Doran v. Priddy

• Decision Date: 10 March 1981
• Docket Number: Civ. A. No. 79-1205.
• Citation: 534 F. Supp. 30
• Parties: Raymond James DORAN, V, a minor, by and through his parents and natural guardians, Rebecca Ann Doran and Raymond James Doran, III; and Rebecca Ann Doran and Raymond James Doran, III, Individually, Plaintiffs, v. Maurice F. PRIDDY, D.O., Defendant.
• Court: U.S. District Court — District of Kansas

534 F. Supp. 30

Raymond James DORAN, V, a minor, by and through his parents and natural guardians, Rebecca Ann Doran and Raymond James Doran, III; and Rebecca Ann Doran and Raymond James Doran, III, Individually, Plaintiffs, v.Maurice F. PRIDDY, D.O., Defendant.

Civ. A. No. 79-1205.

United States District Court, D. Kansas.

March 10, 1981.

Patrick J. Michaud, Michaud, Cordry & Michaud, Wichita, Kan., for plaintiffs.

C. Stanley Nelson, Hampton, Royce, Engleman & Nelson, Salina, Kan. and Alvin D. Herrington, McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, Kan., for defendant.

ORDER ON APPELLATE REVIEW OF MAGISTRATE'S DISCOVERY ORDERS AND PLAINTIFFS' MOTION IN LIMINE

THEIS, District Judge.

This matter comes before the Court for decision on defendant's motions for review of certain decisions of the Magistrate, and plaintiffs' motion in limine.

This is a diversity action alleging the medical negligence of defendant between the dates of October 12 and October 15, 1977, inclusive, which caused permanent brain damage and other injuries to Raymond James Doran, V, or Chip, the minor plaintiff.The parents are also plaintiffs, seeking to recover past and future medical expenses.

The defense of Dr. Priddy is that causation of the infant plaintiff's claimed injuries stem from acts of so-called phantom parties who participated in the events of the infant plaintiff's life from immediately pre-natal to a post-natal period of considerable time duration.It is alleged that the injuries to the infant plaintiff were caused or contributed to by: (1) pre-natal negligent acts and finally the abortive act of Rebecca Ann Doran in rupturing the fetal membrane; (2) failure of Dr. Labhsetwar to undertake the care and treatment of Mrs. Doran at the time of the birth; (3) the negligent professional acts of Dr. Bollman, who undertook such care; (4) child abuse by the parents, Rebecca Ann and Raymond James Doran, III, during the post-natal period; and (5) the statutory negligence of Dr. Luzier in failing to report information of physical child abuse a year after the infant plaintiff's birth.

Dr. Priddy was Mrs. Doran's doctor during her pregnancy.She was admitted to the hospital under his care on October 12, 1977.Her membrane had ruptured.Mrs. Doran had a cerclage suture in place, and the fetal age was estimated at thirty-two weeks.Labor was chemically suppressed.Dr. Priddy left town for the day on Saturday, October 15, 1977, to attend a football game.That morning Mrs. Doran was having strong contractions and had a low grade fever.Her condition appeared serious enough to a nurse, Mrs. Schweitzer, that she began looking for a doctor to see her.Dr. Labhsetwar was at the hospital at the time.She was the only board-certified obstetrician and gynecologist practicing in Junction City during the days in question.Dr. Priddy did not consult with Dr. Labhsetwar, but on Saturday Mrs. Schweitzer asked Dr. Labhsetwar for advice on how to proceed with Mrs. Doran.According to Dr. Labhsetwar, she suggested the nurse consult with Mrs. Doran about who she would like to have see her.Mrs. Doran had worked at the hospital and was acquainted with the staff.Mrs. Schweitzer called Dr. Bollman.No doctor was known to be covering for Dr. Priddy.After a discussion between Dr. Bollman and Mrs. Schweitzer about Mrs. Doran's condition, Dr. Bollman said because of the complicated nature of the problem he would just as soon defer to an obstetrician, and asked the nurse to call Dr. Labhsetwar before Dr. Bollman would decide to become involved.Although there is some dispute as to exactly why Dr. Labhsetwar declined to intervene, it is undisputed that she was never approached by either Mrs. Doran, Dr. Priddy, or anyone on her or his behalf.When Dr. Bollman learned Dr. Labhsetwar was not going to become involved, he undertook to see Mrs. Doran.

Dr. Bollman found an elevated white blood cell count, indicating possible infection.He could not tell how elevated, since no white blood cell counts had been taken in the previous three days Mrs. Doran was in the hospital.Dr. Bollman had Mrs. Doran taken to surgery, and performed a pelvic examination.He found foul-smelling material in the vagina, and confirmed that the membranes were ruptured.He removed the cerclage suture and then decided it would be necessary to perform a Caesarian section, feeling the infection indicated by the white blood count and the odor which was present, indicated it was urgent to deliver the child.He found a live baby, the minor plaintiff, and an abcess between the membrane and the uterine wall, which contained, by Dr. Bollman's estimate, 150 to 200 cubic centimeters of pus, as well as a foul smell.(Deposition of Dr. Bollman.)Chip, the minor plaintiff, weighed four pounds, six and a half ounces.The pathology report indicated, inter alia, acute inflammation of the membranes associated with the placenta, and of the umbilical cord, and acute inflammatory cell infiltrates within the vessel walls of the placenta.Id. at 33-34.It is alleged that Chip now suffers from sight, hearing, and motor problems, said to result from cerebral palsy arising out of professional negligence by Dr. Priddy.

Defendant appeals the action of the Magistrate in excluding from the pretrial order two issues of alleged comparative negligence.Defendant wishes to compare the negligence of Dr. Luzier and Dr. Labhsetwar.Dr. Thomas Luzier, a pediatrician, allegedly failed to comply with K.S.A. § 38-717, and report the suspected abuse of Chip to the Department of Social and Rehabilitative Services in October, 1978.Dr. Labhsetwar is a board-certified doctor of obstetrics and gynecology, who practices in Geary County.Dr. Priddy contends she was negligent because she did not deliver the child that Saturday afternoon when the nurse talked to her.

To compare the negligence of either of these doctors, if any there be, as contended by Dr. Priddy, would require the Court to create new causes of action under Kansas law.It seems ironic to find these causes of action urged by counsel for the Kansas Health Care Stabilization Fund, whose legal employment stems from a studied and lobbied plan to reduce liability for Kansas health care providers.

There was no doctor-patient relationship between Dr. Labhsetwar and Mrs. Doran.Dr. Priddy urges this Court to create a new duty for a physician who has some knowledge of another doctor's patient, who has no personal knowledge of the treatment history, what arrangements that doctor has made, and who knows the other doctor is gone for the week-end, to assume responsibility for the patient without the patient's requesting that doctor to render care.The Court has examined the cases cited by the defendant, which hold that a hospital in an emergency, critical situation, cannot refuse care or hospitalization to a person.Mrs. Doran was a patient in a hospital, under a particular doctor's care.These cases have no application to these facts.Under the facts of this case, Dr. Labhsetwar was under no duty to act, and there is no negligence to compare.

Defendant further argues that under Kansas comparative negligence, causation should be compared of all possible causes of an injury, instead of merely comparing causation of negligent parties.Defendant argues this theory of causation is derived from Kennedy v. City of Sawyer,4 Kan.App.2d 545, 608 P.2d 1379(1980).The Kansas Supreme Court has since handed down its decision in Sawyer, and it speaks of the "degree of causation of the respective tortfeasors."Kennedy v. City of Sawyer,228 Kan. 439, 462, 618 P.2d 788(1980).(Emphasis supplied.)Since Dr. Labhsetwar is not a tortfeasor, her alleged "causation" will not be considered, even if by the stretch of someone's imagination some blame could be conjured.

The Court's attention has been directed to one California case which has determined that a private cause of action is created for a child by a statute requiring a professional to report physical injuries to children which appear to have been inflicted other than by accident.Landeros v. Flood,17 Cal.3d 399, 131 Cal.Rptr. 69, 551 P.2d 389(1976).This seems a well reasoned case, and this Court would be inclined to follow it if it were necessary.On the facts of this case, however, it would be improper to compare any alleged negligence of Dr. Luzier in not reporting the alleged child abuse, with any negligence of Dr. Priddy.At issue in this case is the conduct of Dr. Priddy and others prior to and at the time of Chip's birth.Plaintiffs, to prevail, must prove by a preponderance of the evidence, that the reasonable medical probability is that Chip's injuries were caused by the events in that period as charged in their complaint.

An examination of the cases which have interpreted the Kansas comparative negligence statute makes it clear that the law has not changed as much as defendant urges.The statute itself refers to a party's causal negligence and the amount of the causal negligence attributed to all parties resulting in death, personal injury, or property damage.The implication seems quite clear that traditional concepts of negligence with proximate cause were contemplated by legislative intent.

In Arrendondo v. Duckwall Stores, Inc.,227 Kan. 842, 610 P.2d 1107(1980), the Kansas Supreme Court was faced with the issue of whether or not comparative negligence applied in a personal injury action based on violation of a regulatory statute."If contributory negligence or an analogous defense would not have been a defense to a claim, the comparative negligence statute does not apply; if contributory negligence would have been a defense, the statute is applicable."227 Kan. at 845, 610 P.2d 1107(emphasis in original).Negligence is also compared where there are joint tortfeasors.Kennedy v. City of Sawyer,228 Kan. 439, 618 P.2d 788(1980);Brown v. Keill,224 Kan. 195, 580 P.2d 867(1978).Joint tortfeasors, aside...