Opinion
No. 107,172.
2013-02-1
Ronald THOMAS, Appellant, v. John GRANT, M.B., BCh, FRCSC, FACS., and Christopher Meredith, M.D ., Appellees.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge. Dan E. Turner and Phillip L. Turner, of Turner & Turner, of Topeka, for appellant. Chris H. Logan, Thomas R. Pickert, Scott K. Logan, M. Bradley Watson, Jeff K. Brown, and Ryan C. Fowler, of Logan Logan & Watson, L.C., of Prairie Village, for appellees.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge.
Dan E. Turner and Phillip L. Turner, of Turner & Turner, of Topeka, for appellant. Chris H. Logan, Thomas R. Pickert, Scott K. Logan, M. Bradley Watson, Jeff K. Brown, and Ryan C. Fowler, of Logan Logan & Watson, L.C., of Prairie Village, for appellees.
Before PIERRON, P.J., MALONE, C.J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Ronald Thomas brought a medical malpractice action against the defendants, Dr. John Grant and Dr. Christopher Meridith, who had performed surgery on him in an effort to monitor and control his seizures. The district court granted summary judgment in favor of the defendants, and Thomas brings this appeal. He argues the court erred in concluding he had failed to provide evidence that any conduct by the defendants caused him damage, in ruling his claim of lack of informed consent was unsupported by expert testimony, and in denying his motion to amend his pleadings to allege fraudulent acts and claim punitive damages.
After review of the record, we conclude the district court appropriately ruled that Thomas had failed to provide sufficient proof of his injuries and damages and had failed to provide proof of his claim of lack of informed consent. That renders as moot the issue regarding his motion to amend his pleadings. We affirm.
The relevant facts begin in 2002 when Thomas began experiencing short-term memory problems. He reported to physicians that he “ ‘couldn't remember what [he] did last night.’ “ In 2004, his memory began to further deteriorate. In August of that year, he awoke one morning disoriented as to time, place, and day. He was admitted to Lawrence Memorial Hospital with complaints of acute memory loss and mental status changes. On March 20, 2005, Thomas was admitted to the intensive care unit following a tonic-clonic seizure. He was diagnosed as having a seizure disorder. Throughout the spring of 2005, Thomas continued to complain of disorientation and significant short-term memory loss. His memory problems became progressively worse. He continued to suffer from seizures, was exhausted, experienced blurred and double vision, had difficulty walking steadily, and was depressed. Thomas' medical history prior to his surgery also included Type II diabetes, a neurological deficit of bilateral upper extremity tremors, sleep apnea, depression, and adjustment disorder with mixed anxiety and depressed mood.
Thomas informed his physician at Kansas University Medical Center (KUMC), Dr. Ivan Osorio, that he was dissatisfied with the side effects of his medication. He continued having seizure episodes even on the medications. In late spring, he quit his job and applied for disability consideration. On June 7, 2005, the defendants, at the request of Dr. Osorio, proceeded with neurosurgery at KUMC in order to place foramen ovale electrodes in Thomas' brain in an attempt to “localize a seizure focus.”
Prior to surgery, the physicians obtained an informed consent form from Thomas in which he acknowledged the risks and provided permission for “Dr. Grant and Associates” to perform the surgery. Dr. Meridith in the operative report stated:
“After discussing the risks and benefits of surgical intervention with this patient including but not limited to bleeding, infection, injury to the mandibular division of the trigeminal nerve leading to weakness over the unilateral, bilateral aspects of the V3 distribution in the face, hematoma formation, weakness of the muscles of mastication, the patient indicated his understanding of the risks and the potential benefits and gave his both written and verbal informed consent for the above-mentioned procedure.”
The defendants attended the surgery. Although Dr. Meredith initially took lead, he was unable to cannulate the foramen and asked Dr. Grant to complete the procedure. Dr. Grant did so. In the June 7, 2005, progress note, Dr. Meredith wrote: “Good foraminal placement bilateral. Left electrode somewhat inferior to right.” In recovery, however, it was noted that Thomas had “pupil-sparing cranial nerve III palsy on the left, evident by the left side ptosis.” Thomas was taken to neurology for seizure monitoring, where he developed symptoms of bacterial meningitis. The physicians removed the electrodes. Examination had revealed a “pupil-sparing cranial nerve III, a peripheral cranial nerve IV, and a cranial nerve V in the V2 sensory and V3 both motor and sensory deficits.” Thomas was treated with intravenous medications to combat the bacterial meningitis. The notes further reflected that the meningitis stabilized and the cranial nerves III, IV, and V deficits improved somewhat but not fully at the time of discharge on June 26, 2005.
Prior to filing this lawsuit, Thomas requested a medical malpractice screening panel, alleging the defendants were negligent in obtaining informed consent and in performing the bilateral foramen electrode placement. The panel reviewed Thomas' medical records and legal contentions and concluded that “there was no deviation from the standard of care in the specialty of Drs. Grant and Meredith and no injury which may have been suffered by Mr. Thomas was the result of any alleged deviation.”
Thomas subsequently filed a lawsuit and again asserted that the defendants were negligent in failing to provide informed consent and in placing the foramen electrodes which caused him permanent neurological problems. Despite ample time to collect evidence, Thomas took depositions only from two fact witnesses, Dr. Meredith and Helen Rintz—the diagnostic radiology supervisor at KUMC. He never deposed Dr. Grant, the physician who actually performed the surgery. Thomas designated one expert, Dr. Joel Singer, who the defendants' attorney deposed. He testified he had never preformed this surgery for a seizure disorder and does not hold himself “out as an expert in foramen ovale electrode placement for seizure monitoring.”
After nearly 2 years of discovery, the defendants filed a motion for summary judgment on September 1, 2011. Following oral arguments several weeks later and submission of written memoranda, the district court granted the motion. In dismissing the case as to both defendants, the court ruled that Thomas had not produced an expert witness to support an injury and damages resulting from his claim for improper placing of the electrodes or to support his claim of lack of informed consent. Thomas timely appealed.
Standard of Review
We review a district court's ruling on a summary judgment motion under the same rules that the court uses in initially rendering its ruling.
“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 the court applies the same rules, and where the court finds that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Osterhaus v.. Toth, 291 Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011).
Causation and Damages Pertaining to the Claim of Improper Placement of the Electrodes
We first note that a medical malpractice claim requires the same elements of proof as any negligence action: (1) the existence of a duty; (2) breach of that duty; (3) injury; and (4) a causal connection between the duty breached and the injury suffered. Schmidt v. Shearer, 26 Kan.App.2d 760, 764, 995 P.2d 381 (1999). Also, of particular relevance in this case is the premise that “ ‘[e]xpert testimony is required in medical malpractice cases to establish the applicable standard of care and to prove causation.’ [Citation omitted.]” Stormont–Vail Healthcare, Inc. v. Porter, 39 Kan.App.2d 1, 8, 178 P.3d 35 (2007).
The district court in its written decision first noted that Thomas had presented no facts that established Dr. Meridith did anything that caused him harm. We agree. Dr. Singer, Thomas' expert, stated that it appeared to him from the records that Dr. Grant had completed the surgery and was the responsible party. Thomas tries to make an issue of the fact Dr. Meridith authored the surgical note of the procedure but omitted from it the fact that he began the surgery and then turned it over to Dr. Grant (as Dr. Meridith later testified to in his deposition). However, Dr. Singer testified that Thomas had not been harmed by anything stated or omitted from this operative note. There was no evidence to the contrary, and the court properly dismissed Dr. Meridith from the case.
The district court then stated that Thomas had failed to bring forth expert testimony that would support his claim for damages.
“[N]othing in [Dr. Singer's] testimony sets out the nature and extent of the damages, what would be the cost for such damages, and what damages, if any, existed before the alleged negligence as opposed to what existed afterwards. This type of evidence can only be given by an expert, and cannot be proven by lay testimony. As plaintiff fails to present such evidence at this time, the Court is convinced that summary judgment should be and is hereby granted.”
We have reviewed the transcript of Dr. Singer's testimony. Again, we agree with the district court. It appears that Dr. Singer did testify that whoever finished the surgery did not properly place the electrodes in Thomas's skull and this caused “bilateral cranial nerve dysfunction.” However, he stated he did not know if this resolved and was unaware of whether Thomas has any lasting neurologic deficits or other injuries. Dr. Singer offered no opinion relating to any type of permanent injury, past or future medical expenses, past or future lost wages, or specific economic or noneconomic damages. Also, as the court noted, Dr. Singer offered no testimony as to how Thomas's condition differed after the surgery from his condition before the surgery (which included a long history of neurologic problems).
Thomas failed to provide any other expert testimony and thus has failed to establish his damages, an essential element of any negligence claim. Although summary judgment is not usually appropriate in negligence cases, “it is proper if the plaintiff fails to provide evidence of an element essential to his case.” Hammig v. Ford, 246 Kan. 70, 73, 785 P.2d 977 (1990). Thomas failed to provide any expert testimony regarding his damages, and summary judgment was appropriate.
Informed Consent
The district court ruled that Thomas had not presented expert testimony that supported his claim of lack of informed consent.
The doctrine of informed consent is described in Natanson v. Kline, 186 Kan. 393, Syl. ¶ 4, 350 P.2d 1093 (1960), where our Supreme Court held:
“Where no immediate emergency exists, a physician violates his duty to his patient and subjects himself to liability for malpractice ... if he makes no disclosure of significant facts within his knowledge which are necessary to form the basis of an intelligent consent by the patient to proposed ... treatment.”
Also, a surgeon must disclose the nature of the patient's illness, the significant risks and consequences of the proposed treatment or procedure, and the reasonable and medically acceptable alternatives to the proposed treatment, including the option to forego treatment altogether. Rojas v. Barker, 40 Kan.App.2d 758, 761–62, 195 P .3d 785 (2008), rev. denied 289 Kan. 1280 (2009). Further, the duty to disclose information under the informed consent doctrine “ ‘ “is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances.’ “ [Citations omitted.]” 40 Kan.App.2d at 763.
Here, Thomas signed KUMC's standard “Documentation of Informed Consent.” The form recited in part that Thomas agreed that because of his “epilepsy,” he would undergo the procedure of “placement of foramen ovale electrodes.” It further recited that Thomas understood that there were no guarantees that this would help his seizure disorder and that there were severe risks involved, such as, bleeding, infection, brain damage, or even death. Thomas then agreed to allow “Dr. Grant and Associates” to perform the surgery.
We first note in our discussion of this issue that Thomas' own expert, Dr. Singer, testified repeatedly that the benefits of the surgery were explained in the informed consent form and that he did not know of any additional risks that should have been included in it. At one point, he stated, “I think there was enough information as regards the procedure itself for informed consent, yes.”
However, Dr. Singer also stated that the informed consent form should have included language in which Thomas acknowledged that he was willing to undergo a “mesial temporal lobectomy if the test was positive because if he wasn't willing to do so, there was no point in doing the test in the first place.” Thomas seizes on this testimony to argue that the surgery should not have occurred without the disclosure. He then leaps to conclude that this omission constituted a deviation from the standard of care that caused him to suffer cranial nerve deficits.
We have previously determined that Thomas had not provided sufficient proof of his injury and damages to withstand a summary judgment motion. But even if he had done so, we could not make the leap he makes in his argument. In Rojas, the plaintiff argued similarly to Thomas that if a required disclosure is not set forth in an informed consent form and that disclosure would have caused the patient to refuse certain treatment if it had been made and the patient then suffers injury from the treatment, there is automatically a causal connection between the failure to disclose and the injury. The Rojas court rejected this argument, quoting Funke v. Fieldman, 212 Kan. 524, 531, 512 P.2d 539 (1973)
“No more than breach of any other legal duty does nonfulfillment of the obligation to disclose alone establish liability to the patient. An unrevealed risk that should have been made known must materialize, otherwise the omission, however unpardonable, is legally without consequence. Occurrence of the risk must be harmful to the patient, for negligence unrelated to injury is non-actionable. And, as in malpractice actions generally, there must be a causal relationship between the physician's failure to adequately divulge the risks and damage to the patient. [Citation omitted.]' (Emphasis added.) [Citation omitted.]
“ ‘If adequate disclosure could reasonably be expected to have caused the patient to decline the treatment or procedure because of revelation of the kind of risk or danger which resulted in her harm, causation is shown, but otherwise not.’ [Citation omitted.]” Rojas, 40 Kan.App.2d at 765–66
The Rojas court went on to hold:
“[A] plaintiff proves causation in an informed consent case by showing (1) an objectively reasonable patient would have declined treatment had the patient been advised of a material risk or danger; (2) the patient was not advised of a material risk or danger; and (3) that risk or danger materialized, resulting in harm to the patient.” (Emphasis added) Rojas, 40 Kan.App.2d at 766.
Here, the damages that Thomas claimed in this lawsuit involved deficits to his cranial nerves. They have no relationship to the information he asserts should have been included in the consent form (which is not actually a risk of the surgery in the first place). Additionally, there is nothing in the record that indicates Thomas would have declined the surgery even if the form contained the language he argues should have been included.
As noted, the district court dismissed Thomas' claim for lack of informed consent as unsupported by expert testimony. We agree. Dr. Singer repeatedly testified that the consent form that Thomas signed contained all the benefits of the surgery and all the risks. The one complaint Dr. Singer had, the failure to advise that an additional procedure might be necessary, did not relate to any injuries Thomas seeks redress for in this lawsuit. Consequently, there is no causal connection between the claim for breach of the duty to inform and any damages claimed. We find no error in the district court's dismissal of the claim of lack of informed consent.
Denial of the Motion to Amend Pleadings
As a result of our determination that the district court properly dismissed Thomas' two malpractice claims, the issue of whether the district court erred in denying his motion to amend his pleadings to claim fraud and punitive damages is rendered moot. Without a claim for compensatory damages, one has no claim for punitive damages. See Moore v. State Bank of Burden, 240 Kan. 382, Syl. ¶ 7, 729 P.2d 1205 (1986) (“No one has the right to maintain an action for the mere purpose of inflicting punishment upon a wrongdoer, and if a party has no cause of action independent of his claim for punitive damages he has no cause of action at all.”).
Affirmed.