Morgan v. Wesley Medical Center, LLC et al

Filing 487

MEMORANDUM AND ORDER overruling 430 Motion for Summary Judgment By Connor Hartpence, M.D.. Signed by District Judge Kathryn H. Vratil on 7/23/2020. (heo)

Case 2:18-cv-02158-KHV Document 487 Filed 07/23/20 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D.M., a minor by and through his next friend
and natural guardian, KELLI MORGAN,

)
)
)
Plaintiff,
)
)
v.
)
)
WESLEY MEDICAL CENTER, LLC d/b/a
)
WESLEY MEDICAL
)
CENTER-WOODLAWN, et al.,
)
)
Defendants.
)
____________________________________________)

CIVIL ACTION
No. 18-2158-KHV

MEMORANDUM AND ORDER
On September 11, 2018, D.M., a minor by and through his next friend, Kelli Morgan, filed
an amended complaint against Wesley Medical Center, LLC d/b/a Wesley Medical CenterWoodlawn, Wesley-Woodlawn Campus, Lisa Judd, RN, Via Christi Hospitals Wichita, Inc. d/b/a
Via Christi-St. Francis, Aaron Kent, RN, Bridget Grover, PA-C, Dr. Gregory Faimon, Jennifer
Chambers-Daney, ARNP, Dr. Bala Bhaskar Reddy Bhimavarapu, CEP America-KS LLC,
Dr. Connor Hartpence, Dr. Stefanie White and Dr. Jamie Borick, alleging that defendants’ medical
malpractice caused him paralysis, neurological damage and other permanent injuries. First
Amended Complaint (Doc. #121); see Pretrial Order (Doc. #435) filed May 4, 2020. This matter
is before the Court on the Motion For Summary Judgment By Connor Hartpence, M.D.
(Doc. #430) filed April 23, 2020. For reasons stated below, the Court overrules Dr. Hartpence’s
motion.

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Factual Background
The following facts are uncontroverted or, where controverted, viewed in the light most
favorable to plaintiff.
On March 5, 2017 at 6:19 P.M., Kelli and Kevin Morgan brought plaintiff, their five-yearold son, to the Wesley Medical Center emergency room because of headaches, a sore throat,
vomiting, fatigue and abdominal pain. Wesley Medical Center diagnosed plaintiff with strep throat
and at 7:03 P.M., discharged him.
In March of 2017, Dr. Hartpence (“defendant”) was a first-year family practice resident on
the pediatric floor of Via Christi-St. Francis Medical Center. As a first-year resident, defendant
was part of a team that included a senior resident, Dr. White, and an attending physician, Dr. Bala.
Defendant’s responsibilities included accepting admissions from the emergency department. The
residency program maintained a practice whereby the attending physician called the senior resident
to report that a patient needed admission. The senior resident then called the first-year resident
and briefly described the case. At that point, the first-year resident conducted the patient’s history
and physical examination. After completing the exam, the first-year resident created an assessment
and plan, and spoke with the senior resident. The senior resident conducted her own evaluation of
the patient, and the two residents discussed the case. The first-year resident then contacted the
attending physician.
At 2:31 A.M. on March 6, 2017—approximately seven and a half hours after leaving
Wesley Medical Center—Kelli and Kevin Morgan took plaintiff to Via Christi. Via Christi’s
documentation listed plaintiff’s symptoms as follows: “nausea and vomiting, was just diagnosed
with strep tonight at [W]esley, mom concerned unable to keep meds down to treat it.” Emergency

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Documentation (Doc. #431-3) at 1. The emergency room provider listed the “Impression” as
headache, vomiting and strep throat. Id. at 5.
As the junior resident on the pediatrics floor, defendant went to the emergency room to
begin plaintiff’s admission process. When he entered, plaintiff was asleep. Although plaintiff
would occasionally arouse and moved his extremities in response to touch, defendant does not
remember that plaintiff ever fully woke up while he was in the room. Defendant was aware that
hours earlier, plaintiff had been to Wesley Medical Center, and received a diagnosis of strep throat.
Kelli Morgan specifically informed defendant that she had taken plaintiff to Wesley Medical
Center because plaintiff was experiencing “really severe” headaches, nausea and vomiting. Kelli
Morgan Deposition (Doc. #436-5) at 45–46. She also told defendant that since their visit to Wesley
Medical Center, she had noticed that plaintiff was “rolling his eyes into the back of his head and
[was] really weak and lethargic,” and that as they approached the Via Christi emergency room,
plaintiff’s symptoms had gotten worse. Id. She noticed that his eyes would not shut—they “were
like half shut while he was asleep,” and they appeared to be “protruding.” Id. When he examined
plaintiff, defendant did not know whether Wesley Medical Center had performed a full neurologic
examination of plaintiff, other than a Glasgow Coma Scale.1 Defendant specifically testified that
“[o]ther than a general assessment of the child, I don’t know that a full neurological exam was
done.” Hartpence Deposition (Doc. #436-2) at 13.
Defendant estimates that he spent 15 to 20 minutes taking plaintiff’s history and another
five minutes conducting an examination. He recorded that plaintiff had two emergency room
admissions, a headache, vomiting, nausea, dizziness and decreased appetite. Defendant believed
that plaintiff appeared well-hydrated, and “just looked like a kiddo that was exhausted after being

1

The parties do not explain what a Glasgow Coma Scale is.
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awake all night.” Id. at 12. Given the circumstances, defendant did not establish or communicate
a differential diagnosis, and he deferred doing the neurological portion of the physical exam. In
that regard, he reasoned as follows: “we, ideally, for completeness sake would have wanted to do,
at least, a general overview neurologic exam. And since he was sleeping, I didn’t—I thought it
would be cruel to wake up a sleeping kid who had been awake at night—to wake him up just for
the sake of completeness.” Id. at 23.
After defendant finished his examination and spoke with the senior resident, he called
Dr. Bala, which marked the end of defendant’s involvement with plaintiff.

According to

defendant, “the plan was to – a PO challenge in the morning, and if he did well with it and tolerated
antibiotics, then he could likely go home later that day.” Id. at 26.
At 10:00 A.M. on March 6, 2017—approximately eight hours after he arrived at Via
Christi—Via Christi called a code blue for plaintiff. Subsequent examination showed a mass in
his brain.

Plaintiff alleges that he suffered a catastrophic stroke which caused paralysis,

neurological damage and other permanent injuries.
Plaintiff and defendant each designated an expert to testify to whether defendant violated
the applicable standard of care. Plaintiff’s expert, Dr. Robert Dabrow, stated in his report that “it
is my opinion to a reasonable degree of medical certainty” that defendant “deviated from the
standard of care.”2 Dabrow Report (Doc. #436-6) at 4; see id. at 8 (discussing defendant’s
particular failures); see also id. at 11 (opinions are “held to a reasonable degree of medical

Defendant suggests that the Court cannot consider the opinions in Dr. Dabrow’s
report because his deposition testimony “did not constitute an endorsement of those opinions, or
provide the foundation necessary for their admission.” See Memorandum Reply In Support Of
Motion For Summary Judgment By Connor Hartpence, M.D. (Doc. #456) at 6. Defendant does
not elaborate on the basis for this objection. In any event, defendant’s premise is incorrect. See
Dabrow Deposition (Doc. #436-1) at 8 (besides one unrelated error, Dr. Dabrow testifies to
report’s accuracy); id. at 41 (report reflects Dr. Dabrow’s opinions).
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certainty”). In his deposition, Dr. Dabrow testified that when a resident sees a patient, he is
“required to do a complete history and physical,” and that “[r]arely and occasionally people are
going to defer [the full exam] for their own unique reasons.” Dabrow Deposition (Doc. #436-1)
at 25. When defense counsel asked whether deferring portions of the exam that do not appear
pertinent is “appropriate,” Dr. Dabrow stated that when a patient is admitted during the night, “the
intern, the resident—it’s the duty between one or both of them to get a complete history, and to do
a complete physical exam from head to toe, regardless of the complaint. That’s why the child’s in
the hospital. It’s not a babysitting service.” Id. According to Dr. Dabrow, defendant would have
satisfied “what was expected of him as a first-year resident” if he “did a complete history and a
complete exam,” and “thought about a differential diagnosis and presented all that information to
the attending.” Id. at 32. As to the standard of care in particular, given the circumstances in this
case, a resident could defer part of the exam “if the diagnosis was certain, if a complete history
had been obtained and an appropriate differential had been thought about, and if the patient had
been at least examined in a limited way for the pertinent findings.” Id. at 25. Dr. Dabrow stated
that if a first-year resident like defendant had accepted the prior strep throat diagnosis, deferring
the neurological exam would be “reasonable.” Id. at 32. Dr. Dabrow also testified that “it is
possible that [defendant] was within the standard of care,” and that he could not “offer an opinion,
to a reasonable degree of medical probability, that [defendant] violated the standard of care.” Id.
Defendant’s expert, Dr. Stephanie DeLeon, testified that given the all circumstances, and
particularly the information which Kelli Morgan relayed to defendant, plaintiff “needed a full
neurological exam sometime during his observation,” and “as soon as reasonable.” DeLeon
Deposition (Doc. #436-4) at 12, 16. According to Dr. DeLeon, such an exam would have taken
three to five minutes, and if findings were “consistent with increased intracranial pressure,” “it

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potentially could have prompted an earlier CT scan and intervention earlier.”

Id. at 16.

Dr. DeLeon stated that although the exam would have “ideally” occurred prior to 10:00 A.M. (the
time of plaintiff’s code blue), “there is nothing that required that to be done initially and
immediately at admission.” Id. at 12. In particular, “it did not deviate from the standard of care
for it not to have been done first thing that morning.” Id. Instead, “it should have been done at
some point during the admission, but there’s nothing that would say it should have been done at
four hours or eight hours or 24 hours.” Id.
Legal Standards
Pursuant to Rule 56(a), Fed. R. Civ. P., a party may move for summary judgment by
“identifying each claim or defense—or the part of each claim or defense—on which summary
judgment is sought.” Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show no genuine issue
as to any material fact and that the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hill v. Allstate
Ins. Co., 479 F.3d 735, 740 (10th Cir. 2007). A factual dispute is “material” only if it “might affect
the outcome of the suit under the governing law.” Liberty Lobby, 477 U.S. at 248. A “genuine”
factual dispute requires more than a mere scintilla of evidence in support of the party’s position.
Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). Once the moving party does so, the burden shifts to the
nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters
for which he carries the burden of proof. Applied Genetics Int’l, Inc. v. First Affiliated Sec., Inc.,

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912 F.2d 1238, 1241 (10th Cir. 1990); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). To carry his burden, the nonmoving party may not rest on his
pleadings but must instead set forth specific facts supported by competent evidence. NahnoLopez, 625 F.3d at 1283.
The Court views the record in the light most favorable to the nonmoving party. Deepwater
Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may grant summary
judgment if the nonmoving party’s evidence is merely colorable or is not significantly probative.
Liberty Lobby, 477 U.S. at 250-51. In response to a motion for summary judgment, parties cannot
rely on ignorance of facts, speculation or suspicion, and may not escape summary judgment in the
mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th
Cir. 1988); Olympic Club v. Those Interested Underwriters at Lloyd’s London, 991 F.2d 497, 503
(9th Cir. 1993).

The heart of the inquiry is “whether the evidence presents a sufficient

disagreement to require submission to the jury or whether it is so one-sided that one party must
prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52.
Analysis
Plaintiff claims that defendant was negligent by failing to do the following:
(1) consider a differential diagnosis that involved an intracranial process involving
increased intracranial pressure;
(2) rule out a neurological problem as being the cause of plaintiff’s complaints and
presentation;
(3) conduct a more complete and adequate neurological examination of plaintiff;
(4) perform a proper physical examination;
(5) take a proper history of plaintiff’s complaints and symptoms
(6) obtain a proper history regarding plaintiff’s headache;
(7) order immediate head imaging to rule out elevated intracranial pressure;
(8) order head imaging;
(9) order a head CT stat;
(10) perform and document a proper differential diagnosis;
(11) properly diagnose;
(12) diagnose elevated intracranial pressures;
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(13) consider an intracranial process;
(14) obtain a neurological consultation;
(15) follow up on abnormal labs;
(16) obtain vital signs;
(17) follow up on abnormal vital signs;
(18) review the complete medical chart including the nursing notes and triage sheet.
Pretrial Order (Doc. #435) at 24–25. Defendant asserts that he is entitled to judgment as a matter
of law because the record does not show that he violated his standard of care.
To prevail in a medical malpractice action under Kansas law, plaintiff must prove that
(1) defendant owed him a duty, (2) defendant breached his duty, (3) plaintiff was injured and (4) a
causal connection exists between the breach and plaintiff’s injury. Lindsey v. Bowlin, No. 073067-EFM, 2011 WL 723040, at *2 (D. Kan. Feb. 23, 2011). A physician has a duty “to use
reasonable and ordinary care and diligence in the diagnosis and treatment” of his patients, to use
his best judgment and to exercise “that reasonable degree of learning, skill and experience which
is ordinarily possessed by other physicians in the same or similar locations under like
circumstances.” Estate of Cox ex rel. Reemer v. Davis, No. 03-2507-GTV, 2004 WL 2066882, at
*2 (D. Kan. Sept. 14, 2004). In medical malpractice cases, the Court generally requires expert
testimony to establish the standard of care and to prove causation.3 Lindsey, 2011 WL 723040, at
*2. Expert witnesses must confine their opinions to matters “which are certain or probable and
not testify as to mere possibilities.” Howard v. TMW Enters., Inc., 32 F. Supp. 2d 1244, 1252 (D.
Kan. 1998) (citations omitted). Although Kansas law does not require the expert to use any
particular “magic words,” the opinion must reflect “reasonable medical probabilities.”

Id.

Under the narrow “common knowledge” exception, expert testimony is not
required where “the lack of reasonable care or the existence of proximate cause is apparent to the
average layman from common knowledge or experience.” Lindsey, 2011 WL 723040, at *2. Here,
plaintiff does not assert that the common knowledge exception applies to his claims against
defendant. Id. (common knowledge exception is “narrow and rarely applied”).
3

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(citations omitted); see Greig v. Botros, No. 08-1181-EFM-KGG, 2012 WL 718914, at *3 (D.
Kan. Mar. 5, 2012), aff’d, 525 F. App’x 781 (10th Cir. 2013) (expert must testify to standard of
care “with certainty and probability”); Nunez v. Wilson, 211 Kan. 443, 448, 507 P.2d 329, 334
(1973) (expressions such as “probably,” “more likely than not” and “others of similar import”
proper qualifications for medical expert’s opinion testimony if, taken as whole, testimony reflects
honest expression of professional opinion as to reasonable medical probabilities); see also Sharples
v. Roberts, 249 Kan. 286, 297, 816 P.2d 390, 398 (1991) (evidence insufficient where expert could
not come to “firm conclusion” or say with any degree of probability or certainty that violation of
standard of care caused injury).
Here, defendant asserts that he is entitled to judgment as a matter of law because expert
testimony does not establish that with reasonable medical probability, defendant violated his
standard of care by deferring a neurological examination.4 Defendant points out that plaintiff’s
expert, Dr. Dabrow, stated that he could not “offer an opinion, to a reasonable degree of medical
probability, that [defendant] violated the standard of care,” and that “it is possible that [defendant]
was within the standard of care.” Dabrow Deposition (Doc. #436-1) at 32. On the other hand,
defendant’s expert, Dr. DeLeon, explicitly testified that defendant did not violate his standard of
care. See DeLeon Deposition (Doc. #436-4) at 12 (“it did not deviate from the standard of care
for [neurological exam] not to have been done first thing that morning”); id. (neurological exam

4

As the Court noted above, plaintiff claims that defendant was negligent by failing
to take 18 different actions. See Pretrial Order (Doc. #435) at 24–25. On summary judgment, the
parties exclusively focus on defendant’s decision to defer a neurological examination. See
Memorandum Reply In Support Of Motion For Summary Judgment By Connor Hartpence, M.D.
(Doc. #456) at 13 (“issue presented is whether the decision to defer the neurological part of the
history and physical was, as Plaintiff contends, a violation of the standard of care”). As a result,
even if the Court were to sustain defendant’s motion, other claims against him would remain in
the case.
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“should have been done at some point during the admission, but there’s nothing that would say it
should have been done at four hours or eight hours or 24 hours”).
To rebut this evidence, plaintiff highlights testimony from Dr. Dabrow which, according
to plaintiff, either directly or indirectly establishes that defendant violated the standard of care.
See Dabrow Report (Doc. #436-6) at 4 (“it is my opinion to a reasonable degree of medical
certainty” that defendant “deviated from the standard of care”); id. at 8 (discussing defendant’s
particular failures); id. at 11 (opinions “held to a reasonable degree of medical certainty”); see also
Dabrow Deposition (Doc. #436-1) at 25 (when resident sees patient, he is “required to do a
complete history and physical,” and “[r]arely and occasionally people are going to defer [the full
exam] for their own unique reasons”); id. (when patient admitted during night, “the intern, the
resident—it’s the duty between one or both of them to get a complete history, and to do a complete
physical exam from head to toe, regardless of the complaint”); id. at 32 (defendant would have
satisfied “what was expected of him as a first-year resident” if he “did a complete history and a
complete exam,” and “thought about a differential diagnosis and presented all that information to
the attending”); id. at 25 (resident could defer part of exam “if the diagnosis was certain, if a
complete history had been obtained and an appropriate differential had been thought about, and if
the patient had been at least examined in a limited way for the pertinent findings”).
Viewed in the light most favorable to plaintiff, the record evidence creates a genuine issue
of material fact whether defendant violated his standard of care by deferring the neurological exam.
As the Court explained above, medical malpractice cases require expert testimony to establish the
standard of care, and experts must confine their opinions to matters “which are certain or probable
and not testify as to mere possibilities.” Lindsey, 2011 WL 723040, at *2; Howard, 32 F. Supp.
2d at 1252 (citations omitted). In other words, for plaintiff to succeed on a medical malpractice

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claim, expert testimony must establish that with reasonable medical probability, defendant violated
his standard of care. Howard, 32 F. Supp. 2d at 1252 (citations omitted). Here, contrary to
defendant’s assertion, the record contains such testimony. Dr. Dabrow stated in his report that
with a reasonable degree of medical certainty, defendant deviated from his standard of care, and
Dr. Dabrow discussed specific failures which led to that conclusion.

See Dabrow Report

(Doc. #436-6) at 4 (“it is my opinion to a reasonable degree of medical certainty” that defendant
“deviated from the standard of care”); id. at 8 (discussing defendant’s particular failures); id. at 11
(opinions are “held to a reasonable degree of medical certainty”). While defendant rightfully
points out that Dr. Dabrow testified that he could not “offer an opinion, to a reasonable degree of
medical probability, that [defendant] violated the standard of care,” see Dabrow Deposition
(Doc. #436-1) at 32, this apparent contradiction is an issue of weight for the jury, not one for the
Court to decide on summary judgment. Combined with Dr. Dabrow’s other testimony regarding
particular deficiencies in defendant’s treatment of plaintiff, this evidence creates a genuine issue
of material fact whether defendant violated his standard of care. Accordingly, defendant is not
entitled to judgment as a matter of law.
IT IS THEREFORE ORDERED that the Motion For Summary Judgment By Connor
Hartpence, M.D. (Doc. #430) filed April 23, 2020 is OVERRULED.
Dated this 23nd day of July, 2020 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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