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Watkins v. McAllister11/15/2002
e apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.' [Citation omitted.]" Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 ).
A medical malpractice claim requires the same elements of proof as any negligence action: (1) the existence of a duty; (2) breach of that duty; (3) injury; and (4) a causal connection between the duty breached and the injury suffered. Schmidt v. Shearer, 26 Kan. App. 2d 760, 764, 995 P.2d 381 (1999). Expert testimony is required in medical malpractice cases to establish the applicable standard of care and to prove causation. 26 Kan. App. 2d at 764. An exception to this requirement arises in cases where the lack of reasonable care or the existence of causation is apparent to the average layman from common knowledge or experience. Hare v. Wendler, 263 Kan. 434, 440, 442, 949 P.2d 1141 (1997). Here, Watkins does not dispute the district court's finding that the common knowledge exception did not apply to relieve him of the duty to provide expert testimony regarding causation.
The sequence of events pertaining to Dr. Abrams' participation in the case is important. Dr. Abrams first stated his opinion by letter, the relevant portions of which were as follows:
"None of these physicians apparently recognized the warning signs that this man could easily have a serious process in his lumbosacral spine that threatened the integrity of the Cauda Equina. Accordingly, he was not treated and a considerable delay ensued. It was only when he saw Dr. Sergio Delgado and had the MRI and was referred to Dr. Ebeling that he received appropriate diagnosis and treatment. The delay in his treatment resulted in a Cauda Equina syndrome.
"In conclusion, therefore, I believe that this patient's care from these three physicians, Dr. McCallister , Dr. Desai, and Dr. McGovern, was below the standard of care and resulted in increased injury to his Cauda Equina. This conclusion is with a reasonable degree of medical certainty."
The deposition of Dr. Abrams was taken almost 2 years after he wrote the letter. In his deposition, Dr. Abrams testified the opinions stated in his letter addressed only the issue of whether the defendants deviated from the applicable standard of care. He explicitly testified he was without the necessary medical information to determine whether the defendants' breach of the standard of care and the resulting delay in treatment caused any injury to Watkins. Further, Dr. Abrams explicitly stated he was unable to assess at what point Watkins' injury would have been salvageable from a use standpoint.
More than a month later, Dr. Abrams signed an affidavit stating he had reviewed his deposition testimony, and his opinions concerning the defendants' actions and inactions as Watkins' treating physicians remained the same as those stated in his letter.
Watkins' current attempt to use Dr. Abrams' affidavit in conjunction with the letter to establish a genuine issue of a material fact must fail. Watkins attempts to explain away Dr. Abrams' deposition testimony to the extent it differs from statements made in the letter, by claiming counsel for the defendants engaged in "word games" with Dr. Abrams during the deposition. A review of the portions of the deposition contained in the record reveals no such questionable conduct.
It is clear Dr. Abrams' deposition testimony clarified the nature and extent of the opinions previously provided by letter. His subsequent affidavit contained no legal or factual justification for departure from t
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