294 P.3d 223
Kan.2013Background
- Keely Foster, a minor, underwent surgery for osteochondromas causing nerve injury; she and parents sued Dr. Klaumann for malpractice.
- The parties disputed which tumors would be removed and whether an additional incision caused the injury.
- Jury found Klaumann not at fault; Court of Appeals reversed for a new trial on jury instruction issues.
- Trial court gave both a general physician standard of care and a specialist standard of care instruction; also gave a “best judgment” instruction.
- The Supreme Court upheld the jury verdict, reversing the Court of Appeals and affirming the district court's judgment not to award a new trial.
- The decision discusses whether dual standards and best judgment instruction misled the jury and whether those errors were harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was it error to give both general and specialist standards of care instructions? | Foster contends dual instructions could mislead. | Klaumann argues both instructions were proper. | No reversible error; harmless where evidence supports specialist standard. |
| Was the best judgment instruction appropriate and did it mislead the jury? | Instruction could invite consideration of physician’s subjective beliefs. | Instruction correctly stated physician’s option to exercise best judgment. | Not reversible; instruction fair and supported by facts; second paragraph anchors to objective standard. |
| Was the error harmless under Ward/Plummer standards? | Errors could have affected the verdict. | Evidence supported the chosen standard; error harmless. | Harmless beyond reasonable doubt for rights issues; overall not reversible. |
Key Cases Cited
- Natanson v. Kline, 186 Kan. 393 (Kan. 1960) (informed consent and duty standards cited as basis for best judgment/contractual duties)
- Douglas v. Lombardino, 236 Kan. 471 (Kan. 1985) (duel Instructions; frame of reference for higher standard of care)
- Smith v. Welch, 265 Kan. 868 (Kan. 1998) (physician’s duty to use reasonable care and best judgment)
- Natanson (Natanson v. Kline) discussion in Hibbert line, 29 Kan. App. 2d 328 (Kan. App. 2001) (best judgment instruction context in Hibbert)
- Kostel v. Schwartz, 756 N.W.2d 363 (S.D. 2008) (alternative treatment options; error-in-judgment instruction inapplicable here)