Dodd-Anderson v. Stevens ( 1997 )

F I L E D
United States Court of
UNITED STATES COURT OF APPEALS Appeals
Tenth Circuit
TENTH CIRCUIT FEB 13 1997
______________________________ PATRICK FISHER
Clerk
AMANDA DODD-ANDERSON, a minor )
by and through KRYSTAL L. )
DODD-ANDERSON, her mother, ) No. 95-3395
natural guardian and next )
friend, and KRYSTAL L. DODD- ) (District of Kansas)
ANDERSON, Individually, BANK )
ONE, ARIZONA, as trustee for )
Amanda Dodd-Anderson, )
)
Plaintiffs/Appellants, ) D.C. Nos. 92-1015-MLB
) and 91-1016-MLB
v. )
)
DAVID V. HENDERSON, M.D., )
)
Defendant/Appellee. )
______________________________
ORDER AND JUDGMENT*
______________________________
Before HENRY, MURPHY, and RONEY**, Circuit Judges.
______________________________
This is a diversity jurisdiction medical malpractice action
brought by Krystal Dodd-Anderson individually and on behalf of her
newborn child, Amanda Dodd-Anderson, alleging two theories of
_____________
*This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata and collateral
estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**The Honorable Paul H. Roney, Senior Circuit Judge for the
Eleventh Circuit, sitting by designation.
liability against the defendant Dr. David V. Henderson. First, Dr.
Henderson acted negligently when he came to the delivery room
within a few minutes after the birth and, although the child was
seriously distressed and depressed, he failed to take action to
have her transferred to another hospital that was licensed to care
for distressed newborns. Second, Dr. Henderson was negligent
because as chief of staff of the hospital he did not take action to
have the attending doctor’s privileges revoked or suspended. The
district court held that no duty arose under either a physician-
patient relationship or in connection with defendant’s role as the
hospital’s chief-of-staff. Dodd-Anderson v. Stevens, 905 F. Supp.
937 (D. Kan. 1995). We affirm.
To establish a claim for medical malpractice, plaintiffs must
show that defendant owed them a duty, that he breached his duty,
and that there is a causal connection between the breached duty and
the injuries sustained. Mellies v. National Heritage, Inc., 636
P.2d 215 (Kan. App. 1981).
The patient in this case, Amanda Dodd-Anderson, was a newborn
suffering from respiratory problems when she was delivered by
obstetrician Dr. Mildred Stevens at Anderson County Hospital in
January 1995. After the birth, a respiratory therapist in
attendance was apparently concerned about the newborn’s respiratory
difficulties and asked defendant Dr. David Henderson, medical
director of respiratory therapy and chief-of-staff, to come to the
hospital. Dr. Henderson observed the baby from a few feet away,
and discussed with Dr. Stevens whether she intended to have the
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baby transferred to another hospital. Dr. Stevens said she did not
think a transfer was necessary, but that she would if the baby’s
condition changed. The day after the delivery, Dr. Stevens and Dr.
Henderson again discussed the baby's condition and Dr. Stevens
decided to transfer the baby to Kansas University Medical Center,
where the newborn could receive tertiary care. She was later
diagnosed with cerebral palsy.
Amanda Dodd-Anderson, by and through her mother Krystal Dodd-
Anderson, and Krystal Dodd-Anderson, individually, sued Anderson
County Hospital, Dr. Stevens, and Dr. Henderson, alleging all
defendants negligently caused Amanda injury during her delivery.
Plaintiffs settled all claims against the hospital and Dr. Stevens,
leaving only the claims against Dr. Henderson.
I.
The first theory behind plaintiffs’ claim is that the baby
was injured because she was not transferred to a tertiary care
facility soon enough and that the delay caused injury.
Dr. Henderson did not enter into a physician-patient
relationship with plaintiffs simply by coming to the hospital at
the respiratory therapist’s request, observing the newborn and
suggesting the newborn be transferred to another hospital.
No cases from Kansas or any other jurisdiction have been found
that hold that a physician who merely offers medical advice to an
attending physician stands in a physician-patient relationship with
that physician's patient such that the advising doctor has a duty
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to force the attending physician to follow that advice. The cases
cited by the plaintiffs are inapplicable.
In State v. Pitchford, 697 P.2d 896 (Kan. App. 1985), a
physician had drawn blood from a criminal defendant against his
will. There was no issue as to whether the physician had treated
the defendant, but whether nonconsensual treatment created a
physician-patient relationship.
In both cases cited from other jurisdictions, Greenberg v.
Perkins, 845 P.2d 530 (Colo. 1993), and Walters v. Rinkers, 520
N.E.2d 468 (Ind. Ct. App. 1988), the defendant physician had direct
contact with the plaintiff patient sufficient to raise a question
as to duty. The patient in Greenberg suffered injuries from
testing procedures conducted by a third-party. The patient brought
a negligence action against the physician who had ordered the
testing after conducting his own independent medical examination of
the patient. He "spent approximately ten to fifteen minutes taking
[the patient's] medical history . . . and physically examining her
cervical spine and upper extremities." Greenberg, 845 P.2d at 531-
32. In Walters v. Rinkers , the patient brought a medical
malpractice action against a pathologist for misdiagnosis of a
tumor removed from the patient's body. There is no dispute but
that the pathologist examined the tumor, consulted with other
pathologists, and made findings in a report that was relied upon by
patient's family physician. Walters, 520 N.E.2d at 470.
The contact defendant had with plaintiff is insufficient even
to create a jury question as to whether a doctor-patient
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relationship existed as in Rule v. Cheeseman, 317 P.2d 472 (Kan.
1957), relied upon by the plaintiffs. In Cheeseman, the injured
plaintiff sued not only the resident who performed the surgery, but
also Dr. Cheeseman as the supervising physician. In that case, Dr.
Cheeseman had discussed the surgery with the patient a few days
before, had examined the patient, and had assisted in the
operation. From the initial visits through surgery and follow up
visits, “there was not the slightest break in the relationship of
patient and surgeon between plaintiff and Doctor Cheeseman. . . .”
Cheeseman, 317 P.2d at 478.
Unlike the cases cited by plaintiffs, Dr. Henderson had no
contact with plaintiffs prior to the delivery, conducted no
independent physical examinations, nor did he have any follow up
contact with plaintiffs. Dr. Henderson was present only by virtue
of a phone conversation with an attending therapist, not upon
request of the physician in charge. The district court questioned
whether even under the facts of Cheeseman, a present day court
would find a jury question. Whether or notCheeseman would be good
law today, the minimal involvement Dr. Henderson had with this
patient did not raise a genuine issue as to whether Dr. Henderson’s
acts established a traditional doctor-patient relationship.
II.
Plaintiffs alternatively argue that defendant’s status as
chief of the medical staff gave rise to a duty to intervene in the
baby’s treatment and to strip Dr. Stevens of staff privileges at
the hospital. They assert that the applicable law is set out in
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the Restatement (Second) of Torts section 324A (1965), adopted by
Kansas in Schmeck v. City of Shawnee, 651 P.2d 585 (Kan. 1982),
which states:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of a third person or his
things, is subject to liability to the third person for
physical harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care
increased the risk of such harm, or
(b) he has undertaken to perform a duty owed by the
other to the third person, or
(c) the harm is suffered because of reliance of the
other or the third person upon the undertaking.
Plaintiffs argue that Dr. Henderson undertook the hospital’s
duty to oversee the medical staff of the county hospital and the
hospital's governing body relied upon defendant to report to them
regarding medical staff, so that he is liable for his neglect in
failing to supervise Dr. Stevens and in failing to revoke her
privileges.
Kansas courts have not considered section 324A in the context
of medical malpractice actions. We find it inapplicable here where
Dr. Henderson’s obligations as chief-of-staff are defined by the
hospital’s bylaws. There is no evidence in the record to support
plaintiffs’ assertions that under the bylaws, Dr. Henderson was
obligated to “supervise” other physicians, nor is there any record
evidence that Dr. Henderson had or should have had any information
that would support a conclusion that Dr. Stevens was incompetent.
In their brief and at oral argument, plaintiffs made repeated
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references to Dr. Henderson’s failure to have the patient
transferred immediately “when he knew Amanda was being kept in a
hospital that did not have the staff or the facilities to treat her
. . . ," and that “Anderson County Hospital was a Level I hospital
and had no license or permit to care for severely depressed
newborns such as Amanda Dodd-Anderson." Plaintiffs asserted that
as a matter of law, Amanda had no business being a patient at the
hospital. The only record cite for these statements in plaintiffs'
brief is the deposition of Danielle Hansel, management consultant
to the hospital, in which she merely acknowledges she was aware of
the facts surrounding the baby’s care from either conversations
with the nurses and doctors or from her independent review of the
record. Despite plaintiffs’ assurance to the Court at oral
argument that the record supported such allegations, our search of
the record revealed no evidence pertaining to this argument.
Neither a traditional doctor-patient relationship nor any
relationship arising out of Dr. Henderson's administrative roles
exists under these facts. Even if Dr. Henderson incurred some duty
when he responded to the call of the respiratory therapist, it was
only a duty to inform Dr. Stevens of his impressions based on his
limited knowledge of the patient. This he did. There is no
evidence that he was wrong in this regard.
We hold that no doctor-patient relationship existed between
the parties, whatever duties Dr. Henderson owed the parties were
fulfilled, and that Dr. Henderson had no duty arising out of his
administrative position to suspend Dr. Stevens.
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In light of our opinion regarding the question of duty, we
need not address plaintiffs’ challenge to the applicability and the
constitutionality of Kansas Statutes Annotation section 65-442(a).
AFFIRMED.
Entered for the Court
Paul H. Roney
Circuit Judge
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