Biglow v. Eidenberg

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 112,701

KEVIN BIGLOW, Individually and on behalf of the Surviving Heirs
of CHARLA E. BIGLOW, Deceased,
Appellants,

v.

MARSHALL E. EIDENBERG, D.O.,
Appellee,
and
VIA CHRISTI HOSPITALS, WICHITA, INC.,
Defendant.

SYLLABUS BY THE COURT

1.
For jury instruction issues, the analytical progression and corresponding standards
of review on appeal are: (i) First, the appellate court considers reviewability of the issue
from both jurisdiction and preservation viewpoints, exercising an unlimited standard of
review; (ii) next, the court uses an unlimited review to determine whether the instruction
was legally appropriate; (iii) 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 (iv) 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, 256 P.3d 801 (2011).

2.
In addressing an instructional error, an appellate court examines jury instructions
as a whole, without focusing on any single instruction, in order to determine whether they

1
properly and fairly state the applicable law or whether it is reasonable to conclude that
they could have misled the jury.

3.
K.S.A. 2017 Supp. 60-251(c)(1) requires objections to jury instructions be made
on the record, distinctly stating the matter objected to and the grounds for objection. The
statute's purpose is to afford the district court an opportunity upon second thought to
correct an inadvertent or erroneous failure to instruct the jury on the law applicable to the
issues.

4.
Expert testimony is generally required in medical malpractice cases to establish
the applicable standard of care and to prove causation, except when lack of reasonable
care or existence of proximate cause is apparent to an average layperson from common
knowledge or experience. What a reasonable person would do under the same
circumstances is irrelevant.

5.
Error predicated on evidence excluded by a pretrial motion in limine must be
based on a proffer of the evidence in question during trial, or on a motion for
reconsideration.

6.
The scope of oral argument generally lies within the sound discretion of the trial
court.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 15, 2016.
Appeal from Sedgwick District Court; TIMOTHY H. HENDERSON, judge. Opinion filed August 24, 2018.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
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 Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, argued the
cause, and Thomas J. Dickerson and Chelsea E. Dickerson, of Dickerson Oxton, LLC, of Overland Park,
were with him on the briefs for appellants.

Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, argued the cause, and
Christopher S. Cole, of the same firm, was with him on the briefs for appellee.

The opinion of the court was delivered by

BILES, J.: In this medical malpractice action, Kevin Biglow, the surviving husband
of Charla E. Biglow, alleges Marshall E. Eidenberg, D.O., negligently provided
emergency medical care, resulting in Charla's death. The jury returned a verdict for the
doctor. On appeal, Biglow argues the district court erred when it: (1) instructed the jury
on a physician's right to elect treatment; (2) defined "negligence" and "fault" using a
comparative fault pattern instruction; and (3) granted a motion in limine prohibiting
Biglow and his expert witnesses from using derivatives of the word "safe" or the phrase
"needlessly endangering a patient." A Court of Appeals panel affirmed. Biglow v.
Eidenberg, No. 112,701, 2016 WL 1545777 (Kan. App. 2016) (unpublished opinion). On
petition for review, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Charla developed a cough in October 2009 that persisted for several weeks. Her
primary care physician diagnosed her with a viral infection and recommended over-the-
counter medication. Her condition did not improve. A week after that visit, Kevin took
her to the emergency room at Via Christi Saint Francis Hospital in Wichita around 11
p.m. Charla's chief complaints were the persistent cough, body aches, and a 102.7-degree
fever that began that day. Eidenberg was the emergency room physician.

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 When she arrived, Charla's respiratory rate was a little fast and her oxygen
saturation level a little low. Around midnight, Eidenberg ordered several laboratory
exams, including a chest x-ray, blood work, and urinalysis. Based on the test results, he
diagnosed Charla with pneumonia, prescribed medications, and admitted her to the
hospital. Charla received Xopenex, a breathing treatment for the lungs.

Afterward, Charla's heart rate increased from 90 beats per minute (bpm) to 170
bpm. A rate over 100 bpm, called tachycardia, is abnormal. Charla told Eidenberg her
heart was beating fast. He responded that this was "perfectly normal and not to worry."
Eidenberg thought multiple factors affected Charla's heartbeat: the breathing treatment,
the pneumonia, the fever, and the over-the-counter medication.

Tachycardia can involve different types of heart rhythms. Sinus tachycardia occurs
when the "normal pacemaker" in the heart is "firing faster than usual," but still with a
normal sinus rhythm. Eidenberg believed Charla had sinus tachycardia, so he did not
order an electrocardiogram (EKG), which would show the heart rhythm's actual electrical
waves.

About an hour later, Charla received antibiotics. Thirty to 45 minutes after that,
she was taken from the ER to a hospital room. A final vital sign reading showed low
blood pressure, continuing high heart and respiratory rates, and a fever. Eidenberg
marked her chart "improved" and "stable." A nurse observed that Charla walked "fine"
from the transport cart to her bed, seemed "alert and oriented," and was not "confused."
Her last vital signs showed "about the same" tachycardia. Charla complained of nausea,
which Eidenberg attributed to pneumonia.

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 The nurse left the room to get Charla some ice chips. When she returned, Charla
was unresponsive and had no pulse. Other personnel were starting CPR. Heart monitor
readings showed Charla's heart was not beating but was experiencing pulseless electrical
activity. Charla died.

Kevin pursued this wrongful death action against Eidenberg, Via Christi's parent
corporation, and two other individuals: Charla's primary care physician and the
respiratory therapist who administered the breathing treatment. Only the claim against
Eidenberg proceeded to trial.

The litigation focused on whether Eidenberg violated the standard of care by not
using an EKG to identify Charla's heart rhythm and the type of tachycardia she was
experiencing. Eidenberg testified that because Charla was a 37-year-old woman with no
previous heart disease and a "nice strong pulse" with no objective findings besides the
fast heart rate, he believed she had a sinus tachycardia. He said if there was a dangerous
abnormal heart rhythm, he would expect to see other things, such as a "change in mental
status from confusion to not responding," sweating, and a weak pulse. According to him,
"[n]one of that was happening in this case."

Expert Testimony

We must detail some expert testimony to better understand the arguments and our
outcomes for the issues raised.

Two plaintiff experts agreed Eidenberg breached the standard of care by not
ordering an EKG to identify Charla's heart rhythm and failing to identify the type of
tachycardia she was experiencing, without which it was impossible to treat the rhythm
and provide Charla with appropriate care to save her life. Two defense experts testified

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Eidenberg acted within the standard of care because an EKG was not required since there
were reasonable explanations for her fast heartbeat.

Scott Kaiser, a family physician with emergency room experience treating
tachycardia, testified for plaintiff. He said Charla's heart rate could not have shown her
heart rhythm, so the actual electrical waves could have been detected only with an EKG.
He said any reasonable physician under the circumstances would have ordered an EKG
as part of a "differential diagnosis" to rule out conditions that presented similar
symptoms. Failing this, it would be "impossible to treat the rhythm and provide care to
the patient." Kaiser said Eidenberg breached the standard of care by failing to order an
EKG and by not reassessing Charla's condition after the pneumonia treatment.

The second plaintiff expert, Michael Sweeney, a cardiologist familiar with the
standard of care for an emergency room physician treating cardiac issues, said Eidenberg
breached the standard of care by failing to diagnose and treat Charla's tachycardia by
using a rhythm strip or an EKG to identify her specific tachycardia type. Sweeney said an
EKG would have been easy to obtain in an emergency room. He testified the typical heart
rate increase with Xopenex would be 10 beats or less, so it was unusual that Charla's
heart rate nearly doubled to 170 bpm. During cross-examination, Sweeney agreed
pneumonia was an appropriate diagnosis and that the general approach to treat sinus
tachycardia was to treat the underlying stressor triggering it.

Eidenberg's first expert, Kent Potter, who was residency trained and board
certified in emergency medicine, testified Eidenberg "exceeded" the applicable standard
of care for an experienced emergency room physician under the same or similar
circumstances. Potter testified Eidenberg appropriately diagnosed Charla with pneumonia
and that it was proper to prescribe Xopenex. He believed the breathing treatment played a

6
significant role in the heart rate increase and noted Charla's tachycardia likely resulted
from fever, pneumonia, and previous episodes of sinus tachycardia.

Potter testified that to determine whether a patient with tachycardia needs an EKG,
a physician looks at whether the patient has a primary cardia cause. He explained a
patient with tachycardia, combined with other complaints or problems such as
pneumonia, generally has sinus tachycardia. The standard of care, he said, does not
require the attending doctor to order an EKG. In his experience, Potter had never heard of
a patient developing anything other than sinus tachycardia after receiving a breathing
treatment. Accordingly, he believed there was nothing that would make any experienced
emergency room physician order an EKG for Charla.

Potter further testified that "any experienced emergency physician would come to
the conclusion without a doubt that [Charla] had a sinus tachycardia" and "it was
consistent with the standard of care to treat the underlying cause of the sinus tachycardia
and not treat the tachycardia, itself." He also agreed that any "emergency room physician
would have reached an opinion that sinus tachycardia [at the rate that Charla was
running] would not pose a threat" to her.

The second defense expert was Jeffery Reames, who was residency trained and
board certified in emergency medicine. He testified Eidenberg met the applicable
standard of care. He agreed with Eidenberg's pneumonia diagnosis. He said the breathing
treatment ordered was appropriate and believed an EKG was not required because there
were reasonable explanations for Charla's fast heart rate. Finally, he testified the standard
of care did not require Eidenberg to reassess Charla's condition after the antibiotics and
fluids were administered.

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 PHYSICIAN'S SELECTION OF COURSE OF TREATMENT

Biglow complains the district court erred by giving Jury Instruction No. 15, which
was a modified version of PIK Civ. 4th 123.11 (2012 Supp.), titled "PHYSICIAN'S
RIGHT TO ELECT TREATMENT TO BE USED." As given, Instruction No. 15 read:

"Where within a physician's field of medicine there exists more than one
recognized approach to an issue of treatment, it is not negligence for the physician to
adopt any such approach if it was a recognized and approved approach within the
profession at the time the medical services in question were provided.

"However, the selection must be consistent with the skill and care which other
physicians practicing in the same field in the same or similar community would use in
similar circumstances." (Emphasis added.)

Biglow claims Instruction No. 15 was factually inappropriate because PIK Civ.
4th 123.11 was for use when there is a dispute whether a physician properly selected
between two or more courses of treatment. Biglow argues Eidenberg never considered
any treatment at all, simply choosing instead not to test and treat Charla's tachycardia.

Additional Facts and Background

At the time of trial, PIK Civ. 4th 123.11, titled "PHYSICIAN'S RIGHT TO
ELECT TREATMENT TO BE USED," provided this pattern instruction:

"Where, under the usual practice of the profession of the defendant,
_______(name), different courses of treatment are available which might reasonably be
used, the (physician) . . . has a right to use (his) (her) best judgment in the selection of the
choice of treatment.

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 "However, the selection must be consistent with the skill and care which other
(physicians practicing in the same field in the same or similar community) . . . would use
in similar circumstances."

The "Notes on Use" for PIK Civ. 4th 123.11 indicated, "Where there is a dispute
as to which of two or more courses is to be pursued in administering treatment, this
instruction should be used. PIK 4th 123.01, Duty of Health Care Provider . . . must also
be given." PIK Civ. 4th 123.11.

Prior to Biglow's trial, PIK Civ. 4th 123.11 drew a critical eye in Foster v.
Klaumann, 296 Kan. 295, 294 P.3d 223 (2013). The Foster court held the first paragraph
in PIK Civ. 4th 123.11 was not a misstatement of the law as long as the second paragraph
was given with it. The court explained this was "because the second paragraph direct[ed]
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." 296 Kan. at 313.

But the court also noted an instruction discussed in Natanson v. Kline, 186 Kan.
393, 399, 350 P.2d 1093 (1960), did "a better job of focusing the jury on the issue before
it—whether the physician committed malpractice—than the language in PIK . . . 123.11,
which state[d] that a physician has a 'right' to exercise his or her best judgment when
picking a course of treatment." Foster, 296 Kan. at 312; see also Natanson, 186 Kan. at
399 (pertinent part of the instruction stated: "'[I]f among [physicians] 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.]).

Prompted by Foster, Eidenberg requested an instruction he suggested as "an
alternative to PIK 4th 123.11." It read:

9
 "Where within a physician's field of medicine there exists more than one
recognized approach to an issue of diagnosis or treatment, it is not negligence for the
physician to adopt any such approach if it was a recognized and approved approach
within the profession at the time the medical services in question were provided."

Eidenberg argued his modifications to PIK Civ. 4th 123.11 were based on both
Foster and Natanson. Biglow argued against the proposal for three reasons. First, he
insisted there were not two or more courses of treatment for the doctor to have chosen
because the disputes were whether Eidenberg failed to order an EKG to identify the type
of tachycardia and failed to adequately monitor or reassess Charla. Second, Biglow
claimed the statement that "it is not negligence for the physician to adopt any such
approach if it was a recognized and approved approach" was not an accurate statement of
the law. Biglow noted the word "negligence" was not used in PIK Civ. 4th 123.11 and the
proposed instruction included the "negative language." Lastly, Biglow argued the
proposed instruction omitted the second paragraph—"the selection must be consistent
with the skill and care which other (physicians practicing in the same field in the same or
similar community) . . . would use in similar circumstances."

The district court modified Eidenberg's proposed instruction, which it gave as
Instruction No. 15. The court deleted the word "diagnosis" and added the second
paragraph from PIK Civ. 4th 123.11.

In December 2014, after the Biglow trial, the PIK Committee deleted PIK Civ. 4th
123.11 and replaced it with a "Comment" stating,

"No separate instruction concerning a physician's selection of treatment is
recommended. The Committee believes the applicable standard of care instruction is
sufficient to properly instruct the jury when there is a dispute over the course of treatment

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 selected by the physician. The selection among alternative courses of treatment, like other
aspects of medical care provided by a physician, must be consistent with the applicable
standard of care.

"The language of the former version of this instruction stating that a physician
had a 'right' to exercise his or her best judgment when picking a course of treatment was
criticized by the court in Foster v. Klaumann, 296 Kan. 295." (Emphasis added.)

Standard of Review

"'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) . . . .' [Citation omitted.]" Foster, 296 Kan. at 301-02.

In addressing an instructional error, an appellate court examines "'jury instructions
as a whole, without focusing on any single instruction, in order to determine whether they
properly and fairly state the applicable law or whether it is reasonable to conclude that
they could have misled the jury.'" State v. Hilt, 299 Kan. 176, 184, 322 P.3d 367 (2014)
(quoting State v. Williams, 42 Kan. App. 2d 725, Syl. ¶ 1, 216 P.3d 707 [2009]).

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Discussion

The panel held sufficient evidence supported the district court's decision to instruct
on alternative approaches to a treatment issue. Biglow, 2016 WL 1545777, at *10. In
doing so, it properly noted there was a "fundamental disconnect between the parties'
arguments related to the propriety of Instruction No. 1[5] under the facts presented." 2016
WL 1545777, at *9.

"On the one hand, the plaintiff frames the question presented as whether there existed
more than one recognized course of treatment to resolve the tachycardia. On the other
hand, the defendant frames the question as whether there existed more than one
recognized diagnoses for the cause of the tachycardia (sinus tachycardia as opposed to
cardio tachycardia), which in turn dictated the proper course of treatment. The instruction
provided to the jury on this issue generally framed the question as whether 'there exists
more than one recognized approach to an issue of treatment.' Since the definitive or
ultimate diagnosis is one upon which a medical treatment program is based, we conclude
the instruction as provided was broad enough to encompass the existence of one or more
recognized diagnoses for the cause of the tachycardia, which in this case was sinus
tachycardia as opposed to cardio tachycardia." (Emphases added.) 2016 WL 1545777, at
*9.

Biglow's factual-appropriateness argument focuses on the language of PIK Civ.
4th 123.11—"different courses of treatment"—in relation to the case's facts. We note
Biglow ignores the trial court's modification to address a situation in which there is "more
than one recognized approach" to a treatment issue. Biglow argues there was no such
choice because Eidenberg did not treat Charla's tachycardia at all. Accordingly, he claims
the "'physician's selection of course of treatment' instruction" was inappropriate.

Biglow insists the real question is "whether it was appropriate for Dr. Eidenberg
not to diagnose (and then treat) [Charla's] tachycardia at all, rather than to diagnose and
12
treat it"—not whether two or more courses of treatment were considered by Eidenberg.
He argues the doctor violated the standard of care by not testing further to identify the
type of tachycardia. In other words, Biglow contends failing to diagnose Charla's
tachycardia cannot be a course of treatment as contemplated by PIK Civ. 4th 123.11. We
disagree with Biglow's issue characterization.

We find nothing in the record that Charla's tachycardia was anything other than
sinus tachycardia as Eidenberg believed. In other words, there is no evidence that
diagnosis was wrong. Viewed most favorably to Biglow, the evidence suggests only that
Eidenberg should have done more to ensure his diagnosis was correct. Given this, we
reject the jury instruction challenge.

As outlined in Instruction No. 14, Biglow claimed Charla was injured due to
Eidenberg's

"fault in the following respects: That [Dr. Eidenberg] failed to provide diagnosis and
treatment to Charla . . . by

"a. Failing to perform a differential diagnosis on [Charla]'s tachycardia;

"b. Failing to diagnose [Charla]'s tachycardia by identifying her heart rhythm;

"c. Failing to treat [Charla]'s tachycardia;

"d. Failing to perform an [EKG];

"e. Failing to perform a BNP test;

"f. Failing to perform a blood gases test;

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 "g. Failing to perform a troponin test; and/or

"h. Failing to reassess [Charla] after fluid/medication interventions and before
discharging her from the Emergency Room."

Two claims dealt with the treatment Eidenberg adopted: "c. Failing to treat
[Charla]'s tachycardia" and "h. Failing to reassess [Charla] after fluid/medication
interventions and before discharging her from the Emergency Room." As to "c," Biglow
contended the doctor should have directly treated Charla's tachycardia by medication or
other means to bring the heart rate down artificially, while Eidenberg asserted treating her
underlying stressors was adequate. As to "h," Biglow claimed the standard of care
required Eidenberg to reassess Charla's condition after she was treated for her
pneumonia, while the doctor insisted it did not.

The evidence underlying these claims and defenses provided sufficient factual
basis to instruct the jury on alternative approaches to treatment issues. Instruction 15 was
factually appropriate.

TWO INSTRUCTIONS DEFINING "NEGLIGENCE"

The trial court gave two instructions defining "negligence." Instruction No. 8
defined reasonable-person negligence and Instruction No. 9 defined health-care-provider
negligence. On appeal, Biglow challenges Instruction No. 8's legal appropriateness by
arguing it confused the jury and allowed it to find Eidenberg acted reasonably using the
reasonable person standard. The panel held Biglow raised this challenge for the first time
on appeal and concluded Instruction No. 8 was not clearly erroneous. Biglow, 2016 WL
1545777, at *12.

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 On review, Biglow makes two arguments. First, he contends the issue was
properly preserved, so the panel erred by using the clear error standard of review.
Second, he continues to assert the separate reasonable-person negligence definition was
legally inappropriate, confused the jury, and prejudiced him.

Additional Facts

As given, Instruction No. 8 stated:

"You must decide in this case if the Defendant is at fault. In doing so, you will
need to know the meaning of the terms 'negligence' and 'fault'.

"Negligence is the lack of reasonable care. It is the failure of a person to do
something that a reasonable person would do, or it is doing something that a reasonable
person would not do, under the same circumstances.

"A party is at fault when he or she is negligent and that negligence caused or
contributed to the event which brought about the claims for damages." (Emphasis added.)

Instruction No. 9 provided:

"A Physician has a duty to use the learning and skill ordinarily used by other
members of that same field of medicine in the same or similar communities and
circumstances. In using this learning and skill, the Physician must also use ordinary care
and diligence. A violation of this duty is negligence."

Also relevant is Instruction No. 11, which provided:

"In determining whether a Physician used the learning, skill, and conduct
required, you are not permitted to arbitrarily set a standard of your own or determine this
question from your personal knowledge. On questions of medical or scientific nature
15
 concerning the standard of care of a Physician, only those qualified as experts are
permitted to testify. The standard of care is established by members of the same
profession in the same or similar communities under like circumstances. It follows,
therefore, that the only way you may properly find that standard is through evidence
presented by Physician expert witness." (Emphases added.)

The preservation issue requires a deeper look. The trial transcript reflects the
district court conducted an informal discussion with the parties about instructions the day
before the formal jury instruction conference. Because of that, when the court convened
the formal conference, it said it wanted to make a record about the informal meeting and
"go through the instructions one by one and give everybody a chance to comment as to if
they have an objection to it or not."

As to Instruction No. 8, the court began,

"[Biglow] made the point yesterday, he's correct, this is a comparative fault
instruction. This is not a comparative fault case. But as we also discussed yesterday, PIK
is so interwoven and intertwined that if I chose, and I did, to use the term 'fault' later in
the instructions, or even on the verdict, you've got to have somewhere, where you define
what fault is. Therefore, I have modified 105.01."

So modified, Instruction No. 8 omitted this language found in PIK Civ. 4th 105.01
(2010 Supp.):

"I am required to reduce the amount of damages you may find for any party by
the percentage of fault, if any, that you find is attributable to the party.

"A party will be able to recover damages only if that party's fault is less than 50
percent of the total fault assigned. A party will not be able to recover damages, however,
if that party's fault is 50 percent or more."

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 After explaining why it wanted to use the remainder, as set out in Instruction No.
8, the court asked Biglow if he had any objection. Biglow responded,

"Yes, Your Honor. The only objection I have is that, of course the Court
previously noted, this is not a comparative fault case. It's hard sometimes, and I
understand, to reconcile a non-comparative fault case given that a lot of PIK instructions
are drafted in terms of comparative fault, so I understand that. What we would suggest
instead of course is that our version of the instruction is placed in." (Emphasis added.)

Biglow's proposed instruction, a modified version of PIK Civ. 4th 106.01 (2010
Supp.), in relevant part, stated,

"The Plaintiffs Claim:

"1. That they were injured when Defendant failed to provide diagnosis and
treatment to Charla . . . ; and

"2. That such acts/omissions of Defendant that failed to meet the standard of care
included the following:

"a. Failing to perform a differential diagnosis on [Charla's] tachycardia;

....

"h. Failing to reassess [Charla] after fluid/medication interventions and before
discharging her from the Emergency Room.

"3. That Defendant's acts/omissions listed (a) through (h) above each failed to
meet the standard of care and constituted negligence on the part of Defendant; and

"4. That Defendant's negligence caused or contributed to cause the death of
Charla. . . .
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 "The Plaintiffs' burden of proof:

"The plaintiffs have the burden to prove that it is more probably true than not true
that Defendant caused or contributed to cause the death of Charla . . . by one or more of
the claimed negligent acts/omissions listed (a) through (h) in Paragraph 2 above. . . ."
(Emphasis added.)

Eidenberg then objected on a different issue with Instruction No. 8. The court
rejected both parties' objections, including Biglow's "to the concerns about comparative
fault and how we're defining fault and negligence." (Emphasis added.)

Preservation

Biglow insists he properly preserved this issue for two reasons. First, he notes his
version of the proposed instructions "contained only the professional negligence
definition and excluded the ordinary negligence definition, while including the definition
of fault the court indicated it wanted." He argues this suggested opposition to any
variation to what he submitted. Second, he relies on the district's court's ruling, "I will
overrule [Biglow's] objection to the concerns about comparative fault and how we're
defining fault and negligence." (Emphasis added.)

Biglow essentially asks us to speculate that he specifically objected on his
definition theory during the informal conference. But the transcript reflects this specific
objection was not made to the district court as required by statutory procedures. K.S.A.
2017 Supp. 60-251(c) requires a party, who objects to an instruction, to "do so on the
record, stating distinctly the matter objected to and the grounds for the objection."
Despite the open-ended opportunity to state any objections, Biglow limited his to the
grounds that "this is not a comparative fault case."

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 It is Biglow's burden to furnish a record sufficient to support his claim.
Southwestern Bell Tel. Co. v. Beachner Constr. Co., 289 Kan. 1262, 1275, 221 P.3d 588
(2009) ("The responsibility for providing a record on appeal sufficient to support a party's
argument belongs to that party."). He cannot do so by implying an objection based on his
proposed instructions lacking the language he now objects to on appeal. The statute not
only requires that objections to jury instructions be made on the record by distinctly
stating the matter objected to and the grounds for the objection, but it also sets out when a
party is to make those objections—the instructions conference. K.S.A. 2017 Supp. 60-
251(c)(2) (party is to object at the opportunity required by [b][2], or if the party was not
informed of an instruction before the opportunity to object "and the party objects
promptly after learning that the instruction or request will be, or has been, given or
refused").

This court has previously noted,

"The purpose of the statute [that requires specific objection] is to afford the district court
an opportunity upon second thought, and before it is too late, to correct an inadvertent or
erroneous failure to instruct the jury on the law applicable to the issues. The statute also
serves to lessen the burden of an appellate court by diminishing the number of rulings at
the trial which it may be called upon to review." Bott v. Wendler, 203 Kan. 212, 222, 453
P.2d 100 (1969).

Biglow did not afford the district court the opportunity for a second thought as the
statute requires. We agree with the panel and hold the definition issue was raised for the
first time on appeal, so clear error analysis applies.

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Standard of Review

An appellate court employs the four-step analysis described above when reviewing
alleged instructional errors. See Foster, 296 Kan. at 301-02. And when a party advances a
new ground for challenging a jury instruction not raised with the district court, the
appellate court will apply clear error analysis. K.S.A. 2017 Supp. 60-251(d)(2) ("A court
may consider an error in the instructions that has not been preserved as required by
subsection [d][1] if the giving or failure to give an instruction is clearly erroneous and the
error affects substantial rights.").

"[T]o determine whether a challenged jury instruction is clearly erroneous, [the
court] must assess whether it is firmly convinced the jury would have reached a different
verdict had the instruction error not occurred." In re Care & Treatment of Thomas, 301
Kan. 841, 846, 348 P.3d 576 (2015).

Discussion

The panel properly noted that "both instructions defining negligence were correct
statements of the law." Biglow, 2016 WL 1545777, at *13. But the issue is whether both
worked together in a way that fairly and accurately stated the applicable law. Plummer,
295 Kan. at 161. In this medical malpractice case, we hold Instruction No. 8's recitation
about what a reasonable person would (or would not) do under the same circumstances
was legally inappropriate.

"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

20
 proximately resulted from the health care provider's breach of the standard of care. Miller
v. Johnson, 295 Kan. 636, Syl. ¶ 15, 289 P.3d 1098 (2012).

"The duty of care owed by all physicians . . . 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 . . . . What constitutes negligence in a particular situation is
judged by the professional standards of the particular area of medicine involved. [citation
omitted.]" Foster, 296 Kan. at 302.

"[E]xpert testimony is generally required in medical malpractice cases to establish
the applicable standard of care and to prove causation, except where lack of reasonable
care or existence of proximate cause is apparent to an average layperson from common
knowledge or experience." Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406,
435-36, 228 P.3d 1048 (2010). Therefore, what a reasonable person would (or would not)
do under the same circumstances is irrelevant. We agree with Biglow that Instruction No.
8 was legally inappropriate, but we further hold its impact was harmless for two reasons.

First, considering the jury instructions as a whole, Instruction No. 8 would not
confuse the jury about Eidenberg's duty of care. Instruction No. 9 clearly stated
Eidenberg's duty as a physician and provided the health care provider definition for
negligence. And Instruction No. 11 told the jury it could only consider expert testimony
in determining whether Eidenberg breached the applicable standard of care. Instruction
No. 14 supplemented these by detailing the alleged fault.

Building on this, the second reason is that the expert testimony on the standard of
care focused exclusively on Eidenberg as a physician. In Foster, the parties disputed
whether it was proper to issue the general physician standard of care instruction when the
specialist standard of care was also provided. Without determining whether the general
21
physician instruction was legally and factually appropriate, the Foster court held the
challenged instruction "could not have affected the trial's outcome because the only
standard of care evidence presented was that of a specialist." 296 Kan. at 307; see also
Douglas v. Lombardino, 236 Kan. 471, 480, 693 P.2d 1138 (1985) (giving both specialist
and general physician instructions could be confusing if there was a dispute whether a
doctor was a specialist). Foster is particularly instructive because the objection was
properly preserved, so the court was viewing the error's impact with more scrutiny, i.e.,
whether there was no reasonable probability the error contributed to the verdict. Foster,
296 Kan. at 305.

We hold Instruction No. 8 was not clear error under these circumstances. We are
not firmly convinced the jury would have reached a different verdict had the district court
avoided giving it. See Thomas, 301 Kan. at 846.

MOTION IN LIMINE

The district court granted Eidenberg's motion in limine, preventing Biglow's
counsel and witnesses from using any derivative of the word "safe" or the phrase
"needlessly endanger a patient" during trial, because they were "inconsistent with the law
in Kansas as to a doctor's duty." On appeal, Biglow argues these concepts are relevant in
medical malpractice cases generally and the ruling therefore prevented him from fully
presenting standard of care evidence. The panel held the issue was not properly
preserved, and even if it were, there was no error and it did not prejudice plaintiff's case.
Biglow, 2016 WL 1545777, at *16-17.

22
Additional Facts

In his motion, Eidenberg provided examples of questions asked of him during a
discovery deposition to demonstrate how they would misstate the law, confuse the jury,
and be irrelevant and prejudicial. Those questions were:

"Q. Okay. You would agree with me that a doctor must never needlessly
endanger a patient. Correct?

....

"Q. . . . A doctor must never needlessly endanger their patient. Do you
understand that question?

....

"Q. . . . A doctor must use all reasonably available tools at his [disposal] if it
would be medically beneficial to a patient.

....

"Q. . . . A doctor must not discharge or transfer a patient that they are unsure
of their condition.

....

"Q. . . . When confronted with two options for treatment, a doctor should
prescribe the safest option for the patient?" (Emphases added.)

The district court asked Biglow for an example of questions that would be
prevented if the court would sustain the motion. Biglow answered:

23
 "Well, for instance, you know, on cross-examination with some other experts
they believe that—they thought it was not—unnecessary to order a 12-lead EKG. So I
would ask them about the standard of care, and I would say, you would disagree with me
that the standard of care requires a 12-lead EKG[,] correct? And I would say, if the
patient has what could be a life-threatening condition wouldn't the standard of care
require that patient to be tested to rule out that life-threatening condition? He would say,
yes. I would say, isn't that a safer option than not doing the test, and I think that's
completely consistent with the standard of care." (Emphasis added.)

The district court granted the motion in limine, reasoning:

"At this time, I am concerned for the reasons I have articulated that safe because of the
nebulous nature of the [word] safe is of such a degree that it requires a standard of care
which means to be the best, perfect, the most cutting edge, and I do believe that is
inconsistent with Kansas law."

Even so, the district court told Biglow it would revisit the limitation at any point
during trial. The issue reoccurred on two occasions.

The first was when Kaiser, an expert for Biglow, testified about an emergency
room physician's responsibilities. Kaiser said the "physician's job" is "to perform
diagnosis," "treatment," and "disposition." Biglow's counsel asked, "Would you say those
are the three main responsibilities?" Kaiser answered, "I think so. I think overlying that
all is patient safety. We do it because we're there to take care of people and help people,
but really the safety." (Emphases added.) Defense counsel objected, insisting Kaiser's use
of the prohibited word—safety—violated the order in limine. Biglow moved to
reconsider the order, arguing:

"Your Honor, I believe that—and I don't believe Dr. Kaiser intended to use the
word safe. It's just this is—this is so fundamental when we're talking about emergency
24
 room medicine and safety. I understand the issue in this case is whether the doctor has
breached the standard of care, but there's some underlying things that go with the
standard of care, and I believe that we should be able to explain that to the jury.

"One of the main things that we're going to be talking about in this case is . . .
whether the appropriate tests were performed and things like that. There's a reason the
tests are performed. There's a reason that the diagnosis and treatment should have been
provided to this patient and that is because, frankly, if you don't do those things you
endanger the patient's safety and they can die. That's the core of the case. I think it
underlies the standard of care. I don't think it's misleading or confusing to the jury. The
jury is going to have the instructions, they're gonna have the law, and they're gonna know
how to apply it in this case.

"So I don't believe that the use of the word safety, while I know unintentional by
Dr. Kaiser, should be excluded from this case entirely. I think that we need leeway to
argue in these type of cases and, basically, you know, gagging our mouths so we can't use
certain phrases I would, respectfully, submit to the Court that it is a little too broad of a
restriction." (Emphases added.)

The court made the same ruling prohibiting the questioning and restated its
reasoning: "[I]t is misleading as far as the standard in law in the State of Kansas." The
issue did not arise again until just before closing argument when Biglow asked for
reconsideration, explaining:

"I wanted to renew my objection to not being able to use the word safety in closing. I
think that is an unreasonable prior restraint. We need leeway to argue what the standard
of care is and why it is the standard of care and why it's important. I think that is a broad
overreach to say that we cannot use the word safety at all."

The district court denied reconsideration.

25
 The second occasion came during the jury instruction conference, when the district
court declined Biglow's request to use the word "safety" in closing on its determination
that "the general term of safe and the derivatives thereof are inconsistent with the law in
Kansas as to a doctor's duty."

Biglow claims now that the district court's order in limine erroneously prevented
his experts from testifying that: (1) the standard of care required Eidenberg to refrain
from needlessly endangering his patient; (2) patient safety is an important part of the
standard of care; (3) for these reasons, the standard of care required Eidenberg to test
Charla's tachycardia before diagnosing it because the condition may have been lethal; and
(4) Eidenberg's failure to order the test compromised Charla's safety, breaching the
standard of care and resulting in her death.

Standard of Review

A district court's decision on a motion in limine involves a two-prong test. We
apply a different standard when reviewing the court's ruling on a motion in limine,
depending on which prong or what exact challenge was made to a motion in limine. See
Schlaikjer v. Kaplan, 296 Kan. 456, 467, 293 P.3d 155 (2013). Under the test, to grant the
motion, the district court must determine: (1) the material or evidence in question will be
inadmissible at trial; and (2) as opposed to a ruling during trial, a pretrial ruling is
justified because (a) the mere offer or mention of the evidence at trial may cause unfair
prejudice, confuse the issues, or mislead the jury; (b) the issue's consideration during trial
might unduly interrupt and delay trial; or (c) a pretrial ruling may limit issues and save
the parties time, effort, and cost in trial preparation. 296 Kan. at 467.

Biglow does not procedurally challenge the order in limine. The argument focuses
only on the admissibility of derivatives of the word "safe" or the phrase "needlessly

26
endanger a patient." The district court's rationale was that these terms were inconsistent
with Kansas law regarding a physician's standard of care.

In State v. Shadden, 290 Kan. 803, Syl. ¶ 4, 235 P.3d 436 (2010), the court laid out
the appellate role for the first factor:

"A district court ruling on the first motion in limine factor—i.e., the admissibility
of evidence—and an appellate court reviewing that ruling apply a multistep analysis.
Under the multistep evidentiary analysis, the first question is relevance. K.S.A. 60-401(b)
defines relevant evidence as evidence that is probative and material. On appeal, the
question of whether evidence is probative is reviewed under an abuse of discretion
standard; materiality is judged under a de novo standard. The second step is to determine
which rules of evidence or other legal principles apply. On appeal, this conclusion is
reviewed de novo. In the third step of the analysis, a district court must apply the
applicable rule or principle. The appellate court's standard of review of this third step
varies depending on the rule or principle that is being applied. Some rules or principles
grant the district court discretion, while others raise matters of law. Finally, an analysis
under K.S.A. 60-445 may be required, depending on the issue and parties' arguments.
Under that statute, a district court may exclude evidence if its probative value is
substantially outweighed by the risk that its admission will unfairly and harmfully
surprise a party who has not had a reasonable opportunity to anticipate that such evidence
will be offered. This analysis is reviewed under an abuse of discretion standard."

Discussion

Error predicated on evidence excluded by a pretrial motion in limine must be
based on a proffer of the evidence in question during trial or on a motion for
reconsideration. Brunett v. Albrecht, 248 Kan. 634, 640, 810 P.2d 276 (1991). Biglow's
first effort at reconsideration during Kaiser's testimony presents difficulties on review.

27
 We first dispose of the evidentiary aspects to this issue. We note that no error can
arise from the district court's decision to adhere to the order in limine upon Eidenberg's
objection to Kaiser's testimony that: "I think so. I think overlying that all is patient
safety. We do it because we're there to take care of people and help people, but really the
safety." (Emphases added.) Kaiser's response remained in the record; the jury was not
instructed to disregard it, and it was not stricken. There is nothing to appeal from as to
that specific question and answer.

Biglow's new claim that this order prevented some expert testimony is not
preserved because he never proffered that testimony. In the Court of Appeals, Eidenberg
made a preservation argument, which the panel tended to disagree with even though it
went on to decide the merits. The panel commented, "[I]t is questionable whether the
plaintiff made a satisfactory proffer of the evidence that was in danger of being excluded
by the order in limine." Biglow, 2016 WL 1545777, at *16. We agree the failure to
proffer in greater detail limits what Biglow can challenge now.

We now turn to the remaining issue—the district court's restriction on Biglow
using the words "safe and the derivatives thereof" in closing argument. "The scope of oral
argument generally lies within the sound discretion of the trial court, and the court's
rulings will form no basis for a reversal absent a showing of abuse of discretion." State v.
Francis, 282 Kan. 120, 143, 145 P.3d 48 (2006). "Abuse of discretion occurs when
judicial action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or
(3) based on an error of fact." Kaelter v. Sokol, 301 Kan. 247, 250, 340 P.3d 1210 (2015).

To address whether the district court abused its discretion, it is important to
understand two interrelated concepts about a physician's duty of care and a physician's
standard of care. The duty of care is legally defined. It is owed by all physicians,
regardless of medical specialty and it "is to exercise reasonable and ordinary care and
28
diligence." Foster, 296 Kan. at 302. "What constitutes negligence in a particular situation
is judged by the professional standards of the particular area of medicine involved." 296
Kan. at 302. "The standard of medical . . . care that is to be applied in any given case is
not a rule of law, but a matter to be established by the testimony of competent medical
experts." Nold v. Binyon, 272 Kan. 87, Syl. ¶ 7, 31 P.3d 274 (2001); see also Dawson v.
Prager, 276 Kan. 373, 375, 76 P.3d 1036 (2003) ("Expert testimony is necessary to prove
a deviation from the standard of care by a health care provider.").

Biglow wanted to use the term "safe" to argue what the standard of care was.
Because an attorney may not refer to facts not in evidence during closing argument, the
only evidence that could have supported such an argument was Kaiser's testimony that an
emergency room physician's job is "to take care of people and help people, but really the
safety." Biglow argues this testimony addressed the standard of care, which is a factual
question. The trial court and the panel decided it inappropriately rephrases the duty of
care. Biglow, 2016 WL 1545777, at *16-17. We agree with the trial court and panel.

The district court's ruling was based on Kansas law defining a physician's legal
duty of care—a physician has a duty to use the learning and skill ordinarily used by other
members of that same field of medicine. Kaiser's broad and abstract statement that a
physician's job is to "take care of people and help people, but really the safety" does
nothing to establish whether Eidenberg breached that duty by deviating from the standard
of care when he did not order an EKG. The trial court did not abuse its discretion in
restricting Biglow's use of the word "safe" and discussion of Kaiser's testimony in the
closing argument.

Affirmed.

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