Roberson v. Counselman

• Decision Date: 13 July 1984
• Docket Number: No. 56325,56325
• Citation: 235 Kan. 1006,686 P.2d 149
• Parties: Christine ROBERSON, Appellant, v. G. Ed COUNSELMAN, Appellee.
• Court: Kansas Supreme Court

Page 149

686 P.2d 149

235 Kan. 1006

Christine ROBERSON, Appellant, v. G. Ed COUNSELMAN, Appellee.

No. 56325.

Supreme Court of Kansas.

July 13, 1984.

Syllabus by the Court

1. General rules relative to the granting of summary judgment are stated.

2. Law relative to medical malpractice actions is discussed and held applicable to chiropractors.

3. Medical malpractice actions predicated upon diminution or deprivation of chance to survive are discussed.

4. Question of causation in cases involving negligent treatment of a potentially fatal condition (including failure to refer the patient to an appropriate specialist) is generally a matter to be determined by the finder of fact where evidence has established patient had an appreciable chance to survive if given proper treatment. In making this determination, the finder of fact should take into account both the patient's chances of survival if properly treated and the extent to which the patient's chances of survival have been reduced by the claimed negligence.

Janet Jo Smith, of Law Offices of Jerry K. Levy, P.A., Topeka, argued the cause and was on the brief for appellant.

Thomas E. Wright, of Fisher, Ochs, Heck and Wright, P.A., Topeka, argued the cause and was on the brief for appellee.

McFARLAND, Justice:

Plaintiff Christine Roberson, the widow and heir-at-law of Richard C. Roberson, deceased, brings this professional malpractice action against G. Ed Counselman, a chiropractor. Plaintiff contends defendant was professionally negligent in failing to recognize his patient (the deceased) was experiencing symptoms consistent with those of acute heart disease and in failing to refer the patient for appropriate medical treatment. Plaintiff contends this negligence substantially reduced deceased's chance of surviving the heart attack which took his life within hours after he had received chiropractic treatment. The district court held plaintiff had failed to meet her burden of proof to show it was more likely than not defendant's conduct was a substantial factor in the causation of the injury and sustained defendant's pretrial motion for summary judgment. Plaintiff appeals therefrom.

The applicable rules relative to summary judgment were reiterated in McAlister v. Atlantic Richfield Co., 233 Kan. 252, 662 P.2d 1203 (1983), as follows:

"Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought." Syl. p 1.

"A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist." Syl. p 2.

"When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing that party his day in court." Syl. p 3. (Emphasis supplied.)

"When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment." Syl. p 4. (Emphasis supplied.)

A summary of the facts, in the light most favorable to the plaintiff, is as follows. Richard C. Roberson was initially seen by defendant Counselman in December 1972. At that time he complained of and was treated for a back sprain. Approximately a week later Mr. Roberson became ill. Plaintiff then contacted defendant and advised him she believed her husband had a heart problem and requested that defendant urge her husband to see a heart specialist. Defendant made arrangements for Mr. Roberson to be seen by Dr. Robert Roeder, a Topeka cardiologist where he was diagnosed as having suffered a heart attack and was hospitalized.

Under Dr. Roeder's supervision, a continuing course of treatment, including medication, was undertaken and Mr. Roberson was ultimately released from the hospital. On January 12, 1973, Mr. Roberson was rehospitalized complaining of chest discomfort. Three years later, in May 1976, Mr. Roberson was again admitted to the hospital with similar complaints. During the 1976 hospitalization Mr. Roberson underwent diagnostic coronary arteriograms to determine the state of his cardiac circulation in relation to his coronary arteries. The tests revealed the right coronary was totally blocked while there was a seventy percent narrowing in the left anterior descending to a forty percent narrowing in the circumflex. Also during the 1976 hospitalization, x-rays of Mr. Roberson's back revealed he had a mild degenerative arthritic change of the lumbar and cervical regions of the spine. All these findings were presented to Mr. Roberson. The last time Dr. Roeder saw Mr. Roberson was on January 24, 1980, where he exhibited stable angina pain.

On July 28, 1980, Mr. Roberson appeared at defendant's office complaining of "pain in the left shoulder area and left side causing hard breathing and chest ache." Defendant, with knowledge of the decedent's prior heart history, diagnosed Mr. Roberson as suffering from a neuromuscular difficulty and gave two chiropractic adjustments which were described as an anterior move for his upper back and an intersegmental traction. At no time during the July 28th consultation did the defendant advise Mr. Roberson he should consult a medical physician about his heart. Throughout the evening of July 28, Mr. Roberson's condition deteriorated and plaintiff became very concerned about her husband's health. Plaintiff urged her husband to seek immediate medical treatment. In her deposition, plaintiff testified the following exchange occurred between her husband and herself:

"A. [Christine Roberson] He said that, 'Dr. Counselman is a regular doctor like any other doctor.' He said, 'And I have told Ed [Counselman] exactly how I feel, I have told him that I had shortness of breath, that my chest hurt, that my shoulder hurt; and he said, "Don't worry about it, Dick, it's not your heart, it's not your heart, it's a ligament what's out but it's pressing on a nerve." ' And he said, 'Christine, after all, the man knows what he's talking about, he gives me every symptom that I have.' And I threatened to call an ambulance and he said, 'You'll feel pretty foolish when I don't go. After all, Counselman is a doctor, he knows what he's talking about.'

"Q. [Mr. Wright, defendant's counsel] And he wouldn't take your advice?

"A. He would not.

"Q. He wouldn't take your advice and let an ambulance be called?

"A. He would not."

Plaintiff and her husband argued over his medical condition. Later in the evening, the following conversation occurred:

"A. It ended that we talked to each other again but I was enraged, I told him that he should see Dr. Roeder, I told him, I even told him, I said, 'All right, even if it wouldn't be your heart, for God's sake if you have that much pain, then let's go to a regular doctor, maybe he has to put you in traction if it's really your back.'

"Q. What did he say?

"A. He said, 'Dr. Counselman said I'm supposed to feel this way.' He said, 'It's my back, I'm seeing him again on Wednesday, why don't you just lay off me.'

A few hours later Mr. Roberson died of a heart attack in his home, without medical attention. He was 51 years of age at the time of his death.

Plaintiff presented three expert witnesses whose depositions were taken during discovery. Their testimony, as pertinent to the issue before us, may be summarized as follows:

1. Dr. Malcolm W. Haber (chiropractor) stated that Dr. Counselman had a duty to refer a patient with Mr. Roberson's symptoms to a medical specialist and the failure to do so constituted a breach of that duty.

2. Dr. Richard Roeder (cardiologist) stated with in-hospital treatment for his heart attack, Mr. Roberson had a nineteen percent chance of dying. Without such treatment the mortality rate is twenty-five percent. Therefore, the failure to receive proper medical treatment cost Mr. Roberson a six percent chance of survival.

3. Dr. Lillian Rodriquez-Tocker (cardiologist) stated with proper medical treatment Mr. Roberson had a forty percent chance of survival and that without such treatment his chance of survival was zero percent.

The district court in sustaining defendant's motion for summary judgment reasoned:

"A mere possibility of causation is not enough to meet plaintiff's burden of producing evidence; plaintiff must show that it was more likely than not defendant's conduct was a substantial factor in bringing about the harm in order for plaintiff's case to be submitted to the trier of the fact. Prosser, Law of Torts sec 41 (4th ed. 1971); Restatement (Second) of Torts sec. 433B comments a & b (1965).

....

"The expert medical testimony upon which plaintiff relies is not sufficient to meet plaintiff's burden of proof on causation. Dr. Rodriquez-Tocker's testimony that plaintiff's decedent would have had a forty percent chance of survival in the hospital does not show that it is more likely than not the defendant's conduct caused the death of plaintiff's decedent. Likewise, Dr. Roeder's testimony that Mr. Roberson would have had a six percent better chance of survival if he had gone to the hospital is not enough to fulfill plaintiff's burden of proof on causation. The third expert witness, Dr. Haber, declined to state that defendant's failure to refer Mr. Roberson to a cardiologist was the cause of his death.

....

"The court concludes, as a matter of law, that there is insufficient proof contained in the pretrial discovery record that defendant's conduct was a cause in fact of plaintiff's injuries. Accordingly, the evidence is clearly insufficient to submit the issue of causation to the jury with respect to plaintiff's claim against defendant."

The sole issue on appeal is whether the district court erred in concluding the evidence on causation was insufficient to constitute a submissible jury question.

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