Opinion
No. 105,788.
2013-10-18
Landon UNRUH, a Minor; John Unruh and Shannon Unruh, as Natural Guardian s for Landon Unruh; John Unruh; and Shannon Unruh, Appellees/Cross-appellees, v. Melissa HAGUE, M.D., and Matthew Voth, M.D., Appellees, Natalia Montoya, M.D., Appellee/Cross-appellant, and Wesley Medical Center, L.L.C., Appellant/Cross-appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. John H. Gibson, Michelle Watson, and G. Andrew Marino, of Gilliland & Hayes, PA, of Wichita, for appellant/cross-appellee Wesley Medical Center, L.L.C. Richard J. Peckham, of Andover, for appellees/cross-appellees Landon Unruh, John Unruh, and Shannon Unruh.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge.
John H. Gibson, Michelle Watson, and G. Andrew Marino, of Gilliland & Hayes, PA, of Wichita, for appellant/cross-appellee Wesley Medical Center, L.L.C. Richard J. Peckham, of Andover, for appellees/cross-appellees Landon Unruh, John Unruh, and Shannon Unruh.
Steven C. Day and Chris S. Cole, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, for appellees Melissa Hague, M.D., and Matthew Voth, M.D.
David S. Wooding, Lisa A. McPherson, and Marcia A. Wood, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee/cross-appellant Natalia Montoya, M.D.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
BUSER, J.
In this medical malpractice case, the plaintiffs Landon Unruh, a minor, and John Unruh and Shannon Unruh, individually and as natural guardians for Landon (the Unruhs), sued the defendants, Wesley Medical Center (Wesley), Dr. Natalia Montoya, Dr. Melissa Hague, and Dr. Matthew Voth, alleging their negligence immediately before and during Landon's birth caused him to sustain brain damage and related permanent injuries. A jury found Wesley 100% at fault for Landon's injuries and awarded damages of $2,404,427.12.
Wesley appeals from the trial court's denial of its motion for new trial. In particular, Wesley raises two issues: First, it argues that the jury's allocation of 100% fault was contrary to the evidence. Second, Wesley asserts that plaintiffs' counsel violated an order in limine and made improper comments during his closing argument which compromised Wesley's right to a fair trial. Dr. Montoya cross-appeals, alleging that if we reverse and remand for a new trial, we should also reverse the denial of her motion for judgment as a matter of law because the evidence was insufficient to show that she deviated from the applicable standard of care.
Having carefully reviewed the record on appeal and the parties' briefs and considered the oral arguments, we affirm the trial court's denial of Wesley's motion for new trial and affirm the jury's verdict.
Factual and Procedural Background
On March 11, 2007, at about 11:30 p.m., Shannon arrived at Wesley in active labor. Shortly thereafter, the charge nurse in the birth care center, Christine Repp, completed a vaginal examination and applied a fetal heart monitor to monitor Shannon's contractions and the baby's heart rate. Margaret Colahan–Sederstrom, Shannon's labor and delivery nurse, helped her with breathing and relaxation techniques. At the time, Repp had about 11 years of experience as a labor and delivery nurse, and Colahan–Sederstrom had 40 years of similar experience. Both nurses had assisted in over 1,000 births.
Based on her initial assessment, Repp determined that Shannon's contractions were 2 to 3 minutes apart, with a dilation of 3 to 4 centimeters and 90% effacement at a –2 station. At 11:43 p.m., Repp paged Shannon's attending physician, Dr. Montoya, who was at home preparing for a delivery at St. Joseph's hospital. When Dr. Montoya returned Repp's page 11 minutes later, Repp informed her of Shannon's vital signs, membrane status, contraction pattern, and fetal heart pattern interventions. Dr. Montoya directed the nursing staff to start an IV and to contact an anesthesiologist to perform an epidural block to help relieve Shannon's pain.
At 12:02 a.m., on March 12, 2007, Repp contacted Dr. Montoya to advise her Shannon's fetal monitoring strip indicated that during contractions the baby had been experiencing mild variable decelerations (the heart rate was dropping from the normal range of 110 to 160 beats per minute to 90 to 100 beats per minute for 30 to 40 seconds). Repp testified that, at the time, she did not believe the variable decelerations indicated an emergency or required a consult with another physician because “[v]ariable decelerations are very common in labor.” Moreover, according to Repp, the fetal monitoring strip also exhibited moderate variability (small changes in the baby's baseline heart rate between contractions), which provided reassurance about the baby's oxygenation. Similarly, Dr. Montoya testified that variability “is a marker of the baby['s] well being” and variable decelerations, which typically indicate umbilical cord compression, are common during labor.
Dr. Montoya directed Repp to provide Shannon with supplemental oxygen, change Shannon's position to shift the baby away from the umbilical cord, and to proceed with an IV fluid bolus and epidural. According to Repp, a few minutes later, at 12:08 a.m., Landon's heart rate accelerated to 115 to 120 beats per minute, which she interpreted as an indication of “fetal well being.”
About 20 minutes later, at 12:27 a.m., Shannon experienced a tetanic (atypical) contraction and a corresponding drop in her blood pressure following the administration of the epidural. Simultaneously, the fetal monitoring strip indicated the baby experienced a “D-cell” (a deceleration in his baseline heart rate). Specifically, Landon's heart rate dropped to 60 to 70 beats per minute for about 3 minutes and then recovered to the range of 90 to 100 beats per minute. According to Dr. Montoya, a deceleration to 60 beats per minute is diagnostically significant and indicates that “intervention is needed.”
Repp utilized a Wesley policy that provides nurses with the discretion to administer interventions to improve a baby's heart rate by giving Shannon an IV fluid bolus, changing her position, and administering ephedrine and amyl nitrate, a drug used to reduce the muscle tone of the uterus and improve the blood flow through the placenta and umbilical cord. According to Colahan–Sederstrom, in response, at 12:30 a.m., the fetal monitoring strip indicated these interventions were successful.
Although Repp did not consider the prolonged deceleration to be an emergency because she believed it was a side effect of Shannon's epidural, Dr. Montoya was contacted and advised of the incident and the baby's response to the nurses' interventions. Dr. Montoya asked the nursing staff to notify her if the baby experienced another D-cell because, according to her, when the cause of the deceleration is known and the baby responds to the interventions, only continued monitoring is required.
At 12:38 a.m., Colahan–Sederstrom completed a vaginal exam and stimulated Landon's scalp, which produced an acceleration in the baby's heart tones. Colahan–Sederstrom testified this procedure is a means of asking the baby, “[A]re you doing okay in there,” and an acceleration after such stimulation is a sign of fetal well-being.
About 10 minutes later, at 12:41 a.m., Dr. Montoya contacted Repp for an update on Shannon's status and to inform her that she was currently traveling to Wesley. According to Repp, at that time, the baby had a baseline heart rate in the 120s with moderate variability and variable decelerations to about 90 beats per minute. According to both nurses, prior to Dr. Montoya's arrival, Landon's fetal monitoring strip never exhibited any indication of an emergency or suggested that a consult with another physician was necessary.
At 12:53 a.m., about 1 hour and 23 minutes after Shannon presented at Wesley, Dr. Montoya arrived at the medical center. Upon her arrival, Dr. Montoya spoke with Shannon's nurses and instructed them to prepare Shannon for delivery. Once Shannon was ready, Dr. Montoya instructed her to push twice; however, both attempts were unsuccessful, as the baby's station (position in Shannon's pelvis) did not change. At this point, about 12:57 a.m., it became difficult to trace the baby's heart rate. As a result, Dr. Montoya attached a fetal scalp electrode (a wire placed directly into the baby's skull) to obtain a more direct measure of the baby's heart tones.
According to Dr. Montoya, the fetal scalp electrode indicated persistent bradycardia (“a base line fetal heart rate of less than 110 beats per minute lasting longer than 10 minutes”). The baby's heart rate ranged from 60 to 110 beats per minute, and because a fetal heart rate in the 60s, without signs of recovery, is “a concern,” Dr. Montoya had Shannon moved to the operating room for a possible Cesarean section (C-section).
Dr. Montoya asked the nursing staff to request a consult with Wesley's obstetrical service because while she regularly performed vaginal and assisted deliveries, she did not have privileges to perform C-sections at Wesley. Dr. Montoya also could not perform an assisted delivery with forceps because the baby's high station in the birth canal and his occiput transverse position (an abnormal angle in the mother's pelvis) necessitated a “mid forceps delivery”; another procedure she did not have privileges to perform.
Although Dr. Rae Rogers, the on-call obstetrician and supervisor of the obstetrics residency staff, was present in the birth care center, per Wesley's policy, Colahan–Sederstrom contacted Dr. Melissa Hague, a second-year resident. At the time, Dr. Hague was asleep at Wesley's main hospital across the street from the birth care center. When Colahan–Sederstrom informed her of the reduced fetal heart tones, Dr. Hague immediately went to the resident library to remotely view them. According to Dr. Hague, the fetal monitor exhibited an abnormal heart rate of 60 beats per minute, or bradycardia, which indicated that an emergency intervention was required. As a result, Dr. Hague was “quite concerned” and contacted the nursing staff to confirm that Shannon was being moved to the operating room.
As she ran to the birth care center, Dr. Hague contacted Dr. Matthew Voth, a third-year resident and Dr. Hague's immediate supervisor, and asked him to meet her in the operating room for a patient consult with “heart tones down.” Dr. Voth was also “probably sleeping” in the main hospital when he was notified of the situation. Dr. Voth immediately ran towards the birth care center while paging Dr. Rogers. Both Drs. Hague and Voth testified their trip to the birthing center took 2 to 3 minutes.
Dr. Hague arrived in the operating room at the same time as Shannon, and while residents typically wait for the attending or supervising physician, Dr. Hague began the delivery without waiting because she believed she faced “an emergency situation.” Dr. Hague explained that according to the policy of residency programs across the country, “[i]n an emergency situation, if you have the skills and the competency to accomplish something, in this case a delivery, that needs to be done to save the life of the patient, it is understood that that is what you do.” Dr. Voth confirmed Dr. Hague's understanding of this policy.
According to Dr. Hague, the nursing staff informed her that the baby's heart tones were down, Shannon was near delivery, and she had two prior pregnancies that were “term vaginal deliveries.” This suggested that Shannon would probably “tend to push much more effectively” and deliver faster than a patient who had never had a baby before. Dr. Voth agreed that labor and delivery occurs much faster in a mother that has experienced prior deliveries.
Dr. Hague's examination of Shannon revealed that she was “completely dilated and at a +1 station.” Dr. Hague asked Shannon to push, and when she made “a concerted effort,” she brought the baby's head down to “a +2 station.” Because this was an “assistable station” and the baby's head had rotated just “off to the right side and facing up,” Dr. Hague decided to perform a forceps delivery. In the doctor's opinion, a forceps delivery was “the safest and quickest method available to accomplish delivery” because, due to the persistent bradycardia, there was insufficient time to perform a C-section or allow Shannon to deliver vaginally without assistance. Additionally, Dr. Hague testified that a C-section was inadvisable because both Shannon and the baby were at a significantly higher risk of injury due to the baby's low position in the birth canal.
When Dr. Hague placed the forceps blades around the baby's head, “in what felt to [her] like the correct place,” the blades would not articulate, i.e., “come together.” According to the doctor, forceps blades are “really designed to only go in one position on the baby's head; if it's not exactly that position, they will not articulate.” Because forceps blades cannot be forced together, when they do not articulate, obstetricians typically remove them, reconfirm their position, and reattempt placement. Dr. Hague immediately removed the blades and reconfirmed her position, whereupon Dr. Voth arrived in the operating room.
Dr. Hague quickly explained Shannon's status to Dr. Voth and told him about the unsuccessful attempt to place the forceps. Given the emergency situation, Dr. Voth took over the delivery. Dr. Voth concluded that Shannon was in a very assistable position and decided to deliver Landon using forceps.
Dr. Voth testified there is no statistical difference “in the rate of intracranial hemorrhage” in a baby delivered by C-section, forceps delivery, or vacuum delivery if, like Shannon, the mother is in the second stage of labor. According to Dr. Voth, Shannon “easily met [his] criteria for assisted delivery” because the baby's head was in a “face up position,” located at a “low” forceps station in the birth canal. Dr. Voth testified, however, that he would have performed a C-section had the baby been positioned at a mid forceps station because neither he nor Dr. Hague were qualified to perform a mid forceps assisted delivery.
Dr. Voth placed the forceps “[r]ight along—over [the baby's] ear[,] up ... towards the cheek area on both sides” of his face. He explained that in this position on the baby's face, the blades nestle the head and once articulated, the forceps cannot be squeezed tighter than designed. According to Dr. Voth, after placement of the forceps, “[t]hey articulated very easily,” and then, either with a contraction or having Shannon push once, the baby's head was guided down the birth canal. As a result, the baby descended slightly but he did not deliver. Dr. Voth removed the left forceps blade, quickly confirmed his position, rearticulated the blades, and with a push or a contraction, pulled “two or three” times and delivered Landon at 1:09 a.m. According to Dr. Voth, the delivery took about 40 seconds. Importantly, upon delivery the umbilical cord was wrapped “once and tight” around the baby's neck.
Dr. Voth explained his decision to use forceps:
“[T]he baby was in such a low position, it was a routine—very routine forceps delivery. It occurred very quickly. There was nothing complicated about it. No question, it was much faster than had we done a C-section. Even if the epidural would have been strong enough [to perform a C-section], which I doubt it would have been, going to sleep, scrapping in, gowning up, moving the tray, it would have taken longer, number one, but it came down, the baby was in a position; it was an easy decision to make.”
Similarly, Colahan–Sederstrom, who observed the delivery, testified that, in her opinion, it was “a very, very easy delivery.”
Almost 10 hours after Landon's birth, hospital staff noticed “bright red blood bubbling from [his] left ear.” At some point, Landon also had blood in his urine, petechiae on his body, bruising on his toes, a sclera hemorrhage in his right eye, and he was diagnosed with thrombocytopenia (a blood disorder involving reduced platelets). The nursing staff paged Dr. Montoya, who “came quickly” to evaluate Landon's condition. Upon her examination, Dr. Montoya discovered blood on the outside of Landon's ear canal and “little pockets” of blood inside his ear canal. As a result, she requested a consult with the on-call neonatologist.
About 12 to 13 hours after Landon's birth, a CT scan of his brain, showed extensive subdural hematomas (bleeding in various locations of the brain) and edema (swelling due to the presence of blood). Landon also had several seizures, which resulted in an evaluation by Dr. Subhash Shah, a pediatric neurologist. Dr. Shah found Landon lethargic and with “diminished movements in [his] extremities.” In particular, “[h]e had significant head lag, and moderate hypertonicity, or increased muscle tone, or muscle stiffness in the extremities, which was more pronounced in the upper extremities.”
Based upon his review of the CT scan and clinical examination, Dr. Shah diagnosed Landon with a seizure disorder, metabolic acidosis, and intracranial hemorrhage. According to Dr. Shah, the causes of metabolic acidosis (“a disturbance in [the] acid base balance”) in a baby's blood, generally includes “impairment of circulation and oxygenation,” sepsis infections, “other metabolic disorders,” and umbilical cord compression. Of note, a “blood cord gas” was performed at the birth, which indicated the acid base balance (pH) of the umbilical cord was low and mild acidosis was present. Dr. Shah explained, however, that “the presence of one-time acidosis” did not necessarily indicate that umbilical cord compression caused Landon's brain damage.
Dr. Shah ordered an MRI and an electroencephalogram (EEG), which measures a patient's brainwaves. The EEG showed “seizures arising from the left temporal and occipital region, and it also showed a continuation of the ergonomic activity, which means suppression of the brain activity.” The MRI “showed several areas of hemorrhage in the brain tissue[;][s]ubdural hemorrhage ... on the surface of the brain[,] ... areas of swelling in the deeper parts of the brain,” and atrophy—cell death or shrinking of the brain—in the left thalamus, “up to the cortex and to the frontal lobe, the occipital lobe.”
Dr. Shah opined that Landon suffered from hypoxic ischemic encephalopathy (HIE) (“damage to the brain due to impairment of oxygenation and circulation”). This condition placed him at a “high risk for moderate to significant developmental delay, and [a] risk for cerebral palsy.” Dr. Shah explained that the parts of a baby's brain that suffer from HIE are “more vulnerable to bleeding than ... other normal tissues in the body,” and when blood returns to the weakened vasculature, the vessels can burst and bleed—a condition commonly referred to as a reperfusion injury. Additionally, a baby that suffers from HIE in utero is more vulnerable to bleeding if “there was trauma in the normal birth process.” Trauma, however, does not necessarily refer to an injury or shock to the body from violence or an accident.
Dr. Shah noted that Landon did not exhibit any of the typical signs of injury caused by an improper forceps delivery, i.e., a skull fracture or facial nerve paralysis, and this suggested there was no unusually “traumatic birth involving forceps.” Additionally, after the birth, the neonatologist documented the sutures between Landon's skull bones were approximate, rather than separate and overlapping, as would be expected after excessive molding or blunt force trauma.
According to Dr. Shah, the “hypoxic event” that caused Landon's brain damage occurred “at least 12 or more hours before the birth,” which was “many hours before Mom and fetus arrived at the hospital.” Dr. Shah conceded, however, that a perfusion event (impairment of the blood supply to the brain) could occur spontaneously due a blunt force trauma to the head. Dr. Shah could not identify the “event” which actually caused Landon's HIE. He testified that “[e]xtremely low blood pressure in [M]om, shock, septic shock[, or] a rupture or separation of the placenta” could cause HIE. Dr. Shah believed the hypoxic event occurred 12 or more hours before birth because it generally takes “about 48 to 72 hours” to see edema on a patient's CT scan and, even in severe cases, it is “highly unusual to see [edema] before 24 hours after the insult.” Moreover, Landon had an ultrasound of his brain 15 hours after his birth that showed increased echogenecity in his left thalamus, a finding that typically does not appear until 48 to 72 hours after a hypoxic event.
About 1 year later, the Unruhs' attorney referred Landon to Dr. Dwight Lindholm, a pediatric neurologist, for evaluation and treatment. Dr. Lindholm concluded that Landon was “severely impaired.” He suffered from spastic quadriparisis, i.e., he was only functioning at a 3–month–old level, his vision was limited to recognition of bright objects, he was unable to use his hands in a useful way, and he had poor head control. According to the doctor, after 1 1/2 years of treatment, Landon still suffered from spastic quadriparisis, however, he had better control of his body and was becoming more mobile. Still, Landon did not have “good use” of his hands, his speech and vision was limited, and he was functioning at a cognitive level well below his actual age. Dr. William Whiteside, Landon's treating pediatrician, testified at trial that he suffered from cerebral palsy, microcephaly (small head size), developmental delay with slow improvement, a seizure disorder, and visual disturbance.
Dr. Lindholm opined that the combination of HIE and some sort of trauma likely caused Landon's brain damage. Dr. Lindholm acknowledged that trauma does not necessarily imply an inappropriate use of force because a “normal vaginal delivery has elements of trauma involved.”
On February 12, 2010, the Unruhs filed a medical malpractice lawsuit against Wesley, Dr. Montoya, Dr. Hague, and Dr. Voth, alleging their negligence during Landon's birth caused him to sustain severe brain damage and permanent dysfunction, including, but not limited to, “permanent neuromuscular dysfunction, permanent cognitive and intellectual dysfunction, and blindness.” The Unruhs plead the following theories of liability:
“The Defendant, Wesley Medical Center Nurses, technicians and other agents failed to timely secure alternate physician assistance when the attending physician, Dr. Natalia Montoya delayed arrival and treatment of Shannon Unruh, causing brain damage to Landon Unruh. All Defendants caused severe brain damage to Landon Unruh while in the process of care and delivery of him, including the misuse of forceps and by failure to timely perform a cesarean section, wherein Defendants were negligent and unskillful. Subordinate resident physicians, performing the obstetrical procedures, were not properly supervised by attending physicians.”
During the jury trial, several experts testified regarding the applicable standards of care and issues related to causation. Dr. Michael Hall, a Colorado physician board certified in obstetrics and gynecology, was retained by the Unruhs. He criticized the performance of all the medical personnel involved in Landon's delivery.
With regard to Wesley, Dr. Hall opined the nursing staff violated the standard of care because in Dr. Montoya's absence they should have called the on-call obstetrician to review the fetal monitoring strip at 12:02 a.m. According to Dr. Hall, there was “nothing reassuring” about the fetal monitoring strip throughout Shannon's labor and delivery. From the onset of monitoring at 11:33 p.m. until Landon's birth at 1:09 a.m., the baby exhibited diminished variability, persistent late decelerations, “denoting the hypoxia of the baby,” and an absence of accelerations. Moreover, while the nursing staff utilized interventions to improve the baby's oxygenation level, these were unsuccessful and, according to Dr. Hall, when a baby suffering from persistent late decelerations does not respond to interventions, the standard of care dictates proceeding towards delivery. Dr. Hall explained:
“The standard of care would require that after 30 minutes of an abnormal strip like this that it would be evaluated by a physician. And this is an abnormal strip for quite some time now. The nurses are required to go ahead and begin those resuscitative measures as soon as you have persistent late decelerations. And those were noted within the first 10 to 20 minutes of the strip. Every one of those contractions was associated with a late deceleration. And the resuscitative measures can be started and then the obstetrician that is on call can be called.”
Dr. Hall opined the nursing staff's breach of duty unnecessarily delayed Landon's delivery and extended his hypoxia because had the nursing staff brought in another physician, “more likely than not, having not been able to restore to a reactive [monitoring] strip, a reasonable and prudent physician would have gone ahead and done a C-section at that time.”
Dr. Hall also opined that Dr. Montoya violated the standard of care by failing to insure that another physician was present, “in a supervising role to review th[e monitoring] strip in her absence,” when the nurses informed her of the abnormalities. Dr. Hall acknowledged, however, that Dr. Montoya's obligation to contact another physician depended on the information provided to her by the nursing staff.
Dr. Hall concluded that Dr. Hague and Dr. Voth violated the standard of care by failing to deliver Landon atraumatically by C-section and by undertaking a forceps delivery without supervision. According to Dr. Hall, while the fetal monitoring strip was markedly abnormal throughout the labor and delivery, when the bradycardia began at 12:50 a.m., an immediate C-section was necessary:
“The standard of care, when you have a sudden drop in the fetal heart rate—and again, this is different than talking about a baseline change in bradycardia over time. When you have a sudden drop, our dictum is do the resuscitative measures if you haven't already and you've got 2 minutes to do that. Some people will give a drug called terbutaline as well within the next 2 minutes to try to stop the contractions. However, they kept her pushing. And then go back to the OR in 5 minutes and then have that baby delivered within the next 10 minutes. That's what we strive for. And that's the standard as far as a sudden drop in the fetal heart rate, is to get that C-section done as quickly as possible.”
According to Dr. Hall, the residents' decision to perform a forceps delivery prolonged the delivery, increased the baby's acidosis and hypoxia, and caused blunt force trauma to his skull. Dr. Hall testified the blunt force trauma resulted because Landon was not in a proper position in Shannon's pelvis, the wrong forceps were used, and the residents improperly applied the forceps.
Dr. Hall determined that Dr. Hague and Dr. Voth negligently misapplied the forceps because, in his opinion, the baby sustained injuries indicative of improper forceps placement, i.e., the blood in his left ear, the sclera hemorrhage in his right eye, and the significant bleeding on the left side of his brain. Dr. Hall explained:
“What we want to do is have the babies delivered before 17 minutes. And all these procedures prolong the ability to get the baby delivered atraumatically by C-section. During that time, the acidosis is increasing and this is just prolonging it. They are having very—they are having difficulty and with good reason, the baby's not in the proper position. And they're not using the right forceps. And they're prolonging this baby's delivery, which could have been done with—by C-section....
....
“Well, if you look at this case, if you look at this strip, the heart tones have been down for some time. Would have been prudent and the standard of care to go ahead and do a C-section. Since you didn't have somebody there to supervise your—your forceps delivery, that would have been more appropriate. This strip is down and you cannot keep adding to that time. And the forceps we know can cause blunt trauma.”
In Dr. Hall's opinion, Landon's brain damage resulted from the combination of HIE, which developed during his labor and delivery at Wesley, and the blunt force trauma he sustained during delivery. Dr. Hall agreed with Dr. Lindholm's opinion:
“[T]he patient had a perinatal hypoxic ischemic encephalopathy as evidenced by decelerations of the heart rate in labor. There was a cord around the neck and an emergency forceps delivery. The presence of bilateral subdural intraventricular and subarachnoid hemorrhage, as well as left temporal, left occipital, left thalamic hemorrhages suggest a mechanical trauma, probably from a rapid forceps delivery coupled with more fragile vessels from hypoxia.”
Dr. Hall explained that, typically, a baby suffering from HIE has the ability to compensate for oxygen deprivation by increasing the profusion of oxygen to the brain and heart through a coordinated “shut down” of nonvital bodily functions. Without complications, a fetus can employ this compensation technique for 17–20 minutes and, therefore, survive HIE without significant brain damage. Dr. Hall opined that, without the misapplication of the forceps, Landon “should have done well” because the cord gas report indicated that he was “right on the cusp of being in an area where the incidence of brain damage [was] going to go up,” i.e., his acidosis was “mild” and his HIE was “just beginning to get started.” Moreover, Landon had a good Apgars score (a measurement of a baby's fetal well-being just after birth), and while he exhibited a lack of oxygen initially, he resuscitated very well.
Dr. Hall summarized his expert medical opinion regarding the cause of Landon's brain damage:
“There's two—there's two issues here. There can be two things going on at the same time. We've got a baby that's not getting enough oxygen. And when we get hypoxia that becomes significant enough, and in my opinion wasn't significant enough in this case, but we get a diffuse hemorrhaging to the brain or diffuse edema to the brain when it gets bad enough. When it's one-sided we usually know that that's due to our forceps trauma. Because usually it's greater on one side than the other. It's not diffuse.
“And in this case, after reviewing the—the evidence as far as the CAT scan is concerned, it's my opinion that the trauma caused more of that damage to the brain than it did the potential for the acidosis.”
After the plaintiffs rested their case, the defendants presented the testimony of several medical experts. Kurt Kauffman, an obstetrician/gynecologist in Wichita, opined that all of the parties involved in Landon's birth met the appropriate standard of care. Specifically, Dr. Kauffman testified that based on his interpretation of the fetal monitoring strip, neither the nursing staff nor Dr. Montoya had any reason to contact the on-call obstetrician prior to Dr. Montoya's arrival at Wesley. The doctor further opined that the resident physicians' decision to proceed with a forceps delivery was appropriate because, at that time, the baby was suffering from bradycardia and a vaginal delivery was the best means for accomplishing a fast delivery. Finally, Dr. Kauffman indicated that Dr. Voth's use of the forceps met the standard care.
Dr. Jennifer Brull, a family physician in Plainville, upon her review of the medical records, opined that Wesley's nursing staff and Dr. Montoya met the applicable standards of care. Moreover, Dr. Brull concluded the readings on the fetal monitoring strip did not require either the nurses or Dr. Montoya to consult the on-call obstetrician or the resident physicians prior to Dr. Montoya's decision to do so because “the earliest possible moment of bradycardia [was] at 57 minutes after midnight.”
Similarly, Dr. Michael Jackson, an obstetrician/gynecologist in Wichita, testified that Dr. Hague and Dr. Voth acted appropriately under the circumstances and met the applicable standard of care. Dr. Jackson opined that a forceps delivery was the best method for delivering the baby, “I also don't believe that Cesarean section, which is a major operation, can be done in a manner any faster than what, or how this delivery was ultimately accomplished.” And he explained that the “risk of bleeding in the brain is basically the same statistically, whether [the physician performs] a forceps delivery, or ... a C-section after the mom has labored.”
Dr. Mark Hille, a pediatric neurologist in Bethany, Oklahoma, and Dr. Marvin Nelson, a pediatric neuroradiologist in Los Angeles, California, also testified and each provided an opinion, similar to Dr. Shah, regarding the etiology of Landon's injuries. Dr. Hille opined that Landon's brain damage was caused by HIE due to an umbilical cord compression which occurred before Shannon “even entered the hospital.” Dr. Hille explained that Landon's brain damage and cerebral palsy resulted from the edema and tissue death associated with HIE, rather than the intracranial (inside the skull) bleeding.
Dr. Hille noted, however, that while he believed the combination of Landon's HIE and coagulopathy (a bleeding disorder that can develop after a severe hypoxic ischemic injury) caused his intracranial bleeding, he could not “rule out the possibility” that some minor trauma associated with the normal process of labor played some role in Landon's injuries. The doctor tetstified, however, that the vasculature in the brain does not become fragile in “seconds or minutes[,][i]t becomes fragile in hours and days.” Dr. Hille did not see any evidence on Landon's imaging studies which suggested that he sustained unusual or extreme trauma during delivery. Moreover, Dr. Hille explained, “[I]f the—this so-called crush injury [from forceps] had occurred literally moments before [the baby] came out [,] don't see how he within a minute would be crying and breathing and have a normal heart rate and [be] acting like a normal baby.”
Similarly, Dr. Nelson opined that the proximate cause of Landon's brain damage was the onset of a low perfusion injury or hypoxic ischemic event, which produced “defuse tissue death,” atrophy, and the development of secondary intracranial hemorrhages. Dr. Nelson agreed with Dr. Shah and Dr. Hille that the baby's HIE developed hours before Shannon presented to the hospital; specifically, sometime “in the neighborhood of [at least] 12 hours” before Landon's birth. Dr. Nelson also agreed that Landon's imaging studies were not consistent with “an impact injury to the head,” as there was no evidence of any skull fractures, overlying scalp hematomas, or lacerations.
At the conclusion of the 4–week trial, the jury found Wesley 100% at fault for Landon's injuries and awarded damages of $2,404,427.12.
After the verdict, Wesley filed a motion for new trial alleging it was denied a fair trial. In particular, Wesley complained the jury improperly rendered a compromise verdict, the verdict was contrary to the evidence, there were violations of the trial court's order in limine and improper remarks made during closing argument by plaintiffs' counsel. Of note, the Unruhs joined in Wesley's motion for new trial with regard to Wesley's allegation of jury misconduct and its contention that the jury's allocation of 100% fault to Wesley was contrary to the evidence. Dr. Montoya, Dr. Hague, and Dr. Voth, however, opposed the granting of a new trial against them. The district court denied Wesley's motion, and Wesley filed this timely appeal.
Was the Jury's Allocation of 100% Fault to Wesley Contrary to the Evidence?
Wesley contends the jury's allocation of 100% fault to it was contrary to the evidence. As a result, Wesley maintains the trial court erred when it refused to set aside the verdict and grant a new trial.
We begin our analysis by stating the well-known standard of review:
“When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of the appellate court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.” Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, Syl. ¶ 12, 266 P.3d 516 (2011).
Wesley argues that the expert testimony presented at trial does not support a finding that its nurses were 100% at fault. Wesley's argument is predicated on the notion that because the Unruhs were a prevailing party, our court should evaluate the sufficiency of the evidence by “[l]ooking only at the Plaintiffs' expert testimony, in the light most favorable to the Plaintiffs, and ignoring the defense experts' testimony.” (Emphasis added.) Utilizing this approach, Wesley relies exclusively on the opinion of the Unruhs' medical expert, Dr. Hall, regarding the cause of Landon's injuries. According to Wesley, Dr. Hall opined that without the misapplication of the forceps by the resident physicians, any hypoxia Landon suffered during his labor and delivery was not significant enough to cause his injuries. According to Wesley, because there must have been some fault attributed to Dr. Hague and Dr. Voth, the jury's finding of 100% fault was contrary to the evidence.
On the other hand, the appellees—the Unruhs, Dr. Montoya, and the resident physicians—argue that, viewed in the light most favorable to the Unruhs, sufficient evidence existed to support the jury's verdict of 100% fault allocated to Wesley because “[t]he jury as trier of fact, is not bound to adopt all of the opinions of any one expert but is entitled to consolidate relevant facts, and synthesize or conflate segments of conflicted expert opinions to achieve a verdict.”
In essence, the Unruhs and the physicians claim there was sufficient expert medical evidence from which the jury could have assigned 100% fault to Wesley because the evidence supported two reasonable conclusions: First, while Dr. Hall was correct that the oxygen deprivation occurred due to the negligent care provided by Wesley's nurses during labor and delivery, the defense experts were correct that Landon's injuries were solely caused by hypoxia rather than birth trauma. Alternatively, while Dr. Hall was correct that Landon's injuries were caused by oxygen deprivation and the use of forceps during delivery, the defense experts were correct when they opined that the resident physicians made proper use of the forceps during a medical emergency which may have caused injuries due to the weakened vasculature in Landon's brain.
“To recover for negligence, a plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. [Citations omitted.]” Yount v. Deibert, 282 Kan. 619, 623–24, 147 P.3d 1065 (2006). In a medical malpractice case, a plaintiff must establish that the health care provider owed the patient a duty of care, the health care provider breached this duty by deviating from the appropriate standard of care, the patient was injured, and the injury proximately resulted from the health care provider's breach of duty. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 420, 228 P.3d 1048 (2010). While the existence of a duty is a question of law, whether there is a causal connection between the duty breached and the injuries sustained is a question of fact which must be proven by substantial competent evidence. Yount, 282 Kan. at 624.
The issue on appeal focuses upon the conflicting expert medical testimony and evidence presented regarding the issues of fault and causation. Ordinarily, a plaintiff is required to present expert medical testimony to establish the applicable standard of care and prove that a departure from that standard caused the plaintiff's injury. See Nold v. Binyon, 272 Kan. 87, 103–04, 31 P.3d 274 (2001).
At the outset, we question the premise underlying Wesley's argument. In Wesley's view, the Unruhs were the sole prevailing party and, as a result, Wesley contends we are constrained by our standard of review to only consider the Unruhs' expert medical evidence and ignore the other medical evidence presented by defense experts in support of the plaintiffs' verdict. Wesley provides no citation to legal authority in support of this view.
In this litigation, the Unruhs were a prevailing party. The jury's verdict in their favor allocated 100% of the fault against Wesley. In our analysis, we will credit all of the trial evidence—including medical testimony presented by defense experts—considering all of the evidence in the light most favorable to the Unruhs which supports the jury's verdict. See Duckworth, 293 Kan. 375, Syl. ¶ 12.
In support of its argument that a reasonable jury could not find Wesley 100% at fault, Wesley emphasizes our Supreme Court's opinion in Aldoroty v. HCA Health Services of Kansas, Inc., 265 Kan. 666, 962 P.2d 501 (1998). According to Wesley, based upon Aldoroty, “a verdict in favor of the Plaintiffs could only be based on Dr. Hall's testimony because he was the Plaintiffs sole expert.” Then again, Wesley cites to Aldoroty and asserts that “[t]he jury in the present case was not free to simply disregard Dr. Hall's testimony when it came to the causal contribution, or proportionate fault of the parties.”
In Aldoroty, the plaintiff sued Wesley and three radiologists, alleging their negligence delayed the diagnosis of his lymphoma. Aldoroty, a physician employee at Wesley, participated in annual health audits during Wesley's Medical Staff Recognition Week. He had a chest X-ray as part of his health audit every year, beginning in 1981. In 1993, radiologists discovered an abnormality on Aldoroty's yearly chest X-ray, which eventually led to a diagnosis of Stage 4 non-Hodgkin's lymphoma.
Aldoroty's “theory of liability was that the radiologists failed to detect changes in his chest X-rays and that their failure was at least partially attributable to [Wesley]'s failure to furnish them with previous films for comparison.” 265 Kan. at 667. Medical testimony established that Wesley had a duty to provide the radiologists with the plaintiff's prior X-ray films and the radiologists had a duty to insure they received these films from Wesley and memorialize in reports that they had compared these films. This was because “[r]eading the current film without comparing previous films would be deviating below an acceptable standard of care.” 265 Kan. at 670–71. At the conclusion of the trial, however, the jury found Wesley 100% at fault.
On appeal, Wesley contended the jury's allocation of 100% fault was contrary to the expert medical evidence, and our Supreme Court agreed. 265 Kan. at 682–83, 688. In reaching this conclusion, the court explained:
“The jury, in disregarding the testimony of all the doctors and finding Wesley 100% at fault, created a ‘Catch 22’ situation. We did find there is evidence to support a finding that Wesley is at fault; however, it does not support a finding that Wesley was 100% at fault.... [T]o find Wesley 100% at fault, the jury would have to reject all the medical testimony, including the plaintiffs expert, Dr. Tourje. Dr. Tourje testified that it is a breach of accepted medical standards for the radiologists to read [Plaintiff]'s chest X-rays without comparison to prior reports. He further opined that failure to note the comparison on the report was also a breach. There is no dispute that the prior reports were available in the hospital and that the radiologists read the 1991 and 1992 X-rays. The jury chose not to believe the doctors' testimony that they did compare the prior X-rays, but the jury cannot disregard the undisputed facts or the uncontroverted testimony of Dr. Tourje that it is a breach of applicable medical standards for a radiologist to make his or her report unless the prior reports are present and, if not, retrieve them from storage. There is no evidence to indicate the radiologists were misled as to [Plaintiff]'s status as a prior patient at Wesley. Absent such evidence, it is a violation of medical standards of care to proceed without the prior report available for comparison.” (Emphasis added.) 265 Kan. at 682–83.
In reversing and remanding for a new trial, our Supreme Court concluded:
“The jury can rely upon only expert medical testimony in determining if the radiologists complied with the appropriate standard of care. The jury was not free to totally ignore the uncontroverted expert testimony that the radiologists were negligent. The finding by the jury that Wesley was 100% at fault is either the result of the jury's rejecting the uncontroverted evidence that the radiologists violated the standard of care or holding Wesley, at least in part, responsible for the negligence of the examining radiologists.” (Emphasis added.) 265 Kan. at 688.
Although Wesley claims in the present case, “[g]iven the unequivocal nature of Dr. Hall's testimony on causation, the decision in [ Aldoroty ] informs the outcome in this case,” we disagree. We fail to see how Aldoroty applies to the facts of the present case or provides any support for Wesley's argument.
Aldoroty is clearly distinguishable from the present case. Unlike Aldoroty, in this trial, there was no uncontroverted expert medical evidence that any of the physicians were at fault. On the contrary, the expert medical evidence in this regard was highly controverted. Because there was no uncontroverted expert medical testimony regarding any physician's fault—unlike in Aldoroty—the jury was not compelled to allocate fault to any of the physicians in this case. Rather, the jury was free to weigh the conflicting expert medical testimony, make determinations regarding witness credibility, and adopt reasonable inferences or conclusions from the various expert medical opinions in considering whether Wesley was solely at fault. In short, we find Wesley's reliance on Aldoroty both inapplicable and unavailaing.
Was the jury's allocation of 100% fault to Wesley contrary to the evidence? To answer this question we must consider all of the trial evidence, but in particular the expert medical evidence presented to the jury. As our Supreme Court explained in In re Estate of Roberts, 192 Kan. 91, 98, 386 P.2d 301 (1963):
“The testimony of experts is to be considered by the same rules and tried by the same tests as any other testimony adduced in a case, and is entitled to such weight and credit as the trier of the facts believes it possesses, when viewed in connection with all the circumstances and other testimony adduced in the case ” (Emphasis added.)
This precedent also formed the basis for jury Instruction No. 10. In analyzing this issue we have reviewed the record with special attention focused on the expert medical evidence and the jury's responsibility to view this evidence in the context of all the facts and testimony presented at trial.
As posited by the Unruhs and the physicians, there are two explanations of the jury's verdict which are supported by the trial evidence and which show the jury's verdict allocating 100% fault to Wesley was not contrary to the verdict.
As presented by the Unruhs:
“It appears that the jury may have agreed with defense experts' radiologist Dr. Nelson and OB expert Dr. Hille that the oxygen deprivation was the sole cause of brain damage, yet disagreed with both experts as to the timing and cause of the hypoxic insult. On the other hand, the jury appears to have agreed with Dr. Hall's finding of hypoxia caused by nursing negligence, but disagreed with Hall's opinion that the majority of the damage was caused by blunt force trauma through breech [ sic ] of [the applicable] standard of care by the untrained and unsupervised residents.”
As detailed earlier, Dr. Hall found the Wesley nurses violated the applicable standard of care by failing to notify the on-call obstetrician to review the fetal monitoring strip because it indicated “hypoxia of the baby.” Dr. Hall opined that the nursing staff's breach of duty unnecessarily delayed Landon's delivery and extended his hypoxia because had the nursing staff brought in the on-call obstetrician, that physician would have proceeded to deliver the baby as quickly as possible by C-section. In Dr. Hall's opinion, however, Landon's injuries resulted from the combination of HIE, which developed during the negligent labor and delivery, and the blunt force trauma the baby sustained by the use of forceps during the delivery.
As pointed out by the Unruhs, in partial contrast to Dr. Hall's causation testimony, Dr. Hille opined that Landon's injuries were caused by HIE and coagulopathy unrelated to trauma associated with the process of delivery. And Dr. Nelson agreed that the cause of Landon's injuries was the onset of a low perfusion injury or hypoxic ischemic event, which produced “defuse tissue death,” atrophy, and the development of secondary intracranial hemorrhages while finding no evidence of any “impact injury to the head” as a result of the forceps delivery.
Under this scenario, with all reasonable inferences drawn from the expert medical testimony provided by Dr. Hall, Dr. Hille, and Dr. Nelson and considered in the light most favorable to the Unruhs, there was substantial competent evidence to support the jury's verdict that Wesley was 100% at fault.
A related explanation of the jury's verdict which is supported by the trial evidence is posited by Dr. Hague and Dr. Voth. The resident physicians assert the jury could have reasonably concluded that Landon's injuries were caused in the very manner suggested by Dr. Hall—a combination of HIE, which developed during the labor and delivery, and trauma inflicted during the emergency delivery by forceps. Under this scenario, however, the jury heard evidence that while the resident physicians may have caused trauma during the delivery, their medical care was not negligent. On the contrary, any trauma caused by the resident physicians in complying with the standard of care during the forceps delivery was part and parcel of the ordinary risks of performing that procedure under the emergency circumstances presented to the physicians.
In support of this view, while Dr. Hall opined that Dr. Hague and Dr. Voth were negligent in their handling of the forceps delivery, the defense experts largely disagreed. Dr. Jackson and Dr. Kaufman testified that both resident physicians complied with the standard of care in all respects during the delivery.
Dr. Lindholm and Dr. Shah, however, testified that a baby that suffers from HIE is more vulnerable to bleeding if “there was trauma in the normal birth process,” and both doctors acknowledged that the word “trauma” does not necessarily imply an inappropriate use of force because a “ normal vaginal delivery has elements of trauma involved.” (Emphasis added.) Likewise, Dr. Hille noted that he could not “rule out the possibility that both the coagulopathy and [HIE] could have made the vessels bleed more easily and that some minor trauma associated with ... the normal process of labor could also have played some role.” Finally, Dr. Kauffinan testified that even in the absence of a hypoxic injury, the use of forceps in accord with the standard of care is associated with some risk for intracranial hemorrhage.
In a medical malpractice case, “the physician or surgeon is presumed to have carefully and skillfully treated or operated on his patient and there is no presumption of negligence from the fact of an injury or adverse result.” Webb v. Lungstrum, 223 Kan. 487, 489, 575 P.2d 22 (1978). In the present case, there was evidence from which the jury could have reasonably concluded that the HIE and forceps delivery caused Landon's injuries, however, because the resident physicians were presented with an emergency and did not violate the standard of care in using the forceps, no fault was attributable to them.
Under this scenario, with all reasonable inferences drawn from the expert medical testimony provided by Dr. Hall, Dr. Jackson, Dr. Kaufman, Dr. Lindholm, Dr. Shaw, and Dr. Hille and considered in the light most favorable to the Unruhs, there was substantial competent evidence to support the jury's verdict that Wesley was 100% at fault.
In conclusion, under either scenario, the jury's verdict allocating 100% fault to Wesley was not contrary to the evidence. Rather, the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the Unruhs, supported the verdict. Accordingly, we hold the trial court did not err in denying Wesley's motion for a new trial based on the verdict being contrary to the evidence.
Did Plaintiffs' Counsel Make Improper Comments During Closing Argument?
Wesley contends that plaintiffs' counsel, representing the Unruhs, made improper comments during closing argument that compromised Wesley's right to a fair trial and, as a result, the trial court erred when it denied Wesley's motion for new trial.
“ ‘Remarks of counsel are reversible error when, because of them, the parties have not had a fair trial.’ [Citations omitted].” Sledd v. Reed, 246 Kan. 112, 117, 785 P.2d 694 (1990). To constitute reversible error, the appellant must show there is a likelihood that the improper remarks changed the result of the trial. 246 Kan. at 117.
Our standard of appellate review regarding the denial of a motion for a new trial indicates that whether improper remarks during closing arguments constitute reversible error is a matter for determination by the district court; thus, an appellate court will not disturb a ruling on this issue unless the appellant sufficiently demonstrates that the district court abused its sound discretion. See Thompson v. KFB Ins. Co., 252 Kan. 1010, 1030, 850 P.2d 773 (1993). A judicial ruling constitutes an abuse of discretion
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Prior to trial, the district court issued an order in limine granting the defendants' motion to enforce a previous order striking any reference to Dr. Hall's second report, which asserted an “ ‘institutional liability’ claim” against Wesley:
“The hospital standard of care would require a mechanism to be in place to call all the appropriate health care providers immediately to the operating room, including the most important physician, the attending obstetrician, the pediatricians, anesthesia, OR crew, and residents. This should all be done within the same time frame. Calling the attending should be the first priority and in this situation, valuable time was wasted by waiting for Dr. Voth to make a call to Dr. Rogers' beeper when Dr. Rogers was very close to the operating room and would have been in position when the residents arrived.”
When making this order, the district court noted that, by doing so, it was prohibiting any mention, by the plaintiffs, of the particulars of Wesley's residency program.
The district court also entered an order finding that Wesley and each physician in the case was “a ‘health-care provider’ in March 2007, and is currently ‘a health-care provider’ pursuant to K.S.A. 40–3401(f).” The parties agreed that plaintiffs' counsel would be barred from making “[a]ny reference to any physician who is a ‘health care provider’ being an employee of Wesley Medical Center or being a ‘Wesley doctor’ or a ‘Wesley resident’ or any inference that Wesley is vicariously liable for the acts of another ‘health care provider’[;] ... [as][t]his theory of recovery has been abolished in Kansas.”
At the conclusion of the trial, the trial court provided the jury with the following relevant instructions:
“Instruction No. ____ 12 ____
“ Plaintiffs Claims:
....
“The plaintiffs claim that Landon Unruh sustained damages due to the fault of Defendant Wesley Medical Center, by and through its nurse employees, in the following respects:
“By failing to accurately interpret fetal monitor tracings and contact back-up obstetrical physician, proximately causing brain damage to Landon Unruh.
“You may not consider a theory as a basis of recovery against a defendant except a theory which has been claimed by the plaintiffs. The claims of the plaintiffs are specified above. Likewise, you may not consider any item as damages except those items which have been claimed by the plaintiff.”
“Instruction No. ____ 20 ____
“A health care provider cannot be found at fault for acts or omissions of other health care providers. A physician is only responsible for injuries or damages caused by his or her own acts or omissions. A hospital is only responsible for injuries or damages caused by the acts or omissions of its nurses.”
“Instruction No. ____ 22 ____
“In interpreting the last instruction [ (defining negligence and fault) ], it may help you to keep the following things in mind:
“Your first obligation is to determine if any of the Defendants are at fault.
“Next, assign a percentage of fault to each of the Defendants you find to be at fault.
“For a Defendant not at fault, show 0% on your verdict form.
“For any Defendant at fault, show 1% to 100%, depending on your finding, on your verdict form.
“If any of the Defendants are found at fault, the fault of all Defendants, when added on your verdict form, must total 100%.
“Next, determine the amount of damages sustained by any party claiming damages. Keep in mind that in setting forth damage amounts on your verdict form, you set out the full damage sustained by that party.
“The parties to whom you have the discretion to assign fault are:
“Natali[a] Montoya, M.D. Matthew Voth, M.D.
“Melissa Hague, M.D. Wesley Medical Center
....“
“Instruction No. ____ 23 ____
“In making the apportionment of percentage of fault you should keep in mind that the percentage of fault attributable to a party is not to be measured solely by the number of particulars in which a party is found to have been at fault.
“You should weigh the respective contributions of the parties to the occurrence in question and considering the conduct of each as a whole, determine whether one made a larger contribution than the other(s), and if so, to what extent it exceeds that of the other(s).”
During the rebuttal portion of the plaintiffs closing argument, counsel urged the jury to complete its verdict form with the following allocations of fault:
+----------------------------+ ¦Dr. Natalia Montoya ¦8.33%¦ +----------------------+-----¦ ¦Dr. Melissa Hague ¦8.33%¦ +----------------------+-----¦ ¦Dr. Mathew Voth ¦8.33%¦ +----------------------+-----¦ ¦Wesley Medical Center ¦75% ¦ +----------------------------+
Plaintiffs' counsel then explained:
“[Y]ou have four defendants here; the nurses are not defendants in this suit, Wesley as the—they are merely agents of Wesley. So you have the three doctors and the hospital. You notice I've got the highest percentage of damage [fault] here for the hospital; why is that? Well, the hospital was the one who makes the decisions about which doctor should have privileges in the hospital. Privileges to come and practice, deliver babies, mend bones, internist, whoever; those privileges are granted by the hospital; they make the decisions. You cannot come into the hospital and practice without that. The nursing staff are all employees of the hospital; they make critical decisions; they do important work, and I think most of the time, they get it right, and they are valuable resources, this hospital; in this community, but no matter how much time you spend doing something, we all make mistakes.”
No contemporaneous objection was made to this argument.
At this point, the trial court informed counsel that he had 5 minutes remaining. After thanking the judge for the reminder, plaintiffs' counsel stated, “Finally, with respect to Wesley, Wesley is the one that contracted with the intern program; they have—“. Wesley's counsel interrupted and promptly lodged an objection. An off-the-record bench conference occurred. Upon its conclusion, plaintiffs' counsel resumed his argument by stating, “Wesley is in the best position to control the process on their premises.” No contemporaneous objection was made to this comment.
When plaintiffs' counsel finished his argument, the trial judge admonished the jury, “Ladies and gentlemen, I, once again, remind you that the lawyer's comments are not evidence, and I would also remind you, any claims that are made are set forth in the instructions, and the instructions, clearly, give you guidance on which claims to consider in this case.”
After excusing the jury from the courtroom, the trial judge summarized the earlier bench conference on the record, and Wesley moved for a mistrial:
“THE COURT: The final issue just came up regarding Mr. Peckham's [plaintiffs' counsel] suggestions as to the percentage of fault concerning Wesley. Counsel approached; Mr. Maloney [Wesley's counsel] expressed concern, as did the Court, as to Mr. Peckham describing the claims of culpability of Wesley being inconsistent with those set forth in the instruction. I ... concurred with Mr. Maloney's concern. The Court instructed Mr. Peckham to stick to those claims set forth in the instructions, and further agreed that the Court would make additional comments to the jury reminding them that the claims are only permissible as set forth in those instructions. That was the Court's ruling.
“Mr. Peckham, have I accurately described that conversation and the Court's ruling?
“MR. PECKHAM: Yes, Your Honor.
“THE COURT: Mr. Maloney?
“MR. MALONEY: You have, Your Honor, however, I would like to be heard more substantively on the issue. The comments from Mr. Peckham in his closing argument were two fold. The first comment is and dealt with he [inartfully] tried to articulate a negligent credential claim clearly contrary to Kansas law. The second comment he made during his closing argument dealt with the contract issue with the Kansas School of Medicine—Kansas University School of Medicine Residency Program, clearly, in violation of the Court's Order in Limine. Based on those two violations, of Kansas law and this Court's prior Order in Limine, I'm compelled to move for a mistrial on behalf of my client, Wesley Medical Center.
“THE COURT: Thank you, Mr. Maloney.
“MR. MALONEY: Your Honor, just to complete the record, with all due respect, I do not believe, and I feel compelled to make the motion, and I do not believe the Court's curative attempt with comments, after the fact, were sufficient to protect my client's interest. Thank you.”
The following colloquy then occurred between the trial judge and plaintiffs' counsel:
“THE COURT: All right. Thank you. Mr. Peckham?
“MR. PECKHAM: No comment, Your Honor.
“THE COURT: You want to help me understand, Mr. Peckham, why you thought it was appropriate to bring up comments that had no basis in the instructions not only that the Court ruled upon, that you had agreed to, regarding the claims in this case?
“MR. PECKHAM: We were not making a direct attack on the credentials of Dr. Montoya.
“THE COURT: I didn't ask you that, it was regarding Wesley.
“MR. PECKHAM: Well, we're not indicating that they have, necessarily—with the statement to the jury—the overall umbrella statement to the jury was the hospital has overall control of what happens in its premises, and it was not to make a direct attack [of] its credential and capacity.
“THE COURT: If you wish, Mr. Peckham, I could find the specific instruction, but I believe there is a[n] instruction that I have just given that says the hospital is responsible for the nurses and not the physicians. How [are] your comments, in closing, consistent with that instruction?
“MR. PECKHAM: Well, if it is not consistent th[en] we apologize to the Court.
“THE COURT: Well, that isn't the issue before the Court right now. It is not your apology it's whether I should grant the mistrial or not. Help me understand why, in your opinion, I shouldn't.
“MR. PECKHAM: The evidence that—first of all, closing statements, like opening statement, [closing] statements are the opinions of counsel; they are not, in any way, binding on this jury, and the instructions indicate so to the jury. There are many things that were said by both sides, in closing remarks, that may have pushed the envelope. My intent was not to push the envelope but merely to justify the figure that we put down on the paper as to damages.”
After listening to Wesley's arguments, the trial court took the matter under advisement.
After the jury's verdict, Wesley renewed its motion for mistrial based, in part, on the misconduct of plaintiffs' counsel during closing argument. In response, the trial court requested briefs from the parties. Ultimately, the trial court denied Wesley's motion for a mistrial without prejudice to raising the issue again in a motion for new trial. Shortly thereafter, Wesley filed a timely motion for new trial and reprised its legal arguments After a hearing, the trial court filed a 25–page memorandum decision denying Wesley's motion.
With regard to Wesley's allegation of plaintiffs' counsel making improper comments during closing argument, the trial court found the remarks about Wesley granting privileges to doctors to practice at the hospital and the residency program to be “objectionable” and “impermissible.” The trial court also found the mention of the residency program was a “mistake” which violated the order in limine but was also a “ ‘slip-up’ “ that was “understandable given the number of Orders in Limine in this case.” The trial court, however, found no “substantial prejudice” resulted because of the improper argument.
With regard to the comment that “Wesley is in the best position to control the process on their premises,” the trial court found no violation of the order in limine. On the contrary, the trial court found:
“Counsel's statement is not flagrant or egregious; it does not even have a clear meaning. Wesley merely presumes the statement was in reference to Wesley's liability for its contract physicians. It is more likely, however, that Counsel's statement referred only to Wesley's liability for its nurses, as that was the topic of Counsel's immediately preceding statements.”
In evaluating all the remarks Wesley claimed were objectionable, the trial court found “[t]he court's curative response was sufficient to relieve Wesley of any potential prejudice.” The trial court also dismissed Wesley's complaint that its admonition was insufficient. In particular, the trial court found the timing of Wesley's objection adversely impacted the trial court's ability to issue a curative instruction because “both objectionable language ... and appropriate argument” preceded the objection. Moreover, the trial court stated that during the bench conference, Wesley did not ask the trial court to sustain its objection in front of the jury, provide the jury with a specific instruction, or to immediately specify which statements made by the Unruhs' counsel were objectionable. The trial court also noted that Wesley did not lodge a contemporaneous objection to its handling of the improper comments.
In summary, the trial court concluded: “Plaintiff[s'] Counsel's remarks during rebuttal were isolated and not substantially prejudicial. The Court's curative response provided sufficient relief for Wesley. Wesley has failed to prove any of Plaintiff's Counsel's conduct caused substantial prejudice to Wesley.”
Before addressing the merits of Wesley's argument, the Unruhs argue that Wesley did not preserve this issue for appellate review because there was no contemporaneous objection made to the offending remarks. In civil cases, “ ‘[i]t is a well-established rule that misconduct of counsel in argument to the jury is not available as a ground for reversal where no objection is made to it and no request is made for a ruling thereon, or for an instruction to the jury concerning it.’ “ Siler v. City of Kansas City, 211 Kan. 258, 258, 505 P.2d 765 (1973) (quoting Mai v. City of Garden City, 177 Kan. 179, 185, 277 P.2d 636 (1954); see Sledd, 246 Kan. at 117. Wesley's counsel did not promptly object to some of the challenged comments. Still, we are persuaded that Wesley's delayed objection and request for relief was sufficiently contemporaneous to permit the trial court to correct any errors. As a result, we conclude this issue was preserved for appellate review.
On appeal, Wesley complains of the following three comments made by plaintiffs' counsel:
“[ (1) ] [T]he nurses are not defendants in this suit, Wesley as the—they are merely agents of Wesley. So you have the three doctors and the hospital. You notice I've got the highest percentage of damage [fault] here for the hospital; why is that? Well, the hospital was the one who makes the decisions about which doctor should have privileges in the hospital. Privileges to come and practice, deliver babies, mend bones, internist, whoever; those privileges are granted by the hospital; they make the decisions. You cannot come into the hospital and practice without that....”
“[ (2) ] ... [W]ith respect to Wesley, Wesley is the one that contracted with the intern program; they have—“
“[ (3) ] Wesley is in the best position to control the process on their premises.”
Comparing the first two comments to the trial court's order in limine, it is apparent that plaintiffs' counsel violated the trial court's order and, as a result, the comments were improper. Accordingly, we agree with the trial court that the comments were “objectionable” and “impermissible.” With regard to the third comment, however, we agree with the trial court that this remark was ambiguous and susceptible to interpretations other than a clear violation of the order in limine. Accordingly, we find no error as to this statement.
Next, we consider whether the two improper remarks constituted reversible error. In other words, is there “a likelihood that the improper remarks changed the result of the trial”? Sledd, 246 Kan. at 117.
According to Wesley, the two objectionable comments were prejudicial because, contrary to Kansas law, they raised a claim of corporate negligence. A corporate negligence claim was also contrary to the instructions provided to the jury. While we agree with Wesley that these arguments impermissibly mentioned corporate negligence for the first time—contrary to the trial court's order in limine and jury instructions—we disagree as to the prejudicial effect.
As noted by the trial court, appropriate argument was made to the jury by plaintiffs' counsel regarding the legal relationship between Wesley and its nurses. This argument also distinguished the nurses from the physicians. It was immediately after this permissible argument that the Unruh's counsel veered off course. While the improper comments, standing alone, could have sown some confusion, the trial court's instructions, were crystal clear. In particular, Instruction No. 20 advised the jury:
“A health care provider cannot be found at fault for acts or omissions of other health care providers. A physician is only responsible for injuries or damages caused by his or her own acts or omissions. A hospital is only responsible for injuries or damages caused by the acts or omissions of its nurses.”
Appellate courts presume that a jury followed the instructions provided by the district court. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 438, 228 P.3d 1048 (2010). Instruction No. 20, in harmony with Instruction Nos. 12 and 22 (provided earlier) and the verdict form, clearly informed the jury that Wesley was not responsible for the separate legal claims made against the physicians.
We also agree with the trial court that its curative instruction at the conclusion of plaintiffs' counsel's argument mitigated any potential prejudice. That admonishment, made shortly after the offending remarks, appropriately cautioned the jury that counsel's arguments were not evidence. The trial court also focused the jury's attention on the instructions, emphasizing that they “give you guidance on which claims to consider in this case.” The instructions provided the jury with a clear and accurate statement of Kansas law pertaining to the liability of health care providers, the theories of recovery it could consider against each defendant, and a description of the procedure for assigning fault to each party individually.
We also question Wesley's complaint on appeal that the trial court's admonition was inadequate and it should have sustained Wesley's objection in the presence of the jury. As the trial court noted, Wesley did not request an alternative instruction, nor did it ask the trial court to sustain the objection in front of the jury. Wesley may not remain silent while the trial court, in the presence of the parties, formulates a curative instruction only to complain about the language used in that instruction after it is provided to the jury. This is akin to inviting error and then complaining about it on appeal. See Butler County R. W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003).
As mentioned earlier, Wesley's delay in interposing the objection complicated the trial court's ability to fashion a curative instruction. Proper argument followed plaintiffs' counsel's objectionable argument, and both occurred before Wesley stated an objection. Thus, the trial court was confronted with remedying the situation without unduly highlighting the objectionable material or confusing the jury. Especially given this dilemma, which was precipitated by Wesley's delay in stating an objection, we do not find the curative instruction was inadequate to prevent prejudice.
Finally, as Dr. Montoya, Dr. Hague, and Dr. Voth assert, Wesley assumes that the remarks made by plaintiffs' counsel were prejudicial because the jury assigned 100% fault to Wesley. Indeed, Wesley states:
“There is clear reason why the jury disregarded the evidence. It was impelled to do so by Plaintiffs' rebuttal argument urging the jury to find Wesley responsible for all the conduct of the resident physicians—contrary to Kansas law and the instructions. As the verdict reflects, the ploy was successful, and the prejudice is self-evident.”
But, as discussed in the first issue, the evidence was sufficient to support the jury's verdict allocating 100% fault to Wesley, regardless of any impermissible mention of corporate negligence. Under all of the circumstances, Wesley has failed to prove that the improper remarks changed the result of the trial. We conclude the trial court did not abuse its discretion when it denied Wesley's motion for a mistrial or new trial based upon the improper remarks made during closing argument.
Given our holding, it is unnecessary to address the merits of Dr. Montoya's cross-appeal or other arguments raised by the defendants.
Affirmed.