Opinion
No. 110,856.
2014-11-21
Jon Alleyn GIDDENS, Individually, as the Personal Representative of the Estate of Agnes Maxine Giddens, Deceased, Plaintiff, and Rita Ann Wolf, Appellant, v. VIA CHRISTI REGIONAL MEDICAL CENTER, INC., Appellee.
Appeal from Sedgwick District Court; Richard T. Ballinger, Judge.Rita Ann Wolf, appellant pro se.Trade R. England, of Hite, Fanning & Honeyman L.L.P., of Wichita, for appellee.
Appeal from Sedgwick District Court; Richard T. Ballinger, Judge.
Rita Ann Wolf, appellant pro se. Trade R. England, of Hite, Fanning & Honeyman L.L.P., of Wichita, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Agnes Maxine Giddens—who was 90 years old—died on April 8, 2009, at Via Christi Regional Medical Center, Inc., (Via Christi) in Wichita. In this medical malpractice action, Giddens' adult children—who are acting pro se—contend that employees of Via Christi committed medical malpractice in treating their mother during her last illness and that they wrongfully caused her death. On appeal, it is alleged that the district court erred in granting summary judgment to Via Christi. We conclude that because the plaintiffs failed to come forward with expert testimony on the essential element of causation, the action against Via Christi could not survive as a matter of law. Thus, we affirm the district court's decision.
Facts
On March 22, 2009, Giddens was transferred to Via Christi from Our Lady of Lourdes Rehabilitation Hospital for symptomatic postural hypotension believed to be related to the beta blockers that had been prescribed to her. At the time of her admission to Via Christi, Giddens' blood pressure had dropped significantly. In addition, she complained of light headedness and severe weakness, and she was unable to stand.
Her medical history included a recent Cerebrovascular Accident—commonly known as a stroke—in addition to Coronary Artery Disease, Hyperlipidemia, Type II Diabetes Mellitus, Peripheral Vascular Disease, and Stage I Decubitus to Coccyx. At the time of her admission to Via Christi, Giddens was taking multiple medications. One of these medications was Ciprofloxacin (Cipro)—an antibiotic—that she was taking for a suspected urinary tract infection. She continued to receive Cipro at Via Christi until April 1,2009.
An Esophagogastroduodenoscopy (EGD)—a diagnostic endoscopic procedure that visualizes the upper part of the gastrointestinal tract—was performed on Giddens on or about March 26, 2009. The EGD revealed large amounts of retained food particles within the recess of her esophagus. Although swallowing precautions were ordered and Giddens was placed on a full liquid diet, she was fed a couple of spoons of eggs on the morning of March 29, 2009. It was noted that Giddens was unable to tolerate full liquids, coughed during meals, and aspiration was suspected.
On the evening of March 29, 2009, a chest x-ray was performed, which revealed consolidated infiltrate of the right lung. Giddens was diagnosed with aspiration pneumonia and additional antibiotics were ordered. Subsequently, a Peripherally Inserted Central Catheter and a Percutaneous Endoscopic Gastrostomy or PEG tube were placed. On April 4, 2009, a stool sample was collected that subsequently revealed Clostridium difficile (C. difficile), and a urine sample revealed yeast on April 5, 2009. Giddens' condition continued to deteriorate and she was moved to the Intensive Care Unit on April 7, 2009. The next day, Giddens died. The cause of death was recorded as C. difficile, sepsis, and acute respiratory failure.
On March 23, 2011, an attorney filed a petition on behalf of Rita Wolf and her brother, Jon A. Giddens, against Via Christi in Sedgwick County District Court. In the petition, Rita and Jon asserted that Via Christi was negligent in providing care and treatment to their mother during her last illness and that the hospital's negligence caused her death. According to the petition, Jon was the executor of his mother's estate—evidently for the purpose of bringing a survival claim—and Wolf was acting in her individual capacity—evidently for the purpose of bringing a wrongful death claim on behalf of Agnes' heirs.
Subsequently, on April 29, 2011, the parties filed a Joint Stipulation of Dismissal Without Prejudice. About six months later, on October 25, 2011, Rita and Jon filed a pro se petition against Via Christi presenting the same claims as those asserted in the prior case. Via Christi filed an answer on January 25, 2012, in which it denied any deviation from the appropriate standard of care and denied that the hospital or its employees caused Giddens' death. According to a scheduling order entered by the district court Rita and Jon had until June 14, 2013, to disclose their expert witnesses.
On June 13, 2013, Rita and Jon designated Jennifer L. Johnson, a nurse practitioner, as their only expert. In her report, Nurse Johnson rendered the opinion “that there is sufficient documentation to support a breach of duty by the staff at Via Christi Regional Medical Center.” In particular, she opined that giving Agnes two spoonfuls of eggs—which allegedly resulted in Agnes aspirating—constituted a deviation from the appropriate standard of care.
But neither Nurse Johnson's report nor the “Disclosure of Expert [T]estimony” filed by Rita and Jon set forth any expert opinions regarding causation. Moreover, at her deposition—which neither Rita nor Jon attended—Nurse Johnson stated on several occasions that she was not rendering any causation opinions in this case. Specifically, she testified that she was not rendering any opinions regarding the cause of Giddens' C. difficile, pseudomembranous colitis, sepsis, and/or death.
Via Christi, however, designated two infectious disease experts—David McKinsey, M.D. and Tom Moore, M.D.—to render opinions regarding causation. Dr. McKinsey rendered the opinion that it is unclear whether Agnes had aspiration pneumonia; that the C. difficile colitis cannot be definitely linked to Agnes' care and treatment at the hospital; that aspiration pneumonia—which is a bacterial infection—typically does not begin for at least 2 days after a person aspirates; that the period between the time Agnes was served two spoonfuls of egg and the onset of her pulmonary infiltrate was too short an incubation period for aspiration pneumonia; and, that even if Agnes had aspiration pneumonia, it is just as likely that the cause was the food material already lodged in her esophagus prior to being served two teaspoons of eggs. In addition, Dr. Moore opined that even if Agnes had not been given eggs or had not had retained food material in her esophagus, she likely would have developed aspiration pneumonia anyway because she was consuming liquids pursuant to a physician's order; and, that because Agnes was already taking Ciprofloxacin for a suspected urinary tract infection at the time of her admission to the hospital, it is probable that she would have tested positive for C. difficile even if additional antibiotics were not administered for aspiration pneumonia.
On August 23, 2013, Via Christi filed a motion for summary judgment and memorandum in support, contending that it was entitled to judgment as a matter of law because Rita and Jon failed to come forward with expert testimony on the essential element of causation. The hospital also contended that the common knowledge exception did not apply in this case. Moreover, Via Christi argued that the district court should not allow Rita and Jon to have more time to designate a causation expert. Although Rita and Jon filed several responses to the summary judgment motion, they failed to controvert any of the facts Via Christi set forth in the motion.
After extensive briefing, the district court held a hearing on October 3, 2013. At the conclusion of the hearing, the district court found that Via Christi's motion for summary judgment should be granted as a matter of law due to the lack of expert testimony on causation. The district judge explained that he was only deciding the issue of whether summary judgment was appropriate due to the lack of expert testimony on causation. The district judge did not decide whether Rita and Jon could supplement their expert's opinion at this late date.
Subsequently, on October 8, 2013, Rita and Jon filed a motion for hearing in which they sought leave to submit a supplemental expert witness report. However, no supplemental report was attached to the motion. The following day, the district court entered a journal entry granting Via Christi summary judgment as a matter of law. In doing so, the district court adopted the hospital's Statements of Uncontroverted Facts as its findings of fact. Furthermore, the district court found that Nurse Johnson had not rendered any opinions related to the essential element of causation.
In the journal entry of judgment, the district court expressly found:
“4. [Rita and Jon's] sole expert witness, Nurse Practitioner Jennifer Johnson, does not have opinions relative to the causation element of negligence.
“5. In this case, expert opinion testimony is necessary for the finder of fact to determine whether [Rita and Jon] have proved the causation element.
“6. The common knowledge exception to the requirement of expert witness testimony does not apply to this case.
“7. There is no issue of material fact for the jury to determine.”
Following the entry of judgment as a matter of law, Rita and Jon filed several additional motions to which Via Christi responded. On October 22, 2013, the district court held a hearing on the outstanding motions. At the end of the hearing, the district court announced that it was denying all outstanding pro se motions pending before it. Thereafter, Rita and Jon timely filed a notice of appeal.
Analysis
Issues Presented
Although Rita and Jon list five issues, they can be combined into two primary issues. First, whether the district court erred in granting summary judgment to Via Christi as a matter of law. Second, whether the district court erred in denying the request to supplement Rita and Jon's expert witness disclosure.
Essential Element of Causation
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. K.S.A.2013 Supp. 60–256; Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013); see also Kansas Supreme Court Rule 141 (2013 Kan. Ct. R. Annot. 249). If the non-moving party fails to come forward with evidence to establish an essential element of his or her claim, the movant is entitled to summary judgment as a matter of law. See 296 Kan. at 962; Crooks v. Greene, 12 Kan.App.2d 62, 64, 736 P.2d 78 (1987). On appeal, we apply the same rules as the district court. Stormont–Vail Healthcare, Inc. v. Cutrer, 39 Kan.App.2d 1, 7, 178 P.3d 35 (2007).
To prevail in a medical malpractice action in Kansas, one must prove the following elements:
“(1) The health care provider owes 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 health care provider breached this duty or deviated from the applicable standard of care; (3) the patient was injured; and (4) the injury proximately resulted from the health care provider's breach of the standard of care.” Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010).
Expert testimony is generally required in a medical malpractice action to establish both the applicable standard of care and to prove causation. Puckett, 290 Kan. at 435–36. As a general rule, only expert medical testimony is competent to prove causation in medical malpractice cases. See Esquivel v. Walters, 286 Kan. 292, Syl. ¶ 3, 183 P.3d 847 (2008). Without evidence of causation, a medical malpractice claim fails. Cutrer, 39 Kan.App.2d at 11.
For the purposes of this opinion, we will assume that Rita and Jon came forward with sufficient expert opinions regarding the appropriate standard of care and the alleged deviation from that standard of care when Agnes was served two spoons of eggs while she was restricted to a liquid diet. Accordingly, the critical issue in the present appeal is whether Rita and Jon came forward with sufficient evidence to show that Agnes' injuries and death proximately resulted—or were caused by—Via Christi's alleged deviation from the appropriate standard of care.
Here, Nurse Johnson failed to state any causation opinions in her report, nor did she state any causation opinions in her deposition. Specifically, Nurse Johnson testified that she was only intending to give standard of care opinions in this case; that she was not rendering any medical diagnosis regarding aspiration pneumonia or any other condition; and, that she was not giving any causation opinions as to C. difficile, sepsis and/or death. Nurse Johnson further testified that the statement in her report that read, “The consumption of eggs followed by the inability to swallow and subsequent coughing resulted in aspiration which progressed to pneumonia,” was not intended to be a causation opinion but simply the basis for her opinion that there was a deviation from the appropriate standard of care. Thus, we find that Rita and Jon have failed to come forward with expert testimony on the essential element of causation.
Furthermore, we do not find this to be a case in which the common knowledge exception should be applied. Under the common knowledge exception, one may be excused from the expert testimony requirement in certain medical malpractices cases “where the ... existence of proximate cause is apparent to the average layman from common knowledge or experience.” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988). In the present case, we find that the causes of C. difficile, pseudomembranous colitis, and/or sepsis are not within the experience, education, or everyday knowledge of an average juror. Similarly, in light of her advanced age, her extensive medical history, and the complexity of her condition, we find that an average layperson would not be able to determine the cause of Agnes' death without the assistance of expert testimony.
Rita and Jon also argue that the district court erred in granting summary judgment because it did so before discovery was complete. In support of this argument, they cite to Hanks v. Riffe Constr. Co., 232 Kan. 800, 658 P.2d 1030 (1983). But we find Hanks to be distinguishable from this case because at the time the district court in Hanks granted summary judgment, the parties had not even completed all of the scheduled depositions. Here, the district court did not grant summary judgment to Via Christi until nearly 4 months after the deadline for designation of expert witnesses had expired. Moreover, Via Christi's motion for summary judgment was not filed until after Rita and Jon's designated expert had been deposed.
We, therefore, conclude that the district court properly granted summary judgment to Via Christi as a matter of law because there is no expert testimony in the record to show that the hospital caused the injuries to—or the death of—Agnes Giddens.
Supplementation of Expert Report
Rita and Jon contend that the district court erred when it denied their motion to supplement their expert witness disclosure. The district court has broad discretion in supervising a lawsuit, including the course of discovery. And a district court abuses its discretion when no reasonable person would agree with the district court's ruling. Walder v. Board of Jackson County Comm'rs, 44 Kan.App.2d 284, 286, 236 P.3d 525 (2010) (citing In re Tax Appeal of City of Wichita, 277 Kan. 487, 513, 86 P.3d 513 [2004] ), rev. denied 292 Kan. 969 (2011).
Here, the scheduling order entered by the district court set June 14, 2013, as the deadline for Rita and Jon to designate their expert witnesses. The scheduling order also allowed the parties to supplement their expert disclosures either within 10 days of the initial disclosure or at least 7 days before the scheduled deposition of the expert in question. Unfortunately, Rita and Jon did not attempt to supplement their expert designation until after all of these deadlines had expired, after Nurse Johnson had been deposed, and after the district court had stated from the bench that it was granting Via Christi's summary judgment motion.
“If there was sufficient evidence of causation to deny summary judgment, it must be on the basis of the depositions before the court at the time it made its decision. A party may not remain silent in the face of a motion for summary judgment and later claim there is additional evidence to support its claims. [Citation omitted.] An affidavit cannot be used to controvert a prior sworn statement in order to create an issue of material fact and defeat a motion for summary judgment. [Citation omitted.]” Bacon, 243 Kan. at 314.
Moreover, we can find nothing in the record on appeal to identify what expert opinion Rita and Jon were attempting to add. As such, we have no way of knowing whether the additional expert opinion would have been sufficient to satisfy the causation requirement in this case. Likewise, we cannot say that no reasonable person could have ruled on the motion to supplement the same way as the district court. Thus, we find no abuse of discretion in denying the motion to supplement filed so late in the discovery process. See K.S.A.2013 Supp. 60–226(b)(6)(C) (stating that a party must make expert testimony disclosures “at the times and in the sequence that the court orders”).
Other Issues
Rita and Jon also contend that the deposition of their expert was somehow illegal. Although it is unclear why they believe the deposition was illegal, our review of the record on appeal reveals nothing that would indicate the deposition was improperly scheduled or conducted. We note that there is a notice to take deposition in the record, which states the time and location of Nurse Johnson's deposition and states that it was mailed to both Rita and Jon. Furthermore, a review of the deposition transcript reveals that Via Christi's attorney, Gwynne E. Birzer, acted in a professional manner in deposing Nurse Johnson despite the fact that neither Rita nor Jon chose to attend.
Finally, Rita and Jon argue that the district court's decision to grant Via Christi summary judgment should be reversed on the ground of bias. In particular, they cite to the record of a hearing held on October 3, 2013, where the district court stated, “[W]hen I get a case it's done,” and “I don't want to continue this case for any reason.” Reviewing the entire hearing transcript in context, however, it appears that the district court was merely explaining that it wanted to decide the issues without undue delay. Not only is the prompt administration of justice appropriate, it is the obligation of judges to decide matters promptly and efficiently. Supreme Court Rule 601B, Kansas Code of Judicial Conduct, Cannon 2, Rule 2.5 (2013 Kan. Ct. R. Annot. 737). Thus, we find no error.
Conclusion
In conclusion, we find that Rita and Jon have failed to show that the district court committed reversible error. Because Rita and Jon failed to provide expert testimony on the essential element of causation, the action against Via Christi could not survive as a matter of law. Accordingly, the district court properly granted Via Christi's motion for summary judgment. Likewise, the district court did not abuse its discretion by denying Rita and Jon's motion to supplement their expert report after the expert disclosure deadline had passed and their expert had been deposed.
Affirmed.