Foster v. Judilla

• Decision Date: 18 October 2013
• Docket Number: No. 108,676.,108,676.
• Citation: Foster v. Judilla, 311 P.3d 415 (Kan. App. 2013)
• Parties: Anne FOSTER, Appellant, v. Frank G. JUDILLA, M.D., Appellee, and The Headache & Pain Center, P.A., Defendant.
• Court: Kansas Court of Appeals

311 P.3d 415

Anne FOSTER, Appellant,

v. Frank G. JUDILLA, M.D., Appellee,andThe Headache & Pain Center, P.A., Defendant.

No. 108,676.

Court of Appeals of Kansas.

Oct. 18, 2013.

Appeal from Johnson District Court; Thomas M. Sutherland, Judge.

Keith C. Sevedge, of Lenexa, G. Michael Fatall, Walter R. Simpson, and Donald F. McDonald, of Sanders & Simpson, P.C., of Kansas City, Missouri, of Kansas City, Missouri, for appellant.

Matthew M. Merrill, of Brown & Ruprecht PC, of Kansas City, Missouri, for appellee.

Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.

MEMORANDUM OPINION

LARSON, J.

This appeal involves a medical malpractice action brought by Anne Foster against Frank G. Judilla, M.D.

Mrs. Foster appeals the district court's grant of Dr. Judilla's motion for summary judgment on the ground that the statute of limitations barred her cause of action.

We will set forth in detail the interaction between the parties on the various times and events which were critical to the rulings of the district court and are crucial to the issues raised on appeal. We do so by resolving all facts and inferences in favor of Mrs. Foster against whom summary judgment was rendered by the district court.

Factual and Procedural Background

During the summer of 2007, Mrs. Foster sought treatment from Dr. Judilla. The treatment recommended by Dr. Judilla and agreed to by Mrs. Foster was the injection of three thoracic epidural steroid shots to provide relief from her back pain.

Dr. Judilla administered the three thoracic epidural steroid injections on July 17, July 24, and July 31, 2007. The first two treatments by Dr. Judilla went without any notable incident. After being monitored in the clinic for about 15 minutes following the treatments, Mrs. Foster was able to easily walk out of the clinic. Both of these events were truly uneventful and Mrs. Foster's back pain was significantly improved after each of the first two injections.

Mrs. Foster's third epidural injection on July 31 was a different experience. She testified that after the third injection, she was being assisted to a stretcher for recovery when “all the life seemed to be going from her.” She stated she was totally paralyzed from her neck down and she thought she was “dying.” Mrs. Foster heard the nurse shout for help, and the nurse told her she would not leave her side. Mrs. Foster was aware that Dr. Judilla returned and gave her a shot of ephedrine. She knew her blood pressure was extremely low, but she did not realize how low it had been until the numbers were revealed by discovery in her filed malpractice action. She had feeling only in her head and it was difficult for her to talk. She was frightened and told her husband that she did not “want to live like this.”

Mrs. Foster's husband, Theodore, a retired doctor of osteopathy, accompanied her to the appointments with Dr. Judilla. Dr. Foster testified that the first two injections went without incident. On July 31, he was in the waiting room when a nurse came to take him back to his wife in the recovery room. Dr. Foster stated that “it seemed like a disturbing thing had happened.” When he saw his wife, he “thought she had a stroke or something happened.” He was concerned and “shocked” and “couldn't believe what she looked like.”

Dr. and Mrs. Foster both stated that Dr. Judilla came back to the recovery room. At first, Dr. Judilla said the recovery would take about 15 minutes. Sometime later, Dr. Judilla returned and said the recovery would take an hour but the nurse stated it had been over an hour at that point. Dr. Foster asked Dr. Judilla if he ever had a patient with a similar reaction, and Dr. Judilla said it had happened about 15 years ago. Dr. Foster said that Dr. Judilla never told them Mrs. Foster's reaction could be one of the side effects of the injection.

Dr. Judilla stated that when he gave Mrs. Foster the July 31 injection, the needle likely went past the epidural space where the medicine is supposed to be injected, and some local anesthesia was injected into the subarachnoid space where the spinal cord and nerves are located. Dr. Judilla stated that he “[didn't] feel good about it” and “was not happy” that it happened, but it is a known complication of the procedure and he always tells the patient about the possibility of the complication. He estimated the complication had happened every 3 or 4 years during his medical career. Dr. Judilla stated he had never witnessed any permanent injury from the complication. He said the patients usually have low blood pressure for about 15 to 30 minutes and then recovered pretty well.

The medical records from the July 31 procedure showed Mrs. Foster received the injection sometime before 9 a.m. and at 9, the nurse noted Mrs. Foster was “dizzy” and her blood pressure was very low. At 9:05, Dr. Judilla administered ephedrine to increase Mrs. Foster's blood pressure and she was also given oxygen. Over the next 45 minutes, Mrs. Foster's numbers in her extremities improved, she was able to move her arms and legs, and at 10:15 the nurse noted Mrs. Foster was feeling “much better.” At 10:30, she was sitting on the side of the bed and dangling her legs. Dr. Judilla's entry on her chart suggested that Mrs. Foster “recovered in twenty five minutes and went home uneventfully.” The doctor later acknowledged it should have been noted as 1 hour and 25 minutes.

Mrs. Foster was able to leave and exited the clinic in a wheelchair. She was weak and shaky. The nurse asked Mrs. Foster if she could hospitalize her, but Mrs. Foster refused. When Mrs. Foster returned to her home, she was “listless and tired and scared .”

On August 1, 2007, the day after the third injection, a nurse from Dr. Judilla's office called Mrs. Foster at home to check on her. The nurse called again on the morning of August 2. Mrs. Foster told the nurse she felt “listless and tired and weak.”

Mrs. Foster testified that in the evening of August 2, she noticed “enormous bruises” on her legs that became “really big, really black.” She said the bruises concerned her but she did not want to see Dr. Judilla again and did not want to go anywhere.

The next morning, August 3, Mrs. Foster called the clinic to speak with Nurse Bonita who had treated her, but the clinic informed Mrs. Foster that the nurse was not available. When Mrs. Foster stated she wanted to tell the nurse about her bruises, the clinic told Mrs. Foster she “had to come in and see the doctor.” Mrs. Foster said she did not want to see Dr. Judilla and asked for the nurse to call her back. But nobody ever called her back. Mrs. Foster later stated in an affidavit that she thought someone would have called her if the bruises were something she should be concerned about.

Dr. Judilla acknowledged that he did not do any followup with Mrs. Foster after the July 31 injection but, he did know that Mrs. Foster had indicated she did not wish to see or consult with him any further. The record is not clear as to when Dr. Judilla learned of Mrs. Foster's August 3 call to the clinic. During discovery, Dr. Judilla acknowledged that he did not know whether bruising in the legs is associated with deep vein thrombosis, but if such was diagnosed, he said the family doctor would be the one to take care of it.

Mrs. Foster stated that she remained inactive in the days following the July 31 injection. Dr. Foster said that Mrs. Foster was weak and tired during the time following the July 31 injection with some pain in her leg but he believed that her condition was improving.

However, on August 9, 2007, he noticed his wife's leg was really swollen. On the following day, August 10, 2007, her leg was even more swollen. Dr. Foster determined she needed to go to Research Medical Center Hospital although he stated he “never expected” that blood clots were causing the leg symptoms. At the hospital, multiple blood clots were discovered in Mrs. Foster's leg. She was immediately admitted to the hospital, tests were run, and she was diagnosed with deep vein thrombosis.

In an affidavit submitted in response to a summary judgment motion, Mrs. Foster stated that even after the deep vein thrombosis diagnosis, she did not know that the incident with Dr. Judilla could have caused it. Dr. Foster also submitted an affidavit which stated that as of August 10, 2007, he was unaware that his wife's condition and diagnosis could be related to Dr. Judilla's injection. Mrs. Foster stated that she has received medication, treatment, and continues to suffer physically and emotionally from the experience with the injections.

Dr. Howard Aks, an expert medical witness engaged by Mrs. Foster, testified in discovery that he believes the injection technique that Dr. Judilla used on Mrs. Foster fell below the standard of care. Dr. Aks opined that the injection of the anesthesia into Mrs. Foster's subarachnoid space on July 31, 2007, blocked her sympathetic nerves and caused her to experience low blood pressure and a pooling of blood in her extremities. Dr. Aks believed the low blood pressure and pooling of the blood caused a clotting cascade to develop.

On August 7, 2009, Mrs. Foster filed a medical malpractice action against Dr. Judilla and The Headache & Pain Center, P.A., claiming Dr. Judilla negligently performed the third injection on July 31, 2007, and that his negligence caused her deep vein thrombosis, requiring hospitalization and the placement of a vena cava filter. Mrs. Foster further alleged Dr. Judilla's negligence had caused her pain, suffering, and mental anxiety. Mrs. Foster later dismissed The Headache & Pain Center, P.A., as a defendant.

After timely answering and following discovery, Dr. Judilla filed a motion for summary judgment based on Mrs. Foster's failure to file her alleged cause of action within the 2–year statute of limitations under K.S.A. 60–513(a)(7). Subject to K.S.A. 60–513(c) a medical malpractice action is

“deemed to have accrued at the time of the occurrence of the...