Bowens v. Greenwood County Hospital ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,532
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ROY L. BOWENS,
Appellant,
v.
GREENWOOD COUNTY HOSPITAL, NANCY MCKENZIE, PA,
PETIE SCHWERDTFEGER, MD, and JANIS ANDERSON, ARNP,
Appellees.
MEMORANDUM OPINION
Appeal from Greenwood District Court; MICHAEL E. WARD, judge. Opinion filed July 16, 2021.
Affirmed.
Jerry K. Levy and Katherine L. Kirk, of Law Offices of Jerry K. Levy, P.A., of Lawrence, for
appellant.
Peter G. Collins, of Hinkle Law Firm, LLC, of Lenexa, for appellees Greenwood County
Hospital and Nancy McKenzie, PA.
Diane L. Waters, of Bennett, Bodine & Waters, P.A., of Shawnee, for appellee Petie
Schwerdtfeger, MD.
Matthew P. Sorochty and Anthony M. Singer, of Woodard, Hernandez, Roth & Day, L.L.C., of
Wichita, for appellee Janis Anderson, ARNP.
Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.
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PER CURIAM: Roy L. Bowens sued Greenwood County Hospital, Petie
Schwerdtfeger, MD., Nancy McKenzie, PA, and Janis Anderson, ARNP (defendants) for
negligence. Bowens alleged negligent treatment over the course of several days for a
gangrenous infection which worsened by the hour. Defendants moved for summary
judgment, arguing that Bowens failed to meet his burden to show how much tissue
damage, if any, defendants caused. Because the trial court properly awarded summary
judgment for lack of causation evidence, we affirm.
FACTS
Bowens' care and treatment
On January 18, 2016, at 1:21 a.m., Bowens went to the emergency room (ER)
complaining of pain in his perineal/groin area. His vital signs included elevated blood
pressure, elevated heart rate, and fever. He rated his pain as 10 out of 10. The treating
registered nurse (RN) found a one-quarter centimeter open area at the left perineal area
just below the scrotal sac. Then, defendant Janis Anderson, ARNP, examined Bowens.
An advanced registered nurse practitioner (ARNP) is a licensed independent
practitioner who provides primary and/or specialty nursing and medical care in
ambulatory, acute, and long-term settings. The process of care of an ARNP includes
assessment of health status, diagnosis, development of a treatment plan, implementation
of the plan, and follow up and evaluation of the patient status.
Anderson examined Bowens and found the abscess that the RN described, an
opening one-quarter centimeter in diameter. Anderson's clinical impression or diagnosis
was "'small cellulitis abscess left perineal area.'" After giving Bowens an intravenous
(IV) antibiotic, Anderson prescribed Bactrim, a broad-spectrum antibiotic. Anderson
discharged Bowens, instructing him to follow up as needed.
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On the morning of January 20, 2016, Bowens went to see Dr. Mark Basham
because Bowens was not getting any better. Dr. Basham advised Bowens to go to the ER
for evaluation.
Later that day, Bowens went to the Greenwood County Hospital ER. An RN
charted that Bowens had a draining abscess at the base of his left scrotum and was having
fever and chills at home. A blood count showed his white blood cell count was 20,140,
not the 12,100 when he was in the ER on January 18, 2016.
Nancy McKenzie, P.A. examined Bowens on January 20, 2016. McKenzie noted
that Bowens had a draining abscess at the base of his scrotum and experienced fevers and
chills. McKenzie cleaned the wound area, obtained cultures, and prescribed morphine and
an antibiotic. McKenzie's diagnosis was scrotal abscess, fever, leukocytosis, and failed
outpatient treatment. McKenzie admitted Bowens as an inpatient to Greenwood County
Hospital at 3:05 p.m. on January 20.
From 4:15 p.m. on January 20 through 3:23 p.m. on January 22, several treating
RNs documented Bowens' condition becoming worse. Bowens' condition was Fournier's
gangrene, a bacterial infection that eats the flesh, in lay terms. This necrotizing fasciitis
of the perineal, genital, or perianal areas affects mostly men. The fasciitis goes along the
deep fascial planes and is not always obvious to the superficial skin. Initially, the
appearance of the skin may mask the extent of any subdermal gangrene and this may lead
to a delay in any diagnosis being reached.
The notes from the treating RNs show the progression of Bowens' condition. At
5:01 p.m. on January 20, Bowens was "admitted to the floor with abscess in his scrotum.
It is too sensitive to touch at this time." At 5:40 p.m., an RN "injected 5 mg iv MS for
having sharp and throbbing pain in his private area." At 5:58 p.m., the same RN "[n]oted
even hardness on suprapubic area and groins and upper thighs from the abscess." At
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6:35 p.m., the same RN "[n]oted a very tiny opening on LT side of scrotum, and
[squeezed] some pus out and cleaned up . . . . It's very offensive smell." At 11:48 p.m.,
"pt complained of burning in groin area . . . some foul smelling drainage grey brown in
color."
On January 21, 2016, at 9:29 a.m., an RN "[squeezed] his scrotum and dark
pinkish pus coming out. Noted new opening on the top of the penis. The hardness has
gone in thighs but he [is] still having the hardness on the penis and scrotum and pubic
area."
Dr. Schwerdtfeger saw and treated Bowens at approximately 11:00 a.m. on
January 21, 2016. At 4:32 p.m., an RN "[c]leaned his private area again. Noticed that skin
on the penis is peeling." At 9:30 p.m., an RN reported that Bowens "[c]ontinues to have
green-brown drainage from perineal wound. Very foul smell from perineal area. Noted
open skin areas at base of penis." At 11:46 p.m., the treating RN reported the following:
"Unsure source of foul odor. I had this gentleman's care in the ER on Sunday and at this
time unable to see the wound opening at the L perineal area that was there then. Scrotal
and penile edema noted. Very foul smell coming [from the] perineal area."
On January 22, 2016, at 6:45 a.m., the treating RN reported as follows: "The 'skin
sloughing' at base, anterior side of penis continues w/ brownish-tan colored drainage.
Very foul smelling." At 8:12 a.m., Bowens had "significant swelling to penis, scrotum
and suprapubic region. There is [a] moderate amount of sloughing skin from penis and
scrotum. There is a large area of necrotic skin noted to anterior portion of penis at the
shaft. This area is [approximately] 1/2 dollar size. There is a very foul odor that has
overcome the entire room. . . . Lab reports WBC 16.21 this [morning]."
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When Bowens insisted, Dr. Schwerdtfeger ordered him transferred to Via Christi
St. Francis (Via Christi) on January 22, 2016, where he was diagnosed with Fournier's
gangrene. Bowens underwent surgical debridement on January 23, 2016.
In an operative report on January 23, 2016, one surgeon recorded the following:
"He had extensive injury to about 50% of his left hemiscrotum. He had significant
necrosis of the skin and almost the entire dorsum of his penis. The shaft skin was
involved and necrotic." Another operative report stated the following: "Approximate
area of debridement 12 x 7 x 3 cm from the left hemiscrotum and groin, 8 cm x 4 cm
from the penile shaft, 6 cm of undermined tissue from the left perineum, 6 cm of
undermined tissue from the left proximal groin."
Plaintiff's expert witness, Dr. David W. Fairbanks, M.D.
Bowens filed a petition alleging negligence. Bowens designated expert witnesses
Dr. Fairbanks and Colleen Andreoni, APRN. Dr. Fairbanks summarized defendants' care
of Bowens as follows:
"Mr. Bowen[s] had spread of tissue infection and death that resulted in protracted pain
and disability that could have been avoided, because his condition was not recognized
early nor treated appropriately. . . .
"The causative effect of these three providers' and the staff at Greenwood County
Hospital's failure to detect and treat early Mr. Bowen[s'] sepsis and Fournier's gangrene,
was to place not only his standard of care, but his fate back in the 16th century. The great
20th and 21st century advances of superior antibiotics, early surgical debridement,
diagnostic testing and the technology of hospitals are wasted if hospital staff fail to
follow extensively published international evidence-based standards of care and their
own hospital protocols and physicians do not advance their knowledge and skill when it
is offered so close to home to prevent a tragic avoidable spread of infection and loss of
vital tissue."
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Defendants did not dispute Dr. Fairbanks' assertion that the spread of infected and
necrotized tissue could have been avoided by early diagnosis and treatment. "Fournier's
gangrene is an infection of the genital areas that rapidly spreads along the fascial planes
of this area." The progression of Fournier's gangrene can be very rapid and can include
many different symptoms.
During depositions, Dr. Fairbanks testified that Fournier's gangrene is a surgical
emergency that requires immediate surgical intervention. He testified that Bowens
already had Fournier's gangrene before he went to the Greenwood County Hospital ER
the first time, on January 18, 2016. Dr. Fairbanks testified that when Bowens went to the
ER on January 18, 2016, he already needed surgical debridement, antibiotics, fluids, and
inpatient care. According to Dr. Fairbanks, antibiotic treatment alone would not treat
Fournier's gangrene.
Dr. Fairbanks testified that if Dr. Schwerdtfeger had come in on January 21, 2016,
at approximately 11:00 a.m., assessed Bowens, had concern for Fournier's gangrene, and
immediately arranged for transfer to Via Christi, then she would have met the standard of
care.
Dr. Fairbanks asserted that delays in the diagnosis and treatment caused injury in
the form of additional tissue loss. But Dr. Fairbanks could not quantify the degree of
tissue lost because Dr. Schwerdtfeger did not transfer Bowens to Via Christi
immediately. Dr. Fairbanks also could not say how much additional tissue loss occurred
because of delays attributed to all defendants. Instead, he testified that such estimations
of additional tissue loss were outside the scope of his expert report and those estimations
were for a surgeon to comment on.
Dr. Fairbanks could not specify any injury or damage to Bowens. When asked to
comment on the extent of tissue removed, Dr. Fairbanks could not say how much tissue
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Bowens could have retained if he had surgery sooner. Dr. Fairbanks explained the
following:
"[T]his is a time-dependent infection, and things spread. So logically the sooner
you catch it—and that's why all of the documentation says it's a surgical emergency. The
sooner we catch it, the less tissue is lost.
"So can I quantify and say 51 percent less? No, I can't do that. Okay? But I can
say definitively that he would have had less loss of tissue based on the fact there was 24
hours of delay."
Plaintiff's expert witness, Colleen Andreoni, APRN
Andreoni's expert report included a statement that Anderson deviated from the
standard of care in how she administered and prescribed antibiotics. After one dose of an
IV antibiotic, Anderson prescribed only Bactrim. Andreoni's report stated that "[t]hese
deviations from the standard of care resulted in the spread of infection and delayed
definitive treatment for Mr. Bowens' Fournier's gangrene resulting in prolonged pain,
hospitalization, and recovery process." At her deposition, Andreoni testified that "the
infection most likely spread due to a deviation from the standard of care."
But Andreoni also testified that Anderson treated Bowens appropriately if
Fournier's gangrene was present. Further, Andreoni had no criticisms of Anderson's
antibiotic treatment, stating that "I think the Ceftriaxone she gave was a good antibiotic."
In addition, the blood culture tests taken on January 20, 2016, indicated that the
antibiotics Anderson prescribed were preventing the infection from spreading to the
blood, that is, preventing sepsis. Andreoni had no opinion on how any delay in diagnosis
affected Bowens' treatment or outcome. Andreoni testified that Bowens could not have
avoided debridement surgery with an earlier diagnosis. She had no opinions on how the
infection spread from Bowens' first ER visit on January 18 going forward. Andreoni
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could not say with a reasonable degree of medical certainty that the deficiencies in
treatment she noted had any effect on the outcome of Bowens' treatment.
Defendant Anderson moved to strike Andreoni's causation opinion, asserting that
Andreoni was not qualified to give causation opinions. The trial court granted the motion,
finding that causation was beyond the scope of Andreoni's qualifications.
Procedural history and notice of appeal
Defendants each moved for summary judgment, arguing that Bowens could not
meet his burden on causation. After a hearing on the motions, the trial court decided the
preliminary matter of whether Bowens could pursue a claim of loss of chance of a better
recovery at trial. The trial court stated the following:
"Beyond absence of pleading the loss of chance claim is the lack of expert
medical testimony to support such claim. Such expert testimony could be in the form of a
definitive percentage of loss of chance. Or it could be in the form of a range of
percentage of loss of chance. Either way there must be expert medical testimony to guide
a jury's determination that plaintiff lost his chance for a better recovery. As defendants
point out, plaintiff expert David Fairbanks, M.D. was not able to state in his deposition
testimony how much additional tissue loss the plaintiff suffered due to the conduct of
various defendants. Accordingly, there is no expert medical witness support for a loss of
chance claim. It would not be proper for this Court to allow the jury to come up with its
own percentage based simply upon a layman's review of the medical records."
After that ruling, the trial court granted summary judgment for all defendants.
Bowens moved the trial court to reconsider summary judgment. The trial court
denied the motion because it provided the court with no new information or grounds or
legal authority on which to base an amended decision.
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Bowens timely appealed the following trial court order: "Order Denying
Plaintiff's Motion for Reconsideration of the Order granting defendant's motion for
summary judgment, which was entered on January 7, 2020, to the Court of Appeals of the
State of Kansas." Bowens did not list any other orders in his notice of appeal.
Bowens filed a "Motion to Amend and Clarify Notice of Appeal" with this court,
which this court granted. Bowens sought to "make clear the intent of the appellant that
his appeal is being taken from both orders issued by the trial court—the order granting
Defendants' motions for summary judgment and the final order denying the plaintiff's
motion for reconsideration." In granting Bowens' motion, this court acknowledged that
the amended notice of appeal raised jurisdiction concerns and ordered the parties to brief
jurisdiction.
ANALYSIS
Does this court have jurisdiction over all issues raised by Bowens?
Defendants argue that Bowens' notice of appeal was not broad enough to cover the
issues which he argues in his appellate brief. Bowens contends that his appeal from the
trial court's order on a motion to reconsider summary judgment also gives this court
jurisdiction over the summary judgment itself. Because the order on the motion to
reconsider referenced the issues now on appeal, the notice of appeal in this case was
sufficient to confer jurisdiction on this court to decide those issues.
Subject matter jurisdiction may be raised at any time, whether for the first time on
appeal or even on the appellate court's own motion. Whether jurisdiction exists is a
question of law over which this court's scope of review is unlimited. In re Care &
Treatment of Emerson, 306 Kan. 30, 33-34, 392 P.3d 82 (2017).
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The right to appeal is entirely statutory and is not contained in the United States or
Kansas Constitutions. Wiechman v. Huddleston, 304 Kan. 80, Syl. ¶ 1, 370 P.3d 1194(2016).
"Appellate jurisdiction is defined by statute; the right to appeal is neither a vested
nor a constitutional right. The only reference in the Kansas Constitution to appellate
jurisdiction demonstrates this principle, stating the Kansas Supreme Court shall have
'such appellate jurisdiction as may be provided by law.' Kan. Const., art. 3, § 3. Under
this provision, this court may exercise jurisdiction only under circumstances allowed by
statute; this court does not have discretionary power to entertain appeals from all district
court orders. [Citations omitted.]" Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597,
609-10, 244 P.3d 642 (2010).
See State v. Gill, 287 Kan. 289, 293-94, 196 P.3d 369 (2008).
A notice of appeal must specify the parties taking appeal, designate the judgment
or part of the judgment appealed from, and name the appellate court to which the appeal
is taken. K.S.A. 2020 Supp. 60-2103(b). "'It is a fundamental proposition of Kansas
appellate procedure that an appellate court only obtains jurisdiction over the rulings
identified in the notice of appeal.'" Associated Wholesale Grocers, Inc. v. Americold
Corporation, 293 Kan. 633, 637, 270 P.3d 1074 (2011); In re N.U., 52 Kan. App. 2d 561,
567, 369 P.3d 984 (2016). An appellate court should not be overly technical in its
construction of notices of appeal. Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373(2015).
Here, Bowens' notice of appeal sought review only of "the Order Denying
Plaintiff's Motion for Reconsideration of the Order granting defendant[s'] motion for
summary judgment, which was entered on January 7, 2020." "Utilization of 'catch-all'
language, such as 'and from each and every order or ruling entered against the appellant'
or 'from all underlying adverse rulings' in a notice of appeal had been recognized as
10
sufficiently inclusive to perfect appeals from otherwise unspecified rulings." Gates v.
Goodyear, 37 Kan. App. 2d 623, 627-28, 155 P.3d 1196 (2007). Bowens did not include
catch-all language.
Nevertheless, our Supreme Court's guidance in Fuller shows that the content of
the order appealed from makes a difference. Raymond Fuller filed a K.S.A. 60-1507
motion alleging ineffective assistance of counsel at his trial for rape, aggravated sexual
battery, and aggravated battery. In a November 2011 order, the trial court ruled that
Fuller's counsel was not ineffective for failing to put on a particular witness. Fuller did
not appeal this order. Then, in June 2012, the trial court denied Fuller's K.S.A. 60-1507
motion. Fuller's notice of appeal specified only the June 2012 order, without any catch-all
language or other reference to the November 2011 order deciding the failure to call a
witness issue. On appeal, this court believed the specific language in Fuller's notice of
appeal would have to be "'substantively rewritten'" to give this court jurisdiction over the
witness issue. 303 Kan. at 492.
Our Supreme Court disagreed. The notice of appeal explicitly covered the June
2012 order and that order referenced the earlier decisions of the trial court. The Fuller
court pointed to paragraph 3 of the trial court's order, which read as follows: "'On
September 30, 2011, a preliminary, nonevidentiary hearing was held and this court
summarily denied movant relief on his assertion of cumulative error and several
assertions of ineffective assistance of trial counsel. See Order Granting Movant a Limited
Evidentiary Hear[]ing on His K.S.A. 60-1507 Motion.'" (Emphasis added.) 303 Kan. at
492-93. The Fuller court ruled that the appellate courts had jurisdiction to decide the
witness issue because Fuller appealed the June 2012 order and the June 2012 order
referenced the witness issue.
Here, the content of the trial court's order also controls the issues appealed. One
reason the trial court gave for denying the motion to reconsider was simply that its
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decision was correct, stating the following: "A second look at the same material has not
altered this Court's view that summary judgment was appropriate." This reference to a
previous ruling is stronger than the reference in Fuller. In Fuller, the trial court
referenced only "several assertions of ineffective assistance" without specifying the issue
of whether counsel should have called a particular witness. 303 Kan. at 493. Here, the
court's reasoning on the motion to reconsider hinged on the correctness of its previous
summary judgment decision. The trial court similarly discussed expert witness causation
testimony in the same order, making a notice of appeal from that order sufficient to
confer jurisdiction to decide the expert witness issues as well.
Further, as a practical matter, the issues involved here are significantly interlinked
and possibly inseparable. All defendants cite State v. Grant, 19 Kan. App. 2d 686, 875
P.2d 986, in their briefs, but Grant undermines their jurisdiction arguments because
Grant is very dissimilar from this case. In Grant, the appellant filed a notice that he was
appealing the trial court's denial of his motion to modify sentence. Grant later attempted
to add the issues of whether the trial court properly imposed a prison sentence and
whether the factual basis was sufficient to support his guilty plea. This court only
considered the modification of sentence issue and dismissed the two issues which were
not in the original notice of appeal, that is, the imposition of sentence and the guilty plea.
19 Kan. App. 2d at 691-92. But those issues were separate and distinct from the
modification of sentence issue. Indeed, whether a court should have modified a sentence
is a different question from if the court correctly imposed the sentence in the first place.
And if a guilty plea was properly entered is entirely different from the other two issues.
Thus, the defendants' reliance on the Grant decision is misplaced.
Here, though, the sequential nature of the rulings cannot be ignored. First, the trial
court struck one expert witness' causation testimony. Then, the trial court ruled that
Bowens could not meet his burden on causation and granted summary judgment to
defendants. Finally, the trial court denied reconsideration, saying that summary judgment
12
was appropriate. Given the Russian nesting doll structure of these issues, this court would
need to consider each ruling to meaningfully review the trial court's denial of the motion
to reconsider.
Did the trial court err in granting summary judgment?
Bowens argues that the trial court did not properly evaluate Dr. Fairbanks'
testimony on causation before granting summary judgment. He contends that the trial
court combined two separate issues: whether injury occurred because of negligence and
how much injury occurred because of negligence. Defendants assert that tissue loss had
two possible causes: the natural disease process of Fournier's gangrene or the allegedly
negligent delay in treatment. Defendants argue that Bowens cannot establish which tissue
was lost from each cause. Because the expert witness testimony could not establish
causation, the trial court properly granted summary judgment.
"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, admissions on file, and supporting affidavits show that no genuine issue
exists as to any material fact and the moving party is entitled to judgment as a matter of
law. The district court must resolve all facts and reasonable inferences drawn from the
evidence in favor of the party against whom the ruling [is] sought. When opposing
summary judgment, a party must produce evidence to establish a dispute as to a material
fact. In order to preclude summary judgment, the facts subject to the dispute must be
material to the conclusive issue in the case. Appellate courts apply the same rules and,
where they find reasonable minds could differ as to the conclusions drawn from the
evidence, summary judgment is inappropriate. Appellate review of the legal effect of
undisputed facts is de novo. [Citation omitted.]" GFTLenexa, LLC v. City of Lenexa, 310
Kan. 976, 981-82, 453 P.3d 304 (2019).
Summary judgment in a negligence action is generally proper if the only questions
presented are questions of law. See Manley v. Hallbauer, 308 Kan. 723, 726, 423 P.3d
480 (2018). "'[S]ummary judgment should be granted with caution in negligence
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actions.'" Hammond v. San Lo Leyte VFW #7515, 311 Kan. 723, 727, 466 P.3d 886(2020).
"A party cannot avoid summary judgment on the mere hope that something may
develop later during discovery or at trial." Likewise, "[m]ere speculation is insufficient to
avoid summary judgment." Kincaid v. Dess, 48 Kan. App. 2d 640, 656, 298 P.3d 358(2013).
Here, the trial court ruled that Bowens had presented no evidence on causation. In
its order, the trial court noted that Dr. Fairbanks testified that defendants' negligence
caused harm to Bowens. But Dr. Fairbanks also testified that he could not specify the
quantity of tissue lost because of defendants' negligence. The trial court ruled that
Bowens could not support an essential element of his medical malpractice case and
granted summary judgment for defendants.
The elements of a medical malpractice claim are: (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 applicable standard of care; and (3) the patient was injured; and (4) the
injury proximately resulted from the health care provider's breach of the standard of care.
Biglow v. Eidenberg, 308 Kan. 873, 887, 424 P.3d 515 (2018).
The trial court ruled that Bowens presented no evidence on the fourth element,
causation, and granted summary judgment. "'Negligence is never presumed, and may not
be inferred merely from a lack of success or an adverse result from treatment. The
plaintiff in a medical malpractice case bears the burden of showing not only the doctor's
negligence, but that the negligence caused the injury.' [Citations omitted.]" Hare v.
Wendler, 263 Kan. 434, 440, 949 P.2d 1141 (1997). "Generally, expert testimony is
required to establish the appropriate standard of care and causation because such matters
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are outside the knowledge of the average person without specialized training." Perkins v.
Susan B. Allen Memorial Hospital, 36 Kan. App. 2d 885, 888, 146 P.3d 1102 (2006). The
trial court ruled that Dr. Fairbanks' expert testimony did not establish the causal link that
Bowens needed to survive summary judgment. In its summary judgment order, the trial
court selected the following testimony from Dr. Fairbanks' depositions:
"Q. What's the injury, the loss of tissue?
"A. Correct.
"Q. Okay. How much additional tissue did he lose that he wouldn't have already lost as
of January 18th?
"A. And you would have to refer to the surgeon's report, and that's outside the scope of
my report.
"Q. So you are not able to say here today how much additional tissue loss there was,
based on the alleged delays that you've attributed to the defendants; is that correct?
"A. Correct.
"Q. And it's your belief that had those things been done (immediate surgery, transfer to
different hospital, ultrasound, CAT scan), then there would have been some tissue
saved with regard to the surgical debridement that was later done at Via Christi St.
Francis?
"A. That's what I've said.
"Q. But you are unable to tell us how much tissue would have been saved?
"A. Well, I think based on the spread of the superficial infection, it certainly may not
have involved the penis. But it's hard to say because this infection spreads through
the fascial planes and is not always obvious.
"Q. So what I said is correct. You are unable to say to a reasonable degree of medical
certainty—in fact, you've not even seen enough Via Christi records to be able to
comment on it, right?
"A. That's correct. I did see the operative report, but that's you know, for a surgeon to
comment on.
"Q. All right. And with respect that—we've already discussed this—but with respect to
your opinions regarding the 20th, you believe that there may have been tissue
spared if the surgery would have occurred earlier; but you cannot provide or
quantify the amount of tissue that would have been spared; is that correct?
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"A. I believe I stated there would have been tissue spared, but I can't quantify.
"Q. So are you able to say that the extent of Mr. Bowens' surgery at Via Christi St.
Francis would have been any different had Dr. Petie [Schwerdtfeger] transferred
Mr. Bowens on the 21st?
"A. Well, this is a time-dependent infection, and things spread. So logically the sooner
you catch it—and that's why all of the documentation says it's a surgical
emergency. The sooner we catch it, the less tissue is lost. So can I quantify and say
51 percent less? No, I can't do that. Okay? But I can say definitively that he would
have had less loss of tissue based on the fact that there was 24 hours of delay.
"Q. You are just not able to say the degree of less loss of tissue?
"A. Correct."
According to Dr. Fairbanks, the various defendants at various points failed to
identify Fournier's gangrene. Each delay in diagnosis and treatment allowed the gangrene
to spread and necrotize additional tissue. But Dr. Fairbanks could not estimate what
tissue loss was caused by delay, whether the delay is attributable to any one defendant or
to all of them.
Importantly, the trial court ruled first on Bowens' request to pursue a loss of
chance of recovery before the court ruled on the motion for summary judgment. The trial
court noted that our Supreme Court first recognized a cause of action for the loss of
chance of a better recovery in Delaney v. Cade, 255 Kan. 199, Syl. ¶ 3, 873 P.2d 175(1994): "The loss of chance cause of action, although grounded in negligence, relies
upon a lesser or reduced standard of causation than the traditional standard applied in
negligence cases."
The Delaney court noted that Kansas already recognized loss of chance of survival
actions when the patient dies.
"The loss of chance theory arises in medical malpractice cases wherein the
patient is suffering a preexisting injury or illness which is aggravated by the alleged
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negligence of the doctor or health care provider to the extent that the patient dies, when
without negligence there might have been a substantial chance of survival or the actual
recovery is substantially less than it might have been absent the alleged malpractice. In
essence, the theory comes into play when the traditional probability standard of causation
is not met." 255 Kan. at 203.
The Delaney court surveyed other jurisdictions, remarking that some recognized
actions for loss of chance of survival and for loss of chance of a better recovery, but some
jurisdictions did not recognize either claim. The Delaney court stated: "[W]e have found
no jurisdiction which has applied the theory to one type of case and denied it in the
other." 255 Kan. at 209. The Delaney court then recognized both causes of action. 255
Kan. at 211.
In its survey of other jurisdictions, the Delaney court gave the example of Borgren
v. United States, 716 F. Supp. 1378 (D. Kan. 1989). In Borgren, Army physicians had
negligently failed to diagnose breast cancer, which led to a three-year delay in
discovering and treating the cancer. Margaret Borgren underwent a modified radical
mastectomy and then sued, alleging loss of chance of survival. Borgren produced expert
witnesses who explained that a single cancer cell divides into two, two cells divide into
four, etc. Thus, the "doubling time" for cancer growth is crucial as tumors grow
exponentially. These experts estimated Borgren's doubling time between 80 and 210
days. 716 F. Supp. at 1381 (referencing chart correlating doubling time to size of tumor).
The trial court determined from expert medical testimony that the delay resulted in
Borgren's loss of between a 30 and 57 percent chance of survival for 10 years. The
Delaney court found Borgren persuasive because the facts uniquely dealt with a patient
who survived whereas the other cases cited involved the death of the patient. Further,
Borgren was awarded damages for disfigurement, pain, suffering, and mental anguish in
addition to the decreased chance of survival. This outcome led the Delaney court to
conclude the following: "In essence, Borgren is more akin to a loss of better recovery
17
case than to a loss of survival case even though the court referred to it as a loss of chance
to survive." Delaney, 255 Kan. at 209.
But Bowens did not plead a loss of chance of recovery, even though his case is
like Borgren. For example, Borgren lost breast tissue when she underwent a mastectomy
because of a delay in diagnosing breast cancer. Similarly, Bowens lost skin tissue when
he underwent a surgical debridement allegedly caused because of a delay in diagnosing
Fournier's gangrene. As trial approached, Bowens asserted an intent to pursue a claim of
loss of chance of recovery, but the trial court did not allow it. Bowens conceded that he
did not plead a claim of loss of chance of recovery, but he argued that the claim was
inherent to a standard medical malpractice case, and he did not need to plead it. In
disagreeing with Bowens' position, the trial court ruled that a claim of loss of chance of
recovery was a distinct action from a standard medical malpractice claim. Thus, the trial
court ruled that it was too late for Bowens to amend his pleadings to bring this action.
Bowens has not appealed from this ruling.
Then the trial court granted summary judgment in favor of the defendants for lack
of evidence of a causal link between defendants' alleged negligence and injury or harm
caused to Bowens. Expert testimony is generally required in medical malpractice cases to
establish the applicable standard of care and to prove causation, except where lack of
reasonable care or existence of proximate cause is apparent to an average layperson from
common knowledge or experience. Puckett v. Mt. Carmel Regional Med. Center, 290
Kan. 406, 435-36, 228 P.3d 1048 (2010). So summary judgment is proper where there is
no expert testimony in the record to show that the health care provider caused the injury.
Giddens v. Via Christi Regional Medical Center, Inc., No. 110,856, 2014 WL 6676154,
at *4-5 (Kan. App. 2d 2014) (unpublished opinion).
In Dr. Fairbanks' deposition testimony, he testified that Fournier's gangrene was a
surgical emergency that required immediate surgical debridement. Also, he testified that
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Bowens already had Fournier's gangrene when he went to the Greenwood County
Hospital ER on January 18, 2016. Thus, the damages Bowens may recover were those
damages suffered by him due to the tissue loss incurred because of the delay in
performing the debridement surgery.
Nevertheless, Dr. Fairbanks could not define the harm caused Bowens because he
was unable to say how much tissue loss Bowens had suffered because of the delay in
performing the debridement surgery. As a result, Dr. Fairbanks could not determine
causation for any amount of tissue loss Bowens had suffered due to defendants'
negligence. "Recovery may not be had where the cause of the injury is too remote and
speculative and where the alleged resulting damages are too conjectural and speculative
to form a sound basis for measurement." Hoard v. Shawnee Mission Medical Center, 233
Kan. 267, 277, 662 P.2d 1214 (1983). Dr. Fairbanks did not state, either in his report or in
testimony, an amount of tissue loss that could be causally linked to any delays or to any
single delay in Bowens' treatment. Thus, the trial court properly granted summary
judgment in favor of defendants.
Did the trial court err in striking causation testimony?
Bowens argues that the trial court erred in striking Andreoni's causation testimony.
The trial court ruled that the complex medical issues of causation were beyond the
common knowledge of the average juror and Andreoni's qualifications.
Admission of evidence involves several legal considerations: determining
relevance, identifying and applying legal principles including rules of evidence, and
weighing prejudice against probative value. See Biglow, 308 Kan. at 892.
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An appellate court reviews the admission or exclusion of opinion testimony under
K.S.A. 2020 Supp. 60-456 for an abuse of discretion. See In re Care & Treatment of
Cone, 309 Kan. 321, 325, 435 P.3d 45 (2019).
Appellate review is de novo when the trial court's admission of expert testimony is
based upon statutory interpretation. Bullock v. BNSF Railway Co., 306 Kan. 916, 921,
399 P.3d 148 (2017).
In 2014, legislative amendments adopted the expert testimony standards of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-94, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993). See K.S.A. 2020 Supp. 60-456. Under the Daubert standard,
the appellate court reviews de novo whether the trial court actually performed its
gatekeeper role "and whether it applied the proper standard in admitting expert
testimony." Smart v. BNSF Railway Co., 52 Kan. App. 2d 486, 493, 369 P.3d 966 (2016).
"Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238(1999), teaches that Daubert is not talismanic; it simply means that before admitting
expert testimony, the court must insure the testimony '"is not only relevant, but reliable.'"
Kumho Tire, 526 U.S. at 147." Smart, 52 Kan. App. 2d at 493.
Appellate courts review the trial court's performance of its gatekeeper role in its
decision to admit or exclude the testimony for abuse of discretion. See In re Care &
Treatment of Cone, 309 Kan. at 332.
A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact.
Biglow, 308 Kan. at 893.
Bowens retained Andreoni as an expert witness. Andreoni is an APRN and a
doctor of nursing practice. Andreoni testified that defendant Anderson, ARNP, failed to
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diagnose Bowens' necrotizing fasciitis and testified that Anderson's negligence caused the
spread of infection. Anderson moved to strike Andreoni's testimony, arguing that the
medical issues were beyond the scope of her training and expertise.
The trial court ruled on Anderson's motion as follows:
"1. The Court finds that in the last sentence on page 3 of Colleen Andreoni's report,
Colleen Andreoni expresses a causation opinion.
"2. The Court finds Nurse Andreoni is not qualified to give any causation opinions in
this case.
"3. The Court finds this case involves complex medical processes which are beyond
the common knowledge of the average juror and Nurse Andreoni's qualifications."
The last sentence on page three of Andreoni's report reads as follows: "These
deviations from the standard of care resulted in the spread of infection and delayed
definitive treatment for Mr. Bowens' Fournier's gangrene resulting in prolonged pain,
hospitalization, and recovery process."
For the present purpose only, we will assume Bowens has shown that the trial
court erred in striking Andreoni's causation testimony. What effect did this error have on
the outcome in this case? Andreoni's report and testimony suffered from the same
deficiency as Dr. Fairbanks' report and testimony. Neither expert can quantify the amount
of tissue loss Bowens suffered because of the delay in treating him.
For example, Andreoni testified that Anderson deviated from the standard of care
in several ways. But in all her criticisms, Andreoni could not say to a reasonable degree
of medical probability to what extent did Anderson's actions caused injury or harm to
Bowens. Further, Andreoni's report did not have any opinions on how the infection
spread. Andreoni was not aware of any surgeries Bowens had because of the alleged
negligence. She had no opinion on how any alleged delay in diagnosis affected Bowens'
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treatment or his outcome. And she did not think that surgical debridement could have
been avoided. Thus, an earlier diagnosis would have meant that a surgical debridement
would have occurred earlier. But Andreoni is unable to opine how much tissue loss
Bowens would have suffered had the surgical debridement been performed on
January 18, 2016.
So even assuming the trial court erred in striking Andreoni's testimony, this error
was harmless because Bowens has failed to create a triable issue of fact on causation.
None of Andreoni's statements would have brought Bowens closer to establishing
causation―that the harm or injury would not have occurred but for Anderson's conduct.
Thus, the trial court properly granted summary judgment in favor of Anderson.
Did the trial court err in denying the motion to reconsider?
In his motion to reconsider, Bowens presented no new information or grounds or
legal authority on which to base an amended decision. Bowens simply restates the
evidence that the trial court cited in its summary judgment but insists that it establishes
causation. But the evidence only shows that delay in treatment may have caused an
amount of tissue loss which is undetermined, if not indeterminable. If the nonmoving
party does not produce evidence to establish an essential element of his or her claim, then
the movant is entitled to summary judgment as a matter of law. Dozier v. Dozier, 252
Kan. 1035, 1041, 850 P.2d 789 (1993); see Waste Connections of Kansas, Inc. v. Ritchie
Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013). Here, the trial court correctly granted
summary judgment for failure to establish causation. Therefore, the trial court correctly
denied Bowens' motion to reconsider.
For the preceding reasons, we affirm.
Affirmed.
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