BY THE COURT
OCTOBER 2, 2015.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
Under the facts of this case, the district court erred in
granting judgment as a matter of law and the error cannot be
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.
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.
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.
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
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.
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.
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
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
and Procedural History
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.
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.
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
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.
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
"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.
"Q: Or no cancer?
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.
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.
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
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.
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.
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