Opinion
Civil Action No. 00-2054-KHV
May 16, 2000.
MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff's Motion For Summary Judgment And Memorandum In Support (Doc. # 13) filed March 27, 2000. Plaintiff brings suit against Michael L. Kennedy, M.D., for negligence which allegedly caused plaintiff to lose his leg. Plaintiff seeks summary judgment on the issue whether defendant can compare plaintiff's fault and the fault of others who were with plaintiff before he sustained his injuries. For the reasons stated below, plaintiff's motion is sustained.
Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Smith v. Midland Brake, Inc., 138 F.3d 1304, 1307 (10th Cir. 1998). The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
In considering a summary judgment motion the Court must view the evidence in the light most favorable to the nonmoving party. Tom v. First Am. Credit Union, 151 F.3d 1289, 1291 (10th Cir. 1998). Summary judgment may be granted, however, if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. Thus, "'[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,' summary judgment in favor of the moving party is proper." Thomas v. IBM, 48 F.3d 478, 484 (10th Cir. 1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Facts
The following facts are uncontroverted or, where controverted, viewed in the light most favorable to defendant as the nonmoving party.
On August 11, 1995, plaintiff was 20 years of age. Around noon, he and Devon McBride went to Melvern Reservoir where plaintiff consumed eight to ten beers. Plaintiff then went to a wedding reception, where he had two or three sips of champagne. At approximately 10:00 p.m., plaintiff went to a party at the home of Kathryn and Arden Payer.
The parties offer different spellings for Mr. McBride's first name. Plaintiff refers to him as "Devon" and defendant refers to him as "Devin." For purposes of this motion, the Court adopts plaintiff's spelling.
On occasion, the Payers made their home available for their children, who were teenagers, and their friends. The Payers did not purchase the beer which the teenagers drank on August 11. They always tried to check on the kids before they left and if the teenagers did not feel that they were able to drive, the Payers drove them or got someone else to drive. Arden Payer saw plaintiff arrive, and believed that he played basketball until about 12:30 or 1:00 a.m. Arden Payer talked to plaintiff after he had finished playing basketball. Plaintiff did not indicate he was impaired by alcohol at that time, and his speech was not slurred. At the time, Arden Payer was not concerned about plaintiff leaving on his motorcycle. Plaintiff believes he consumed three or four 16-ounce cups of beer at the Payers' home, but he could have had more. Neither of the Payers saw plaintiff drink any beer. Kathryn Payer did not know how much plaintiff had to drink and did not see plaintiff arrive at the home.
In the early hours of August 12, 1995, plaintiff began to leave the party. Several individuals tried to take his keys and keep him from leaving on his motorcycle. Kathryn Payer was concerned about plaintiff leaving the Payer home because he was driving a motorcycle. She offered to take him home, but he refused. Brad Payer, the Payers' son, asked plaintiff for the motorcycle keys, but plaintiff said that he would be all right.
Arden Payer went to bed before plaintiff left. He did not see or hear anyone talking to plaintiff about not leaving the party because he had consumed alcohol.
Plaintiff told individuals who tried to stop him from driving that he was able to drive and refused any assistance. Plaintiff drove from the party, even though he believes that he was above the legal alcohol limit for driving. Shortly after he left, plaintiff was involved in an accident. Bobby Sandborn, a person who was at the party and left approximately when plaintiff did, testified that plaintiff was driving too fast. Plaintiff suffered a head injury, abrasions, and an injury to his right knee. Plaintiff, who was under the influence of alcohol, was uncooperative with persons who tried to help him at the scene of the accident.
Emergency officials took plaintiff to the Coffey County Hospital where hospital officials admitted him at approximately 2:05 a.m and placed him under the care of Dr. Kennedy. When plaintiff arrived at the hospital, he was combative, belligerent, cursing, and attempted to escape from his restraints. Dr. Kennedy noticed that plaintiff had slurred speech and an odor of alcohol. Plaintiff tried to get up and said that he wanted to go home. Plaintiff would not cooperate with Dr. Kennedy's physical assessment. Also, because he would not cooperate with x-ray technicians, Dr. Kennedy put on a lead apron and held plaintiff's foot until the technicians had x-rayed plaintiff's knee. Plaintiff's intoxication caused alcohol sedation and slowed his respiration. Plaintiff's intoxication also made it difficult to determine whether he had a head injury.
Dr. Kennedy believes that plaintiff lost circulation in his leg between 6:00 and 6:30 a.m. on August 12, 1995. Around 6:25 a.m., a nurse informed Dr. Kennedy that she was concerned because she could not feel a pulse in plaintiff's foot. At approximately 8:00 a.m., Dr. Kennedy performed a sonogram examination and concluded that the leg had lost circulation. At 9:01 a.m., Coffey County Hospital contacted Life Star Transport which transported plaintiff to the University of Kansas Medical Center. When medical center doctors could not restore circulation, they amputated plaintiff's leg.
Dr. Kevin Harrington, plaintiff's expert, testified that even with appropriate care, amputation may result from the injuries which plaintiff suffered — a knee dislocation and popliteal artery injury. He also testified that even if Dr. Kennedy had restored the circulation earlier, amputation was still a possibility. In a healthy individual, the possibility could be as high as 15 per cent. Dr. Albert Yellin, another expert for plaintiff, testified that with a timely transfer to the Medical Center, the likelihood of salvaging plaintiff's leg would be greater than 90 per cent but plaintiff might not have full function of his leg. Dr. Yellin testified that in that circumstance, plaintiff would probably have some limitation of range of motion and an assisted gait. Dr. Robert Rothstein, another expert for plaintiff, testified that the tear in plaintiff's artery most likely occurred at the time of the accident.
Plaintiff does not seek damages for injuries which he sustained as a result of the motorcycle accident: his head injury, abrasions, knee trauma, and accompanying pain and suffering. Plaintiff only seeks damages which result from defendant's medical negligence in failing to timely diagnose the compromised circulation in plaintiff's left leg.
Analysis
1. Comparison of the Payers' Fault
Dr. Kennedy seeks to compare his fault with that of Arden, Kathryn and Brad Payer. Plaintiff argues that the Payers did not owe plaintiff any duty and that they therefore are not liable.
Actionable negligence must be based on a breach of duty. Kennedy v. Kansas Dept. of Soc. and Rehab. Servs., 26 Kan. App.2d 98, 100, 981 P.2d 266, 268 (1999). The existence of a duty is a question of law. Glassman v. Costello, 267 Kan. 509, 521, 986 P.2d 1050, 1059 (1999). Whether the duty has been breached is a question of fact. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86, 91 (1983).
Dr. Kennedy argues that the Payers assumed a duty to plaintiff, citing Circle Land Cattle Corp. v. Amoco Oil Co., 232 Kan. 482, 657 P.2d 532 (1983). In that case, the Kansas Supreme Court adopted Section 323 of the Restatement Second of Torts. Id. at 490, 657 P.2d at 538. Section 323 provides that:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
Restatement Second of Torts, § 323. Dr. Kennedy argues that the Payers undertook a duty to monitor their teenage guests and prevent them from driving drunk. The Court finds that the Payers did not assume any duty under Section 323. First, Dr. Kennedy fails to cite record evidence that plaintiff relied upon the Payers to keep him from driving while intoxicated. Indeed, plaintiff expressly rejected any assistance when he chose to drive off despite their attempts to stop him. When the injured party does not rely on any services, the party rendering the services does not have a duty of care under Section 323(b). See Chadwell v. Clements, 18 Kan. App.2d 84, 90-91, 847 P.2d 1344, 1349 (1993). This case is therefore different from Circle Land and Burgess v. Perdue, 239 Kan. 473, 481, 721 P.2d 239, 245-46 (1986), where the Kansas Supreme Court imposed a duty on defendants after plaintiffs relied on their representations. See Wicina v. Strecker, 242 Kan. 278, 285, 747 P.2d 167, 173 (1987).
One might argue that plaintiff chose to drink at the party in reliance on a belief that the Payers would keep him from driving. Defendant does not raise this argument, however, or cite evidence of any such reliance.
Further, defendant cites no evidence that the Payers increased any risk of harm to plaintiff, as Section 323(a) requires. See Wicina, 242 Kan. at 285-86, 747 P.2d at 173; see also Filter v. McCabe, 733 A.2d 1274, 1278 (Pa. 1999); Ocotillo West Joint Venture v. Superior Court, 844 P.2d 653, 656 (Ariz. 1992). They tried to keep plaintiff from driving — nothing more. Their effort did not increase plaintiff's risk of harm. See O'Gorman v. Antonio Rubinaccio Sons, Inc., 563 N.E.2d 231, 234 n. 3 (Mass. 1990) (failure to take keys away did not increase risk of harm). Plaintiff sustained his injuries because of his own decision to drive. The evidence does not suggest that the Payers increased the risk of injury to plaintiff by somehow encouraging his decision. Because the record does not suggest that plaintiff relied on the Payers or that they did anything to increase his risk of harm, they owed him no duty of care under Section 323. Dr. Kennedy therefore cannot compare his fault with their conduct.
While defendant does not argue that Section 324 of the Restatement Second of Torts imposes a duty here, the Court also finds that the Payers did not owe a duty of care under Section 324. This section is similar to Section 323, but applies to persons who assist "helpless" individuals. The Court's analysis regarding any duty of care under Section 323 applies with equal force to any duty of care under Section 324. See Filter, 733 A.2d at 1278; Ocotillo, 844 P.2d at 656; see also Keeton, et al., Prosser Keeton On The Law Of Torts (5th ed) § 56.
Plaintiff also expressly moves to exclude comparison of fault on the part of Devon McBride. See Plaintiff's Motion For Summary Judgment And Memorandum In Support (Doc. # 13) at 1. Defendant does not contend that McBride owed plaintiff any duty of care, and the Court therefore sustains plaintiff's motion for summary judgment in that regard.
2. Comparison of Plaintiff's Fault
Dr. Kennedy also seeks to compare plaintiff's fault in causing his injuries. Plaintiff argues that Dr. Kennedy should not be able to compare plaintiff's fault in causing the motorcycle accident with defendant's later negligence in treating plaintiff's injuries.
The majority of courts agree with plaintiff and hold that a doctor cannot compare the negligent (or even intentional) conduct which causes plaintiff's need for treatment. See Harvey ex rel. Harvey v. Mid-Coast Hosp., 36 F. Supp.2d 32, 35 (D.Me. 1999); Madelynn R. Orr, Defense of Patient's Contribution to Fault in Medical Malpractice Actions, 25 Creighton L. Rev. 665, 687 (1992); Liability/Professional Issues, 23 Mental Physical Disability L. Rep. 414, 421 (1999). The reason for this rule is simple and obvious. "Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded." Martin v. Reed, 409 S.E.2d 874, 877 (1991). As the Tenth Circuit has stated, a professional holding himself out to serve clients or patients is liable for his negligent performance of duties undertaken and may not be relieved of such liability by his clients' or patients' actions in causing or getting involved in the very conditions which the professional was employed and undertook to treat or remedy. Otherwise the professional would not be held responsible for performing the very duties he assumed.
Steiner Corp. v. Johnson Higgins of California, 135 F.3d 684, 688 (10th Cir. 1998).
The Kansas Court of Appeals recently adopted the majority view in Huffman v. Thomas, 994 P.2d 1072 (1999). In Huffman, plaintiffs' son was a mechanic who died after a truck fell off a lift. Plaintiffs argued that defendant was medically negligent in treating their son and that this negligence caused his death. Defendant sought to introduce evidence that plaintiffs' son had negligently placed the truck on the lift. The district court excluded this evidence as irrelevant to the issue whether defendant had breached the standard of care. See id. at 1075, 1077. The Court of Appeals upheld this ruling, citing with approval two cases following the general rule against comparing a patient's earlier fault. Id. at 1076 (citing Whitehead v. Linkous, 404 So.2d 377 (Fla.Dist.App. 1981); Spence v. Aspen Skiing Co., 820 F. Supp. 542 (D.Colo. 1993)).
Despite Huffman, Dr. Kennedy argues that Kansas law requires a comparison of plaintiff's fault in the motorcycle accident. Dr. Kennedy relies on a series of Kansas cases which reiterate the so-called "one-action" rule created by K.S.A. § 60-258a. Under this section, all parties to an occurrence in a negligence action must have their rights and liabilities determined in one action. See Mick v. Mani, 244 Kan. 81, 87, 766 P.2d 147, 152 (1988). The Kansas Supreme Court has noted, however, that this rule "applies to successive tortfeasors where it is claimed that medical malpractice, following an accident, contributed to the injuries." Lytle v. Stearns, 250 Kan. 783, 802, 830 P.2d 1197, 1210 (1992). The rule prevents any reasonable argument that the issues should be relitigated. See Eurich v. Alkire, 224 Kan. 236, 237, 579 P.2d 1207 (1978); Mathis v. TG Y, 242 Kan. 789, 794, 751 P.2d 136 (1988) ("After an adjudication of comparative fault, no party should be afforded a second opportunity to litigate percentages of causal negligence"). As another court in this district recently noted, the one-action rule "is essentially aimed at prohibiting a plaintiff from bringing a second action against a party that could have been, but was not, named in the first action." Augustine v. Adams, 88 F. Supp.2d 1166, 1172 (D.Kan. 2000).
Unlike the cases which apply the one-action rule, Dr. Kennedy does not identify any individuals who could be liable to plaintiff for the initial accident. Therefore this case does not involve successive tortfeasors. The one-action rule is not relevant because plaintiff was wholly at fault for the original accident; he has no need or occasion to relitigate a comparison of fault.
In other words, while this case involves successive occurrences, it does not involve successive tortfeasors. For this reason, the cases which apply the one-action rule are not persuasive. See, e.g., Teepak, Inc. v. Learned, 237 Kan. 320, 328-29; 699 P.2d 35 (1985). Because plaintiff can only seek damages which result from his medical treatment, defendant has no legitimate reason to introduce evidence regarding the cause of plaintiff's accident. Whether plaintiff was negligent in injuring his leg is irrelevant. The jury does not need to know the details of the accident which caused plaintiff's injury. It only needs to know what injuries plaintiff sustained in the accident and how the injuries affected his treatment and chance for recovery.
The Court recognizes that plaintiff's own experts testified that even with proper treatment, plaintiff might have lost his leg because of the injuries which he sustained in the accident. The Court also recognizes that this fact touches on issues of fault. In other words, by finding that defendant was not at fault, a jury could essentially find plaintiff was wholly at fault for the amputation. Such a finding, however, has nothing to do with the circumstances surrounding plaintiff's accident; it only concerns the type of injury which plaintiff sustained. The jury can decide whether Dr. Kennedy caused plaintiff's amputation without evidence regarding the cause of the accident. Dr. Kennedy introduces no evidence that plaintiff somehow decreased his chances of saving his leg because he was intoxicated when the accident occurred. Without such evidence, the cause of the accident is irrelevant. The Court therefore grants plaintiff summary judgment on any comparison of fault between his accident and Dr. Kennedy's medical treatment.
The Court is not persuaded that comparison is required because plaintiff testified that he blames himself for his injuries. While it is true that plaintiff started the chain of events which cost him his leg and that plaintiff might have avoided the accident if he had been more cautious, such circumstances did not entitle defendant to disregard the proper standard of care.
Dr. Kennedy asks the Court to certify the question presented. The decision to certify a question to the Kansas Supreme Court rests in the sound discretion of the federal district court. Marzolf v. Gilgore, 924 F. Supp. 127, 129 (D.Kan. 1996). Under K.S.A. § 60-3201, the Kansas Supreme Court can:
answer questions of law certified to it by . . . a United States district court . . ., when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.
As discussed above, however, the Court finds that Huffman is persuasive. The Kansas Court of Appeals has directly addressed the issue which defendant seeks to certify. The issue is not unsettled and certification is not necessary. Further, defendant only seeks certification if the Court agrees with Huffman and disagrees with him. Such an approach to certification is improper. See Massengale v. Oklahoma Bd. of Med. Exam'rs in Optometry, 30 F.3d 1325, 1331 (10th Cir. 1994). The Court denies Dr. Kennedy's request for certification.
Finally, the Court notes that Dr. Kennedy is entitled to compare plaintiff's fault to the extent that it impaired Dr. Kennedy's ability to treat him. A doctor can compare a patient's fault when the patient (1) failed to follow a medical instruction, (2) refused or neglected prescribed treatment, or (3) intentionally gave erroneous, incomplete, or misleading information which is the basis for medical care or treatment of the patient. See Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178 (Neb. 1990); see also Fritts v. McKinne, 934 P.2d 371, 374 (Okla.Civ.App. 1996). Kansas courts have allowed comparison of fault when a patient fails to follow a doctor's medical instructions. See Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988); Cox v. Lesko, 263 Kan. 805, 953 P.2d 1033 (1998). The Court's current ruling therefore does not prevent Dr. Kennedy from introducing evidence that plaintiff prevented Dr. Kennedy from following his standard of care or was negligent in following Dr. Kennedy's instructions. IT IS THEREFORE ORDERED that Plaintiff's Motion For Summary Judgment And Memorandum In Support (Doc. # 13) filed March 27, 2000 be and hereby is SUSTAINED. Defendant cannot compare the fault of Arden Payer, Kathryn Payer, Brad Payer or Devon McBride. Likewise defendant cannot compare plaintiff's fault regarding his motorcycle accident with defendant's later treatment of plaintiff's injuries from that accident.
The Court notes that the scope of this evidence may be limited. While Dr. Kennedy cites evidence that hospital employees noticed that plaintiff had been drinking, the Court will only allow such evidence if Dr. Kennedy can show that plaintiff's drinking affected Dr. Kennedy's treatment of plaintiff's leg in some way that is material to the determination of damages.