Foster v. Klaumann, No. 100,286.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by BILES
Citation294 P.3d 223
Docket NumberNo. 100,286.
Decision Date11 January 2013
PartiesKeely FOSTER, a Minor, through her Parents and Natural Guardians, Kim Foster and Kevin Foster, and Individually on their own behalf, Appellants, v. Michelle A. Klaumann, M.D., Appellee.

294 P.3d 223

Keely FOSTER, a Minor, through her Parents and Natural Guardians, Kim Foster and Kevin Foster, and Individually on their own behalf, Appellants,
v.
Michelle A. Klaumann, M.D., Appellee.

No. 100,286.

Supreme Court of Kansas.

Jan. 11, 2013.


[294 P.3d 225]



Syllabus by the Court

1. For jury instruction issues, the analytical progression and corresponding standards of review on appeal are: (a) First, the appellate court considers reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (b) next, the court uses an unlimited review to determine whether the instruction was legally appropriate; (c) then, the court determines whether there was sufficient evidence, viewed in the light most favorable to the party requesting the instruction, that would have supported the instruction; and (d) finally, if the district court erred, the appellate court must determine whether the error was harmless, using the test, degree of certainty, and analysis set forth in State v. Ward, 292 Kan. 541, Syl. ¶¶ 5–6, 256 P.3d 801 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).

2. A trial court is required to give a jury instruction supporting a party's theory if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.

3. To establish a medical malpractice claim, a plaintiff must show: (a) the health care provider owed the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (b) the health care provider breached this duty or deviated from the applicable standard of care; (c) the patient was injured; and (d) the injury was proximately caused by the health care provider's breach of the standard of care.

4. Before a Kansas court may declare an error harmless it must determine the error did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome. The degree of certainty by which the court must be persuaded that the error did not affect the trial's outcome will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded there is no reasonable probability the error will or did affect the trial's outcome.

5. When there is no dispute in the evidence that a physician is a specialist, it is not reversible error for the court to instruct the jury on the standard of care of a general practitioner (PIK Civ. 4th 123.01) even though the standard of care of specialist (PIK Civ. 4th 123.11) applies because these instructions are not inconsistent and the general physician standard of care instruction is at worst superfluous.

6. PIK Civ. 4th 123.11, the “best judgment” instruction, does not misstate the law by instructing the jury that the physician has a right to use his or her best judgment in the selection of the choice of treatment because the instruction also informs the jury that selection must conform with the objective standard of care applicable to medical malpractice claims.

[294 P.3d 226]


W.J. Fitzpatrick, of Fitzpatrick and Bass, of Independence, argued the cause, and Douglas A. Buxbaum and John M. Fitzpatrick, of Buxbaum, Daue & Fitzpatrick, PLLC, of Missoula, Montana, were with him on the briefs for appellants.

Michael R. O'Neal, of Gilliland & Hayes, P.A., of Hutchinson, argued the cause, and Shannon L. Holmberg, of the same firm, was with him on the briefs for appellee.


Kyle J. Steadman, of Foulston Siefkin LLP, of Wichita, for amicus curiae Kansas Association of Defense Counsel.

James R. Howell, of Prochaska, Giroux & Howell, of Wichita, and David R. Morantz and Matthew E. Birch, of Shamberg, Johnson & Bergman, of Kansas City, Missouri, for amicus curiae Kansas Association for Justice.

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

This is a medical malpractice case challenging jury instructions used at trial. Keely Foster, a minor, and her parents, Kim and Kevin Foster, sued Dr. Michelle Klaumann, a pediatric orthopedic surgeon, for injury to a nerve in Keely's leg during a surgery to remove tumors. The jury unanimously found Klaumann not at fault. A divided Court of Appeals panel reversed and remanded for a new trial. We consider: (1) whether it was error to instruct the jury on both a general physician standard of care and a specialist standard of care when the parties do not dispute Klaumann is a specialist; and (2) whether the “best judgment” instruction improperly suggests that a physician's subjective beliefs should be considered when establishing negligence because it states the physician has a right to use his or her best judgment when determining the course of treatment.

Although we suggest improvements should be made to the standard PIK instructions from which those instructions were taken, we hold that reversal is not required. We reverse the Court of Appeals and affirm the district court based on the jury's verdict for the doctor.

Factual and Procedural Background

Keely has multiple hereditary exostosis, a condition causing osteochondromas or bone tumors to grow around the ends of the long bones. The osteochondromas stop forming once a child matures, and most tumors are benign. But they can cause permanent conditions such as pain, loss of motion, deformity, or joint alignment problems.

Klaumann began treating Keely in 1999 when Keely was 5 years old. For the first 6 years, the doctor monitored Keely's condition with periodic examinations and X-rays to track the size and location of any osteochondromas.

In March 2005, Klaumann recommended surgery because Keely was experiencing consistent pain in an area without much soft tissue and those symptoms could relate to a bursa deformity or nerve irritation. Keely's mother, Kim Foster, agreed to surgery. But the parties disputed which tumors she and the doctor agreed would be removed.

Klaumann testified she planned to excise four tumors with two incisions—two tumors on the distal femur, the hook-shaped osteochondroma between the tibia and the fibula, and one on the proximal fibula. But Keely's mother testified that she agreed only to removing two tumors, which she described as “one on top of her leg and then one on the inside of her leg, just below the knee.” A note from Klaumann's office in March 2005 summarized the surgery as: “[Kim] would like to have the femoral and proximal fibular osteochondromas removed. This will be done after school is out in late May.”

On the day of surgery in May, Klaumann met with Keely's parents, and the scope of the surgery changed. But again the two sides dispute what tumors the parties agreed were to be removed. The Fosters contend the incision endangering the nerve was added the day of surgery, while Klaumann claims the incision added could not have caused the nerve damage that occurred.

After the procedure, Keely experienced foot drop in her left foot. She could not extend her left toes and had numbness. In the following weeks, Keely was still unable to

[294 P.3d 227]

move her foot up (dorsiflexion) or out (eversion). Dorsiflexion is controlled by the deep peroneal nerve, and eversion is controlled by the superficial peroneal nerve. Keely underwent a second surgery with Dr. Rahul Nath, a surgeon specializing in complex nerve injuries, to attempt to restore function in her foot. Keely's peroneal nerve function had not improved 1 year after the second surgery. According to Nath, it is unlikely to return.

Keely's parents filed suit individually and on behalf of their daughter, alleging Klaumann committed medical malpractice. In the pretrial conference order, the Fosters alleged Klaumann violated the applicable standard of care by: (1) failing to give and document an appropriate informed consent; (2) failing to document there was an appropriate indication for surgical removal of the osteochondromas removed during surgery; (3) failing to comply with the standard of care by not identifying the neurovascular structures in order to avoid nerve injury during surgery; (4) transecting the deep peroneal nerve and injuring her superficial and/or common peroneal nerve; (5) failing to recognize and/or report that she transected and injured the nerve during surgery so that Keely could receive prompt specialty consultation; and (6) failing to properly and timely diagnose and treat Kelly's postoperative neurologic injury and to refer Keely to a specialist.

The Jury Instructions

During trial, both parties agreed regarding the surgical claims that Klaumann held herself out as a specialist, so the specialist standard of care instruction, PIK Civ. 4th 123.12, should be issued. But at the jury instruction conference, the parties disputed whether the general physician standard of care instruction from PIK Civ. 4th 123.01 and best judgment instruction from PIK Civ. 4th 123.11 also should be given. The Foster's argued neither was appropriate, while Klaumann argued both were required.

The district court agreed with the doctor. It held the general physician standard of care instruction should be issued because the Fosters' informed consent claim was a general duty as a matter of law. The district court judge further stated, “I think the courses of treatment in this case [are] a ... gray area mixed between both [the specialist and the general physician standards of care] and that there is sufficient evidence in order to argue that there's been the [applicable] standard presented by both sides.”

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29 practice notes
  • Burnette v. Eubanks, No. 112,429
    • United States
    • Court of Appeals of Kansas
    • May 27, 2016
    ...256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). See Foster v. Klaumann , 296 Kan. 295, 301–02, 294 P.3d 223 (2013). Basically, a trial court is required to give an instruction supporting a party's theory of the case if there is sufficient evidence su......
  • Castleberry v. Debrot, No. 111,105
    • United States
    • United States State Supreme Court of Kansas
    • August 24, 2018
    ...set forth in State v. Ward , 292 Kan. 541, 256 P.3d 801 (2011)....’ [Citation omitted.]" Foster v. Klaumann , 296 Kan. 295, 301-02, 294 P.3d 223 (2013).Discussion Because DeBrot objected to the causation instructions and requested alternatives that he now argues should have been given, he p......
  • Bullock v. BNSF Ry. Co., No. 111,599
    • United States
    • United States State Supreme Court of Kansas
    • August 4, 2017
    ...matters. See, e.g. , Siruta v. Siruta , 301 Kan. 757, 772, 348 P.3d 549 (2015) (wrongful death); Foster v. Klaumann , 296 Kan. 295, 305, 294 P.3d 223 (2013) (medical malpractice). In Siruta , we found the trial court erred in allowing two jury instructions over the plaintiff's objection and......
  • Evergreen Recycle, L. L.C. v. Ind. Lumbermens Mut. Ins. Co., 110,329.
    • United States
    • Court of Appeals of Kansas
    • May 1, 2015
    ...5, 256 P.3d 801 (2011), cert. denied –––U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012) ; see Foster v. Klaumann, 296 Kan. 295, 301–02, 294 P.3d 223 (2013). Relevant to this case, a party must object to the trial court's giving of or failing to give a jury instruction before the jury reti......
  • Request a trial to view additional results
29 cases
  • Burnette v. Eubanks, No. 112,429
    • United States
    • Court of Appeals of Kansas
    • May 27, 2016
    ...256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012). See Foster v. Klaumann , 296 Kan. 295, 301–02, 294 P.3d 223 (2013). Basically, a trial court is required to give an instruction supporting a party's theory of the case if there is sufficient evidence su......
  • Castleberry v. Debrot, No. 111,105
    • United States
    • United States State Supreme Court of Kansas
    • August 24, 2018
    ...set forth in State v. Ward , 292 Kan. 541, 256 P.3d 801 (2011)....’ [Citation omitted.]" Foster v. Klaumann , 296 Kan. 295, 301-02, 294 P.3d 223 (2013).Discussion Because DeBrot objected to the causation instructions and requested alternatives that he now argues should have been given, he p......
  • Bullock v. BNSF Ry. Co., No. 111,599
    • United States
    • United States State Supreme Court of Kansas
    • August 4, 2017
    ...matters. See, e.g. , Siruta v. Siruta , 301 Kan. 757, 772, 348 P.3d 549 (2015) (wrongful death); Foster v. Klaumann , 296 Kan. 295, 305, 294 P.3d 223 (2013) (medical malpractice). In Siruta , we found the trial court erred in allowing two jury instructions over the plaintiff's objection and......
  • Evergreen Recycle, L. L.C. v. Ind. Lumbermens Mut. Ins. Co., 110,329.
    • United States
    • Court of Appeals of Kansas
    • May 1, 2015
    ...5, 256 P.3d 801 (2011), cert. denied –––U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012) ; see Foster v. Klaumann, 296 Kan. 295, 301–02, 294 P.3d 223 (2013). Relevant to this case, a party must object to the trial court's giving of or failing to give a jury instruction before the jury reti......
  • Request a trial to view additional results

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