Calwell v. Hassan

• Decision Date: 25 October 1996
• Docket Number: 73062,Nos. 72817,s. 72817
• Citation: 925 P.2d 422,260 Kan. 769
• Parties: Kenneth C. CALWELL, Appellant, v. Rizwan U. HASSAN, M.D., et al., Appellees. Joseph W. (Trey) HALL, Appellant, v. Rizwan U. HASSAN, M.D., Appellee.
• Court: Kansas Supreme Court

Page 422

925 P.2d 422

260 Kan. 769

Kenneth C. CALWELL, Appellant, v. Rizwan U. HASSAN, M.D., et al., Appellees.

Joseph W. (Trey) HALL, Appellant, v. Rizwan U. HASSAN, M.D., Appellee.

Nos. 72817, 73062.

Supreme Court of Kansas.

Oct. 25, 1996.

Syllabus by the Court

1. As a general rule, in the absence of a "special relationship" there is no duty on a person to control the conduct of a third person to prevent harm to others.

2. A fundamental rule of actionable negligence is that such negligence must be based on a breach of duty. Without a duty there can be no breach to support the claims of plaintiffs.

3. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact. Whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact.

4. In an action based on a failure to warn alleging a duty owing under Restatement (Second) of Torts § 315 or § 324A (1964), ordinarily there is no duty on a physician to warn a patient of what the patient already knows.

5. The record is examined in a negligence action based on a failure to warn, and it is held under the facts of this case: (a) no special relationship existed which would impose a duty on defendant physician under Restatement (Second) of Torts § 315 (1964); (b) no duty was owing from defendant physician to the injured plaintiffs under Restatement (Second) of Torts § 324A (1964); and (c) summary judgment was proper as there were no disputed facts that were material to the conclusive issues in the case.

Nicholas S. Dailey, of Depew and Gillen, L.L.C., Wichita, argued the cause and was on the briefs, for appellants Calwell and Hall.

Lee H. Woodard, of Woodard, Blaylock, Hernandez, Roth & Day, Wichita, argued the cause, and James Z. Hernandez and Rachelle W. Smith, of the same firm, were with him on the briefs, for appellee Hassan.

Wayne T. Stratton and Anne M. Kindling, of Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, were on the brief for amicus curiae Kansas Medical Society.

SIX, Justice:

The first impression issue is whether the physician in this case owes a duty to the bicycling plaintiffs (or other members of the driving public) under either Restatement (Second) of Torts § 315 (1964) or § 324A (1964), arising from his failure to warn the patient not to drive. Kenneth C. Calwell and Joseph W. (Trey) Hall were injured in a head-on collision with a car driven by defendant Sharon K. Rylant. Rylant fell asleep while driving on August 8, 1991, and veered across the road. Defendant Rizwan U. Hassan, M.D., a neurologist, was treating Rylant for a sleep disorder. Calwell and Hall alleged that Hassan negligently treated Rylant for her sleep disorder and failed to warn her not to drive. The district court granted Hassan's motion for summary judgment, deciding as a matter of law that he owed no duty to Calwell and Hall. In the alternative, the district court reasoned that even if a duty was owed, no causal connection existed between Hassan's failure to meet that duty and the plaintiffs' injuries. Calwell and Hall appealed. The Court of Appeals reversed. Calwell v. Hassan, 21 Kan.App.2d 729, 908 P.2d 184 (1995). Our jurisdiction results from granting Hassan's petition for review. K.S.A. 20-3018(b).

We find no duty owing, reverse the Court of Appeals, and affirm the trial court. (Two personal injury suits are consolidated in this appeal. Both Calwell and Hall sued Hassan. Calwell also sued Rylant. The Court of Appeals granted Calwell's application for permission to take an interlocutory appeal.)

FACTS

Hassan first saw Rylant, who was 45 years old, on June 21, 1988, for her problem of daytime drowsiness. Hassan's notes from the initial visit reflect: "According to [Rylant], she sleeps on her breaks at work and also while driving she has to fight to stay awake and also she feels foggy most of the time." Hassan's impression was: "Disorder of excessive sleep (D.O.E.S.). Rule out narcolepsy." Rylant was scheduled for a "multiple sleep latencies test" (MSLT), which involves allowing the patient to fall asleep in a laboratory setting. The time it takes the Hassan observed Rylant had no breathing problems in her sleep, which showed she did not have sleep apnea. Hassan's impression was that the MSLT results were consistent with the disorder of "excessive daytime sleep." He ruled out the possibility that Rylant had narcolepsy, based on her history and the lack of associated symptoms. Hassan described narcolepsy as "an irresistible sleep and patient will fall asleep without warning" and "has more than usual REM sleep." Rylant had no history suggesting cataplexy, which is a symptom that often accompanies narcolepsy.

patient to fall asleep is measured and compared. Rylant also underwent a polysomnogram, which involves an overnight sleep monitored in a laboratory setting.

Because the accident injuring Calwell and Hall occurred more than 3 years after Rylant's initial appointment, we will describe her treatment schedule with Hassan.

On July 27, 1988, Hassan explained the test results to Rylant and prescribed 25 mg. of Elavil at bedtime for 4 days, thereafter increasing to 50 mg. at bedtime. Hassan next saw Rylant on August 8, 1988. Rylant was pleased with the Elavil and did not have to fight sleep any more during the daytime. "Rylant stated that after she started taking Elavil and also after the dosage was increased, she had no problem staying alert when driving." 21 Kan.App.2d at 730-31, 908 P.2d 184. Hassan continued the Elavil at 50 mg. per day at bedtime and scheduled Rylant for an appointment in 3 months. On August 17, 1988, Rylant saw Hassan for a complaint of hives. He gave her Benadryl, along with the Elavil. On November 11, 1988, Rylant complained to Hassan that the Elavil was not working as well and she had a recurring problem of sleeping in the daytime. He increased the Elavil to 75 mg. per day at bedtime and scheduled a follow-up appointment in 1 month. Rylant saw Hassan again on December 21, 1988, and she was doing fine. A follow-up visit was scheduled in 3 months. However, Rylant did not keep her appointment and did not see Hassan again until June 1, 1989, when she complained of problems with sleepiness. Hassan increased the Elavil to 100 mg. per day at bedtime and scheduled a follow-up visit in 3 months. Rylant again did not keep her appointment. She next saw Hassan on July 31, 1990. His notes reflected that she complained of not having sound sleep during the night, more dreaming, and she could sleep during daytime anytime. She also seemed more depressed. Hassan started Rylant on 20 mg. per day of Prozac in the morning on a trial basis (along with the Elavil at bedtime) and scheduled Rylant to come back in 20 days. Rylant reported "doing better" at her August 22, 1990, follow-up visit. The medication was continued, and she was scheduled for another appointment in 4 months, which she did not keep. Hassan did not see Rylant again until July 29, 1991, when she complained of dozing off at work and going into a dreaming state. She also took occasional naps at break during work. Hassan discussed with Rylant her sleep hygiene, i.e., sleep schedule, habits, and diet. He scheduled her for a follow-up visit in 4 months.

Before the August 8, 1991, accident Rylant had never fallen asleep driving. She had not reported to Hassan, other than in the initial June 1988 appointment, any problems related to her driving. "Hassan testified that Rylant never told him at any of her appointments that she had ever fallen asleep while driving, as she had done at work, nor that she could not stay awake while driving. For these reasons, Hassan stated he did not feel it was necessary to warn her not to drive." 21 Kan.App.2d at 731, 908 P.2d 184. Hassan understood her initial complaint to mean that she could stop driving if she felt drowsy. Rylant did not ask Hassan whether she should drive. Rylant's husband said that if Hassan had told Rylant not to drive, he would have been available to drive her to work.

Initially, when Rylant took the prescribed medication, she always was alert. When Rylant did not return for her scheduled appointments, it was because the medication was working. She was not having trouble with sleepiness or drowsiness during the day. She did not go to the doctor unless something was wrong.

On August 8, 1991, Rylant arose as usual at 4:30 a.m., fixed her husband breakfast, and On the day of the accident, Rylant knew that she had a problem with drowsiness and that it was getting worse. She had never before just fallen asleep like she did that morning. However, she knew she could fall asleep if she was drowsy and that she should not drive if she was too drowsy. She knew from common sense that if she got drowsy, she would pull off to the side of the road, but she did not recall ever having pulled over on the way to work.

left the house to drive to work. She customarily left at 5:45 a.m. Her work shift began at 7:30 a.m. She stopped at the stop sign and crossed an intersection which was torn up and required some maneuvering. Between crossing that intersection and coming to the next intersection, she began to feel drowsy. The next thing she knew, she heard someone say, "Oh my God," felt an impact, and stopped her car on the left side of the road; she had struck and seriously injured bicycle riders Calwell and Hall.

Rylant phoned Hassan after the accident that day and came to see him. She reported that her problems with drowsiness commenced 2 days before the accident. Also, she had been having dizziness and vertigo during the week before the accident and had gone to see another doctor for a virus affecting her inner ears. Hassan told her not to drive until her dizziness and vertigo improved and asked her to call him in a week to schedule a new polysomnogram and MSLT. Rylant did not return to Hassan. She stopped taking her medicine and did not see anyone else for the...