Donnini v. Ouano

• Decision Date: 03 May 1991
• Docket Number: No. 65341,65341
• Citation: 810 P.2d 1163,15 Kan.App.2d 517
• Parties: Elnora DONNINI and the Estate of Faust Donnini, Appellees/Cross-appellants, v. Bibiano B. OUANO, Jr., Appellant/Cross-appellee.
• Court: Kansas Court of Appeals

Page 1163

810 P.2d 1163

15 Kan.App.2d 517

Elnora DONNINI and the Estate of Faust Donnini Appellees/Cross-appellants, v. Bibiano B. OUANO, Jr., Appellant/Cross-appellee.

No. 65341.

Court of Appeals of Kansas.

May 3, 1991.

Review Denied June 11, 1991.

Syllabus by the Court

1. Negligent conduct is a legal cause of harm to another if the conduct is a substantial factor in bringing about the harm and there is no rule of law relieving the actor from liability because of the manner in which his negligence has caused the harm.

2. Where a jury finds it is more likely than not that a tortfeasor's conduct was a substantial factor in bringing about the harm, the tortfeasor's negligence is the cause in fact of the harm and the case is determined under traditional negligence law.

3. The loss of chance rule is an exception to the normal requirement of proving causation in a negligence cause of action. It applies when a doctor's negligence eliminates or substantially reduces a patient's chance of survival.

4. Where the jury finds a patient would have had a greater than 50 percent chance of surviving had he received proper medical treatment, traditional negligence rules apply, not the loss of chance rule.

William Tinker, Jr., of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, for appellant.

Randall E. Fisher and Mark B. Hutton, of Michaud, Hutton & Bradshaw, Wichita, for appellees.

Before PIERRON, P.J., and BRAZIL and LARSON, JJ.

BRAZIL, Judge:

Dr. Bibiano B. Ouano, Jr., appeals from a jury's finding of negligence in a medical malpractice action against him. Ouano claims the trial court erred in failing to measure damages by diminution of chance to survive and in failing to instruct on loss of chance causes of action and that he was entitled to judgment as a matter of law based on the verdict in his first trial. We affirm.

In March 1985, Faust Donnini, a 55-year-old pharmacist, experienced an episode of gross hematuria (blood in the urine). That day, he saw his family doctor and employer, Lawrence Richard Will, a general practitioner, because of the hematuria. Will hospitalized Donnini at the Wellington Hospital and Clinic. He then consulted Ouano.

There is a medical principle in urology that a man in his mid-fifties who has hematuria is presumed to have cancer until proven otherwise. Standard procedure calls for a doctor to look for a tumor in the bladder, ureter, or kidney.

After taking a history and performing a physical examination, Ouano performed a cystoscopy, which is the one test to determine if there is a tumor in the bladder, that was later determined to be inconclusive. An intravenous pyelogram (IVP) was also performed on Donnini that was negative. The IVP is the only test used to find a tumor in the ureter. The IVP is also a preliminary test used to check for a tumor in the kidney. The second test used for examination of the kidney is the retrograde pyelogram. Ouano originally intended to perform a retrograde pyelogram at the same time he was performing the cystoscopy; however, he decided not to perform the retrograde pyelogram. Ouano next recommended a sonogram and CT scan be performed. Both tests were negative for a tumor. The sonogram indicated the presence of a cyst in the lower pole of the left kidney.

There is conflicting testimony as to what happened after the tests were completed. Donnini's wife, Elnora, and Will both testified that Ouano attributed the bleeding to a cyst and recommended nothing other than monthly sonograms to monitor the cyst. Ouano testified he told Will that all the tests should be repeated. The hematuria stopped within a few days, and Donnini was released from the hospital.

Donnini experienced a second episode of the hematuria in August 1985. Will hospitalized him August 10-11, 1985, at the Wellington Hospital. Ouano was not consulted at that time. Donnini had an arteriogram performed on August 26, 1985, the results of which were negative.

Ouano testified he sent a notice to Donnini in July 1985. Elnora, however, testified that the only recall notice they ever received arrived after Donnini had seen another doctor and had been diagnosed as having transitional cell carcinoma. In late February or March 1986, Will referred Donnini to Dr. Oral E. Bass II, a urologist in Wichita, who made the diagnosis of kidney cancer. Donnini was treated for the disease unsuccessfully and died April 14, 1987.

Elnora Donnini and the Estate of Faust Donnini sued Ouano for the wrongful death of Donnini. Elnora contended Ouano departed from the standard approved medical practice. The decedent's family proceeded to trial against Ouano on two alternative theories. First, they proceeded on the theory that Ouano's negligence was the probable cause of decedent's injuries and death. Second, they proceeded on the theory that Ouano's negligence deprived the decedent of a substantial possibility of recovery from the cancer.

After a trial in 1989, a jury found Ouano 42.5 percent at fault in the death of Donnini. It found Will 42.5 percent at fault and Donnini 15 percent at fault. It further found Donnini would have had an appreciable chance of survival if he had received proper medical treatment from Ouano, but that Ouano's actions were not a substantial factor in causing the death of Donnini. The jury determined Donnini's chances for survival if he had received proper medical care from Ouano to be 50 percent and found Donnini's chances for survival under the care actually given by Ouano to be 50 percent. The court awarded damages in the amount of $293,693.10, which is 41.7 percent of the total amount of damages awarded Elnora by the jury.

Elnora moved to reform the verdict form; to grant judgment notwithstanding the verdict; or, in the alternative, to grant a new trial. She claimed the verdict form contained answers that were inconsistent with one another and with the evidence. After hearing arguments and considering briefs filed in the matter, the court ordered that a new trial be conducted on the issues of liability alone. On April 25, 1990, after a second trial on the matter, the jury found Ouano to be 41.7 percent at fault, Will 43.7 percent at fault, and the decedent 14.6 percent at fault. It also found Donnini's chances for survival had he received proper medical care to be 55 percent and that he had 0 percent chance of survival under the care actually given.

Ouano claims that in a cause of action based on a diminution of a chance to survive a plaintiff's verdict must be reduced by the percentage of chance of survival lost by reason of plaintiff's conduct. Elnora responds that this is not a "loss of chance" case but rather a traditional survival/wrongful death case, although both theories were alternatively presented to the jury.

Ouano is asking this court to determine the legal effect of the jury's findings. "This court's review of conclusions of law is unlimited." Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan.App.2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).

In a negligence action, the plaintiff must normally prove the negligent act was a cause in fact of the plaintiff's injury. See Little v. Butner, 186 Kan. 75, 79, 348 P.2d 1022 (1960). In State Highway Comm. v. Empire Oil & Ref. Co., 141 Kan. 161, 40 P.2d 355 (1935), the court defined legal cause as the invasion of some legally protected interest of another for which the actor is held responsible for the harm. The act or omission must be a "substantial factor" in bringing about the harm. 141 Kan. at 165, 40 P.2d 355.

Kansas follows the definition of legal cause found at Restatement (Second) of Torts § 431 (1965):

"The actor's negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm."

Comments a and b of the Restatement (Second) of Torts § 433 B (1965) provide:

"a ... [I]n civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a preponderance of the evidence. This means that he must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

....

"b The plaintiff is not, however, required to prove his case beyond a reasonable doubt. He is not required to eliminate entirely all possibility that the defendant's conduct was not a cause. It is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than it was not."

In the instant case, the jury found Ouano's negligence was the cause in fact of Donnini's death. This finding is demonstrated in the special interrogatory answers that Donnini's chances for survival under Ouano's care as given were 0 percent as compared to a 55 percent chance of survival had he received proper medical care. Thus, the jury found it was more likely than not that Ouano's conduct was a substantial factor in bringing about the harm. This finding is supported by the opinion testimony that Donnini may have had a greater than 90 percent chance of survival had Donnini's illness been diagnosed in March 1985. The finding also shows the jury found negligence under traditional survival/wrongful death law not "loss of chance" as contended by Ouano.

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...