Morgan v. Wesley Medical Center, LLC et al

Filing 508

MEMORANDUM AND ORDER overruling 444 Motion For Partial Summary Judgment As To Plaintiff's Punitive Damage Claims By Jennifer Chambers-Daney, APRN; sustaining 448 Motion For Partial Summary Judgment As To Plaintiff's Punitive Damage Claims By CEP America-KS LLC. Signed by District Judge Kathryn H. Vratil on 9/14/2020. (smc)

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.

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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 Medical Center”), Wesley-Woodlawn Campus, Lisa Judd, RN, Via Christi
Hospitals Wichita, Inc. d/b/a Via Christi-St. Francis (“Via Christi”), Aaron Kent, RN, Bridget
Grover, PA-C, Dr. Gregory Faimon, Jennifer Chambers-Daney, ARNP (“Chambers-Daney”),
Dr. Bala Bhaskar Reddy Bhimavarapu, CEP America-KS

LLC (“CEP”),

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 Partial Summary Judgment As To Plaintiff’s
Punitive Damage Claims By Jennifer Chambers-Daney, APRN (Doc. #444) and the Motion
For Partial Summary Judgment As To Plaintiff’s Punitive Damage Claims By CEP America-KS
LLC (Doc. #448), both filed May 15, 2020. For reasons stated below, the Court overrules the
motion of Chambers-Daney and sustains the motion of CEP.

Legal Standards
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., 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.
Nahno-Lopez, 625 F.3d at 1283.
The Court views the record in the light most favorable to the nonmoving party. Dewitt v.
Sw. Bell Tel. Co., 845 F.3d 1299, 1306 (10th Cir. 2018). 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. The heart of the inquiry is “whether the evidence presents a sufficient

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disagreement to require submission to the jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251–52.
Factual And Procedural Background
The following facts are uncontroverted, deemed admitted or, where controverted, viewed
in the light most favorable to plaintiff, the non-movant.
On March 5, 2017 at 6:19 p.m., Kelli and Kevin Morgan brought plaintiff, their five-yearold son D.M., to the Wesley Medical Center emergency room because of intense headaches,
nausea, dizziness, unbalance, vomiting, fatigue and abdominal pain.

At 7:06 p.m., Wesley

Medical Center personnel diagnosed plaintiff with strep throat and discharged him.
After returning home, plaintiff’s symptoms continued to worsen. On March 6, 2017 at
2:22 a.m., Kelli took plaintiff to the Via Christi emergency room.

At Via Christi, Nurse

Practitioner Jennifer Chambers-Daney saw plaintiff. CEP employed Chambers-Daney, who was
the only employee of CEP involved in plaintiff’s treatment. Kelli told Chambers-Daney about
plaintiff’s prior visit to Wesley Medical Center, his strep diagnosis and his worsening symptoms,
including vomiting, pain when turning his head, lethargy and his eyes rolling into the back of his
head “almost like he was going unconscious.” Deposition of Kelli Morgan (Doc. #445-2) at
174–75. Kelli also told Chambers-Daney that she was concerned D.M. was progressing into
meningitis, but Chambers-Daney “didn’t really give a response.” Id. at 175.
Chambers-Daney took Kelli and plaintiff to an examination room. Once in the room,
Chambers-Daney pointed to D.M.’s eyes and said that he looked like he was awake. Id. at 176.
Kelli responded that D.M. was not awake and that “his eyes aren’t closing when he is going to
sleep.” Id.
Chambers-Daney then prepared D.M.’s chart stating as follows:
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The patient presents with sore throat and PT HAS HAD A SORE THROAT FOR
UNKNOWN TIME. SISTER JUST HAD TONSILS OUT AND THE MOM
WORRIES THAT HE [ ] WAS TOO AFRAID TO TELL THEM THAT HE MAY
NEED HIS OUT TOO. SEEN AT WESLEY THIS EVE 6PM DX STREP. PT
SENT HOME AND THEN MOM STATES HE HAS BEEN VOMITING EVERY
HOUR AND NOT ABLE TO KEEP DOWN PAIN MEDS. The onset was
unknown. The course/duration of symptoms is constant. Location: Pharynx throat.
The character of symptoms is pain and redness. The relieving factor is none. Prior
episodes: none. Associated symptoms: vomiting.
Emergency Documentation (Doc. #445-1) at 020006 (emphasis in original). The chart noted
that Chambers-Daney did not perform a neurological examination.

According to Kelli,

Chambers-Daney never touched or examined plaintiff. Deposition of Kelli Morgan (Doc. #4452) at 338. The chart also did not include D.M.’s history of headache, nausea, intractable
vomiting, lethargy, unbalance, dizziness, slurred speech, photophobia and D.M.’s previous
admission to Wesley Medical Center. Id. at 174–75. Chambers-Daney did not ask questions
about the headache and on that topic testified, “I could have, but based upon his presentation, I
didn’t see the need for it at that time.” Deposition of Chambers-Daney (Doc. #460-20) at 77.
Chambers-Daney never asked Kelli for more information about what happened at Wesley
Medical Center because she “didn’t see a reason to ask for more than what [Kelli] told me.” Id. at
136.
Chambers-Daney then left plaintiff’s room and ordered lab work, IV fluids and Zofran for
plaintiff’s vomiting.

Plaintiff and Chambers-Daney did not interact after this point.

At

5:02 a.m., Chambers-Daney consulted the supervising doctor, Dr. Bala Bhaskar Reddy
Bhimavarapu, who admitted plaintiff for observation.
At 10:00 a.m. on March 6, 2017—approximately eight hours after he arrived at Via
Christi—Via Christi personnel called a code blue for plaintiff. Subsequent examination showed
a mass in his brain. As a result, plaintiff suffered a catastrophic stroke which caused paralysis,
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neurological damage and other permanent injuries. Pretrial Order (Doc. #435) at 47.
According to plaintiff’s experts, Chambers-Daney did not meet the standard of care
because she failed to obtain plaintiff’s relevant patient history so a medical decision could be
made. Based on plaintiff’s symptoms, Chambers-Daney should have called Wesley Medical
Center to learn more about D.M.’s presentation, completed a neurological examination and
ordered CT imaging. Deposition of James Mathews, M.D. (Doc. #460-4) at 174; Deposition of
Charles Murphy, M.D. (Doc. #460-5) at 79, 135–36. Beyond Via Christi’s standard of care
regarding patient care and emergency room treatments, CEP did not have any additional policies
or procedures regarding treatment. Deposition of Dr. Chang (Doc. #460-12) at 9, 31.
Between April of 2014 and June of 2016, at least eight months before she treated
plaintiff, Chambers-Daney posted cartoons and memes to her personal Facebook page. See
Facebook Posts (Doc. #460-10). The first post was a Bitstrips cartoon depicting two nurses
commiserating about the frustration of filling out patient charts.1 The other posts were memes
that Chambers-Daney reposted from satirical sites. One meme depicted comedian Ken Jeong,
who is a licensed physician, joking that the only patient satisfaction question that matters is “DID
YOU DIE?”

Another meme depicted a man surrounded by aggressive reporters and

microphones with the caption, “When you try to give a quick medication and your patient’s family
questions everything you do.”

The last meme featured an anthropomorphized iguana

complaining about other medical providers making excuses for not completing their patient care
duties.

1

The Bitstrips is captioned as follows:
Narrator: “[The nurses] did it! They completed [the patient’s] charts! Yeah!”
Nurse 1: “That [t]ook forever!”
Nurse 2: “I know…[did the patient] chart anything!??”
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CEP has a Social Media Policy that directs employees to be “respectful and professional” on
social media and to not post anything “obscene, defamatory, profane, libelous, threatening,
harassing or abusive.” Deposition of Dr. Chang (Doc. #460-12) at 54–55. Chambers-Daney
testified that she was unaware of CEP policies or procedures that she was obligated to follow.
Deposition of Chambers-Daney (Doc. #460-20) at 134. CEP took no disciplinary action against
Chambers-Daney for her Facebook posts. When CEP learned that D.M.’s representatives were
going to reveal her Facebook posts to the media, CEP representative Dr. Howard Chang told her
to “shut down” her Facebook profile. Id. at 114. CEP continues to employ Chambers-Daney.
On September 11, 2018, plaintiff filed an amended complaint. Plaintiff claims that
defendants were negligent by failing to do one or more of 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 D.M.’s complaints and
presentation;
(3) conduct a more complete and adequate neurological examination of D.M.;
(4) perform a proper physical examination;
(5) take a proper history of D.M.’s complaints and symptoms;
(6) obtain a proper history regarding D.M.’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;
(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;
(19) properly evaluate and document a complete neurological exam in a child who
presented to the emergency department and is described as “ill appearing,”
“SLEEPY”;
(20) properly evaluate and document a complete neurological exam in a child who
presented to the emergency department with the symptoms of vomiting and
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headache; and
(21) obtain emergent neuro-imaging.
Pretrial Order (Doc. #435) at 24–27. Plaintiff claims that based on Chambers-Daney’s conduct,
CEP is liable for punitive damages under the doctrine of respondeat superior. Id. at 28.
Analysis
Defendants assert that they are entitled to summary judgment on plaintiff’s claim for
punitive damages.
Under Kansas law, plaintiff may recover punitive damages to punish the wrongdoer for a
“malicious, vindictive or willful and wanton invasion” of plaintiff’s rights, with the ultimate
purpose being to restrain and deter others from the commission of similar wrongs. Foster v. USIC
Locating Servs., LLC, No. 16-2174-CM, 2018 WL 3575649, at *4 (D. Kan. July 25, 2018)
(citations omitted). To recover punitive damages, plaintiff must show by clear and convincing
evidence that defendant’s conduct was willful, malicious or wanton.2 Id.; D.M. by & through
Morgan v. Wesley Med. Ctr. LLC, No. 18-2158-KHV, 2019 WL 2448574, at *7 (D. Kan.
June 12, 2019).

Wantonness refers to the “mental attitude of the wrongdoer rather than a

particular act of negligence.” P.S. ex rel. Nelson v. The Farm, Inc., 658 F. Supp. 2d 1281,
1303 (D. Kan. 2009) (citing Reeves v. Carlson, 266 Kan. 310, 314, 969 P.2d 252, 256 (1998)).
For their acts to be wanton, defendants must “realize the imminence of danger and recklessly
disregard and be indifferent to the consequences” of their act. Id. The first prong—realizing
imminent danger—does not necessarily mean that defendants knew that plaintiff’s particular injury
was imminent. See Holt v. Wesley Med. Ctr., LLC., No. 00-1318-JAR, 2004 WL 1636574, at
*8 (D. Kan. July 19, 2004). The Court instead asks whether based on defendants’ knowledge of
2

As best the Court can ascertain, plaintiff does not claim that defendants willfully
or maliciously injured him.
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existing conditions, they were aware that their action or inaction “would likely or probably result”
in the injury or other known risk or complication. Id.; see Reeves, 266 Kan. at 315, 969 P.2d at
256–57 (based on knowledge of existing conditions, defendant was aware conduct likely or
probably would cause injury). Plaintiff can circumstantially prove defendants’ knowledge of
imminent dangers. Holt, 2004 WL 1636574, at *8.
As to the second prong—reckless disregard and indifference—Kansas law does not require
plaintiff to establish “a formal and direct intention to injure any particular person. It is sufficient
if [ ] defendant evinced that degree of indifference to the rights of others which may justly be
characterized as reckless.” P.S. ex rel. Nelson, 658 F. Supp. 2d at 1303 (citing Reeves, 266 Kan.
at 315, 969 P.2d at 256–57). Recklessness is more than mere negligence and requires conduct
which shows “disregard of or indifference to consequences, under circumstances involving
danger to life or safety of others.” Id.
The Court typically reserves the question of wantonness for the jury—only when
reasonable persons “could not reach differing conclusions from the same evidence may the issue
[of wantonness] be decided as a question of law.” Danaher v. Wild Oats Mkts., Inc., 779 F.
Supp. 2d 1198, 1213 (D. Kan. 2011) (citations omitted).
Here, Chambers-Daney and CEP assert that plaintiff cannot recover punitive damages
because (1) plaintiff has failed to plead grounds for recovery of punitive damages; (2) assuming
plaintiff relies upon a claim of wanton conduct, no reasonable jury could find that ChambersDaney’s actions were wanton; and (3) CEP, as an employer, did not authorize or ratify ChambersDaney’s treatment of plaintiff, endorse similar treatment beforehand or place her in a managerial
position. Each defendant will be considered in turn.

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I.

Jennifer Chambers-Daney, APRN
Chambers-Daney first argues that the amended complaint and pretrial order do not allege

that her conduct was willful, wanton, fraudulent or malicious. The pretrial order supersedes all
pleadings and controls the subsequent course of this case. Fed. R. Civ. P. 16(d); D. Kan.
Rule 16.2(b). In the Pretrial Order (Doc. #435), plaintiff identifies specific conduct that he
claims was wanton. See Pretrial Order (Doc. #435) at 24–27 (failing to perform proper physical
examination, failing to properly evaluate and document complete neurological exam in child who
presented to emergency department with symptoms of vomiting and headache and failing to
obtain emergent neuro-imaging). The Court therefore rejects Chambers-Daney’s argument that
plaintiff has not alleged conduct that could warrant punitive damages.
Chambers-Daney does not seek summary judgment on plaintiff’s claims of negligence, but
she argues that plaintiff has not presented sufficient evidence for a reasonable jury to find
wanton conduct. Chambers-Daney focuses her challenge on the first prong, arguing that she did
not realize imminent danger.3 Chambers-Daney argues that at most, the evidence shows that she
did not realize that plaintiff’s symptoms indicated anything other than strep throat. In support,
Chambers-Daney points to Via Christi emergency room admission notes documenting plaintiff’s
sore throat and frequent vomiting in response to taking antibiotics. Emergency Documentation
(Doc. #445-1) at 020006. Chambers-Daney argues that she did not know and could not have
known that neurological injury to plaintiff was imminent.
The record creates a genuine issue of material fact whether Chambers-Daney’s actions
constitute wanton conduct. According to plaintiff’s experts, when plaintiff reported symptoms
3

Even if Chambers-Daney challenged the second prong, the Court finds that the
record creates a genuine issue of material fact whether she was reckless and indifferent to the
consequences of her inaction.
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of headaches, dizziness and vomiting, Chambers-Daney should have performed a complete
neurological workup and ordered a CT scan. Deposition of Dr. Charles Murphy (Doc. #460-5)
at 79, 135–36; Deposition of Dr. James Mathews (Doc. #460-4) at 174. Plaintiff’s mother told
Chambers-Daney about D.M.’s worsening neurological symptoms, including severe headaches,
dizziness, vomiting, unbalance and protruding eyes. Deposition of Kelli Morgan (Doc. #445-2) at
174–75. Chambers-Daney witnessed that D.M.’s eyes would not close when he slept. Id. at
175. Despite being aware of these facts, Chambers-Daney did not chart D.M.’s neurological
symptoms. Emergency Documentation (Doc. #445-1) at 020006. She did not complete a
physical exam or a neurological exam. Deposition of Kelli Morgan (Doc. #445-2) at 338. She
did not ask important follow-up questions about D.M.’s headache or his prior emergency room
visit at Wesley Medical Center. Deposition of Daney (Doc. #460-20) at 77, 136. ChambersDaney argues that before the code blue, none of D.M.’s other providers suspected a stroke, but
this argument is tautological. The other providers testified that they did not suspect a stroke
because Chambers-Daney’s admission notes were deficient. See, e.g., Deposition of Dr. White
(Doc. #447-5) at 30.
On this record, a reasonable factfinder could conclude that given Chambers-Daney’s
knowledge of existing conditions, she understood that her action or inaction “would likely or
probably result” in plaintiff’s injury or other risk or complications. Holt, 2004 WL 1636574, at
*8. Accordingly, a reasonable jury could find that Chambers-Daney realized imminent danger

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and was reckless and indifferent to the consequences of her inaction.4 As to punitive damages,
Chambers-Daney is not entitled to summary judgment.
II.

CEP America-Kansas, LLC
CEP seeks summary judgment on plaintiff’s claim for punitive damages. See K.S.A. 60-

3702(c)–(d).
Employers can be liable for punitive damages arising from the acts of an employee only in
certain limited situations.

Exemplary or punitive damages shall not be assessed against a

“principal or employer for the acts of an agent or employee unless the questioned conduct was
authorized or ratified by a person expressly empowered to do so on behalf of the principal or
employer.” K.S.A. 60-3702(d)(1) (emphasis added).
The “questioned conduct” in the context of K.S.A. 60-3701 must be causally connected to
the resulting harm, and the employer must authorize or ratify this conduct. Smith v. Printup, 254
Kan. 315, 342, 866 P.2d 985, 1003–04 (1993). Authorization is generally accomplished before
or during the employee’s questioned conduct and may be based on an express grant of authority
or on a course of conduct implying authority. Lindsey v. Miami Cty. Nat’l Bank, 267 Kan. 685,
692, 984 P.2d 719, 724 (1999).

In addition, placing an employee in certain positions of

authority, such as a managerial agent of some kind, can suffice. See, e.g., Holt, 2004 WL
1636574, at *11. Ratification may be accomplished before, during or after the employees’
questioned conduct. See Lindsey, 267 Kan. at 692, 984 P.2d at 724; Smith, 254 Kan. at 342,

4

Plaintiff also argues that Chambers-Daney’s prior Facebook posts containing jokes
about patient care evidence a wanton attitude. Facebook Posts (Doc. #460-10). The Court need
not address this issue or the admissibility of the Facebook posts because plaintiff has presented
other evidence that creates a genuine issue of material fact whether Chambers-Daney’s actions
were wanton.
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866 P.2d at 1003–04; Werdann v. Mel Hambelton Ford, Inc., 32 Kan. App. 2d 118, 131, 79
P.3d 1081, 1091 (2003). It may be based on an express ratification or on a course of conduct
indicating the approval, sanctioning or confirmation of the questioned conduct. Smith, 254 Kan.
at 342, 866 P.2d at 1003–04.
CEP argues that plaintiff has not presented evidence that as Chambers-Daney’s employer,
it authorized or ratified the “questioned conduct”—her treatment of plaintiff. 5 K.S.A. 603702(d)(1). CEP also argues that plaintiff did not present evidence showing that ChambersDaney was acting in a managerial capacity.
Plaintiff argues that CEP authorized or ratified Chambers-Daney’s treatment of plaintiff
because it did not have policies or procedures regarding patient care and emergency room
treatment that Chambers-Daney was required to follow. Deposition of Dr. Chang (Doc. #46012) at 9, 31. Plaintiff argues that the absence of a CEP-specific prohibition on “wanton” medical
treatment implies that CEP authorized or ratified all of Chambers-Daney’s conduct.
Authorization and ratification in this context, however, require affirmative action. Smith, 254
Kan. at 340–42, 866 P.2d at 1002–04. Plaintiff did not present evidence that CEP approved,
sanctioned or confirmed the treatment that Chambers-Daney administered. Id. at 342. Plaintiff
did not present evidence that Chambers-Daney was in a managerial role or that CEP knew or
should have known that Chambers-Daney would engage in misconduct. Plaintiff also did not
present evidence of CEP policies, procedures or managerial behavior that a jury reasonably could
infer implicitly authorized or ratified the questioned conduct. Lowe v. Surpas Res. Corp., 253
5

CEP also argues that plaintiff failed to present sufficient evidence for a
reasonable jury to find by clear and convincing evidence that Chambers-Daney’s actions were
willful, wanton, fraudulent or malicious. As explained above, a reasonable jury could find that
Chambers-Daney’s conduct was wanton. Accordingly, CEP is not entitled to summary judgment on
this alternative basis.
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F. Supp. 2d 1209, 1256 (D. Kan. 2003) (citing Smith, 254 Kan. at 340, 866 P.2d at 1002–03).
Plaintiff argues that CEP authorized or ratified Chambers-Daney’s treatment of him
because CEP did not discipline her for objectionable Facebook posts. Plaintiff does not allege
that the Facebook posts themselves were tortious or caused plaintiff harm. Under Kansas law, to
impose punitive damages on CEP, a jury must find that CEP authorized or ratified the
“questioned conduct,” i.e. the tortious act itself. K.S.A. 60-3701; Smith, 254 Kan. at 342, 866
P.2d at 1003–04. Punitive damage awards are premised upon an underlying tortious act, not an
egregious mindset alone. Smith, 254 Kan. at 315, 866 P.2d at 988–89. Plaintiff’s cause of
action is based on the questioned conduct of Chambers-Daney’s treatment. Chambers-Daney’s
Facebook posts, posted months before interacting with plaintiff, were unrelated to his treatment
and could not be the basis for his cause of action or the cause of his disability. Accordingly,
plaintiff has not presented sufficient evidence for a reasonable jury to award punitive damages
against CEP. As to punitive damages, CEP is entitled to summary judgment.
IT IS THEREFORE ORDERED that the Motion For Partial Summary Judgment As To
Plaintiff’s Punitive Damage Claims By Jennifer Chambers-Daney, APRN (Doc. #444) filed
May 15, 2020 is OVERRULED.
IT IS FURTHER ORDERED that the Motion For Partial Summary Judgment As To
Plaintiff’s Punitive Damage Claims By CEP America-KS LLC (Doc. #448) filed May 15, 2020 is
SUSTAINED.
Dated this 14th day of September, 2020 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H.
VRATIL
United States District Judge

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