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SMITH v. MILFELD8/20/1993
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Supreme Court granted a motion to publish by an order dated November 9, 1993, pursuant to Rule 7.04 (1993 Kan. Ct. R. Annot. 36).
In this medical malpractice case, John R. Smith appeals from the trial court's grant of summary judgment in favor of Douglas J. Milfeld, M.D., and Badr Idbeis, M.D.
The trial court refused to admit the testimony of Smith's expert medical witness and ruled that without such testimony, Smith would be unable to establish an essential element of his claim.
Dr. Milfeld, with Dr. Idbeis' assistance, performed corrective heart surgery on Smith to repair an a trial septal defect (ASD). Later the same day, additional surgery was performed to ligate and cauterize "bleeders."
Following surgery, Smith's voice became very hoarse and harsh in sound. Smith was diagnosed as suffering from a damaged or destroyed left recurrent laryngeal nerve, causing vocal cord paralysis.
Smith retained the services of Julius H. Jacobson, M.D., a board certified vascular and thoracic surgeon who is licensed to practice medicine in Maryland and New York. After Smith filed suit alleging Milfeld and Idbeis were negligent, the trial court held Dr. Jacobson's opinion would not be allowed to be considered because it focused only on the results of Smith's surgery.
The trial court held that "if called, Dr. Jacobson would be found qualified . . . to testify regarding whether defendants' handling of plaintiff's surgery was a deviation from standard of care." Dr. Jacobson testified there is no literature linking damage
to the left recurrent laryngeal nerve to an ASD repair and Smith's injury was clearly the result of a deviation from the appropriate standard of care.
Smith appeals. We reverse.
The underlying basis for our decision is grounded in our scope of review of grants of summary judgment:
"A motion for summary judgment under the provisions of K.S.A. 60-256(c) is to be sustained only where the record conclusively shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In considering such a motion the movant's adversary is entitled to the benefit of all reasonable inferences and doubts that may be drawn from the facts under consideration. Where the facts presented in the motion are subject to conflicting interpretations or reasonable persons might differ as to their significance, summary judgment is improper. It is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law. Summary judgment should never be granted merely because the court may believe movant will prevail if the action is tried on the merits."
"An appellate court should read the record in the light most favorable to the party against whom summary judgment was entered. It should take such party's allegations as true, and it should give him the benefit of the doubt when his assertions conflict with those of the movant. Factual inferences tending to show triable issues must be considered in the light most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will not lie. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed." Busch v. City of Augusta, 9 Kan. App. 2d 119, Syl. 2, 3, 674 P.2d 1054 (1983). See Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990).
The introduction of
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