Pipe v. Hamilton

• Decision Date: 01 November 2002
• Docket Number: No. 88,371.,88,371.
• Citation: 56 P.3d 823,274 Kan. 905
• Parties: JAMES PIPE, Individually and for and on Behalf of the Heirs at Law of EDWINA PIPE, Deceased, and JAMES PIPE, as Administrator of the Estate of EDWINA PIPE, Deceased, Appellant, v. JAMES J. HAMILTON, M.D., Appellee.
• Court: Kansas Supreme Court

274 Kan. 905

56 P.3d 823

JAMES PIPE, Individually and for and on Behalf of the Heirs at Law of EDWINA PIPE, Deceased, and JAMES PIPE, as Administrator of the Estate of EDWINA PIPE, Deceased, Appellant, v. JAMES J. HAMILTON, M.D., Appellee.

No. 88,371.

Supreme Court of Kansas.

Opinion filed November 1, 2002.

Kevin L. Diehl, of Ralston, Pope & Diehl, LLC, of Topeka, argued the cause, and Eugene B. Ralston, of the same firm, was with him on the brief for appellant.

Wayne T. Stratton, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, argued the cause, and Nathan D. Leadstrom, of the same firm, was with him on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Appellant James Pipe appeals the district court's grant of summary judgment in favor of appellee Dr. James J. Hamilton. The district court held that Pipe failed to establish a prima facie case of loss of chance of survival due to medical malpractice because a 5 to 10 percent chance of survival is not substantial as a matter of law. We reverse and remand.

Edwina Pipe was admitted to the hospital on May 24, 1998. Dr. Hamilton was brought in as a consultant in her case. On May 29, 1998, Dr. Hamilton operated on Edwina for small bowel obstruction. A second operation was performed on June 3, 1998, at which time Dr. Hamilton discovered gangrenous tissue. Based on the findings of the second operation, Dr. Hamilton believed Edwina's bowel to be dead. Dr. Hamilton informed James Pipe, Edwina's husband, that Edwina was only expected to live 6 to 12 hours. Based upon Dr. Hamilton's prognosis, James, acting pursuant to Edwina's living will and durable power of attorney for health care decisions, asked that life support be withdrawn. Edwina died shortly thereafter.

James Pipe filed this action against Dr. Hamilton in Shawnee County District Court on May 12, 2000. Dr. Hamilton filed a motion for summary judgment on the grounds Pipe failed to establish a prima facie case of medical malpractice or loss of chance of survival.

Pipe's expert witness, Dr. John White, testified in his deposition that it was his professional opinion that Dr. Hamilton had breached a duty of care by not performing more tests to determine if Edwina's condition was treatable. Dr. White also stated that even if Dr. Hamilton had met the standard of care required, "the likelihood that [Edwina] would have left the hospital was very small," which likelihood in terms of percentage was "[f]rom five to ten percent at best." Dr. White believed that despite what Dr. Hamilton did regarding her care, Edwina's mortality rate was between 90 and 95 percent.

The district court granted summary judgment in favor of Dr. Hamilton, finding that Pipe had failed to set forth a prima facie case for loss of chance of survival. Pipe filed a motion for new trial and reconsideration of the decision. The motion was denied. A timely notice of appeal was filed. We have jurisdiction pursuant to K.S.A. 20-3018(c) (transfer on our own motion).

Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 2001 Supp. 60-256(c). The trial court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. Irvin v. Smith, 272 Kan. 112, Syl. ¶ 1, 31 P.3d 934 (2001). The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although the party is not required to prove its case. Dominguez v. Davidson, 266 Kan. 926, 930, 974 P.2d 112 (1999). In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. Friesen-Hall v. Colle, 270 Kan. 611, 613, 17 P.3d 349 (2001). Summary judgment should never be granted merely because the court believes the movant would prevail at a trial on the merits. Moran v. State, 267 Kan. 583, 590, 985 P.2d 127 (1999). On appeal, this court applies the same rules, and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).

Neither party contends there is a material issue of fact in dispute. Instead, the parties take opposite positions as to whether a 5 to 10 percent chance of survival is sufficient to maintain a cause of action and survive a motion for summary judgment in Kansas. Because in this case the court is required to resolve all facts and inferences in favor of James Pipe, the party against whom summary judgment is sought, the court only determines whether the loss of a 10 percent chance of survival is sufficient to withstand summary judgment. See Colorado Interstate Gas Co. v. Beshears, 271 Kan. 596, Syl. ¶ 1, 24 P.3d 113 (2001).

Kansas first recognized the loss of chance of survival cause of action in Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984),modified by Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994). In Roberson, the defendant chiropractor was alleged to have been professionally negligent in failing to recognize his patient was experiencing symptoms consistent with those of acute heart disease and in failing to refer the patient for appropriate medical treatment. The negligence was alleged to have substantially reduced the patient's chance of surviving the heart attack that ultimately took his life. One expert witness testified that the failure to receive medical treatment resulted in the loss of 6 percent chance for survival, while another testified that without medical treatment his chance for survival decreased from a 40 percent chance for survival with proper medical treatment to a zero percent chance for survival. The district court granted the chiropractor's motion for summary judgment, finding that the plaintiff had failed to meet the burden of proof and show that it was more likely than not that the chiropractor's conduct was a substantial factor in the causation of the injury.

On appeal, the Roberson court addressed the issue of whether the evidence of causation was insufficient to constitute a submissible jury question. The court cited the case of Hicks v. United States, 368 F.2d 626 (4th Cir. 1966), quoting as follows:

"`When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. [Citation omitted.]' 368 F.2d at 632." 235 Kan. at 1015.

After considering Hicks and cases from other jurisdictions, the Roberson court reversed the district court and held as follows:

"The question of causation in cases involving negligent treatment of a potentially fatal condition (including failure to refer the patient to an appropriate specialist) is generally a matter to be determined by the finder of fact where the evidence has established the patient had an appreciable chance to survive if given proper treatment. In making this determination, the finder of fact should take into account both the patient's chances of survival if properly treated and the extent to which the patient's chances of survival have been reduced by the claimed negligence.

"There are sound reasons of public policy involved in reaching this result. The reasoning of the district court herein ..., in essence, declares open season on critically ill or injured persons as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. Under such rationale a segment of society often would be at the mercy of those professionals on whom it must rely for life-saving health care." (Emphasis added.) 235 Kan. at 1020-21.

A decade later, this court further expounded upon the loss of chance cause of action in terms of loss of chance for better recovery in Delaney, 255 Kan. 199. In Delaney, the United States Court of Appeals for the Tenth Circuit certified the following questions to this court: (1) Does Kansas recognize a cause of action for loss of chance of recovery? (2) If so, what are the standards of proof for such claim? This court responded by stating that Kansas does recognize a cause of action for loss of chance for better recovery, relying upon the decision in Roberson and the policy behind that decision. Delaney, 255 Kan. at 210-13. The court further stated that in order to put forth sufficient evidence to establish the cause of action for loss of chance a party must demonstrate that the loss of chance was substantial. 255 Kan. at 215.

In determining the burden of proof to maintain a loss of chance action in Kansas, the Delaney court identified the following three general approaches utilized by other jurisdictions faced with this theory: (1) the all or nothing approach; (2) the relaxed standard of proof approach; and (3) the any loss of chance approach. The all or nothing approach is used in jurisdictions that refuse to recognize lost chance as a compensable injury. In an all or nothing jurisdiction, if a party is unable to demonstrate that a defendant's negligence was the proximate cause of the injury or death (better than even), no recovery is available. Jurisdictions that have adopted the relaxed standard of proof approach require a plaintiff to present evidence that a substantial or significant...