Castleberry v. Debrot

Decision Date24 August 2018
Docket NumberNo. 111,105,111,105
Citation424 P.3d 495
Parties Douglas L. CASTLEBERRY, Individually and as the Administrator of the Estate of Barbara Mae Castleberry, Deceased, and on behalf of Susan M. Kraft and Scott Castleberry, Adult Heirs at Law of Barbara Mae Castleberry, Deceased, Appellees, v. Brian L. DEBROT, M.D., Appellant.
CourtKansas Supreme Court

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 appellant.

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, argued the cause, and Larry Wall and Tina Huntington, of Wall Huntington Trial Law, of Wichita, were with him on the briefs for appellees.

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

Brian L. DeBrot, M.D., appeals after a jury found him negligent and awarded damages to his deceased patient's heirs and estate. The medical malpractice theory was that DeBrot failed to recognize the patient was about to suffer a stroke the day before she had it. A Court of Appeals panel affirmed. See Castleberry v. DeBrot , No. 111105, 2016 WL 1614018, at *30 (Kan. App. 2016) (unpublished opinion). We granted review and now affirm on the issues subject to our review, although our rationale differs in some respects.

At the outset, we must resolve a challenge about what issues DeBrot's petition for review identifies. We hold those questions are: (1) whether it was error to instruct the jury that a party is at fault when the party's "negligence caused or contributed to the event which brought about the claims for damages"; (2) whether plaintiffs' counsel's closing arguments contained improper remarks and, if so, whether that requires reversal; and (3) whether expert standard-of-care testimony that doctors must "err on the safe side" was improper and, if so, whether that requires reversal.

As to the instructions, we adhere to our holding in Burnette v. Eubanks , 308 Kan. ––––, Syl. ¶ 3, 425 P.3d 343 (this day decided) ("Any perceived distinction between the phrases ‘causing an event’ and ‘contributing to an event’ is a distinction without a difference."). We also hold that plaintiffs' counsel improperly urged the jury to decide the case on concerns other than the law and the evidence. But we determine there is no reasonable probability the verdict would have been different without this error. Finally, we hold the district court did not abuse its discretion by permitting experts to testify as they did because they simply explained the mental processes used in forming their opinions about whether DeBrot breached the standard of care. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Barbara Castleberry suffered a debilitating stroke

on December 20, 2007. About a year later, she fell and sustained a fatal head injury. This lawsuit claims a direct causal connection between these two events and DeBrot's medical malpractice.

Barbara saw DeBrot, a primary care physician, five times before her 2007 stroke

, including December 6 and December 19. During the first December visit, Barbara's "chief complaint" was left hand numbness. She reported tingling in the hand, increasing difficulty picking things up, difficulty turning pages, dizziness, and foot numbness. She wondered if she was having a stroke. DeBrot believed these symptoms were caused by carpal tunnel syndrome

. He testified a stroke"[w]asn't even a consideration" because he clinically reproduced her symptoms, which would have been impossible if she had suffered a stroke.

DeBrot referred Barbara to a carpal tunnel

specialist, who confirmed the diagnosis and began treatment. She returned to DeBrot on December 19—the day before her stroke—chiefly complaining about wrist pain. She had high blood pressure and reported dizziness, constipation, increased numbness, blurred vision, and emotional problems. DeBrot believed a steroid injection given by the specialist two days earlier caused the pain. DeBrot rescheduled her follow up with the specialist for an earlier date.

After Barbara died, her husband and estate sued DeBrot for damages sustained during her remaining lifetime after the stroke

and for damages resulting from Barbara's death. The negligence focused on DeBrot's alleged failure to recognize the impending stroke or to diagnose Barbara with transient ischemic attacks (TIA) during the two December 2007 visits.

Barbara suffered an ischemic stroke

, which occurs when a blood vessel becomes blocked, depriving necessary blood supply to an area in the brain. This is different from a hemorrhagic stroke, in which a blood vessel ruptures, placing pressure on the surrounding brain cells. A TIA, like an ischemic stroke, blocks blood flow to one or more areas in the brain; but unlike a stroke, the blockage is temporary. A TIA is a warning sign for an impending stroke. Plaintiffs claimed the stroke was avoidable had DeBrot acted within the standard of care during Barbara's December visits because (1) he would have discovered the blockage in Barbara's carotid artery by listening to the artery or ordering an ultrasound or Doppler examination; or (2) he would have placed Barbara on aspirin therapy, which reduces the ischemic stroke risk.

A jury found DeBrot at fault and awarded Barbara's estate, her husband, and children economic and noneconomic damages. The district court entered judgment against DeBrot for damages totaling $907,484.69. DeBrot appealed.

Before the Court of Appeals, DeBrot argued for reversal claiming: (1) the district court did not properly instruct the jury on causation and the evidence required to prove it; (2) the court instructed the jury it could not assign fault to plaintiffs; (3) plaintiffs' counsel made prejudicial remarks during closing arguments; (4) the court permitted plaintiffs' experts to redefine the duty of care owed to Barbara; and (5) the court erred in making various evidentiary rulings. The panel affirmed. Castleberry , 2016 WL 1614018, at *30.

DeBrot filed a petition for review with this court, which we granted. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ISSUES NOT PROPERLY BEFORE THIS COURT

We begin by defining the issues because DeBrot's supplemental brief, filed after this court granted review, argued questions not itemized as being erroneously decided by the Court of Appeals. Plaintiffs objected to this. Our rule states:

"An order granting review may limit the issues on review. If review is not limited, the issues before the Supreme Court include all issues properly before the Court of Appeals which the petition for review or cross-petition allege were decided erroneously by the Court of Appeals . In civil cases, the Supreme Court may, but need not, consider other issues that were presented to the Court of Appeals and that the parties have preserved for review." (Emphasis added.) Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 56).

The rules also explain how petitions for review are to be drafted. Rule 8.03(a)(4) states:

"The petition must contain concise statements of the following, in the order indicated:
....
"(C) A statement of the issues decided by the Court of Appeals of which review is sought. The court will not consider issues not presented or fairly included in the petition. The court, however, may address a plain error not presented. In a civil case, the petitioner also must list, separately and without argument, additional issues decided by the district court which were presented to, but not decided by, the Court of Appeals, which the petitioner wishes to have determined if review is granted." (Emphasis added.) Supreme Court Rule 8.03(a)(4) (2018 Kan. S. Ct. R. 54).

In DeBrot's petition for review, he stated in his "Statement of Issues For Which Review Is Sought" as follows:

"Although Dr. DeBrot believes all of the issues raised in this appeal should be considered , the following particularly merit review:
"1. Whether the PIK recommended instructions on causation are fundamentally flawed, in that they do not correctly state the law of proximate cause?
"2. Whether the Court of Appeals erred by failing to address the prejudicial impact of plaintiffs' improper 'Reptile Litigation' arguments in light of the overall theme of plaintiffs' case and applied the wrong legal standard?
"3. Whether the Court of Appeals incorrectly upheld the trial court in allowing expert witnesses to redefine the legal duty of a physician?" (Emphasis added.)

After review was granted, DeBrot included a section in his supplemental brief entitled, "The Court of Appeals Erred in Rejecting Defendant's Contentions as to Several Evidentiary Issues." Similarly, DeBrot argued in his supplemental brief that the panel erred in rejecting his argument that the district court should have instructed the jury that its causation findings had to be based on expert testimony. DeBrot never explained why he included these issues in his supplemental brief nor did he explain their earlier omission from his petition for review or his reply in support of that petition for review.

When asked at oral argument about these omissions, DeBrot's counsel conceded the additional issues were not raised in the petition for review but hoped the introductory phrase—"Dr. DeBrot believes all of the issues raised in this appeal should be considered"—was sufficient to overcome plaintiffs' objection.

"A party aggrieved by a decision of the Court of Appeals on a particular issue must seek review in order to preserve the matter for Kansas Supreme Court review." Snider v. American Family Mut. Ins. Co. , 297 Kan. 157, 172, 298 P.3d 1120 (2013). We hold that DeBrot failed to preserve the arguments regarding the evidentiary issues, the question regarding limiting causation evidence to experts, and the instruction that plaintiffs were not at fault. See Bullock v. BNSF...

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