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Nold v. Binyon9/21/2001
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 was granted).
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 continue.
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).
INTRODUCTION
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 a
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