Schmidt v. Shearer

• Decision Date: 30 December 1999
• Docket Number: No. 79,395.,79,395.
• Citation: 26 Kan. App.2d 760,995 P.2d 381
• Parties: CAPRICE D. SCHMIDT, Individually, and as Special Administrator of the Estate of CLAUDE SCHMIDT, Deceased, Appellant, v. JACK R. SHEARER, C.R.N.A.; DAVID A. BRIAN; WESTERN PLAINS REGIONAL MEDICAL CENTER; and ST. FRANCIS REGIONAL MEDICAL CENTER, Appellees.
• Court: Kansas Court of Appeals

26 Kan. App.2d 760

995 P.2d 381

CAPRICE D. SCHMIDT, Individually, and as Special Administrator of the Estate of CLAUDE SCHMIDT, Deceased, Appellant, v. JACK R. SHEARER, C.R.N.A.; DAVID A. BRIAN; WESTERN PLAINS REGIONAL MEDICAL CENTER; and ST. FRANCIS REGIONAL MEDICAL CENTER, Appellees.

No. 79,395.

Court of Appeals of Kansas.

Opinion filed December 30, 1999.

Randall E. Fisher, of Law Offices of Randall E. Fisher, of Wichita, and Arden J. Bradshaw, of Bradshaw, Johnson & Hund, of Wichita, for appellant.

Don D. Gribble, II, and Donald N. Peterson, II, of Kahrs, Nelson, Fanning, Hite & Kellogg, L.L.P., of Wichita, for appellee St. Francis Regional Medical Center.

William R. Smith, of Law Office of Wm. R. Smith, of Wichita, for appellee David A. Brian, M.D.

Before BRAZIL, C.J., GERNON and GREEN, JJ.

GERNON, J.:

Caprice Schmidt, individually and as special administrator of the Claude J. Schmidt estate, (Schmidt) appeals the verdict finding David A. Brian, M.D., 1% at fault for her husband's death. Schmidt also appeals the dismissal of St. Francis Regional Medical Center (St. Francis) from the case upon summary judgment motion. Claude Schmidt began having severe nose bleeds. He was treated by Dr. Brian, a licensed specialist of otorhinolaryngology (ear, nose, and throat). Non-surgical procedures did not help, and Schmidt submitted to surgery. The anesthesia was administered by a certified registered nurse anesthetist, Jack Shearer.

Soon after surgery, Claude bit down on the tube supplying oxygen to his lungs. Since his nose was blocked from the surgery, his only air passage was through this tube. Shearer removed the tube from Claude's throat and then attempted, unsuccessfully, to ventilate him, using a bag and a mask. After several attempts to ventilate Claude, Shearer called Dr. Brian back into the operating room. Dr. Brian returned immediately and performed a tracheostomy.

Claude never regained consciousness and was transferred from Dodge City to St. Francis Medical Center in Wichita. Claude was eventually placed on a sleep apnea monitor. Claude later quit breathing, and the hospital staff attempted to resuscitate him until ordered not to by his wife. Claude died.

Schmidt filed a lawsuit in Sedgwick County against Dr. Brian, Shearer, Humana Hospital in Dodge City, and St. Francis, alleging medical malpractice and wrongful death. St. Francis was granted summary judgment on Schmidt's claims and on its counterclaim for medical costs. Thereafter, the remaining defendants sought a transfer to Ford County, and the Sedgwick court granted their motion.

The Ford County court found Shearer to be negligent per se. Near the trial date, Schmidt settled with Shearer and Humana Hospital.

Schmidt proceeded to trial against Dr. Brian. A jury found Dr. Brian to be 1% at fault and Shearer to be 99% at fault. The jury awarded $445,000 in damages. Schmidt appeals.

Summary Judgment to St. Francis

Schmidt claims the trial court improperly granted summary judgment in favor of St. Francis.

"`Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A defendant is entitled to summary judgment if the defendant can establish the absence of evidence necessary to support an essential element of the plaintiff's case.'" Hesler v. Osawatomie State Hospital, 266 Kan. 616, 622, 971 P.2d 1169 (1999) (quoting Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 [1998]).

This court will review a trial court's summary judgment decision de novo. See Hare v. Wendler, 263 Kan. 434, 439, 949 P.2d 1141 (1997).

Schmidt asserts a medical malpractice claim against St. Francis, which requires the same elements of proof as any negligence action. See 263 Kan. at 440. To establish a claim of negligence, a plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Hesler, 266 Kan. at 623. Generally, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation. Hare, 263 Kan. at 440.

Schmidt claims that the apnea monitor was not functioning properly or the volume on its alarm had been turned too low to alert hospital employees. In granting St. Francis' motion for summary judgment, the trial court ruled that there was no evidence to support Schmidt's claim and that she had failed to establish specific facts to show that St. Francis' response time was inappropriate. This is a negative finding. The court pointed to Schmidt's deposition testimony in which she stated that for all she knew, she and/ or the staff at St. Francis Regional Medical Center were alerted immediately after her husband quit breathing.

In her deposition, Schmidt admitted that she was light sleeper and was constantly aware of anything going on in her husband's room. Schmidt also admitted that the apnea monitor had awakened her and that hospital staff responded immediately when she called for help. Finally, Schmidt admitted that she was only speculating as to whether the volume on the apnea monitor had been turned down and whether that had made any difference at all in delaying resuscitation efforts. Beyond her mere speculation, Schmidt failed to offer any evidence that the monitor had been turned down. Furthermore, her testimony contradicts her claim that the volume had been turned down because she acknowledged that the monitor woke her up and alerted her to Claude's condition. Without evidence to establish that the alarm had sounded for an extended period before waking her, Schmidt has failed to establish the element of causation.

Schmidt argues that Claude's gray color proves that the alarm had been sounding for a period of time. Schmidt, however, failed to offer any expert evidence establishing the causation between lack of oxygen and turning gray. Expert testimony is required to establish this causal link, and the common knowledge exception does not apply. See Hare, 263 Kan. at 440.

Because St. Francis established that Schmidt had no evidence necessary to support the essential element of causation, we conclude that the trial court properly granted its motion for summary judgment. See Hesler, 266 Kan. at 622.

Transfer To Ford County

After the Sedgwick County District Court granted St. Francis summary judgment on Schmidt's claims and St. Francis' counterclaims, the remaining defendants moved for a change of venue to Ford County. The allowance or refusal of a motion for change of venue rests within the sound discretion of the trial court. Cessna Aircraft Co. v. Metropolitan Topeka Airport Authority, 23 Kan. App.2d 1038, 1056, 940 P.2d 84, rev. denied 262 Kan. 959 (1997).

Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the view taken by the trial court. Hawkinson v. Bennett, 265 Kan. 564, 591, 962 P.2d 445 (1998).

The trial court based its decision to change venue on K.S.A. 60-608, which provides in pertinent part:

"If, before trial of an action on the merits is commenced, a party with reference to whom venue was determined ceases to be a party and venue would no longer be proper as to the remaining parties, on the application of any remaining party promptly made, the cause shall be transferred to a county of proper venue. If there is more than one such county, the transfer shall be to a county selected by the plaintiff." (Emphasis added.)

The court determined that St. Francis was no longer a party to the action and that K.S.A. 60-603 and K.S.A. 60-604 did not properly establish venue in Sedgwick County for the remaining defendants. The court also found that Schmidt's "wrongful death cause of action arose in the county where the alleged negligent acts of the remaining defendants occurred, Ford County, Kansas."

Schmidt asserts four arguments to support her claim that the Sedgwick County court improperly granted the defendants' motions. First, Schmidt argues that the defendants failed in meeting their burden to establish a factual basis for the venue change. Second, K.S.A. 60-608 does not apply because St. Francis continued to be a party to the lawsuit. Third, Schmidt argues that venue was proper in Sedgwick County because Claude's death occurred there. Fourth, Schmidt argues that the other defendants were transacting business in Sedgwick County.

Schmidt correctly cites Lambertz v. Abilene Flour Mills Company, Inc., 209 Kan. 93, 97, 495 P.2d 914 (1972), for the proposition that the party seeking the change of venue bears the burden of establishing a basis for the transfer. Her argument that the defendants failed to establish the proper factual basis, however, overlooks the evidence before the court.

The primary fact necessary for the application of K.S.A. 60-608 is the summary judgment decision in favor of St. Francis. The defendants' motions properly noted this fact for the court. In addition, the defendants' motions included facts establishing the county where the alleged negligent acts occurred, thus providing a factual basis for determining venue based on where the cause of action arose.

Next, Schmidt asserts that St. Francis continued to be a party to the action. K.S.A. 60-608 requires that there be a substantial claim against a party in order for venue to be dependent on that party. The determination of whether a substantial claim exists against a defendant is within the discretion of the trial judge. Fredricks v. Foltz, 221 Kan. 28, 33, 557 P.2d 1252 (1976). The Fredricks court upheld a trial court's ruling that a summary judgment decision in favor of a defendant eliminated any substantial claims against that defendant. 221 Kan. at 33. Schmidt argues that K.S.A. 60-611 does not require...