Delaney v. Cade, No. 91-3358

• Decision Date: 18 February 1993
• Docket Number: No. 91-3358
• Citation: 986 F.2d 387
• Parties: , Medicare & Medicaid Guide P 41,424 Julie DELANEY, Plaintiff-Appellant, v. Victor R. CADE, D.O.; St. Joseph Memorial Hospital; Central Kansas Medical Center, Defendants-Appellees, and L.G. Stephenson & Co., Inc., Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 387

986 F.2d 387

40 Soc.Sec.Rep.Ser. 135, Medicare & Medicaid Guide

P 41,424

Julie DELANEY, Plaintiff-Appellant, v. Victor R. CADE, D.O.; St. Joseph Memorial Hospital Central Kansas Medical Center, Defendants-Appellees and L.G. Stephenson & Co., Inc., Defendant.

No. 91-3358.

United States Court of Appeals Tenth Circuit.

Feb. 18, 1993.

Dwight A. Corrin, Corrin & Krysl, Wichita, KS, for plaintiff-appellant.

Robert G. Martin (Alisa M. Arst, with him on the briefs), McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, KS, for defendant-appellee Victor R. Cade, D.O.

Anne M. Hull (Eldon L. Boisseau and Brian C. Wright with her on the briefs), Turner and Boisseau, Wichita, KS, for defendants-appellees St. Joseph Memorial Hosp. and Cent. Kansas Medical Center.

Before SEYMOUR and MOORE, Circuit Judges, and BURCIAGA, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

This is a medical malpractice action in which the plaintiff, Julie Delaney, appeals the district court's grant of partial summary judgment for Dr. Victor R. Cade and full summary judgment for St. Joseph Memorial Hospital and Central Kansas Medical Center. Ms. Delaney sued to recover damages for negligent medical care by the defendants, claiming Dr. Cade's treatment deprived her of a significant chance of a better recovery from her permanent injuries. The district court held Kansas does not recognize a cause of action for loss of chance of recovery, and, even if Kansas allowed this cause of action, Ms. Delaney cannot demonstrate the defendants deprived her of an appreciable chance of recovery. Delaney v. Cade, 756 F.Supp. 1476, 1484 (D.Kan.1991). Ms. Delaney also sought damages for the defendants' alleged violations of 42 U.S.C. § 1395dd, the Emergency Medical Treatment and Active Labor Act (the Act). The district court found the facts of this case did not support a claim against the hospital defendants under 42 U.S.C. § 1395dd, and the Act did not provide a private cause of action against physicians. Id. at 1486. Ms. Delaney appeals these findings.

We conclude the evidence may support an action against the hospital under § 1395dd, but the Act does not create a private cause of action against physicians; therefore, we reverse in part and affirm in part the judgment dismissing the case on those grounds. Because the issue of significant chance of a better recovery raised here is a case of first impression in Kansas, we believe it should be directed to the Kansas Supreme Court for resolution. We shall do so by separate order.

I. BACKGROUND

On November 22, 1986, Ms. Delaney was seriously injured when her automobile collided with another car. ¹ An ambulance transported her to St. Joseph Memorial Hospital in Larned, Kansas. When Ms. Delaney arrived at St. Joseph, she was complaining of chest pain. Dr. Cade, a member of St. Joseph's staff and the physician on call on November 22, sutured the lacerations on her knees but did not perform a physical examination or order x-rays or other treatment.

After two hours at St. Joseph, Dr. Cade transferred Ms. Delaney to Central Kansas Medical Center (CKMC) in Great Bend. When she left St. Joseph, she had feeling and movement in her legs but had lost that feeling by the time she arrived at CKMC. Doctors at CKMC provided medical care to Ms. Delaney and then transferred her to the University of Kansas Medical Center in Kansas City.

At K.U. Medical Center, an aortagram was performed which revealed Ms. Delaney had a transected aorta which had clotted. Although she underwent surgery to repair the transected aorta, Ms. Delaney is now paralyzed permanently. In her federal suit, Ms. Delaney claimed Dr. Cade's treatment and his delay in transferring her to a facility that was equipped to treat her injuries deprived her of a significant chance of better recovery from her permanent injuries.

The court must review the grant or denial of summary judgment de novo, applying the same legal standard as the district court. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990) (citing Barnson v. United States, 816 F.2d 549, 552 (10th Cir.), cert. denied, 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987)). Summary judgment is appropriate when there is no dispute over a genuine issue of material fact "and the moving party is entitled to judgment as a matter of law." Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991). The court will review the record in the light most favorable to the party opposing the motion. Id. (citing Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988)).

II. WHETHER KANSAS LAW RECOGNIZES A CAUSE OF ACTION FOR LOSS OF CHANCE OF RECOVERY

In Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984), the Kansas Supreme Court recognized a cause of action for loss of chance to survive. There the plaintiff brought a medical malpractice action against a chiropractor, alleging he was professionally negligent in failing to recognize his patient was experiencing symptoms consistent with acute heart disease and in failing to refer the patient to a medical doctor. The chiropractor's negligence, the plaintiff argued, "substantially reduced deceased's chance of surviving the heart attack which took his life within hours after he had received chiropractic treatment." Id. 686 P.2d at 150. One of the plaintiff's experts testified if the decedent had received in-hospital treatment for the heart attack, he had a nineteen percent chance of dying. Without proper treatment, his chance of dying was twenty-five percent. Thus, the failure to receive medical treatment reduced his chances of survival from eighty-one to seventy-five percent. Another expert maintained the failure to receive proper treatment reduced his chances of survival from forty to zero percent. The Kansas District Court concluded the evidence on causation was insufficient to constitute a submissible jury question.

On appeal to the Kansas Supreme Court, the sole issue was whether the plaintiff offered sufficient evidence of causation. First, the Court explained Kansas applies the substantial factor test of causation. Under this test a plaintiff must show " 'it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm.' " Id. at 152 (quoting Restatement (Second) of Torts § 433B, cmts. a and b (1965)). Then, after reviewing several loss of chance to survive cases from other jurisdictions, the Court held:

The question of causation in cases involving negligent treatment of a potentially fatal condition ... is generally a matter to be determined by the finder of fact where the evidence has established the patient had an appreciable chance to survive if given proper treatment. In making the determination, the finder of fact should take into account both the patient's chances of survival if properly treated and the extent to which the patient's chances of survival have been reduced by the claimed negligence.

Id. at 159. Based on the expert testimony, the Roberson Court concluded the plaintiff presented sufficient evidence to preclude summary judgment and "[w]hether the negligence of defendant was a substantial factor in Mr. Roberson's death is a matter for determination by a jury." Id. at 160. The Court illuminated its reasoning:

There are sound reasons of public policy involved in reaching this result. The reasoning of the district court ..., in essence, declares open season on critically ill or injured persons as care providers would be free of liability for even the grossest malpractice if the patient had only a fifty-fifty chance of surviving the disease or injury even with proper treatment. Under such rationale a segment of society often least able to exercise independent judgment would be at the mercy of those professionals on whom it must rely for life-saving health care.

Id.

Since Roberson, only the Kansas Court of Appeals has considered a loss of chance cause of action. In Donnini v. Ouano, 15 Kan.App.2d 517, 810 P.2d 1163, 1165-66 (1991), ² the decedent's wife and estate brought a medical malpractice suit against his physician based on the failure to detect kidney cancer. Plaintiffs alleged two alternative theories at trial: (1) the doctor's negligence was the probable cause of the decedent's injuries and death, and (2) the doctor's negligence "deprived the decedent of a substantial possibility of recovery from the cancer." Id. 810 P.2d at 1166. After a second trial on liability, the jury found the decedent's chances for survival with proper care, were fifty-five percent but were zero with the care actually given.

The Court of Appeals held the jury's finding the decedent had a fifty-five percent chance of survival had he received proper medical care indicated the jury found the doctor's negligence was the cause in fact of the decedent's death. Based on this finding, the court concluded the jury found negligence "under traditional survival/wrongful death law not 'loss of chance,' " although both theories went to the jury. Id. at 1167. The Donnini court explained:

The "loss of chance" rule is an exception to the normal requirement of proving causation. In Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984), the court recognized the "loss of chance" cause of action applies when a doctor's negligence eliminates or substantially reduces a patient's chance of survival.

....

A cause of action in which the patient had a greater than 50 percent chance of surviving does not fall under the causation rule from Roberson.

Id. 810 P.2d at 1167, 1168. In such a case, traditional negligence causation rules apply.

Three federal district courts have considered the loss of chance cause of action under Kansas law. In Boody v. United States, 706 F.Supp. 1458, 1459 (D.Kan.1989), the plaintiff brought a medical malpractice action under the Federal Tort Claims Act on behalf of his deceased wife. He alleged a physician acted...