Juhnke v. Evangelical Lutheran Good Samaritan Soc., 52191

• Citation: 6 Kan.App.2d 744,634 P.2d 1132
• Decision Date: 09 October 1981
• Docket Number: No. 52191,52191
• Parties: Stanley R. JUHNKE, Guardian and Conservator for Myrtle J. Strong, an Incapacitated Person, Appellant, v. EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, d/b/a Hutchinson Good Samaritan Center, Appellee.
• Court: Court of Appeals of Kansas

Page 1132

634 P.2d 1132

6 Kan.App.2d 744

Stanley R. JUHNKE, Guardian and Conservator for Myrtle J.

Strong, an Incapacitated Person, Appellant, v. EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, d/b/a

Hutchinson Good Samaritan Center, Appellee.

No. 52191.

Court of Appeals of Kansas.

Oct. 9, 1981.

Syllabus by the Court

1. The primary purpose of the pretrial conference as provided for in K.S.A. 60-216 is to establish the legal issues which will be tried during the course of the trial and resolve as many questions as possible at that time. As a practical matter, many issues of law should not be decided until such time as some evidence has been presented which would give the trial court a basis upon which to rule.

2. As a general rule, the proprietors of a nursing home are under a duty to exercise reasonable care to avoid injuries to patients, and the reasonableness of such care is to be assessed in the light of the patient's physical and mental condition.

3. The primary purpose of expert testimony is to establish the community standards for the benefit of the trier of fact when the facts are somewhat alien in terminology and the technological complexities would preclude an ordinary trier of fact from rendering an intelligent judgment.

4. When the treatment and care of a nursing home patient is so obviously lacking in reasonable care and has such serious consequences that the lack of reasonable care would be apparent to and within the common knowledge and experience of mankind in general, expert testimony is not required to prove negligence.

5. Under the facts of this case, testimony by an expert witness to establish the standard of care prevailing among nursing homes in like situations was not necessary to prove negligence.

Robert L. Taylor, of Hutchinson, for appellant.

Michael R. O'Neal, of Hodge, Reynolds, Smith, Peirce & Forker, Hutchinson, for appellee.

Before ABBOTT, P. J., and PARKS and SWINEHART, JJ.

SWINEHART, Judge:

This is an appeal from a judgment in a personal injury action by the guardian and conservator of Myrtle J. Strong against the Hutchinson Good Samaritan Center, a nursing home. Strong was a patient at the defendant nursing home, and her petition alleged that the home was negligent in failing to exercise ordinary care to protect her from assault and injury by a fellow patient. At the close of plaintiff's evidence, in which no expert testimony was presented, the trial court sustained defendant's motion for a directed verdict, stating that plaintiff had not shown a standard of care for a nursing home and a deviation from that standard. Plaintiff's post-trial motions were subsequently overruled. Plaintiff appeals.

Plaintiff alleges the following grounds for appeal. (1) The trial court erred in failing to schedule a pretrial conference at the request of plaintiff for the purpose of deciding legal issues which affected the proof necessary in the proceeding. (2) The trial court erred, and plaintiff was prejudiced and denied a fair trial, by not implementing the pretrial order of the previous trial judge who had obligated himself to decide, prior to trial, the issues of law which concerned the proof that would be necessary for plaintiff to prove her case. (3) The trial court erred, as a matter of law, by not deciding the issues of law which concerned the proof prior to trial, as requested by a party. (4) Such actions or failure to act by the trial court denied plaintiff due process of law. (5) The trial court erred in directing a verdict for defendant. (6) Plaintiff's proof was sufficient to establish a prima facie case of actionable negligence when general principles of tort law are applied to the evidence presented. (7) The trial court erred in requiring plaintiff to show a special duty and standard of care in order to present a case of actionable negligence against defendant. (8) The trial court erred by requiring plaintiff to establish this standard of care for defendant and a deviation therefrom with expert testimony. (9) The trial court erred and abused its discretion in precluding testimony of witnesses subpoenaed by plaintiff solely on the basis that the witnesses were not listed in the pretrial order, absent a demonstration of prejudice to defendant. (10) The trial court erred in quashing subpoenas of plaintiff's witnesses on its own motion, thereby precluding the use of such witnesses to proffer testimony on behalf of plaintiff.

Myrtle J. Strong was admitted to the Hutchinson Good Samaritan Center on or about January 15, 1976. The evidence indicates that at that time she was in good health and able to walk freely with the aid of a cane. Defendant's records, which were admitted into evidence, indicate that on June 18, 1976, Strong was pushed by another patient, and as a result Strong fell to the floor and was subsequently taken by ambulance to a hospital. As a result of this fall, Strong sustained serious injuries. Defendant's records further show that the other patient had been admitted to the home on November 25, 1973. The admission records reveal that defendant was put on notice that the other patient was suffering from progressive mental deterioration which had existed for over a year. Evidence was presented which indicated that the other patient's mental condition continued to deteriorate, that her behavior generally was very belligerent, and that she wandered around the nursing home and in the rooms of other patients, pushing, tripping and hurting others. The evidence also reveals that defendant had knowledge of this behavior.

The preceding summary basically constitutes the evidence which was presented by plaintiff in her case in chief.

Numerous procedural problems developed during the time this case was on file, which resulted in some procedural confusion for both parties in their preparation for trial.

On December 5, 1978, a pretrial conference was held before the trial judge and a pretrial order was entered and filed. The pretrial order left unresolved the issue of the applicable standard of care for a nursing home under the circumstances of this case, and more specifically, whether plaintiff would be required to present expert testimony to establish that standard of care. The trial court ordered both counsel to submit briefs on this issue, but did not commit itself to deciding the issue prior to trial.

Subsequent to the pretrial conference and submission of the briefs, the trial judge retired and was replaced. To add to the confusion, plaintiff changed attorneys subsequent to the pretrial conference, and her present counsel entered the case shortly before trial. This series of events left the issue of proof, which was left unresolved in the pretrial order, still unanswered at the time of trial. Plaintiff's counsel called this problem to the court's attention, but the new trial judge chose not to decide the issue prior to the commencement of the...