Foster v. Klaumann (Supreme Court)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,286

KEELY FOSTER, a Minor, through her Parents
and Natural Guardians, KIM FOSTER and
KEVIN FOSTER, and Individually on their own behalf,
Appellants,

v.

MICHELLE A. KLAUMANN, M.D.,
Appellee.


SYLLABUS BY THE COURT

1.
For jury instruction issues, the analytical progression and corresponding standards
of review on appeal are: (a) First, the appellate court considers reviewability of the issue
from both jurisdiction and preservation viewpoints, exercising an unlimited standard of
review; (b) next, the court uses an unlimited review to determine whether the instruction
was legally appropriate; (c) then, the court determines whether there was sufficient
evidence, viewed in the light most favorable to the party requesting the instruction, that
would have supported the instruction; and (d) finally, if the district court erred, the
appellate court must determine whether the error was harmless, using the test, degree of
certainty, and analysis set forth in State v. Ward, 292 Kan. 541, Syl. ¶¶ 5-6, 256 P.3d 801
(2011), cert. denied 132 S. Ct. 1594 (2012).

2.
A trial court is required to give a jury instruction supporting a party's theory if the
instruction is requested and there is evidence supporting the theory which, if accepted as
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true and viewed in the light most favorable to the requesting party, is sufficient for
reasonable minds to reach different conclusions based on the evidence.

3.
To establish a medical malpractice claim, a plaintiff must show: (a) the health
care provider owed the patient a duty of care and was required to meet or exceed a certain
standard of care to protect the patient from injury; (b) the health care provider breached
this duty or deviated from the applicable standard of care; (c) the patient was injured; and
(d) the injury was proximately caused by the health care provider's breach of the standard
of care.

4.
Before a Kansas court may declare an error harmless it must determine the error
did not affect a party's substantial rights, meaning it will not or did not affect the trial's
outcome. The degree of certainty by which the court must be persuaded that the error did
not affect the trial's outcome will vary depending on whether the error implicates a right
guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility the error contributed to the verdict. If a right guaranteed
by the United States Constitution is not implicated, a Kansas court must be persuaded
there is no reasonable probability the error will or did affect the trial's outcome.

5.
When there is no dispute in the evidence that a physician is a specialist, it is not
reversible error for the court to instruct the jury on the standard of care of a general
practitioner (PIK Civ. 4th 123.01) even though the standard of care of specialist (PIK
Civ. 4th 123.11) applies because these instructions are not inconsistent and the general
physician standard of care instruction is at worst superfluous.
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6.
PIK Civ. 4th 123.11, the "best judgment" instruction, does not misstate the law by
instructing the jury that the physician has a right to use his or her best judgment in the
selection of the choice of treatment because the instruction also informs the jury that
selection must conform with the objective standard of care applicable to medical
malpractice claims.

Review of the judgment of the Court of Appeals in 42 Kan. App. 2d 634, 216 P.3d 671 (2009).
Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed January 11,
2013. Judgment of the Court of Appeals reversing and remanding the case to the district court is reversed.
Judgment of the district court is affirmed.

W.J. Fitzpatrick, of Fitzpatrick and Bass, of Independence, argued the cause, and Douglas A.
Buxbaum and John M. Fitzpatrick, of Buxbaum, Daue & Fitzpatrick, PLLC, of Missoula, Montana, were
with him on the briefs for appellants.

Michael R. O'Neal, of Gilliland & Hayes, P.A., of Hutchinson, argued the cause, and Shannon L.
Holmberg, of the same firm, was with him on the briefs for appellee.

Kyle J. Steadman, of Foulston Siefkin LLP, of Wichita, for amicus curiae Kansas Association of
Defense Counsel.

James R. Howell, of Prochaska, Giroux & Howell, of Wichita, and David R. Morantz and
Matthew E. Birch, of Shamberg, Johnson & Bergman, of Kansas City, Missouri, for amicus curiae
Kansas Association for Justice.

The opinion of the court was delivered by

BILES, J.: This is a medical malpractice case challenging jury instructions used at
trial. Keely Foster, a minor, and her parents, Kim and Kevin Foster, sued Dr. Michelle
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Klaumann, a pediatric orthopedic surgeon, for injury to a nerve in Keely's leg during a
surgery to remove tumors. The jury unanimously found Klaumann not at fault. A divided
Court of Appeals panel reversed and remanded for a new trial. We consider: (1) whether
it was error to instruct the jury on both a general physician standard of care and a
specialist standard of care when the parties do not dispute Klaumann is a specialist; and
(2) whether the "best judgment" instruction improperly suggests that a physician's
subjective beliefs should be considered when establishing negligence because it states the
physician has a right to use his or her best judgment when determining the course of
treatment.

Although we suggest improvements should be made to the standard PIK
instructions from which those instructions were taken, we hold that reversal is not
required. We reverse the Court of Appeals and affirm the district court based on the jury's
verdict for the doctor.

FACTUAL AND PROCEDURAL BACKGROUND

Keely has multiple hereditary exostosis, a condition causing osteochondromas or
bone tumors to grow around the ends of the long bones. The osteochondromas stop
forming once a child matures, and most tumors are benign. But they can cause permanent
conditions such as pain, loss of motion, deformity, or joint alignment problems.

Klaumann began treating Keely in 1999 when Keely was 5 years old. For the first
6 years, the doctor monitored Keely's condition with periodic examinations and X-rays to
track the size and location of any osteochondromas.

In March 2005, Klaumann recommended surgery because Keely was experiencing
consistent pain in an area without much soft tissue and those symptoms could relate to a
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bursa deformity or nerve irritation. Keely's mother, Kim Foster, agreed to surgery. But
the parties disputed which tumors she and the doctor agreed would be removed.

Klaumann testified she planned to excise four tumors with two incisions—two
tumors on the distal femur, the hook-shaped osteochondroma between the tibia and the
fibula, and one on the proximal fibula. But Keely's mother testified that she agreed only
to removing two tumors, which she described as "one on top of her leg and then one on
the inside of her leg, just below the knee." A note from Klaumann's office in March 2005
summarized the surgery as: "[Kim] would like to have the femoral and proximal fibular
osteochondromas removed. This will be done after school is out in late May."

On the day of surgery in May, Klaumann met with Keely's parents, and the scope
of the surgery changed. But again the two sides dispute what tumors the parties agreed
were to be removed. The Fosters contend the incision endangering the nerve was added
the day of surgery, while Klaumann claims the incision added could not have caused the
nerve damage that occurred.

After the procedure, Keely experienced foot drop in her left foot. She could not
extend her left toes and had numbness. In the following weeks, Keely was still unable to
move her foot up (dorsiflexion) or out (eversion). Dorsiflexion is controlled by the deep
peroneal nerve, and eversion is controlled by the superficial peroneal nerve. Keely
underwent a second surgery with Dr. Rahul Nath, a surgeon specializing in complex
nerve injuries, to attempt to restore function in her foot. Keely's peroneal nerve function
had not improved 1 year after the second surgery. According to Nath, it is unlikely to
return.

Keely's parents filed suit individually and on behalf of their daughter, alleging
Klaumann committed medical malpractice. In the pretrial conference order, the Fosters
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alleged Klaumann violated the applicable standard of care by: (1) failing to give and
document an appropriate informed consent; (2) failing to document there was an
appropriate indication for surgical removal of the osteochondromas removed during
surgery; (3) failing to comply with the standard of care by not identifying the
neurovascular structures in order to avoid nerve injury during surgery; (4) transecting the
deep peroneal nerve and injuring her superficial and/or common peroneal nerve; (5)
failing to recognize and/or report that she transected and injured the nerve during surgery
so that Keely could receive prompt specialty consultation; and (6) failing to properly and
timely diagnose and treat Kelly's postoperative neurologic injury and to refer Keely to a
specialist.

The Jury Instructions

During trial, both parties agreed regarding the surgical claims that Klaumann held
herself out as a specialist, so the specialist standard of care instruction, PIK Civ. 4th
123.12, should be issued. But at the jury instruction conference, the parties disputed
whether the general physician standard of care instruction from PIK Civ. 4th 123.01 and
best judgment instruction from PIK Civ. 4th 123.11 also should be given. The Foster's
argued neither was appropriate, while Klaumann argued both were required.

The district court agreed with the doctor. It held the general physician standard of
care instruction should be issued because the Fosters' informed consent claim was a
general duty as a matter of law. The district court judge further stated, "I think the
courses of treatment in this case [are] a . . . gray area mixed between both [the specialist
and the general physician standards of care] and that there is sufficient evidence in order
to argue that there's been the [applicable] standard presented by both sides."

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Regarding the best judgment instruction, the district court held that it should be
given because there was testimony on different courses of treatment. It defined those as
the expansion of the surgery and "the recommendation as to whether to do one incision,
two incisions, each of those variations is a course of treatment." After further argument,
the court stated that it might not have given the instruction if the only issue was whether
to do the surgery or not, but "the evidence that [the Fosters] presented has to do [with]
and was directed toward the change between what [the Fosters] thought was going to
happen . . . in March and what the defendant came in and said let's do in May." The
district court explained further that the jury should be given the best judgment instruction
because Klaumann went from two incisions to three.

Verdict and Posttrial Motions

The Fosters' claims were submitted to the jury, which unanimously found the
doctor was not at fault. The Fosters argued for new trial based on numerous claimed
errors, including the district court's issuing the general physician standard of care and
best judgment instructions. The district court denied the motion.

Regarding the two claimed jury instruction errors, the court observed the PIK
Notes on Use approve instructing the jury on both the general physician and specialist
standards of care when both are appropriate. (See PIK Civ. 4th 123.11, Notes of Use: "If
there is a dispute as to which standard is applicable in light of the evidence in the case,
both instructions should be given, with the appropriate modifications . . . if necessary to
avoid confusion for the jury;" PIK Civ. 4th 123.01, Notes on Use [similar statements].).
The court also reiterated the best judgment instruction was appropriate "given the issue of
how one would treat the number of incisions and the number of osteochondromas to be
removed at the time of surgery [and] given that there was a long time while everybody
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knew that the osteochondromas were there but surgery was not indicated or arguably not
indicated."

At the Court of Appeals, the Fosters again argued numerous trial errors, including
that it was improper to issue the general physician standard of care instruction and the
best judgment instruction. They contended these instructions could have misled the jury.
A divided Court of Appeals agreed, reversing and remanding the case for a new trial.
Foster v. Klaumann, 42 Kan. App. 2d 634, 216 P.3d 671 (2010).

The panel's majority held that the best judgment instruction could have improperly
focused the jury on Klaumann's subjective beliefs in determining the appropriate
treatment, instead of basing its decision on the objective standard of care. 42 Kan. App.
2d at 666. And as to the standard of care instructions, the majority concluded the district
court should have modified the instructions to inform the jury this claim was governed by
the lower standard of care. It held the failure to make those modifications could have
misled the jury and required reversal. 42 Kan. App. 2d at 652-54.

Judge G. Joseph Pierron dissented on both instruction issues. He found that issuing
the general physician standard of care instruction could not have misled the jury because
"[a]t worst it is surplusage." 42 Kan. App. 2d at 691. He also indicated the majority panel
overlooked cited Kansas caselaw approving the best judgment instruction, noting "there
is nothing to indicate that Kansas appellate court approval of the instruction had waned."
42 Kan. App. 2d at 691-92.

Klaumann petitioned this court for review of the two jury instruction issues. Our
jurisdiction arises under K.S.A. 20-3018(b) (review of Court of Appeals decision).


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ANALYSIS

The Fosters argue two erroneous jury instructions require reversal and remand for
a new trial. First, they assert the district court could have confused or misled the jury by
giving both the general physician and specialist standard of care instructions from PIK
Civ. 4th 123.01 and PIK Civ. 4th 123.12. They argue that only PIK Civ. 4th 123.12
should have been issued because it establishes the specialist standard of care applicable to
all their claims. Second, they argue the district court erred by giving PIK Civ. 4th 123.11
(Physician's Right to Elect Treatment to be Used). The parties and some caselaw refer to
this as the "best judgment" instruction. We adopt that terminology for this case even
though it does not capture all of the instruction's substance.

Standard of Review

This court recently held that its prior decisions applied an "imprecise" standard of
review for jury instruction issues and set forth an analytical framework with
accompanying standards of review to promote greater consistency. State v. Plummer, 295
Kan. 156, 160, 283 P.3d 202 (2012). We now implement the following four-step process:

"For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." Plummer, 295 Kan.
156, Syl. ¶ 1.
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Under step one, the Fosters objected to both instructions at trial, preserving these
issues for appeal. Under steps two and three, trial courts are required to give an
instruction supporting a party's theory of the case if "the instruction is requested and there
is evidence supporting the theory which, if accepted as true and viewed in the light most
favorable to the requesting party, is sufficient for reasonable minds to reach different
conclusions based on the evidence." Puckett v. Mt. Carmel Regional Med. Center, 290
Kan. 406, 419, 228 P.3d 1048 (2010). Because two different instructions are challenged,
we examine steps two through four in the sections related to each instruction.

A. The General Physician Standard of Care Instruction

To establish medical malpractice, a plaintiff must show: (1) the health care
provider owed the patient a duty of care, which required that the provider meet or exceed
a certain standard of care to protect the patient from injury; (2) the provider breached that
duty or deviated from the standard of care; (3) the patient was injured; and (4) the injury
proximately resulted from the health care provider's breach of the standard of care. Miller
v. Johnson, 295 Kan. 636, Syl. ¶ 15, __ P.3d __, 2012 WL 4773559.

The duty of care owed by all physicians, regardless of the particular medical
specialty in which a physician practices, is to exercise reasonable and ordinary care and
diligence. But the particular decisions and acts required to satisfy that duty of care vary,
i.e., the required skill depends on the patient's situation and the physician's medical
specialty, if applicable. What constitutes negligence in a particular situation is judged by
the professional standards of the particular area of medicine involved. Durflinger v.
Artiles, 234 Kan. 484, 490, 673 P.2d 86 (1983), disapproved on other grounds by
Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995).

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PIK Civ. 4th 123.01 (Duty of Health Care Provider) and PIK Civ. 4th 123.12
(Duty of Medical Specialist) are intended to inform the jury about the applicable
standards of care. Both were issued in this case. As given, the more general physician
standard of care instruction stated:

"In performing professional services for a patient, a physician has a duty to use
that degree of learning and skill ordinarily possessed and used by members of that
profession and of that school of medicine in which the physician practices and under like
circumstances. In the application of this skill and learning the physician should also use
ordinary care and diligence. A violation of this duty is negligence.

"A party is at fault when he or she is negligent and that negligence caused or
contributed to the event which brought about the injury or damages for which claim is
made."

The specialist standard of care instruction stated:

"A surgeon who holds herself out to be a specialist in a particular field of
medicine must use her skill and knowledge as a specialist in a manner consistent with the
special degree of skill and knowledge ordinarily possessed by other specialists in the
same field of expertise at the time of the treatment and diagnosis. A violation of this duty
is negligence.

"A party is at fault when he or she is negligent and that negligence caused or
contributed to the event which brought about the injury or damages for which claim is
made."

The only modification from the standard PIK instructions was the addition of the
second paragraph for both instructions. And the parties agree this addition was
appropriate because it explained the causation element for the medical malpractice claim.

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The Fosters have consistently argued that all claims are governed by the specialist
standard of care. And based on that, they argue the specialist instruction, PIK Civ. 4th
123.12, applied. Klaumann has never disputed that at least some of the Fosters' medical
malpractice claims were governed by the specialist standard of care. Thus, under our new
framework, the parties agree the specialist instruction was both legally appropriate and
factually supported under steps two and three of the jury instruction analysis. The parties
dispute whether it was proper to issue the general physician standard of care instruction,
PIK Civ. 4th 123.01.

Since the Fosters contend the specialist standard of care is the only standard
applicable to their claims, they argue it was improper to issue the general physician
standard of care instruction. This was initially a disputed point because Klaumann
maintained to the district court and the Court of Appeals that the general physician
standard of care governed the informed consent claim. And based on that, Klaumann
argued the general physician standard of care instruction was both legally appropriate and
factually supported.

During the jury instructions conference, Klaumann said the informed consent
claim was governed by the general physician standard of care because all physicians are
required to get informed consent, stating:

"I did not pick up during the trial that the duty for informed consent was a duty
that's limited to specialists. I mean that is a duty that common malpractice law in Kansas
applies to every single physician. Indications for treatment alternatives, that sort of thing
are things that all physicians do and all physicians have a duty to do. Where it gets into
the specialty is because we're doing a surgery and we acknowledge that surgery is
implicated . . . and [it] would be appropriate to give the instruction on the specialist
because of that surgery."

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Klaumann repeated this argument in her brief to the Court of Appeals, where she stated:
"The district court in this case correctly noted that the informed consent claim could, and
in this case should, be subject to a generalist instruction."

Notably, both lower courts adopted Klaumann's argument that the informed
consent claim was governed by the general physician standard of care. But her argument
changed in her briefs to this court.

Klaumann now argues that "[w]hile counsel and the court may have believed the
[general physician standard of care from PIK Civ. 4th] 123.01 applied to the informed
consent claims, there was no dispute in the evidence that [Klaumann] was a specialist."
And she criticizes the Court of Appeals for concluding that the evidence was confusing as
to whether the general physician standard of care or the specialist standard of care should
be applied to the Fosters' informed consent claim, stating: "All standard of care
testimony was given by specialists and pertained to a specialist. . . . No one offered
testimony about what a general physician would be expected to do in the context of
Keely Foster's surgery." Finally, during oral argument to this court, Klaumann argued the
general physician standard of care instruction was appropriate because it is a prelude to
the specialist instruction and shows the jury the specialist standard of care applies to the
Fosters' claims.

Under our analytical framework for deciding jury instruction issues, these
concessions eliminate our need to determine whether the general physician standard of
care instruction was legally appropriate under step two or whether it was supported by the
evidence in step three. Klaumann agrees that all of the Fosters' claims are governed by
the specialist standard of care. This admission focuses our inquiry on step four to
consider whether it was harmless error to issue the general physician standard of care
instruction when all the evidence established the standard of care of a specialist.
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In State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct.
1594 (2012), we held:

"[B]efore a Kansas court can declare an error harmless it must determine the error did not
affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.
The degree of certainty by which the court must be persuaded that the error did not affect
the outcome of the trial will vary depending on whether the error implicates a right
guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome of the trial."

Based on the language from our decisions predating Plummer, Klaumann argues
issuing both instructions could not have misled the jury because the general physician
standard of care instruction compliments the specialist instruction by establishing that
Klaumann must be held to the higher standard of care of a specialist. For this, Klaumann
relies on Douglas v. Lombardino, 236 Kan. 471, 693 P.2d 1138 (1985).

In that case, Patricia Douglas died following administration of a local anesthetic
for a Caesarean section. Her family sued the anesthesiologist for medical malpractice,
arguing inappropriate administration of the anesthetic and subsequent incorrect and
substandard behavior caused Douglas' death. The anesthesiologist denied negligence,
arguing Douglas died from an adverse drug reaction. Both the general physician and
specialist standard of care instructions were submitted to the jury. Plaintiffs argued the
instructions could mislead the jury because the only trial evidence indicated the
anesthesiologist was a specialist.

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The Douglas court held that the specialist instruction more clearly defines the
specialist's duty, but the two instructions were not inconsistent. 236 Kan. at 479. And
since there was no dispute the anesthesiologist was a specialist and all standard of care
testimony was clearly related to a specialist's standard, this court concluded the jury
could not have been confused. 236 Kan. at 479-80. But in doing so this court cautioned
that giving both instructions could be confusing—if there had been a dispute in the
evidence as to whether the anesthesiologist was a specialist. 236 Kan. at 480. The
Douglas court also held that submitting the general physician standard of care instruction
"gave the jury a frame of reference so they could see [the anesthesiologist] was being
held to a higher degree of care than a general practitioner." 236 Kan. at 480.

The Fosters urge us to overrule Douglas. And the Court of Appeals majority
decision criticized the conclusion in Douglas that also giving the general physician
standard of care instruction provided a frame of reference for the specialist instruction,
stating it was "a subtlety not warranted by the law." Foster, 42 Kan. App. 2d at 652. The
panel also implied that Douglas is inconsistent with Simpson v. Davis, 219 Kan. 584,
587, 549 P.2d 950 (1976). Foster, 42 Kan. App. 2d at 652 ("It is noteworthy that
unmentioned in Douglas is the case of Simpson v. Davis.").

In Simpson, a dentist dropped a device down the patient's throat during a
procedure designed to eliminate complications following a root canal. The patient
swallowed the device, causing numerous problems including puncturing her stomach.
Dentists are held to the same objective standard of care as physicians. See 219 Kan. at
587. And this dentist had told the patient that root canal work was a specialized field that
he was capable of performing. The jury was instructed that the dentist undertook the duty
of a specialist by agreeing to perform the work and had the duty to use the care and skill
of a specialist. This court affirmed the determination that the dentist was acting as a
specialist under these circumstances, stating:
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"It is the generally accepted rule that a physician or surgeon or dentist who holds
himself out to be a specialist is bound to bring to the discharge of his professional duties
as a specialist that degree of skill, care and learning ordinarily possessed by specialists of
a similar class, having regard to the existing state of knowledge in medicine, surgery and
dentistry, that is, a higher degree of skill, care and learning than that of the average
practitioner. [Citations omitted.]" 219 Kan. at 587.

But Simpson merely confirms what the parties have conceded—that Klaumann, as
a specialist, must be held to the standard of care of a specialist. So the question remains
whether issuing the general physician standard of care instruction was erroneous when
the only trial evidence established the standard of care of a specialist.

We decline to overrule our Douglas decision as the Fosters request. Issuing the
general physician standard of care instruction could not have affected the trial's outcome
because the only standard of care evidence presented was that of a specialist. In this
context, these instructions are not necessarily inconsistent. The general physician
instruction informs the jury that physicians have a duty to use a certain degree of skill and
the skill level required is based on an objective standard developed by physicians
practicing in the same field. The specialist instruction then reiterates that a higher degree
of skill is required for specialists and the objective standard is established by other
specialists.

We also agree with Judge Pierron's dissent stating that the general physician
standard of care instruction was at worst superfluous in this context. See Foster, 42 Kan.
App. 2d at 691. Nevertheless, this is not a ringing endorsement for giving both
instructions.

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These instructions could be improved upon, and we encourage the PIK Committee
to revisit them. One problem is that the PIK instructions do not suggest how to modify
the PIK instructions to identify what claims may be governed by different standards of
care. Quite possibly, that sort of ambiguity led to Klaumann's change of heart regarding
the standard of care applicable to the informed consent claim on appeal. And while this
may provide greater flexibility for appellate argument, it does not provide clarity to
jurors.

There is a second problem because several other PIK instructions, including the
best judgment instruction discussed below, reference the applicable standard of care. And
as demonstrated in this case, that practice can lead to inconsistencies within the jury
instructions as a whole because the other instructions are not always modified to reflect
the standard of care instructions issued.

B. The "Best Judgment" Instruction

PIK Civ. 4th 123.11, which the parties refer to as the "best judgment" instruction,
was also issued over the Fosters' objection. The PIK instruction was not modified, but the
parties designated Klaumann as a specialist where applicable. The jury was instructed:

"Where, under the usual practice of the profession of the defendant, Michelle
Klaumann, M.D., different courses of treatment are available which might reasonably be
used, the orthopedic surgeon has a right to use her best judgment in the selection of the
choice of treatment.

"However, the selection must be consistent with the skill and care which other
orthopedic surgeons practicing in the same field of expertise would use in similar
circumstances."

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The Fosters argue the instruction is misleading because it emphasizes Klaumann's
subjective "best judgment" in violation of the objective standard of care applicable to the
medical malpractice claims. Under our analytical framework for jury instruction issues,
this is a challenge under the second step because the Fosters allege the instruction is
legally infirm in that it does not fairly and accurately state the applicable law. See
Plummer, 295 Kan. at 161. In the alternative, if this court is unwilling to disapprove of
the instruction as written, the Fosters contend it was inappropriate under these facts
because surgery was the only possible course of treatment. This is a challenge under the
third step because the Fosters allege the instruction is not supported by the particular facts
of the case at bar. 295 Kan. at 161-62.

In contrast, Klaumann counters that the instruction's language is appropriate
because the second paragraph carefully maintains the objective standard of care. She
argues the best judgment instruction was required because the treatment options were to
have surgery or do nothing surgically and "apply medical management only." And as an
alternative, the doctor argues any error with the instruction was harmless and does not
require reversal.

The district court issued the best judgment instruction after finding there was
testimony on different courses of treatment. It defined those as the expansion of the
surgery between March and May and the recommendation whether to use one incision or
two. The Court of Appeals reversed, holding the instruction should not be issued in cases
like this when the jurors must resolve complex factual issues before determining whether
the standard of care was violated. Otherwise, the Court of Appeals said the instruction
could mislead jurors to improperly consider the physician's subjective intent or belief.
Foster, 42 Kan. App. 2d at 663-64.

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But almost all medical malpractice cases require jurors to resolve complex factual
issues, so this should not be the determinative criterion. We address whether the best
judgment instruction fairly and accurately states the law.

PIK Civ. 4th 123.11 derives from a jury instruction this court approved in
Natanson v. Kline, 186 Kan. 393, 399, 350 P.2d 1093, reh. denied 187 Kan. 186, 354
P.2d 670 (1960). Natanson is the first Kansas case recognizing a physician's duty to
obtain informed consent and to define the parameters of that duty. See Funke v.
Fieldman, 212 Kan. 524, 530-31, 512 P.2d 539 (1973). In Natanson, a breast cancer
patient sued the hospital and a physician in charge of the radiology department for
injuries sustained during radiation therapy that the patient alleged was administered in an
excessive amount. The physician opted to use a newer and harsher procedure involving
radioactive cobalt rather than an older method of X-rays. The plaintiff alleged she was
not informed about the alternatives or potential consequences from the radioactive cobalt
treatment. This court approved the following instruction in dicta:

"'The law does not require that treatments given by a physician to a patient shall
attain nearly perfect results. He is not responsible in damages for lack of success or
honest mistakes or errors of judgment unless it be shown that he did not possess that
degree of learning and skill ordinarily possessed by radiologists of good standing in his
community, or that he was not exercising reasonable and ordinary care in applying such
skill and learning to the treatment of the patient. And if among radiologists more than one
method of treatment is recognized, it would not be negligence for the physician to have
adopted any of such methods if the method he did adopt was a recognized and approved
method in the profession at the time and place of treatment.'" (Emphasis added.)
Natanson, 186 Kan. at 399.

The comments to PIK Civ. 4th 123.11 cite Natanson as support for issuing the
instruction, but there are some notable differences. The instruction approved in Natanson
20



instructed the jury that it is not negligence if a physician adopts one recognized and
approved method in the profession over another. PIK Civ. 4th 123.11 does not focus the
jury on what is (or is not) medical malpractice. Instead, the first paragraph of the PIK
Civ. 4th 123.11 instruction informs the jury the physician has a "right" to use his or her
best judgment in selecting the choice of treatment. And this language appears to derive
from some of this court's other early medical malpractice caselaw defining the physician's
contractual duty when the cause of action arose in contract.

At that time, the law stated that a physician did not warrant a cure, unless the
doctor entered a special contract for that purpose. But, that caselaw continued to state the
doctor's contract of service did imply by law or impliedly warranted the following duties
of care:

"that [the doctor] possesses that reasonable degree of learning, skill, and experience
which is ordinarily possessed by others of [the doctor's] profession; that [the doctor] will
use reasonable and ordinary care and diligence in the treatment of the case which [the
doctor] undertakes; and that [the doctor] will use [the doctor's] best judgment in all cases
of doubt as to the proper course of treatment." Teft v. Wilcox, 6 Kan. 46, 61(1870).

This language filtered through Kansas caselaw after medical malpractice claims
began arising in tort. It was simply characterized as the legal duty underlying the
negligence claim. See, e.g., Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 3, 673 P.2d 86
(1983); Goheen v. Graber, 181 Kan. 107, 112, 309 P.2d 636 (1957); Paulich v. Nipple,
104 Kan. 801, 805, 180 P. 771 (1919). More recently, this language was cited again in
Smith v. Welch, 265 Kan. 868, 881, 967 P.2d 727 (1998).

In Smith, the plaintiff was injured during an automobile accident, and she sued the
driver. During that litigation, she submitted to a medical exam by the defendant's medical
expert. She alleged she was asked personal and inappropriate questions and sexually
21



battered by the doctor during the exam. She sued the doctor for negligence. In defense,
the doctor argued a physician conducting a medical exam for litigation purposes does not
have a physician-patient relationship and did not have a duty to avoid negligently injuring
the person examined. In defining a normal physician-patient relationship, the Smith court
held:

"A physician is obligated to his or her patient to use reasonable and ordinary care and
diligence in the treatment of cases the physician undertakes, to use his or her best
judgment, and to exercise that reasonable degree of learning, skill, and experience which
is ordinarily possessed by other physicians. [Citation omitted.]" 265 Kan. at 881.

Klaumann interprets Smith as approving PIK Civ. 4th 123.11. And the Court of
Appeals cited Smith as authority for issuing the best judgment instruction in Hibbert v.
Ransdell, 29 Kan. App. 2d 328, 334, 26 P.3d 721, rev. denied 272 Kan. 1417 (2001).
There, the physician discovered an ovarian cyst during an exam and recommended the
patient undergo surgery only if an abnormality was discovered by a laparoscopy. The cyst
was obscured during the procedure, but the physician found and surgically removed it,
later causing incontinence and painful urinary tract infections. Testimony was introduced
that the physician should not have immediately recommended surgery but, instead,
should have monitored the cyst for 5-6 weeks to see if it resolved itself. If it did not
resolve itself, the argument continued, the physician should have tried an oral
contraceptive before surgery. The best judgment instruction was issued. The patient
argued on appeal the instruction injected a subjective standard for determining negligence
in addition to potentially confusing the jury into believing the standard of care turned on
whether the doctor tried his best.

The Hibbert court concluded the patient's criticism of the best judgment
instruction was not "entirely without merit," but it held the instruction was substantially
22



correct and could not have misled the jury. 29 Kan. App. 2d at 334. It characterized the
instruction as being not "particularly misleading" because it still instructed the jury that
the physician's judgment must be consistent with the skill and care of other specialists. 29
Kan. App. 2d at 332. It also noted that the instruction was based directly on the
applicable PIK instruction and "our Supreme Court has strongly recommended the use of
[PIK] instructions and appears to have accepted the best judgment language as a proper
statement of the physician's duties" in Smith, 265 Kan. at 881-82. Hibbert, 29 Kan. App.
2d at 334.

While this court did approve the best judgment language in Smith as a legally
correct statement, it was not addressing whether that language was appropriate for a jury
instruction. We decline to stretch Smith beyond its boundaries. There can be accurate
statements of the law that do not help the jury perform its function. To be sure, the
instruction at issue in Natanson does a better job of focusing the jury on the issue before
it—whether the physician committed malpractice—than the language in PIK Civ. 4th
123.11, which states that a physician has a "right" to exercise his or her best judgment
when picking a course of treatment.

We strongly encourage future litigants and the PIK-Civil Advisory Committee to
reexamine the instruction using this phraseology. But we are not convinced the
instruction as a whole misstates the law, principally because the second paragraph directs
the jury back to the correct standard of care.

The Fosters cite numerous cases from other jurisdictions declaring those
jurisdictions' version of the best judgment instruction improper because such an
instruction suggests that the physician's exercise of his or her best judgment precludes a
finding of negligence, instead of focusing the determination on whether the physician
chose a method approved by the profession. For example, in Das v. Thani, 171 N.J. 518,
23



529, 795 A.2d 876 (2002), the New Jersey Supreme Court criticized the following
instruction because it did not make clear to the jury that the "'selection of an alternative
that is objectively unreasonable would violate the doctor's duty of care to the patient.'"
The instruction stated in part:

"'When the accepted standards of medical practice permit two or more courses of action
and the physician in the exercise of his judgment selects one of those alternatives, he
cannot be found negligent if the course chosen produces a poor result.'" 171 N.J. at 526.

This New Jersey instruction is distinguishable from PIK Civ. 4th 123.11 because,
unlike the Kansas instruction, it does not contain the second paragraph that references the
objective standard of care. See also Parodi v. Washoe Medical Ctr., 111 Nev. 365, 370-
71, 892 P.2d 588 (1995) (holding that "error-in-judgment" instruction given "may
confuse jurors into focusing on the health care provider's subjective intentions and
judgments rather than on the real issue of whether the health care provider's conduct
conformed to an objective standard of care").

In summary, we hold that PIK Civ. 4th 123.11 does not misstate the law because
the second paragraph directs the jury to the objective standard of care, clarifying any
potential confusion caused by referencing a physician's right to use the doctor's best
judgment. Moreover, the PIK Civ. 4th 123.11, Notes on Use indicate the Duty of Health
Care Provider and/or Medical Specialist instructions "must also be given," depending on
which standard of care applies. And those instructions were issued here.

Finally, we must determine whether the best judgment instruction was appropriate
under the facts in this case. Klaumann's principal argument is that the instruction was
required because the treatment options were to have surgery or do nothing surgically and
"apply medical management only." The Fosters argue it was error to give the instruction
24



because Keely's injury did not occur as a result of Klaumann choosing one method of
surgery over another. They note Keely was injured during surgery, citing Kostel v.
Schwartz, 756 N.W.2d 363 (S.D. 2008).

In Kostel, a physician expanded the scope of surgery once it commenced because
he found additional pathology requiring treatment during the surgery. The physician
requested an "'error in judgment'" instruction, which stated:

"'A physician is not necessarily negligent because the physician errs in judgment or
because efforts prove unsuccessful. The physician is negligent if the error in judgment or
lack of success is due to a failure to perform any of the duties as defined in these
instructions.'" 756 N.W.2d at 380.

The South Dakota Supreme Court held this instruction was "only to be given when
the physician is presented with multiple treatment options that are viewed as acceptable
in the subject field of practice." 756 N.W.2d at 380. And the instruction was
inappropriate in Kostel's case, the court held, because the issue was whether the physician
negligently fused two vertebral segments that did not need to be fused, not whether the
physician erred in choosing one of multiple acceptable treatment options. 756 N.W.2d at
381.

Likewise, the Fosters argue Keely's nerve injury occurred because Klaumann
negligently performed the surgery, not because the doctor chose one treatment
methodology over another. And it is debatable whether choosing not to remove the
osteochondromas was a second course of treatment when the situation would never
improve under the wait-and-see approach. Cf. Hibbert, 29 Kan. App. 2d at 330-34 (one
course of treatment was to wait and see whether cyst resolved itself before trying
surgery).

25



Certainly, the Fosters' claims do not present a classic example of alternative
courses of treatment like the facts in Natanson in which the doctor chose to use
radioactive cobalt instead of X-rays and the patient was injured by the cobalt. But we do
not need to decide that issue because the Fosters also claim Klaumann did not do enough
once she realized Keely's peroneal nerve was damaged. They claim she violated the
standard of care by monitoring the nerve damage after surgery, instead of immediately
recommending surgery. Klaumann disputed that immediate surgery was an acceptable
course of treatment.

We conclude the instruction accurately stated the law and was supported by the
case facts. Although neither of the challenged instructions was as helpful to the jury in
deciding this case as it could have been with some modification, neither requires a new
trial. Therefore, we reverse the judgment of the Court of Appeals reversing and
remanding the case for a new trial and affirm the judgment of the district court based on
the jury verdict finding Klaumann not at fault.

MORITZ, J., not participating.
JEROME P. HELLMER, District Judge, assigned.
1

1
REPORTER'S NOTE: District Judge Hellmer was appointed to hear case No. 100,286
vice Justice Moritz pursuant to the authority vested in the Supreme Court by Art. 3, § 6(f)
of the Kansas Constitution.