Bacon v. Mercy Hosp. of Ft. Scott, Kan.

• Decision Date: 03 June 1988
• Docket Number: No. 61468,61468
• Citation: 756 P.2d 416,243 Kan. 303
• Parties: Jessica Louise BACON, a minor, and Charles Bacon and Cristine Bacon, individually and as her next friend, Appellants, v. MERCY HOSPITAL OF FT. SCOTT, KANSAS, a/k/a Mercy Hospitals of Kansas, Inc., Thomas Pirotte, M.D., and Colette Fleming, M.D., Appellees.
• Court: Kansas Supreme Court

Page 416

756 P.2d 416

243 Kan. 303

Jessica Louise BACON, a minor, and Charles Bacon and Cristine Bacon, individually and as her next friend, Appellants, v. MERCY HOSPITAL OF FT. SCOTT, KANSAS, a/k/a Mercy Hospitals of Kansas, Inc., Thomas Pirotte, M.D., and Colette Fleming, M.D., Appellees.

No. 61468.

Supreme Court of Kansas.

June 3, 1988.

Syllabus by the Court

1. The party opposing summary judgment, although not required to prove its case, does have the affirmative duty to come forward with facts to support its case.

2. Except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation.

3. A party may not remain silent in face of a motion for summary judgment and later claim there is additional evidence to support its claims.

4. An affiant cannot use an affidavit to controvert the affiant's prior sworn statement in order to create an issue of material fact to defeat a motion for summary judgment.

5. A party opposing summary judgment on the basis of facts contained in publications must show how the publications support its allegations.

Brock R. Snyder of Law Office of Brock R. Snyder, Topeka, argued the cause and Brian Frost, of the same firm, was with him on the brief for appellants.

Bill Wachter of Wilbert and Towner, P.A., Pittsburg, argued the cause and was on the brief for appellees Pirotte and Fleming.

Cynthia J. Schriock of Fisher, Heck & Cavanaugh, P.A., Topeka, argued the cause and was on the brief for appellees Mercy Hospitals.

Jeffrey W. Jones of Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, argued the cause and Myron L. Listrom, of the same firm, was with him on the brief for intervenor Fletcher Bell, Ins. Com'r of the State of Kansas.

HERD, Justice:

This is a medical malpractice action brought by Jessica Bacon, a minor, and Charles and Cristine Bacon, her parents against Mercy Hospital of Ft. Scott, Dr. Thomas Pirotte, and Dr. Colette Fleming. A claim against Dr. Gary Grimaldi was dismissed and an action against Newman-Young Clinic under the doctrine of respondeat superior was settled and dismissed with prejudice. The Bacons appeal from the trial court's order granting summary judgment to defendants.

The facts reveal that in 1980 Cristine Bacon was in her second pregnancy. It was uneventful until the last minutes before delivery. Mrs. Bacon's doctor was Dr. Thomas Pirotte, a family practitioner with the Newman-Young Clinic, P.A. On November 11, 1980, Dr. Pirotte informed Mrs. Bacon there were no problems with her pregnancy and the child could be born at any time. Mrs. Bacon went into labor that night. She was taken to the labor room shortly after she was admitted to Mercy Hospital of Ft. Scott. Labor proceeded normally until 3:50 a.m. At that time, the fetal heart monitor began to register sudden, severe bradycardia, a slowing of the heartbeat. From 3:50 a.m. to 4:05 a.m. the monitor gave no tracing in which a discernible pattern could be read, probably because of the movement of the baby's heart away from the Doppler aim of ultrasound. It was later found the umbilical cord had wrapped around the baby's neck twice. The cord compression, which caused an autonomic nervous system mediated deceleration, probably accounted for the bradycardia.

The bradycardia was promptly recognized and Dr. Pirotte was called in a timely fashion. Dr. Pirotte appropriately ruptured the membranes and correctly connected an internal monitor so that at 4:05 the heart pattern could again be correctly ascertained. He moved the patient to the delivery room and called Dr. Grimaldi, an obstetrician. The baby, Jessica Bacon, was delivered at 4:25 a.m., by Dr. Grimaldi. She was not breathing, was markedly cyanotic, and had a heartbeat of less than 100 beats per minute.

Dr. Grimaldi suctioned the baby, clamped and cut the umbilical cord, and brought her to Dr. Pirotte, who immediately placed her on a warming pan, passed a laryngoscope through her mouth, inserted an endotracheal tube, and put a ventilating bag on the tube in preparation for resuscitation efforts. The Bacons agree that all care provided by the appellees was reasonable up to that point, except the Bacons' witness, Dr. Wood, a pediatrician, testified a pediatrician should have been called at the same time as Dr. Grimaldi, the obstetrician.

Dr. Pirotte found severe bronchial and lung tissue resistance to his attempts to give the baby air from the bag. Dr. Pirotte testified this was not because the bag was defective, but because of the extraordinary resistance of Jessica's lungs. He had no explanation for why the resistance was so strong, but said that, although rare, it had been known to happen before. He immediately and appropriately switched procedures to the mouth-to-tube method, in which he put his mouth to the endotracheal tube fitting and breathed through the tube for the baby. An assistant held an oxygen tube near his mouth so that as he took a breath, his oxygen intake was enriched and transferred to Jessica. A staff member administered cardiac massage to Jessica at the same time. Between breaths, Dr. Pirotte asked that Dr. Fleming, a pediatrician, be called in.

Although she was not on call, Dr. Fleming arrived at 4:40 a.m., 15 minutes after Jessica's birth. At this point there is conflict in the testimony. Dr. Pirotte testified Jessica began to breathe on her own after about ten minutes, and resuscitation efforts ceased as her heartbeat and color improved. Dr. Fleming testified Jessica was taking some "gasping respirations" when she arrived, but she had been put back on the ventilating bag. When she took over the "bagging," she noted extreme lung resistance, but was able to continue resuscitation with the bag. She continued bagging for about fifteen minutes. She explained bagging must continue even after a baby begins to breathe spontaneously, until it is certain the danger is over. The endotracheal tube was not removed until 5:45 a.m., so the bag could quickly be reattached if necessary.

Dr. Fleming transferred Jessica, still in the warming tray, to the nursery after the respiratory emergency was over. Jessica's first recorded temperature was only 94 degrees. Dr. Fleming's notes say Jessica "was difficult to warm (temporary difficulty with machine)." Dr. Fleming testified, however, that she found no defects in the machine and continued to use it later. She said the note was made to herself in order to check why Jessica was slow to warm. She and Dr. Pirotte, a big man, later concluded the initial difficulty had been caused by Dr. Pirotte's body blocking some of the rays in his successful efforts to resuscitate Jessica. Both testified such blockage could be difficult to prevent in that resuscitation was of first priority. Dr. Fleming added a light to Jessica's side to increase the temperature when she arrived. She recorded that Jessica had become pink with regular spontaneous respiration at one-half to three-fourths hours of age. By the age of two hours, Jessica's temperature had reached 97 degrees.

The evidence indicates Jessica was suffering hypoxia or even asphyxia for at least 20 to 35 minutes before birth. The Bacons attribute no fault to this period of deprivation. After birth, Jessica suffered asphyxia or hypoxia for a period of 25-30 minutes, perhaps as much as 45 minutes. It is this post-birth period of deprivation, as a result of appellees' alleged negligence, the Bacons claim caused Jessica's cerebral palsy. The cause of Jessica's cerebral palsy is the main issue in the case.

The first issue on appeal is whether the Bacons submitted sufficient evidence regarding causation to avoid summary judgment. Although the question of whether a defendant's actions proximately caused a plaintiff's injury is normally a question of fact for the jury, where the facts of a case are susceptible to only one conclusion, the question is one of law and may be properly subject to summary judgment. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987). Summary judgment is governed by K.S.A. 1987 Supp. 60-256, which provides in pertinent part:

"(c) .... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Lessley v. Hardage, 240 Kan. 72, 73-74, 727 P.2d 440 (1986). The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. Willard v. City of Kansas City, 235 Kan. 655, Syl. p 2, 681 P.2d 1067 (1984); Mays v. Ciba-Geigy Corp., 233 Kan. 38, Syl. p 5, 661 P.2d 348 (1983). If factual issues do exist, they must be material to the case to preclude summary judgment. Busch v. City of Augusta, 9 Kan.App.2d 119, 123, 674 P.2d 1054 (1983).

Summary judgment is seldom proper in negligence cases. Phillips v. Carson, 240 Kan. 462, 472, 731 P.2d 820 (1987). On the other hand, the appellees do not, in order to prevail in their summary judgment motions, need to prove they were not negligent or that their actions did not cause Jessica's cerebral palsy. In Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the United States Supreme Court analyzed Rule 56(c) of the...