Calwell v. Hassan

• Decision Date: 15 December 1995
• Docket Number: Nos. 72817,73062,s. 72817
• 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 Court of Appeals

Page 184

908 P.2d 184

21 Kan.App.2d 729

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.

Court of Appeals of Kansas.

Dec. 15, 1995.

Review Granted March 15, 1996.

Syllabus by the Court

1. The standards for summary judgment are reviewed and applied.

2. Under the facts of this case, the evidence was sufficient to show that a physician was negligent in the treatment of his patient for a sleep disorder and that such negligence made him liable for injuries suffered by third persons when the patient fell asleep while driving her vehicle, causing the vehicle to strike the third persons.

Nicholas S. Daily, of Depew and Gillen, L.L.C., Wichita, for appellants.

James Z. Hernandez, of Woodard, Blaylock, Hernandez, Roth & Day, Wichita, for appellee.

Before GREEN, P.J., PIERRON, J., and RICHARD W. WAHL, District Judge Retired, assigned.

PIERRON, Judge:

This is a personal injury/medical malpractice case where appellants, Kenneth C. Calwell and Joseph W. (Trey) Hall, were injured in an automobile/bicycle head-on collision. Appellants sued Sharon K. Rylant, the driver of the automobile, and Dr. Rizwan U. Hassan, Rylant's treating physician. Rylant had been a patient of Hassan since 1988 for what she described as a problem of falling asleep during the day. Appellants appeal the district court's granting of summary judgment in favor of Hassan that found (1) Hassan had no duty to advise Rylant not to operate a motor vehicle, (2) there was no causal connection between the failure to meet that duty by Hassan and the accident, and (3) the factual matters did not rise to the level of evidence sufficient to support appellants' position or to create a factual dispute dealing with either medically inappropriate treatment of Rylant or failure to advise her of the potential adverse effects of medication, mainly drowsiness. We reverse.

On August 8, 1991, at approximately 6:15 a.m., appellants were seriously injured when a car driven by Rylant crossed the center line and struck them as they rode their bicycles. Rylant was driving to work for her 7 a.m. to 3:30 p.m. shift.

Appellants filed suit for injuries and damages, alleging that Rylant fell asleep and negligently allowed her vehicle to cross the center line. In a second count of the lawsuit, appellants alleged a claim against Hassan for failing to appropriately treat Rylant's sleep disorder, failing to appropriately monitor her medication, and failing to advise her not to operate an automobile given her medical condition and prescribed medication.

Appellant Hall later dismissed his claims and filed a separate suit alleging the same claims previously raised in the suit with appellant Calwell, but listing Hassan as the only defendant. The two lawsuits were consolidated for purposes of discovery and trial.

Rylant began seeing Hassan, a neurologist, in June 1988, because she felt drowsy and fell asleep during the daytime. Hassan's consultation report stated that his impression was Rylant had Disorder of Excessive Sleep (DOES) and that he had ruled out narcolepsy. Hassan performed a variety of tests on Rylant and discovered she had more than normal rapid eye movement (REM) sleep, which prevented her from achieving sufficient deep or slow wave sleep. Hassan's interpretation of the test results confirmed his impression that Rylant had a condition comparable to DOES, and again he ruled out narcolepsy.

After testing and diagnosing Rylant, Hassan prescribed Elavil for her to take at bedtime. He stated the drug was to relax her so she could achieve deeper sleep. Elavil accomplishes this by suppressing REM sleep,providing a deeper sleep.

The effectiveness of the Elavil decreased over time, and Hassan increased Rylant's dosage from 25 mg to 50 mg per dose on August 10, 1988. Rylant stated that after she started taking Elavil and also after the dosage was increased, she had no problem staying alert when driving. When the Elavil began to lose its effectiveness again, Hassan increased the dosage to 75 mg on November 10, 1988, and to 100 mg on June 1, 1989.

Approximately a year later on July 31, 1990, Rylant returned to Hassan complaining of inability to sleep at night, drowsiness, and the ability to sleep anytime during the day. Rylant also seemed to be depressed. Rylant stated in her deposition that she had not returned to see Hassan for a year because the Elavil was working. In addition to the already prescribed 100 mg dosage of Elavil, Hassan prescribed Prozac for Rylant's depression. After a follow-up appointment 3 weeks later, Rylant did not return for approximately another year.

Rylant testified she was feeling fine and had no problems between August 22, 1990, and July 29, 1991. When she returned to Hassan in July 1991, she complained of fighting sleep and dozing off at work. Hassan told her to abstain from caffeine and sugar, and continued the prescriptions and current dosages of Elavil and Prozac.

Rylant called Hassan after the accident. She told Hassan she had slept well the night before the accident and had not been drowsy when she left home for work. However, for the week prior to the accident, she had experienced dizziness and vertigo. In appellants' motion opposing summary judgment, they state that Rylant does not recall complaining to Hassan about dizziness or vertigo. When questioned about this in her deposition, Rylant stated, "That's what I read. I didn't remember that but that's what it says." As to her recollection of the accident, Rylant testified that immediately prior to the accident, she felt drowsy and then fell asleep. Rylant stated she awoke after she felt the impact of the accident.

It is uncontested that Hassan never warned Rylant not to drive. However, the record indicates, in the form of Hassan's medical report, that Rylant told him on June 21, 1988, that she had to fight to stay awake while 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.

On September 15, 1994, the district court heard arguments on Hassan's motion for summary judgment. The motion was granted.

The court held that the heart of the dispute was whether Hassan had a duty to the driving public to advise Rylant not drive her vehicle. The court did not find any Kansas cases on point, but cited Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), as instructive. The district court made the following findings:

"Rylant went to Hassan first on June 21, 1988, more than three years before the accident subject of this action. Her complaint was '... a problem she had falling asleep during the day.' Hassan completed a variety of testing to determine Rylant's daytime drowsiness. The result of the testing ruled out narcolepsy. Hassan prescribed Elavil for Rylant to take at night to relax her so she could fall into a deeper sleep and be more rested during the day. While plaintiffs acknowledge those facts, plaintiffs assert Rylant had a related condition, D.O.E.S., a sleep disorder. It appears to the Court the evidence shows D.O.E.S. is a sleep disorder, the principal category of same being narcolepsy. Plaintiff lacked the symptoms for narcolepsy and the other major category of D.O.E.S., cataplexy. Various experts seem to want to place Rylant in a minor sub-category of D.O.E.S., all physicians agreeing she had some unusual problem with sleeping and drowsiness during the daytime. Rylant had only one experience of going tosleep while driving, that being the incident in which she collided with the plaintiffs. She had other experiences, particularly at earlier times in the treatment, and before treatment, of falling to sleep while doing her job at work. Rylant also has testified she understood it would be only 'common sense' when she felt drowsy while driving to pull over to the side and stop. When the incident occurred giving rise to these claims, Rylant remembered negotiating road construction barriers at Harry Street, thereafter becoming drowsy, and going to sleep, crossing the center line and striking plaintiffs near Bailey, less than half a mile from Harry Street."

The court determined that as a matter of law, Durflinger did not go so far as to recognize a claim appellants could assert against Hassan.

The district court also held that even if it was error to not find a duty, there was, as a matter of law, no causal connection between the failure to meet that duty by Hassan and the accident. The district court based this conclusion on its finding that: (1) Rylant knew she had a problem staying awake during the daytime; (2) she understood to pull over to the side of the road if she felt drowsy; (3) her testimony that she would not have driven if warned by Hassan was self-serving and not legally impressive; (4) the accident would have occurred with or without Hassan's advising Rylant not to drive; and (5) Hassan's advising Rylant of what she already knew would have been redundant, accomplishing nothing and too scant a connection for negligence liability.

With regard to the medication prescribed by Hassan, the district court found after examining all the evidence, including medical testimony and evidence, that Hassan did not deviate "from standard medical care in the administration of either Elavil or Prozac." The court concluded the factual matters presented did not rise to the level of evidence sufficient to support appellants' position or to create a factual dispute dealing with either medically inappropriate treatment of Rylant or failure to advise her of the potential adverse effects of the medication, mainly drowsiness.

Hassan argues preliminarily that this court is without authority to decide whether he had a duty to appellants...