Schlaikjer v. Kaplan, 293 P.3d 155

Schlaikjer sues Kaplan for medical malpractice after tracheal stenosis treatment with stents.
Kaplan moves in limine to limit Cooper’s standard-of-care testimony; district court grants the motion.
Trial court rules Cooper cannot testify on standard of care under K.S.A. 60-3412; grants summary judgment for Kaplan.
Court of Appeals affirms summary judgment; Schlaikjer seeks review in this court.
Main issues focus on 60-3412 applicability to treating physicians, constitutionality challenges, use of physicians’ treatment preferences, and summary judgment propriety.
Court holds 60-3412 applies to treating physicians; Cooper’s admissibility is reversible error; remands for further proceedings; limits on treatment-preference testimony preserved.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does 60-3412 apply to treating physicians as witnesses on standard of care?	Schlaikjer argues the 50% rule is inapplicable to treating physicians.	Kaplan contends 60-3412 governs all expert witnesses on standard of care, including treating physicians.	60-3412 applies to treating physicians.
Was Cooper’s standard-of-care testimony admissible under 60-3412’s 50% requirement?	Cooper did not meet the 50% clinical-practice threshold in the two years before the first stent.	Cooper’s holistic record supports meeting 50% in actual clinical practice.	Cooper’s testimony should have been admissible; summary judgment reverse‑able.
May physician treatment preferences be used to prove standard of care on direct examination?	Treatment preferences could be introduced to show deviation from standard of care.	Such evidence is improper on direct examination as a standard-of-care proof.	Admissibility of direct-examination treatment-preference testimony is improper; may be allowed on cross-examination with limiting instruction.
Should the case be remanded for further proceedings in light of the above rulings?	Reversal and remand are appropriate to allow proper proof of standard of care.	Summary judgment should stand if standard of care cannot be proven.	Remand for further proceedings; judgment of Appeals and district court reversed.

Webb v. Lungstrum, 223 Kan. 487 (Kan. 1978) (common knowledge exception to expert testimony in medical malpractice)
Chandler v. Neosho Memorial Hospital, 223 Kan. 1 (Kan. 1977) (expert testimony generally required for standard of care)
Funke v. Fieldman, 212 Kan. 524 (Kan. 1973) (necessity of expert testimony to establish standard of care)
Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44 (Kan. 1973) (limits on using physician preference evidence to prove standard of care)
Cox v. Lesko, 23 Kan. App. 2d 794 (Kan. App. 1997) (cross-examination of preferred treatment methods; limits on proof of standard of care)
Nold v. Binyon, 272 Kan. 87 (Kan. 2001) (limits on expert testimony regarding preferred treatment methods)
Williams v. Lawton, 288 Kan. 768 (Kan. 2009) (statutory interpretation of 60-3412; plain language controlling)
Dawson v. Prager, 276 Kan. 373 (Kan. 2003) (de novo review when interpreting statute governing expert testimony)