TYMKOVICH, Circuit Judge.
Carmen Talavera suffered a stroke while visiting a store in November 2007 and incurred permanent disabilities that she attributes to the medical malpractice
The district court granted summary judgment, reasoning that — even assuming the medical personnel were negligent — Talavera had failed to demonstrate their negligence caused her injuries.
We hold that the district court did not err. Talavera has failed to: (1) establish a genuine dispute of material fact as to whether she would have qualified for blood-clotting therapy, or (2) show that any doctor owed her a duty of care when this therapy was still a viable treatment option. Further, Talavera cannot meet her burden of demonstrating she would have benefitted from receiving an earlier surgical intervention for symptoms related to her stroke. Finally, Talavera's argument that the defendants' alleged negligence deprived her of the chance of a better recovery fails because she did not adhere to the requirements of Kansas law in advancing a claim based on this theory.
Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
Around 10:30 p.m. on November 9, 2007, Talavera was found unconscious in a bathroom at a Walmart store in Liberal, Kansas. She soon regained consciousness and was taken by ambulance to the SWMC for what would be her first of three visits to the hospital.
Talavera, a non-citizen who speaks primarily Spanish, arrived at the SWMC around 11 p.m. Upon arrival, Talavera was seen by a nurse who reported Talavera complained of general weakness, a sore throat and ear, and a headache. But before a doctor could examine her, Talavera left the hospital (at about 12:10 a.m.).
A note from one of the on-call nurses reveals that Talavera left the hospital during this visit "AMA" or against medical advice. App. 914. The report explains that Talavera did so because she "doesn't know how to pay for [the] visit [and] feels good enough to go home." Id. At this time, Talavera signed a Spanish-language denial-of-treatment form, though Talavera disputes both whether the form is authentic and whether she knowingly signed it.
Talavera then returned to the SWMC about two hours later, around 2 a.m. This time, the nurse documenting her arrival noted that Talavera continued to complain about general weakness. But Talavera also reported having "tingling" in her fingers. Id. at 257. Dr. Wiley, the on-call emergency room physician, examined Talavera at around 2:30 a.m. and, as part of his differential diagnosis, considered a variety of possible causes of Talavera's symptoms, including stroke. After the examination, Dr. Wiley recommended that Talavera undergo a number of tests, including a CT scan of her head, which was performed at 4:02 a.m.
Dr. Wiley ultimately ruled out a stroke because the scan "was negative." Id. at 615.
A few hours later, at approximately 10:30 a.m. on November 10, Dr. Assadollah Zainali, a radiologist at the SWMC, reviewed Talavera's CT scan. He initially interpreted the scan to show "no cerebral infarction or hemorrhage" and noted that the scan was "unremarkable." Id. at 921. Dr. Zainali later conceded that his initial analysis was erroneous: the CT scan in fact revealed that Talavera had suffered an "ischemic infarct," which is a type of brain injury caused by stroke. Id. at 659.
Talavera's third and final visit to the SWMC began around 3:45 p.m. on November 10, when paramedics brought her to the emergency room after they received a call that Talavera had passed out at her home. A nurse who examined Talavera at the beginning of this third visit noted Talavera had hypothyroidism and was moaning and complaining of constant pain in her head.
Shortly after the nurse's examination, Talavera was seen by Dr. Kathryn Phyfer, the on-duty emergency-room physician. Like Dr. Wiley, Dr. Phyfer ultimately concluded that Talavera was suffering from hypothyroidism. She recommended Talavera follow up with her primary care physician and start taking thyroid medication. Dr. Phyfer then attempted to have Talavera discharged. During the discharge process, however, Talavera exhibited a number of unusual behaviors, which prompted SWMC personnel to perform a mental health screening.
Dr. Laura Noblejas, a clinical psychologist, attempted to administer the screening. Although Dr. Noblejas was unable to perform a complete analysis on Talavera, Dr. Noblejas noted Talavera had been engaging in bizarre behaviors during her three visits to SWMC and identified Talavera as presenting a number of psychological problems that made her a potential danger to herself and others. Based on the recommendations in the mental health screening, Talavera was transferred to the hospital psychiatric ward, where she was placed under the care of Dr. Robert McIntyre, a psychiatrist.
Dr. McIntyre first examined Talavera on the morning of November 11, and she remained under his care and the care of Dr. Lyonel Benoit-Rock, another psychiatrist, for the next two days. Neither psychiatrist was successful at treating or substantially communicating with Talavera. Further, Talavera spent most of her time in the psychiatric ward in bed, where she had become unresponsive to a number of stimuli and had trouble communicating even in Spanish.
On November 14, Talavera was transferred back to the SWMC intensive care unit, this time under the care of Dr. Sharon Mitchell. That same day an MRI of Talavera's brain was performed, which was then interpreted on November 15 and revealed "a massive cerebral infarction noted with massive mass effect," which had caused "total occlusion of the middle cerebral artery." Id. at 761.
After determining Talavera had in fact suffered a stroke, Dr. Mitchell initially decided not to transfer Talavera to a larger
Talavera contends the district court erred in granting summary judgment on all of her claims. We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to Talavera and drawing all reasonable inferences in her favor. See Daniels v. UPS, Inc., 701 F.3d 620, 627 (10th Cir.2012).
Before turning to the merits, we must resolve several disagreements about the weight to give certain evidence and the requirements for satisfying elements of the burden of proof under Kansas law.
The parties disagree about the weight we can give a report submitted by Dr. Helgason, Talavera's expert neurologist. In the report, Dr. Helgason offered opinions as to how she believed the defendants had caused Talavera's injuries. The defendants argue we cannot rely on Dr. Helgason's report because it is inadmissible hearsay and because only sworn expert affidavits or declarations may be used to oppose a summary judgement motion. But the defendants did not move to strike Dr. Helgason's expert report from consideration below, and we see no reason to depart from the general rule that an evidentiary objection not raised in the district court is waived on appeal. See Fed. R.Evid. 103(a).
The parties also dispute how to reconcile the various conclusions Dr. Helgason reached in her report with the qualifications she made to those conclusions in response to questions proffered by counsel for the defendants during her deposition. Notwithstanding Dr. Helgason's concessions, Talavera emphasizes the conclusions from Dr. Helgason's earlier written report and suggests that the report by itself creates a genuine issue of material fact.
Talavera cannot create a genuine dispute of material fact solely by relying on a conclusion that was written in an expert report and later qualified during that expert's deposition. A witness's later qualifications are the relevant "opinions" for purposes of summary judgment unless there is some reason for disregarding them.
Therefore, while we will consider Dr. Helgason's expert report in evaluating whether the district court correctly granted summary judgment to the defendants, we keep in mind that some of the conclusions have been qualified by her deposition testimony. Any doubts we have about these pieces of evidence are resolved in Talavera's favor.
Next, we must address the application of the burden of proof to Talavera's
To prevail on a medical malpractice claim in Kansas, a plaintiff must prove: "(1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injuries sustained by the patient." Wozniak v. Lipoff, 242 Kan. 583, 750 P.2d 971, 975 (1988).
For medical malpractice cases, a plaintiff must ordinarily meet the burden of proof as to each element through expert medical testimony. See Maunz v. Perales, 276 Kan. 313, 76 P.3d 1027, 1032 (2003); see also Sharples v. Roberts, 249 Kan. 286, 816 P.2d 390, 398 (1991) ("The rule requiring expert medical testimony in medical malpractice actions applies not only to the issue of negligence, but also to the issue of causation. Expert medical testimony is ordinarily required to establish a causal connection between the plaintiff's injuries and the defendant's negligence."). Consequently, if there is no expert medical testimony suggesting the defendants' allegedly negligent conduct caused Talavera's injuries, Talavera cannot prevail on such a claim.
The defendants further suggest that under Kansas law, Talavera must meet her burden of proof as to causation by disproving that her injuries derived solely from the stroke she suffered at 10:30 p.m. on November 9, before any defendant had even seen Talavera. In other words, the defendants note that a preexisting condition (i.e., the stroke and its immediate effects) present at the time that Talavera first arrived at the SWMC might have been the sole cause of Talavera's current disabilities, rather than anything that occurred after the defendants owed Talavera a duty of care. Defendants fault Talavera for failing to rule out this cause of her present disabilities and suggest that this shortcoming provides an additional basis for granting them summary judgment.
The district court credited this argument, although Kansas law does not clearly support such a defense to liability. First, Kansas law does not definitively establish that the defendants would not be liable for Talavera's injuries if she had a preexisting condition. And even if defendants can claim that a preexisting condition precludes or limits their liability, Kansas law does not establish if the burden stays with Talavera to disprove the preexisting condition as the cause-in-fact or if the burden shifts to the defendants to prove the alternate cause was the cause-in-fact. There are disagreements among the various state courts on all these questions and compelling arguments to support their differing positions. See, e.g., Dan B. Dobbs et al., The Law of Torts § 195 (2d ed. June 2013 update) (collecting cases).
But given the facts of this case, we need not jump ahead of Kansas courts in resolving these issues here. As we explain below, even if we assume Talavera need not
Talavera advances two theories of negligence. First, she argues the defendants' failure to diagnose her stroke earlier prevented her from benefitting from thrombolic therapy or tPA, a type of treatment that helps prevent blood clots in stroke victims. Second, she argues the defendants' failure to diagnose stroke deprived her of receiving an earlier hemicraniectomy, which she alleged would have prevented further physical damage. In the alternative, Talavera alleges that the defendants' failure to reach an earlier diagnosis deprived her at least of the "loss of a chance" of a better recovery. "Lost chance" is a legal theory under Kansas law which allows a plaintiff to collect damages for the loss of the possibility of a better recovery, even if a more favorable outcome was less than fifty percent likely.
We address in turn below our basis for affirming the district court's judgment on the tPA claim and the hemicraniectomy claim. We then explain how Talavera has failed to conform to the dictates of "loss of chance" theory under Kansas law and therefore cannot recover under this theory either.
Talavera first claims she was negligently prevented from receiving tPA stroke therapy earlier, which resulted in permanent physical and mental injuries. As an initial matter, the parties agree about most of the facts relevant to this theory. First, it is undisputed that at the time Talavera suffered a stroke, tPA treatment was only effective within the first three hours after a stroke's onset. Second, the parties agree, for purposes of this claim, that the onset of Talavera's stroke occurred in the Walmart bathroom at around 10:30 p.m. on November 9 and thus the three-hour tPA window began to run at this time.
We hold that Talavera's tPA claim fails both because Talavera has not established that Dr. Wiley owed her a duty of care during her first hospital visit and, alternatively, because she has not demonstrated, even assuming Dr. Wiley did incur such a duty of care and was negligent, that this negligence caused her injuries.
As noted above, to prove a medical malpractice claim under Kansas law, a plaintiff must show that a duty was owed by the physician to the patient. Wozniak, 750 P.2d at 975. "Whether a physician owes a legal duty to a patient under a particular circumstance is a question of law. It is not a question of fact or of negligence. Absent the existence of a physician-patient relationship, there can be no liability for medical malpractice." Irvin v.
"Generally, a physician-patient relationship is created only where the physician personally examines the patient." Id. at 941. Nonetheless, "where there is no ongoing physician-patient relationship, the physician's express or implied consent to advise or treat the patient is required for the relationship to come into being." Adams v. Via Christi Reg'l Med. Ctr., 270 Kan. 824, 19 P.3d 132, 140 (2001). Such exceptions from the general "personal examination" rule arise in situations where, for example, an on-call surgeon fails to respond to repeated calls for his assistance, or where a doctor functions as a consultant for an emergency-room physician directly treating a patient. Irvin, 31 P.3d at 941 (collecting authorities and further examples).
Talavera cannot claim that a physician-patient relationship was formed during her first hospital visit based on Dr. Wiley's examination. As noted above, Talavera left the SWMC about an hour after she arrived and before she saw Dr. Wiley.
Given this difficulty, Talavera's argument is that "[t]he black-and-white terms of [Dr. Wiley's] contract with the hospital required him to see, examine and treat plaintiff within 20 minutes of her arrival at the hospital." Rep. Br. at 17. Thus, reasons Talavera, Dr. Wiley's contract created a physician-patient relationship and establishes the duty he owed to Talavera.
Talavera cites no case in which Kansas courts have explicitly credited a theory that a tort duty for a physician can arise through the physician's contract with a hospital, and we find none.
But we need not resolve any questions about the existence or scope of a contract-based theory of duty in medical
In support of her theory for duty, Talavera relies on a portion of Dr. Wiley's contract entitled "Physician's Obligations," which states in pertinent part:
App. 626.
This provision does not give rise to a duty in tort for Dr. Wiley "to see, examine and treat" a patient within twenty minutes of being notified of his or her arrival in the hospital. Rather, the provision only requires a "respon[se]" from Dr. Wiley within 20 minutes. It does not condition that time frame in any way that would create a physician-patient relationship with every emergency room patient within 20 minutes of a physician being notified of a patient's arrival in the hospital. Thus, Talavera has failed to demonstrate Dr. Wiley owed her a duty as his patient at the time when tPA was a viable treatment option.
Even if Dr. Wiley had a duty to diagnose Talavera, we agree with the district court that she has not established material facts that would support her eligibility for tPA. As relevant here, at least two circumstances exist under which a patient who otherwise would qualify for tPA would not be eligible for the treatment. These circumstances are referred to as exclusion criteria for tPA. The first exclusion criterion is triggered if a CT scan reveals a large infarct or any hemorrhaging in the brain. The second exclusion criterion is triggered if there is evidence of head trauma or bruising on the head. The presence of either criterion by itself would preclude tPA treatment. A central disagreement between the parties is whether either of these exclusion criteria applied in this case.
We agree with the district court and defendants that this disagreement is settled by Talavera's expert, Dr. Helgason. In response to questions regarding whether the tPA exclusion criteria might apply,
Kansas law requires expert testimony that Dr. Wiley's acts or omissions deprived Talavera of the benefit of tPA, thereby causing her injuries. Based on her expert's testimony, Talavera cannot point to expert medical evidence establishing that she would have benefitted from tPA.
Talavera suggests three reasons why Dr. Helgason's concession does not resolve the causation matter. We find none of these arguments persuasive. First, Talavera emphasizes that, notwithstanding Dr. Helgason's later qualifications at her deposition, Dr. Helgason's expert report states that timely tPA therapy during Talavera's first visit to the hospital would have yielded a better clinical outcome. We reject this argument for the reasons stated above: we cannot look at Dr. Helgason's expert report in isolation but must review it in light of her later, more qualified, testimony.
Second, Talavera argues that notwithstanding Dr. Helgason's concession, the doctor would have testified if asked that the tPA exclusion criterion did not apply. But Dr. Helgason's response was clear and unequivocal and we have no basis to speculate on how she would have responded to questions not asked.
Further, even viewing the evidence in the light most favorable to Talavera, she cannot establish that Dr. Helgason would have ruled out the CT exclusion criterion if she had been asked about it directly during her deposition. Rather, Dr. Helgason testified that in order to qualify for tPA, the damage in a potential tPA patient's middle cerebral artery territory (where Talavera's infarct began) should be "less than a third of the territory." App. 1190. With reference to the CT scan at issue here, Dr. Helgason suggested:
Id. at 1134-35 (emphasis added). Thus, in Dr. Helgason's opinion, if Dr. Wiley had ordered a CT scan during Talavera's first visit to the SWMC and if that scan had revealed an infarct of the same size as the one present in the scan performed at 4 a.m. (i.e., a scan revealing an infarct the size of one third of the middle cerebral artery territory), then Talavera still would have been precluded from receiving tPA.
Talavera has provided no basis to conclude that there would have been a material difference in the size of the infarct before 1:30 a.m. and the size at 4 a.m. For example, she provides no evidence about the typical growth patterns of Talavera's type of infarct or factors that might increase or decrease the rate of its growth and effect on brain function. Thus, even if Dr. Helgason's concession itself were not enough, on the record Talavera has provided, she cannot demonstrate that Dr. Helgason could have ruled out the presence of the CT scan exclusion criterion.
Third, Talavera suggests the full record, including the testimony of other medical
On this issue, Talavera suggests "the medical records and the testimony of the radiologists[] are all in agreement that the CT scan taken ... did not show a large infarct or hemorrhage" that would preclude tPA treatment. Aplt. Br. at 12 (internal quotations and citation to the record omitted). In support of this proposition, Talavera relies on the testimony of the two radiologists who were deposed in this case: Dr. Zainali, the radiologist who initially reviewed Talavera's CT scan, and Dr. Pablo Delgado, Talavera's own expert radiologist.
Talavera contends both experts saw no evidence of hemorrhaging in the CT scan taken at 4 a.m., and that both radiologists found an infarct that was not prohibitively large for tPA. But neither expert's testimony actually supports her argument. First, although Talavera correctly notes that Dr. Zainali did not describe the infarct as large and implied that he could barely see it when he reviewed the CT scan, Dr. Zainali did not provide any sort of conclusion as to whether the infarct was small enough to allow for the use of tPA therapy, nor is it clear that he would have been qualified to do so.
Second, as to Dr. Delgado, he described the infarct as "moderate to large," noting that such a practice was common for radiologists who often "hedge between the two [sizes] and say moderate to large meaning it certainly is not tiny or small and it is certainly not massive at this point in time." App. 1812. In her briefing, Talavera only references the portion of the above testimony in which Dr. Delgado says the infarct "is not tiny or small and it is certainly not massive at this point in time." Aplt. Br. at 23. But this selective quoting obscures the fact that Talavera's own expert radiologist would describe the infarct as large. Moreover, there is no evidence in the record that Dr. Delgado would describe the infarct as small enough to allow for tPA or, again, whether he would even be qualified to make such a determination. Thus, neither of these two doctors provide an alternative font of evidence that tPA was a viable treatment.
In sum, then, we find no error in the district court's determination that Talavera failed to prove causation as to her claim that she was entitled to receive tPA.
Talavera's second theory of liability is that if the defendants had diagnosed her stroke earlier, she would have received a hemicraniectomy sooner and yielded a
We agree with the district court that no fact question exists on this claim. First, although Dr. Helgason testified in her deposition that while Talavera was a candidate for an earlier hemicraniectomy, Dr. Helgason said she would defer to the expertise of a neurosurgeon as to the timing of the procedure. And the only neurosurgeon to offer an opinion on the timing of the hemicraniectomy was Dr. Moufarrij, the surgeon who performed the procedure on Talavera. He concluded that an earlier procedure would not have changed the outcome. According to Dr. Moufarrij:
App. 990. Because the only neurosurgeon to offer an opinion as to the timing of the hemicraniectomy stated it would not have mattered for Talavera, she cannot prevail on a negligence theory relying on earlier intervention.
Talavera advances a number of arguments against this conclusion, none of which we find persuasive. First, she points to various parts of Dr. Helgason's deposition testimony and her expert report, where Dr. Helgason suggests that Talavera would definitely have been a candidate for an earlier hemicraniectomy. But as we discussed above, Dr. Helgason later conceded that only a neurosurgeon was qualified to make this assessment. Thus, nothing in the record shows causation on this claim to a reasonable degree of medical certainty.
Talavera also claims two cases, Wilson v. Knight, 26 Kan.App.2d 226, 982 P.2d 400 (1999), and Esquivel v. Watters, 286 Kan. 292, 183 P.3d 847 (2008), establish that Dr. Helgason's testimony as to causation is sufficient to survive a motion for summary judgment. But both of these cases are readily distinguishable because the experts whose testimony was questioned never actually deferred to another authority about the feasibility or timing of a procedure that would have benefitted the plaintiff in question.
Finally, Talavera suggests we should disregard Dr. Moufarrij's affidavit because it lacks "the attestation that his statements or opinions are given to a reasonable degree of medical certainty." Rep. Br. at 22. But Talavera failed to raise this evidentiary objection below and points to no authority in support of her position that an expert must invoke the phrase "reasonable degree of medical certainty" or some other shibboleth to allow a court to consider the expert opinion. In short, none of Talavera's arguments convince us to disturb the judgment of the district court as to this claim.
Talavera's final argument is that the defendants' negligence cost her the chance of a better recovery, a theory of liability established by the Kansas Supreme Court in Delaney v. Cade, 255 Kan. 199, 873 P.2d 175 (1994); see also Joseph H. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981) (relied upon by the Delaney court in adopting this theory of liability).
Under the loss-of-chance theory, however, the plaintiff's estate could bring an action for the lost forty-percent chance of survival created by the negligence. Upon a showing that the negligence caused the lost chance, damages are calculated as a function of the full value of the harm caused (i.e., the damages incurred from the loss of life, such as loss of consortium and lost earnings potential) multiplied by the percentage of the loss incurred (in this case, forty percent).
While the Kansas Supreme Court adopted loss-of-chance theory as a form of actionable tort liability in Kansas, it placed two limitations on its use. First, the court adopted what it referred to as "the relaxed" rule on causation as applied to such claims. Under this rule, a defendant must show a "substantial" loss of chance but specifically declined to "attempt to draw a bright line rule on the percentage of lost chance that would be sufficient for the case to be submitted to the jury." Delaney, 873 P.2d at 185-86.
Second, the Kansas court also required plaintiffs to use a "proportional damage approach." In suggesting how to apply the proportional damage approach, the Delaney court relied on a federal district court opinion, Boody v. United States, 706 F.Supp. 1458 (D.Kan.1989). In that case, the court reasoned that:
Delaney, 873 P.2d at 187 (quoting Boody, 706 F.Supp. at 1465-66).
Relying on this rationale from Boody, Delaney required expert medical testimony to calculate the percentage of damages recoverable:
873 P.2d at 187 (emphasis added).
Interpreting this language from Delaney, the district court dismissed Talavera's loss-of-chance claim because Talavera had failed to provide the court with lost chance described in the appropriate percentage amount of damages recoverable. Talavera does not dispute she did not state her loss of chance of recovery claim in such terms. She nevertheless urges Kansas law cannot be read to impose such a requirement.
Talavera's position is unpersuasive. She fails to address the language from Delaney that states the Kansas approach to loss of chance "requires expert medical testimony
Accordingly, for the reasons stated above, we AFFIRM the judgment of the district court.
Talavera also suggests that testimony from Dr. Joseph Yates, an ER physician, demonstrates Dr. Wiley had a duty to Talavera during her first hospital visit. We disagree. In the referenced report (which was discussed in related deposition testimony), Dr. Yates argues: "[t]he physician on duty in an emergency department and the hospital have the obligation, in order to meet the standard of care, to make every patient aware of the risk he or she takes by refusing care before they allow the patient to make an informed decision to refuse care." App. 651; see also App. 649 (deposition testimony). Talavera does not explain how Dr. Yates would be qualified to offer this legal conclusion, and in any case we find no authority in Kansas law for imposing such a broad requirement upon "on duty" physicians.
