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WISKER v. HART12/9/1988
The opinion of the court was delivered by
This is a medical malpractice action wherein
the jury found plaintiff's decedent 60 percent at fault. The plaintiff appeals therefrom.
The first issue is whether the verdict is contrary to the evidence.
When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal. Tetuan v. A.H. Robins Co., 241 Kan. 441, Syl. 1, 738 P.2d 1210 (1987). See In re Adoption of F.A.R., 242 Kan. 231, Syl. 2, 747 P.2d 145 (1987); Long v. Deere & Co., 238 Kan. 766, Syl. 1, 715 P.2d 1023 (1986).
The evidence considered in the light most favorable to the defendants may be summarized as follows:
Cecil Wisker was injured on Saturday, September 1, 1984, in a three-wheel motorcycle accident at a state recreational park in Waynoka, Oklahoma. He was taken to the E.L. Clapper Memorial Medical Center emergency room in Waynoka, where he was seen by Dr. James M. Moody. After examining Wisker and his x rays, Dr. Moody diagnosed Wisker as having a non-displaced fracture of the ninth rib on the right side with contusion of the abdominis rectus muscle. Wisker was released from the hospital with instructions: (1) to apply an ice pack to the lower right rib; (2) to take Norflex, a muscle relaxant; (3) to take Tylenol as needed for pain; (4) to refrain from alcohol; (5) to do no strenuous activity or lifting; (6) to call Dr. Moody if he had any problems or difficulties, or, if Wisker was at home in Wichita, to call his family doctor.
On Monday, September 3, 1984, Wisker returned to Wichita from Oklahoma and told his wife, Jewell Wisker, of the accident, showing her his bruised side. He told her he had two fractured ribs, and had been given pain medicine and told to see his family doctor. The next morning Jewell telephoned Dr. Ronald Davis, the family physician, to have him see Wisker. Dr. Davis examined Wisker that day, diagnosed his injuries as rib fractures, a chest injury, and liver and lung contusions, with resulting right shoulder pain. Wisker was told not to go to work that day. Blood samples were taken. Dr. Davis requested hemoglobin and hemotocrit
readings from the lab to confirm his opinion there was no internal bleeding. The lab results were returned to Dr. Davis on Wednesday, September 5, 1984, and the lowered blood counts indicated the presence of internal bleeding. Wisker returned to Dr. Davis' office. On September 5 his condition appeared to have worsened. Additional blood tests were taken, with orders for immediate processing. After reviewing the results of the latest blood tests and determining Wisker was having internal bleeding, Dr. Davis decided Wisker needed to be hospitalized and that a surgical consultation was necessary. Dr. Davis then consulted with Dr. Dillis Hart, a surgeon, concerning the care and treatment of Wisker.
Dr. Hart examined Wisker that same day, September 5, following Wisker's admission into St. Joseph Medical Center in Wichita. Dr. Hart diagnosed Wisker as having fractured a rib that punctured his liver, causing a loss of blood. In order to determine whether there was any evidence of active bleeding, Dr. Hart had a peritoneal tap done. A peritoneal tap of the left lower quadrant and the right upper quadrant of the peritoneal (abdominal) cavity indicated no continued internal bleeding. Dr. Hart believed the inj
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