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Pipe v. Hamilton11/1/2002
Reversed and remanded.
Appellant James Pipe appeals the district court's grant of summary judgment in favor of appellee Dr. James J. Hamilton. The district court held that Pipe failed to establish a prima facie case of loss of chance of survival due to medical malpractice because a 5 to 10 percent chance of survival is not substantial as a matter of law. We reverse and remand.
Edwina Pipe was admitted to the hospital on May 24, 1998. Dr. Hamilton was brought in as a consultant in her case. On May 29, 1998, Dr. Hamilton operated on Edwina for small bowel obstruction. A second operation was performed on June 3, 1998, at which time Dr. Hamilton discovered gangrenous tissue. Based on the findings of the second operation, Dr. Hamilton believed Edwina's bowel to be dead. Dr. Hamilton informed James Pipe, Edwina's husband, that Edwina was only expected to live 6 to 12 hours. Based upon Dr. Hamilton's prognosis, James, acting pursuant to Edwina's living will and durable power of attorney for health care decisions, asked that life support be withdrawn. Edwina died shortly thereafter.
James Pipe filed this action against Dr. Hamilton in Shawnee County District Court on May 12, 2000. Dr. Hamilton filed a motion for summary judgment on the grounds Pipe failed to establish a prima facie case of medical malpractice or loss of chance of survival.
Pipe's expert witness, Dr. John White, testified in his deposition that it was his professional opinion that Dr. Hamilton had breached a duty of care by not performing more tests to determine if Edwina's condition was treatable. Dr. White also stated that even if Dr. Hamilton had met the standard of care required, "the likelihood that [Edwina] would have left the hospital was very small," which likelihood in terms of percentage was " rom five to ten percent at best." Dr. White believed that despite what Dr. Hamilton did regarding her care, Edwina's mortality rate was between 90 and 95 percent.
The district court granted summary judgment in favor of Dr. Hamilton, finding that Pipe had failed to set forth a prima facie case for loss of chance of survival. Pipe filed a motion for new trial and reconsideration of the decision. The motion was denied. A timely notice of appeal was filed. We have jurisdiction pursuant to K.S.A. 20-3018(c) (transfer on our own motion).
Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 2001 Supp. 60-256(c). The trial court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought. Irvin v. Smith, 272 Kan. 112, Syl. 1, 31 P.3d 934 (2001). The party opposing summary judgment has the affirmative duty to come forward with facts to support its claim, although the party is not required to prove its case. Dominguez v. Davidson, 266 Kan. 926, 930, 974 P.2d 112 (1999). In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. Friesen-Hall v. Colle, 270 Kan. 611, 613, 17 P.3d 349 (2001). Summary judgment should never be granted merely because the court believes the movant would prevail at a trial on the merits. Moran v. State, 267 Kan. 583, 590, 985 P.2d 127 (1999). On appeal, this court applies the same rules, and where it finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).
Neither party contends there is a material issue of fact in dispute. Instead, the parties take opposite positions as to whet
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