Culp v. Timothy M. Sifers, M.D., P.A.

• Decision Date: 04 February 2007
• Docket Number: Case No. 07-2103-JWL.
• Citation: 533 F.Supp.2d 1119
• Court: U.S. District Court — District of Kansas
• Parties: Teresa D. CULP, Plaintiff, v. TIMOTHY M. SIFERS, M.D., PA. and Timothy L. Sifers, as the Executor of the Estate of Timothy M. Sifers, M.D., Defendants.

533 F.Supp.2d 1119

Teresa D. CULP, Plaintiff, v. TIMOTHY M. SIFERS, M.D., PA. and Timothy L. Sifers, as the Executor of the Estate of Timothy M. Sifers, M.D., Defendants.

Case No. 07-2103-JWL.

United States District Court, D. Kansas.

February 4, 2007.

Ashley L. Ricket, Leland F. Dempsey, Dempsey & Kingsland, P.C., Kansas City, MO, for Plaintiff.

Barbara K. Christopher, Jessica J. Shaw, Horn, Aylward & Bandy LLC, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

This lawsuit arises from complications following a bariatric weight reduction surgery that was performed on plaintiff Teresa Culp by Timothy M. Sifers, M.D., who is now deceased. Ms. Culp alleges that Dr. Sifers was supposed to perform the surgery using a new technique called the duodenal switch, a procedure that is allegedly associated with fewer complications than older weight loss procedures, but that Dr. Sifers actually performed an unrecognized and unknown variation of a much older procedure and, as a result, Ms. Culp suffered severe complications. Ms. Culp asserts claims against Dr. Sifers' medical practice and his estate (collectively referred to as Dr. Sifers) for fraud, negligence, battery, and a violation of the Kansas Consumer Protection Act. This matter is currently before the court on defendants' Motion for Summary Judgment (doc. # 37) based on the applicable statutes of limitations. For the reasons explained below, the court will deny the motion as to plaintiffs fraud and negligence claims and will grant the motion as to plaintiff's battery and Kansas Consumer Protection Act claims.

STATEMENT OF MATERIAL FACTS¹

Plaintiff Teresa Culp saw a Healthwatch segment of KMBC-9 news that featured Dr. Sifers. The segment discussed a "new" weight reduction procedure that had fewer side effects than other procedures and featured Dr. Sifers as a surgeon who performed the "new" procedure. Ms. Culp did some Internet research on the new procedure, the duodenal switch, and then contacted Dr. Sifers to discuss having that surgery performed. Her initial consultation with Dr. Sifers was on May 31, 2001, and she underwent weight loss surgery on August 28, 2001.

During the consultation on May, 31, 2001, Ms. Culp indicated that she had seen the Healthwatch segment and was interested in the surgery. Ms. Culp does not remember whether the specific term, "duodenal switch," which had been the subject of the Healthwatch segment, was specifically used in the consultation. Dr. Sifers, though, acknowledged she had seen the television segment because throughout the medical records he indicated that she was referred by "TV." They did not discuss any other surgery options.

Dr. Sifers specifically testified in his deposition that he "wasn't making a distinction at all at that time about the two [meaning the biliopancreatic diversion and the duodenal switch]. As a matter of fact, [he] was even calling the procedure a duodenal switch back then." According to Dr. Sifers, he used the terms "duodenal switch" and "biliopancreatic diversion" interchangeably in his medical reports and in his representations to his patients. He explained that he usually used the term "duodenal switch" instead of biliopancreatic diversion because it was "easier to say."

The surgery was performed on August 28, 2001. Dr.,Sifers contends that he performed a biliopancreatic diversion. In support of this, he points out that prior to her surgery Ms. Culp signed a consent authorizing him to perform a "biliary [sic] pancreatic diversion with partial gastrectomy" and that his operative notes list the operation performed as "[b]iliopancreatic diversion."

Ms. Culp, on the other hand, contends that Dr. Sifers performed an unknown and unrecognized procedure despite his representations that he would perform the duodenal switch procedure. As to the term "biliary pancreatic diversion with partial gastrectomy," Ms. Culp does not specifically remember signing the consent form but she remembered that same term in an insurance letter. After seeing it in the letter, she researched it on the Internet. When Ms. Culp input that term into' a search engine, it pulled up biliopancreatic diversion with duodenal switch, so she figured that she and Dr. Sifers were "on the same path." She also points out that the medical records reference several different medical terms for the procedure. Also, his standing orders for her suggest that he was performing the duodenal switch, as those orders are entitled "Standing Orders for Vertical Banded Gastoplasty and Duodenal Switches" and they state as follows: "For duodenal switches: patient will receive ½ golytely prep and Reglan 10mg from office." Regardless of the parties' dispute about the nature of the procedure actually performed, it is uncontroverted that, unbeknownst to Ms. Culp, Dr. Sifers did not perform the duodenal switch or even the biliopancreatic diversion with duodenal switch.

Ms. Culp suffered from a number of complications following the surgery.² Dr. Sifers' motion for summary judgment is grounded in the notion that by January 2005 she had begun experiencing a multitude of health problems beyond what she associated with the duodenal switch procedure. For example, she had to have her gall bladder removed; she had constant diarrhea, bloating, and stomach pain; she had anal bleeding; she had a ventral hernia; she suffered dry, flaky, pale skin; she experienced constant hunger; she experienced shortness of breath; she had headaches; she had hair loss; she had poor sleep patterns; she had nausea; she, developed shortness of breath; she suffered from fatigue; and she suffered a horrid increase in the frequency and odor of her bowel`movements and gas.

Dr. Sifers saw Ms. Culp for a total of nineteen visits for a period of two years on the following dates: May 31, 2001 (the initial consultation), August 27, 2001 (date of surgery), September 5, 2001, October 15, 2001, November 14, 2001, December 19, 2001, January 16, 2002, February 14, 2002; March 14, 2002, April 14, 2002, May 16, 2002, June 14, 2002, July 12, 2002, August 15, 2002, September 19, 2002, November 13, 2002, February 26, 2003, March 6, 2003, and August 28, 2003. Dr. Sifers never told Ms. Culp at any of those visits that he had not performed the duodenal switch. Instead, he told her that many of her symptoms were not unusual, but were temporary side effects of the surgery or resulted from other causes. He told her that constant hunger was not unusual after surgery. He told her the acne was a normal hormonal reaction to the "new" surgery and changes to hormones were normal side effects. He told her that headaches were a normal side effect. He told her that her hair loss was the result of vitamin malabsorption, which was a temporary condition from the surgery, and she should cut up her vitamins so they absorb more quickly. He first told her that the diarrhea was normal for the first six to eight months following surgery. After eight months, Dr. Sifers gave her various explanations such as that she was eating the wrong kinds of foods, that it was a temporary side effect, and that it was due to her gallbladder surgery. He told her the gaseous odors were to be expected and it would get better with time and suggested a pill that Ms. Culp could buy over the Internet to alleviate the problem. He blamed her anal bleeding on hemorrhoids. He said her bloating was due to improper eating, and then later told her it was the result of a problem with her gallbladder. Dr. Sifers told her first that her iron levels were low and that she was anemic, and then gave this as the reason why she was fatigued. He said her shortness of breath was because she needed to exercise more. In sum, he always told Ms. Culp each time she came to him with complaints that the symptoms she was experiencing were either normal or not a side effect of her weight loss surgery; he did not ever tell her that the symptoms were a result of a bariatric surgery other than the duodenal switch or that these were unexpected complications of the surgery.

Additionally, Dr. Sifers performed the gall bladder surgery on Ms. Culp in 2003. She requested that he perform the surgery at Overland Park Regional Medical Center, where she had the bariatric surgery, instead of Shawnee Mission as Dr. Sifers suggested. Dr. Sifers responded that he did not have weight loss surgery privileges there because he was performing the "new" surgery, and they would not approve him until he had performed at least 500 of these "new" surgeries. After noting that he would be performing gallbladder surgery and not weight loss surgery, Dr. Sifers determined he would perform that surgery at Overland Park

Ms. Culp remained under the belief that she had received the duodenal switch after her surgery and up until around January 31, 2007. At that time, Ms. Gulp's psychiatrist asked her if she had seen the two articles in the Pitch Magazine about Dr. Sifers. Ms. Culp responded that she had not. She went home and performed an Internet search for the articles: She read both of them and discovered that he had not performed the duodenal switch procedure. Ms. Culp filed her complaint in this case on March 6, 2007, asserting claims for fraud, negligence, battery, and a violation of the Kansas Consumer Protection Act.

Dr. Sifers now moves for summary judgment on plaintiff's claims against him based on the applicable statutes of limitation and repose. Defendants' theory is that by January 11, 2005, Ms. Culp knew that she was experiencing a multitude of debilitating symptoms that she did not believe to be associated with the duodenal switch procedure, so she had reason to investigate the circumstances of her ongoing health problems and suspect that the surgery was not performed correctly. Consequently, plaintiffs various claims (which are governed by one, two, three, and four year statutes of limitations and repose) that were filed more than one, two, three, or...