Lytle v. Stearns

• Decision Date: 20 April 1992
• Docket Number: No. 66264,66264
• Citation: 250 Kan. 783,830 P.2d 1197
• Parties: Robert and Vicky LYTLE, et al., Appellants, v. Donald E. STEARNS, et al., Appellees.
• Court: Kansas Supreme Court

Page 1197

830 P.2d 1197

250 Kan. 783

Robert and Vicky LYTLE, et al., Appellants, v. Donald E. STEARNS, et al., Appellees.

No. 66264.

Supreme Court of Kansas.

April 20, 1992.

Syllabus by the Court

1. The Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985), rule is broad enough to include any confidential settlement in any tort action involving multiple defendants when the settling defendant is a witness and either remains a party to the action or retains some financial interest in the litigation.

2. K.S.A. 60-452 is concerned with possible prejudice to the settling defendant on the issue of liability. K.S.A. 60-453 is concerned with protecting the full value of a plaintiff's claim during settlement negotiations. The policy behind the statutes is to promote settlement.

3. The modern equivalent of the common-law system of pleadings is the use of alternative and hypothetical forms of statement of claims and defenses, regardless of consistency. Pleadings of this nature are directed primarily to giving notice and lack the essential character of an admission. To allow such pleadings to operate as admissions would render their use ineffective and frustrate their underlying purpose.

4. A lay party witness should not be cross-examined regarding theories or allegations of liability asserted against a former party who is no longer in the lawsuit, if that former party was brought into the litigation as a party after being designated by an initial defendant for comparative negligence purposes under K.S.A.1991 Supp. 60-258a.

5. Where the deceased had no pre-existing injuries prior to the auto accident giving rise to the cause of action, the evidence at trial does not disclose that the defendant enhanced the injuries caused by the accident, and defendant's negligence, if proven, contributed to the prolonging of pain and suffering and arguably death, the damages attributable to such prolonging should be dealt with in closing argument rather than with a specific jury instruction on aggravation of a pre-existing condition.

6. The trial court should instruct only on those items of damage for which there is some evidence to support an award.

Dennis M. Clyde, of Gates & Clyde, Chartered, of Overland Park, argued the cause, and Thomas Kelly Ryan, of the same firm, was with him on the briefs for appellants.

Alice G. Amick, of Niewald, Waldeck & Brown, of Kansas City, Missouri, argued the cause, and Wm. Terry Fitzgerald, of the same firm, of Overland Park, was with her on the brief for appellees.

SIX, Judge:

This is a personal injury case with a posture influenced by multi-defendant settlements before trial. We are called upon to review the application of our rule established in Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985), concerning the giving of settlement information to a jury. The issues arise from a survival and wrongful death action filed by the parents of a deceased daughter who was a passenger in a car involved in a head-on automobile collision.

We shall consider asserted trial court error in: (1) submitting settlement information to the jury; (2) allowing the introduction of an amended petition containing allegations of negligence against former defendants who had been dismissed from the case because of settlement; (3) allowing the cross-examination of one of the plaintiffs regarding an amended petition containing allegations of negligence against former defendants who had been dismissed from the case because of settlement; and (4) refusing to instruct on certain elements of damages, including the aggravation of a pre-existing condition.

The instant action was brought by the Estate of Deborah K. Lytle, deceased, (Debbie) and by Robert and Vicky Lytle, the natural parents and heirs of Debbie, against Donald E. Stearns individually and as sole proprietor of his ambulance business. The Lytles claim paramedical negligence (the failure to properly transport and to administer care to Debbie following the accident). The Lytles appeal from a jury verdict finding Stearns 0% at fault.

Our jurisdiction is under a K.S.A. 20-3018(c) transfer from the Court of Appeals.

We affirm the trial court's refusal to instruct on certain elements of damages, including the aggravation of a pre-existing condition. We reverse on the settlement information disclosure, amended pleading admission, and cross-examination issues, and remand for a new trial.

Facts

A two-car collision occurred in 1988. Debbie and her boyfriend were passengers in the same car. Following impact, the boyfriend burned to death. One driver was trapped behind the steering wheel. Bystanders pulled one car away from the other that was burning.

A Kansas Highway Patrol Trooper was the first official to arrive at the scene. Debbie was lying in a ditch. Four persons were lying on the road. The trooper checked on each survivor. The trooper was most concerned about Debbie's condition. He ordered Life Flight, a helicopter emergency medical service from Kansas City, Missouri, to the scene.

The Miami County deputy sheriff arrived at the scene a few minutes before defendant Stearns. Stearns, an emergency mobile intensive care technician (a paramedic), is the owner and operator of Stearns & Associates Ambulance Service. He was accompanied by his wife, an emergency medical technician (EMT), and his 13-year-old son. A paramedic holds an advanced certification beyond an EMT. Stearns was the chief medical officer at the scene with decision-making authority for emergency medical treatment.

Stearns also operated ambulance services out of Louisburg and LaCygne. The Miami County dispatcher told him the situation was serious. Stearns requested the dispatcher to send the Louisburg unit to the scene. According to Stearns, he knew that his LaCygne unit monitored the calls and would also respond.

Stearns served as triage officer (triaging involves examining the trauma victims and deciding who needs help first). He conducted an initial assessment of the six surviving trauma victims within 30-45 seconds of arriving. Following the initial assessment, Debbie was treated first.

The ambulance patient form filled out for Debbie indicates her vital signs were first taken at 11:59 p.m. Debbie was noted to be very combative. Her lungs were clear. She was awake, alert, and oriented, and her pupils were equally reactive to light. She complained of severe pain in her back, legs, and belly. She had second-degree burns on her legs. Her condition was noted as critical.

Stearns contacted the trooper and the deputy sheriff and requested that Life Flight be cancelled. The trooper told Stearns that Life Flight was almost there. Stearns replied, "We can handle it." The deputy followed Stearns' orders and cancelled Life Flight. Life Flight was notified of the cancellation en route at 12:12 a.m. with an estimated time of arrival of five minutes at 12:17 a.m.

Stearns then suspected that something serious was wrong with Debbie. He administered oxygen and started an IV. According to Stearns, she responded to the treatment.

At the time that Stearns told the officers to cancel Life Flight, no other ambulances had arrived. Stearns knew that his two other units were responding. At 12:10 a.m., the Louisburg unit arrived staffed with an EMT and another of Stearns' sons, an EMT student. An ambulance from Osawatomie, not owned by Stearns, arrived at 12:22 a.m. At 12:33 a.m., Stearns' LaCygne unit arrived staffed with a paramedic, two EMTs, and an EMT student. The Osawatomie ambulance left the scene at 12:40 a.m. with one of the least injured bound for Miami County Hospital. Stearns LaCygne unit left the scene with a passenger whose condition was listed as "urgent" at 12:42 a.m. bound for Miami County Hospital. Miami County Hospital did not have facilities to treat a patient in critical condition.

Both the Louisburg and Paola units headed for the Overland Park Humana Hospital, which was approximately 40 miles from the accident scene. At 1:20 a.m., Stearns contacted the Johnson County dispatch center and established radio contact with Humana. Stearns testified: (1) He waited until he reached a point 10-12 miles from Humana where he could consistently reach Johnson County's dispatch center; (2) it was not feasible to have the Miami County Dispatcher contact Humana sooner; (3) he was concerned whether Humana could handle all four patients; (4) he asked if Humana wanted all four or if Humana wanted him to divert; and (5) Humana told him to bring all four patients.

At Humana, Nurse Galbraith received the radio transmission. Dr. Barbara Holmes, the emergency room doctor, personally heard the transmission.

The records reflect a dispute between the parties as to the time Debbie entered Humana Hospital.

At 2:16 a.m., Debbie went into cardiac and respiratory arrest. Dr. Holmes was called and attempted to save Debbie's life. At 2:47 a.m., Dr. Holmes pronounced Debbie dead. The cause of death was hypovolemic shock resulting from internal bleeding from a ruptured spleen and a ruptured kidney. The experts who testified at trial generally agreed that Debbie could have been saved if she had received definitive care sooner.

The Lytles commenced the instant action naming as defendants Angela Jones (the driver of the car Debbie was in), the Board of County Commissioners of Miami County, and Stearns. The Lytles claimed that Jones was negligent in the operation of her vehicle. The theory of negligence asserted against the Board of County Commissioners involved the inspection, maintenance, and signing of the roadway. The allegations against Stearns rested on professional negligence in the failure to render proper emergency medical services.

Stearns filed a comparative negligence designation under K.S.A.1991 Supp. 60-258a, naming Morris Schroeder (the driver of the other car) and Humana Hospital and its agents and attending physicians, among others. The Lytles filed a motion to add the entities...