|||IN THE SUPREME COURT OF THE STATE OF KANSAS
|||September 21, 2001
|||AUDRA NICHOLE NOLD, A MINOR, BY AND THROUGH HER PARENTS, NATURAL GUARDIANS,
AND NEXT FRIENDS, JOSEPH C. NOLD AND BONNIE B. NOLD. PLAINTIFF/APPELLEE
KERNIE W. BINYON, M.D.; ERIC PEKARSKI, D.O.; PHILIP C. JAMES, M.D.; DEFENDANTS, AND MICHAEL P. BROWN, M.D.; JAMES M. DONNELL, M.D.; SCOTT E. MOSER, M.D.; DEFENDANTS/APPELLANTS, AND HCA HEALTH SERVICES OF KANSAS, INC., A KANSAS CORPORATION, D/B/A WESLEY MEDICAL CENTER, DEFENDANT/APPELLEE
|||SYLLABUS BY THE COURT
|||1. An appellant bears the burden to compile a record on appeal sufficient
to support its arguments, not those of its opponents.
|||2. Where reasonable minds might differ on the existence or extent of a
defendant's liability, judgment as a matter of law under K.S.A. 2000 Supp.
60-250 is unavailable.
|||3. As a matter of law, a physician who has a doctor-patient relationship
with a pregnant woman who intends to carry her fetus to term and deliver
a healthy baby also has a doctor-patient relationship with the fetus.
|||4. As a matter of law, a pregnant woman is entitled to be informed if
medical test results reveal that she has a communicable disease that can
be transmitted to her baby during labor and delivery.
|||5. In order to recover damages in a medical malpractice case, a plaintiff
is required to prove the following elements: (1) The defendant owed plaintiff
a duty of care and was required to meet or exceed a certain standard of
care to protect plaintiff from injury; (2) the defendant breached this duty
or deviated from the applicable standard of care; and (3) plaintiff was
injured and that injury proximately resulted from the defendant's breach
of the standard of care.
|||6. The question of whether a duty exists is a question of law.
|||7. Negligence is never presumed and may not be inferred merely from a
lack of success or an adverse result from treatment. The plaintiff in a
medical malpractice case bears the burden of showing not only the defendant's
negligence, but that the negligence caused the plaintiff's injury. The standard
of medical or hospital care that is to be applied in any given case is not
a rule of law, but a matter to be established by the testimony of competent
|||8. The expert testimony requirement in medical malpractice cases is particularly
apt in the current managed care environment, populated as it is by family
practice "gatekeepers" and the specialists to whom they refer
patients for care and from whom they receive referrals for more routine
tests and procedures. This arena is not static. A common-law court needs
to turn a receptive ear to societal changes while safeguarding traditional
tort concepts that exist to protect injured persons.
|||9. In a first impression medical malpractice case arising in a managed
health care environment from the pregnancy of a hepatitis B positive patient
and delivery of a hepatitis B positive daughter, brought by the parents
on behalf of their daughter, alleging that defendant physicians and a hospital
were negligent in the care and treatment of the mother and daughter, the
record is examined and it is held:
|||(1) The district court erred in: (a) excluding proffered testimony of
plaintiff's expert medical witness on the breach of the standard of care
of defendant hospital's nurses; (b) sustaining the defendant hospital's
K.S.A. 2000 Supp. 60-250 motion for judgment as a matter of law; and (c)
instructing the jury as a matter of law on certain duties owing from defendant
physicians to plaintiff.
|||(2) On retrial, expert standard of medical care testimony may be introduced
on plaintiff's claims concerning: (a) the defendant physicians' failure
to report to plaintiff's mother her hepatitis B test result; (b) the adequacy
of the reporting of her test result to other physicians, the hospital, and
the local health department; (c) the failure of plaintiff to receive the
post-delivery hepatitis B inoculation and vaccination; and (d) the hospital's
duties under the existing circumstances.
|||(3) The case is reversed and remanded for further proceedings consistent
with this opinion.
|||Christopher A. McElgunn, of Klenda, Mitchell, Austerman & Zuercher,
L.L.C., of Wichita, argued the cause, and Gary M. Austerman and Mary T.
Malicoat, of the same firm, were with him on the briefs for appellant Scott
E. Moser, M.D. Stephen L. Brave, of Turner & Boisseau, Chtd., of Wichita,
argued the cause, and Eldon L. Boisseau, and Bobby J. Heibert, Jr., of the
same firm, were with him on the brief for appellant Michael P. Brown, M.D.
Harold S. Youngentob, of Goodell, Stratton, Edmonds & Palmer, L.L.P.,
of Topeka, argued the cause, and Laura B. Lawson, of the same firm, was
with him on the briefs for appellant James M. Donnell, M.D. John H. Gibson,
of Boyer, Donaldson & Stewart, L.L.P., of Wichita, argued the cause,
and Michelle M. Watson, of the same firm, was with him on the brief for
appellee Wesley Medical Center. Arden J. Bradshaw, of Bradshaw, Johnson
& Hund, of Wichita, argued the cause, and James R. Howell, of the same
firm, was with him on the brief for appellee Audra Nold.
|||The opinion of the court was delivered by: Six, J.
|||Appeal from Sedgwick district court; D. KEITH ANDERSON, judge.
|||Reversed and remanded.
|||This first impression medical malpractice action arises from the pregnancy
of Bonnie Nold and the later birth of her daughter Audra Nold. Joseph and
Bonnie Nold, Audra's parents, on her behalf, alleged that certain physicians
and a hospital were negligent in their care and treatment of Bonnie and
Audra. We consider, in a managed care environment, the duty owed by the
mother's physicians and the delivery hospital to the baby of a mother who
intends to carry the fetus to term. We also consider the reporting responsibilities
of physicians whose pregnant patient tests positive for hepatitis B.
|||Bonnie is not asserting a personal claim for damages. The jury returned
a verdict for Audra and awarded damages totaling $800,000, apportioning
negligence as follows: Dr. Scott Moser, 90 percent; Dr. James Donnell, 6
percent; Dr. Michael Brown, 2 percent; and Dr. Ernie Binyon, 2 percent.
Three of the physician defendants, Drs. Moser, Donnell, and Brown, appeal.
At the close of Audra's case, defendant HCA Health Services of Kansas, Inc.,
d/b/a Wesley Medical Center (Wesley), was dismissed on its motion for judgment
as a matter of law. See K.S.A. 2000 Supp. 60-250 (formerly motion for directed
verdict). The jury assessed zero fault to Eric Pekarski, D.O.; Katie Mroz,
M.D.; Philip C. James, M.D.; and "unknown physician." Mroz and
the "unknown physician" were not defendants; James' motion for
summary judgment was granted before trial.
|||Our jurisdiction is under K.S.A. 20-3017 (the defendants' motion to transfer
|||We reverse, set aside the jury's verdict, and remand for a new trial.
The district court erred in excluding certain expert testimony regarding
the comparative fault of Wesley and in sustaining Wesley's K.S.A. 2000 Supp.
60-250 motion for judgment as a matter of law. We also disapprove the submission
of an overly broad jury instruction setting forth a physician's reporting
duty to: (1) other physicians and the hospital, (2) public agencies, and
(3) the pregnant patient, as well as the length of time that duty would
|||Because of our reversal and remand we need not reach the following additional
issues raised on appeal by the physician defendants: Did the district court
err: (1) in allowing certain claims for future medical care and treatment
to be submitted to the jury; (2) in allowing a claim for future lost wages,
loss of earning capacity, loss of career opportunity, and employment disability
to be submitted to the jury; and (3) by precluding the doctors from comparing
the fault of Bonnie? The evidence underlying the district court's decision
on these issues may be subject to change. Defendant Moser also asks us to
evaluate this case as if it were a "loss of chance" case. The
case had neither been framed nor tried as a loss of chance case; thus, this
issue is not properly before us. See, Jarboe v. Board of Sedgwick County
Comm'rs, 262 Kan. 615, 622, 938 P.2d 1293 (1997).
|||The focus of all of Audra's claims is on the failure to notify Bonnie
of her hepatitis B status and to administer gamma globulin and vaccine treatment
to Audra at the time of her birth. While pregnant, Bonnie was treated by
numerous physicians. Laboratory test results obtained early in her pregnancy
showed she was a carrier of hepatitis B, although she was asymptomatic and
experienced no related health problems. A carrier, during pregnancy and
delivery, can pass hepatitis B to her child. That happened here. Audra did
not receive the necessary preventive treatment and has tested positive for
the presence of hepatitis B surface antigens and is a chronic carrier. As
of trial, she had none of the identifiable risk factors for more severe
stages of hepatitis B and had remained asymptomatic and without physical
problems related to her status as a carrier.
|||In order to better understand the parties' contentions, and because Audra's
claims arise within the current environment of managed care, we set out
the facts in detail. We understand there is no universally accepted definition
of "managed care." See Stephen M. Fatum, Managed Care, in Health
Care Law Desk Reference § 501, p. 59 (Alison Barnes et al. eds., 2001).
We use the term here to reflect Bonnie's referrals by her primary care physicians
to specialists under her Equicor Health Plan, Inc., and to the specialists'
referrals to and/or use of the primary care physicians for specific tests
and lab work.
|||In February 1990, Bonnie was under the care of Dr. Kernie Binyon, a family
practice physician. She became pregnant and was referred by Dr. Binyon to
Dr. Michael Brown, a board-certified obstetrician and gynecologist. On February
12, 1990, during Bonnie's first visit, Dr. Brown ordered laboratory tests,
including one for hepatitis B. Those orders were given to Bonnie, who took
them to Dr. Binyon's office. Dr. Binyon's staff drew blood samples and transmitted
them to a laboratory for testing. The laboratory sent the results to Dr.
Binyon's office, which then sent them to Dr. Brown. Included in the test
results was a report dated February 20, 1990, which showed that Bonnie tested
positive for hepatitis B. Neither Dr. Brown nor Dr. Binyon informed Bonnie
of the results of this test.
|||During Bonnie's second visit to Dr. Brown, he requested a sonogram because
he believed her growth was a bit abnormal. Due to managed care insurance
constraints, Dr. Brown had to have a referral from Dr. Binyon. Dr. Binyon
refused to provide the sonogram referral. Dr. Brown elected to terminate
his doctor-patient relationship with Bonnie, still in her first trimester
of pregnancy, because he said he could not properly treat her without conducting
tests he believed necessary to protect her health and the health of the
|||Bonnie then sought the care of another physician. She first terminated
her doctor-patient relationship with Dr. Binyon and requested that he forward
her medical records to Dr. James Donnell. On March 30, 1990, Dr. Donnell
became Bonnie's primary care physician under her Equicor Health Plan. Sometime
between March 30, 1990, and May 22, 1990, Dr. Binyon's office delivered
Bonnie's medical records to Dr. Donnell. Included within those records was
the laboratory test result on Bonnie's positive hepatitis B status. Shortly
after March 30, 1990, Dr. Donnell, a family practice physician who had chosen
to limit his practice to non-obstetrical cases, referred Bonnie to Dr. Scott
Moser for obstetrical care.
|||Despite the referral to Dr. Moser, Bonnie visited Dr. Donnell's office
five times before giving birth to Audra:
|||(1) March 30, 1990;
|||(2) May 22, 1990, for lab work requested by Wesley Family Practice/ Dr.
|||(3) July 2, 1990, for additional lab work;
|||(4) July 17, 1990, for RhoGAM shots ordered by Wesley Family Practice/Dr.
|||(5) August 21, 1990, for more lab work ordered by Wesley Family Practice/
Dr. Moser. Dr. Donnell never reviewed the hepatitis B test result nor advised
Bonnie or later health care providers of her hepatitis B status.
|||Dr. Moser, a physician certified in family practice, made obstetrics an
active part of his practice. He first saw Bonnie on April 11, 1990, when
she was 18 weeks pregnant. On that visit Dr. Moser decided that a sonogram
would be helpful and requested her medical records from Dr. Brown. After
Dr. Moser received the medical records, he noted and entered the hepatitis
B information in Bonnie's chart. Dr. Moser's standard practice in the care
of hepatitis B positive pregnant women is to enter the information at a
prominent place in the medical record. He does this so that at the time
of delivery anyone involved in the mother's care will be aware of her hepatitis
B status and ensure that the child receives appropriate treatment. He testified
that he believed he entered the information sometime after the initial visit
on April 11, 1990, and before Bonnie's May 16, 1990, visit. Dr. Moser testified
that he recalled telling Bonnie about her hepatitis B status and advising
her of the implications it would have for her fetus, but he was not sure
when the conversation took place. Bonnie testified Dr. Moser did not tell
her about her positive hepatitis B test or its implications for the fetus.
|||Dr. Moser testified that a patient's prenatal records are customarily
sent to the delivering hospital at about 34 to 36 weeks' gestation. In 1990,
the labor, delivery, and recovery unit (LDR) at Wesley had an established
policy and procedure. Once prenatal records were received from a patient's
physician, they were sent directly to the LDR and placed in alphabetical
order in a filing cabinet. The records were filed by the unit clerks as
the records came into the unit. When the patient was later admitted to the
hospital, the unit clerk would retrieve the patient's prenatal history from
the filing cabinet, put it with the chart that was being assembled upon
admission, and deliver the chart to the physician who was handling the labor
|||Wesley would stamp all records within a chart with "address-o-graph"
information. The address-o-graph stamp included the patient's hospital stay
number, name, birthday, date of admission, and the date Wesley received
the record. This procedure ensured that such information was on every piece
of permanent record within the hospital and that the information would follow
the patient through the course of her care and treatment at Wesley.
|||Bonnie's prenatal records from Dr. Moser were stamped with an address-o-graph,
showing that Wesley received the records. However, the only date that appeared
in the address-o-graph information was Bonnie's September 14, 1990, admission
date. At trial, Wesley personnel testified that, despite the professed practice
of stamping records with the date they are received, the information concerning
the receipt of the records is inaccurate and unreliable.
|||The last entry on the copy of Dr. Moser's prenatal records from the hospital
file was made on August 30, 1990. The original prenatal records maintained
by Dr. Moser in his office contain a later entry made on September 11, 1990.
It is therefore likely that the prenatal records from Dr. Moser were sent
to Wesley sometime before September 11, 1990.
|||After a baby is born, Wesley's standard practice is to place information
in the mother's chart in the medical chart for the baby. Dr. Moser expected
the standard practice to occur in Bonnie and Audra's case. He assumed that
the hepatitis B information would find its way in a timely manner to the
appropriate caregivers for Audra, including her designated pediatrician.
The pediatrician could then provide Audra with appropriate care and treatment
to prevent hepatitis B transmission.
|||In 1990, Dr. Eric Pekarski was a resident physician at Wesley training
to become a specialist in family medicine. He is now board certified in
Family Practice. During his residency, he practiced under the supervision
of residency program faculty members. On the night of September 14, 1990,
between 9:40 and 10 p.m., Dr. Pekarski was called to the LDR. Dr. Pekarski
examined Bonnie, determined she was in active labor, contacted his attending
physician, Dr. Katie Mroz, and agreed with Dr. Mroz that Bonnie should be
|||In admitting a patient, as part of his duties as a resident, Dr. Pekarski
completed a Resident Admission Note consisting of the patient's history.
Included within the Resident Admission Note is a section for major medical
illnesses. The resident doctor obtains the information to complete that
section by asking the patient. Dr. Pekarski followed his general practice
of completing the Resident Admission Note and then delivering it to the
unit clerk to be placed in Bonnie's chart. Dr. Pekarski did not review Dr.
Moser's prenatal records when filling out the Resident Admission Note.
|||It was Dr. Pekarski's practice to check in with his attending physician
when he was providing care to a patient. Dr. Mroz, a physician in Dr. Moser's
office, was on weekend call for Dr. Moser on that particular Friday night.
Dr. Pekarski's practice of consulting with the attending physician was intended
at least in part to find out any information about risk factors, including
any information in the prenatal records. Thus, Dr. Mroz played a role in
the process of putting together the chart for Bonnie.
|||Dr. Moser arrived at the hospital at 11:06 p.m. By the time Dr. Moser
arrived, Bonnie was already in the delivery room, the baby was having distress,
and delivery was imminent. The fetal heart tones were dangerously slow,
suggesting that the baby's health might be compromised and that the baby's
condition was not improving. Because of the emergency situation, Dr. Moser
immediately focused on the distressed baby and did not review Bonnie's prenatal
records. Forty-four minutes after Dr. Moser's arrival, Audra was delivered
by Cesarean section, and Dr. Moser helped with the efforts to resuscitate
|||In emergencies such as Bonnie's, Dr. Moser and other physicians rely on
the records system to make sure that the transfer of information from the
mother's prenatal records to the baby's chart takes place. As part of this
record transfer system, Dr. Moser relied primarily on Dr. Mroz and Dr. Pekarski.
Dr. Mroz remained at the hospital through the delivery despite Dr. Moser's
arrival and was actively involved in the delivery.
|||Dr. Moser testified that typically he is both the mother's doctor and
the baby's doctor. As the baby's doctor, he would order the hepatitis B
inoculation and vaccination needed by the baby of a hepatitis B positive
mother. However, in this instance, Dr. Pekarski was covering for the baby's
designated pediatrician, Dr. Phillip James. Thus, Dr. Moser did not order
post-delivery treatment for Audra.
|||Dr. Pekarski handled Bonnie's discharge from the hospital on September
7, 1990. On October 9, 1990, he dictated a discharge summary, reviewing
her medical chart in its entirety. Dr. Pekarski's discharge summary did
not contain information either that Bonnie is hepatitis B positive, or that
Audra was born to a hepatitis B positive mother. At trial, Dr. Pekarski
testified that Dr. Moser's prenatal records were not in Bonnie's hospital
medical chart at the time she presented to the LDR, when he reviewed it
while providing her care, or at the time he dictated her discharge summary.
|||It is recommended that a gamma globulin injection be given to an infant
exposed to hepatitis B within the first 12 hours after birth. However, the
gamma globulin treatment is still effective if administered up to and perhaps
beyond 2 days after birth. The hepatitis B vaccine is also given to such
a baby within the first week of life. When this treatment is administered,
there remains a 10 percent chance that the newborn will contract hepatitis
|||In 1992, Bonnie underwent a hysterectomy. During the procedure, a nurse
was stuck with a needle that had been used on Bonnie. As a result, Bonnie's
blood was tested again. She was advised that she had tested positive for
hepatitis B, that it was an infectious disease obtained through intimate
contact, and that she should have her family tested. Afterward, Audra was
tested and found to be hepatitis B antigen positive.
|||The Comparative Fault of Wesley Medical Center
|||The physician defendants contend the district court erred by excluding
the testimony of Audra's expert, John Bundren, M.D., on the breach of the
standard of care by Wesley's nurses. See K.S.A. 60-258a (comparative negligence).
The district court found Dr. Bundren was not qualified to testify on the
nursing standard and granted Wesley's motion for judgment as a matter of
law at the close of Audra's case because of the lack of expert testimony.
We agree with defendants.
|||The admission of expert testimony lies within the discretion of the district
court, and its decision will not be reversed on appeal absent a showing
of abuse of discretion. Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735,
762, 915 P.2d 86 (1996).
|||Wesley filed a motion in limine, requesting that the district court exclude
the testimony of Dr. Bundren concerning nursing standards. Wesley points
out that the limine motion, the supporting trial brief, and its motion to
strike Dr. Bundren as an expert on nursing standards are not included in
the record on appeal. According to Wesley, these submissions are "vital"
to our review, and the appellants carry the burden to include them in the
record on appeal. The appellants bear the burden to compile a record sufficient
to support their arguments, not those of their opponents. Wesley had the
opportunity to request additions to the record to support its arguments.
See Supreme Court Rule 3.02(c) (2000 Kan. Ct. R. Annot. 21). It also had
the ability to address arguments it advanced below in its appellate briefs.
We conclude the question is properly before us on the record as it stands.
|||The defendants argue that Dr. Bundren's more than 20 years of experience
as an obstetrician/gynecologist in labor and delivery qualified him to testify
on the standards applicable to nurses in labor and delivery units, particularly
with respect to the review and maintenance of chart information on patients'
infectious diseases. Dr. Bundren testified he had "[w]orked with .
. . nurses on a daily or weekly basis in multiple sites across the country."
He answered "yes" to the following question from Audra's counsel:
"Before I ask your opinions are you knowledgeable concerning the general
standard for how nurses in a labor and delivery unit would handle prenatal
records coming in from a doctor from the point of being received and getting
into the chart?"
|||K.S.A. 60-419 says in part:
|||"As a prerequisite for the testimony of a witness on a relevant or
material matter, there must be evidence that he or she has personal knowledge
thereof, or experience, training or education if such be required. Such
evidence may be by the testimony of the witness himself or herself."
|||K.S.A. 60-456(b) says:
|||"If the witness is testifying as an expert, testimony of the witness
in the form of opinions or inferences is limited to such opinions as the
judge finds are (1) based on facts or data perceived by or personally known
or made known to the witness at the hearing and (2) within the scope of
the special knowledge, skill, experience or training possessed by the witness."
|||A further review of Dr. Bundren's qualifications is appropriate. He is
on the faculty of the University of Oklahoma College of Medicine, in the
Department of Gynecology and Obstetrics. He is a board certified OB-GYN
specialist and a tenured associate professor. He does a substantial amount
of private practice. His focus currently is on the hospital's infertility
patients. He is actively involved in teaching the 16 OB-GYN residents who
work with him in the operating room and in his private practice office in
the hospital. It is not uncommon for him to spend weekends in the hospital
with residents delivering babies and managing obstetrical complications
and problems. He sees private patients in his office and probably delivers
the babies of 20 private patients a year. He is involved in about 200 deliveries
a year as a resident supervisor or helper, and it has been that way for
many years. He is familiar with high-risk obstetrical situations. He teaches
residents about how to handle obstetrical situations and problem patients
on a weekly basis in the clinic with patients. He has published and does
research. He attends meetings of the American College of Obstetrics and
Gynecology, which promotes national standards to make obstetrical care safe
across the country. In his dealings with pregnant women over the years,
he has considered the hepatitis B problem.
|||Dr. Bundren also has been involved with teaching nurses. He has given
numerous lectures to nurses and worked with them on various aspects of patient
care in hospitals. He is on the staff of various medical centers in Tulsa
and is familiar with labor and delivery unit standards for handling patient
records as they come in and are put into patients' charts.
|||The critical passage in the proffer of Dr. Bundren's testimony reads:
|||"Q: . . . [D]id you form an opinion as to whether the labor or any
of the labor and delivery nurses at Wesley were negligent in any respect
and fell below the standard acceptable nursing practice?
|||"A: I did form an opinion.
|||"Q: And what is that opinion?
|||"A: My opinion is that the nurses failed to follow their own policies
and procedures. They failed to adequately assess the patient and document
on their nurses assessment that the patient was hepatitis B surface antigen
positive and failed to transmit that information on to the nursery nurses
which is the usual means by which that information is moved around.
|||"Q: You're referring to that nursing admission assessment?
|||"A: I'm referring to the nursing admission assessment and the documents
and testimony that I became aware of.
|||"Q: Can you tell us whether the nurses doing that function, that
is adding the hepatitis B information from the prenatal record to the nursing
assessment records, would be a standard thing for nurses to do?
|||"A: That would be a very standard thing for nurses to do.
|||"Q: You hold those opinions to a degree of medical probability?
|||"A: Yes, sir."
|||Dr. Brown joined in the proffer, and this preserved the issues of Dr.
Bundren's testimony and Wesley's dismissal for our review. The district
judge excluded Dr. Bundren's testimony because he viewed Dr. Bundren as
a physician who merely worked around nurses and not as one who possessed
actual nursing expertise. We hold the district court erred as a matter of
law in excluding Dr. Bundren's testimony on the general standard of care
commonly applicable to nurses in labor and delivery units, particularly
with respect to the review and maintenance of prenatal chart information.
|||We visited the medical expert nursing standard of care question in Avey
v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 422 P.2d
1013 (1968). Avey supports defendants' contention that the district court
abused its discretion in excluding Dr. Bundren's testimony. In Avey, we
considered whether a physician was qualified to testify to nursing standards
and hospital procedures. Avey's expert, Dr. Robert Stein, testified that
he was a licensed physician practicing medicine in Kansas, Massachusetts,
and California and that he was familiar with the nursing care standards
and practices at issue in the case. Although he had not practiced in Wichita,
Dr. Stein testified that he was familiar with the practices of St. Francis
Hospital and with nursing care in general in the community. We reversed
the district court's exclusion of Dr. Stein's testimony. 201 Kan. at 692-93.
Wesley argues that Avey is distinguishable on the facts because the challenge
to Dr. Stein's testimony was based on the "locality rule." See
201 Kan. at 690-91. Dr. Bundren's testimony was challenged on the basis
of his qualifications. We acknowledge the factual distinction; however,
we extend the discussion in Avey surrounding a physician testifying as an
expert on nursing standards to the situation here. See Chandler v. Neosho
Memorial Hospital, 223 Kan. 1, 574 P.2d 136 (1977) (following Avey); Moore
v. Francisco, 2 Kan. App. 2d 526, 583 P.2d 391 (1978) (in a malpractice
action against an orthopedic surgeon, it was error to exclude an anesthesiologist
from testifying on the standard of care in taking a patient's personal history,
a matter common to all areas of medicine).
|||Wesley cites Hall v. Sacred Heart Med. Ctr., 100 Wash. App. 53, 995 P.2d
621 rev. denied 141 Wash. 2d 1022 (2000), and Haney v. Alexander, 71 N.C.
App. 731, 323 S.E.2d 430, cert. denied 313 N.C. 329 (1985), to support its
contention that Dr. Bundren was not qualified to testify regarding nursing
standards. These citations are puzzling, as the cases seem to support the
defendants' contention that Dr. Bundren's testimony should have been admitted.
|||In Hall, the defendant hospital sought to have a doctor, who was codirector
of the hospital, testify regarding the standard of care for critical care
nurses. Hall objected on competency grounds. The hospital elicited testimony
showing that the doctor worked with ICU nurses on a daily basis, was involved
in the education and training of nurses, and was involved with the supervision
of critical care nurses. On appeal, Hall asked the appellate court to establish
a bright line rule stating that only a nurse could testify as to the standard
of care of another nurse. The Hall court refused and found the district
court had properly admitted the doctor's testimony. See 100 Wash. App. at
|||The Haney court approved the testimony of two physicians who testified
as experts on the nursing standards of care of the defendant hospital. Haney
demonstrated one doctor had day-to-day dealings with registered nurses;
taught nursing students in a clinical setting; and had worked with nurses
who had comparable training, experience, and degree qualifications as the
nurses who treated the plaintiff. 71 N.C. App. at 735-36. Haney's other
expert also taught and worked with nurses of comparable training and experience.
71 N.C. App. at 736.
|||Wesley cites Cox v. Lesko, 23 Kan. App. 2d 794, 935 P.2d 1086 (1997),
aff'd in part and rev'd in part on other grounds, 263 Kan. 805, 953 P.2d
1033 (1998), for the proposition that an expert cannot draw upon his or
her personal experience alone to formulate his or her opinion. This reliance
is misplaced. Cox found it improper for a doctor to testify regarding his
or her own preferred method of treatment in determining whether another
doctor deviated from the appropriate standard of care. 23 Kan. App. 2d at
798-99. Cox said: "The mere fact that one doctor prefers one method
over another does not, by itself, mean that approach is better or preferable
to the other." 23 Kan. App. 2d at 798. Cox is not persuasive here.
|||Dr. Moser cites K.S.A. 60-3412, which addresses the standard of care for
a practitioner of the healing arts. K.S.A. 60-3412 is not applicable here.
"A nurse is commonly understood, as reflected in our statutory definition
of nursing, to be a person who works in the same area as and under the supervision
of a physician or other practitioner of the healing arts." (Emphasis
added.) State Bd. of Nursing v. Ruebke, 259 Kan. 599, 627, 913 P.2d 142
(1996). A nurse is not a practitioner of the healing arts. K.S.A. 65-2872(m).
|||We have no hesitation in holding that Dr. Bundren was qualified to testify
regarding nursing standards and their breach. He has extensive experience
working in hospital labor and delivery units and is familiar with the standards
and practices applicable to nurses working in these units. He testified
that he worked on a "daily or weekly basis in multiple sites across
the country." Dr. Bundren had also taught nurses and worked with them
on various aspects of patient care in the hospitals. His testimony was well
within the scope of his "special knowledge, skill, experience or training,"
as required by K.S.A. 60-456(b). Thus, the district court erred in excluding
his expert testimony regarding nursing standards.
|||Assuming Dr. Bundren's testimony on retrial is as advertised, we also
agree with Drs. Moser and Brown that the jury should be permitted to compare
Wesley's alleged negligence. The district court's decision on Wesley's K.S.A.
2000 Supp. 60-250 motion for judgment as a matter of law, dependent as it
was on the absence of Dr. Bundren's testimony, also was error. See Morris
v. Francisco, 238 Kan. 71, 74, 708 P.2d 498 (1985). Reasonable minds might
differ on the existence or extent of Wesley's liability, making judgment
as a matter of law unavailable. The physician defendants are not precluded
from making this argument because Dr. Brown joined in the proffer of Dr.
Bundren's testimony; there was no agreement among all parties to allow Wesley's
dismissal; and all defendants included Dr. Bundren in their witness lists
by incorporating Audra's witness list. This situation is distinct from those
in Cantrell v. R.D. Werner Co., 226 Kan. 681, 602 P.2d 1326 (1979), and
Haberer v. Newman, 219 Kan. 562, 549 P.2d 975 (1976). Here, there was evidence
to support a breach of the Wesley nurses' standard of care and no acquiescence
by defendants in the result of Wesley's motion.
|||Instruction Number 15 on Physicians' Duties and Negligence
|||Audra filed a motion for partial summary judgment, in which she asked
the district court to rule that, as a matter of law, the physician defendants
providing medical care and treatment to Bonnie while she was pregnant with
Audra also owed Audra a continuing duty of care. The district court, observing
that the issue of a physician's duty to the fetus of a pregnant woman intending
to carry to term was one of "staggering proportions," entered
an extensive ruling in Audra's favor on the record. That ruling, which the
district court characterized as a "new rule of law," was the precursor
to jury Instruction No. 15, which read:
|||"The Court has ruled that there are standards that all physicians
had to follow in providing care and treatment to Bonnie and Audra Nold.
These standards have been set by the Court and no expert testimony is necessary
to establish them. They are as follows:
|||"1. When a physician undertakes health care or treatment for the
condition of a woman's pregnancy, including without limitation prenatal,
labor or delivery care, duties are assumed by the physician for reasonable
health care of the fetus or unborn child. When a physician has knowledge
or should have knowledge of the mother's communicable disease, which probably
is communicable to the unborn child during delivery, and which communication
to the child probably could have been avoided by inoculation upon birth,
he has a duty to:
|||a. advise other known health care providers furnishing the same or related
|||b. advise public agencies charged by law to be so advised; and
|||c. advise the pregnant mother of the communicable disease and its consequences
thereby arming her with the knowledge of the need for inoculation.
|||"The physician who has knowledge or should have knowledge of the
mother's communicable disease is not excused from these legal duties just
because another physician assumes primary care in his place.
|||"2. The duty to Audra, the unborn child, arose from the physicians'
duties to the pregnant expectant mother, Bonnie Nold. Those duties are to
review all medical records received, or that should have been received,
and report all unfavorable test results.
|||"3. The aforementioned duties of the physicians extend from the time
of the initiation of the medical care relationship through the time for
the effective inoculation of the baby following birth.
|||"A physician's deviation from these duties is negligence." (Emphasis
|||Defendants argue that Instruction No. 15 was in error because it outlined
a duty that was overbroad in scope and time and because it failed to factor
in expert testimony to establish a breach of duty or negligence. We agree
on both counts and note other complications.
|||In reality, Instruction No. 15 contained several "new legal rules"
that require our attention. It made an exception to the requirement of expert
testimony to establish negligence. It held that a doctor who undertakes
the duty to care for a pregnant woman who intends to carry to term necessarily
undertakes a duty to care for her fetus. When the pregnant woman may transmit
a communicable disease during labor and delivery, it extended the duty to
the fetus beyond birth and beyond termination of the doctor-patient relationship
that gave rise to the duty in the first place and beyond a referral to a
specialist or other provider. The district court held the duty did not terminate
until preventive measures were taken. The court specified that the duty
to the fetus included reviewing all of the pregnant woman's medical records
that are or should have been received and notifying other health care providers,
public agencies, and the pregnant woman of the communicable disease. Before
this case can be retried, we must address each of these new rules.
|||Necessity of Expert Testimony to Prove Negligence
|||The standard of medical or hospital care which is to be applied in any
given case is not a rule of law, but a matter to be established by the testimony
of competent medical experts. Chandler, 223 Kan. at 5. In order for Audra
to recover damages, she was required to prove all the elements of a medical
|||(1) The physicians owed her a duty of care and were required to meet or
exceed a certain standard of care to protect her from injury;
|||(2) the physicians breached this duty or deviated from the applicable
standard of care; and
|||(3) she was injured and her injury proximately resulted from the physicians'
breach of the standard of care. See Delaney v. Cade, 255 Kan. 199, 202-03,
873 P.2d 175 (1994).
|||The question of whether a duty exists is a question of law. Glassman v.
Costello, 267 Kan. 509, 521, 986 P.2d 1050 (1999). But negligence is never
presumed, Schmidt v. HTG, Inc., 265 Kan. 372, 382, 961 P.2d 677, cert. denied
525 U.S. 964 (1998), and "may not be inferred merely from a lack of
success or an adverse result from treatment. [Citation omitted.] The plaintiff
in a medical malpractice case bears the burden of showing not only the doctor's
negligence, but that the negligence caused the [plaintiff's] injury."
Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988).
Expert medical testimony is ordinarily required. Delaney v. Cade, 255 Kan.
199, 211, 873 P.2d 175 (1994).
|||We believe the expert testimony requirement in medical malpractice cases
is particularly apt in the current managed care environment, populated as
it is by family practice "gatekeepers" and the specialists to
whom they refer patients for care and from whom they receive referrals for
more routine tests and procedures. We are aware this arena is not static.
As a common-law court we need to turn a receptive ear to societal changes
while safeguarding traditional tort concepts that exist to protect injured
persons. Affirmance of the district court's Instruction No. 15 as written,
with its relaxation of the expert testimony requirement, would cast a long
precedential shadow of liability over health care providers, particularly
those who function merely as links in a referral chain required by today's
version of managed care.
|||Existence and Parameters of Physicians' Duties to a Fetus
|||Defendants acknowledge that a doctor owes a duty of care, i.e., must meet
or exceed the standard of care applicable to a given patient, once he or
she establishes a doctor-patient relationship. Dr. Donnell disputes the
district court's holding as a matter of law that a physician who establishes
a doctor-patient relationship with a pregnant woman who intends to carry
to term also establishes a doctor-patient relationship with the fetus, particularly
as applied to a referring primary care physician like himself. Drs. Moser
and Brown do not deny they had duties to Audra; however, they argue their
duties ended when their doctor-patient relationship with Bonnie terminated.
|||The first portion of the district court's holding does not trouble us
in the abstract. To the extent a pregnant woman desires to continue her
pregnancy and deliver a healthy baby at its conclusion, her interest in
receiving adequate health care is inevitably intertwined with any interest
or potential interest of her fetus. In such a situation, the patient cannot
be separated from her pregnancy nor her pregnancy from herself. We need
not look beyond this incomparable relationship that is the genesis of the
human condition. The mother who wishes to carry her pregnancy to term looks
to her physician to guide her through her pregnancy, with the ultimate goal
of the delivery of a healthy infant. Childbirth involves a universally recognized
unique relationship between mother and child.
|||Other jurisdictions have recognized the relationship between a physician
and a pregnant patient and her fetus. See Hughson v. St. Francis Hosp.,
92 App. Div. 2d 131, 132, 459 N.Y.S.2d 814 (1983) (finding "it is now
beyond dispute that in the case of negligence resulting in prenatal injuries,
both the mother and the child in utero may each be directly injured and
are each owed a duty, independent of the other"); Wheeler v. Yettie
Kersting Memorial Hosp., 866 S.W.2d 32, 44 n.16 (Tex. Civ. App. 1993) (pointing
out that Burgess v. Superior Court, 2 Cal. 4th 1064, 9 Cal. Rptr. 2d 615,
831 P.2d 1197 , noted the scope of duty owed by a treating physician
to a pregnant woman extends to the fetus and includes a duty to avoid injury
to the fetus). These decisions support our holding that a duty to the fetus
exists in the abstract.
|||The difficulty arises when we leave the abstract for the real world. Does
a referring family practice physician such as Dr. Donnell have a doctor-patient
relationship with Bonnie--and thus Audra--sufficient for a duty to arise?
Do the duties Drs. Brown and Moser admit they have to Audra extend beyond
the termination of their relationship to Bonnie? Does their knowledge of
Bonnie's communicable disease and ways to minimize the risk of its transmission
to Audra affect the answer? What are the parameters of the duty in such
|||Where a communicable disease has been diagnosed in a pregnant woman who
desires to continue her pregnancy to term and deliver a healthy baby, we
agree with the district court that the woman's physician has an obligation
as a matter of law to inform the woman of the diagnosis. See Annot., Malpractice:
Failure of Physician to Notify Patient of Unfavorable Diagnosis or Test,
49 A.L.R. 3d 501 p. 507-512, and 2001 Supp. p. 43; see also Jacobs v. Theimer,
519 S.W.2d 846, 848 (Tex. 1975) (finding that a physician was under the
duty to disclose to a pregnant woman that she had contracted rubella and
to inform her of the risk of proposed treatment in continuing the pregnancy);
Ray v. Wagner, 286 Minn. 354, 355-57, 176 N.W.2d 101 (1970) (a routine Pap
smear reported "suspicious for malignancy"; doctor tried to reach
patient to report result but she had moved without notifying the doctor
of a forwarding address, and she had no phone at her home; carcinoma of
the cervix diagnosed; doctor had a duty to take whatever steps were reasonable
to notify the patient of her test results; negligence and causation were
jury questions; jury's verdict was for the doctor).
|||Because a woman's interest in preventing the spread of a disease is intertwined
with any interest or potential interest of her fetus at that point, this
holding is consistent with the physician's tandem duty to the fetus. It
is also philosophically consistent with decisions from other jurisdictions
recognizing a doctor's duty to inform nonpatient third parties of infectious
disease to prevent its spread. See Hoffman v. Blackmon, 241 So. 2d 752,
753 (Fla. Dist. App. 1970), cert. denied 245 So. 2d 257 (Fla. 1971) (finding
the physician was liable for failing to warn family members that a patient
with a communicable disease could infect them); Moreta v. New York City
Health & Hospitals Corp., 238 App. Div. 2d 149, 149, 655 N.Y.S.2d 517
(1997) (finding that physicians owed a duty to the unborn child, where medication
was discontinued during pregnancy and resulted in the child's contracting
tuberculosis from the mother); DiMarco v. Lynch Homes-Chester County, 525
Pa. 558, 561-63, 583 A.2d 422 (1990) (finding that under Restatement [Second]
of Torts § 324A , physicians owed a duty to the boyfriend of a hepatitis
B carrier); Troxel v. A.I. Dupont Institute, 450 Pa. Super. 71, 83-84, 675
A.2d 314, rev. denied 546 Pa. 668 (1996) (finding that physicians have a
duty to third persons and must correctly inform the patient about the contagious
nature of the disease to prevent its spread to those who are within the
foreseeable orbit of risk of harm); Bradshaw v. Daniel, 854 S.W.2d 865,
872-73 (Tenn. 1993) (finding the physician had a duty to warn identifiable
third persons in the patient's immediate family of foreseeable risks associated
with Rocky Mountain Spotted Fever).
|||We also note that this court in Natanson v. Kline, 186 Kan. 393, 350 P.2d
1093 reh.'g denied, 187 Kan. 186, 354 P.2d 670 (1960), expressed an interesting
tangential observation on informing a patient. Natanson concerned an allegation
of medical malpractice where the patient consented to treatment but claimed
the nature and risks of cobalt treatment for cancer had not been explained
to her. The Natanson court said:
|||"There is probably a privilege, on therapeutic grounds, to withhold
the specific diagnosis where the disclosure of cancer or some other dread
disease would seriously jeopardize the recovery of an unstable, temperamental
or severely depressed patient. But in the ordinary case there would appear
to be no such warrant for suppressing facts and the physician should make
a substantial disclosure to the patient prior to the treatment or risk liability
in tort." (Emphasis added.) 186 Kan. at 406.
|||The other specific questions posed by this case are questions of fact
that require further development of the record on retrial. Whether all or
some of the physicians treating Bonnie failed to use the required care and
diligence in discharging their duty to inform her of her hepatitis B status
is to be decided with the aid of expert medical testimony. The jury should
be guided by the language in PIK Civ. 3d 123.01, Duty of Health Care Provider:
|||"In performing professional services for a patient, a [physician]
has a duty to use that degree of learning and skill ordinarily possessed
and used by members of that profession and of that school of medicine in
the community in which the [physician] practices, or in similar communities,
and under like circumstances. In the application of this skill and learning
the [physician] should also use ordinary care and diligence. A violation
of this duty is negligence." See also PIK Civ. 3d 123.10 (expert testimony).
|||The physician defendants will be free to argue that, once a pregnant patient
is transferred to another doctor, the transferring doctor is governed by
a different standard of care. Audra will be free to contend that a continuing
duty existed to provide treatment and care to her while in utero and at
the time of her birth. The jury will be free to decide whether the physicians
were required to act to inform Bonnie throughout the period during which
preventive steps could have been taken and whether a patient's primary care
physician continues to be responsible for the well-being of the expectant
patient and the patient's fetus, even when the patient is referred to an
obstetrical specialist. PIK Civ. 3d 123.12 relates to the duty of a medical
specialist and PIK Civ. 3d 123.13 covers the referral of a patient to another
health care provider. ("A ___ who undertakes the treatment and care
of a patient and refers the patient to a ___ for treatment and care is not
legally responsible for any negligence on the part of the ___ unless (he)(she)
has failed to exercise reasonable care in selecting the ___.") See
Stovall v. Harms, 214 Kan. 835, 522 P.2d 353 (1974); accord 2 Louisell &
Williams, Medical Malpractice ¶ 16.05(1) (2001) (liability for referrals).
|||For example, Dr. Donnell proffered the testimony of Dr. David Kingfisher.
Dr. Kingfisher, because of the district court's summary judgment ruling
leading to Instruction No. 15, was not permitted to testify. Dr. Donnell's
|||"In arguments in response to summary judgment motion of the plaintiff
with respect to duty at that time I presented to the court the opinion of
Dr. David Kingfisher and I would as a matter of judicial economy as well
as overall economy proffer that. If he was called to testify he would testify
as to the duty of Dr. Donnell and that Dr. Donnell's duty was met by properly
transferring obstetrical care of Bonnie Nold to Dr. Moser and that the patient
who is bringing this action, Audra Nold, under these circumstances was not
the patient of Dr. Donnell and he was not in a position to protect her from
the alleged injury."
|||Expert witnesses should be permitted to testify on retrial for both sides
to assist the jury in determining the contours of the doctor-patient relationship
and resulting duty in a referral system.
|||Dr. Moser's contention that he had no physician-patient relationship with
Audra following her delivery, and Dr. Brown's evidence that he ended his
doctor-patient relationship with Bonnie during the first trimester of her
pregnancy, should also be considered by the trier of fact. The effect of
the termination of Dr. Binyon's care by Bonnie also should be considered.
Whether a doctor-patient relationship exists is generally a question of
fact for the jury. Rule v. Cheeseman, Executrix, 181 Kan. 957, 964, 317
P.2d 472 (1957). A duty arises and liability may be imposed only for negligence
occurring during the doctor-patient relationship. Again, expert medical
testimony will assist the jury in resolving Audra's negligence claims under
the standard of care owing to Bonnie and Audra during the existence of each
of Bonnie's particular doctor-patient relationships.
|||Duty to Report to Public Agencies
|||Instruction No. 15 also addressed the district court's holding that Bonnie's
physicians had a duty to report Bonnie's hepatitis B status to the local
|||The version of K.S.A. 65-118 in effect in 1990 said:
|||"Whenever any person licensed to practice the healing arts . . .
knows or has information indicating that a person is suffering from or has
died from an infectious or contagious disease, such knowledge or information
shall be reported immediately to the county . . . board of health . . .
, together with the name and address of the person who has or is suspected
of having the infectious or contagious disease . . . ."
|||The Kansas Department of Health and Environment (KDHE) has adopted rules
relating to the reporting of infectious or contagious diseases. See K.A.R.
28-1-2. K.S.A. 65-101(a)(6) authorizes the Secretary of Health and Environment
to adopt rules and regulations to carry out the Secretary's 65-101(a) responsibilities,
including reporting requirements. K.S.A. 65-101(a)(1). K.A.R. 28-1-1(h)
defines "disease" as a "definite morbid process having a
characteristic train of symptoms." K.A.R. 28-1-2 lists infectious or
contagious diseases and was amended in 1990. K.A.R. 28-1-2(a) (1989) listed
hepatitis, type A (infectious), K.A.R. 28-1-2(a)(20); type B (serum), K.A.R.
28-1-2(a)(21); and type non-A non-B, K.A.R. 28-1-2(a)(22).
|||Dr. Donnell cites K.S.A.1990 Supp. 65-6004 to support his argument that
defendants had no duty to warn others of Bonnie's hepatitis B status. In
1990, 60-6004 pertained only to the reporting of AIDS test results and does
not apply here. (K.S.A. 65-6004 was amended in 1996 to include "an
infectious disease." See K.S.A. 2000 Supp. 65-6004(a)).
|||Dr. Gianfranco Pezzino, the State Epidemiologist with KDHE, a witness
for defendants, testified that in 1990 chronic hepatitis was not reportable
in Kansas and is not reportable today. He was familiar with the administrative
regulations as head of the epidemiology division of the agency charged with
adopting the regulations. Viral hepatitis on the list of reportable diseases
but not chronic hepatitis. The district court's Instruction No. 17 requested
by Audra referenced K.A.R. 28-1-2 (16), viral hepatitis. According to Dr.
Pezzino, the case definition for viral hepatitis "is an acute illness
with discrete onset of symptoms of jaundice or elevated serum enzymes."
He was reading from a "standardized case put together by the Centers
for Disease Control and Department of Epidemiology."
|||Carol Borger, R.N., administrator of the Butler County Health Department,
was a witness for plaintiffs. On cross-examination she was asked by counsel
for Dr. Brown:
|||"Q: Those forms and formats as you got in 1990 specifically pointed
out you do not report cases of chronic hepatitisor chronic carriers, isn't
that a fact?
|||"A: I believe that's what the form says."
|||We also note in the record a letter of May 27, 1992, from Keck R. Hartman,
M.D., to Larry R. Hund, M.D., reporting that Bonnie is a "hepatitis
B carrier with a positive surface antigen. I checked her enzymes and they
are normal which indicates she does not have chronic active disease."
On cross-examination Bonnie agreed that she had been told that she was symptom
free at this point in time.
|||Dr. Larry W. Rumans, who has an active practice in infectious diseases,
a witness for Audra, testified the reporting standards were generated by
KDHE, "often at the request of the Centers for Disease Control."
According to him, the reporting requirement is the same regardless of whether
hepatitis chronic or acute. He opined that the health department should
have been notified "that Mrs. Nold had chronic hepatitis B."
|||The existence or nonexistence of a reporting duty under K.S.A. 65-118
remains an issue on remand. Questions that may arise include: What type
of hepatitis did Bonnie have in 1990? What reporting did the applicable
KDHE regulation require? Is there a medical distinction between "viral"
hepatitis and "chronic" hepatitis? What significance does the
K.A.R. 28-1-1(h) definition of "disease" have? If Bonnie's hepatitis
B in 1990 was "symptom free" did she have a "disease"
under 28-1-1(h)? It would seem that if there is a medical distinction between
"viral" and "chronic," and if Bonnie's hepatitis B in
1990 was not "viral," none of the defendant physicians could have
had a K.S.A. 65-118 or K.A.R. 28-1-2(16) reporting duty. If her hepatitis
B in 1990 was "viral," it appears at least some of the defendants
would have had a reporting duty. We do not prejudge this question. Resolution
will rest with the district court, assisted by expert medical testimony
and experienced medical malpractice counsel.
|||We hold, as a matter of law, that a physician who has a doctor-patient
relationship with a pregnant woman who intends to carry her fetus to term
and deliver a healthy baby also has a doctor-patient relationship with the
fetus. We also hold as a matter of law that the pregnant woman is entitled
to be informed if test results reveal that she has a communicable disease
that can be transmitted to her baby during labor and delivery.
|||On remand, the district court will specify in the instructions the specific
allegations of negligence supported by the evidence. See Natanson v. Kline,
186 Kan. at 399. Dr. Bundren shall be permitted to testify, and Wesley shall
be included again as a defendant in the lawsuit. Expert standard of care
medical testimony may be introduced on Audra's claims concerning the defendant
physicians' failure to report to Bonnie her hepatitis B test result, the
adequacy of the reporting of her test result to other physicians and the
hospital, the failure of Audra to receive the post-delivery gamma globulin
injection and hepatitis B vaccination, and Wesley's duties under the existing
|||We cannot foresee what may occur at retrial. Defendants not involved in
this appeal as well as Wesley may be in the courtroom. The district court
will control the case as it develops after remand consistent with this decision
in ruling on motions, evidence, and instructions.
|||Reversed and remanded for a new trial.
|||MCFARLAND, C.J., not participating.
|||CAROL A. BEIER, J., assigned.*fn1
|||*fn1 REPORTER'S NOTE: Judge Beier, of
the Kansas Court of Appeals, was appointed to hear case No. 84,292 vice
Chief Justice McFarland pursuant to the authority vested in the Supreme
Court by K.S.A. 20-3002(c).
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