Acord v. Porter

• Citation: 475 P.3d 665
• Decision Date: 25 September 2020
• Docket Number: No. 119,537,119,537
• Parties: Reiferd ACORD, Appellant, v. Scott W. PORTER, M.D.; Thomas R. Resch, M.D.; Paul B. Harrison, M.D.; Tyler H. Ternes, M.D.; James B. Winblad, M.D.; Jeffrey S. Kao, M.D.; and Arti Gupta, M.D., Appellees.
• Court: Court of Appeals of Kansas

475 P.3d 665

Reiferd ACORD, Appellant,

v.Scott W. PORTER, M.D.; Thomas R. Resch, M.D.; Paul B. Harrison, M.D.; Tyler H. Ternes, M.D.; James B. Winblad, M.D.; Jeffrey S. Kao, M.D.; and Arti Gupta, M.D., Appellees.

No. 119,537

Court of Appeals of Kansas.

Opinion filed September 25, 2020.

Craig Shultz, of Shultz Law Office, P.A., of Wichita, for appellant.

Matthew A. Spahn, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellees Scott W. Porter, M.D. and Paul B. Harrison, M.D.

Gregory S. Young, Brian L. White, and Mark R. Maloney, of Hinkle Law Firm LLC, of Wichita, for appellees Thomas R. Resch, M.D., James B. Winblad, M.D., and Jeffrey S. Kao, M.D.

Before Arnold-Burger, C.J., Bruns and Schroeder, JJ.

Bruns, J.:

In this medical malpractice action, Reiferd Acord appeals from the district court's pretrial rulings on certain motions as well as from the jury's verdict in favor of the defense. The action arises out of a laparoscopic ventral hernia repair

surgical procedure performed by Scott W. Porter, M.D. and Thomas R. Resch, M.D. at Wesley Medical Center. At the time of the surgery, Dr. Porter was a board-certified surgeon and Dr. Resch was a fifth-year surgical resident. Several days following the surgery, a perforation in Acord's small intestine was discovered. Dr. Paul B. Harrison, who is also a board-certified surgeon, and Dr. Resch repaired the perforation. It is undisputed that perforation of the bowel is a recognized complication of laparoscopic ventral hernia repair surgery.

Acord brought this action against the three surgeons as well as four radiologists in which he asserted multiple claims for relief. Prior to trial, the district court granted partial summary judgment to both Dr. Porter and Dr. Resch on Acord's informed consent claim. The district court also granted partial summary judgment to Dr. Porter on Acord's claim that he failed to adequately supervise Dr. Resch during the surgery. In addition, the district court denied Acord's motion to amend his petition to add a claim for punitive damages. Moreover, Acord asserted several additional claims against the various health care providers that are not material to this appeal.

At the conclusion of a 14-day trial, the jury returned a verdict finding no fault as to any of the health care providers. On appeal, Acord contends that the district court erred in granting partial summary judgment to Dr. Porter and Dr. Resch on his informed consent claim; that the district court erred in granting partial summary judgment to Dr. Porter on his claim for failure to supervise Dr. Resch; that the district court erred in excluding certain evidence at trial; and that the district court erred in instructing the jury regarding the appropriate standard of care. Acord also contends that the district court erred in denying his motion to amend his petition to add a claim for punitive damages.

After a review of the record in light of Kansas law, we conclude that the district court appropriately granted partial summary judgment to Dr. Porter and Dr. Resch on Acord's informed consent claim. Likewise, we conclude that the district court appropriately granted partial summary judgment to Dr. Porter on Acord's failure to supervise claim. We also conclude that the district court did not abuse its discretion in ruling on evidentiary issues at trial nor did it err in instructing the jury regarding the appropriate standard of care. Finally, we find that the district court did not abuse its discretion in denying Acord's motion to amend his petition to add a claim for punitive damages. Thus, we affirm the jury's verdict and the final judgment entered by the district court.

FACTS

On March 15, 2013, Acord went to Wesley Medical Center for outpatient surgery

. This was Acord's fourth laparoscopic ventral hernia surgical repair. Dr. Porter, who is a board-certified surgeon, and Dr. Resch, who was the chief surgical resident in his fifth year of residency, performed the hernia repair surgery that is at issue in this case. Although both physicians were present during the entire surgery, it appears from the record on appeal that Dr. Resch performed the majority of the surgery under Dr. Porter's supervision.

Following the hernia

repair surgery, Acord remained in the hospital for observation. Four days after the surgery, Dr. Resch and Dr. Harrison performed an exploratory laparotomy after Acord's condition rapidly deteriorated. During the exploratory surgery, Dr. Resch and Dr. Harrison discovered and repaired a perforation in Acord's bowel. Although he survived the surgery, Acord spent two months in intensive care and continued to receive treatment at various facilities over the next year. He continues to suffer from a variety of health problems related to the perforation of his bowel and has incurred a large amount of medical expenses.

Acord had gone to Dr. Porter because he had performed one of Acord's prior laparoscopic ventral hernia repair

surgeries. As a part of the preparation for the outpatient surgery, Acord signed a document entitled "Conditions of Admission" that was provided to him by Wesley Medical Center. Among other things, the admissions document included a consent for the upcoming surgery. In particular, the admissions document signed by Acord stated that "as part of their training, students in health care education may participate in the delivery of my medical care and treatment or be observers while I receive medical care and treatment at the Hospital, and that these students will be supervised by instructors and hospital staff."

On the morning of the surgery, Acord signed another document at Wesley Medical Center entitled "Consent for Surgical or Other Procedure" in which Dr. Porter was listed as the surgeon. The consent document also stated that "other health care practitioners may participate in performing [the procedure]." However, no other health care providers were listed by name in the document. Although Acord does not deny signing the "Conditions of Admission" and the "Consent for Surgical or Other Procedure," he does not recall reading the documents prior to signing them.

The events between the time Acord arrived at the hospital and the beginning of the surgery are unclear from the record. It seems that none of the parties have a particularly good recollection of what occurred on the day of the surgery other than what is stated in the medical record. According to the medical record, Dr. Resch performed a history and physical examination of Acord prior to the surgery. Likewise, the medical records and deposition testimony show that Dr. Porter had previously explained to Acord the complications associated with laparoscopic ventral hernia repair

surgery. These risks included the potential for a perforation of the bowel during the surgical procedure.

Acord does not remember meeting or talking to Dr. Resch prior to the surgery. Further, Acord does not believe he was informed that Dr. Resch was going to be involved in the surgical procedure. When asked in his deposition whether he would have declined the surgery if he had been told a resident would be involved, Acord answered: "I don't know. I can't answer that." Later, in an affidavit in support of his motion to amend his petition to include a claim for punitive damages, Acord stated he would not have consented to the surgery had he been informed that Dr. Resch would perform the majority of the procedure.

During the surgery, neither Dr. Porter nor Dr. Resch noticed a perforation to the bowel

, and it is not known when the perforation actually occurred. Although both Dr. Porter and Dr. Resch participated in the surgery, neither physician can recall who did what parts of the procedure. Dr. Resch testified that he believes that it is likely that he performed the majority of the surgery. Dr. Porter testified that he and Dr. Resch probably divided the tasks during the surgery nearly evenly. However, Dr. Porter also recognized that it was likely that Dr. Resch performed the majority of the procedure under his supervision.

Following the surgery, Dr. Resch dictated the operative report that is included in the medical record. The next day, Dr. Porter went on vacation. Before leaving town, Dr. Porter arranged for Dr. Harrison, who is also a board-certified surgeon, to cover for him. As a result, Acord was monitored by Dr. Harrison and Dr. Resch in the days following the surgery. In addition, four radiologists provided post-operative care to Acord. Although they were also named as defendants in this action, their involvement is not material to the issues presented on appeal.

Acord asserts that he first found out about the extent of Dr. Resch's involvement in his hernia

repair surgery when Dr. Porter was deposed in this medical malpractice action. However, Acord's wife testified that she recalls meeting Dr. Resch after the surgery. Also, as indicated above, the medical records indicate that Dr. Resch performed a history and physical examination on Acord on the morning of surgery. Likewise, Dr. Resch testified in his deposition that he informed Acord about his involvement in the surgery prior to the operation.

According to Dr. Porter, Acord's fourth laparoscopic ventral hernia repair

surgery required two surgeons due to the extent of adhesions in the patient's abdomen. Dr. Porter also testified that he and Dr. Resch performed the surgery using a team approach. Further, Dr. Porter asserted that he was directly involved in supervising Dr. Resch and observing everything that Dr. Resch did during the surgery. Specifically, Dr. Porter testified:

"So I would be there the whole entire time, and in an operation like this where you are working from both sides of the table, it may be as simple as, okay ... there is an easier place to work over on his side. Let's switch and move to the left side and work on this set of adhesions or don't do that if I ... felt that he was doing something that I disagreed with."

In addition, Dr. Porter...