Puckett v. Mt. Carmel Regional Med. Center

• Decision Date: 22 April 2010
• Docket Number: 971.,No. 97,97
• Citation: 228 P.3d 1048
• Parties: Susan E. PUCKETT, Individually, as Heir at Law, and as Special Administrator of the Estate of Ronald E. Puckett, Deceased, Appellant, v. MT. CARMEL REGIONAL MEDICAL CENTER, Barbara Deruy, A.R.N.P., and Adam S. Paoni, D.O., Appellees.
• Court: Kansas Supreme Court

228 P.3d 1048

Susan E. PUCKETT, Individually, as Heir at Law, and as Special Administrator of the Estate of Ronald E. Puckett, Deceased, Appellant, v. MT. CARMEL REGIONAL MEDICAL CENTER, Barbara Deruy, A.R.N.P., and Adam S. Paoni, D.O., Appellees.

No. 97,971.

Supreme Court of Kansas.

April 22, 2010.

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Zackery E. Reynolds, of The Reynolds Law Firm, P.A., of Fort Scott, argued the cause and was on the briefs for appellant.

Lawrence J. Logback, of Holbrook & Osborn, of Overland Park, argued the cause and was on the briefs for appellees Mt. Carmel Regional Medical Center and Barbara Deruy, A.R.N.P.

Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, argued the cause, and Leigh C. Hudson, of the same firm, was with him on the briefs for appellee Adam S. Paoni, D.O.

The opinion of the court was delivered by LUCKERT, J.:

On petition for review, the defendants in this medical malpractice case seek reversal of the Court of Appeals' determinations that the trial court erred by instructing the jury on intervening cause, the error was not harmless, the jury verdict rendered in the defendants' favor must be vacated, and the case remanded for retrial. See Puckett v. Mt. Carmel Reg. Med. Center, No. 97,971, unpublished opinion filed September 19, 2008. We affirm the Court of Appeals' decision, reverse the jury verdict, and remand the case with directions for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On June 15, 2002, Ronald E. Puckett sought treatment for severe back pain at the emergency room of Mt. Carmel Regional Medical Center (Mt. Carmel) in Pittsburg, Kansas. Ronald was seen by Dr. Ronald Seglie, who examined him and prescribed pain medication and a muscle relaxer.

Four days later, Ronald still had pain in his lower back and was also running a fever. He sought treatment at a clinic operated by Mt. Carmel where he was treated by Barbara Deruy, an advanced registered nurse practitioner (A.R.N.P.), who worked at the clinic under a collaborative practice agreement that required a supervising physician be within 50 miles. Nurse Deruy had previously treated Ronald for chronic back pain when she worked for his family doctor. When Ronald arrived at the clinic, Nurse Deruy noted that Ronald was moving very slowly and with great difficulty. Ronald indicated he had been running a fever that morning, but his chief complaint was the back pain. He had taken some medication containing acetaminophen before seeing Nurse Deruy and did not have a fever at the time of his visit. Nurse Deruy observed Ronald's reddened ears and throat, as well as nasal congestion, which she attributed to a viral infection, and made a differential diagnosis of low back pain and a viral syndrome. Nurse Deruy changed Ronald's prescription muscle relaxant and told him to report to the emergency room if his symptoms got worse.

Ronald's symptoms did worsen over the next 2 days; he became confused and disoriented. On June 21, 2002, he was transported by ambulance to Hospital District No. 1 (Girard Hospital), was admitted, and was placed in the intensive care unit under the treatment of Dr. Adam Paoni, a board-certified physician in the area of family practice. Following a regimen of antibiotics to treat a urinary tract bacterial infection, Ronald initially improved. Unfortunately, his condition soon deteriorated and he developed respiratory distress. On June 23, 2002, Dr. Paoni transferred Ronald to St. John's Hospital (St. John's) in Joplin, Missouri, a larger "tertiary care" facility, where he could receive more specialized care, including long-term respiratory assistance, for sepsis that had developed from the bacterial infection.

At St. John's, Ronald was placed under the care of Dr. Habib Munshi, a physician board certified in the areas of pulmonary diseases, critical care medicine, and sleep disorders. Dr. Munshi described Ronald's status as "in extremis," meaning his whole system was severely unstable, the situation was "very critical," and he was at considerable risk of dying. Dr. Munshi stated at trial that considering the fact that Ronald "had several days of treatment and he still was in this situation, his prognosis for recovery was not very good." Ronald's white blood cell count was high, his heart rate was elevated, and he had severe respiratory problems. Dr. Munshi had to choose a method of providing respiratory assistance. He treated Ronald's respiratory distress with a bilevel positive air pressure (BiPAP) face mask rather than a ventilator, since he believed Ronald's medical condition was too perilous to attempt the intubation required if a ventilator was utilized. Dr. Munshi testified that Ronald had no contraindication to the use of the BiPAP mask.

On the morning of June 25, 2002, Dr. Munshi visited Ronald, who remained critically ill. For medical reasons and patient comfort, Dr. Munshi ordered the temporary removal of the BiPAP mask and the use of an oxygen mask. While the BiPAP mask was removed, Ronald sat up in bed and ate some breakfast. After approximately 3 hours, Ronald was placed back on the BiPAP mask. Soon thereafter Ronald went into cardiac arrest. Ronald had stopped breathing after having vomited and aspirated. His cardiac and pulmonary functions were restored, but he never fully regained consciousness.

Ronald died on August 6, 2002. The death certificate listed Ronald's cause of death as "anoxic encephalopathy," which basically means "there was a disease process of the brain that ... resulted from lack of oxygen to the brain." Significant conditions listed as contributing to his death were sepsis, diabetes, and respiratory failure. At trial, Dr. Munshi opined that despite Ronald's receiving low oxygen, he would have expected him to recover but because of "underlying primary insults"—severe sepsis and major organ failure—his "coding" was "part of the underlying process."

Susan E. Puckett, the widow and special administrator of Ronald's estate, brought wrongful death and survivor actions against Mt. Carmel, Nurse Deruy (Mt. Carmel and Nurse Deruy will be referred to collectively as Nurse Deruy), and Dr. Paoni on the basis of medical malpractice. Susan alleged that Nurse Deruy was negligent in (1) failing to properly diagnose and treat Ronald's urinary tract infection that developed into sepsis after going untreated; (2) failing to obtain and review Ronald's medical chart; (3) failing to order a complete blood count and urinalysis; (4) failing to obtain a proper history; and (5) practicing outside her specialty. Susan alleged that Dr. Paoni was negligent in (1) failing to realize the severity of Ronald's condition; (2) failing to realize Ronald was having, or was at risk of having, multiple-system organ failure that could not be treated at Girard Hospital; and (3) failing to timely transfer Ronald to a facility where he could receive more specialized care.

In response, both Nurse Deruy and Dr. Paoni denied individual fault and raised the affirmative defense of comparative fault between the parties and Dr. Munshi. They alleged that Dr. Munshi, who is not a Kansas resident and is not a party to this lawsuit, was at fault for placing Ronald on the BiPAP mask instead of a ventilator. More specifically, they claimed Dr. Munshi failed to provide ventilation with a secure airway, resulting in Ronald's vomiting, aspirating, and cardiac arrest that led to his death. In the alternative, Nurse Deruy and Dr. Paoni claimed there was a superseding, intervening cause, which they now characterize as the "aspirating event," that relieved them of any liability.

The trial became a battle of the experts. Dueling opinions were admitted regarding whether Nurse Deruy and Dr. Paoni violated their respective standards of care and also whether Dr. Munshi was negligent. In addition, many of the experts offered opinions relating to causation, some suggesting Nurse Deruy's and Dr. Paoni's negligence caused or exacerbated Ronald's sepsis and others suggesting the severity of his illness was not the result of their actions or inactions. Primarily, the various defense expert opinions related to two of the defense theories—that Nurse Deruy and Dr. Paoni did not deviate from their applicable standards of care and that any negligence was attributable to Dr. Munshi or, at least, his negligence had to be compared to the negligence of Nurse Deruy and Dr. Paoni, if any. Other opinions related to Nurse Deruy's and Dr. Paoni's final theory of defense, i.e., whether a superseding, intervening event caused Susan's damages.

As to the intervening cause defense, Ronald's treating physician at the time of death testified that Ronald's aspiration caused his anoxic brain injury and cardiac arrest. Plaintiff's expert, Dr. Larry Rumans, gave similar testimony. In addition, Nurse Deruy's and Dr. Paoni's experts focused on the aspiration event as the cause of death. For example, one of Dr. Paoni's expert's, Dr. David McKinsey, opined that Ronald's death "resulted from complications of aspiration" and "the reason he aspirated is he had a whole lot of fluid in his stomach and I can't blame that on the sepsis." Dr. McKinsey further opined that had Ronald not aspirated at St. John's, it was more likely than not he would have survived.

Another defense expert, Dr. Wade Williams—board certified in the areas of internal, pulmonary, and critical care medicine—opined that Dr. Paoni's treatment of Ronald met the applicable standard of care but Dr. Munshi's did not. Specifically, in his opinion, Dr. Munshi should have intubated Ronald and placed him on a ventilator. Dr. Williams addressed causation as well, observing it was foreseeable that a patient with sepsis would need respiratory assistance. Nevertheless, Dr. Munshi had a choice of using a positive air pressure (PAP) device or intubation and, although PAP is used "quite often,"...