Delaney v. Cade

Decision Date25 January 1991
Docket NumberNo. 88-1657-C.,88-1657-C.
Citation756 F. Supp. 1476
PartiesJulie DELANEY, Plaintiff, v. Victor R. CADE, D.O.; St. Joseph Memorial Hospital; and Central Kansas Medical Center, Defendants.
CourtU.S. District Court — District of Kansas

Dwight A. Corrin, Corrin & Krysl, Wichita, Kan., for plaintiff.

William Tinker, Jr., McDonald, Tinker, Skaer, Quinn & Herrington, Harry M. Bleeker, Turner & Boisseau, Wichita, Kan., for defendants.


CROW, District Judge.

Julie Delaney brings this diversity of citizenship action to recover damages for the alleged negligent medical treatment of the defendants following an automobile accident on a county road in Pawnee County, Kansas. Delaney also claims damages for the defendants' alleged violation of 42 U.S.C. § 1395dd. This matter comes before the court upon defendant Victor R. Cade's motion for summary judgment (Dk. 159) and upon defendants St. Joseph Memorial Hospital and Central Kansas Medical Center's motion for summary judgment (Dk. 161).1 The two motions for summary judgment present several of the same issues of law. The court, having considered the briefs of the parties and the applicable law, is now prepared to rule upon the motions.


Many of the facts are undisputed. The parties stipulate that the law of Kansas and the United States govern this action. On November 22, 1986, at approximately 9 a.m., Delaney's car collided with an automobile operated by William Lange.2 The parties stipulate that Lange's negligence was the sole cause of the automobile accident. Delaney's personal injuries suffered at the time of the automobile accident included a transected aorta, lacerated knees, bi-lateral carpel tunnel, three fractures in the right arm, a broken nose, lacerations on the face, a broken tooth, lacerations in the mouth and fractures in the neck.

Delaney was transported to St. Joseph Memorial Hospital, Larned, Pawnee County, Kansas. Upon her arrival at 10:30 a.m. at St. Joseph, Delaney was treated by Victor Cade, D.O. Dr. Cade was a member of St. Joseph's staff and was the physician on call on November 22, 1986. After treatment by Dr. Cade, Delaney was transferred in the early afternoon of November 22, 1986, to the Central Kansas Medical Center in Great Bend, Kansas. Physicians in Great Bend provided medical care and treatment to the plaintiff. Later that same day, Delaney was transferred by helicopter to the K.U. Medical Center in Kansas City, Kansas.

An aortagram was performed at the K.U. Medical Center. The aortagram showed a transected aorta and that the aorta had thrombosed3 at the site of transection. Dr. Moran of the K.U. Medical Center performed an operation to repair the transected aorta. As a result of the thrombosis of the aorta, Delaney suffers the permanent condition of being a paraplegic from T-8 down. It is not known why Delaney's aorta thrombosed. Apparently thrombosis of the aorta is a very rare occurrence. Between thirty and sixty factors predispose an individual to clotting.

Standards for Summary Judgment

Summary judgment is appropriate when the movant can demonstrate that there is no genuine issue of material fact and is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Fed.R.Civ.P. 56(c).

Delaney's claim of negligence against the defendants rests in part upon the defendants' alleged delay in transporting her to a medical facility equipped to treat her injuries. Specifically, Delaney contends that Dr. Cade did not administer adequate or necessary treatment upon her admittance to St. Joseph. Delaney contends that the three and one-half hour delay (between the time she was admitted to St. Joseph and the time she was admitted to the K.U. Medical Center) deprived her of a significant chance to have a better recovery from her permanent injuries. Delaney contends that this delay, in part, was caused by Dr. Cade's alleged unfamiliarity with St. Joseph's protocols. Delaney also contends that the delay has also complicated her recovery, making it longer and more difficult than it would otherwise have been. Delaney concedes, however, that her paraplegia may even have occurred with care that was not negligent.

Dr. Cade contends that Delaney has failed to meet her burden of proving that his alleged negligence was the cause in fact of her injuries. Dr. Cade contends that the absence of expert medical testimony on the issue of causation entitles him to summary judgment on the issue of negligence. Dr. Cade also contends that Delaney's claim for "loss of chance" is inappropriate as a matter of law. Dr. Cade contends that the "loss of chance" theory only applies in death cases.

St. Joseph basically advances the same arguments as Dr. Cade. St. Joseph contends that Delaney has failed to demonstrate by expert testimony that any negligent action on its part caused or contributed to her injuries. In addition to the arguments advanced by Dr. Cade, St. Joseph specifically denies Delaney's claims as set forth in the pretrial order. St. Joseph challenges whether it had a duty to establish and inform the staff of rules or protocols regarding treatment of trauma patients, transfer of patients, and whether it had a duty to see whether Delaney was transferred to a facility that could adequately treat her injuries (given that Delaney was transferred based upon Dr. Cade's diagnosis).

"Negligence is an essential element of a medical malpractice action." Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 2, 673 P.2d 86 (1983). In a medical malpractice action, the plaintiff is required to prove three elements by a preponderance of the evidence: (1) the physician was negligent in treating the plaintiff; (2) the physician's negligence caused harm to the plaintiff; and (3) the plaintiff suffered damages. Cleveland v. Wong, 237 Kan. 410, 416, 701 P.2d 1301 (1985). "A physician is obligated to his patient to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations." Durflinger, 234 Kan. 484, Syl. ¶ 3, 673 P.2d 86. "In medical malpractice actions, the physician or surgeon is presumed to have carefully and skillfully treated or operated on his patient, and that there is no presumption of negligence from the fact of an injury or adverse result." Leiker v. Gafford, 245 Kan. 325, 349, 778 P.2d 823 (1989).

In a medical malpractice case, "expert medical testimony is ordinarily required to establish negligence or lack of reasonable care on the part of a physician or surgeon in his medical diagnosis, his performance of surgical procedures and his care and treatment of patients." Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978). See Crooks v. Greene, 12 Kan.App.2d 62, 65, 736 P.2d 78 (1987) (expert testimony is ordinarily required in medical malpractice cases to establish the standard of care and to prove causation).

In Kansas it is a fundamental rule that actionable negligence must be based on a breach of duty. Durflinger, 234 Kan. at 488, 673 P.2d 86. Whether a duty exists is a question of law. Id. Whether a duty has been breached is a question of fact. Id. "Hospitals owe a duty to their patients to exercise reasonable care. This is such care, skill and diligence as the known physical and mental condition of the patient may require, and it is that degree of care used by other hospitals in the community or similar communities under like circumstances." Malone v. University of Kansas Medical Center, 220 Kan. 371, 375, 552 P.2d 885 (1976).

St. Joseph's duty to Delaney.

St. Joseph dedicates approximately five and one-half pages of analysis to the issue of whether or not it owed a duty to Delaney, and if it owed a duty, whether it breached such a duty. In response, Delaney dedicates approximately one paragraph to these same issues. In pertinent part, her response states: "The hospital knew or should have known that Dr. Cade was not aware of the hospital's rules and was not following them. It must be held accountable for that sloppy oversight as well."

Delaney's discussion of these issues is wholly inadequate. First, Delaney does not establish that St. Joseph owed her any of the duties she alleges it breached. While a hospital, of course, owes a duty of reasonable care to all of its patients, the record does not establish the appropriate standard of care St. Joseph's was required to provide Delaney. Necessarily, therefore, none of the testimony demonstrates that St. Joseph deviated from the acceptable standard of care. Even if St. Joseph owed any of the duties claimed by Delaney, none of the expert testimony establishes to a reasonable degree of medical certainty that the breach of any duty caused Delaney's injuries.

Delaney admits to the following statements of uncontroverted facts:

5. Based upon probabilities of reasonable medical certainty, Dr. Harrison cannot testify that the transfer from St. Joseph Memorial Hospital to the Central Kansas Medical Center in any way caused or contributed to the plaintiff's permanent disability or impairment.
6. The nurses did not deviate from the accepted standard of medical care by not starting an intravenous injection on the plaintiff.
7. The treating physician was responsible for deciding to institute an intravenous injection.
8. The nursing staff is obligated to follow the doctor's orders regarding the institution of an intravenous injections.
9. Dr. Cade considered and rejected the institution of an intravenous injection.
10. The presence of a protocol or the lack of a protocol in the instant case is irrelevant to the causation of the plaintiff's permanent injuries.
11. It is not a breach of the standard of care for the hospital when a physician fails to

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