Hare v. Wendler

• Decision Date: 12 December 1997
• Docket Number: No. 77959,77959
• Parties: Gerald D. HARE, Appellant, v. Kristopher K. WENDLER, M.D. et al., Appellees.
• Court: Kansas Supreme Court

Page 1141

949 P.2d 1141

263 Kan. 434

Gerald D. HARE, Appellant, v. Kristopher K. WENDLER, M.D. et al., Appellees.

No. 77959.

Supreme Court of Kansas.

Dec. 12, 1997.

Syllabus by the Court

1. In a medical malpractice case involving allegations that defendant psychiatrist engaged in sexual relations with the plaintiff patient while plaintiff was hospitalized in defendant hospital, the record is reviewed and it is held summary judgment for both defendants was proper because the district court correctly reasoned that (1) expert opinion on causation was required to move the case beyond summary judgment, (2) the common knowledge exception did not apply under the facts here, and (3) pending discovery did not prevent a summary judgment ruling.

2. Kansas law does not require that a plaintiff must present expert testimony on a claim for damages.

Carston C. Johannsen, of Gould Law Offices Chtd., L.L.C., Lenexa, argued the cause, and was on the brief, for appellant.

Paul W. Rebein, of Shook, Hardy & Bacon, L.L.P., Overland Park, argued the cause, and Kenneth J. Reilly, of the same firm, was with him on the brief, for appellee Kristopher K. Wendler, M.D.

Victoria A. Henges, of Blackwell Sanders Matheny Weary & Lombardi, L.L.P., Overland Park, argued the cause, and Roger W. Warren, of the same firm, was with her on the brief, for appellee The Kansas Psychiatric Institutes, Inc.

SIX, Justice:

This is a summary judgment medical malpractice personal injury case. The primary focus is on the absence of expert testimony on causation and damages and the application of the common knowledge exception to the expert testimony requirement. Gerald We consider two questions in affirming summary judgment: was the district court correct in ruling (1) expert testimony on causation or damages was needed to move this case beyond summary judgment, and (2) the summary judgment motions were ripe for decision, despite an unresolved motion to compel discovery?

W. Hare appeals from judgments granted to defendants Kristopher K. Wendler, M.D. and The Kansas Psychiatric Institutes, Inc., d/b/a "The Kansas Institute" (TKI). Hare's petition alleged that Wendler, a psychiatrist, had engaged in sexual relations with Hare, [263 Kan. 435] his patient at TKI, a psychiatric hospital. The district court found that Hare had offered no expert testimony on causation or damages and that such expert testimony was required. Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on our motion).

We note that the district court's requirement that Hare present expert testimony on damages is not established in our case law. Kansas law does not require that a plaintiff must present expert testimony on a claim for damages. However, Hare's failure to present expert evidence on causation is dispositive.

FACTS

Hare, an adult male, was admitted to TKI in 1991 for psychiatric care and treatment. He alleged that during his stay at TKI, Dr. Wendler, without his consent, touched Hare's genital area, forced him to perform oral sex, and sodomized him. Also, when Hare was readmitted in 1993, Hare alleged that Dr. Wendler negligently terminated Hare's psychiatric treatment. The petition asserted (1) negligent treatment by Dr. Wendler, (2) vicarious negligence against TKI, and (3) TKI's negligent retention and supervision of Dr. Wendler.

Dr. Wendler denied negligence and sexual contact with Hare. TKI denied negligence and also contended that Dr. Wendler was an independent contractor. The district court entered a discovery order requiring Hare to designate his expert witnesses, including the experts' opinions. The order also required discovery to be completed on or before February 28, 1996.

Opposing counsel was notified by letter dated October 3, 1995, that Hare had designated Dr. William Logan, M.D., as his expert witness. The letter said that it might be supplemented in the future and generally described the opinions that Dr. Logan was to render on the negligent treatment. "Dr. Logan will also testify that the aforementioned misdiagnosis and failure to treat caused or contributed to cause longstanding emotional injury for Mr. Hare."

Defendants' counsel deposed Dr. Logan on November 27, 1995. Dr. Logan said that he had been asked to look at this case only from the standard of care standpoint. Dr. Logan had never examined Hare. He said that he would prefer not to discuss causation or damage issues without examining Hare. Later in his deposition, Dr. Logan was asked the following question:

"Q. I noticed that Mr. Johannsen's letter to the defense attorneys in this case [the October 3, 1995, letter] indicates in his final paragraph that you'll be addressing issues of aggravation of condition, permanency of injury and future costs of medical care, but I take it, really, since you don't have the prior or subsequent medical records and because you have not interviewed Mr. Hare, you're not going to be addressing any of those topics?"

He answered:

"A. Just don't have the tools to form the basis of opinion on those areas. All you can say generally is--

"Q. You know what, you've answered my question.

"A. Okay."

Dr. Logan did opine that Dr. Wendler's engaging in any kind of sexual contact with Hare would have been a deviation from the standard of care. Dr. Logan also believed that to a certain extent Dr. Wendler's handling of the termination issue during Hare's 1993 hospitalization fell beneath the standard of care. Dr. Logan was once again asked during his deposition if he had any other opinions, and he stated he did not. The "Q. And you understand that this was the date upon which we were to be given the opportunity to depose you in connection with the opinions you hold in this case pursuant to the Court's direction; correct?

following exchange between Dr. Logan and counsel for Dr. Wendler then took place:

"A. Right. And it's also my general understanding if there is other work, there would also be followed--or other opinions, you will be so notified.

"Q. I don't know about that. Today is the day I get to depose you and today is the day you get to express the opinions. This is the Court's designated deadline.

"A. As of this day, this is what I have done and this is what my opinions are."

On March 4, 1996, Hare filed a motion to amend pleadings, seeking to add a claim for punitive damages. TKI, in opposing the motion, attached a privilege log to its response brief. The privilege log listed documents concerning complaints received against Dr. Wendler during 1992 and 1993 involving other patients, Hare's February 1993 complaint, and internal investigations. Hare filed a motion to compel discovery, based primarily on TKI's assertion of various privileges against disclosure.

The pretrial order, filed April 8, 1996, referred to the deposition of Dr. Logan as being completed. Contemplated discovery listed the depositions of defendants' expert witnesses. A jury trial was set for June 17, 1996.

Dr. Wendler and TKI filed motions for summary judgment on April 10, 1996. Both defendants argued that Hare's petition should be dismissed for failure to offer any expert opinion testimony as to damages and causation (TKI also asserted additional grounds).

The journal entry of the May 2, 1996, telephone conference with the court, which set various motions for hearing, provided in part:

"Further, the Court finds that the discovery disputes that are still outstanding do not affect the issues relating to plaintiff's expert nor the issues relating to Dr. Wendler's status as an independent contractor. The Court also finds that plaintiff's counsel agreed that Dr. Wendler was an independent contractor for TKI and that the parties further agreed that discovery regarding plaintiff's expert has closed." (Emphasis added.)

Hare's response to the motions for summary judgment included his affidavit, which said that he was seen by Dr. Logan on April 22, 1996. The response also included a letter dated May 7, 1996, from Hare's counsel supplementing counsel's October 3, 1995, letter. The May 7, 1996, letter added that Dr. Logan would testify as to additional opinions, which were listed. However, the response included no additional statements from Dr. Logan himself.

The district court granted defendants' motions for summary judgment and decided that the other pending motions were moot. In the TKI summary judgment journal entry, the district court found "that the causation of damages alleged by plaintiff, such as increased emotional and psychiatric difficulty, would not be apparent to a layman under the factual circumstances of this case. Therefore, plaintiff is required to have expert testimony to prove the essential elements of causation and damages." The district court concluded "that there is an absence of essential elements of plaintiff's case and TKI is entitled to summary judgment for the failure of plaintiff to come forward with anything of evidentiary value establishing the essential elements of causation and damages." The district court decided that Hare's counsel's October 3, 1995, letter, even if construed as an interrogatory response, had no evidentiary or probative value. The journal entry awarding summary judgment to Dr. Wendler contained similar findings and conclusions.

A motion for reconsideration was filed, which included another affidavit from Hare. However, nothing new from Dr. Logan was included. The district court denied the motion to reconsider, and Hare's appeal leads to our discussion.

DISCUSSION

The blunt finality of summary judgment requires that we initially record Hare's background which sets the stage for our analysis of this case.

Hare's Background

In Hare's deposition, he said that he suffered from multiple personality disorder. He has as many as seven alter personalities. He described his childhood sexual abuse from his father beginning at age 5, and from his uncle beginning at age 9 or 10, including oral sex and anal intercourse. His fat...