Smelko By and Through Smelko v. Brinton
| Decision Date | 17 July 1987 |
| Docket Number | No. 59850,59850 |
| Parties | Robert SMELKO III, a minor, By and Through Robert R. SMELKO II, his father, and Rebecca A. Smelko, his mother, both natural guardians and next friends, and Robert R. Smelko II, and Rebecca A. Smelko, individually, Plaintiffs-Appellees, v. E. Holmes BRINTON, M.D.; Celeste A. Genilo, M.D.; and Minor Surgery Center of Wichita, Inc., a corporation, Defendants-Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Evidence relevant only to the issue of liability and not relevant to damages is inadmissible when liability has been admitted.
2. Evidence which, although relevant to liability, is also relevant to the extent of damages is admissible even though liability has been admitted.
3. Where a charge of excessive verdict is based on passion or prejudice of the jury but is supported solely by the size of the verdict, the trial court will not be reversed for not ordering a new trial, and no remittitur will be ordered unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court.
4. A parent has no cause of action for his or her emotional injuries against one who negligently causes injury to a child when the parent is not present at the scene, is not directly injured, and neither witnesses nor perceives the occurrence causing injury to the child.
Leonard R. Frischer, of Turner and Boisseau, Chartered, of Wichita, argued the cause, and Eldon L. Boisseau, of the same firm, was with him on the briefs for the defendants-appellants.
Arden J. Bradshaw, of Post, Syrios & Bradshaw, of Wichita, argued the cause, and Bradley Post, of the same firm, was with him on the brief for the plaintiffs-appellees.
This is a medical malpractice action. Robert Smelko III, a three-month-old child, sustained second- and third-degree burns from a heating pad on which he was placed during surgery for repair of an inguinal hernia. Plaintiffs are the minor child (Bobby) and his parents, Robert Smelko II and Rebecca Smelko. Defendants are E. Holmes Brinton, M.D., the surgeon; Celeste Genilo, M.D., the anesthesiologist; and Minor Surgery Center of Wichita, Inc., where the surgery was performed. Shortly before trial, defendants admitted liability and the case went to trial before a jury in Sedgwick County District Court on the issue of damages. The jury returned a verdict for the minor plaintiff in the sum of $400,000 and for the parents for $2,250. The defendants and the parents appeal.
Defendants contend that the trial court erred in receiving into evidence the heating pad which caused the burns and an enlargement of the warning attached to the pad, in permitting the parents to recover for losses incidental to their son's injury, and in denying defendants' motion for a new trial; that plaintiffs' closing argument was improper and prejudicial; and that the verdict was excessive and a product of passion and prejudice. The parents, by cross-appeal, contend that the trial court erred in holding that they could not recover for their emotional distress.
The facts are not disputed. In January 1984, when Bobby Smelko was about three months old, the family doctor, Cathy Woodring, M.D., diagnosed a right inguinal hernia and recommended that it be surgically corrected. She referred the Smelkos to a surgeon, E. Holmes Brinton, M.D. Dr. Brinton confirmed Dr. Woodring's diagnosis. Surgery was scheduled for January 17, 1984, at the Minor Surgery Center in Wichita.
Bobby was admitted to the Minor Surgery Center at 6:26 a.m. Dr. Brinton arrived at 7:15. The anesthesia was started at about 7:40 and continued until 8:50. Bobby's parents were in the waiting room during the surgery. When the surgery was completed, Dr. Brinton informed the parents that it had been successful. At about 9:10 a.m., the parents were informed that Bobby was awake in the recovery room and they could go and see him. They heard Bobby screaming as soon as they Bobby screamed all the way home and continued to scream at home despite repeated efforts to calm him. Finally, even though his diaper was dry, his mother decided to change it, thinking it may have been too tight over the stitches. When she removed the diaper, she discovered large blisters on his buttocks which were discharging blood and water. The parents immediately called the Minor Surgery Center, and were told to contact Dr. Brinton. At about 1:30 or 2:00 p.m., Dr. Brinton examined Bobby, and instructed the parents to take him to Wesley Medical Center. Bobby was admitted to the hospital about 3:00 p.m., where he was examined and treated by Dr. Tobin, a resident physician. Bobby had deep second- and third-degree burns covering 75% of the left and 90% of the right buttocks.
entered the recovery room. He continued to scream despite his mother's continuous efforts to calm him. The nurses told the parents that crying was normal after surgery and that they could take him home. Mrs. Smelko testified that Bobby wasn't just crying, he was screaming.
The burns were apparently caused by a heating pad which was placed under Bobby during the hernia surgery to keep him warm. The Center owned two heating pads, which were identical, and one of the two was used during the surgery. The pad was set up by the circulating nurse in the operating room at the request of the anesthesiologist, Dr. Celeste Genilo. The nurse who diapered Bobby in the operating room after the surgery didn't notice anything unusual about his buttocks. The third-degree burns, however, were coagulation type burns. The prolonged exposure to the heat caused clotting in the veins and arteries so that oxygen could not pass. The cells then died over a period of time. The death of the cells would not be noticeable for three to four hours after exposure to the heat.
After Bobby was admitted to the hospital, Dr. Tobin ordered six milligrams of Demerol to be administered every three hours as needed for pain; Betadine soaks three to four times daily, or with each diaper change, whichever was more frequent; and application of Silvadine ointment following the Betadine soaks. Demerol is a narcotic pain reliever, and Betadine is an iodine solution.
On January 23, Norman K. Pullman, M.D., a plastic surgeon, was brought into the case. He determined that, because most of the burns were third-degree burns, they would require grafting at a later date. The graft was postponed to allow the second-degree burns to begin to heal. Dr. Pullman recommended that the burned area be left uncovered to promote healing and decrease the risk of infection, and he recommended continuation of the Betadine baths. Around January 25, a less potent drug, Phenergan, a sedative, was substituted for the Demerol for pain management.
The skin graft was performed on February 1, and Dr. Pullman termed it a success. The top layer and part of the second layer of the skin from Bobby's back, adjacent to the burn area, were utilized in the graft. The Betadine and ointment treatments continued after the graft, and Phenergan and Tylenol were prescribed for pain. Bobby was finally released from the hospital on February 23, 1984.
Bobby's mother stayed with him at the hospital throughout his stay, going home only about ten times during the five-week period. Bobby's father stayed as much as his work would permit, approximately fourteen hours every day. The parents administered the Betadine baths whenever they were there. His mother testified that Bobby screamed during each bath and would try "to get away" whenever he saw the green tub containing the Betadine solution. Dr. Pullman testified that burns are painful injuries and verified that even a three-month-old infant is capable of feeling pain. He also testified that second-degree burns are particularly painful because nerve endings are exposed; the more serious third-degree burns are less painful because the nerve endings have been destroyed.
Betadine swabs were still required after Bobby's release from the hospital and he could not wear a diaper for the next month. Even after he could wear diapers, Mrs Dr. Pullman continued to see Bobby until October 17, 1985, when he determined that the grafts were soft and pliable, and nothing further could be done. The scars are permanent, and will grow proportionately to Bobby's body. The grafted skin is less resistant to normal wear and tear than normal tissue; there is no oil or sweat secretion, and it will be dryer and less elastic than normal tissue. Given the location, the grafts will cause no specific limitations on Bobby's activities.
Smelko had to change him within ten to fifteen minutes after each urination or bowel movement, or his buttocks would get raw and red. This continued for over a year. She also continued to apply A & D Ointment to the area to keep the skin from drying out, and was still using it at the time of trial.
Defendants first contend that the trial court erred in admitting evidence on the issue of defendants' liability, since the defendants had admitted liability and the case was to be tried solely on the issue of damages. Specifically, they contend that the trial court erred in admitting into evidence the heating pad which caused Bobby's burns and an enlargement of a warning found on the heating pad. The warning said:
Prior to trial, defendants admitted liability and sought to exclude from evidence...
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