Irvin v. Smith, No. 85,063.

CourtUnited States State Supreme Court of Kansas
Writing for the CourtABBOTT, J.
PartiesASHLEY IRVIN, a Minor Child, by and through her Parents and Legal Guardians, DAVID IRVIN and KIM IRVIN, and DAVID IRVIN and KIM IRVIN, Individually, Appellants/Cross-appellees, v. LINDALL E. SMITH, M.D., Appellee/Cross-appellant, and RICHARD C. GILMARTIN, M.D., Appellee.
Decision Date21 September 2001
Docket NumberNo. 85,063.

272 Kan. 112
31 P.3d 934

ASHLEY IRVIN, a Minor Child, by and through her Parents and Legal Guardians, DAVID IRVIN and KIM IRVIN, and DAVID IRVIN and KIM IRVIN, Individually, Appellants/Cross-appellees,
v.
LINDALL E. SMITH, M.D., Appellee/Cross-appellant,
and RICHARD C. GILMARTIN, M.D., Appellee

No. 85,063.

Supreme Court of Kansas.

Opinion filed September 21, 2001.


272 Kan. 113
William J. Skepnek, of Skepnek Law Firm, P.A., of Lawrence, argued the cause, and Ted F. Fay, of the same firm, was with him on the briefs for appellant/cross-appellee

Jay F. Fowler, of Foulston & Siefkin L.L.P., of Wichita, argued the cause, and Tmothy B. Mustaine and Holly A. Dyer, of the same firm, were with him on the briefs for appellee/cross-appellant Smith.

Steven C. Day, of Woodward, Hernandez, Roth & Day, of Wichita, argued the cause and was on the brief for appellee Gilmartin.

272 Kan. 114
The opinion of the court was delivered by

ABBOTT, J.:

This is a medical malpractice action arising from an undiagnosed ventriculoperitoneal shunt malfunction which ultimately caused permanent brain damage to Ashley Irvin. Irvin and her parents filed suit against several parties. The district court granted summary judgment in favor of Dr. Richard C. Gilmartin on the basis that there was no physician-patient relationship. All of the other parties have either been dismissed or settled prior to trial, except for the suit against Dr. Lindall E. Smith. The jury returned a defendant's verdict in favor of Smith. Irvin raises several issues on appeal. Smith has also filed a cross-appeal raising two issues.

Irvin was born 6 weeks premature with hydrocephalus, a condition which required the surgical placement of a ventriculoperitoneal or "VP" shunt. The shunt is a pump with a tube. The tube extends from the brain to the abdomen. The purpose of the shunt is to drain excess cerebrospinal fluid from the skull. Once the fluid is drained from the brain, it is reabsorbed into the body through the abdomen. Without the shunt, Irvin would die. With a properly operating shunt, however, a hydrocephalic can live a normal life. The shunt was placed in Irvin at 2 days of age by her neurosurgeon, Dr. Edwin MacGee.

On October 15, 1995, 12-year-old Irvin began experiencing flulike symptoms and seizures. She also complained of neck and back pain. On October 18, Irvin was transported by life flight from Bob Wilson Memorial Hospital in Ulysses, Kansas, to St. Luke's Hospital in Kansas City, Missouri. At St. Luke's, Irvin was examined by MacGee to determine whether the shunt was working properly. During the 12 years the shunt had been in place, MacGee had performed two other surgeries on the shunt.

On October 19, MacGee determined there was no shunt malfunction. MacGee recalled speaking to an unidentified radiologist about the shunt. The radiologist told him that there was at least 2 inches of shunt tubing remaining in the abdomen. Dr. Karen Divelbiss, who did the official read of the shunt series, reported nothing wrong with the shunt. On October 21, Irvin was discharged and went home. The x-rays taken at St. Luke's, however, revealed

272 Kan. 115
at trial that the distal end of the shunt tubing had pulled up into the abdomen wall due to Irvin's growth, intermittently blocking the flow of cranial fluid into the abdominal cavity

On October 23, 1995, MacGee wrote Dr. Michael Shull, Irvin's pediatrician in Garden City, Kansas, and told him that the "shunt appeared to be working well."

Irvin's seizures, nausea, vomiting, and neck and back pain soon returned. On November 12, Irvin was admitted to St. Catherine's Hospital in Garden City, Kansas. At St. Catherine's Hospital, Irvin was examined by Shull. Shull worried that the shunt had malfunctioned. X-rays were taken of Irvin's chest and abdomen. The radiologist concluded that no abnormalities were present and reported nothing wrong with the shunt tubing. On November 13, Shull spoke with MacGee regarding Irvin's condition. MacGee indicated that he thought Irvin's shunt was operating correctly and instructed Shull to treat Irvin with hydration and seizure control medication to see if her symptoms would improve. Shull ordered an MRI of the brain to check for increased intracranial pressure caused by the shunt malfunction. The MRI was negative.

Irvin continued to experience nausea, vomiting, neck pain, and seizures on November 13 and 14. On November 14, Shull ordered Irvin to be transported by life-flight from St. Catherine's Hospital to Wesley Medical Center (Wesley) in Wichita, Kansas. Prior to her transfer, Shull spoke with Smith, a pediatric intensivist, at Wesley. Shull and Smith discussed Irvin's condition, history, symptoms, Shull's concern about her seizures, and the possibility of a shunt malfunction. Smith approved the transfer and use of the air ambulance. Shull also ordered additional x-rays.

Smith admitted Irvin at Wesley with x-ray films which showed the outlet or "tip" of her shunt embedded in the muscle of her abdominal wall in a position requiring that it be repaired. Smith testified that he could not remember whether he looked at the x-ray films, however. He admitted that had he looked at the films he would have seen that the shunt needed to be repaired. Smith explained that he could not remember looking at the x-ray films because he was led to believe that a radiologist in Garden City had

272 Kan. 116
already read the x-rays and had concluded that they were "negative." No doctor in Garden City ever looked at Irvin's x-ray films

On November 14, Smith made a telephone call to obtain a "neurological consult" from Gilmartin, a child neurologist, because Smith thought that Gilmartin was "the best consultant to use to help evaluate Ashley." Gilmartin and Smith discussed performing a shuntogram. A shuntogram is a procedure which involves injection of a radioactive isotope into the shunt to check for shunt blockage. After the consultation, a shuntogram and EEG were ordered for the following morning to be performed by Gilmartin and Smith. Gilmartin and Smith planned to do the shuntogram the next morning because Irvin appeared stable, alert, and conscious between seizures. Neither Smith nor Gilmartin believed that her symptoms indicated an impending shunt malfunction.

The next morning, November 15, Irvin was alert, awake, and verbal. At approximately 8:45 a.m., however, prior to any tests being performed to determine the status of the shunt, Irvin's condition deteriorated, became critical, and required that she be resuscitated and intubated.

At approximately 11:30 a.m., Irvin's condition became worse as her pupils dilated and became unresponsive to light. The shuntogram was finally performed, and it was determined that the shunt was obstructed. Surgery was performed to correct the shunt malfunction.

Prior to undergoing the shuntogram procedure, Irvin suffered permanent and severe brain damage. Specifically, Irvin suffered an ischemic brain injury as a result of lack of oxygen to the brain, which resulted in severe neurological impairment. Irvin was placed on a ventilator on November 15, on which she remained until December 6. Irvin then remained at Wesley until January 5, 1996. Since her discharge, Irvin has received continuous care, treatment, and rehabilitation. Irvin's condition requires that she be fed through a gastrostomy tube. Irvin is unable to walk or speak, is incontinent, and requires full-time care.

Irvin and her parents filed suit in the Sedgwick County District Court against MacGee, Neurology/Neurosurgery P.C., Smith, Gilmartin, and Wesley Medical Center. Irvin subsequently added St.

272 Kan. 117
Luke's Radiological Group, Divelbiss, and Columbia/HCA Healthcare Corporation (Columbia). Neurology/Neurosurgery P.C. and MacGee settled early and were dismissed. St. Luke's Radiological Group and its employee Divelbiss (who had moved to Pennsylvania) moved to dismiss for lack of personal jurisdiction. The motion was denied as to St. Luke's but granted as to Divelbiss. Irvin subsequently voluntarily dismissed her claim against St. Luke's.

Gilmartin moved for summary judgment, arguing that he owed no duty to Irvin as there was no physician-patient relationship. The district court agreed and granted summary judgment in favor of Gilmartin.

There have been three jury trials in this matter. The first case was tried in Sedgwick County before a jury in March 1999 against Columbia, Smith, and Wesley. The trial resulted in a directed verdict in favor of Columbia and a hung jury for Smith and Wesley. Irvin subsequently settled her claims against Wesley.

The second jury trial took place in November 1999 in Jackson County, Missouri, and resulted in a verdict of $1,770,391.08 against St. Luke's and Divelbiss. Irvin sought the same damages that were claimed in the Sedgwick County action. Irvin filed a motion for additur or in the alternative a motion for a new trial. The district court granted the motion for a new trial and vacated the verdict. Irvin subsequently settled with St. Luke's and Divelbiss for the full amount of the verdict.

The third jury trial took place in Sedgwick County in January 2000. The only defendant in the third jury trial was Smith. The jury returned a verdict finding no fault on the part of Smith. Irvin filed a motion for a new trial, which was denied by the court. It is from the third jury trial and the dismissal of Gilmartin that this appeal arises. Smith has also filed a cross-appeal in this matter.

I. SUMMARY JUDGMENT IN FAVOR OF GILMARTIN

Irvin argues that the district court erred in granting summary judgment in favor of Gilmartin by holding that no physician-patient relationship existed between Gilmartin and Irvin.

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together

272 Kan. 118
with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is...

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34 practice notes
  • Sterling v. Johns Hopkins Hospital, No. 398
    • United States
    • Court of Special Appeals of Maryland
    • July 1, 2002
    ...Hospital, 330 Md. 53, 64, 622 A.2d 128, 133-34 (1993). Other jurisdictions are in accord. See, e.g., Irvin v. Smith, ___ Kan. ___, ___, 31 P.3d 934, 942 (2001); Adams v. Via Christi Regional Medical Center, 270 Kan. 824, 834, 19 P.3d 132, 139 (2001); St. John v. Pope, 901 S.W.2d 420, 424 (T......
  • State v. Gaona, No. 98,822.
    • United States
    • United States State Supreme Court of Kansas
    • March 2, 2012
    ...Johnson, 286 Kan. 824, 831, 190 P.3d 207 [2008] ). The party alleging the abuse of discretion bears the burden of proof. Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 (2001) (citing State v. Mullins, 267 Kan. 84, 93, 977 P.2d 931 [1999] ). Further, if a district court abuses its discretion......
  • State v. Gaona, No. 98
    • United States
    • United States State Supreme Court of Kansas
    • March 2, 2012
    ...286Page 13Kan. 824, 831, 190 P.3d 207 [2008]). The party alleging the abuse of discretion bears the burden of proof. Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 (2001) (citing State v. Mullins, 267 Kan. 84, 93, 977 P.2d 931 [1999]). Further, if a district court abuses its discretion in a......
  • Russell v. May, No. 111,671
    • United States
    • Kansas Supreme Court
    • August 25, 2017
    ...the standard of care. Whether a physician owes a legal duty is a question of law over which we exercise unlimited review. Irvin v. Smith , 272 Kan. 112, 122, 31 P.3d 934 (2001) ; Adams v. Via Christi Regional Med. Center , 270 Kan. 824, 834, 19 P.3d 132 (2001). As a matter of law, a legal d......
  • Request a trial to view additional results
34 cases
  • Sterling v. Johns Hopkins Hospital, No. 398
    • United States
    • Court of Special Appeals of Maryland
    • July 1, 2002
    ...Hospital, 330 Md. 53, 64, 622 A.2d 128, 133-34 (1993). Other jurisdictions are in accord. See, e.g., Irvin v. Smith, ___ Kan. ___, ___, 31 P.3d 934, 942 (2001); Adams v. Via Christi Regional Medical Center, 270 Kan. 824, 834, 19 P.3d 132, 139 (2001); St. John v. Pope, 901 S.W.2d 420, 424 (T......
  • State v. Gaona, No. 98,822.
    • United States
    • United States State Supreme Court of Kansas
    • March 2, 2012
    ...Johnson, 286 Kan. 824, 831, 190 P.3d 207 [2008] ). The party alleging the abuse of discretion bears the burden of proof. Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 (2001) (citing State v. Mullins, 267 Kan. 84, 93, 977 P.2d 931 [1999] ). Further, if a district court abuses its discretion......
  • State v. Gaona, No. 98
    • United States
    • United States State Supreme Court of Kansas
    • March 2, 2012
    ...286Page 13Kan. 824, 831, 190 P.3d 207 [2008]). The party alleging the abuse of discretion bears the burden of proof. Irvin v. Smith, 272 Kan. 112, 125, 31 P.3d 934 (2001) (citing State v. Mullins, 267 Kan. 84, 93, 977 P.2d 931 [1999]). Further, if a district court abuses its discretion in a......
  • Russell v. May, No. 111,671
    • United States
    • Kansas Supreme Court
    • August 25, 2017
    ...the standard of care. Whether a physician owes a legal duty is a question of law over which we exercise unlimited review. Irvin v. Smith , 272 Kan. 112, 122, 31 P.3d 934 (2001) ; Adams v. Via Christi Regional Med. Center , 270 Kan. 824, 834, 19 P.3d 132 (2001). As a matter of law, a legal d......
  • Request a trial to view additional results

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