Perez v. Wesley Med. Ctr., LLC
| Decision Date | 07 January 2022 |
| Docket Number | No. 122,649,122,649 |
| Parties | Edgar PEREZ, Individually, and as Next Friend, and Natural Parent of Minor Child of Lindsay Perez, and as Administrator of the Estate of Lindsay Perez, Appellants, v. WESLEY MEDICAL CENTER, LLC, Appellee. |
| Court | Kansas Court of Appeals |
Bradley J. Prochaska, James R. Howell, and Michael W. Weber, of Prochaska, Howell & Prochaska, LLC, of Wichita, for appellants.
G. Andrew Marino, John H. Gibson, and Michelle M. Watson, of Gibson Watson Marino LLC, of Wichita, for appellee.
Before Bruns, P.J., Green and Isherwood, JJ.
This medical malpractice and wrongful death case—which is brought by Edgar Perez—arises from the care and treatment provided to Lindsay Perez after giving birth to their son at Wesley Medical Center, LLC. Lindsay died of pulmonary edema
several hours after the baby was delivered by caesarian section. Although several health care providers were initially named as defendants, Wesley Medical Center was the only remaining defendant at the time of trial. After an 11-day trial, the jury returned a verdict for the plaintiffs and awarded damages in the amount of $6.5 million. Following the trial, the district court reduced the damages to approximately $5.3 million, the amount requested by the plaintiffs in the final pretrial order. Subsequently, the district court granted judgment as a matter of law in favor of Wesley Medical Center and set aside the jury's verdict in its entirety.
On appeal, Perez contends that the district court erred in granting Wesley Medical Center's motion for judgment as a matter of law. In addition, Perez contends that the district court erred in reducing the amount of the damages awarded by the jury. After reviewing the record on appeal in light of Kansas law, we conclude that the district court erred in granting Wesley Medical Center's judgment as a matter of law and setting aside the jury's verdict. Even so, we conclude that the district court did not err in reducing the amount of the damages awarded to conform with the final pretrial order. Thus, we affirm in part, reverse in part, and remand this case to the district court to reinstate the judgment in favor of Perez in the reduced amount previously ordered by the district court.
On the night of October 7, 2015, Edgar Perez took his pregnant wife, Lindsay, to Wesley Medical Center. Dr. Holly Montgomery—who at the time was an obstetrics and gynecology resident at Wesley Medical Center—first examined Lindsay and ordered blood tests. Based on her examination of Lindsay, Dr. Montgomery consulted with Dr. Melissa Hodge—who was the "on-call" obstetrician and gynecologist—to report her concerns. In turn, Dr. Hodge requested that a maternal-fetal medicine (MFM) specialist—who provides care for high-risk pregnancies—be consulted.
Dr. Locke Uppendahl—the senior MFM resident—examined Lindsay. Based on Lindsay's elevated blood pressure and other symptoms, Dr. Uppendahl suspected that Lindsay was suffering from severe preeclampsia
and recommended immediate delivery of the baby. Around midnight, Dr. Uppendahl called the attending MFM physician, Dr. Margaret O'Hara, to report his findings and recommendation. Dr. O'Hara concurred with Dr. Uppendahl's recommendation and issued orders to induce labor.
Because of signs of potential fetal distress, a caesarian section
was eventually ordered. About 4 a.m., the baby was delivered by Dr. Janet Eddy—who was an obstetrics and gynecology resident—under the supervision of Dr. Hodge. During the surgery, Lindsay's blood pressure fell to a level that did not allow for adequate perfusion of her brain and additional IV fluids were given. After delivery, Lindsay had an episode of blindness and could not see her son when he was presented to her. But her vision returned before she was transferred to the high-risk labor and delivery unit for recovery.
Because of his concerns that Lindsay might be developing pulmonary edema
, Dr. McKay recommended a chest x-ray and a cardiac consultation. Dr. McKay would later testify that he wanted At 5:25 a.m., Dr. Eddy placed an urgent order for a chest x-ray.
Around 6 a.m., Lindsay complained of pain due to a cough
. At 6:45 a.m., Lindsay's cough was described as deep and causing significant pain. At 7 a.m., Dr. Uppendahl's shift ended. Before leaving the medical center, Dr. Uppendahl reported to Dr. Rachel Bender—a third year MFM resident—about Lindsay's condition and symptoms. Around the same time, Karen VanEpps, R.N., came on duty and assumed care of Lindsay in the high-risk labor and delivery unit.
At the start of her shift, Nurse VanEpps first completed a head-to-toe physical assessment of Lindsay. In recording her nursing assessment at 7:15 a.m., Nurse VanEpps documented that Lindsay's blood pressure was 182/85, with a heart rate of 88, and a respiratory rate of 22. In addition, she noted crackling sounds in both of Lindsay's lungs, pitting edema in both lower and upper extremities, abdominal pain, fluid retention
, shallow breathing, a nonproductive cough, and oxygen saturations greater than 90% with supplemental oxygen being administered.
Nurse VanEpps later testified that her findings during her nursing assessment of Lindsay were concerning. It is undisputed that the protocol at Wesley Medical Center is for nurses to communicate significant information from a nursing assessment to a resident physician, who then passes the information on to the attending physician. After performing her nursing assessment, Nurse VanEpps received a bedside report from the nurse who had been providing Lindsay's care in the high-risk labor and delivery unit. During this discussion, Nurse VanEpps learned a chest x-ray
had been ordered but had not yet been performed.
At 7:27 a.m., Nurse VanEpps tried to call the senior obstetrics and gynecology resident to report Lindsay's condition. After being told that the resident was performing a caesarian section
, she then spoke to Dr. Bender on the telephone at approximately 7:33 a.m. The evidence about what was said during this conversation is disputed. Although Nurse VanEpps would testify that she reported all the pertinent information she gathered from her initial nursing assessment, Dr. Bender's notes reflect that she simply called to report Lindsay's severely high blood pressure. Noting the pending order for a chest x-ray, Dr. Bender ordered that Procardia—used to treat high blood pressure—be administered.
At trial, Nurse VanEpps testified that she reported the findings from her nursing assessment to Dr. Bender, including the findings consistent with pulmonary edema
. In contrast, Dr. Bender testified that Nurse VanEpps told her only about the two severe blood pressure readings during this conversation. Nurse VanEpps testified that she was not surprised that Dr. Bender did not order Lasix for Lindsay after the 7:33 a.m. phone call because Lasix is not commonly given to patients. In her experience, before Lasix is ordered by a physician, there is normally "something that diagnostically told them there was a need for it," such as a chest x-ray showing fluid on the lungs. Nurse VanEpps further testified that at the time, in 2015, in her 13-year career of caring for high-risk obstetrics and gynecology patients, she had been ordered to administer Lasix to only two patients.
At 7:55 a.m., the chest x-ray
was taken in Lindsay's room. Around the same time, Nurse VanEpps received a telephone order from Dr. Bender ordering cough drops for Lindsay. At approximately 8:25 a.m., a radiologist reported that the chest x-rays showed pulmonary edema—which is a buildup of fluid in the lungs. Dr. Bender later testified that this Dr. Bender also testified "that was what I was looking for in the chest x-ray—enough information to support giving Lasix."
Dr. Bender then updated Dr. O'Hara and Dr. Byron Cline—Lindsay's regular obstetrician and gynecologist—about Lindsay's respiratory status. She also discussed Lindsay's respiratory status with Dr. Gregory George—the "on call" anesthesiologist—who recommended a pulmonology consult as well as the administration of bilevel positive airway pressure. Around 8:47 a.m., Dr. Bender ordered 40 milligrams of Lasix
in an attempt to address Lindsay's fluid retention, and Nurse VanEpps administered the medication.
Around 9:15 a.m., Dr. Bender returned to Lindsay's room to discuss possible transfer to the intensive care unit for airway management. Dr. Bender found Lindsay's condition to have worsened, and she called Dr. George to the room. The record reflects that Lindsay's oxygen saturation
levels dropped to the 70s and then to the 50s. In addition, Lindsay's coughing became "frothy," and she became unresponsive. Dr. George called a code...
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