, leading to the diagnosis of invasive ductal carcinoma. Dr. Goering's nurse contacted Russell with the diagnosis and referred Russell to a physician for treatment. Eventually, Russell went to M.D. Anderson, a cancer center in Houston. Russell's treatment included chemotherapy, a total mastectomy with auxiliary lymph node dissection, and post-mastectomy radiation. Russell's treating physician at M.D. Anderson estimated there was a better than 90% chance Russell's cancer was completely eradicated.

         After Russell filed suit against Drs. Goering, May, and Kindel and the parties conducted discovery, the district court entered a pretrial order setting out Russell's allegations against each of the physicians. Subsequently, each physician filed a motion for summary judgment. The district court granted partial summary judgment to both Drs. Goering and Kindel. After those orders, only one allegation remained against Drs. Goering and Kindel: They had failed "to recommend biopsy or additional, timely evaluation, even in the face of a reported normal imaging study." The order listed 13 contentions of negligence against Dr. May.

         After Russell's case-in-chief, each of the physicians asked for judgment as a matter of law under K.S.A. 2016 Supp. 60-250(a). The district court denied the motions of Drs. Kindel and May but granted Dr. Goering's motion and dismissed her from the lawsuit. The trial continued on the claims made against Drs. May and Kindel. Ultimately, the jury returned a verdict that found neither Dr. May nor Dr. Kindel at fault for denying Russell a substantial chance for better recovery or long-term survival.

         Focusing on the facts that relate to Dr. Goering's motion for judgment as a matter of law, Russell had presented expert testimony from Dr. James Edney, a surgical oncologist. Dr. Edney described some of the different conditions that may be felt during a breast examination. He compared a lipoma, a benign fatty tumor, which would feel soft like the fleshy part of a hand, with cancer, which would feel hard like a knuckle. Dr. Edney testified that Dr. Goering breached the standard of care because she should have recognized that Dr. May's diagnosis of a fatty lobule was inconsistent with Dr. Goering's physical examination, in which she had felt a firm lump. According to Dr. Edney's direct testimony, the inconsistency required Dr. Goering to act: to either immediately arrange a biopsy or to schedule a follow-up visit to determine whether the lump remained after a period of two to three months. If the lump persisted and was still detectable after that period, in Dr. Edney's opinion, Dr. Goering should have ordered a biopsy to determine whether the lump ...

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