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Irvin v. Smith9/21/2001
Appeal from Sedgwick district court; TOM MALONE, judge.
Affirmed.
This is a medical malpractice action arising from an undiagnosed ventriculoperitoneal shunt malfunction which ultimately caused permanent brain damage to Ashley Irvin. Irvin and her parents filed suit against several parties. The district court granted summary judgment in favor of Dr. Richard C. Gilmartin on the basis that there was no physician-patient relationship. All of the other parties have either been dismissed or settled prior to trial, except for the suit against Dr. Lindall E. Smith. The jury returned a defendant's verdict in favor of Smith. Irvin raises several issues on appeal. Smith has also filed a cross-appeal raising two issues.
Irvin was born 6 weeks premature with hydrocephalus, a condition which required the surgical placement of a ventriculoperitoneal or "VP" shunt. The shunt is a pump with a tube. The tube extends from the brain to the abdomen. The purpose of the shunt is to drain excess cerebrospinal fluid from the skull. Once the fluid is drained from the brain, it is reabsorbed into the body through the abdomen. Without the shunt, Irvin would die. With a properly operating shunt, however, a hydrocephalic can live a normal life. The shunt was placed in Irvin at 2 days of age by her neurosurgeon, Dr. Edwin MacGee.
On October 15, 1995, 12-year-old Irvin began experiencing flu-like symptoms and seizures. She also complained of neck and back pain. On October 18, Irvin was transported by life flight from Bob Wilson Memorial Hospital in Ulysses, Kansas, to St. Luke's Hospital in Kansas City, Missouri. At St. Luke's, Irvin was examined by MacGee to determine whether the shunt was working properly. During the 12 years the shunt had been in place, MacGee had performed two other surgeries on the shunt.
On October 19, MacGee determined there was no shunt malfunction. MacGee recalled speaking to an unidentified radiologist about the shunt. The radiologist told him that there was at least 2 inches of shunt tubing remaining in the abdomen. Dr. Karen Divelbiss, who did the official read of the shunt series, reported nothing wrong with the shunt. On October 21, Irvin was discharged and went home. The x-rays taken at St. Luke's, however, revealed at trial that the distal end of the shunt tubing had pulled up into the abdomen wall due to Irvin's growth, intermittently blocking the flow of cranial fluid into the abdominal cavity.
On October 23, 1995, MacGee wrote Dr. Michael Shull, Irvin's pediatrician in Garden City, Kansas, and told him that the "shunt appeared to be working well."
Irvin's seizures, nausea, vomiting, and neck and back pain soon returned. On November 12, Irvin was admitted to St. Catherine's Hospital in Garden City, Kansas. At St. Catherine's Hospital, Irvin was examined by Shull. Shull worried that the shunt had malfunctioned. X-rays were taken of Irvin's chest and abdomen. The radiologist concluded that no abnormalities were present and reported nothing wrong with the shunt tubing. On November 13, Shull spoke with MacGee regarding Irvin's condition. MacGee indicated that he thought Irvin's shunt was operating correctly and instructed Shull to treat Irvin with hydration and seizure control medication to see if her symptoms would improve. Shull ordered an MRI of the brain to check for increased intracranial pressure caused by the shunt malfunction. The MRI was negative.
Irvin continued to experience nausea, vomiting, neck pain, and seizures on November 13 and 14. On November 14, Shull ordered Irvin to be transported by life-flight from St. Catherine's Hospital to Wesley Medical Center (Wesley) in Wichita, Kansas. Prior to
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