Russell v. May, 111,671

Citation400 P.3d 647
Decision Date25 August 2017
Docket NumberNo. 111,671,111,671
Parties Staci RUSSELL, Appellant, v. Lisa MAY, M.D., Victoria W. Kindel, M.D., and Tana Goering, M.D., Appellees.
CourtUnited States State Supreme Court of Kansas

400 P.3d 647

Staci RUSSELL, Appellant,
Lisa MAY, M.D., Victoria W. Kindel, M.D., and Tana Goering, M.D., Appellees.

No. 111,671

Supreme Court of Kansas.

Opinion filed August 25, 2017

Craig Shultz, of Shultz Law Office, P.A., of Wichita, argued the cause and was on the briefs for appellant.

Lisa A. McPherson, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the cause, and Marcia A. Wood, of the same firm, was with her on the briefs for appellee Lisa May.

Mark R. Maloney, of Hinkle Law Firm LLC, of Wichita, argued the cause, and G. Andrew Marino, of Gilliland & Hayes, LLC, of Wichita, was with him on the briefs for appellee Victoria Kindel.

Gregory S. Young, of Hinkle Law Firm LLC, of Wichita, argued the cause, and Brian L. White, of the same firm, was with him on the briefs for appellee Tana Goering.

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

Staci Russell sued three physicians for their alleged failure to timely diagnose her cancer. During the jury trial, the district court granted a motion for judgment as a matter of law under K.S.A. 2016 Supp. 60-250(a) and dismissed defendant Tana Goering, M.D., who was Russell's primary care physician. The claims against the two remaining defendants—a radiologist and an obstetrician/gynecologist—proceeded to verdict; the jury determined that neither of the remaining defendants was liable for Russell's damages.

On appeal from those trial proceedings, we hold that the district court erred in granting Dr. Goering judgment as a matter of law. Considering the evidence in the light most favorable to Russell, a reasonable jury could have found that Dr. Goering owed a duty to Russell and breached the standard of care and caused harm to Russell. Further, we reject Dr. Goering's argument that any error was harmless, as the jury's verdict determining the two other physicians were not liable for failing to timely diagnose the cancer does not determine the issues relating to Russell's claim against Dr. Goering.

We, therefore, remand this case for retrial against Dr. Goering. In doing so, we reject Russell's request to order a retrial regarding the fault of the two other physicians. Under the circumstances of this case, a jury's determination that they were not at fault absolves them of potential liability.

400 P.3d 653


In August 2010, Russell was diagnosed with invasive ductal carcinoma that had spread from her breast to her lymph nodes. She later sued three physicians for medical malpractice relating to the medical care she received in 2008 for a breast lump—a lump she contends was the same lump that was diagnosed in 2010 as cancerous.

In 2008, when Russell first discovered a lump in her right breast, she scheduled an appointment with Dr. Goering. Dr. Goering palpated the breast and felt a lump she described as firm and movable. Dr. Goering then ordered a diagnostic mammogram and, if needed, an ultrasound or sonogram.

Lisa May, M.D., a board-certified radiologist, interpreted Russell's mammogram immediately after it was performed. She noted that "[n]o significant masses, calcifications, or other findings are seen in either breast." Nevertheless, because of the palpable lump and because Russell's age and breast characteristics could make a mammogram less reliable, Dr. May ordered a sonogram, which was performed the same day as the mammogram. While Russell remained in the office, Dr. May reviewed the sonogram images and preliminarily concluded the lump was a benign, fatty lobule. Dr. May then physically palpated the lump and performed some additional scanning. Nothing seen or felt in these additional steps changed Dr. May's initial diagnosis. Russell asked whether she required a biopsy, and Dr. May told her she did not. Dr. May instructed Russell to return in five years if nothing changed but to follow up right away with Dr. Goering if Russell noticed any changes in her breasts.

Dr. May's office sent Dr. Goering, as the referring physician, copies of the imaging reports. In part, the written report stated: "The palpable abnormality correlates with a fatty lobule." The report also indicated "[t]here is no sonographic evidence of malignancy." Dr. Goering did not follow up with Russell.

Several months later, Russell saw Victoria Kindel, M.D., a board-certified obstetrician/gynecologist for a routine well-woman exam. Russell testified, "I told Dr. Kindel that I had found the lump in August. And that I had gone for a mammogram and ultrasound. And Dr. May didn't think it was anything to worry about." During cross-examination, Russell specified that she told Dr. Kindel the lump was benign:

"Q: [I]s it true that you told Dr. Kindel that you had done this mammogram, and that it was reported to you, between that and the ultrasound, as being benign.

"A: Yes.

"Q: Or no cancer ?

"A: Yes."

Dr. Kindel, who did not receive a copy of Dr. May's report, testified that Russell reported the results of the mammogram were benign and she relied on Russell's oral report. Dr. Kindel, however, did palpate the lump as part of her exam. She described her finding to the jury: "Right breast inspection normal palpation, size two by two centimeters, mass is mobile and nontender. Nipples normal, no nipple discharge." Dr. Kindel did not find the lump clinically suspicious. Nevertheless, Dr. Kindel suggested to Russell that if she continued to feel anxious, Russell should see a surgeon for a biopsy. Dr. Kindel provided the names and telephone numbers of two surgeons she recommended for a biopsy. Dr. Kindel did not insist Russell seek follow-up care, and Russell did not contact either surgeon.

One year later, Russell again saw Dr. Kindel for her annual, routine well-woman exam. Dr. Kindel examined Russell's breasts, noting a "fullness" in the 10 o'clock position of the same breast where the lump had previously been reported. The parties dispute whether Dr. Kindel encouraged Russell to visit Dr. Goering for a follow-up mammogram if she remained concerned.

Russell noticed the lump began to grow in the summer of 2010. She then called Dr. Goering's office and spoke with Dr. Goering's nurse. Dr. Goering, who had not had any contact with Russell over the two-year period, ordered diagnostic testing. Another radiologist in Dr. May's practice group biopsied the lump, leading to the diagnosis of invasive ductal carcinoma. Dr. Goering's nurse contacted Russell with the diagnosis and referred

400 P.3d 654

Russell to a physician for treatment. Eventually, Russell went to M.D. Anderson, a cancer center in Houston. Russell's treatment included chemotherapy, a total mastectomy with auxiliary lymph node dissection, and post-mastectomy radiation. Russell's treating physician at M.D. Anderson estimated there was a better than 90% chance Russell's cancer was completely eradicated.

After Russell filed suit against Drs. Goering, May, and Kindel and the parties conducted discovery, the district court entered a pretrial order setting out Russell's allegations against each of the physicians. Subsequently, each physician filed a motion for summary judgment. The district court granted partial summary judgment to both Drs. Goering and Kindel. After those orders, only one allegation remained against Drs. Goering and Kindel: They had failed "to recommend biopsy or additional, timely evaluation, even in the face of a reported normal imaging study." The order listed 13 contentions of negligence against Dr. May.

After Russell's case-in-chief, each of the physicians asked for judgment as a matter of law under K.S.A. 2016 Supp. 60-250(a). The district court denied the motions of Drs. Kindel and May but granted Dr. Goering's motion and dismissed her from the lawsuit. The trial continued on the claims made against Drs. May and Kindel. Ultimately, the jury returned a verdict that found neither Dr. May nor Dr. Kindel at fault for denying Russell a substantial chance for better recovery or long-term survival.

Focusing on the facts that relate to Dr. Goering's motion for judgment as a matter of law, Russell had presented expert testimony from Dr. James Edney, a surgical oncologist. Dr. Edney described some of the different conditions that may be felt during a breast examination. He compared a lipoma, a benign fatty tumor, which would feel soft like the fleshy part of a hand, with cancer, which would feel hard like a knuckle. Dr. Edney testified that Dr. Goering breached the standard of care because she should have recognized that Dr. May's diagnosis of a fatty lobule was inconsistent with Dr. Goering's physical examination, in which she had felt a firm lump. According to Dr. Edney's direct testimony, the inconsistency required Dr. Goering to act: to either immediately arrange a biopsy or to schedule a follow-up visit to determine whether the lump remained after a period of two to three months. If the lump persisted and was still detectable after that period, in Dr. Edney's opinion, Dr. Goering should have ordered a biopsy to determine whether the lump was cancerous. Russell also submitted into evidence a learned treatise that supported Dr. Edney's conclusion that follow-up was required. As we will discuss in more detail, Dr. Edney's answers on cross-examination somewhat altered the opinions he had given on direct examination.

The district court did not find this...

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