Leiker By and Through Leiker v. Gafford

• Decision Date: 04 August 1989
• Docket Number: No. 62303,62303
• Citation: 778 P.2d 823,245 Kan. 325
• Parties: Shawn A. LEIKER, a disabled person, By and Through James S. LEIKER, her husband and next friend; James S. Leiker, individually, and as parent and natural guardian of Jason Scott Leiker and Jennifer Ann Leiker, minors, and as Special Administrator of the Estate of Shawn A. Leiker, deceased, Appellees and Cross-Appellants, v. Wendell P. GAFFORD; Professional Anesthesia, Inc., a corporation; George W. Marshall, M.D.; Harris, Hodges & Marshall, Chartered, a Professional corporation; and Abbott Laboratories, a corporation, Appellants and Cross-Appellees.
• Court: Kansas Supreme Court

Page 823

778 P.2d 823

245 Kan. 325

Shawn A. LEIKER, a disabled person, By and Through James S LEIKER, her husband and next friend; James S. Leiker individually, and as parent and naturalguardian of Jason Scott Leiker and Jennifer Ann Leiker, minors, and as Special Administrator of the Estate of Shawn A. Leiker, deceasedAppellees and Cross-Appellants, v.Wendell P. GAFFORD; Professional Anesthesia, Inc., a corporation; George W. Marshall, M.D.; Harris, Hodges &amp Marshall, Chartered, a Professional corporation; and Abbott Laboratories, a corporation, Appellants and Cross-Appellees.

No. 62303.

Supreme Court of Kansas.

Aug. 4, 1989.

Syllabus by the Court

1.Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party.Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless.If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.

2.In a personal injury action, loss of enjoyment of life is not a separate category of nonpecuniary damages but is more appropriately considered as an element or subcomponent of pain and suffering and/or disability.

3.In a personal injury action, an award of damages for the loss of enjoyment of life would ordinarily be duplicative of damages awarded for pain and suffering or disability.

4.Evidence of loss of enjoyment of life is admissible, if warranted by the facts, and the jury may consider such loss as it relates to disability and pain and suffering.The loss of enjoyment of life is a proper subject for argument by counsel to the jury as it relates to the damages suffered for pain and suffering and disability.

5.Loss of enjoyment of life is not a separate category of nonpecuniary damages in a personal injury action and ordinarily it is error to submit an instruction or verdict form on loss of enjoyment of life as a separate category of damages.

6.A party may not assign as error the giving or failure to give an instruction unless he objects to the instruction and states the specific grounds for the objection.Absent such an objection, an appellate court may reverse only if the trial court's instruction was clearly erroneous.

7.In a personal injury action, damages are recoverable for pain and suffering which is consciously experienced.

8.The determination of whether an injured party sustained conscious pain and suffering is a question of fact for the jury when there is conflicting evidence on the issue.

9.Whether an injured party has experienced conscious pain and suffering may be established by lay testimony, and expert medical testimony is not essential to support a recovery of damages for pain and suffering.

10.Where a charge of excessive verdict is based on passion or prejudice of the jury but is supported solely by the size of the verdict, the trial court will not be reversed for not ordering a new trial, and no remittitur will be awarded unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court.Where the alleged passion or prejudice of the jury is not shown by definite proof, but depends for support solely on the size of the verdict, the award will be upheld unless it shocks the conscience of the court.There is no simple, symmetrical pattern or design for determining whether a verdict is sufficient or insufficient, since each case must stand on its own facts.

11.The general standard of care required of a doctor is that he possess the reasonable degree of learning and skill ordinarily possessed by members of the profession and of his particular school of medicine in the community where he practices, or in similar communities, and that he will use such learning and skill in treating his patient with ordinary care and diligence.

12.Vicarious liability, imputed negligence, and imputed liability are terms generally applied to the legal liability of a person for the acts of another which arises solely because of a relationship and not because of any actual act or negligence of the person held liable for the act of the other person.

13.A surgeon usually is liable for the negligence of an anesthetist-resident or a nurse-anesthetist under the "captain of the ship" doctrine.In an appropriate case the surgeon may also be liable based upon K.A.R. 28-34-17(p).

14.The longstanding rule in Kansas is that there was no right at common law to recover for wrongful death.A cause of action for wrongful death is a creature of statute in Kansas.

15. K.S.A.1988 Supp. 60-1903 does not violate (1) the constitutional right to equal protection of the law under Sections 1and2 of the Bill of Rights of the Kansas Constitution or the equal protection clause of the Fourteenth Amendment to the United States Constitution;(2) the constitutional right to trial by jury under Section 5 of the Kansas Bill of Rights; or (3) the constitutional right to remedy by due course of law under Section 18 of the Kansas Bill of Rights and, therefore, the statute is not unconstitutional on any of the grounds asserted by the plaintiffs.

Charles D. Green, of Arthur, Green, Arthur, Conderman & Stutzman, of Manhattan, argued the cause, and was on the briefs, for appellants and cross-appelleesGeorge W. Marshall, M.D. and Harris, Hodges & Marshall, Chtd.

Larry Shoaf, of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, argued the cause, and Vincent A. Burnett, was with him on the briefs, for appellant and cross-appelleeWendell P. Gafford.

Ronald D. Heck, of Fisher, Heck & Cavanaugh, P.A., Topeka, appeared, for appellant and cross-appelleeProfessional Anesthesia, Inc.

Richard C. Hite, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Charles E. Hill and Dennis V. Lacey, were with him on the briefs, for appellant and cross-appellee Abbott Laboratories.

Bradley Post, of Post & Syrios, Wichita, argued the cause, and Arden J. Bradshaw, Wichita, and Robert E. Keeshan, of Hamilton, Peterson, Tipton & Keeshan, Topeka, were with him on the briefs, for appellees and cross-appellantsShawn A. Leiker, James S. Leiker, Jason Scott Leiker, and Jennifer Ann Leiker.

Marla J. Luckert, of Goodell, Stratton, Edmonds and Palmer, Topeka, was on the brief, for amici curiae Kansas Medical Soc. and Kansas Hosp. Ass'n.

Ronald P. Williams and Susan G. Saidian, of Morrison, Hecker, Curtis, Kuder & Parrish, Wichita, were on the brief, for amicus curiae Kansas Ass'n of Defense Counsel.

HOLMES, Justice:

This is an appeal in a medical malpractice action by the plaintiffs and by the two principal defendants, Wendell P. Gafford and George W. Marshall, M.D., from various portions of the jury verdict and various rulings and orders of the trial court.The plaintiffs have also filed a conditional or contingent appeal from a trial court order granting a directed verdict in favor of Abbott Laboratories, a corporation, and Abbott Laboratories has filed a cross-appeal from certain evidentiary rulings of the court.

Shawn A. Leiker sustained personal injuries on January 28, 1982, as a result of an excessive dose of spinal anesthetic while she was undergoing a cesarean section delivery of her second child.She remained semi-comatose until her death on December 14, 1987.This personal injury and wrongful death action was brought by her husband, James S. Leiker, individually, as a representative of her estate, and on behalf of their two children.

The defendants are Wendell P. Gafford, the certified registered nurse anesthetist (CRNA) who administered the spinal anesthesia, and his professional corporation Professional Anesthesia, Inc.; George W. Marshall, M.D., the obstetrician, and his professional corporation Harris, Hodges & Marshall, Chtd.; and Abbott Laboratories (Abbott), a corporation, the manufacturer of the anesthetic drug.At the close of the plaintiffs' evidence, the trial court entered a directed verdict in favor of Abbott.After defendants Gafford and Marshall presented their evidence, the jury determined that Gafford was 90% at fault and Marshall 10% at fault for Shawn Leiker's injuries and resulting death.The jury also found specifically that Marshall was legally responsible for one or more of the acts of Gafford which caused the injury and death.

The jury awarded plaintiffs $1,250,000 for the personal injury claim and $3,003,100 for the wrongful death claim.Of the total award for wrongful death, the trial court reduced the amount of $2,000,000 awarded for nonpecuniary damages to $100,000 pursuant to K.S.A.1988 Supp. 60-1903(b).Judgment was entered for the plaintiffs for a total of $2,353,100 against Gafford, Marshall, and their respective professional corporations.

The following issues are raised by the parties:

1) Did the trial court err in instructing the jury on the issue of informed consent?

2) Did the trial court err in allowing the jury to award damages for loss of enjoyment of life as a separate category of compensable damages?

3) Did the trial court err in allowing the jury to award damages for pain and suffering under the circumstances of this case?

4) Did the trial court err in failing to grant a new trial on the ground that the jury verdict was excessive and was rendered under passion and prejudice?

5) In the alternative, did the trial court err in failing to grant a substantial remittitur of the award of damages?

6) Did the trial court err in refusing to instruct the jury that there is no presumption of negligence by reason of an adverse result and that a medical practitioner is presumed to have carefully and skillfully treated his patient?

7) Did the trial court err in instructing the jury on the following claims of negligence against Dr. Marshall, on the basis of alleged insufficient expert...