Castleberry v. DeBrot , 424 P.3d 495 ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 111,105
DOUGLAS L. CASTLEBERRY, Individually and as the Administrator of the ESTATE OF
BARBARA MAE CASTLEBERRY, Deceased, and on behalf of SUSAN M. KRAFT and SCOTT
CASTLEBERRY, Adult Heirs at Law of BARBARA MAE CASTLEBERRY, Deceased,
Appellees,
v.
BRIAN L. DEBROT, M.D.,
Appellant.
SYLLABUS BY THE COURT
1.
In a civil case, when the Kansas Supreme Court grants a petition for review of a
Court of Appeals' decision, only those issues presented in the petition, or fairly included
therein, will be considered.
2.
Proximate cause is the cause that in a natural and continuous sequence, unbroken
by any superseding cause, both produced the injury and was necessary for the injury. The
injury must be the natural and probable consequence of the wrongful act. Individuals are
not responsible for all possible consequences arising from their negligence—just those
that are probable according to ordinary and usual experience.
3.
Any perceived distinction between the phrases "causing an event" and
"contributing to an event" is a distinction without a difference.
1
4.
Remarks of counsel in a civil case result in reversible error when the prejudiced
party has not had a fair trial. Reversal is appropriate when there is a reasonable
probability the error affected the trial's outcome in light of the entire record.
Review of the judgment of the Court of Appeals in an unpublished opinion filed April 22, 2016.
Appeal from Sedgwick District Court; RICHARD T. BALLINGER, judge. Opinion filed August 24, 2018.
Judgment of the Court of Appeals affirming the district court is affirmed on the issues subject to review.
Judgment of the district court is affirmed on the issues subject to review.
Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, argued the cause, and
Christopher S. Cole, of the same firm, was with him on the briefs for appellant.
Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, argued the
cause, and Larry Wall and Tina Huntington, of Wall Huntington Trial Law, of Wichita, were with him on
the briefs for appellees.
The opinion of the court was delivered by
BILES, J.: Brian L. DeBrot, M.D., appeals after a jury found him negligent and
awarded damages to his deceased patient's heirs and estate. The medical malpractice
theory was that DeBrot failed to recognize the patient was about to suffer a stroke the day
before she had it. A Court of Appeals panel affirmed. See Castleberry v. DeBrot, No.
111,105, 2016 WL 1614018, at *30 (Kan. App. 2016) (unpublished opinion). We granted
review and now affirm on the issues subject to our review, although our rationale differs
in some respects.
At the outset, we must resolve a challenge about what issues DeBrot's petition for
review identifies. We hold those questions are: (1) whether it was error to instruct the
jury that a party is at fault when the party's "negligence caused or contributed to the event
2
which brought about the claims for damages"; (2) whether plaintiffs' counsel's closing
arguments contained improper remarks and, if so, whether that requires reversal; and (3)
whether expert standard-of-care testimony that doctors must "err on the safe side" was
improper and, if so, whether that requires reversal.
As to the instructions, we adhere to our holding in Burnette v. Eubanks, 308 Kan.
___, Syl. ¶ 3, ___ P.3d ___ (this day decided) ("Any perceived distinction between the
phrases 'causing an event' and 'contributing to an event' is a distinction without a
difference."). We also hold that plaintiffs' counsel improperly urged the jury to decide the
case on concerns other than the law and the evidence. But we determine there is no
reasonable probability the verdict would have been different without this error. Finally,
we hold the district court did not abuse its discretion by permitting experts to testify as
they did because they simply explained the mental processes used in forming their
opinions about whether DeBrot breached the standard of care. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Barbara Castleberry suffered a debilitating stroke on December 20, 2007. About a
year later, she fell and sustained a fatal head injury. This lawsuit claims a direct causal
connection between these two events and DeBrot's medical malpractice.
Barbara saw DeBrot, a primary care physician, five times before her 2007 stroke,
including December 6 and December 19. During the first December visit, Barbara's
"chief complaint" was left hand numbness. She reported tingling in the hand, increasing
difficulty picking things up, difficulty turning pages, dizziness, and foot numbness. She
wondered if she was having a stroke. DeBrot believed these symptoms were caused by
carpal tunnel syndrome. He testified a stroke "[w]asn't even a consideration" because he
3
clinically reproduced her symptoms, which would have been impossible if she had
suffered a stroke.
DeBrot referred Barbara to a carpal tunnel specialist, who confirmed the diagnosis
and began treatment. She returned to DeBrot on December 19—the day before her
stroke—chiefly complaining about wrist pain. She had high blood pressure and reported
dizziness, constipation, increased numbness, blurred vision, and emotional problems.
DeBrot believed a steroid injection given by the specialist two days earlier caused the
pain. DeBrot rescheduled her follow up with the specialist for an earlier date.
After Barbara died, her husband and estate sued DeBrot for damages sustained
during her remaining lifetime after the stroke and for damages resulting from Barbara's
death. The negligence focused on DeBrot's alleged failure to recognize the impending
stroke or to diagnose Barbara with transient ischemic attacks (TIA) during the two
December 2007 visits.
Barbara suffered an ischemic stroke, which occurs when a blood vessel becomes
blocked, depriving necessary blood supply to an area in the brain. This is different from a
hemorrhagic stroke, in which a blood vessel ruptures, placing pressure on the surrounding
brain cells. A TIA, like an ischemic stroke, blocks blood flow to one or more areas in the
brain; but unlike a stroke, the blockage is temporary. A TIA is a warning sign for an
impending stroke. Plaintiffs claimed the stroke was avoidable had DeBrot acted within
the standard of care during Barbara's December visits because (1) he would have
discovered the blockage in Barbara's carotid artery by listening to the artery or ordering
an ultrasound or Doppler examination; or (2) he would have placed Barbara on aspirin
therapy, which reduces the ischemic stroke risk.
4
A jury found DeBrot at fault and awarded Barbara's estate, her husband, and
children economic and noneconomic damages. The district court entered judgment
against DeBrot for damages totaling $907,484.69. DeBrot appealed.
Before the Court of Appeals, DeBrot argued for reversal claiming: (1) the district
court did not properly instruct the jury on causation and the evidence required to prove it;
(2) the court instructed the jury it could not assign fault to plaintiffs; (3) plaintiffs'
counsel made prejudicial remarks during closing arguments; (4) the court permitted
plaintiffs' experts to redefine the duty of care owed to Barbara; and (5) the court erred in
making various evidentiary rulings. The panel affirmed. Castleberry, 2016 WL 1614018,
at *30.
DeBrot filed a petition for review with this court, which we granted. Jurisdiction is
proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals
decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of
Appeals decisions upon petition for review).
ISSUES NOT PROPERLY BEFORE THIS COURT
We begin by defining the issues because DeBrot's supplemental brief, filed after
this court granted review, argued questions not itemized as being erroneously decided by
the Court of Appeals. Plaintiffs objected to this. Our rule states:
"An order granting review may limit the issues on review. If review is not limited, the
issues before the Supreme Court include all issues properly before the Court of Appeals
which the petition for review or cross-petition allege were decided erroneously by the
Court of Appeals. In civil cases, the Supreme Court may, but need not, consider other
issues that were presented to the Court of Appeals and that the parties have preserved for
review." (Emphasis added.) Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 56).
5
The rules also explain how petitions for review are to be drafted. Rule 8.03(a)(4)
states:
"The petition must contain concise statements of the following, in the order indicated:
....
"(C) A statement of the issues decided by the Court of Appeals of which review is
sought. The court will not consider issues not presented or fairly included in the petition.
The court, however, may address a plain error not presented. In a civil case, the petitioner
also must list, separately and without argument, additional issues decided by the district
court which were presented to, but not decided by, the Court of Appeals, which the
petitioner wishes to have determined if review is granted." (Emphasis added.) Supreme
Court Rule 8.03(a)(4) (2018 Kan. S. Ct. R. 54).
In DeBrot's petition for review, he stated in his "Statement of Issues For Which
Review Is Sought" as follows:
"Although Dr. DeBrot believes all of the issues raised in this appeal should be
considered, the following particularly merit review:
"1. Whether the PIK recommended instructions on causation are fundamentally
flawed, in that they do not correctly state the law of proximate cause?
"2. Whether the Court of Appeals erred by failing to address the prejudicial impact
of plaintiffs' improper 'Reptile Litigation' arguments in light of the overall theme
of plaintiffs' case and applied the wrong legal standard?
"3. Whether the Court of Appeals incorrectly upheld the trial court in allowing
expert witnesses to redefine the legal duty of a physician?" (Emphasis added.)
6
After review was granted, DeBrot included a section in his supplemental brief
entitled, "The Court of Appeals Erred in Rejecting Defendant's Contentions as to Several
Evidentiary Issues." Similarly, DeBrot argued in his supplemental brief that the panel
erred in rejecting his argument that the district court should have instructed the jury that
its causation findings had to be based on expert testimony. DeBrot never explained why
he included these issues in his supplemental brief nor did he explain their earlier omission
from his petition for review or his reply in support of that petition for review.
When asked at oral argument about these omissions, DeBrot's counsel conceded
the additional issues were not raised in the petition for review but hoped the introductory
phrase—"Dr. DeBrot believes all of the issues raised in this appeal should be
considered"—was sufficient to overcome plaintiffs' objection.
"A party aggrieved by a decision of the Court of Appeals on a particular issue
must seek review in order to preserve the matter for Kansas Supreme Court review."
Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 172, 298 P.3d 1120 (2013). We
hold that DeBrot failed to preserve the arguments regarding the evidentiary issues, the
question regarding limiting causation evidence to experts, and the instruction that
plaintiffs were not at fault. See Bullock v. BNSF Railway Co., 306 Kan. 916, 920, 399
P.3d 148 (2017) (quoting Supreme Court Rule 8.03[h][1], which states "'[t]he issues
before the Supreme Court include all issues properly before the Court of Appeals which
the petition for review or cross-petition allege were decided erroneously by the Court of
Appeals" to limit the issues to be addressed); Chism v. Protective Life Ins. Co., 290 Kan.
645, Syl. ¶ 1, 234 P.3d 780 (2010) ("In a civil case, when the Kansas Supreme Court
grants a petition requesting review of a Court of Appeals' decision . . . only issues
presented in the petition, or fairly included therein, will be considered.").
7
We note Rule 8.03(h)(1) recites, in part, "In civil cases, the Supreme Court may,
but need not, consider other issues that were presented to the Court of Appeals and that
the parties have preserved for review." This discretion ties to Rule 8.03(a)(4)(C), which
requires parties to identify and separately list any issues presented to—but not decided
by—the Court of Appeals that the party believes the Supreme Court should consider in its
review. Rule 8.03(h)(1) is not a stealth mechanism to excuse the specificity required by
Rule 8.03(a)(4) and our other rules controlling the review process. Similarly, we do not
consider DeBrot's introductory phrase quoted above as sufficient to be considered "fairly
included" in the petition.
To view this otherwise would do a disservice to the other parties who must decide
whether to oppose review. They should not have to guess about this. See Rule 8.03(c)
(granting a party opposing a petition or cross-petition right to file a response). In the same
vein, uncertainty about the issues in controversy overly complicates this court's decision-
making process when determining whether to grant review or grant review only on
limited issues.
We hold the questions subject to review are those itemized in DeBrot's petition for
review: (1) whether it was error to instruct the jury that a party is at fault when the
party's "negligence caused or contributed to the event which brought about the claims for
damages"; (2) whether plaintiffs' counsel's closing arguments contained improper
remarks and, if so, whether that requires reversal; and (3) whether expert standard-of-care
testimony that, e.g., doctors must "err on the safe side" was improper and, if so, whether
that requires reversal.
8
THE CAUSATION INSTRUCTIONS
DeBrot argues the judgment must be reversed because the district court did not
properly instruct the jury on causation. He contends the instructions permitted the jury to
impose liability without finding Barbara's injuries would not have occurred "but-for" his
negligence. We disagree.
Additional Facts
Two doctors testified as plaintiffs' experts: William Miser and Frank Yatsu. We
must detail their testimony.
Miser concluded DeBrot departed from the standard of care by failing to consider
TIA or stroke; failing to listen to Barbara's carotid artery for blockage; failing to recheck
her abnormally high blood pressure at the December 19 visit; failing to comply with
standards on hypertension treatment by using only one medication to treat her; failing to
place her on aspirin; failing to do additional clinical tests that would have contradicted
carpal tunnel as the sole explanation for her symptoms; and failing to explore or
document the blurred vision and other symptoms she reported. He did not dispute
DeBrot's carpal tunnel diagnosis but concluded it inadequately explained the symptoms.
Miser believed the sudden numbness, particularly on the left side, was a
neurological symptom that should have led DeBrot to address the stroke possibility.
Miser said the negative changes between the two December visits—during which carpal
tunnel treatment began—"scream[ed] out that something [was] going on." He noted
Barbara's blurred vision and dizziness could have been caused by "showers of clots"
during a TIA. He concluded DeBrot should have investigated and ruled out psychological
9
problems Barbara reported, even if they were not stroke related. Miser determined
DeBrot's "judgments [were] below the safe practice of medicine, standard of care."
Miser also testified DeBrot's failure to adequately treat Barbara's hypertension, to
begin aspirin therapy, and to test for a carotid artery blockage all led to DeBrot's failure
to recognize an impending stroke. Miser "absolutely believe[d]" aspirin "would have
reduced and probably prevented, more probably right than wrong, [Barbara's] stroke,
disabilities, and death." Miser said DeBrot's shortcomings caused Barbara's injuries
because the carotid artery stenosis could have been addressed with a procedure that
restores blood flow through a blocked artery; and, if done soon enough after the
blockage's onset, can reverse its symptoms. When performed, the operation averts a
stroke by timely restoring blood flow. Miser explained other reasons for the stroke were
DeBrot's failure to follow up on Barbara's psychological changes and his failure to seek
medical attention for the neurological symptoms. He said DeBrot's mismanagement of
Barbara's blood pressure "was an important part of the reason she had a stroke,
disabilities, and death."
Yatsu died before trial but his deposition was read. Yatsu disagreed with DeBrot's
conclusion that Barbara had carpal tunnel syndrome. He believed DeBrot departed from
the standard of care by failing to diagnose the TIA. In particular, he cited DeBrot's failure
to adequately address her reported dizziness, blurred vision, and psychological
symptoms, as well as her hypertension and dyslipidemia, which Yatsu said are known to
provoke artery obstruction. Yatsu said it would have taken just a few seconds to listen to
Barbara's carotid artery, but he could not say to a reasonable degree of certainty whether
DeBrot would have heard a "bruit," indicating artery obstruction. Yatsu said a carotid
duplex ultrasound would have revealed a stenosis. Yatsu said DeBrot should have
ordered this test on December 6 based on Barbara's hand numbness and tingling,
10
dizziness, hypertension, and hyperlipidemia. Similarly, Yatsu believed DeBrot should
have diagnosed Barbara's TIA on December 19.
Yatsu noted there is a surgical procedure to address stenosis that has a 65-75%
chance of success. He said if DeBrot had discovered Barbara's stenosis and had Barbara
undergone that surgery, it was more probable than not Barbara would have avoided the
stroke. Yatsu said there was time for the surgery before the December 20 stroke. He
believed if Barbara's TIA was treated on either visit, the stroke more probably than not
could have been avoided. Yatsu testified Barbara's illnesses after the stroke were caused
by the stroke.
DeBrot's experts, Doctors Alexander Davis and Jeffrey Kaplan, testified DeBrot
acted within the standard of care. Hinting at causation, Davis said blood pressure
treatment to avoid strokes would occur over years and suggested a patient would not have
a stroke "next month" if treatment was not altered in the next four visits. And he said
blood pressure only directly causes hemorrhagic strokes, which was not the type Barbara
had. Kaplan's testimony did not address causation.
Jury Instructions
The district court gave the following relevant instructions:
"Instruction No. 7
"A physician has a duty to use the learning and skill ordinarily used by other members of
that same field of medicine in the same or similar circumstances. In using this learning
and skill, the physician must also use ordinary care and diligence. A violation of this duty
is negligence."
11
"Instruction No. 8
"In determining whether a primary care physician used the learning, skill, and conduct
required, you are not permitted to arbitrarily set a standard of your own or determine this
question from your personal knowledge. On questions of medical or scientific nature
concerning the standard of care of a primary care physician, only those qualified as
experts are permitted to testify. The standard of care is established by members of the
same profession in the same or similar circumstances. It follows, therefore, that the only
way you may properly find that standard is through evidence presented by expert
witness."
"Instruction No. 12
"Negligence is defined in Instruction No. 7.
"A party is at fault when he is negligent and that negligence caused or contributed to the
event which brought about the claims for damages." (Emphases added.)
In addition, Instruction No. 11 advised jurors: "[DeBrot] further denies that any
act or omission on his part was the cause of any of plaintiffs' claimed damages or
injuries." (Emphasis added.) Instruction No. 14 informed: "If you find Doug Castleberry
is entitled to recover damages, you should allow the amount of money which will
reasonably compensate him for the loss caused by defendant." (Emphasis added.) And
Instruction No. 15 advised: "If you find Susan Kraft or Scott Castleberry are entitled to
recover damages, you should allow the amount of money which will reasonably
compensate them for the loss caused by the defendant." (Emphasis added.)
DeBrot requested four modifications to the instructions to address his causation
concerns. First, he proposed an alternative instruction describing the ways plaintiffs
claimed damages because of his fault. Second, he requested an instruction that "the
12
plaintiff in a medical malpractice case bears the burden of showing not only the
defendant's negligence, but that the negligence caused the plaintiff's injury." (Emphasis
added.) Third, he requested an instruction that "the proximate cause of an injury is that
cause which in natural and continuous sequence produces the injury and without which
the injury would not have occurred," and that
"[c]onduct is the proximate cause of an injury if the conduct is a substantial factor in
bringing about the harm. Conduct is a substantial factor if it has such an effect in
producing the harm as to lead a reasonable person to regard it as a cause of the harm so
that the conduct in question may properly be regarded as being responsible for the
injury."
Fourth, DeBrot requested a comparative fault instruction, which defined "fault" as
negligence that "caused or contributed to the event which brought about the claims for
damages." But unlike the instructions given, DeBrot's would have directed the jury to (1)
determine if any party is at fault; (2) assign percentages of fault to each person found to
be at fault; and (3) assign a total of 100% fault among those individuals. They would
have had the jury consider comparative fault between him, Barbara, and plaintiffs and
assign appropriate percentages of fault to each.
DeBrot also objected that the combination of Instruction No. 12's "contributed to"
language and the absence of a proximate cause definition would imply that any small
contribution might be adequate to find fault.
Court of Appeals Rulings
The panel held the district court erred by using the "caused or contributed to"
language in Instruction No. 12. It noted this phrasing was adapted from PIK Civ. 4th
105.01, which discusses comparative fault. The panel determined Instruction No. 12's use
13
of this phrase was legally inappropriate because comparative fault was inapplicable to the
current case. Castleberry, 2016 WL 1614018, at *8.
Even so, the panel concluded this error was harmless because there was no
reasonable probability it affected the trial's outcome. 2016 WL 1614018, at *9. It
explained the "central issue" was whether DeBrot's negligence caused Barbara's injury. It
further noted plaintiffs' experts testified DeBrot's failure to diagnose stroke led to
Barbara's injury and death, while defendant's experts testified DeBrot did not deviate
from the standard of care. The panel concluded:
"Simply put, the question presented to the jury was whether the defendant caused
Barbara's injury. There was no other source presented that could have contributed to her
injury. As a result, the defendant has failed to show a reasonable probability that the
definition of causation given in [the instruction] affected the outcome of the trial." 2016
WL 1614018, at *9.
The panel rejected DeBrot's claim that the court should have instructed the jury on
proximate cause. It noted the PIK Committee specifically recommends no instruction
defining causation. Given that, the panel concluded the district court did not err in
refusing to give DeBrot's requested proximate cause instructions. 2016 WL 1614018, at
*9.
Standard of Review
"'For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
14
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011) . . . .' [Citation omitted.]" Foster v. Klaumann, 296 Kan.
295, 301-02, 294 P.3d 223 (2013).
Discussion
Because DeBrot objected to the causation instructions and requested alternatives
that he now argues should have been given, he preserved these claims for appeal. See
Foster, 296 Kan. at 302 (holding medical malpractice litigant preserved instructional
error issue by objecting to instructions at trial); Wolfe Electric, Inc. v. Duckworth, 293
Kan. 375, 403, 266 P.3d 516 (2011) (noting failure to raise issue before trial court would
preclude litigant from raising it before appellate court).
To be legally appropriate, "'an instruction must always fairly and accurately state
the applicable law, and an instruction that does not do so would be legally infirm."' State
v. McDaniel, 306 Kan. 595, 615, 395 P.3d 429 (2017) (quoting State v. Plummer, 295
Kan. 156, 161, 283 P.3d 202 [2012]). "If an instruction is legally appropriate and
factually supported, a district court errs in refusing to grant a party's request to give the
instruction." Plummer, 295 Kan. at 162.
"To establish medical malpractice, a plaintiff must show: (1) the health care
provider owed the patient a duty of care, which required that the provider meet or exceed
a certain standard of care to protect the patient from injury; (2) the provider breached that
duty or deviated from the 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. Miller
v. Johnson, 295 Kan. 636, Syl. ¶ 15, 289 P.3d 1098 (2012)." Foster, 296 Kan. at 302.
15
Our caselaw defines proximate cause as
"the cause that in a natural and continuous sequence, unbroken by any superseding cause,
both produced the injury and was necessary for the injury. The injury must be the natural
and probable consequence of the wrongful act. Yount v. Deibert, 282 Kan. 619, 624-25,
147 P.3d 1065 (2006). Individuals are not responsible for all possible consequences of
their negligence, but only those consequences that are probable according to ordinary and
usual experience." Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008).
Proximate cause is ordinarily a factual question to be resolved by the trier of fact.
Cullip v. Domann, 266 Kan. 550, 556, 972 P.2d 776 (1999). But see Hale, 287 Kan. at
324 (noting when "all the evidence on which a party relies is undisputed and susceptible
of only one inference, the question of proximate cause becomes a question of law").
"There are two components of proximate cause: causation in fact and legal
causation. To establish causation in fact, a plaintiff must prove a cause-and-effect
relationship between a defendant's conduct and the plaintiff's loss by presenting sufficient
evidence from which a jury can conclude that more likely than not, but for defendant's
conduct, the plaintiff's injuries would not have occurred. To prove legal causation, the
plaintiff must show it was foreseeable that the defendant's conduct might create a risk of
harm to the victim and that the result of that conduct and contributing causes was
foreseeable." Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 623, 345 P.3d 281 (2015).
DeBrot argues the phrase "or contributed to" in the given instruction permitted the
jury to impose liability on him without finding causation in fact, because "[n]othing in the
ordinary meaning of the word contributed suggests the existence of the legally critical
'but for' requirement." In other words, he asserts the instruction was not legally
appropriate.
16
The panel took a different tack but agreed the instruction was legally
inappropriate. The panel held the error arose because this was not a comparative fault
case. From the panel's perspective, the district court used a definition from a pattern
instruction involving a theory of liability inapplicable to the case. Castleberry, 2016 WL
1614018, at *8-9.
This holding comes to us on review unchallenged by plaintiffs since they did not
cross-petition for review. See Snider, 297 Kan. at 172 (challenge to Court of Appeals'
holding not before Supreme Court on review when issue not raised in petition or cross-
petition). Ordinarily, that would settle the matter. See Friends of Bethany Place v. City of
Topeka, 297 Kan. 1112, 1121, 307 P.3d 1255 (2013) (litigant's failure to cross appeal for
review of claim precluded its consideration). But in this instance, we cannot accept this
conclusion because our logic in rejecting DeBrot's contentions so necessarily undercuts
the panel's rationale that we end up concluding there was no error in the district court's
instruction. See Burnette, 308 Kan. ___, Syl. ¶ 3 ("Any perceived distinction between the
phrases 'causing an event' and 'contributing to an event' is a distinction without a
difference.").
In Burnette, we considered causation instructions substantially similar to those
given in the current case. We concluded they were legally and factually appropriate, and
rejected defense arguments substantially similar to those DeBrot raises. We held the
instructions correctly communicated the cause-in-fact requirement under Kansas law.
Burnette, slip op. at 19 ("[T]he instructions told the jury that to impose liability for [the
decedent's] suicide on either defendant, it would have to find defendant's negligence was
a but-for cause of his death."). We also concluded:
"The 'caused or contributed to' language in Instruction No. 11 permitted the jury
to assign fault only if a defendant's negligence 'ha[d] a share in' producing the injury.
17
[Lollis v. Superior Sales Co., Inc., 224 Kan. 251, 263, 580 P.2d 423 (1978)]. If the jury
believed the injury would have occurred without a defendant's negligence, i.e., the
negligence did not have a share in producing the injury, the instructions told the jury to
assign no fault to that defendant." Burnette, slip op. at 20.
We could make these same points here when addressing whether the error the
panel found was harmless. But in the end, since we would logically circle back to the real
point, i.e., it was not error for the district court to give the instructions, it is simpler to
acknowledge the instructions given were legally appropriate. And since there was no
error, there necessarily was no reasonable probability the jury imposed fault based on
anything less than a "but-for" causal relationship between DeBrot's negligence and the
injuries and damages.
Regardless, we note under this case's facts, the error DeBrot claims could not
possibly have required reversal. The causation evidence was that treatment within the
standard of care probably would have averted the stroke. For the jury to conclude
DeBrot's negligence had anything to do with the stroke, it would have to have concluded
the stroke would not have occurred if DeBrot had recognized it was imminent and taken
appropriate measures to address the situation. We affirm on this issue.
IMPROPER CLOSING ARGUMENT
DeBrot next argues he deserves a new trial because plaintiffs' counsel improperly
suggested during closing that the verdict would have either a beneficial or adverse impact
on the community depending on how the jury found. Counsel tied the verdict to whether
the jury wanted "safe medicine or unsafe medicine." We agree this was error but hold it
was harmless.
18
Additional Facts
In closing arguments, plaintiffs' counsel listed the "available and affordable tools
and tests and treatments that were not used or performed" during the two visits in
December. He claimed these were "designed . . . to prevent tragedies such as occurred in
this matter." Counsel faulted DeBrot for not listening to Barbara's carotid artery for signs
of stenosis and for not using a blood pressure monitor. He argued a carotid Doppler is
"completely safe" and noninvasive. He criticized DeBrot for failing to consult a
neurologist about the "safest thing" to do under the circumstances. And he blamed
DeBrot for not simply admitting Barbara to the hospital for tests, which he argued would
have been "the safest thing to do." Counsel also claimed DeBrot prevented Barbara from
"participation in her own safety" by failing to talk to her about the risks of not running
the tests. Finally, he faulted DeBrot for deciding to "guess instead of test," failing to fully
explore Barbara's symptoms, and failing "to use the common sense test" when he
dismissed Barbara's concern about having a stroke without investigation.
This standard of care argument culminated with counsel's remark: "When we
establish standards of care in this case, as a jury you'll want to decide if you want safe
medicine or unsafe medicine." (Emphasis added.) Defense counsel objected at this point,
but the court overruled it because "[t]he jury [had] been instructed to follow the
instructions." Plaintiffs' counsel then returned to the "safety" theme several more times,
by asserting:
"The evidence is clear. DeBrot broke several basic and foundation cornerstones
of the rules of safe medical practice which resulted in the care being below the standard
of care. . . .
"We presented evidence that doctors should always provide patients a margin of
safety. We presented evidence that doctors must always err on the side of safety. Don't
19
drive right on the edge of the road. Give yourself a margin of safety. Don't follow the
truck right behind it. Give yourself a margin of safety. . . . And then you can never
needlessly endanger a patient. . . .
"And what was the danger of sending her for the carotid duplex test? No
danger. . . . What was the danger of picking up the phone and saying this woman thinks
she has a stroke, doctor neurologist, here's what I've done, do you think I've missed any
steps . . . [?]"
Counsel summarized why the jury should find DeBrot liable by stating, "So
Barbara Castleberry's life story is in your hands. You'll either right a wrong or you'll say
with your verdict that DeBrot was practicing safe and reasonable [medicine] and within
the standard of care." Later, during a narrative about Barbara's life leading up to the
stroke, counsel said "a reasonable doctor who wants to err on the safe side" would ask
"what is the cause of this[?] And if he rushes to judgment and says it's carpal tunnel
syndrome, he better remember, you know, you can have carpal tunnel syndrome and a
TIA at the same time, I haven't ruled anything dangerous out, I have played God, I have
chosen this disease for this woman without being safe, no margin of safety, no erring on
the safe side."
In rebuttal, plaintiffs' counsel quoted extensively from Yatsu's testimony
including, "[t]o say that dizziness and all of [Barbara's] symptoms are not stroke related"
was not "safe medicine." He argued, "Our effort here was to educate you, not to scare
you, as somebody says, but to educate you so you could make a fair, appropriate, safe
decision about whether or not he acted within the standard of care." Counsel then told the
jury,
"Here's a piece of information we believe we've provided to you, not to scare you
but to put you on notice as to the knowledge that Dr. DeBrot had. 60.2 percent of strokes
20
occur in women. 60.2 percent occur in women. When you go to the doctor's office, did
you know 60.2 percent were going to be on your side?"
Counsel reminded the jury Barbara asked DeBrot about stroke risk, but there was
no mention of that inquiry in her medical records. He argued if DeBrot went on vacation
the next doctor would not know Barbara had been concerned about stroke. He asked the
jury, "How is that safe and prudent care?"
Then, counsel addressed DeBrot's failure to recheck Barbara's blood pressure after
a high initial reading during the December 19 consultation. He argued the medical
literature established this should have been done, "[a]nd would anybody think that they'd
want the doctor to treat somebody against the guidelines? Is that what you would think
would be reasonable, prudent, safe, on-the-side-of-the-patient medicine . . . ?"
In analyzing the closing arguments on appeal, the panel did not decide whether the
"safe medicine or unsafe medicine" comment was improper but concluded instead it "was
arguably a prohibited golden rule argument." Castleberry, 2016 WL 1614018, at *11.
Nevertheless, the panel reasoned reversal was not required, even if the comment was
improper, because DeBrot "failed to argue, let alone establish a likelihood, that this
improper remark . . . changed the result of the trial." 2016 WL 1614018, at *11.
Standard of Review
In civil cases, "counsel are granted latitude in making arguments. '"This court has
consistently followed the general rule against imposing narrow and unreasonable
limitations upon argument of counsel made to the jury."'" Bullock v. BNSF Railway Co.,
306 Kan. 916, 942, 399 P.3d 148 (2017). But if counsel injects error into the trial by
exceeding that latitude, a court must determine whether that error prejudiced a party's
21
right to a fair trial. 306 Kan. at 943. The test is whether "'there is a reasonable probability
that the error will or did affect the outcome of the trial in light of the entire record.'" 306
Kan. at 943 (quoting Siruta v. Siruta, 301 Kan. 757, 772-73, 348 P.3d 549 [2015]).
Discussion
DeBrot argues the panel erred by not reversing the jury verdict and ordering a new
trial because the "safe medicine or unsafe medicine" argument improperly asked the jury
to base its decision on achieving a social goal and was not harmless since it was tied to
plaintiffs' litigation strategy. Plaintiffs argue the comments were proper because they
were directed at the jury's decision on the standard of care, and there was evidence
DeBrot violated that standard of care by practicing unsafe medicine.
The court addressed a similar comment in Bullock. There, plaintiff's counsel
argued:
"'Justice is an ideal that is given meaning by your values. You decide what justice is
based on what you feel and what values you have, and you learn those values within your
community. And your verdict, whatever your verdict is, the justice you decide upon will
reflect your values and the values of this community. It will speak to the values of how an
employer should treat an employee, what kinds of conditions of work and employment
. . . a person in this community is entitled to, and that's really important stuff.' (Emphases
added.)" 306 Kan. at 942.
The Bullock court concluded the comment was improper because the "'community
values'" reference "'suggested the jury could improperly decide the case based on
something other than the law contained in the instructions.'" 306 Kan. at 945. It compared
the comment to an erroneous jury instruction in a different case, telling the jury to "'act
upon [its] conscientious feeling about what is a fair result in this case and acquit the
22
defendant if you believe that justice requires such a result.'" 306 Kan. at 944 (quoting
State v. McClanahan, 212 Kan. 208, 209, 510 P.2d 153 [1973]). The court further
reasoned that commentary about the verdict's reflection of the community's "'values of
how an employer should treat an employee'" was improper because "[j]uries are tasked
with deciding cases based on the evidence presented by counsel and the law instructed by
the court, not with protecting their communities through their verdicts." 306 Kan. at 945.
In Sledd v. Reed, 246 Kan. 112, 114, 785 P.2d 694 (1990), the court held it was
improper to argue "'[i]f we hold Doctor Reed responsible and other doctors responsible
who do their best and who make their best judgments as they treat these kinds of cases,
no one will answer these calls.'" The court reasoned the argument was calculated to
inflame jurors' passions or prejudices by predicting their verdict's consequences. The
argument was "inappropriate, [and] had no bearing upon the issues before the jury." 246
Kan. at 116-17.
The "safe medicine or unsafe medicine" argument is similar to those in Bullock
and Sledd. It invited the jury to determine whether DeBrot's conduct met the standard of
care based on whether it desired "safe medicine or unsafe medicine," instead of the
evidence and the law. The evidence included expert testimony that, e.g., DeBrot's failure
to "err on the safe side" contributed to the experts' opinions that he deviated from the
standard of care. But it did not go to the jury's values about whether they wanted "safe
medicine or unsafe medicine." As phrased, the comment implied the jury's decision could
reach beyond the confines of the case and impact medical care elsewhere. As presented in
this case, the comments were error. See Biglow v. Eidenberg, 308 Kan. ___, ___ P.3d ___
(this day decided), slip op. at 29 (holding district court within discretion to prohibit
during closing argument a "broad and abstract statement that a physician's job is to 'take
care of people and help people, but really the safety'" because it did nothing to establish a
deviation from the standard of care).
23
The next question is whether there is a reasonable probability this error affected
the verdict. The panel concluded reversal was not required because DeBrot failed to
argue the remark prejudiced him. DeBrot argues the panel improperly placed the burden
on him and was wrong about whether he asserted prejudice, directing our attention to his
Court of Appeals brief. Plaintiffs argue any error was harmless.
We agree with DeBrot that the panel misallocated the burden of proving
harmlessness. In Bullock, the court took its standard of review from the reasonable
probability test articulated in State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011).
Bullock, 306 Kan. at 944. In analogous situations using the test in the jury instruction
context, we have made clear the party benefiting from the error has the burden to show
harmlessness when the other party objected to an erroneous instruction. Siruta, 301 Kan.
at 772. In this case, if anyone benefitted from the improper argument it was plaintiffs, so
they have the burden to demonstrate the error was harmless.
That said, we hold the panel correctly concluded any error was harmless. In Sledd,
the improper argument that liability would deprive the community of doctors did not
require reversal because the matter was "thoroughly tried" by competent counsel; the
central issue was whether the doctor committed malpractice; the trial was several days
long and consisted of over 600 pages of testimony; the experts were well respected; the
jurors heard the testimony and asked questions during deliberations that showed they
understood the issues; and the jury was instructed to disregard arguments not based on
the evidence. 246 Kan. at 117-18; see also Thompson v. KFB Ins. Co., 252 Kan. 1010,
1028-29, 850 P.2d 773 (1993) (holding counsel's erroneous closing arguments were
harmless because "[t]he charges of counsel misconduct . . . certainly are not of the same
magnitude as those complained of in" Walker v. Holiday Lanes, 196 Kan. 513, 413 P.2d
63 [1966], and Glynos v. Jagoda, 249 Kan. 473, 819 P.2d 1202 [1991]).
24
DeBrot argues the comment about patient safety "represented the linchpin of
plaintiffs' entire litigation theory." He argues this theme was the "final step in a 'Reptile
Litigation' strategy," which he argues is designed to encourage juries to decide cases
"based upon fear, generated by plaintiff's [sic] counsel, that a verdict in favor of the
defendant will harm the safety of the community, and thus the juror." The differences
between Sledd and this case lend some merit to DeBrot's argument.
While the Sledd court viewed the improper commentary as divorced from that
case's central issue, here the remark went directly to its core—whether DeBrot violated
the standard of care. It did so by tying the answer to the jurors' personal values on how
"safe" medical practice should be. Plaintiffs' counsel urged the jury to make a "safe
decision," which lends credence to DeBrot's claim that the remark was strategic. And the
district court's failure to sustain DeBrot's objection did nothing to mitigate the prejudice
from that remark.
Nevertheless, we conclude there is no reasonable probability this error affected the
trial's outcome in light of the entire record. The call to decide the case on improper
grounds was much more subtle than those in Sledd and Bullock. And when made, the
court promptly noted the jury had been instructed to follow the court's instructions. Those
instructions properly directed the jury to base its standard-of-care findings on expert
testimony, which focused on the care DeBrot rendered rather than community values.
Finally, and as discussed with the next issue, "patient safety" was a theme embedded
throughout the expert testimony—frequently without objection. This tied the "safety"
theme—mentioned during closing arguments by both sides—within the context of
explaining that testimony. Accordingly, the error was harmless.
25
PROPER ADMISSION OF EXPERT TESTIMONY
The final issue is whether plaintiffs' expert testimony impermissibly redefined the
legal duty a physician owes to a patient. We hold there was no error.
Additional Facts
DeBrot identifies five instances in which the district court overruled objections to
testimony he believed redefined the standard of care. Except for the fifth instance,
DeBrot objected on grounds the questions misstated the legal standard. In the fifth, he
objected that the witness was not designated as an expert.
In the first instance, the court ruled it would permit a question-and-answer
exchange from DeBrot's deposition to be read in which plaintiffs' counsel asked DeBrot
"[o]n December 6th, were you permitted to needlessly endanger patients?"
Second, the court allowed Miser to testify he took "into consideration the caveat
that a doctor is to never needlessly endanger a patient," must provide a margin of safety,
and must err on the side of safety in his "opinion that [DeBrot] deviated from the
standard of care . . . ."
Third, the court permitted plaintiffs' counsel to ask defense expert Davis how it
was "safer for [Barbara] not to have" her carotid artery listened to and whether that was
"a safer way to treat the patient." Davis responded, "It was appropriate." Plaintiffs'
counsel continued, asking "[w]as it safer?" Davis responded that safety is important, but
everything was appropriate and within the standard of care because listening to the
carotid arteries was not expected and "not considered good medicine" at each patient
contact.
26
Fourth, during plaintiffs' cross-examination of defense expert Kaplan, the court
permitted plaintiffs' counsel to elicit testimony that Kaplan "err[ed] on the conservative
safe side" in arriving at his opinions.
And, fifth, the court permitted a physician who treated Barbara before DeBrot to
testify he was "trying to avoid needlessly endangering" her while treating her.
Although these are the particular instances that drew DeBrot's objections, the
panel noted,
"the record reflects numerous occasions where similar evidence was introduced . . .
without objection. Indeed, Dr. Miser testified repeatedly, without objection, that the
standard of care required the defendant to take 'safety steps,' that safety was 'the number
one factor in treating people,' that the standard of care required the defendant to have
good reason to 'deviate from these safety rules' and fail to obey 'safety features,' and that
the standard of care involved 'the safe practice of medicine.'" Castleberry, 2016 WL
1614018, at *14.
The panel concluded the district court did not err by permitting these questions
because they went to the standard of care, which is defined by experts, while the duty of
care is defined by law. The panel held the evidence "defined the applicable standard of
care, as an expert witness is allowed—and required—to do," so the district court did not
abuse its discretion in admitting it. Castleberry, 2016 WL 1614018, at *15.
Standard of Review
Evidentiary rulings follow a multistep analysis:
27
"'"Generally, when considering a challenge to a district judge's admission of
evidence, an appellate court must first consider relevance. Unless prohibited by statute,
constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-
407(f). Evidence is relevant if it has any tendency in reason to prove any material fact.
K.S.A. 60-401(b). To establish relevance, there must be some material or logical
connection between the asserted facts and the inference or result they are intended to
establish. [Citation omitted]."' Mooney, 283 Kan. at 620 (quoting State v. Gunby, 282
Kan. 39, 47, 144 P.3d 647 [2006]).
"'[T]he question of whether evidence is probative is judged under an abuse of
discretion standard; materiality is judged under a de novo standard.' Shadden, 290 Kan. at
817 (citing State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 [2008]). The next step is to
determine which additional rules of evidence or other legal principles govern
admissibility. 'On appeal, this conclusion is reviewed de novo.' 290 Kan. at 817 (citing
Boldridge v. State, 289 Kan. 618, Syl. ¶ 10, 215 P.3d 585 [2009]). '"[E]videntiary rules
governing admission and exclusion may be applied either as a matter of law or in the
exercise of the district judge's discretion, depending on the contours of the rule in
question."' Mooney, 283 Kan. at 620 (quoting Gunby, 282 Kan. at 47)." Manhattan Ice &
Cold Storage v. City of Manhattan, 294 Kan. 60, 69-70, 274 P.3d 609 (2012).
"Typically the admission of expert testimony is reviewed under an abuse of
discretion standard and depends on finding that the testimony will be helpful to the jury."
Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 444, 228 P.3d 1048 (2010).
Error in the admission or exclusion of evidence does not warrant reversal unless
"there is a 'reasonable probability that the error will or did affect the outcome of the trial
in light of the entire record.'" State v. McCullough, 293 Kan. 970, 981-82, 270 P.3d 1142
(2012).
28
Discussion
DeBrot argues the judgment must be reversed because the district court admitted
expert testimony he claims redefined the duty of care by supplanting reasonable care
under the circumstances with a more onerous duty, e.g., to "err on the conservative, safe
side." He claims the testimony was not "relevant to questions of fact involving the legally
defined standard of care" and instead redefined the duty of care "into a duty to do
'whatever is safest.'"
At the time of trial, K.S.A. 60-456(b) provided,
"If the witness is testifying as an expert, testimony of the witness in the form of opinions
or inferences is limited to such opinions as the judge finds are (1) based on facts or data
perceived by or personally known or made known to the witness at the hearing and (2)
within the scope of the special knowledge, skill, experience or training possessed by the
witness."
The panel did not perform a relevance analysis, but instead framed the issue as
whether the district court abused its discretion admitting the opinion testimony "under
K.S.A. 2015 Supp. 60-456." Castleberry, 2016 WL 1614018, at *14. The panel reasoned
that since expert testimony was required to prove the standard of care, testimony that this
standard involved "'err[ing] on the side of safety'" did not "create a new legal standard but
instead defined the applicable standard of care, as an expert witness is allowed—and
required—to do." 2016 WL 1614018, at *15. The panel's analytical path was sound.
When a district court permits a witness to testify as an expert, "the court cannot
regulate the factors or mental process used by the expert in reaching his opinion or
conclusion on the case. The factors and mental processes used by the expert 'can only be
challenged by cross-examination testing the witness' credibility.'" Pope v. Ransdell, 251
29
Kan. 112, 123, 833 P.2d 965 (1992) (quoting City of Bonner Springs v. Coleman, 206
Kan. 689, 695, 481 P.2d 950 [1971]).
In Schlaikjer v. Kaplan, 296 Kan. 456, 469, 293 P.3d 155 (2013), the trial court
granted a motion in limine that "testimony based on physician treatment preferences"
could not be introduced on direct examination, but might be explored on cross-
examination to test credibility. The Schlaikjer court affirmed the district court's decision
"insofar as it addressed physician preference testimony admitted on direct examination
for the purpose of proving the applicable standard of care." 296 Kan. at 470. The
Schlaikjer court relied on Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44,
510 P.2d 190 (1973), in which the court affirmed a directed verdict based on plaintiff's
failure to adduce testimony sufficient to establish the applicable standard of care or
breach when the expert testified only what his practices were with respect to patients in
circumstances similar to the plaintiff's. But the expert "stopped short of testifying that
defendant's methods constituted unsound medical practice," so the evidence was
"'insufficient to establish . . . the "degree of learning and skill ordinarily possessed by
members of his profession and of his school of medicine in the community where he
practices or similar communities."'" Schlaikjer, 296 Kan. at 470 (quoting Karrigan, 212
Kan. at 50).
In Pope, the conservator for a minor child born with developmental disabilities
sued the mother's doctor for negligent obstetrical care. A defense expert testified the
injuries were caused by the mother's drug use. On cross-examination, plaintiff's counsel
attempted to ask whether it was "possible" for various conditions to cause injury.
Defendant objected that an expert's opinion testimony must be based on reasonable
medical probabilities, not possibilities. The district court sustained the objection. On
appeal, the court drew a distinction between opinions that must be "within a reasonable
medical probability," and the "factors or mental processes used by the expert in reaching
30
his opinion or conclusion on the case." 251 Kan. at 123. The court held the cross-
examination would have been appropriate, so the district court erred in prohibiting it. 251
Kan. at 124.
The testimony to which DeBrot objects as misstating the legal standard is like the
testimony in Pope. It tended to show—albeit in general terms—the conduct required by
the legal duty flowing from DeBrot to Barbara. It did not tend to show DeBrot was
subject to a standard other than the standard applicable to a physician in like
circumstances. Moreover, the claim that it redefines the standard of care to impose a duty
of ultra-vigilance is dubious. Like the cross-examination questions in Pope, and unlike
the physician-preference testimony in Karrigan, the questions were asked within the
context of the witnesses' overarching opinions that DeBrot deviated from the standard of
care. The questions about "margin of safety" and "erring on the safe side" illustrate the
experts' mental processes in reaching their conclusions.
Because this testimony was within the scope of permissible expert testimony, the
district court did not abuse its discretion admitting it.
Neither was there an abuse of discretion overruling DeBrot's objection that a
treating physician should have been designated as an expert before being permitted to
testify he was "trying to avoid needlessly endangering" her while treating her. The
testimony related to that doctor's own actions and did not purport to establish the standard
of care DeBrot owed to Barbara under the circumstances or whether DeBrot deviated
from the standard. Even if inadmissible for some other reason, the testimony was not
objectionable for lack of an expert witness designation. See K.S.A. 60-404 (specific
ground for objection must be stated); State v. Robinson, 306 Kan. 1012, 399 P.3d 194
(2017) (holding appellant could not argue on appeal grounds for exclusion of evidence on
appeal that were not included in trial objection).
31
Affirmed.
***
BEIER, J., concurring: I agree with the majority's ultimate outcome and much of
its reasoning on this case. Still, I must write separately because I cannot agree with its
application of our Rule 8.03 (2018 Kan. S. Ct. R. 53)—soon to be amended for overdue
clarification and improvement—to prevent consideration of other issues the defendant
pursued before the Court of Appeals. Ultimately these other issues cannot carry the day
for the defendant, but I believe he has a right to have them analyzed by the full court.
Under the current version of Rule 8.03(h)(1), this court may choose when it grants
a petition for review to limit the issues it will consider. We did not make that choice in
this case. In such a situation, as quoted by the majority, "the issues before the Supreme
Court include all issues properly before the Court of Appeals which the petition for
review . . . allege[s] were decided erroneously by the Court of Appeals." In addition, the
rule provides, "In civil cases, the Supreme Court may, but need not, consider other issues
that were presented to the Court of Appeals and that the parties have preserved for
review." (2018 Kan. S. Ct. R. 56.)
As the majority also acknowledges, defendant Brian L. DeBrot, M.D., filed a
petition for review that specifically said that he believed "all of the issues raised in this
appeal should be considered." He then said that specific issues "particularly" merited
review. It is only this latter set of issues that the majority is willing to entertain.
The majority is correct that DeBrot failed to "list, separately and without
argument," the issues that did not fall into the category of "particularly" meriting review
32
as "additional issues decided by the district court which were presented to, but not
decided by, the Court of Appeals, which the petitioner wishes to have determined if
review is granted" under Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54). But I do not think
that this minor deviation is deserving of the ultimate punishment of being ignored. It may
be a bit inconvenient for us to review DeBrot's brief filed before the Court of Appeals
and the panel's decision to determine the additional issues his petition for review was
referring to when he said he believed that "all of the issues raised in this appeal should be
considered," but mere inconvenience is hardly a worthy rationale for the majority's
rigidity.
Thus I would reach the merits on all of the preserved issues that DeBrot raised in
the Court of Appeals. His petition for review's reference to his belief that all issues
should be considered plus his list of issues "particularly" meriting review qualified under
Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54) as a "statement of the issues decided by the
Court of Appeals of which review is sought," and we should not treat certain issues as
"not presented or fairly included in the petition" for review. Our procedural stinginess is
simply unwarranted, particularly when we take up an issue on which the plaintiffs did not
file a cross-petition, i.e., the Court of Appeals panel's decision that causation instructions
were erroneous.
The additional issues on which DeBrot sought review are not nothing. They are
numerous and, in at least a few cases, meritorious. They are:
• Whether a jury instruction should have been modified to say that, in a
medical malpractice case, causation must be established through expert
testimony.
• Whether it was error to instruct the jury that plaintiffs were not at fault as a
matter of law.
33
• Whether plaintiffs' counsel's closing argument about DeBrot probably
being rushed during Barbara Castleberry's December 19, 2007, visit
because he wanted to get to a holiday party was error.
• Whether plaintiffs' counsel unnecessarily called for two bench conferences
during defense counsel's closing argument.
• Whether plaintiffs' counsel's use of a denial in response to a pretrial request
for admissions in an effort to impeach DeBrot was error.
• Whether plaintiffs' counsel's questions regarding informed consent were
error.
• Whether it was error to permit plaintiffs' counsel to read a sentence from a
letter written by an author of an article regarded by an expert witness as
authoritative, when the letter was solicited by plaintiffs' counsel and was
not admitted into evidence.
• Whether it was error to permit plaintiffs' counsel's cross-examination to
exceed the scope of direct testimony.
• Whether several other pieces of evidence should have been excluded or
lines of questioning prohibited, some because they allegedly violated limine
orders; these issues focused on questioning about another doctor's personal
treatment preference, a mention of DeBrot's credibility, a line of
questioning about conversations between defense counsel and a defense
expert, an expert's reference to the annual number of deaths attributable to
medical error, questions posed to Castleberry's son about overheard
conversations among health care personnel, and other questions suggesting
that there was an inappropriate relationship between DeBrot and a nurse.
• Whether 17 exhibits should have been admissible under the learned treatise
exception to the hearsay rule.
• Whether cumulative error requires reversal and remand for a new trial.
34
The first of these issues untouched by the majority concerns the district judge's
refusal to modify Instruction 8 at DeBrot's request to say that a medical malpractice case
not only requires expert testimony to establish the standard of care but also to establish
causation. DeBrot is correct that this is Kansas law. See Sharples v. Roberts, 249 Kan.
286, 292, 816 P.2d 390 (1991); Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307,
756 P.2d 416 (1988). He is also correct that even an otherwise factually and legally
appropriate instruction can be misleading and erroneous if it is incomplete. The district
judge's refusal to modify the instruction was error, and the Court of Appeals panel was
wrong when it employed an alternative, nonmeritorious argument made by DeBrot on
this issue as a straw man to rule in plaintiffs' favor.
I would not hold that this error is reversible standing alone. My review of the trial
record persuades me that causation was simply not the fulcrum of this case. Rather, it
turned on identification of the standard of care and on whether DeBrot breached it.
Nearly all of defense counsel's lengthy closing argument was focused on standard of care
and breach; it included a very brief mention of damages near its conclusion. On
causation, defense counsel was silent. He no doubt appreciated that there was never a
question about Castleberry's subsequent stroke causing all of her and her heirs' damages.
He correctly focused on the true question: Should DeBrot have seen the stroke coming
and reacted in a way that would have prevented it or minimized its ultimately disastrous
consequences?
Regarding the issue of whether plaintiffs' counsel's argument about DeBrot's
probable hurry to a holiday party was error, I would agree with the Court of Appeals
panel that it was. The comment was unsupported in the evidence and effectively
encouraged the jury to rely on impermissible inference stacking. State v. Banks, 306 Kan.
854, 859, 397 P.3d 1195 (2017) (inference stacking prohibited); State v. Akins, 298 Kan.
35
592, 601, 315 P.3d 868 (2014) (error to comment on facts not in evidence). I would hold
that this error is not reversible standing alone.
I would part company from the Court of Appeals on whether plaintiffs' counsel
should have been permitted to read from the letter from the author of an article regarded
as authoritative by an expert. A letter solicited by counsel is not a learned treatise, even if
the letter is written by a learned individual whose work is respected and relied upon by an
expert witness. See K.S.A. 60-460(cc); see also State v. Baldwin, 36 Kan. 1, 17, 12 P. 318
(1886) (authors do not write under oath; "grounds of belief and processes of reasoning
cannot be tested by cross-examination"), cited in Wilson v. Knight, 26 Kan. App. 2d 226,
229-30, 982 P.2d 400 (1999). Again, however, I would hold that this error is not
reversible standing alone.
I would hold that additional error occurred when plaintiffs' counsel questioned
Miser about his preference for whether he or a nurse performed a review of a patient's
systems. The Court of Appeals initially said that the record was insufficient to support
this appellate claim, but, if there was error, it was not reversible. I agree with the second
part of its holding because the error was cured in part by counsel's rephrasing of a
question after a defense objection; the error is not reversible standing alone.
I would also agree with the Court of Appeals that a reference to the number of
deaths attributable to medical error by expert William Miser, M.D., was a violation of the
district court's limine order. Again, I would hold that this error is not reversible standing
alone. It was brief and isolated, and no participant in the trial ever returned to it.
This brings me to cumulative error. Walker v. Holiday Lanes, 196 Kan. 513, 520,
413 P.2d 63 (1966) (Cumulative error is to be viewed "in relation to the record in its
entirety" and necessitates reversal when the "various [errors] have so permeated and
36
tainted the entire proceedings that [a party] has been deprived of the fair trial to which
every litigant is entitled.").
I would hold that the combination of the five errors I have listed with the error
identified by the majority—plaintiffs' counsel's improper linkage between the verdict and
whether the jury wanted "safe medicine or unsafe medicine"—does not require reversal
under the cumulative error doctrine. But I think this case presents a close call, in part
because I am also troubled by what a lawyer from an earlier generation might refer to at
least two instances of "sharp practice" by plaintiffs' counsel. Although these instances fell
short of the standard for an appellate court to identify them as legal error, they
nevertheless would have had a tendency to undermine the overall fairness of the trial.
Plaintiffs' counsel inappropriately questioned Castleberry's son about the fact that there
were things he could not say in front of the jury, when the limitation on his testimony
originated in a proper order in limine. This was too clever by half, as any alert juror
would inevitably suspect that important, and possibly damning, information was being
concealed. And plaintiffs' counsel's questions about any relationship between DeBrot and
the nurse are simply not amenable to characterization as intended to elicit relevant
evidence.
LUCKERT and JOHNSON, JJ., join the foregoing concurrence.
37