McGuire v. Sifers, 55469

• Decision Date: 27 April 1984
• Docket Number: No. 55469,55469
• Parties: Carol M. McGUIRE, Appellee/Cross-Appellant, v. Earl C. SIFERS, M.D., et al., Appellants/Cross-Appellees, v. Fletcher BELL, Commissioner of Insurance, As Administrator of the Health Care Stabilization Fund, Intervenor.
• Court: Kansas Supreme Court

Page 1025

681 P.2d 1025

235 Kan. 368

Carol M. McGUIRE, Appellee/Cross-Appellant, v. Earl C. SIFERS, M.D., et al., Appellants/Cross-Appellees, v. Fletcher BELL, Commissioner of Insurance, As Administrator

of the Health Care Stabilization Fund, Intervenor.

No. 55469.

Supreme Court of Kansas.

April 27, 1984.

Syllabus by the Court

1. Where a party procures a court to proceed in a particular way thereby inviting a particular ruling, that party is precluded from assailing such proceeding and ruling on appellate review.

2. An examination of the numerous cases challenging the sufficiency, or insufficiency, of a verdict for damages reveals no simple, symmetrical pattern or design, as each case seems to stand on its own facts.

3. An appellate court should be cautious when requested to substitute its judgment for that of the trier of fact that heard the case. We cannot say under the facts of this case the verdict is so excessive as to shock the conscience or indicate passion and prejudice on the part of the jury.

4. Professional liability insurance is required to be maintained by all health care providers as a condition to rendering services in the state.

5. A professional corporation is subject to the general laws of Kansas relating to corporations except that any provision of the professional corporation law shall take precedence over any provision of the general corporation law where they conflict.

6. A professional corporation is subject to certain responsibilities when it is formed. Health care providers who incorporate may do so to gain certain advantages. They must also accept certain liabilities, such as the application of the doctrine of respondeat superior.

7. If the legislature had intended to abrogate the doctrine of respondeat superior as to professional corporations it could have and would have done so through the enactment of specific and definitive legislation.

8. No judgment is effective unless and until a journal entry or judgment form is signed by the trial judge and filed with the clerk of the court.

9. It is error to allow interest on a verdict for unliquidated damages for the time between its finding and rendition of the judgment thereon.

10. If the judgment debtor wishes to avoid the accrual of interest on appeal, he must tender the amount of the judgment or pay the amount into court.

11. Once a judgment debtor pays the full amount of money payable on a judgment into court, interest is not recoverable on the monies deposited in court.

12. The cause of action to recover for loss of consortium vests in the spouse who files an action for personal injuries, not in the spouse who actually suffers the loss of consortium. Our statutes require the award for loss of consortium be reduced by the percentage of the injured spouse's fault.

M. Warren McCamish of Williamson & Cubbison, Kansas City, argued the cause, and John L. Peterson and Timothy P. McCarthy, Kansas City, were with him on the brief for appellants/cross-appellees.

Jay Thomas of Barnett & Ross, Chartered, Kansas City, argued the cause, and James M. Barnett, Kansas City, was with him on the brief for appellee/cross-appellant.

Michael J. Dutton, Sp. Asst. Atty. Gen., argued the cause and was on the brief for intervenor Fletcher Bell, as Administrator of the Health Care Stabilization Fund.

LOCKETT, Justice.

This is a direct appeal of a medical malpractice action instituted by Carol M. McGuire (McGuire) against Earl C. Sifers, M.D. (Dr. Sifers), and Sifers, Taylor and Hitchcock, M.D.'s, Chartered, a professional corporation. Count I claims damages suffered by McGuire (plaintiff). Count II claims damages for loss of consortium pursuant to K.S.A. 23-205. The case was tried before a jury in November, 1982. The jury returned a verdict for $600,000.00 in Count I and $82,000.00 in Count II. The trial judge reduced both Count I and Count II by the 35% fault attributed to the plaintiff by the jury. The final judgment totaled $443,300.00. The defendants appeal. Plaintiff cross-appeals. Insurance Commissioner Fletcher Bell, as Administrator of the Kansas Health Care Stabilization Fund (Fund), was permitted to intervene.

In January, 1976, McGuire was referred by her family physician to Dr. Sifers, a surgeon, for monitoring and observation of several lumps in her breast. McGuire's condition was diagnosed as fibrocystic disease, a forming of cysts in the breast tissue. Biopsies were taken to aid in determining whether the cysts were harmless, premalignant or cancerous. To treat the fibrocystic disease, Dr. Sifers performed subcutaneous mastectomy surgery upon the plaintiff in May, 1979. Dr. Sifers' primary objective in performing the surgery was to prevent the possibility of the plaintiff developing breast cancer later. During the plaintiff's operation, Dr. Sifers removed breast tissue from between the muscle and skin, and silicone gel implants were inserted to reconstruct the breast. Approximately 20% of the breast tissue was not removed by Dr. Sifers to permit possible further breast reconstruction at a future time.

Complications arose after the plaintiff's surgery. The nipple areas grew dark and hardened, the skin died and pulled away from the breast. Surgery was performed by Dr. Sifers in August, 1979, to remove those areas of dead skin and to close the wound. Dr. Sifers removed the stitches several weeks later. The day Dr. Sifers removed McGuire's stitches, the incision opened and required restitching at an emergency room. From August to November, 1979, the plaintiff's stitches in the breast area reopened requiring restitching three or four times. When the incisions broke open implants were visible. Where the stitches failed, openings were sometimes two to three inches wide.

In an effort to solve the problem Dr. Sifers removed the breast implants in November, 1979, and placed smaller implants in the breasts. For a three to four month period the plaintiff began to feel better and all incisions remained closed. Since her first operation the plaintiff had been confined to bed; she was now allowed to get up and take over household chores.

Troubles began anew in March, 1980, when the incision on the right breast opened. Dr. Sifers repeatedly performed corrective surgery. The incisions continually broke open between March and May, 1980. In May, 1980, Dr. Sifers again replaced one of the implants with a smaller implant. In the new implant area the incision opened frequently between May and August, 1980. Both breast implants were removed in August, 1980, by Dr. Sifers. The plaintiff, still in pain, consulted another doctor in August, 1980. In December, 1980, after office treatment and surgery performed by the second doctor, the plaintiff recovered. McGuire has not yet determined whether complete breast reconstruction surgery should be attempted.

At trial the plaintiff introduced expert witness testimony to prove Dr. Sifers treated the plaintiff in a medically negligent manner before, during and after surgery. The jury found for the plaintiff on November 24, 1982. The jury apportioned 65% of the fault to Dr. Sifers and 35% to the plaintiff. The trial judge reduced the judgment in both Count 1 and Count 2 by 35%. The judgment totaled $443,300.00. The defendants appeal. Plaintiff cross-appeals. The Insurance Commissioner representing the Fund was allowed to intervene in the appeal.

The first issue involves the admission into evidence of a portion of Dr. Sifers' testimony. During the presentation of plaintiff's evidence, Dr. Sifers was called as a witness.

The defendants contend reports of the Hospital Quality Assurance Committee introduced through Dr. Sifers' testimony was irrelevant and erroneously admitted since these events occurred after the plaintiff's surgery. From the transcript of Dr. Sifers' testimony, it is not clear which events occurred before or after the plaintiff's surgery. Dr. Sifers, in his answers to questions propounded by plaintiff's counsel, interjected into evidence the matters which his counsel now claims as error. Just prior to that testimony, Dr. Sifers asked his attorney if he should answer the question. Defendants' counsel urged him to answer. The defendants' counsel did then object to the relevancy of a portion of the doctor's testimony concerning matters subsequent to the plaintiff's surgery.

Relevant evidence is evidence having any tendency in reason to prove any material fact and the determination of relevancy is a matter of logic and experience, not a matter of law. State v. Norman, 232 Kan. 102, Syl. p 4, 652 P.2d 683 (1982). Subject to certain exclusionary rules, the admission of evidence lies within the sound discretion of the trial court. State v. Norman, 232 Kan. at 108, 652 P.2d 683. Some of the matters contained within Dr. Sifers' testimony were events that occurred prior to plaintiff's surgery. At the time of trial, defendants failed to object that specific events occurred after the surgery. Without specific objections, the admission of evidence is generally not reversible error. See State v. Garcia, 233 Kan. 589, Syl. p 7, 664 P.2d 1343 (1983).

The defendants did object to the admission of Bethany Medical Center documents promulgated in June of 1981, subsequent to plaintiff's operation, which set restrictions on the performance of subcutaneous mastectomy surgery. It was Dr. Sifers who, while testifying at the trial, produced the documents from his briefcase; he then stated he had been using similar standards contained within the papers since 1971. Dr. Sifers' own testimony established the relevancy of these documents after he had voluntarily produced the documents.

The plaintiff claims if error was committed by admission of the evidence, it was harmless in the face of expert testimony. In addition defendants fail to show how the testimony prejudiced them. K.S.A. 60-261 provides:

"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order...