Foster v. Klaumann

• Decision Date: 11 September 2009
• Docket Number: No. 100,286.,100,286.
• Citation: 216 P.3d 671
• Parties: 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.
• Court: Kansas Court of Appeals

216 P.3d 671 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. Court of Appeals of Kansas. September 11, 2009.

[216 P.3d 676]

W.J. Fitzpatrick, of Fitzpatrick and Bass, of Independence, and Douglas A. Buxbaum and John M. Fitzpatrick, of Buxbaum, Daue & Fitzpatrick, PLLC, of Missoula, Montana, for appellants.

Michael R. O'Neal and Shannon L. Holmberg, of Gilliland & Hayes, P.A., of Hutchinson, 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.

Before GREENE, P.J., PIERRON and GREEN, JJ.

GREEN, J.

In this medical malpractice case, Keely Foster, a minor, through her parents and natural guardians, Kim Foster and Kevin Foster (collectively the Fosters), and individually on their own behalf appeal from a jury verdict rendered in favor of Dr. Michelle Klaumann. In addition, the Fosters appeal from the trial court's judgment denying their motion for a new trial. This case turns on the giving of two jury instructions — the general physician standard of care instruction and the "best judgment instruction." We determine that the giving of both the specialist and the general physician standard of care jury instructions likely confused the jury and affected its verdict in the case. Moreover, based on the factual issues that needed to be resolved in this case, the giving of the best judgment jury instruction could have served to confuse the jury by injecting subjectivity into a standard of care that is supposed to be objective. The giving of those two jury instructions constitute reversible error under the particular facts of this

216 P.3d 677

case. Accordingly, we reverse and remand for a new trial.

The Fosters also raise several other arguments, including that the trial court erred in admitting expert witness testimony, that they were substantially prejudiced by a violation of the trial court's order in limine, that the trial court erred in refusing to give a modified informed consent instruction to the jury, and that the jury's verdict was contrary to the law and evidence. We find no reversible error on those issues.

Hereditary Condition

Keely suffered from a hereditary condition called multiple hereditary exostosis, which is also called multiple hereditary osteochondromas. With this condition, bumps made of bone and cartilage grow around the ends of the long bones of the body. The osteochondromas typically grow until the child stops growing. With this condition, the osteochondromas can cause pain; cosmetically unacceptable growths; discrepancies in arm and leg lengths; "knock-kneed" or "bowlegged" legs; and joint dislocation. Keely's mother, grandfather, uncles, and cousins all suffered from this hereditary condition. Kim Foster and her family members have previously had surgeries to remove osteochondromas.

Dr. Klaumann's Care and Treatment of Keely

Kim first took Keely to see Dr. Klaumann, a pediatric orthopedic surgeon, in April 1999 about osteochondromas on Keely's legs and shoulder. Keely was 5 years old at the time. Dr. Klaumann practiced with Advanced Orthopedic Associates and was board certified and recertified in her specialty. Dr. Klaumann had several patients who she regularly treated with multiple hereditary osteochondromas.

At the April 1999 visit, Dr. Klaumann took x-rays and examined Keely. Dr. Klaumann recommended that Keely schedule another appointment in about 6 months. Keely had medical appointments with Dr. Klaumann at least once a year between 1999 through 2004.

During a visit in May 2004, Keely complained to Dr. Klaumann about pain in her left fibula. During this visit, Dr. Klaumann took x-rays, which revealed a mass on Keely's tibia and fibula. On March 23, 2005, Kim took Keely to see Dr. Klaumann due to pain in Keely's knee. Keely had been having pain in her knee for 2 to 3 months whenever she walked up the stairs or rode her bike. In addition, Keely had been having pain in her left femur whenever her brother crawled on her lap. Keely had been taking over-the-counter pain medications on a daily basis.

Upon taking x-rays at the March 23, 2005 visit, Dr. Klaumann noticed that the osteochondromas around Keely's hip and knee were larger and that Keely also had a large hook-shaped osteochondroma between the tibia and fibula. Although Dr. Klaumann was unable to palpate the hook-shaped osteochondroma, Keely felt tenderness and experienced pain in that area. Dr. Klaumann was concerned that the hook lesion might be involved with the peroneal nerve. Keely had good range of motion and did not have any numbness, tingling, or weakness in that area.

At this visit, Dr. Klaumann recommended that Keely undergo surgery to remove the osteochondromas over her lateral femur, the hook-shaped one between her tibia and fibula, and the one on her fibula. Dr. Klaumann told Kim that the hook-shaped osteochondroma could be pressing against a nerve. Kim testified that she asked Dr. Klaumann what would happen if they did not do surgery, and Dr. Klaumann told her that the osteochondroma could eventually press the two bones apart and that Keely could lose her foot. According to Kim, she understood that Dr. Klaumann was only going to remove two osteochondromas during the surgery. Kim testified that Dr. Klaumann never told her that one of the risks of surgery was permanent nerve injury.

May 19, 2005, Surgery

Keely underwent surgery to remove the osteochondromas on May 19, 2005. The day before surgery, Dr. Klaumann faxed a document to the hospital pertaining to Keely's history and physical examination. In order to perform surgery at the hospital, Dr. Klaumann had to submit the document. Part of the document contained a checklist with one

216 P.3d 678

of the items being that Dr. Klaumann had discussed the risks, benefits, alternatives, and complications with Keely. Dr. Klaumann checked the item and wrote "with mom." According to Dr. Klaumann, she answered the questions on that document based on her conversations with Kim at the March 23, 2005, appointment.

According to Kim, Keely continued experiencing pain in her knee right up until the surgery. Just before surgery, Dr. Klaumann spoke with Kim, and the decision was made to remove another osteochondroma on the proximal tibia. Thus, the plan on the morning of surgery was for Dr. Klaumann to remove five osteochondromas (instead of four) in three incisions (instead of two). Dr. Klaumann testified that she talked with Kim again about the risks of surgery, especially the risk of nerve damage in removing the osteochondroma between the tibia and fibula.

On the other hand, Kim testified that Dr. Klaumann never discussed the risks of surgery with her. Kim acknowledged that just before the surgery, the anesthesiologist had gone over the risks of anesthesia with her and had her sign a consent form. Kim further acknowledged that she had signed a surgical consent form given to them by a receptionist at the registration desk on the morning of surgery. Part of the surgical consent form contained a paragraph that the nature of the ailment; the nature and purpose of the proposed procedure; the possible alternative procedures; the risks of unfortunate results, possible complications, and unforeseen physical conditions within the body; and the possibility of success had been explained. Nevertheless, the receptionist did not discuss the risks of surgery with Kim or her husband. Kim testified that if Dr. Klaumann had told her that a risk of the surgery was permanent nerve injury, she would have taken Keely for a second opinion.

Keely's Postoperative Care

Kim testified that immediately after the surgery, Dr. Klaumann told her that she had removed five osteochondromas, that Keely was doing well, and that she "really had to stretch that nerve to get that one tumor out." Later, after Keely had been in the recovery room, Dr. Klaumann told Kim that she had been unable to get Keely to move her left foot and reiterated that she "really had to stretch that nerve" during the surgery. According to Kim, Dr. Klaumann called her three times during the week following the surgery to check if Keely could move her toes or wiggle her foot.

Kim testified that during one of Dr. Klaumann's phone calls, Dr. Klaumann stated that she "really had to stretch that nerve" but did not think she had damaged anything. Kim asked Dr. Klaumann when they would know if there had been damage, and Dr. Klaumann responded that only time would tell. According to Kim, she asked Dr. Klaumann if she should take Keely to another specialist, but Dr. Klaumann did not recommend that Kim do so. Dr. Klaumann indicated that there was not a window of opportunity to fix the nerve.

On May 26, 2005, Kim took Keely in for an appointment with Dr. Klaumann because Keely was still unable to feel her foot. Keely could move her toes and put her foot down but could not dorsiflex (move up) her foot. At that visit, Dr. Klaumann gave Keely a black boot to keep her from dragging her toes. Dr. Klaumann told Kim that Keely had a stretch injury and that she wanted to see Keely again in a month. During the weeks to follow, Keely was still unable to dorsiflex her foot and was barely able to evert (move out) her foot. Dorsiflexion is controlled by the deep peroneal nerve while eversion is controlled by the superficial peroneal nerve. Keely did not have dorsiflexion or eversion problems before the May 2005 surgery.

Keely saw Dr. Klaumann again on June 23, 2005. At that visit, Dr. Klaumann gave Keely orders for physical therapy. In addition to undergoing physical therapy, Keely saw Dr. Shah, a neurologist, in July...