Drouhard-Nordhus v. Rosenquist

• Decision Date: 27 March 2015
• Docket Number: 108,859.
• Citation: 301 Kan. 618,345 P.3d 281
• Parties: Marilee DROUHARD–NORDHUS, as special administrator of The Estate of Donald M. Drouhard, Deceased, and on Behalf of the Heirs-at-law of Donald M. Drouhard, Appellant, v. Neil ROSENQUIST, M.D., Appellee, and R. Larry Beamer, M.D., Defendant.
• Court: Kansas Supreme Court

301 Kan. 618

345 P.3d 281

Marilee DROUHARD–NORDHUS, as special administrator of The Estate of Donald M. Drouhard, Deceased, and on Behalf of the Heirs-at-law of Donald M. Drouhard, Appellant

v. Neil ROSENQUIST, M.D., AppelleeandR. Larry Beamer, M.D., Defendant.

108,859.

Supreme Court of Kansas.

March 27, 2015.

Gerard C. Scott, of Scott Law, P.A., of Wichita, argued the cause and was on the briefs for appellant.

Shannon L. Holmberg, of Gilliland & Hayes, LLC, of Hutchinson, argued the cause, and was on the briefs for appellee.

Opinion

The opinion of the court was delivered by BILES, J.:

This is a medical malpractice case in which we consider whether plaintiff put forth sufficient evidence of causation to survive summary judgment. The district court granted Dr. Neil Rosenquist's summary judgment motion, holding there was insufficient evidence of a cause-and-effect relationship between the radiologist's alleged negligent diagnosis and the patient's death. The Court of Appeals affirmed the district court's granting of summary judgment on Rosenquist's motion. Drouhard–Nordhus v. Rosenquist, No. 108,859, ––– Kan.App.2d ––––, 2013 WL 5737363 (Kan.App.2013) (unpublished opinion). We affirm because the plaintiff failed to marshal evidence of causation sufficient to defeat the summary judgment motion.

Factual and Procedural Background

The parties agree to the following facts as alleged in Rosenquist's statement of uncontroverted facts from his summary judgment motion. Plaintiff did not allege additional uncontroverted facts pertinent to this appeal.

On August 23, 2007, Donald Drouhard went to the Harper Hospital District No. 5 Emergency Department complaining of abdominal pain and a history of nausea and dry heaving. CT scans

of Drouhard's abdomen, pelvis, and chest were performed and sent to the defendant radiologist, Dr. Neil Rosenquist, who gave a verbal report to Stan Wedman, a physician assistant. Rosenquist later dictated a written report, but it never reached the subsequent treating physicians.

Wedman's notes from Rosenquist's verbal report indicate the radiologist suspected an obstructive process of the gallbladder. Based on that verbal report, Wedman contacted Dr. Larry Beamer, a surgeon, at Via Christi Regional Medical Center for a surgical consult. Drouhard was transferred to Via Christi, and the CT scans

were sent with him.

During a discovery deposition, Beamer testified that the only thing he was told about Rosenquist's interpretation of the CT scans

was that Drouhard had an enlarged gallbladder, funny-shaped liver, and an absent spleen. Once at Via Christi, Drouhard was seen by Beamer's resident, Dr. Stanley Jones, who testified during a deposition that he took Drouhard's CT scans

to Via Christi's radiology department, where an unidentified radiologist told Jones the CT scans appeared normal. According to Jones, that radiologist read the scan to show mild distention of the gallbladder, no stones, a congenital abnormally shaped liver, and no evidence of small bowel obstruction.

Beamer further testified that he reviewed the CT scans

personally and with another unidentified Via Christi radiologist. Beamer's impression from the CT scans was “dilated gallbladder without evidence for acute inflammatory change. Abnormal shape of liver—etiology unknown. Surgical absence of spleen.”

Drouhard died while at Via Christi the day after he went to the Harper Hospital Emergency Department. The coroner's report diagnosed an intrahepatic hematoma

with adjacent hepatic tissue damage. The cause of death was an acute intra-abdominal bleed with associated hemodynamic and cardiac instability.

Drouhard's widow sued Rosenquist, Beamer, Via Christi, and several other doctors for medical malpractice. After the widow's death, Marilee Drouhard–Nordhus, a daughter, was substituted as the named plaintiff. Only the claims against Rosenquist are of concern in this appeal.

Following discovery, the district court conducted a pretrial conference during which plaintiff specified the negligence allegations against Rosenquist as failing to: (1) describe the abnormal density of the gallbladder; (2) report a potential diagnosis of a gallbladder containing a large hematoma

; and (3) report possible free extravasation of contrast. Rosenquist moved for summary judgment, arguing plaintiff failed to establish causation in fact based on two missing links in the causal chain: (1) the treating physicians at Via Christi never relied on Rosenquist's allegedly negligent evaluation of the CT scans ; and (2) but for the allegedly incorrect diagnosis by the radiologist, the patient's death would not have occurred.

Plaintiff did not controvert Jones' or Beamer's testimony that they took the CT scans

to Via Christi radiologists for independent review. Instead, plaintiff argued only that the physicians' veracity on this was in question because both failed to record or recollect the identity of those radiologists. In his reply, Rosenquist noted plaintiff did not recite any evidence actually controverting the facts testified to by the doctors. See Supreme Court Rule 141 (2014 Kan. Ct. R. Annot. 257).

During a hearing on summary judgment, plaintiff argued the testimony of plaintiff's expert radiologist, Dr. Seth N. Glick, sufficiently established causation regarding the patient's death, citing the concluding paragraph in Glick's expert report, which states:

“It is my opinion within a reasonable degree of medical certainty that Dr. Rosenquist deviated from the standard of care by failing to describe the abnormal density of the gallbladder and failing to report a potential diagnosis of a gallbladder containing a large hematoma

. More likely than not, this would have resulted in a stat ultrasound and/or [hepatobiliary iminodiacetic acid (HIDA) ] scan when Mr. Drouhard was in stable condition and appropriate and life-saving intervention should then have been administered. ” (Emphasis added.)

Plaintiff also relied on an excerpt from Glick's deposition testimony when Rosenquist's counsel asked Glick for the “basis for [his] opinion that Dr. Rosenquist providing any different or additional information would have prompted an earlier ultrasound or HIDA scan

.” Glick responded:

“Well, again, a lot of what I can discuss is really based on what I think the—what I know that the CT scan

showed. And I think it's very possible—more likely an ultrasound than a HIDA scan would have been the appropriate follow-up for what I saw on the CT scan. But based on what I saw on the CT scan, I mean, I would think it would be very reasonable to do emergency surgery and not even do any further testing to be honest. ” (Emphasis added.)

The district court adopted the facts in Rosenquist's motion as uncontroverted and granted him summary judgment, finding causation lacking. First, it held “there is no evidence to support a conclusion from any expert that this alleged deviation from the standard of care in any way caused or contributed to the death of [Drouhard]. ” (Emphasis added.) Second, it held plaintiff failed to prove causation in fact because Rosenquist's read of the CT scan

was not relied on or used by Beamer while treating Drouhard.

On appeal to the Court of Appeals, plaintiff argued the district court failed to view the evidence in the light most favorable to her when granting summary judgment. Plaintiff argued Glick established sufficient evidence of causation to survive summary judgment. The Court of Appeals, like the district court, held plaintiff failed to establish a causal connection between any negligence by Rosenquist and Drouhard's death. Drouhard–Nordhus, 2013 WL 5737363, at *5–6.

The panel held Glick's expert report failed to “reveal any explicit link between Dr. Rosenquist's alleged breach of duty and [Drouhard's] death” and noted Glick admitted as much by testifying he did not intend to testify regarding any causal link. 2013 WL 5737363, at *5. The panel further held plaintiff's admissions that none of the Via Christi physicians received Rosenquist's written report or relied on his verbal report also demonstrated causation was lacking. 2013 WL 5737363, at *6.

Plaintiff petitioned for this court's review of the panel's decision affirming summary judgment of her claim against Rosenquist. Jurisdiction is proper under K.S.A. 20–3018(b). See also K.S.A. 60–2101(b) (review of Court of Appeals decisions upon timely petition for review).

Analysis

The only question presented is whether the district court erred by granting summary judgment on the medical malpractice claim against Rosenquist.

Standard of Review

The standard for reviewing summary judgment is well-established:

“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Bank v. Parish, 298 Kan. 755, Syl. ¶ 1, 317 P.3d 750 (2014).

If the moving party shows the absence of facts to support an essential element of the nonmoving party's claim, that nonmoving party “ ‘has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case.’ ” U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 556, 205 P.3d 1245 (2009) (quoting Hurlbut v. Conoco, 253 Kan. 515, 520, 856 P.2d 1313 [1993] ).

Discussion

To prevail on...