Lindquist v. Ayerst Laboratories, Inc.

• Decision Date: 01 March 1980
• Docket Number: No. 50674,50674
• Citation: 607 P.2d 1339,227 Kan. 308
• Parties: Berniece C. LINDQUIST, Individually and as Administrator of the Estate of Val A. Lindquist, Appellant, v. AYERST LABORATORIES, INC., a corporation; M. Robert Knapp and Courtney Clark, Appellees.
• Court: Kansas Supreme Court

Page 1339

607 P.2d 1339

227 Kan. 308

Berniece C. LINDQUIST, Individually and as Administrator of the Estate of Val A. Lindquist, Appellant, v. AYERST LABORATORIES, INC., a corporation; M. Robert Knapp and Courtney Clark, Appellees.

No. 50674.

Supreme Court of Kansas.

March 1, 1980.

Syllabus by the Court

1. Where a party has cause to believe and does believe he or she cannot obtain a fair and impartial trial because of personal bias, prejudice or interest of the judge, the party must file an affidavit setting forth the grounds for belief in such bias or prejudice. Upon receipt of such an affidavit, the court must assign the affidavit to another judge for determination of the sufficiency of the reasons stated therein. The question of the sufficiency of the affidavit is one of law for the court to determine. Previous rulings of a trial judge, although numerous and erroneous, where they are subject to review, are not ordinarily and alone sufficient to show bias or prejudice as would disqualify him or her as a judge.

2. Evidence of bias or prejudice of a witness is relevant and may be shown on cross-examination or in rebuttal or by other witnesses or evidence. Before the admission of such evidence, however, a proper foundation must be laid. That foundation includes the requirement that the adverse witness sought to be impeached must be questioned before the attempted impeachment through the testimony of a second witness.

3. A trial court has wide discretion in determining whether it will receive opinion evidence. An abuse of discretion must be found in order to reverse the trial court on the admission of expert testimony.

4. A verdict of actual damages is essential to a recovery of punitive damages.

5. Punitive damages may be recovered whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. Breach of fiduciary duty may in some circumstances give rise to a claim for punitive damages.

6. In the absence of an emergency, a physician or surgeon has a legal obligation to make a reasonable disclosure to his or her patient of the nature and probable consequences of the suggested or recommended treatment, and to make a reasonable disclosure of the dangers within his or her knowledge which are incident to or possible in the treatment he or she proposes to administer in order that the patient will have a basis to make an intelligent informed consent to the proposed treatment. But the duty of the physician is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. Following Funke v. Fieldman, 212 Kan. 524, 512 P.2d 539 (1973).

7. In the trial of a malpractice action wherein the plaintiff claimed inadequate disclosure of risk information by the physician, the patient has the burden of going forward with evidence tending to establish a prima facie cause of action, and ultimately the burden of proof.

8. In a civil case, the record is examined and it is held the administrative judge did not err in assigning the case to the trial judge. The trial court did not err in: 1) excluding certain repetitious and cumulative exhibits; 2) excluding certain testimony; 3) directing a verdict for defendant Ayerst on the issue of punitive damages; 4) directing a verdict for defendant Dr. Clark; 5) overruling plaintiff's motion for a directed verdict against defendant Dr. Knapp; 6) instructing the jury.

Patrick J. Michaud, of Michaud, Cordry & Michaud, Chartered, Wichita, argued the cause and Gerald L. Michaud, Wichita, was with him on brief, for appellant.

Donald R. Newkirk, of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause and was on brief, for appellee Ayerst Laboratories, Inc. and William A. Hensley, of Sherwood & Hensley, Wichita, argued the cause, and Kurt A. Harper, Wichita, was with him on brief, for appellees M. Robert Knapp and Courtney Clark.

HERD, Justice:

This is a medical malpractice case brought by Berniece Lindquist for the wrongful death of her husband, Val A. Lindquist, against Ayerst Laboratories, Inc., manufacturer of the anesthetic Fluothane and Drs. M. Robert Knapp and Courtney Clark, the anesthesiologists who administered the anesthetic to the decedent. The trial court sustained motions for directed verdicts in favor of Clark and for Ayerst as to punitive damages. The jury returned a verdict in favor of Ayerst and Knapp. We affirm.

The controlling facts can be briefly recited. On August 13, 1969, Val A. Lindquist went to his doctor, Dr. Willard J. Smith, who diagnosed a tumor of the right testicle. The same day Lindquist was admitted to the hospital and surgical removal of the testicle was performed the following day by Dr. Smith. During the surgery, the anesthesiologist, Clark, administered a general anesthetic known as Fluothane or Halothane. Due to a staph infection in the incision, Mr. Lindquist remained in the hospital for 10 days until August 24, 1969. The pathology report on Lindquist revealed a highly malignant form of cancer. He was readmitted to the hospital on August 28, 1969, for a surgical procedure known as retroperitoneal node dissection, which was performed August 29, 1969. During this surgery, Fluothane was again used as the anesthetic, this time by Dr. Knapp. Four days after surgery, the patient developed extreme jaundice, lapsed into a coma and subsequently died on September 8, 1969, of liver failure.

The record on appeal is unclear but apparently Mrs. Lindquist's first action, filed August 9, 1971, was dismissed without prejudice. The action was re-filed on October 29, 1973 and was assigned to Judge B. Mack Bryant. On November 5, 1973, plaintiff voluntarily dismissed the action without prejudice because she felt Judge Bryant was prejudiced against her case. The case was refiled November 30, 1973, and again assigned to Judge Bryant. Plaintiff filed various motions attempting to disqualify Bryant, all of which were overruled. An original action in mandamus was filed with this court to force assignment of the case to a different trial judge. We denied the motion on April 14, 1976, in Berniece C. Lindquist v. Howard C. Kline, No. 48,311. Judge Kline, the administrative judge, again assigned the case to Bryant after resolution of the mandamus proceeding. The case was tried during November and December, 1976. At the close of plaintiff's case the court directed a verdict for defendant Clark and for defendant Ayerst as to punitive damages. The case then went to the jury and a verdict was returned for Ayerst and Knapp.

The first issue raised on appeal is whether the administrative judge of the trial court committed reversible error in initially assigning this case to Judge B. Mack Bryant and refusing to reassign the case to another division for trial. Appellant contends the reassignment of the case to Judge Bryant after her voluntary dismissal of the first case was error. The administrative judge relied on Supreme Court Rule 120, 214 Kan. xxxviii, which states:

"Any case dismissed and refiled shall be assigned to the judge of the same division to whom it was previously assigned."

The administrative judge followed the express language of the rule. There is no merit to this issue.

As a second part of this issue, appellant contends the administrative judge committed reversible error in overruling her motion for reassignment of the case with accompanying affidavit of prejudice, pursuant to K.S.A. 20-311d(b) (5), which provides:

"(b) Grounds which may be alleged as provided in subsection (a) for change of judge are:

"(5) That the party filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice, or interest of the judge he cannot obtain a fair and impartial trial. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists."

We held in Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972), that upon the filing of an affidavit alleging the party has cause to believe and believes he cannot obtain a fair and impartial trial because of the personal bias, prejudice or interest of the judge with specific reasons, the court should assign the matter immediately to another judge for determination of the sufficiency of the affidavit. The affidavit must state facts and reasons, pertaining to the party or his attorney which, if true, give fair support for a well-grounded belief he will not obtain a fair trial. See Oswald v. State, 221 Kan. 625, 628-629, 561 P.2d 838 (1977); State v. Griffin, 3 Kan.App.2d 443, 445, 596 P.2d 185 (1979). The question of the sufficiency of the affidavit is one of law for the court to determine but "(p)revious adverse rulings of a trial judge, although numerous and erroneous, where they are subject to review, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him as a judge." Sheldon v. Board of Education, 134 Kan. 135, Syl. P 3, 4 P.2d 430, 431 (1931).

In the instant case, Judge Kline reviewed the affidavit, which primarily alleged previous adverse rulings of Judge Bryant against plaintiff's counsel. He found the evidence was insufficient to show bias or prejudice. The identical issue was presented to this court in the motion for writ of mandamus. We have again reviewed the issue and find it without merit.

Appellant next contends the trial court committed reversible error in excluding the admission of seven exhibits which are memos from Ayerst Laboratories concerning Fluothane.

Let us consider each exhibit separately. Exhibit 24 is Fluothane Memo 65-A, dated March 25, 1963, which originated with Ayerst Laboratories Sales Department and is addressed to all Ayerst salesmen. Under the heading "Fluothane" the memo begins as follows:

"During the current furor over 'Fluothane' we are intensely aware of your problems in meeting your anesthesiologists and surgeons face to face."

The memo goes on to explain that...