Wentling v. Medical Anesthesia Services, P.A.

• Citation: 701 P.2d 939,237 Kan. 503
• Decision Date: 21 June 1985
• Docket Number: No. 56984,56984
• Parties: Rocky A. WENTLING, individually and as parent and natural guardian of Rocky Wentling and Shane Wentling, both minors, Appellee, v. MEDICAL ANESTHESIA SERVICES, P.A., A Kansas Corporation, Appellant.
• Court: United States State Supreme Court of Kansas

Page 939

701 P.2d 939

237 Kan. 503

Rocky A. WENTLING, individually and as parent and natural guardian of Rocky Wentling and Shane Wentling both minors, Appellee, v. MEDICAL ANESTHESIA SERVICES, P.A., A Kansas Corporation, Appellant.

No. 56984.

Supreme Court of Kansas.

June 21, 1985.

Syllabus by the Court

1. In a wrongful death action seeking pecuniary damages under K.S.A. 60-1904 for loss of services, care and guidance (as more fully described in the opinion), plaintiff is deemed to have satisfied his burden of proof by showing the nature and extent of his losses, and the triers of fact are presumed to be capable of converting the losses into monetary equivalents on the basis of their own experience and knowledge.

2. When a plaintiff in a wrongful death action has shown the actual loss of such statutory elements of damage as services, care and guidance and the extent thereof, the jury is not precluded from considering such loss in arriving at its verdict, even though actual dollar evidence of value has not been presented.

3. K.S.A. 60-471 (as it existed prior to repeal by the 1985 Legislature) is unconstitutional as a violation of equal protection of law as guaranteed by both the United States and Kansas Constitutions.

Larry Shoaf of McDonald, Tinker, Skaer, Quinn & Herrington, P.A., Wichita, argued the cause and was on briefs for appellant.

Bradley Post and Arden J. Bradshaw of Post, Syrios & Bradshaw, Wichita, argued the cause and were on brief for appellee.

Charles R. Hay of Goodell, Stratton, Edmonds & Palmer, Topeka, was on brief for the amici curiae the Kansas Hosp. Ass'n and the Kansas Medical Society.

Mark B. Hutton of Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, was on brief for the amicus curiae Kansas Trial Lawyers Ass'n.

HOLMES, Justice:

This is a wrongful death action based upon defendant's medical malpractice in improperly administering a spinal anesthetic to plaintiff's decedent. Medical Anesthesia Services (M.A.S.) admitted liability, and trial proceeded on the issue of damages only. The jury returned a verdict in favor of plaintiff in the amount of $786,166.64. The trial court denied defendant's motion for new trial, and this appeal followed. As defendant admitted 100% responsibility for the unfortunate death the facts need not be set forth in detail.

Plaintiff Rocky A. Wentling (Rocky, Sr.) was the husband of Joetta Kay Wentling. They were married May 10, 1975, and their first child, Rocky Shawn Wentling (Rocky Jr.), was born September 10, 1977. Rocky, Jr. was a Down's syndrome child, and after his birth most of Joetta's time and energies were spent caring for him. Around February, 1979, Joetta became pregnant again and experienced an uneventful pregnancy. Labor began November 16, 1979, and she entered St. Joseph Medical Center in Wichita. Her labor progressed normally, and an epidural anesthetic (.25% Marcaine) was administered. Later that morning it was discovered the baby was emerging "brow first," and Joetta was informed the medical personnel were going to perform a Caesarian section to deliver the child. She was taken to the operating room about 11:00 a.m. and nurse anesthetists employed by defendant M.A.S. administered a spinal anesthetic of .75% Marcaine without the presence of a doctor and apparently without any doctor's order. The anesthetic caused Joetta to vomit and resulted in immediate seizures, cardiac arrest and a loss of consciousness. A code blue issued and the child, Shane Adair Wentling, was delivered by emergency C-section. Joetta remained in a coma until November 20, 1979, when she was pronounced dead at the age of 22. The child, Shane Adair, was a healthy normal baby and apparently has none of the problems suffered by his older brother.

Rocky, Sr. filed this action on April 20, 1981, individually and as the parent and natural guardian of his two sons. The named defendants were: St. Joseph Medical Center; Donald M. Bebak, M.D., anesthesiologist; Medical Anesthesia Services, P.A.; and Rudolfo O. Almonte, M.D., Joetta's obstetrician/gynecologist. However, St. Joseph, Bebak and Almonte were dismissed from the action after M.A.S. admitted 100% liability. Additional facts will be presented as necessary to resolve the issues on appeal.

Defendant has phrased its first issue on appeal as whether the trial court erred in "allowing the jury to consider certain elements of plaintiff's damage prayer as unlimited damages in the absence of sufficient evidence to establish a pecuniary loss." Defendant asserts the issue is primarily one of whether he met his necessary burden of proof. At the outset, plaintiff contends defendant's present challenge to instruction No. 9 was not raised below in a timely manner and therefore may not now be entertained on appeal unless the instruction is clearly erroneous under K.S.A. 60-251(b). While it is true that defendant has switched its argument from one in the trial court of failure to use the words of the statute to one in this court of improper classification of certain elements of damage, we deem it appropriate to address the issue raised by defendant, although ordinarily the objections actually made before the jury retires may not be molded into a substantively different challenge on appeal. See Thompson v. General Finance Co., Inc., 205 Kan. 76, 93, 468 P.2d 269 (1970). Instruction No. 9 given to the jury below was based upon PIK Civ.2d 9.30, 9.31 (1981 Supp.), and reads as follows:

"Your verdict must be for the plaintiffs, and two types of damages shall be allowed, as follows:

"Limited Damages. Limited damages include mental anguish, suffering, bereavement, loss of society, and loss of companionship which you find has been and will be sustained by Rocky Shawn Wentling and Shane Adair Wentling, the children of Joetta Kay Wentling, and by Rocky A. Wentling, husband of Joetta Kay Wentling, who was killed. For these items of damage you may not allow more than $25,000 which is a limitation set by the legislature.

"Unlimited Damages. There is no legislative limit on the amount you may allow for unlimited damages. This type of damage includes all items listed below:

a) For Rocky Shawn Wentling and Shane Adair Wentling:

1) Loss of services, attention, parental care, advice, and protection.

2) Loss of educational, physical, and moral training and guidance.

3) Loss of financial support which you find the deceased would have provided.

4) Expenses for the care of the deceased caused by the injury and funeral expenses b) For Rocky A. Wentling:

1) Loss of services, attention, marital care, advice, and protection.

2) Loss of earnings you find the deceased would have provided.

3) Expenses for the care of the deceased caused by the injury and funeral expenses.

"Unlimited damages must relate to a loss of money, or something by which money or something of money value may be acquired.

"For these items of damage you should allow an amount which you believe will fairly compensate their losses already sustained or which you believe will be sustained in the future.

"The amount of recovery for the above items may not exceed $2,500,000, the amount claimed by the plaintiffs." (Emphasis added.)

Defendant contends the three italicized clauses of the "unlimited damages" instruction were error because they were supported by "absolutely no evidence of pecuniary loss" as to those items and therefore should have been included in the limited damages portion of the instruction and made subject to the $25,000.00 limitation set by statute for nonpecuniary damages.

The jury verdict awarded plaintiff $25,000.00 in limited damages and $761,166.64 in unlimited damages. Defendant concedes there was actual dollar evidence supporting $586,071.00 of pecuniary loss and therefore contends that the verdict for pecuniary loss or unlimited damages was excessive. We do not agree.

At the time of trial the controlling statutes were K.S.A. 60-1903 and 60-1904. K.S.A. 60-1903 provided:

"Amount of Damages. In any such [wrongful death] action, the court or jury may award such damages as are found to be fair and just under all the facts and circumstances, but the damages, other than pecuniary loss sustained by an heir at law, cannot exceed in the aggregate the sum of twenty-five thousand dollars ($25,000) and costs." (Emphasis added.)

K.S.A. 60-1904 provided in part:

"Elements of damage. Damages may be recovered for, but are not limited to: mental anguish, suffering, or bereavement; loss of society, companionship, comfort, or protection; loss of marital care, attention, advice or counsel; loss of filial care or attention; and loss of parental care, training, guidance, or education, and the reasonable funeral expenses for the deceased."

Defendant does not contend instruction No. 9 was improper as a matter of law, but that it was improper in this case because plaintiff did not present any evidence of the dollar amount of pecuniary loss as to items (a)(1), (a)(2) and (b)(1), which will hereafter be referred to in the aggregate as "services, care and guidance." Hence, these items should have been included under the limited or nonpecuniary category of the instruction. In support of this contention defendant relies heavily on our decision in McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982).

McCart was a consolidated wrongful death action arising from a two-vehicle accident in which five children were killed. Among the issues raised on appeal were the nature and amount of the damages allowable under the July 1, 1975, amendment to K.S.A. 60-1903. Based on the statutory distinction between pecuniary loss and nonpecuniary loss, we held that a jury should not award as damages one blanket sum of money, but should separately state the award granted for each of the two categories of damages, so the court could determine whether there was compliance with the $25,000 limitation on nonpecuniary loss imposed by statute. We said:

"On reading the statute certain questions...