In its opinion filed on August 24, 2018, the Supreme Court of the State of Kansas (“Kansas Supreme Court”) held: any perceived distinction between the phrases “causing an event” and “contributing to an event” is a distinction without a difference; plaintiffs’ counsel improperly urged the jury to decide the case on concerns other than the law and the evidence but there is no reasonable probability the verdict would have been different without this error; and, 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 the Kansas medical malpractice defendant breached the standard of care.
The Underlying Facts
The Kansas medical malpractice case involved the alleged negligent care by the defendant primary care physician that resulted in the decedent suffering a debilitating stroke. A year after her stroke, the decedent fell and suffered a fatal head injury.
During an appointment with her primary care physician before the decedent suffered her stroke, she complained to her primary care physician that she had left hand numbness, tingling in the hand, increasing difficulty picking things up, difficulty turning pages, dizziness, and foot numbness. The decedent wondered if she was having a stroke yet the defendant primary care physician diagnosed her as having carpal tunnel syndrome.
The Kansas medical malpractice wrongful death lawsuit alleged that the decedent’s stroke was avoidable had the defendant acted within the standard of care during the decedent’s visits to him before her stroke because (1) he would have discovered the blockage in the decedent’s carotid artery by listening to the artery or ordering an ultrasound or Doppler examination; or (2) he would have placed the decedent on aspirin therapy, which reduces the ischemic stroke risk.
The Kansas medical malpractice jury found the defendant primarey care physician at fault and awarded the decedent’s estate, her husband, and children economic and noneconomic damages totaling $907,484.69.
The defendant appealed, arguing: (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 the decedent; and (5) the court erred in making various evidentiary rulings.
Kansas Supreme Court Opinion
The Kansas Supreme Court held: “The causation evidence was that treatment within the standard of care probably would have averted the stroke. For the jury to conclude [the defendant’s] negligence had anything to do with the stroke, it would have to have concluded the stroke would not have occurred if [the defendant] had recognized it was imminent and taken appropriate measures to address the situation. We affirm on this issue.”
With regard to the defendant’s argument that 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, and thereby tied the verdict to whether the jury wanted “safe medicine or unsafe medicine,” the Kansas Supreme Court agreed this was error (it invited the jury to determine whether the defendant’s conduct met the standard of care based on whether it desired “safe medicine or unsafe medicine,” instead of the evidence and the law) but held it was harmless.
The Kansas Supreme Court further held: “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.”
Source Castleberry v. DeBrot, No. 111,105.
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