Biglow v. Eidenberg

• Decision Date: 24 August 2018
• Docket Number: No. 112,701,112,701
• Parties: Kevin BIGLOW, Individually and on behalf of the Surviving Heirs of Charla E. Biglow, Deceased, Appellants, v. Marshall E. EIDENBERG, D.O., Appellee, and Via Christi Hospitals, Wichita, Inc., Defendant.
• Court: Kansas Supreme Court

424 P.3d 515

Kevin BIGLOW, Individually and on behalf of the Surviving Heirs of Charla E. Biglow, Deceased, Appellants,
v.
Marshall E. EIDENBERG, D.O., Appellee,
and
Via Christi Hospitals, Wichita, Inc., Defendant.

No. 112,701

Supreme Court of Kansas.

Opinion filed August 24, 2018.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, argued the cause, and Thomas J. Dickerson and Chelsea E. Dickerson, of Dickerson Oxton, LLC, of Overland Park, were with him on the briefs for appellants.

Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, argued the cause, and Christopher S. Cole, of the same firm, was with him on the briefs for appellee.

The opinion of the court was delivered by Biles, J.:

424 P.3d 518

In this medical malpractice action, Kevin Biglow, the surviving husband of Charla E. Biglow, alleges Marshall E. Eidenberg, D.O., negligently provided emergency medical care, resulting in Charla's death. The jury returned a verdict for the doctor. On appeal, Biglow argues the district court erred when it: (1) instructed the jury on a physician's right to elect treatment; (2) defined "negligence" and "fault" using a comparative fault pattern instruction; and (3) granted a motion in limine prohibiting Biglow and his expert witnesses from using derivatives of the word "safe" or the phrase "needlessly endangering a patient." A Court of Appeals panel affirmed. Biglow v. Eidenberg , No. 112701, 2016 WL 1545777 (Kan. App. 2016) (unpublished opinion). On petition for review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Charla developed a cough in October 2009 that persisted for several weeks. Her primary care physician diagnosed her with a viral infection and recommended over-the-counter medication. Her condition did not improve. A week after that visit, Kevin took her to the emergency room at Via Christi Saint Francis Hospital in Wichita around 11 p.m. Charla's chief complaints were the persistent cough, body aches, and a 102.7-degree fever that began that day. Eidenberg was the emergency room physician.

When she arrived, Charla's respiratory rate was a little fast and her oxygen saturation level a little low. Around midnight, Eidenberg ordered several laboratory exams, including a chest x-ray, blood work, and urinalysis. Based on the test results, he diagnosed Charla with pneumonia, prescribed medications, and admitted her to the hospital. Charla received Xopenex, a breathing treatment for the lungs.

Afterward, Charla's heart rate increased from 90 beats per minute (bpm) to 170 bpm. A rate over 100 bpm, called tachycardia, is abnormal. Charla told Eidenberg her heart was beating fast. He responded that this was "perfectly normal and not to worry." Eidenberg thought multiple factors affected Charla's heartbeat: the breathing treatment, the pneumonia, the fever, and the over-the-counter medication.

Tachycardia can involve different types of heart rhythms. Sinus tachycardia occurs when the "normal pacemaker" in the heart is "firing faster than usual," but still with a normal sinus rhythm. Eidenberg believed Charla had sinus tachycardia, so he did not order an electrocardiogram (EKG), which would show the heart rhythm's actual electrical waves.

About an hour later, Charla received antibiotics. Thirty to 45 minutes after that, she was taken from the ER to a hospital room. A final vital sign reading showed low blood pressure, continuing high heart and respiratory rates, and a fever. Eidenberg marked her chart "improved" and "stable." A nurse observed that Charla walked "fine" from the transport cart to her bed, seemed "alert and oriented," and was not "confused." Her last vital signs showed "about the same" tachycardia. Charla complained of nausea, which Eidenberg attributed to pneumonia.

The nurse left the room to get Charla some ice chips. When she returned, Charla was unresponsive and had no pulse. Other personnel were starting CPR. Heart monitor readings showed Charla's heart was not beating but was experiencing pulseless electrical activity. Charla died.

Kevin pursued this wrongful death action against Eidenberg, Via Christi's parent corporation, and two other individuals: Charla's primary care physician and the respiratory therapist who administered the breathing

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treatment. Only the claim against Eidenberg proceeded to trial.

The litigation focused on whether Eidenberg violated the standard of care by not using an EKG to identify Charla's heart rhythm and the type of tachycardia she was experiencing. Eidenberg testified that because Charla was a 37-year-old woman with no previous heart disease and a "nice strong pulse" with no objective findings besides the fast heart rate, he believed she had a sinus tachycardia. He said if there was a dangerous abnormal heart rhythm, he would expect to see other things, such as a "change in mental status from confusion to not responding," sweating, and a weak pulse. According to him, "[n]one of that was happening in this case."

Expert Testimony

We must detail some expert testimony to better understand the arguments and our outcomes for the issues raised.

Two plaintiff experts agreed Eidenberg breached the standard of care by not ordering an EKG to identify Charla's heart rhythm and failing to identify the type of tachycardia she was experiencing, without which it was impossible to treat the rhythm and provide Charla with appropriate care to save her life. Two defense experts testified Eidenberg acted within the standard of care because an EKG was not required since there were reasonable explanations for her fast heartbeat.

Scott Kaiser, a family physician with emergency room experience treating tachycardia, testified for plaintiff. He said Charla's heart rate could not have shown her heart rhythm, so the actual electrical waves could have been detected only with an EKG. He said any reasonable physician under the circumstances would have ordered an EKG as part of a "differential diagnosis" to rule out conditions that presented similar symptoms. Failing this, it would be "impossible to treat the rhythm and provide care to the patient." Kaiser said Eidenberg breached the standard of care by failing to order an EKG and by not reassessing Charla's condition after the pneumonia treatment.

The second plaintiff expert, Michael Sweeney, a cardiologist familiar with the standard of care for an emergency room physician treating cardiac issues, said Eidenberg breached the standard of care by failing to diagnose and treat Charla's tachycardia by using a rhythm strip or an EKG to identify her specific tachycardia type. Sweeney said an EKG would have been easy to obtain in an emergency room. He testified the typical heart rate increase with Xopenex would be 10 beats or less, so it was unusual that Charla's heart rate nearly doubled to 170 bpm. During cross-examination, Sweeney agreed pneumonia was an appropriate diagnosis and that the general approach to treat sinus tachycardia was to treat the underlying stressor triggering it.

Eidenberg's first expert, Kent Potter, who was residency trained and board certified in emergency medicine, testified Eidenberg "exceeded" the applicable standard of care for an experienced emergency room physician under the same or similar circumstances. Potter testified Eidenberg appropriately diagnosed Charla with pneumonia and that it was proper to prescribe Xopenex. He believed the breathing treatment played a significant role in the heart rate increase and noted Charla's tachycardia likely resulted from fever, pneumonia, and previous episodes of sinus tachycardia.

Potter testified that to determine whether a patient with tachycardia needs an EKG, a physician looks at whether the patient has a primary cardia cause. He explained a patient with tachycardia, combined with other complaints or problems such as pneumonia, generally has sinus tachycardia. The standard of care, he said, does not require the attending doctor to order an EKG. In his experience, Potter had never heard of a patient developing anything other than sinus tachycardia after receiving a breathing treatment. Accordingly, he believed there was nothing that would make any experienced emergency room physician order an EKG for Charla.

Potter further testified that "any experienced emergency physician would come to the conclusion without a doubt that [Charla] had a sinus tachycardia" and "it was consistent with the standard of care to treat the underlying cause of the sinus tachycardia and not treat the tachycardia, itself." He also

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agreed that any "emergency room physician would have reached an opinion that sinus tachycardia [at the rate that Charla was running] would not pose a threat" to her.

The second defense expert was Jeffery Reames, who was residency trained and board certified in emergency medicine. He testified Eidenberg met the applicable standard of care. He agreed with Eidenberg's pneumonia diagnosis. He said the breathing treatment ordered was appropriate and believed an EKG was not required because there were reasonable explanations for Charla's fast heart rate. Finally, he testified the standard of care did not require Eidenberg to reassess Charla's condition after the...