Opinion
111,035.
10-17-2014
David HOWE, Mary Howe Duclos, Carl Howe, and Floyd Howe, Appellants, v. William FREUND, M.D., Appellee.
Jonathan K. McCoy, of MKL, P.C., of Kansas City, MO, for appellants. Thomas L. Theis and James D. Oliver, of Foulston Siefkin LLP, of Topeka, for appellee.
Jonathan K. McCoy, of MKL, P.C., of Kansas City, MO, for appellants.
Thomas L. Theis and James D. Oliver, of Foulston Siefkin LLP, of Topeka, for appellee.
Before POWELL, P.J., McANANY, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
David Howe, Mary Howe Duclos, Carl Howe, and Floyd Howe, the plaintiffs, appeal the district court's grant of summary judgment in favor of Dr. William Freund, the defendant, in their medical malpractice and wrongful death case. They claim the district court erroneously granted summary judgment to Dr. Freund even though they had presented expert testimony from another physician that created a dispute of material facts regarding a breach of the standard of care and causation. We affirm, concluding, as did the district court, that the testimony of the plaintiffs' expert lacked a foundation in generally accepted scientific principals and was not admissible on the issues of the standard of care and causation.
Facts
Ruth Howe, an 80–year–old woman, was admitted to Mercy Regional Hospital on February 7, 2008, by her primary care physician, Dr. Keith Wright, M.D., for congestive heart failure and atrial fibrillation. Dr. Freund was asked to consult on the case. Howe also suffered from numerous other conditions, including diabetes and hypertension, all placing her at an increased risk of stroke. Dr. Freund prescribed a course of Coumadin, a blood thinner, to treat Howe's atrial fibrillation. Dr. Freund's objective in prescribing the Coumadin was to slow Howe's heart rate and anticoagulate her blood to treat the increased risk of stroke that Howe's atrial fibrillation and congestive heart failure had created.
After discharge from the hospital, Howe was sent to follow up with Dr. Wright, who was to monitor her anticoagulation and Coumadin levels. On February 11, 2008, Howe met with Dr. Wright to test her INR. INR stands for the International Normalized Ratio, which is a measure of the time it takes blood to form a clot. A higher number indicates a longer clotting time. Levels between 2.0 and 3.5 are accepted as a therapeutic anticoagulation status. On that day, the test measured Howe's INR at 2.5.
On March 10, 2008, Howe again saw Dr. Freund. He wanted to perform an electrocardioversion but wanted to know what Howe's INR was beforehand. Howe's daughter, a registered nurse, had told the doctor her mother's level was within the therapeutic range when she last saw Dr. Wright. Nevertheless, Dr. Freund was concerned about performing the procedure if Howe's INR was too low, as electrocardioversion with a low INR carries the risk of thrombotic stroke. He checked it again before doing the procedure. That test revealed a level of 11.6. Dr. Freund performed the procedure and soon thereafter Howe suffered a hemorrhagic stroke and died.
The plaintiffs, the children of Howe, filed suit for wrongful death and medical negligence against Dr. Freund and Dr. Wright. They claimed negligence on the part of Dr. Freund in performing an electrocardioversion on a patient with an elevated INR level and in failing to monitor her levels. The claims against Dr. Wright were eventually dismissed.
During discovery, the parties took several depositions. The autopsy physician, Dr. Ivan Damjanov had issued a letter stating he did not believe Dr. Freund's electrocardioversion played any role in Howe's death. In his deposition, he testified he could not see how an electrocardioversion could cause the type of stroke Howe suffered, noting that in every textbook he had reviewed, the type of hemorrhage suffered by Howe was primarily caused by her underlying hypertension, with her anticoagulation therapy playing a contributing role.
Dr. Freund stated in his deposition that he did not believe that electrocardioversion was contraindicated by a high INR level. He also testified he believed that electrocardioversion does not cause bleeding. Dr. Freund did state he was concerned with Howe's INR at 11.6, noting that a level that high placed her at an increased chance of bleeding, but he also stated that Howe's atrial fibrillation, age, and diabetes placed her at an increased risk of bleeding independently.
The plaintiffs hired Dr. Michael Sweeney as an expert witness. He testified in his deposition that he believed the electrocardioversion was the cause of Howe's death due to the fact she died after the procedure had been performed. He stated his theory as to how this could occur as follows:
“Well, there's a trauma to the chest that can be transmitted up to the brain electrical activity. The body does jump off the table and comes down somewhat violently at times, that can cause a sudden increase in blood pressure, which if you're not monitoring at the exact time, can be significant, especially when you're now in sinus rhythm with normal left ventricular systolic function. Your heart may now contract more vigorously giving a high stroke volume, which causes higher sheer force in the already diseased cerebral vascular vessels and can cause bleeding, especially in a setting of INR 11.7.”
Dr. Sweeney further testified this scenario was premised on his understanding of physiology; but he had not performed any research in the area, nor had he read any literature detailing the phenomena he described. He did state, however, that such study would never be conducted as it would be malpractice. He stated as his basis for this claim that he believed other cardiologists would agree with him if they were asked.
Dr. Sweeney also admitted that an internet search revealed no literature about a hemorrhagic stroke in the brain being caused by electrocardioversion on a patient with an elevated INR. Neither could he find any case histories nor any other research or data on the subject. He also testified that while the American College of Cardiologist guidelines state that performing an electrocardioversion when the INR levels are too low is contraindicated due to increased risk of thrombolytic stroke, there was no literature stating or warning that performing an electrocardioversion was contraindicated when a patient had an elevated INR.
Dr. Sweeney also agreed that hemorrhagic stroke was chronically associated with hypertension. He also agreed that Howe's hypertensive disease and the state of her arteries were, in and of themselves, sufficient to cause her death by hemorrhagic stroke.
Regarding the plaintiffs' claim that Dr. Freund was negligent in failing to monitor Howe's Coumadin and INR levels after her hospitalization and before the electrocardioversion, Dr. Sweeney testified that if he is the one to prescribe the Coumadin, then he views it as his responsibility to monitor the INR and Coumadin levels. However, he ultimately admitted that Dr. Wright had the obligation to monitor Howe's anticoagulation levels during the period of time between her discharge from the hospital and the time she saw Dr. Freund. Apparently, Dr. Wright did, in fact, monitor Howe during this time.
Dr. Freund moved for summary judgment and the district court sustained the motion. In its memorandum and order, the district court found there was no negligence on the part of Dr. Freund for failing to monitor Howe's INR levels as he was fully aware of the levels prior to performing the electrocardioversion, and the numbers in the days preceding the procedure were irrelevant.
Regarding the claim that the electrocardioversion caused Howe's death and was performed in a negligent manner, the district court ruled that the plaintiffs had failed to bring forth evidence to support the claims. The court specifically stated:
“Plaintiffs fail to establish a prima facie case. Plaintiffs do not establish by expert evidence that the failure to monitor Mrs. Howe's INR caused her death in light of the fact that Dr. Freund was aware of the actual INR on the day of the procedure. Plaintiffs do not provide expert evidence regarding the actual standard of care for performance of a cardioversion when the INR is elevated. Dr. Sweeney, Plaintiffs only expert witness testified that he assumed that any procedure done with a high INR increased the risk of hemorrhagic stroke. Plaintiffs do not provide reliable expert evidence that the performance of a cardioversion with an elevated INF causes hemorrhagic strokes. There is no evidence within a reasonable degree of medical probability the performance of Mrs. Howe's cardioversion when her INR was elevated caused her stroke. Dr. Sweeney's personal opinions are no more than conjecture. Dr. Sweeney's opinion that Dr. Freund's performance of the cardioversion at a time when Mrs. Howe's INR was elevated caused her hemorrhagic stroke does not meet the Frye reliability standards and is not admissible. Without admissible expert testimony on a deviation from standard of care and causation, Plaintiffs cannot present a prima facie case of medical negligence.”
Analysis
As we stated, the plaintiffs argue on appeal that the district court erred in granting summary judgment to Dr. Freund because they had brought forth expert testimony that he had violated the standard of care which caused their mother's death. Our standard of review of summary judgments has been stated often and is well known:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with 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 issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Waste Connections of Kansas, Inc. ., v. Ritchie Corp., 296 Kan. 943, Syl. ¶ 1, 298 P.3d 250 (2013).
In cases of medical malpractice, except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required to establish the accepted standard of care and to prove causation. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988). Given that the average layman does not possess a great knowledge of whether there are dangers associated with performing an electrocardioversion on a patient with an elevated INR level, this is clearly a case requiring expert testimony.
To prevail on a claim of medical malpractice, the plaintiff must prove three elements: (1) The physician owes a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the physician breached this duty or deviated from the applicable standard of care; and (3) the patient was injured and the injury proximately resulted from the physician's breach of the standard of care. Hubbard v. Mellion, 48 Kan.App.2d 1005, 1013, 302 P.3d 1084 (2013). A party opposing summary judgment has an affirmative duty to come forward with facts to support its claim, although the party is not required to prove its case at the summary judgment stage. Bacon, 243 Kan. at 307, 756 P.2d 416. Without evidence of causation, a medical malpractice claim fails. Stormont–Vail Healthcare v. Cutrer, 39 Kan.App.2d 1, 11, 178 P.3d 35 (2007). Further, a defendant is entitled to summary judgment if the defendant can establish the absence of evidence necessary to support an essential element of the plaintiff's case against the defendant. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
Here, the district court expressly found that Dr. Sweeney's testimony was inadmissible as it was based upon Dr. Sweeney's own opinions and assumptions and not within the degree of reliability required for expert medical opinion. As such, the court found the plaintiffs could not defeat Dr. Freund's summary judgment motion as they had not established facts to support their claim pertaining to causation or the appropriate standard of care.
In their brief, the plaintiffs claim that Dr. Sweeney's testimony was sufficient to disclose a dispute as to material fact and provide an explanation for causation. We note, however, that nowhere in their brief do they ever acknowledge that the district court found Dr. Sweeney's testimony to be inadmissible evidence. They do not cite a standard of review on this issue or make any substantive argument on this point. Likewise, in their reply brief, but they never allege the district court erred in excluding Dr. Sweeney's testimony, but simply state that this court should find the testimony admissible without citing to any authority for this position.
Arguably, the plaintiffs have waived any claim that the district court erred in excluding Dr. Sweeney's testimony because they failed to brief this issue. An issue not briefed is deemed waived and abandoned. Superior Boiler Works, Inc., v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011). As such, the plaintiffs' claims fail for lack of any admissible expert testimony to support their allegations of medical negligence and causation. See Estate of Belden v. Brown County, 46 Kan.App.2d 247, 286, 261 P.3d 943 (2011) ; Stormont–Vail Healthcare, 39 Kan.App.2d at 7, 178 P.3d 35 and.
Even if such a waiver had not occurred and we were required to address the district court's ruling on the admissibility of Dr. Sweeney's testimony, the result of this opinion would be the same. We review a district court's decision to exclude testimony for abuse of discretion. Kuxhausen, 291 Kan. at 321, 241 P.3d 75. However, we review de novo whether the district court correctly applied the correct legal standard underlying this decision. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 455–56, 14 P.3d 1170 (2000).
Here, the district court found that Dr. Sweeney's testimony was not admissible as evidence because it relied on only his personal opinion about whether the procedure should have been performed, not on any generally accepted practice or contraindication. Therefore, his opinion did not meet the evidentiary standard of admissible expert opinion testimony as set forth in Frye v. United States, 293 F. 1013. Generally speaking, the admissibility of expert testimony is controlled by K.S.A. 60–456(b), but the Frye test “acts as a qualification to the 60–456(b) statutory standard.” Kuhn, 270 Kan. at 454, 14 P.3d 1170. The Frye test requires that any expert scientific opinion evidence be based on grounds that are generally accepted as reliable within the expert's particular field. Kuhn, 270 Kan. at 454, 14 P.3d 1170.
Dr. Sweeney could not point to any literature, case studies, or any other scientific material showing that generally accepted medical practice contraindicated performing an electrocardioversion on a patient with an elevated INR. He also could not point to any literature, study, or other materials stating that an electrocardioversion could cause a hemorrhagic stroke. As such, it would appear that Dr. Sweeney's testimony was based solely upon his own opinion of the proper course of treatment, which is not sufficient in and of itself to form a standard of care. See Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 50, 510 P.2d 190 (1973) (evidence is not admissible to show what another would have done under the circumstances or that the doctor would have treated the patient differently).
While Dr. Sweeney stated that he believed one would “take for general granted” that a physician should not perform an electrocardioversion on a patient with a high INR, he stated that he could find no literature to support this finding. Also, even if this was sufficient to establish a standard of care, Dr. Sweeney was unable to state accurately any causal connection between the electrocardioversion procedure and Howe's death.
When asked how he determined that the electrocardioversion caused the hemorrhagic stroke, Dr. Sweeney stated he had formed his opinion based on “cause and effect” in that “She's doing fine. She's cardioverted. She bleeds in the head.” While K.S.A. 60–456(b) does allow for “pure expert opinion,” this pure opinion must be based upon inductive reasoning and not follow “post hoc ergo propter hoc logic: the symptoms follow the exposure; therefore, they must be due to it” as “such reasoning is nothing more than mere speculation.” Kuxhausen, 291 Kan. at 321, 241 P.3d 75. Here, it is clear that Dr. Sweeney engaged in deductive logic to reach his medical opinion, which does not provide a sufficient basis for medical expert testimony.
An expert witness cannot base an opinion on what is possible; he or she must base his or her opinion on what is probable. While no particular words are necessary to create a probability, the testimony must be able to show probability when interpreted reasonably. Nunez v. Wilson, 211 Kan. 443, Syl. ¶ 1, 507 P.2d 329 (1973). When asked how the electrocardioversion could cause this hemorrhagic stroke (which was contrary to Dr. Damjanov's opinion) Dr. Sweeney stated:
“Well, there's a trauma to the chest that can be transmitted up to the brain electrical activity. The body does jump off the table and comes down somewhat violently at times, that can cause a sudden increase in blood pressure, which if you're not monitoring at the exact time, can be significant, especially when you're now in sinus rhythm with normal left ventricular systolic function. Your heart may now contract more vigorously giving a high stroke volume, which causes higher sheer force in the already diseased cerebral vascular vessels and can cause bleeding, especially in a setting of INR 11.7.” (Emphasis added.)
Dr. Sweeney stated he had never read any study, conducted any research, or otherwise had any understanding that this phenomenon caused Howe's death. He stated his only basis for his opinion on causation was “physiology,” and that if one would talk to other cardiologists they would not perform the procedure.
The only testimony that Dr. Sweeney gave that had any basis outside of his own opinion was that the performance of an electrocardioversion on a patient whose INR was too low could cause thrombolytic stroke. He could find nothing from any source that stated the performance of the procedure when the INR was too high (which was the situation in this case) was contraindicated.
Regarding the failure to monitor, the plaintiffs have only claimed that Howe was injured and died in response to the electrocardioversion, and they do not allege any injury suffered by a failure to monitor the INR levels. As such, since it is undisputed Dr. Freund was aware of Howe's INR levels just prior to performing the electrocardioversion, the plaintiffs clearly cannot prevail on this claim. They have not connected any failure to monitor to any injury Howe suffered and have failed to establish the causation prong of medical malpractice claim. See Hubbard, 48 Kan.App.2d at 1013, 302 P.3d 1084.
As to the claim of negligence in performing the electrocardioversion, given the fact that Dr. Sweeney could not corroborate his opinion with any other source and testified purely from his own opinion reached in a deductive manner, it is clear that the district court did not abuse its discretion in excluding his testimony on the basis of Frye. Without any other evidence of a deviation from a standard of care which caused Howe's death, the plaintiffs failed to establish these two essential prongs of a medical malpractice claim. The district court did not err in granting summary judgment to Dr. Freund.
Affirmed.