Williams-Davidson v. Lui ( 2024 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,946
JEANNINE WILLIAMS-DAVIDSON and JEFFREY DAVIDSON,
Appellants,
v.
DR. NASON LUI, STORMONT-VAIL HEALTHCARE, INC.,
STORMONT-VAIL, INC., d/b/a COTTON-O'NEIL, and OTHER DOE CORPORATIONS,
Appellees.
SYLLABUS BY THE COURT
When an appellate court is equally divided, the lower court's ruling stands.
Review of the judgment of the Court of Appeals in an unpublished opinion filed July 28, 2023.
Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Oral argument held January 31, 2024.
Opinion filed March 8, 2024. Judgment of the Court of Appeals reversing the district court stands.
Judgment of the district court is reversed, and the case is remanded with directions.
Jason W. Belveal, of Belveal Law Office Inc., of Holton, argued the cause and was on the briefs
for appellants.
Cynthia J. Sheppeard, of Goodell, Stratton, Edmonds & Palmer, LLP, of Topeka, argued the
cause, and Cameron S. Bernard, of the same firm, was with her on the briefs for appellees.
PER CURIAM: Jeannine Williams-Davidson went to Stormont-Vail Hospital in
Topeka to have an adrenal gland removed, but Dr. Nason Lui removed part of her
pancreas instead. Another procedure and an extended hospital stay were required. The
hospital allegedly charged Williams-Davidson for both surgeries, her extra hospital stay,
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and all follow-up care. About two years later, she and her husband sued Dr. Lui and the
hospital for medical malpractice, other common-law claims, and violations of the Kansas
Consumer Protection Act, K.S.A. 50-623 et seq.
Because jurors and lay witnesses are not conversant with medical science, Kansas
courts have long required a plaintiff to offer expert testimony to support a medical-
malpractice allegation. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406,
Syl. ¶ 17, 228 P.3d 1048 (2010); Tefft v. Wilcox, 6 Kan. 46, 59, 1870 WL 458 (1870). But
because medical professionals do not have "a monopoly on common sense," Kansas
courts have also long recognized a "common knowledge exception," which allows a
plaintiff to proceed without expert testimony. Webb v. Lungstrum, 223 Kan. 487, 490,
575 P.2d 22 (1978); see Pettigrew v. Lewis, 46 Kan. 78, 81-82, 26 P. 458 (1891). That
exception applies when the "diagnosis, treatment, and care of a patient is so obviously
lacking in reasonable care and the results are so bad that the lack of reasonable care
would be apparent to and within the common knowledge and experience" of an average
person. Webb, 223 Kan. at 490.
Williams-Davidson and her husband believed the common-knowledge exception
applied, so they pursued their claims without retaining an expert witness. The district
court disagreed and granted summary judgment to the defendants. But on appeal, a
majority of a Court of Appeals panel held that the exception applied to Dr. Lui's removal
of the wrong organ. In the panel majority's view, "when a surgeon misidentifies and
removes a healthy organ, leaving the organ intended to be operated on untouched, the
outcome is so patently bad that the lack of reasonable care can be apparent and within the
common knowledge of a layperson to establish a breach of the standard of care."
Williams-Davidson v. Lui, No. 124,946, 2023 WL 4832666, at *9 (Kan. App. 2023)
(unpublished opinion). The panel majority therefore reversed the district court's order and
remanded for further proceedings. 2023 WL 4832666, at *11-12.
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The defendants petitioned our court for review. They argued that the panel
majority had erred by applying the common-knowledge exception and by remanding
rather than evaluating other challenges the defendants had raised. Justice Rosen recused
from any participation. We granted review, but we are equally divided. Justice Biles,
Justice Wall, and Justice Standridge would vote to affirm the panel majority and reverse
the district court's order granting summary judgment to the defendants. Chief Justice
Luckert, Justice Stegall, and Justice Wilson would vote to reverse the panel's decision
and affirm the district court's judgment. When an appellate court is equally divided, the
lower court's ruling stands. See State v. Buchhorn, 316 Kan. 324, 325, 515 P.3d 282(2022); see also Kan. Const. art. 3, § 2 ("[T]he concurrence of a majority of the justices
sitting and of not fewer than four justices shall be necessary for a decision.").
Judgment of the Court of Appeals reversing the district court stands. Judgment of
the district court is reversed, and the case is remanded with directions.
ROSEN, J., not participating.
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