419 P.2d 912 (Kan. 1966), 44545, Brown v. Hardin

Docket Nº:44545.
Citation:419 P.2d 912, 197 Kan. 517
Party Name:Naomi M. BROWN, Substituted as Successor In Interest to Lloyd L. Brown, Deceased, Appellant, v. Creighton A. HARDIN, M.D., Appellee.
Attorney:[6] W.C. Jones, of Olathe, argued the cause, and Howard E. Payne, Robert P. Anderson, Keith Martin and H. Thomas Payne, all of Olathe, and Clay C. Rogers, Lyman Field, and Reed O. Gentry, all of Kansas City, Mo., were with him on the brief for the appellant. John J. Alder, of Kansas City, argued ...
Case Date:November 05, 1966
Court:Supreme Court of Kansas
 
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Page 912

419 P.2d 912 (Kan. 1966)

197 Kan. 517

Naomi M. BROWN, Substituted as Successor In Interest to

Lloyd L. Brown, Deceased, Appellant,

v.

Creighton A. HARDIN, M.D., Appellee.

No. 44545.

Supreme Court of Kansas

November 5, 1966

Page 913

Syllabus by the Court

1. One seeking reversal of a judgment because of erroneous exclusion of evidence has the burden of demonstrating prejudice as well as error in the ruling complained of.

2. Requests for relief based on insufficiency of evidence offered by a plaintiff are to be dealt with according to their true nature rather than in accordance with descriptive labels attached to them.

2. A request for relief made after plaintiff has completed the presentation of his evidence, based on insufficiency of evidence is the equivalent of a motion for involuntary dismissal (K.S.A. 60-241(b)) on the ground that upon the facts and the law the plaintiff has shown no right to relief.

4. Complaints in a malpractice action that the trial court erred in (1) the exclusion of evidence, (2) its refusal to submit plaintiff's cause of action for jury determination upon one alleged ground of negligence because of insufficiency of evidence, and (3) its refusal to grant a new trial because of misconduct of counsel in jury argument and misconduct of jurors during deliberations, examined and held, prejudicial error requiring reversal of the final judgment is not shown in the record.

W. C. Jones, Olathe, argued the cause, and Howard E. Payne, Robert P. Anderson, Keith Martin and H. Thomas Payne, Olathe,

Page 914

Clay C. Rogers, Lyman Field, and Reed O. Gentry, Kansas City, Mo., were with him on the brief, for appellant.

John J. Alder, Kansas City, argued the cause, and Harley V. Haskin, Olathe, was with him on the brief, for appellee.

HARMAN, Commissioner:

This is an action to recover damages for personal injury for malpractice wherein the jury verdict was for defendant-appellee. Following the filing of the appeal in this court the plaintiff-appellant died and his widow has now been substituted as his successor in interest herein. For convenience the parties will be referred to as they appeared in the court below.

[197 Kan. 518] Briefly stated, the plaintiff's petiton alleged that while hospitalized he underwent surgery on his abdominal aorta performed by defendant surgeon on March 8, 1961; that thereafter he developed a gangrenous condition in his lower extremities with the result that on March 21, 1961, it became necessary for defendant to remove both of plaintiff's legs above the knees. Plaintiff alleged that the loss of his legs was occasioned by the negligence of defendant in two respects: (1) That defendant failed to inform him of the possible consequences and hazards of the initial operation and therefore did not obtain plaintiff's informed consent thereto; and (2) that defendant negligently rendered postoperative care following the first operation. Defendant's answer took issue with both allegations of negligence. Claims of error will be discussed in chronological sequence.

Plaintiff claims that the court erred in excluding the testimony of Doctor David Schalker, offered by plaintiff in the form of a deposition taken by defendant. Additional pertinent facts here are: On June 24, 1964, the trial court held the first of three pretrial conferences; at this time the court directed that there be an exchange of names of witnesses at a further pretrial conference to be held November 6, 1964, and set the case for trial on December 7, 1964. On November 5, 1964, pursuant to agreement of the parties, a second pretrial conference was held. Specific inquiry was made by defendant as to the names of any medical witnesses to be called by plaintiff in response to which plaintiff's counsel stated that at that time plaintiff did not have any medical witnesses. The two attorneys for plaintiff who were then present at the pretrial stated that a third attorney for plaintiff had departed that day for California to attend the taking by defendant of the deposition of Doctor David Schalker. Due to the absence of this attorney the court gave...

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