Adams v. VIA CHRISTI REGINAL MED. CENTER, 83,947.

• Decision Date: 09 March 2001
• Docket Number: No. 83,947.,83,947.
• Citation: 270 Kan. 824,19 P.3d 132
• Parties: ALBERT & FORESTEAN ADAMS, Individually, and as Special Administrators of the Estate of NICHELLE DENISE ADAMS, Deceased, Appellant/Cross-appellees, v. VIA CHRISTI REGIONAL MEDICAL CENTER, et al., Defendants, and, LINUS OHAEBOSIM, D.O., Appellee/Cross-appellant.
• Court: Kansas Supreme Court

270 Kan. 824

19 P.3d 132

ALBERT & FORESTEAN ADAMS, Individually, and as Special Administrators of the Estate of NICHELLE DENISE ADAMS, Deceased, Appellant/Cross-appellees, v. VIA CHRISTI REGIONAL MEDICAL CENTER, et al., Defendants, and, LINUS OHAEBOSIM, D.O., Appellee/Cross-appellant.

No. 83,947.

Supreme Court of Kansas.

Opinion filed March 9, 2001.

Randall E. Fisher, of the law office of Randall E. Fisher, of Wichita, argued the cause and was on the briefs for appellants/cross-appellees.

William Tinker, Jr., of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., of Wichita, argued the cause and Scott E. Sanders and David L. Vogel, of the same firm were with him on the briefs for appellees/cross-appellant.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

This is a personal injury and wrongful death action filed by Albert and Forestean Adams, the parents of Nichelle Adams, who died as a result of a ruptured ectopic pregnancy. The parents sued St. Francis Regional Medical Center, now known as Via Christi Regional Medical Center, and Dr. Linus Ohaebosim. The parents settled all their claims against the hospital for $170,000. The parents' action against Dr. Ohaebosim proceeded to trial, and the jury returned a verdict in favor of the parents. The jury's nonpecuniary wrongful death damage award was for $1,800,000. Because the parents already had received the statutory limit on wrongful death damages as settlement proceeds from the hospital, the trial court entered no judgment against Dr. Ohaebosim for wrongful death damages. The parents appeal from the trial court's entry of judgment. Dr. Ohaebosim cross-appeals on liability issues. The case was transferred to this court pursuant to K.S.A. 20-3018(c).

In July 1992, Nichelle Adams was 22 years old and was living with her parents and her younger sister. On July 22, Mrs. Adams got home from work at approximately 8:40 p.m. to find that Nichelle had been complaining about her stomach and had gone to bed. Mrs. Adams was concerned because Nichelle generally was a very active person.

Dr. Ohaebosim, an osteopath, who had been a family practitioner for 22 years, had been the family physician for Mr. and Mrs. Adams and their three children for several years. He had a patient file on Nichelle, but he had not seen her in his office since 1988. On July 6, Nichelle completed a form for Planned Parenthood in which she answered "no" to the question "Do you have a family physician?" Dr. Ohaebosim continued to provide medical care to other members of the family. Mrs. Adams had gotten medical advice from Dr. Ohaebosim over the telephone on a number of occasions.

Until 1990, Dr. Ohaebosim included as part of his family practice the treatment of women through pregnancy, labor, and delivery. He delivered over a thousand babies. After 1990, he continued to treat pregnant women for nonpregnancy-related conditions and to make the determination for women that they were pregnant, but he referred women to other practitioners for prenatal care, labor, and delivery. Dr. Ohaebosim testified about sending a letter to his patients to advise them that he would no longer be providing obstetrical care. He also testified that he advised all the hospitals, "I don't deliver babies any more." He further stated, "This is my notice written. I'm writing to inform you that I would cease delivering babies on January, 1990, on the 1st of January, 1990." Mrs. Adams testified that she did not receive a letter from the doctor advising that he no longer offered obstetrical care. She was unaware that Dr. Ohaebosim had eliminated obstetrical care from his practice.

At approximately 9 p.m. on July 22, Mrs. Adams called Dr. Ohaebosim. She got his answering service, and then the doctor called Mrs. Adams right back. She told Dr. Ohaebosim that Nichelle was 5 to 8 weeks pregnant and was experiencing abdominal pain. Mrs. Adams later told a doctor at the hospital that she mentioned shortness of breath to Dr. Ohaebosim in the telephone conversation, but Dr. Ohaebosim later denied it, and at the time of trial Mrs. Adams could not remember telling him anything other than Nichelle was pregnant and had abdominal pain.

Dr. Ohaebosim testified that 8 weeks is the typical time when an ectopic pregnancy becomes symptomatic because the fetus becomes too large for the fallopian tube. When Mrs. Adams told Dr. Ohaebosim of Nichelle's condition, he did not suspect that Nichelle might have an ectopic pregnancy.

Based on his previous experiences with Mrs. Adams, he expected her to be thorough and matter-of-fact in describing whatever medical condition she called him about. According to Dr. Ohaebosim, Mrs. Adams did not express urgency or serious concern when she called him on July 22.

Dr. Ohaebosim testified that he told Mrs. Adams that abdominal pain is not abnormal during pregnancy but to take Nichelle to the emergency room if she got any worse. He also told her to have Nichelle see a doctor the next day. Mrs. Adams testified that Dr. Ohaebosim did not mention taking Nichelle to the emergency room, but that he did say to bring her into his office the next day. Dr. Ohaebosim and Mrs. Adams agreed that he did not ask her any questions about Nichelle's condition.

At approximately midnight, Mrs. Adams drove Nichelle to the hospital, where she was admitted into the emergency room at 12:25 a.m. on July 23. By the time Nichelle was taken into an examining room, she was agitated and thrashing around. While Mrs. Adams was alone with Nichelle in the examination room, Nichelle vomited. Mrs. Adams called for help, and, when hospital personnel took over Nichelle's care, Mrs. Adams was taken to a nursing station to call her husband. Mrs. Adams testified that she was taken by surprise because she "just didn't expect all this to unfold. It just unfolded so fast." Before her husband arrived at the hospital, Mrs. Adams was told that Nichelle had gone into cardiac arrest. Later she was told that Nichelle was being taken to surgery.

Dr. Ohaebosim was not contacted with regard to Nichelle until approximately 4 p.m. on July 23. He immediately went to the hospital. Nichelle was on life support systems and nonreactive to the light Dr. Ohaebosim shined in her eyes. He discussed Nichelle's condition with her family, and at approximately 6:30 p.m. she died after being removed from the support systems pursuant to her family's decision. There was evidence that Nichelle might have lived if she had received medical care at 9 or 9:30 p.m. on July 22, instead of after midnight.

Mr. and Mrs. Adams, individually and as administrators of the estate of Nichelle Adams, sued St. Francis Regional Medical Center and Dr. Ohaebosim. Mr. and Mrs. Adams settled with the hospital for $170,000. They proceeded to trial against Dr. Ohaebosim. The jury found Dr. Ohaebosim 90% at fault and the hospital 10% at fault. The jury found that a physician-patient relationship existed between Nichelle Adams and Dr. Ohaebosim on July 22, 1992. The jury determined the following damages:

Forestean and Albert Adams' non-economic loss to date: $500,000.

Forestean and Albert Adams' future non-economic loss: $500,000.

Forestean and Albert Adams' economic loss: $15,000.

Estate of Nichelle Adams' non-economic loss between 9 p.m. July 22, 1992 and Nichelle Adams' death: $1,000,000.

The total damage award was $2,015,000. $200,000 of the award to Nichelle's estate was for pain and suffering. In 1992, K.S.A. 60-1903(a) placed a cap of $100,000 nonpecuniary damages in a wrongful death action.

The trial court's journal entry of judgment states:

"The plaintiffs Albert and Forestean Adams are entitled to recover a maximum of $100,000 for non-economic damages and $15,000 for economic damages for their wrongful death cause of action. The plaintiffs having previously recovered $170,000 for their wrongful death cause of action, the plaintiffs take no judgment against the defendant for their wrongful death claim. The jury having awarded the Estate of Nichelle Adams $200,000 for pain and suffering prior to her death, after application of the jury's findings of fault, the Estate of Nichelle Adams is entitled to Judgment against the defendant in the amount of $180,000."

We first determine if the district court erred in denying recovery of any wrongful death damages from Dr. Ohaebosim. The particular question presented by this case has not yet been considered by a Kansas appellate court. It involves statutory interpretation and is a question of law over which the court has unlimited review. Sebelius v. LaFaver, 269 Kan. 918, 920, 9 P.3d 1260 (2000).

The parents' position is that extension of settled comparative negligence principles to their circumstances requires reversal of the trial court's ruling. In Geier v. Wikel, 4 Kan. App.2d 188, 603 P.2d 1028 (1979), the court considered what effect a claimant's release of one person or entity would have on claimant's right to recover from others. One Geier son was killed and one injured in a car-train collision. The Geiers gave unconditional releases to the railway company. Wikel, the driver of the car, filed a motion for summary judgment, which the trial court granted on the common-law joint and several liability theory that the release of one joint tortfeasor releases all. The decision in Geier dispelled the notion that the concept of joint and several liability survived the legislature's enactment of the comparative negligence statute, K.S.A. 60-258a. The Court of Appeals declared:

"An injured party whose claim for damages is exclusively subject to the Kansas comparative negligence statute may now settle with any person or entity whose fault may have contributed to the injuries without that settlement in any way affecting his or her right to recover from any other party liable under the act. The injured party is entitled to keep the advantage of his or her bargaining, just as he or she must live with an inadequate settlement should the

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