Thomas v. Sifers

• Decision Date: 21 December 2007
• Docket Number: No. 07-2005-JWL.,07-2005-JWL.
• Citation: 535 F.Supp.2d 1200
• Parties: Carla THOMAS, Plaintiff, v. Timothy M. SIFERS, M.D., P.A. and Timothy L. Sifers, as the Executor of the Estate of Timothy M. Sifers, M.D., Defendants.
• Court: U.S. District Court — District of Kansas

535 F.Supp.2d 1200

Carla THOMAS, Plaintiff, v. Timothy M. SIFERS, M.D., P.A. and Timothy L. Sifers, as the Executor of the Estate of Timothy M. Sifers, M.D., Defendants.

No. 07-2005-JWL.

United States District Court, D. Kansas.

December 21, 2007.

Ashley L. Ricket, Leland F. Dempsey, Dempsey & Kingsland, P.C., Kansas City, MO, for Plaintiff.

Barbara K. Christopher, Jessica J. Shaw, Horn, Aylward & Bandy LLC, Kansas City, MO, for Defendants.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

This lawsuit arises from complications following a bariatric weight reduction surgery that was performed on plaintiff Carla Thomas by Timothy M. Sifers, M.D., who is now deceased. Ms. Thomas alleges that Dr. Sifers was supposed to perform the surgery using a new technique called the duodenal switch, a procedure that is allegedly associated with fewer complications than older weight loss procedures, but that Dr. Sifers actually performed an unrecognized and unknown variation of a much older procedure and, as a result, Ms. Thomas suffered severe complications. Ms. Thomas asserts claims against Dr. Sifers' medical practice and his estate (collectively referred to as Dr. Sifers) for fraud, negligence, battery, and a violation of the Kansas Consumer Protection Act. This matter is currently before the court on defendants' Motion for Summary Judgment (doc. # 33) based on the applicable statutes of limitations. For the reasons explained below, the court will deny the motion as to plaintiff's fraud and negligence claims, and will grant the motion as to plaintiffs battery and Kansas Consumer Protection Act claims.¹

STATEMENT OF MATERIAL FACTS²

Plaintiff Carla Thomas originally scheduled to undergo a gastric bypass procedure with another physician to alleviate serious health problems associated with her morbid obesity, including a pseudotumor cerebri. On February 28, 2001, her mother called her and said she had seen a Healthwatch report on her local news station that featured Dr. Sifers as performing a new and revolutionary weight loss surgery in Kansas City called the duodenal switch. In the segment, Dr. Sifers spoke about a "new" weight reduction procedure that allows patients to eat whatever they want and still lose weight while having few side effects. Ms. Thomas's mother called and discussed the surgery with her because she knew that Ms. Thomas was already scheduled to undergo the gastric bypass. Ms. Thomas and her mother, sitting together, called Dr. Sifers' office to set up a consultation appointment for Ms. Thomas.

During the consultation on March 5, 2001, Dr. Sifers represented to Ms. Thomas in consultation and in the presence of her mother that he would perform the new weight reduction surgery upon her, the duodenal switch, the same procedure that he had previously represented on the Healthwatch segment that he could perform. He told her that she did not want to have the gastric bypass she had previously scheduled with another surgeon because if she did she could gain her weight back, her stomach would stretch out, she would go blind, and then she would die from complications related to her pseudotumor cerebri. Dr. Sifers told her that he was familiar with her pseudotumor cerebri and that his duodenal switch surgery was actually a treatment for it because she would lose the weight with his procedure and keep it off, unlike the gastric bypass. After the consultation, Ms. Thomas cancelled the appointment she had previously scheduled to undergo the gastric bypass with another physician and she scheduled to have Dr. Sifers perform the new procedure.

Prior to the surgery, Dr. Sifers and his staff informed Ms. Thomas that there would be several probable but temporary side effects that would diminish after the first six months following her surgery. Dr. Sifers told Ms. Thomas that gallstones, poor sugar and fat absorption, reflux, diarrhea, and bowel odor were all probable results of the surgery, but that these would only be temporary side effects that would otherwise subside over time. Ms. Thomas understood that one, of the benefits of the duodenal switch surgery would be the avoidance of "dumping syndrome."³ Dr. Sifers advised her that as long as she avoided sugary foods and ate a lot of protein, she could otherwise eat whatever she wanted. He told her that she would lose weight and never gain it back as long as she didn't "Sit around all day drinking Coke and eating Hershey's Kisses."

The surgery was performed on March 19, 2001. Dr. Sifers contends that he performed a biliopancreatic diversion. In support of this, he points out that prior to her surgery Ms. Thomas signed a consent authorizing him to perform a "binary [sic] pancreatic diversion with partial gastrectomy" and that his operative notes list the operation performed as "[b]iliopancreatic diversion." Ms. Thomas, on the other hand, contends that Dr. Sifers performed an unknown and unrecognized procedure despite his representations that he would perform the duodenal switch procedure. She also points out that his standing orders for her suggest that he was performing the duodenal switch, as those orders are entitled "Standing Orders for Vertical Banded Gastoplasty and Duodenal Switches" and they state as follows: "For duodenal switches: patient will receive½ golytely prep and Reglan 10mg from office." Regardless of the parties' dispute about the nature of the procedure actually performed, it is uncontroverted that, unbeknownst to Ms. Thomas, Dr. Sifers did not perform the duodenal switch or even the biliopancreatic diversion with duodenal switch. Ms. Thomas was discharged from the hospital on March 23, 2001.

Ms. Thomas suffered from a number of complications following the surgery. Dr. Sifers' motion for summary judgment is grounded in the notion that by the end of 2003 she had begun experiencing a multitude of health problems beyond what she associated with the duodenal switch procedure. For example, she had to have her gall bladder and appendix removed; she had; incisional hernias repaired; she was not able to eat anything she wanted, and in fact, even drinking water caused her to experience diarrhea; she would vomit whenever she tried to eat steak, rice, or pasta; she suffered dry, flaky, pale skin; she experienced constant hunger; she had headaches; she had hair loss; she experienced dental problems, including a cracked tooth; she had poor sleep patterns; she had diarrhea continuously and that diarrhea, which she thought would last no more than three to six months post-operatively, was actually worse six months after surgery; she suffered six to eight anal fissures; she has had vomiting and nausea constantly; she had fainting spells; she was diagnosed with acute anemia; she had low blood pressure; she developed hypothroidism; she began having heart palpitations; she developed shortness of breath; she suffered from fatigue; she suffered from the daily effects of "dumping syndrome" in that she has more than ten bowel movements a day and all-over aches, cramps, and tenderness; and she suffered a "horrid" increase in the frequency and odor of her bowel movements and gas. Her health problems were so severe that she considered surgical' reversal of her weight loss procedure as early as April of 2003. When she inquired of Dr. Sifers about the possibility of a reversal, he advised her that she did not want her weight loss procedure reversed because she would gain her weight back, go blind, and die.

Dr. Sifers saw Ms. Thomas for a total of fifteen follow up visits for a period of over three and a half years on the following dates: April 4, 2001, May 2, 2001, June 25, 2001, August 27, 2001, October 24, 2001 February 21, 2002, April 23, 2002, July 23, 2002, October 22, 2002, November 15, 2002, March 20, 2003, March 23, 2004, October 6, 2004, October 12, 2004, and October 14, 2004. Dr. Sifers never told Ms. Thomas at any of those visits that he had not performed the duodenal switch as he had promised. Instead, he told her it was normal for her to vomit after eating steak, rice, or pasta immediately after her surgery. He repeatedly told her that the diarrhea was not a result of her surgery and that she needed to research her family history for a possible explanation. He went on to suggest colitis as the cause of her diarrhea and stated that diarrhea was not something caused by the surgery. He told her that her anemia was not typical and was not a result of the surgery; he told her that something else must be going on and she should check her family history for an explanation. He told her that her headaches were a result of her anemia. He told her that her hair loss was a normal and temporary condition following weight loss surgery and that she should eat more protein. He said her diarrhea was causing her anal fissures. He also told her that her nausea and vomiting must be the result of another condition and she needed to research her family history to find the cause. He told her that her fainting spells were not typical and were not a result of the surgery. In sum, he always told Ms. Thomas each time she came to him with complaints that the symptoms she was experiencing were either normal or not a side effect of her weight loss surgery, and that she should check her family history for an explanation.

During one of the follow-up visits with Dr. Sifers after her surgery, Ms. Thomas noticed that he wrote the term "BPD" in her chart. She asked Dr. Sifers what the abbreviation meant and Dr. Sifers told her that BPD/DS was another name for the duodenal switch, that it was "easier to say," and that she should tell her doctors that she received the biliopancreatic diversion with duodenal switch or BPD/DS. In fact, he specifically testified in his deposition that he "wasn't making a distinction at all at that time about the two [meaning the biliopancreatic diversion and the duodenal switch]. As a matter of fact, [he] was even calling the procedure a duodenal switch...