424 P.3d 515
Kan.2018Background
- Charla Biglow, 37, presented to ER with cough, fever, pneumonia diagnosis; after treatments she developed persistent tachycardia and later suffered pulseless electrical activity and died.
- Plaintiff Kevin Biglow sued ER physician Dr. Eidenberg for malpractice, alleging failure to order an EKG, to perform differential diagnosis, to reassess and to treat the tachycardia.
- Both sides presented expert testimony: two plaintiff experts said an EKG was required and failure to obtain one breached the standard of care; two defense experts said treating underlying causes (pneumonia, Xopenex effects) without an EKG comported with the standard.
- At trial the court (1) gave a modified PIK instruction on a physician’s right to elect treatment, (2) gave two negligence definitions (a general reasonable-person definition and a health-care-provider standard), and (3) granted a motion in limine barring use of derivatives of the word “safe” and the phrase “needlessly endanger a patient.”
- Jury returned a verdict for the physician; the Court of Appeals affirmed and the Kansas Supreme Court granted review and affirmed the lower courts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Appropriateness of instruction on physician's right to elect treatment | Biglow: Instruction (PIK 123.11) was inapplicable because Eidenberg didn’t choose between treatments—he failed to test/treat tachycardia at all | Eidenberg: Instruction appropriate because dispute involved alternative approaches (diagnose-and-treat vs. treat underlying cause) and instruction was modified to fit facts | Court: Instruction was factually appropriate; evidence supported alternative-approach framing and modification cured concerns; affirmed. |
| 2) Use of a general reasonable-person negligence definition alongside medical negligence instruction | Biglow: The ordinary reasonable-person negligence instruction was legally inappropriate and misleading in a malpractice case (standard must be medical/expert-driven) | Eidenberg: Both definitions were correct statements of law; no confusion shown at trial | Court: The ordinary-person definition was legally inappropriate in this medical-malpractice context but error was harmless—specialist-focused expert evidence and other instructions (medical standard, expert-only determination) prevented prejudice. |
| 3) Motion in limine barring use of “safe”/“needlessly endanger a patient” | Biglow: Terms are relevant—safety is part of why tests are performed and bears on standard of care; exclusion hampered presentation | Eidenberg: Terms misstate Kansas law and risk misleading jurors about a physician's duty | Held: Pretrial exclusion and limitations on closing argument were within the court’s discretion; plaintiff failed to make an adequate proffer of excluded testimony; any restriction was not an abuse of discretion and did not prejudice plaintiff. |
Key Cases Cited
- Foster v. Klaumann, 296 Kan. 295 (Kan. 2013) (discusses PIK instruction about physician’s right to use best judgment and need to pair with objective standard)
- State v. Ward, 292 Kan. 541 (Kan. 2011) (harmless-error test and degree of certainty for instruction errors)
- Miller v. Johnson, 295 Kan. 636 (Kan. 2012) (elements of medical malpractice: duty, breach, injury, proximate cause)
- Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406 (Kan. 2010) (expert testimony generally required to establish standard of care and causation in medical malpractice)
- Natanson v. Kline, 186 Kan. 393 (Kan. 1960) (alternative instruction phrasing focusing jury on whether method adopted was recognized and approved)
- Bott v. Wendler, 203 Kan. 212 (Kan. 1969) (statutory requirement to object on the record to allow trial court second thought on instructions)
- In re Care & Treatment of Thomas, 301 Kan. 841 (Kan. 2015) (standard for clear-error review of jury instructions)
- Nold v. Binyon, 272 Kan. 87 (Kan. 2001) (standard of care is proved by expert testimony)
- Dawson v. Prager, 276 Kan. 373 (Kan. 2003) (expert testimony necessary to prove deviation from standard of care)
- Brunett v. Albrecht, 248 Kan. 634 (Kan. 1991) (error based on evidence excluded by pretrial motion in limine requires a trial proffer or motion for reconsideration)