Russell v. May
400 P.3d 647
| Kan. | 2017Background
- In 2008 Russell saw PCP Dr. Goering for a palpable right-breast lump; Goering palpated the lump and referred Russell for mammogram/ultrasound.
- Radiologist Dr. May performed imaging the same day, palpated the lump, and concluded the finding was a benign fatty lobule; she told Russell no biopsy was required and sent a written report to Dr. Goering.
- Russell later told OB/GYN Dr. Kindel the imaging was benign; Kindel palpated the lump, did not find it suspicious, but suggested optional surgical consults for biopsy; Russell did not pursue them.
- The lump was diagnosed as invasive ductal carcinoma in 2010 after it had grown; Russell required mastectomy, lymph node dissection, chemo and radiation and sued Goering, May, and Kindel for malpractice.
- At trial the district court granted a JMOL dismissing Goering; the jury later found May and Kindel not liable. The Court of Appeals affirmed. The Kansas Supreme Court granted review.
- The Supreme Court reversed the JMOL dismissal of Goering (finding triable issues on duty, breach, and causation), affirmed the jury verdicts for May and Kindel, and remanded for retrial against Goering only.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Goering owed a legal duty to Russell | Goering formed a physician–patient relationship by examination, referral, receipt of the radiology report, and instruction to contact her for changes | Goering argued any duty ended after referral and receipt of benign report; no continuing duty to follow up | Held: triable fact issues existed on whether the relationship/duty continued; JMOL on duty was improper |
| Whether Goering breached the standard of care | Expert (Dr. Edney) said inconsistency between Goering's firm exam and imaging required biopsy or timely follow-up (2–3 months; 6 months conceded) | Goering argued Edney's testimony was inconsistent, conceded referral satisfied standard, and any deviations were speculative | Held: Edney plus authoritative treatise provided sufficient evidence of breach for jury to decide |
| Whether Goering's alleged breach proximately caused harm | Russell/Edney: but-for lack of timely biopsy/follow-up, cancer would have been diagnosed earlier (stage I) and less invasive treatment/greater cure chance would have followed | Goering: subsequent exams by Kindel and May negate causation; subsequent providers had opportunities to diagnose, so any earlier action by Goering would not have changed outcome | Held: triable issues on both causation in fact and legal causation/foreseeability existed; subsequent care was not a superseding cause as a matter of law |
| Whether the district court's JMOL error was harmless | Russell sought retrial only against Goering; argued JMOL error affected substantial rights and retrial is required | Goering argued error harmless because jury exonerated May and Kindel, which supposedly defeats claim against Goering | Held: error was not harmless—the jury verdict did not necessarily resolve the factual bases relevant to Goering; retrial as to Goering ordered; May and Kindel affirmed as to liability |
Key Cases Cited
- Bussman v. Safeco Ins. Co. of America, 298 Kan. 700 (2014) (JMOL standard and de novo review)
- Smith v. Kansas Gas Service Co., 285 Kan. 33 (2007) (JMOL denial when evidence supports nonmoving party)
- Drouhard-Nordhus v. Rosenquist, 301 Kan. 618 (2015) (elements of medical malpractice claim)
- Irvin v. Smith, 272 Kan. 112 (2001) (physician–patient relationship and duty arise by consent/exam)
- Bates v. Dodge City Healthcare Group, 296 Kan. 271 (2013) (standard of care established by expert testimony)
- Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406 (2010) (proximate cause, intervening cause, and foreseeability in medical malpractice)
- Sampson v. Hunt, 233 Kan. 572 (1983) (when issues become questions of law vs. fact for JMOL)
- Mathes v. Robinson, 205 Kan. 402 (1970) (JMOL requires taking plaintiff's evidence as true)