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DICKEY v. DAUGHETY5/31/1996
The opinion of the court was delivered by
This is a wrongful death action based upon a loss of chance of survival because of medical malpractice. We granted the defendant's petition for review on a single issue involving the calculation of nonpecuniary damages. For the reasons set forth below, we agree with the trial court and the Court of Appeals' conclusion that in such an action nonpecuniary damages awarded by the jury
are to be multiplied by the percentage of lost chance of survival before application of the statutory cap in K.S.A. 60-1903.
Facts and Procedural History
On July 3, 1990, Nancy L. Dickey was taken by ambulance to St. Francis Hospital complaining of respiratory distress. Her condition deteriorated and she developed Adult Respiratory Distress Syndrome. She was placed under the care of the defendant, Dr. Ted Daughety, a pulmonologist. On July 30, 1990, Daughety, while attempting to replace a chest tube, accidentally lacerated Dickey's pulmonary artery, causing her death. The decedent's heirs at law brought this wrongful death action against Daughety for malpractice.
The jury determined that Dickey had an appreciable chance of survival before the laceration of her pulmonary artery. It also determined that had she been given proper medical care, that chance would have been 30%. The jury further found that Dickey had no chance of survival under the medical care that she actually received and that Daughety was 100% at fault.
Based upon trial evidence, the jury awarded the heirs pecuniary damages totalling $114,000 and nonpecuniary damages totalling $270,000. The trial court multiplied the damages by 30%, the percentage of lost chance of survival, arriving at a figure of $37,200 for pecuniary damages and $81,000 for nonpecuniary damages, for total damages of $118,000. Daughety appealed, contending that the total nonpecuniary damages should have been $30,000 instead of $81,000. He claimed that the $100,000 cap for nonpecuniary damages under K.S.A. 60-1903 (a) should be applied before the nonpecuniary damage award of $270,000 is multiplied by the percentage of lost chance.
The Court of Appeals affirmed the trial court's finding that the nonpecuniary damage award should be multiplied by the percentage of lost chance prior to the application of the statutory cap in K.S.A. 60-1903 (a). Dickey v. Daughety, 21 Kan. App. 2d 655, 661, 905 P.2d 697 (1995). We granted Daughety's petition for review on the sole issue involving the proper calculation of damages in a
loss of chance case as affected by the statutory cap on nonpecuniary damages found in K.S.A. 60-1903 (a).
Discussion, Analysis, and Resolution
The total amount of nonpecuniary damages awarded by the jury was $270,000. The defendant contends that the trial judge should have fixed nonpecuniary damages at $30,000 using the following method: First, reduce the $270,000 to $100,000, the statutory cap mandated by K.S.A. 60-1903 (a); then multiply the $100,000 by the percentage of lost chance of survival, found by the jury to be 30%, for a nonpecuniary damage award of $30,000. The trial court and the Court of Appeals decided that the nonpecuniary damage award of $270,000 should be multiplied by the 30% loss of chance of survival for an award of $81,000 in nonpecuniary damages.
The defendant relies upon our recent decision of Delaney v. Cade, 255 Kan. 199, 218, 873 P.2d 175 (1994), to support his contention that the $100,000 cap should be applied first. Delaney was a loss of chance of recovery case. It came before this court on certified questions by the United States Court of Appeals for the Tenth Circuit.
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