Walters v. St. Francis Hosp. and Medical Center, Inc., 76638

• Court: Court of Appeals of Kansas
• Writing for the Court: Before MARQUARDT, P.J., GREEN, J., and CAROL BACON; MARQUARDT
• Citation: 932 P.2d 1041,23 Kan.App.2d 595
• Parties: Larry R. WALTERS, Appellant, v. ST. FRANCIS HOSPITAL AND MEDICAL CENTER, INC., Appellee.
• Docket Number: No. 76638,76638
• Decision Date: 28 February 1997

Page 1041

932 P.2d 1041 23 Kan.App.2d 595 Larry R. WALTERS, Appellant,
v.
ST. FRANCIS HOSPITAL AND MEDICAL CENTER, INC., Appellee. No. 76638. Court of Appeals of Kansas. Feb. 28, 1997.
Review Denied April 30, 1997.

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Syllabus by the Court

1. To recover for 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. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.

2. A possessor of land is subject to liability to invitees for physical harm caused to them by failing to carry on activities with reasonable care for their safety if, but only if, the possessor should expect that the invitees will not discover or realize a danger or will fail to protect themselves against it.

3. Generally, a possessor of land is under no duty to remove known and obvious dangers.

4. Ordinary and reasonable care does not require a hospital to warn an invitee that he or she might have an adverse reaction to witnessing a medical procedure.

Alan G. Warner, Amy C. Bixler, and Margaret A. Graham of Warner, Bixler and Associates, L.L.C., Topeka, for appellant.

Thomas L. Theis and Jeffrey W. Jones of Sloan, Listrom, Eisenbarth, Sloan & Glassman, L.L.C., Topeka, for appellee.

Before MARQUARDT, P.J., GREEN, J., and CAROL BACON, District Judge, Assigned.

MARQUARDT, Presiding Judge:

Larry R. Walters fainted and was injured at St. Francis Hospital and Medical Center, Inc., (St.Francis) while his fiancee, Mary Beth Burkett, was being treated.

Burkett was treated in St. Francis' emergency room and later admitted. Walters accompanied Burkett to her room. Burkett's treatment required insertion of a nasogastric tube. Prior to the tube [23 Kan.App.2d 596] being inserted, a nurse explained the procedure to Burkett and Walters, who was standing at the side of Burkett's bed.

Before the procedure to insert the tube was even started, Burkett became distraught and began to scream. After a second attempt to insert the tube was unsuccessful, a nurse explained the procedure to Burkett and Walters again.

Burkett asked a nurse if Walters could stay and hold her hand during the next attempt to insert the tube, and Walters agreed to stay. In his deposition, Walters testified that "the nurse just asked me if I would ... just help calm [Burkett] down and make sure she didn't move so much." The trial court found that "[i]t is disputed whether [Walters] merely held Ms. Burkett's hand or if he was also requested to restrain her during the procedure."

It is uncontroverted that Walters held Burkett's hand while the tube was successfully inserted. After the procedure, Walters either said that he did not handle sickness well or that he was not feeling well. Walters sat down in a chair near Burkett's bed, propped his elbows on his legs, and rested his head in his hands for a couple of minutes. Walters then rose from the chair, walked out of the room to the nurses' station, and stood there for a few moments, laying his head in his hands on the station's counter. Walters was asked if he was all right, and he replied that he was.

While standing at the nurses' station, Walters lost consciousness and fell to the floor. Walters was immediately treated and then admitted to St. Francis as a patient, having suffered a head injury that required brain surgery. Walters does not allege any negligence

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in the care that he received after his fall.

In granting St. Francis' motion for summary judgment, the trial court held that no reasonable person could conclude that St. Francis breached any duty to Walters. Additionally, the trial court held that the cause of Walters' injury was his decision to stay in the room with Burkett during the procedure and to then "wander the halls of the hospital while feeling ill," concluding that the requirement of proximate cause was not met.

Walters argues that the trial court erred in finding that no reasonable person could conclude that St. Francis breached any duty to him. St. Francis frames this issue differently and responds with [23 Kan.App.2d 597] a threshold issue that it did not owe any legal duty to protect Walters from fainting while he accompanied a patient at the hospital.

The pivotal questions in this case are whether St. Francis owed a duty to Walters and, if so, what was the scope of that duty and was it breached? These issues have not been previously decided by Kansas appellate courts.

Summary judgment is appropriate when the documents on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. K.S.A. 60-256(c); Boulanger v. Pol, 258 Kan. 289, 295, 900 P.2d 823 (1995).

In Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993), the court stated:

" 'In a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the 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. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.' Honeycutt v. City of Wichita, 251 Kan. 451, Syl. p 8, 836 P.2d 1128 (1992).

The trial court, and this court on appeal, first must determine whether a duty exists. Without a duty, there can be no breach to support a plaintiff's claim. Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989)."

At trial, St. Francis argued that the case should be treated as a medical malpractice action while Walters argued that he should be considered a business invitee and, therefore, premises liability law should apply. The trial court held that premises liability law applied. We agree.

Walters does not claim medical malpractice. In order to prevail in a medical malpractice action in Kansas, a plaintiff must prove the following three elements: "(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury...