PER CURIAM:
Plaintiff Donna Schlaikjer seeks reversal of the Court of Appeals' decision affirming summary judgment in favor of defendant James D. Kaplan, M.D. Schlaikjer sued Kaplan for medical malpractice arising out of surgeries to treat her tracheal stenosis. Kaplan filed a successful motion in limine to prevent Schlaikjer's subsequent treating physician and designated expert, Joel Cooper, M.D., from testifying about the standard of care. The district court granted the motion in limine because Cooper did not meet the requirements of K.S.A. 60-3412. In the absence of expert testimony on the standard of care, Schlaikjer could not, as a matter of law, carry her burden of proof; and summary judgment in Kaplan's favor followed.
The Court of Appeals affirmed the district court's summary judgment in favor of Kaplan. Schlaikjer now pursues four claims on petition for review to this court: (1) The 50 percent rule for expert witnesses under K.S.A. 60-3412 is inapplicable to treating physicians; (2) K.S.A. 60-3412 violates both the federal and state constitutions; (3) testimony of physicians on their treatment preferences may be used to prove standard of care in medical malpractice cases; and (4) the district court's grant of summary judgment was improper.
Because we hold that Schlaikjer's arguments on her first and fourth appellate claims require disposition of this appeal in her favor, we do not reach her constitutional challenges to K.S.A. 60-3412. See Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 519, 242 P.3d 1179 (2010) (citing to Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 [2003]) (appellate courts avoid unnecessary constitutional decisions when alternative ground provides relief). We discuss her third claim only because of the possibility that it will arise on remand.
Tracheal stenosis is a narrowing of the trachea that causes difficulty in breathing. As part of Schlaikjer's treatment for the condition, Kaplan, a pulmonary and critical care specialist, placed two metal stents in Schlaikjer's trachea — the first in September 2000 and the second in October 2001. The stents caused the development of granulation tissue that further obstructed Schlaikjer's trachea, and she continued to experience difficulty breathing. Kaplan referred Schlaikjer to Cooper when the stents failed to improve Schlaikjer's condition.
Cooper is a thoracic surgeon. He diagnosed Schlaikjer with a rare condition called idiopathic subglottic tracheal stenosis, which is a narrowing of the trachea below the vocal chords. Cooper removed the stents and performed a number of procedures to treat the damage he believed to have been caused by their placement. By March 2006, Cooper's treatment had fully resolved Schlaikjer's condition.
Schlaikjer sued Kaplan, alleging medical malpractice; failure to obtain informed consent; and misrepresentation about the ease with which the first stent could be removed, which induced her consent.
Schlaikjer filed her K.S.A. 60-226(b)(6)(B) expert witness designation with the district court, identifying Cooper as both her treating physician and her only expert witness. Cooper was deposed twice. During those depositions Cooper was asked to detail how he spent his professional time, but he expressed difficulty in providing exact figures. Cooper said he worked primarily in a teaching hospital, and much of his time spent as a teacher and researcher overlapped with time spent on direct patient care.
Specifically, the following exchange occurred during Cooper's first deposition:
Kaplan filed a motion in limine seeking to exclude any standard of care opinions from Cooper. He argued that Schlaikjer could not show that Cooper met the 50 percent requirement of K.S.A. 60-3412, because Cooper had declined to state affirmatively that he spent at least that much of his professional time in actual clinical practice. Kaplan's motion also requested that the court exclude any standard of care testimony from the parties' expert witnesses about their personal treatment preferences.
After a hearing on the motion, the district court excluded any testimony by Cooper on the standard of care. The court's written ruling, after stating that a later-filed affidavit of Cooper would not be considered, read in pertinent part:
The district court also ruled that neither party's physician witnesses could give standard of care testimony on direct examination based on their personal treatment preferences. If, for example, evidence of personal treatment preferences were admitted through cross-examination attacking an expert's credibility, a limiting instruction might be required.
Kaplan then moved for summary judgment, which the district court granted after rebuffing Schlaikjer's request that it reconsider its limine ruling. The Court of Appeals affirmed the summary judgment, and we granted Schlaikjer's petition for review.
Schlaikjer argues that the district court erroneously applied the requirements of K.S.A. 60-3412 to limit Cooper's testimony on standard of care. She complains that the statute's plain language restricts only who may testify as an expert and does not limit the testimony of treating physicians. In addition, she contends that the legislature's intent when enacting K.S.A. 60-3412 was to prevent testimony from "hired guns" who do not maintain regular clinical practice. In her view, the admissibility of a treating physician's opinion testimony should be governed instead only by K.S.A. 60-456, which addresses admission of opinion testimony generally.
When a "district court's decision to admit expert testimony is based upon an interpretation of the statute, the court has de novo review." Dawson v. Prager, 276 Kan. 373, 376, 76 P.3d 1036 (2003).
In medical malpractice cases, expert testimony is required to show a deviation from the standard of care if the subject matter falls outside the common, everyday knowledge of the average juror. Dawson, 276 Kan. at 375, 76 P.3d 1036; Webb v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978). If the common knowledge exception applies, "such facts may be testified to by persons other than physicians." Webb, 223 Kan. at 490, 575 P.2d 22; see, e.g., Rule v. Cheeseman, 181 Kan. 957, 317 P.2d 472 (1957) (expert standard of care testimony unnecessary when surgeon left gauze inside patient).
This lawsuit does not arise in a common knowledge situation. The appropriate treatment of tracheal stenosis is not within the experience, education, or everyday knowledge of the average juror. Thus expert
The plain language of the statute makes no exception for treating physicians. Under the statute, Cooper must have spent at least 50 percent of his professional time within the 2 years before Schlaikjer's first tracheal stent surgery in actual clinical practice, if Schlaikjer wishes him to testify as an expert on the applicable standard of care. Williams v. Lawton, 288 Kan. 768, 810, 207 P.3d 1027 (2009); Dawson, 276 Kan. at 375, 76 P.3d 1036.
In essence, Schlaikjer wants this court to read an exception for treating physicians into K.S.A. 60-3412. But it is not our practice to manufacture judicial exceptions to plain and unambiguous statutory language. In such situations, we do not engage in statutory construction; rather, we implement the legislature's clearly expressed intent. Arnett, 290 Kan. 41, Syl. ¶ 1, 223 P.3d 780.
K.S.A. 60-3412 is not ambiguous. Williams, 288 Kan. at 809, 207 P.3d 1027 ("[W]e need not delve into legislative history because the language of K.S.A. 60-3412 is not ambiguous."). It commands that "no person shall qualify as an expert witness" on the standard of care in a medical malpractice liability action "unless at least 50% of such person's professional time within the two-year period preceding the incident ... is devoted to actual clinical practice." (Emphasis added.) This command covers treating physicians as well as witnesses hired by a litigant for the sole purpose of testifying.
Schlaikjer's effort to direct us to K.S.A. 60-456 rather than K.S.A. 60-3412 to bolster her case for a treating physician exception is unavailing. K.S.A. 60-456 provides in relevant part:
Schlaikjer points to authority suggesting that an "expert witness" covered by K.S.A. 60-3412 is typically a medical-legal consultant whose connection with the case began during trial preparation, as opposed to a treating physician or other person with specialized knowledge who was involved with the facts of the case. See Moore v. Associated Material & Supply Co., 263 Kan. 226, 244-45, 948 P.2d 652 (1997) (inspector who investigated flooding could properly testify to his opinions incidental to his knowledge, involvement of the case); Thompson v. KFB Ins. Co., 252 Kan. 1010, 1026-27, 850 P.2d 773 (1993) (medical witnesses who provided treatment to plaintiff properly allowed to testify
None of these cases is particularly helpful to Schlaikjer, as each centered on sufficiency of compliance with discovery rules in order to determine whether an expert should be permitted to testify. None addressed the qualifications of the expert under K.S.A. 60-3412; and one, West, predated enactment of that statute.
Moreover, it is a longstanding rule that when there is an apparent conflict between a statute dealing generally with a subject and a statute specifically addressing the subject, the specific statute controls. See In re Tax Exemption Application of Mental Health Ass'n of the Heartland, 289 Kan. 1209, 1215, 221 P.3d 580 (2009). K.S.A. 60-456 addresses opinion evidence generally. K.S.A. 60-3412 specifically addresses a far narrower topic: the qualifications required of an expert witness who would testify on the standard of care in a medical malpractice practice case. It is obvious that K.S.A. 60-3412 is the more specific statute and is controlling.
We therefore hold that the requirements of K.S.A. 60-3412 apply to any witness who would give expert testimony on the standard of care in a medical malpractice action, regardless of whether the prospective witness is a treating physician. The district court did not err on this point of law.
The district court granted Kaplan's motion for summary judgment because its motion in limine ruling left Schlaikjer without expert testimony to establish the standard of care necessary to prevail on her causes of action. Thus, although Schlaikjer frames this appellate claim as a challenge to summary judgment, her arguments that the district court misconstrued Cooper's testimony and/or misapplied K.S.A. 60-3412 actually require review of the district court's ruling on the motion in limine. If, as Schlaikjer suggests, the district court misconstrued the testimony or misapplied K.S.A. 60-3412 in its limine ruling, then the summary judgment that was its inevitable offspring must be reversed. We therefore employ the standards of review applicable to motions in limine rather than those applicable to motions for summary judgment.
A district court's decision on a motion in limine involves a two-prong test. To grant the motion, the court must determine that (1) the material or evidence in question will be inadmissible at trial; and (2) a pretrial ruling is justified, as opposed to a ruling during trial, because (a) the mere offer or mention of the evidence during trial may cause unfair prejudice, confuse the issues, or mislead the jury; (b) the consideration of the issue during trial might unduly interrupt and delay the trial; or (c) a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation. State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010).
Schlaikjer's appellate claim does not question the district court's performance of its function on the second prong of the motion in limine test. It questions only the admissibility of Cooper's expert opinion on standard of care. When a district court's decision on the admissibility prong is based on interpretation of a statute, an appellate court exercises de novo review of that interpretation. Dawson, 276 Kan. at 376, 76 P.3d 1036. In our discussion of Schlaikjer's first appellate claim, we conducted that review and established that the district court was correct about the applicable legal standard under K.S.A. 60-3412.
But the district court also had to make at least an implicit finding of fact about Cooper's compliance with that standard, i.e., whether at least 50 percent of his professional time in the 2 years preceding the first stent surgery was devoted to "actual clinical practice." K.S.A. 60-3412. It is this factual finding with which Schlaikjer actually takes issue. On appeal, we generally review district court findings of fact to determine
Actual clinical practice means "patient care." However, "patient care" is not limited to care delivered face-to-face or in the patient's physical presence. It also includes "advising on" or "addressing" care for a patient; each of these activities is encompassed within the definition of "actual clinical practice." Dawson, 276 Kan. at 376, 76 P.3d 1036 (citing Endorf v. Bohlender, 26 Kan.App.2d 855, 865, 995 P.2d 896, rev. denied 269 Kan. 932 [2000]).
Here, Cooper testified that the surgical residencies in which he participated as a teacher during the relevant 2 years were equivalent to hands-on apprenticeships and that his usual "classroom" was the operating theater. Cooper's administrative work was limited to 30 percent of his professional time. His time spent on research and review of professional journals fluctuated over the course of any given year but did not total more than approximately 20 percent; and the time he spent on medical-legal consulting reached no more than 1 percent to 2 percent.
As the district court acknowledged, some portion of Cooper's research time was categorized as clinical. In other words, it facilitated patient care. Cooper also testified that he was always a "full-time clinician in an academic setting," that he was in the operating room 2 full days a week, that he saw new patients one morning a week, that he saw emphysema patients one afternoon a week, and that he saw follow-up patients on yet another day each week. In short, "almost everything" Cooper did during his 80- to 90-hour work weeks had "either direct or indirect influence on patient care."
On this record, we simply fail to see substantial competent evidence to support the district court's fact finding that Cooper did not spend at least 50 percent of his time in actual clinical practice. His testimony supported at least 3 1/2 days to 4 days of each 7-day week on direct patient care. Hands-on resident supervision and consultation and his own clinical research necessary to provide patient care accounted for still more of his professional workweek. In our view, evaluation of whether he met the 50 percent requirement of K.S.A. 60-3412 required more than adding his imprecise estimates of 30 percent, 20 percent, and 1 percent to 2 percent. It required a holistic reading of his description of his clinical practice in an academic setting, including all of his varied patient care activities.
Because Cooper's testimony on the applicable standard of care should have been ruled admissible by the district court, Kaplan's motion for summary judgment should have been denied.
Finally, Kaplan sought to exclude expert standard of care testimony based on physician treatment preferences. Again, we address this issue because of the possibility that it will arise on remand.
The district court agreed with part of Kaplan's motion in limine argument on this issue, ruling that such testimony could not be introduced by either party on direct examination of its expert witnesses to prove the standard of care. The court held open the possibility that treatment preferences could be explored on cross-examination, however, in order to test credibility. In such an event, the district court stated, a limiting instruction might be in order.
We agree with the district court's approach, as it is consistent with our decision in Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 50, 510 P.2d 190 (1973).
Karrigan was a medical malpractice action based on post-operative care, in which the district court entered a directed verdict because the plaintiff had not introduced expert testimony to establish the applicable standard of care or breach of it. The plaintiff's witness said only that it was his practice to check post-operative patients more frequently
The Court of Appeals followed our Karrigan rationale in Cox v. Lesko, 23 Kan.App.2d 794, 797-99, 935 P.2d 1086 (1997), aff'd in part and rev'd in part on other grounds 263 Kan. 805, 953 P.2d 1033 (1998). In that case, the plaintiff claimed it was error for the district court to restrict her cross-examination of the defendant's expert on his preferred method of treatment. She contended that such evidence would have been relevant to establish the applicable standard of care in treating the type of injury she sustained. Cox, 23 Kan.App.2d at 797-98, 935 P.2d 1086.
The Court of Appeals disagreed:
See also Nold v. Binyon, 272 Kan. 87, 100, 31 P.3d 274 (2001) ("Cox found it improper for a doctor to testify regarding his or her own preferred method of treatment in determining whether another doctor deviated from the appropriate standard of care.").
In this case, the district court was correct to grant Kaplan's motion in limine insofar as it addressed physician preference testimony admitted on direct examination for the purpose of proving the applicable standard of care. It may be that such testimony is admissible for another purpose, for example, as the district court pointed out, on cross-examination to impeach credibility; but we decline to further address this theoretical possibility at this procedural juncture in this particular case.
The district court was correct in ruling that treating physician Cooper's expert testimony on standard of care was subject to the 50 percent requirement in K.S.A. 60-3412. However, the summary judgment of the district court in Kaplan's favor must be reversed and the case remanded for further proceedings because the record does not support the district judge's ruling that Cooper failed to meet the 50 percent requirement. We also hold that the district court was correct in its ruling on the inadmissibility of direct testimony about physician treatment preferences to prove the applicable standard of medical care. This holding will guide the parties' presentation of evidence at any eventual trial, as well as inform the district judge's instructions to the jury. Having granted Schlaikjer the relief she sought through our interpretation and application of the statute, we do not reach her constitutional challenges to it.
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
DAVIS, C.J., not participating.
LARRY T. SOLOMON, District Judge, assigned.
