Perez v. Wesley Medical Center

NOT DESIGNATED FOR PUBLICATION

No. 122,649

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

EDGAR PEREZ, Individually, and as Next Friend, and
Natural Parent of Minor Child of LINDSAY PEREZ, and as
Administrator of the Estate of LINDSAY PEREZ,
Appellants,

WESLEY MEDICAL CENTER, LLC,
Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Opinion filed January 7,
2022. Affirmed in part, reversed in part, and remanded with directions.

Bradley J. Prochaska, James R. Howell, and Michael W. Weber, of Prochaska, Howell &
Prochaska, LLC, of Wichita, for appellants.

G. Andrew Marino, John H. Gibson, and Michelle M. Watson, of Gibson Watson Marino LLC, of
Wichita, for appellee.

Before BRUNS, P.J., GREEN and ISHERWOOD, JJ.

PER CURIAM: This medical malpractice and wrongful death case—which is
brought by Edgar Perez—arises from the care and treatment provided to Lindsay Perez
after giving birth to their son at Wesley Medical Center, LLC. Lindsay died of pulmonary
edema several hours after the baby was delivered by caesarian section. Although several
health care providers were initially named as defendants, Wesley Medical Center was the
only remaining defendant at the time of trial. After an 11-day trial, the jury returned a

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verdict for the plaintiffs and awarded damages in the amount of $6.5 million. Following
the trial, the district court reduced the damages to approximately $5.3 million, the amount
requested by the plaintiffs in the final pretrial order. Subsequently, the district court
granted judgment as a matter of law in favor of Wesley Medical Center and set aside the
jury's verdict in its entirety.

On appeal, Perez contends that the district court erred in granting Wesley Medical
Center's motion for judgment as a matter of law. In addition, Perez contends that the
district court erred in reducing the amount of the damages awarded by the jury. After
reviewing the record on appeal in light of Kansas law, we conclude that the district court
erred in granting Wesley Medical Center's judgment as a matter of law and setting aside
the jury's verdict. Even so, we conclude that the district court did not err in reducing the
amount of the damages awarded to conform with the final pretrial order. Thus, we affirm
in part, reverse in part, and remand this case to the district court to reinstate the judgment
in favor of Perez in the reduced amount previously ordered by the district court.

FACTS

On the night of October 7, 2015, Edgar Perez took his pregnant wife, Lindsay, to
Wesley Medical Center. Dr. Holly Montgomery—who at the time was an obstetrics and
gynecology resident at Wesley Medical Center—first examined Lindsay and ordered
blood tests. Based on her examination of Lindsay, Dr. Montgomery consulted with Dr.
Melissa Hodge—who was the "on-call" obstetrician and gynecologist—to report her
concerns. In turn, Dr. Hodge requested that a maternal-fetal medicine (MFM) specialist—
who provides care for high-risk pregnancies—be consulted.

Dr. Locke Uppendahl—the senior MFM resident—examined Lindsay. Based on
Lindsay's elevated blood pressure and other symptoms, Dr. Uppendahl suspected that
Lindsay was suffering from severe preeclampsia and recommended immediate delivery

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of the baby. Around midnight, Dr. Uppendahl called the attending MFM physician, Dr.
Margaret O'Hara, to report his findings and recommendation. Dr. O'Hara concurred with
Dr. Uppendahl's recommendation and issued orders to induce labor.

Because of signs of potential fetal distress, a caesarian section was eventually
ordered. About 4 a.m., the baby was delivered by Dr. Janet Eddy—who was an obstetrics
and gynecology resident—under the supervision of Dr. Hodge. During the surgery,
Lindsay's blood pressure fell to a level that did not allow for adequate perfusion of her
brain and additional IV fluids were given. After delivery, Lindsay had an episode of
blindness and could not see her son when he was presented to her. But her vision returned
before she was transferred to the high-risk labor and delivery unit for recovery.

Shortly after the baby was delivered, Dr. Hodge and Dr. Robert McKay—who was
the anesthesiologist during the caesarian section procedure—discussed whether Lindsay
should be sent to recover in the surgical intensive care unit instead of the high-risk labor
and delivery unit. Dr. McKay later testified that he

"thought [Lindsay] was stable from a cardiovascular standpoint. I was a little concerned
that she might have had an underlying cardiomyopathy or maybe was developing some
pulmonary edema. And so I thought the fastest thing would be to get a chest x-ray and
keep her in [the high-risk labor and delivery unit] where they manage the preeclamptic
patients routinely, particularly since there are many physicians around [the high-risk
labor and delivery unit] to be able to participate in her care as opposed to transferring her
to an [intensive care unit] where there are people not really that familiar with
preeclampsia."

Because of his concerns that Lindsay might be developing pulmonary edema, Dr.
McKay recommended a chest x-ray and a cardiac consultation. Dr. McKay would later
testify that he wanted "to see the result of the chest x-ray before I gave Lasix [to treat the
possible pulmonary edema]. And, also, since her blood pressure had come back to see if

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her kidneys had just recovered before we confuse the picture with Lasix." At 5:25 a.m.,
Dr. Eddy placed an urgent order for a chest x-ray.

Around 6 a.m., Lindsay complained of pain due to a cough. At 6:45 a.m.,
Lindsay's cough was described as deep and causing significant pain. At 7 a.m., Dr.
Uppendahl's shift ended. Before leaving the medical center, Dr. Uppendahl reported to
Dr. Rachel Bender—a third year MFM resident—about Lindsay's condition and
symptoms. Around the same time, Karen VanEpps, R.N., came on duty and assumed care
of Lindsay in the high-risk labor and delivery unit.

At the start of her shift, Nurse VanEpps first completed a head-to-toe physical
assessment of Lindsay. In recording her nursing assessment at 7:15 a.m., Nurse VanEpps
documented that Lindsay's blood pressure was 182/85, with a heart rate of 88, and a
respiratory rate of 22. In addition, she noted crackling sounds in both of Lindsay's lungs,
pitting edema in both lower and upper extremities, abdominal pain, fluid retention,
shallow breathing, a nonproductive cough, and oxygen saturations greater than 90% with
supplemental oxygen being administered.

Nurse VanEpps later testified that her findings during her nursing assessment of
Lindsay were concerning. It is undisputed that the protocol at Wesley Medical Center is
for nurses to communicate significant information from a nursing assessment to a
resident physician, who then passes the information on to the attending physician. After
performing her nursing assessment, Nurse VanEpps received a bedside report from the
nurse who had been providing Lindsay's care in the high-risk labor and delivery unit.
During this discussion, Nurse VanEpps learned a chest x-ray had been ordered but had
not yet been performed.

At 7:27 a.m., Nurse VanEpps tried to call the senior obstetrics and gynecology
resident to report Lindsay's condition. After being told that the resident was performing a

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caesarian section, she then spoke to Dr. Bender on the telephone at approximately 7:33
a.m. The evidence about what was said during this conversation is disputed. Although
Nurse VanEpps would testify that she reported all the pertinent information she gathered
from her initial nursing assessment, Dr. Bender's notes reflect that she simply called to
report Lindsay's severely high blood pressure. Noting the pending order for a chest x-ray,
Dr. Bender ordered that Procardia—used to treat high blood pressure—be administered.

At trial, Nurse VanEpps testified that she reported the findings from her nursing
assessment to Dr. Bender, including the findings consistent with pulmonary edema. In
contrast, Dr. Bender testified that Nurse VanEpps told her only about the two severe
blood pressure readings during this conversation. Nurse VanEpps testified that she was
not surprised that Dr. Bender did not order Lasix for Lindsay after the 7:33 a.m. phone
call because Lasix is not commonly given to patients. In her experience, before Lasix is
ordered by a physician, there is normally "something that diagnostically told them there
was a need for it," such as a chest x-ray showing fluid on the lungs. Nurse VanEpps
further testified that at the time, in 2015, in her 13-year career of caring for high-risk
obstetrics and gynecology patients, she had been ordered to administer Lasix to only two
patients.

At 7:55 a.m., the chest x-ray was taken in Lindsay's room. Around the same time,
Nurse VanEpps received a telephone order from Dr. Bender ordering cough drops for
Lindsay. At approximately 8:25 a.m., a radiologist reported that the chest x-rays showed
pulmonary edema—which is a buildup of fluid in the lungs. Dr. Bender later testified that
this "made sense because she is preeclamptic. So the puzzle pieces fit together." Dr.
Bender also testified "that was what I was looking for in the chest x-ray—enough
information to support giving Lasix."

Dr. Bender then updated Dr. O'Hara and Dr. Byron Cline—Lindsay's regular
obstetrician and gynecologist—about Lindsay's respiratory status. She also discussed

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Lindsay's respiratory status with Dr. Gregory George—the "on call" anesthesiologist—
who recommended a pulmonology consult as well as the administration of bilevel
positive airway pressure. Around 8:47 a.m., Dr. Bender ordered 40 milligrams of Lasix in
an attempt to address Lindsay's fluid retention, and Nurse VanEpps administered the
medication.

Around 9:15 a.m., Dr. Bender returned to Lindsay's room to discuss possible
transfer to the intensive care unit for airway management. Dr. Bender found Lindsay's
condition to have worsened, and she called Dr. George to the room. The record reflects
that Lindsay's oxygen saturation levels dropped to the 70s and then to the 50s. In
addition, Lindsay's coughing became "frothy," and she became unresponsive. Dr. George
called a code blue and CPR was started at 9:23 a.m. Unfortunately, Lindsay was
pronounced dead at 10:12 a.m. on the morning of October 8, 2015.

On April 6, 2017, Perez filed this medical malpractice and wrongful death action
on behalf of himself, his minor son, and as administrator of Lindsay's estate. Initially,
HCA Holdings, Inc., Wesley Medical Center, and nine physicians were named as
defendants. Ultimately, all of the defendants except Wesley Medical Center were
dismissed from the lawsuit and they are not parties to this appeal.

During discovery, Perez designated Heidi Shinn, R.N., to render opinions about
the appropriate standard of care for nurses. In particular, Nurse Shinn opined that Nurse
VanEpps breached the appropriate nursing standard of care by failing to timely report all
of the signs and symptoms consistent with pulmonary edema to a physician. Perez also
designated Baha Sibai, M.D.—a maternal fetal medicine specialist—and Jeffrey Breall,
M.D.—a cardiologist—to render opinions on several issues including causation.

Among other things, Dr. Sibai addressed in his report the alleged failure by Nurse
VanEpps to timely communicate "that Lindsay's respiratory examination revealed

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bilateral crackles and other findings of pulmonary edema." In Dr. Sibai's opinion, had
Nurse VanEpps reported these symptoms to a physician promptly, "the standard of care
would have required treatment be started and said treatment would have saved Lindsay's
life." Specifically, Dr. Sibai opined based on "a reasonable degree of medical probability"
that the alleged deviation by Nurse VanEpps "did cause or contribute and lead to the
ultimate hypoxia, cardiorespiratory arrest and subsequent death of Lindsay Perez from
pulmonary edema."

Similarly, Dr. Breall rendered several opinions based on "a reasonable degree of
medical probability." These opinions included—but are not limited to—the opinion that
if Nurse VanEpps had timely reported that "Lindsay had bilateral crackles, a cough, and
the need for 4 [liters] of supplemental Oxygen," then "aggressive treatment for Lindsay's
heart failure/pulmonary edema . . . would have saved her life with no change to her life
expectancy." Likewise, Dr. Breall rendered the opinion that Lindsay's life expectancy
would have been normal for anyone with her attendant co-morbidities once she delivered,
assuming she received appropriate treatment.

A final pretrial order was entered by the district court on July 15, 2019. The final
pretrial order stated that it "shall supersede all pleadings, shall control the subsequent
course of this case, and shall not be modified except by consent of the parties with Court
approval, or by order of the court on its own motion to prevent manifest injustice." There
is nothing in the record on appeal to suggest that the district court approved any
amendments or modifications to the pretrial order following its filing.

Regarding the claim of negligence against Wesley Medical Center, Perez asserted
in the final pretrial order that "Nurse VanEpps failed to report all the findings of her 0715
exam that were consistent with Pulmonary Edema." Perez asserted that had she "met the
[nursing] standard of care by promptly and properly communicating the patient's signs
and symptoms indicative of pulmonary edema to any physician, the [physician's]

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standard of care would have required immediate treatment for pulmonary edema which
would have included, but not limited to, Lasix." Perez also asserted that "[p]rompt and
proper treatment would have prevented Lindsay's death." Finally, Perez claimed that had
the appropriate standard of care been met, "Lindsay would have survived and lived a
normal life expectancy."

The final pretrial order also set forth the amount of damages claimed by Perez.
Based on his itemization of economic and noneconomic damages, Perez claimed total
damages between $3,476,112 and $5,400,000. Although the final pretrial order stated that
Perez "reserves the right to amend the itemization of damages at any time during trial but
before the end of the trial," it also provided that this reservation was only applicable "so
long as plaintiff does not increase the total amount of damages claimed." Again, there is
nothing in the record on appeal to suggest that this provision of the final pretrial order
was amended or modified prior to the submission of the case to the jury.

Before trial, the parties filed various motions in limine. In this regard, the parties
agreed the expert witnesses should not render new opinions at trial that were not
identified in their expert reports previously disclosed under K.S.A. 2019 Supp. 60-
226(b)(6). The parties agreed that there should be no reference at trial to contentions of
negligence beyond those set forth in the final pretrial order. The parties also agreed that
Perez "will have two causation experts (which will be Dr. Breall and Dr. Sibai)."

The district court commenced an 11-day jury trial on July 22, 2019. Extensive
evidence was presented by both parties and a full recitation of the testimony is
unnecessary to resolve the limited issues presented on appeal. In his case-in-chief, Perez
presented the testimony of Nurse Shinn to render opinions about the appropriate nursing
standard of care and about the alleged deviations from that standard by Nurse VanEpps.
Also, Perez called both Dr. Breall and Dr. Sibai to render opinions about causation within
a reasonable degree of medical probability.

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Nurse Shinn testified that Nurse VanEpps deviated from the appropriate standard
of care for nurses by failing to timely report symptoms of pulmonary edema to a
physician immediately following the completion of her nursing assessment on the
morning of October 8, 2015. Specifically, Nurse Shinn testified that the nursing standard
of care required Nurse VanEpps to immediately report to a physician her respiratory
findings, the lung crackles, and the imbalance between fluid intake and output. Also,
Nurse Shinn opined that Nurse VanEpps' failure to immediately report the signs and
symptoms of pulmonary edema to a physician violated hospital policy.

Dr. Breall testified that it is not uncommon to see pulmonary edema in a pregnant
woman with severe preeclampsia. He also testified that Lasix is one of the first
medications a physician would give when treating a patient for pulmonary edema.
Further, Dr. Breall testified that he has routinely ordered Lasix as treatment for patients
with pulmonary edema and that the medication generally begins to work within 10 to 15
minutes after it is administered. He also opined that once the Lasix reaches the kidneys, it
would "make the fluid go from the lungs to the bladder." According to Dr. Breall, the
timely administration of Lasix "can mean the difference between life and death in
somebody in whom this fluid is building up in the lungs."

Dr. Breall rendered the opinion that the cause of Lindsay's death was hypoxia as a
result of pulmonary edema that resulted from preeclampsia and fluid volume overload.
During direct examination, Dr. Breall was asked to "assume" that Nurse VanEpps
received an order from a physician to give Lasix around 7:30 a.m. and, if administered by
7:50 a.m.—to account for time to receive the order and administer the medication—
would it have saved Lindsay's life. In response, he opined: "[Y]es, it would have
prevented her death. If administered at that time, that would have been life saving." Dr.
Breall went on to render the opinion that Lindsay's death would have been preventable
had treatment for pulmonary edema been started before 8:30 a.m.

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Dr. Sibai testified that Lindsay had pulmonary edema as a complication of severe
preeclampsia, which causes fluid to leak out of the lining of the blood vessels. Dr. Sibai
testified about the following symptoms of pulmonary edema observed by Nurse VanEpps
during her nursing assessment performed at 7:15 a.m.: shallow breathing, worsening non-
productive cough, increased need for oxygen, abnormally low oxygen saturations, high
blood pressure readings, pitting edema in the upper and lower extremities, and lung
crackles. In Dr. Sibai's opinion, if Lindsay been given Lasix by 7:50 a.m., it "[d]efinitely
would have prevented [her] death."

According to Dr. Sibai, Lindsay died as a result of the delay in treating the
pulmonary edema with Lasix. In his opinion, Lindsay had an 80% to 90% chance of
surviving if Lasix had been given at 7:50 a.m. Dr. Sibai opined a third-year obstetrics
resident would be aware of the symptoms of pulmonary edema if reported to them and
would possess the knowledge to order Lasix if there is a suspicion of pulmonary edema.
Yet Dr. Sibai was not permitted by the district court to expand on his testimony.

Material to the issues on appeal, the record reflects that the following questions
were asked by Perez' counsel and that the following answers were given by Dr. Sibai:

"Q. Now, you mentioned pulmonary edema as a medical emergency. Do you treat—do
you train residents?
"A. Yes.
"Q. And Dr. Bender was a third-year resident?
"A. Yes.
"Q. And are there second-year and first-year residents?
"A. Yes.
"Q. Would you tell the jury if a resident in the third year is told about the symptoms of
pulmonary edema, do they have enough knowledge at the third year to order Lasix?
"A. Yeah. All of them said, you know, if you are suspicious of pulmonary edema you
give the Lasix and then call for help, because you have to get the Lasix if there is
suspicion of pulmonary edema. So, yeah, that's kind of—

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"Q. Is that the standard of care?
"A. Yes."

At that point, counsel for Wesley Medical Center interjected:

"[DEFENSE COUNSEL]: Well, excuse me.
"THE COURT: Sustained.
"[PLAINTIFF'S COUNSEL]: I said as a physician, not a nurse, Judge.
"[DEFENSE COUNSEL]: Same difference.
"[PLAINTIFF'S COUNSEL]: It goes to causation.
"[DEFENSE COUNSEL]: No.
"THE COURT: No, that was a standard of care question."

At the close of Perez' case in chief, Wesley Medical Center moved for judgment as
a matter of law. In particular, the medical center claimed that Perez failed to present
sufficient evidence to establish a causal connection between the alleged nursing
malpractice and Lindsay's death. The district court took the motion under advisement and
Wesley Medical Center renewed its motion before it rested. Again, the district court took
the motion for judgment as a matter of law under advisement and ultimately submitted
the case to the jury.

After deliberation, the jury returned a verdict in favor of Perez and against Wesley
Medical Center in the amount of $6.5 million. Following the trial, the medical center
filed a "Motion to Reduce Non-Economic Damages Award and Motion to Enforce the
Pretrial Order." While the motion for judgment as a matter of law was still pending, the
district court granted the motion to reduce the amount of damages in part and denied it in
part. Relying on the itemization in the final pretrial order, the district court reduced the
amount of damages to $5,370,832.

On December 27, 2019, the district court granted Wesley Medical Center's motion
for judgment as a matter of law and set aside the jury's verdict in its entirety. The district
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court determined that "there is no evidence on what Dr. Bender would have done
differently with the 7:15 a.m. chart information in time to prevent Lindsay's death." The
district court then found "that if there is no evidence of what Dr. Bender would or should
have done differently, if she had the [information from the] 7:15 a.m. assessment, then
Plaintiffs have not met their burden of proving the lack of the information led to a failure
to immediately diagnose severe pulmonary edema and the failure to immediately order
Lasix." Later, on January 10, 2020, the district court entered a final judgment in favor of
Wesley Medical Center and dismissed Perez' claims.

Thereafter, Perez filed a timely notice of appeal.

ANALYSIS

Issues Presented

Although the parties phrase the issues presented in this appeal differently, there
are two primary issues: first, whether the district court erred in granting judgment as a
matter of law in favor of Wesley Medical Center after the jury trial; and, second, if the
district court did err in granting judgment as a matter of law in favor of Wesley Medical
Center, whether the district court also erred in reducing the amount of the damages
awarded by the jury to Perez.

Motion for Judgment as a Matter of Law

Motions for judgment as a matter of law—formerly known as motions for directed
verdict—are governed by K.S.A. 2020 Supp. 60-250(a)(1), which allows a district court
to enter judgment against a party on a claim or defense that has been fully presented to a
jury if there is not "a legally sufficient evidentiary basis to find for the party on that issue
. . . ." On appeal, our review of a district court's ruling on a motion for judgment as a
matter of law is unlimited. In deciding whether the district court erred, we must review

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the record on appeal to determine "whether evidence existed from which a reasonable
jury 'could properly find a verdict for the nonmoving party.'" Siruta v. Siruta, 301 Kan.
757, 766, 348 P.3d 549 (2015).

Similar to our review of a district court's ruling on a motion for summary
judgment, we must resolve all facts and inferences that may reasonably be drawn from
the evidence in favor of the party—in this case Perez—against whom the ruling was
sought. When reasonable minds could reach different conclusions based on the evidence,
a motion for judgment as a matter of law must be denied. 301 Kan. at 766. In other
words, a motion for judgment as a matter of law must be denied when evidence exists
upon which a jury could properly find a verdict for the nonmoving party. Bussman v.
Safeco Ins. Co., 298 Kan. 700, 707, 317 P.3d 70 (2014).

Here, Wesley Medical Center timely moved for judgment as a matter of law under
K.S.A. 2019 Supp. 60-250(a) at the close of Perez' case-in-chief. The district court took
the motion under advisement and ultimately allowed the case to be submitted to the jury.
After the jury reached its verdict, Wesley Medical Center renewed its motion for
judgment as a matter of law under K.S.A. 2019 Supp. 60-250(b). While the motion for
judgment as a matter of law was still under advisement, the district court reduced the
amount of damages from the $6.5 million awarded by the jury to $5,370,832 based on the
amount claimed by Perez in the final pretrial order.

On December 27, 2019, the district court filed its memorandum decision granting
Wesley Medical Center's motion for judgment as a matter of law. This ruling effectively
set aside the jury's verdict in its entirety and the district court later entered an order
dismissing Perez' claims. On appeal, Perez seeks to have the jury's verdict reinstated. In
response, Wesley Medical Center asks that we affirm the district court's decision on the
motion for judgment as a matter of law or—in the alternative—remand this case to the
district court for a new trial.

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It is undisputed that any liability on the part of Wesley Medical Center in this case
would be vicarious based on the alleged negligence of Nurse VanEpps. See Bates v.
Dodge City Healthcare Grp., L.P., 296 Kan. 271, 290, 291 P.3d 1042 (2013); West v.
Collins, 251 Kan. 657, 664-65, 840 P.2d 435 (1992) ("Vicarious liability is a term
generally applied to legal liability which arises solely because of a relationship and not
because of any act of negligence by the person held vicariously liable for the act of
another."). Under Kansas law, a nurse is "a person who works in the same area as and
under the supervision of a physician or other practitioner of the healing arts." State Bd. Of
Nursing v. Ruebke, 259 Kan. 599, 627, 913 P.2d 142 (1996). "A nurse is not a
practitioner of the healing arts. K.S.A. 65-2872(m)." Nold ex rel. Nold v. Binyon, 272
Kan. 87, 100-01, 31 P.3d 274 (2001).

To prevail against Wesley Medical Center, Perez was required to establish: (1)
that Nurse VanEpps owed the patient a duty of care; (2) that Nurse VanEpps deviated
from the appropriate standard of care; (3) that the patient was injured; and (4) that the
injury or death was proximately caused by Nurse VanEpps' deviation from the
appropriate standard of care. Puckett v. Mt. Carmel Reg'l Med. Ctr., 290 Kan. 406, 420,
228 P.3d 1048 (2010). At trial, Perez bore the burden of proving each of these elements
by a preponderance of the evidence. See 290 Kan. at 420. Unless the deviation from the
appropriate standard of care or the existence of causation falls within the common
knowledge or experience of an average layperson, expert testimony is required to
establish both the accepted standard of care and causation. See Russell v. May, 306 Kan.
1058, 1071, 400 P.3d 647 (2017); Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303,
307, 756 P.2d 416 (1988). In addition, the expert opinions should be confined to matters
within a reasonable degree of probability rather than mere possibility. See Kuxhausen v.
Tillman, 291 Kan. 314, 318, 241 P.3d 75 (2010); Sharples v. Roberts, 249 Kan. 286, 292,
816 P.2d 390 (1991); Stormont-Vail Healthcare, Inc. v. Cutrer, 39 Kan. App. 2d 1, Syl. ¶
4, 178 P.3d 35 (2007).

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On appeal, Wesley Medical Center does not dispute that Perez presented
substantial evidence to support the first three factors to establish nursing malpractice.
Instead, the only element at issue on appeal is whether Perez presented substantial
evidence from which a reasonable jury could find that the alleged deviation from the
appropriate standard of care by Nurse VanEpps proximately caused Lindsay's injuries or
death. Causation is normally a question of fact left to a jury to decide. Estate of Belden v.
Brown County, 46 Kan. App. 2d 247, Syl. ¶ 13, 261 P.3d 943 (2011).

In Kansas, "proximate cause" has been defined to mean a natural and continuous
sequence of events that produces an injury. Hence, the injury suffered must be the natural
and probable consequence of the wrongful act or omission. Puckett, 290 Kan. at 420
(quoting Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 499, 173 P.3d 642 [2007]).
This definition of proximate cause incorporates two concepts—causation in fact and legal
causation. "Causation in fact means a cause-and-effect relationship exists between a
party's conduct and the resulting harm. Legal causation means a party's conduct might
foreseeably create a risk of harm and cause or contribute to the resulting harm."
Montgomery v. Saleh, 311 Kan. 649, 659, 466 P.3d 902 (2020) (citing Drouhard-
Nordhus v. Rosenquist, 301 Kan. 618, 623, 345 P.3d 281 [2015]).

In Burnette v. Eubanks, 308 Kan. 838, 846, 425 P.3d 343 (2018), the Kansas
Supreme Court explained:

"'To establish causation in fact, a plaintiff must prove a cause-and-effect relationship
between a defendant's conduct and the plaintiff's loss by presenting sufficient evidence
from which a jury can conclude that more likely than not, but for defendant's conduct, the
plaintiff's injuries would not have occurred. To prove legal causation, the plaintiff must
show it was foreseeable that the defendant's conduct might create a risk of harm to the
victim and that the result of that conduct and contributing causes was foreseeable.'
[Citation omitted.]"

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An injury is foreseeable where one who owes a duty of care knows or reasonably
should know that an action or a failure to act will likely result in harm to another. See
Castleberry v. DeBrot, 308 Kan. 791, 802-03, 424 P.3d 495 (2018); Shirley v. Glass, 297
Kan. 888, 900, 308 P.3d 1 (2013) (citing South v. McCarter, 280 Kan. 85, 103-04, 119
P.3d 1 [2005]). Although proximate cause may not be presumed from the mere fact of
injury, whether a risk of harm is reasonably foreseeable is usually a question of fact to be
decided by the jury. Consequently, the question of foreseeability should not be decided as
a matter of law except in a case in which a reasonable person could arrive at only one
conclusion based on the evidence. Puckett, 290 Kan. at 434.

Here, Perez presented a nursing expert at trial who testified that Nurse VanEpps
deviated from the appropriate standard of care for nurses by failing to timely report to a
physician all the information she had obtained from performing her initial nursing
assessment of Lindsay's condition on the morning of October 8, 2015. In particular, the
nursing expert testified that the appropriate standard of care for nurses—as well as
Wesley Medical Center's own policy—required Nurse VanEpps to immediately report to
a physician her respiratory findings, the lung crackles, and the imbalance between fluid
intake and output. Although the nursing expert appropriately recognized that nurses do
not make medical diagnoses, she testified that the symptoms noted by Nurse VanEpps in
her initial nursing assessment of Lindsay are recognized as symptoms pointing to
possible pulmonary edema.

When asked how—in her opinion—Nurse VanEpps violated the appropriate
standard of care for nurses, Perez’ nursing expert responded:

"By failing to report signs and symptoms that were consistent with pulmonary
edema, either using the words pulmonary edema or specifically [reporting] the respiratory
findings and the fluid . . . intake and output findings that were consistent with that
diagnosis of pulmonary edema. While nurses don't make clinical diagnoses, they can
make something called a nursing diagnosis. And they can report those findings after

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they've collected all this data, which they are actually in a very unique position being at
the front line as the safety net, as the data collectors to then report those findings to the
physician timely."

In granting Wesley Medical Center's motion for judgment as a matter of law, the
district court found it significant that Dr. Bender was not asked "whether she would have
diagnosed pulmonary edema, much less severe pulmonary edema, just from the 7:15 a.m.
assessment information in the chart." Likewise, the district court found it significant that
Dr. Bender was not asked during her deposition "what she would have done, what she
could have done, or what she would have been required to do if Nurse VanEpps had
given her all the allegedly missing information during the 7:33 a.m. report." Of course,
the material question is not what Dr. Bender would or would not have done but—as the
district court instructed the jury in jury instruction No. 4—whether there was evidence
presented at trial from which a reasonable jury could properly find that had Nurse
VanEpps met the appropriate "standard of care by promptly and properly communicating
Lindsay Perez's signs and symptoms indicative of pulmonary edema to any physician,
Lasix would have been administered and would have prevented Lindsay’s death."
(Emphasis added.)

Resolving all facts and inferences reasonably drawn from the evidence in favor of
the plaintiff as we are required to do, we conclude that the record contains evidence upon
which a jury could have found support in favor of Perez on the issue of causation.
Specifically, we find evidence in the record on appeal to support the following:

• During her nursing assessment conducted at 7:15 a.m., Nurse VanEpps
recorded Lindsay's symptoms as: high blood pressure, pitting edema,
bilateral lung crackles, fluid overload, and the need for oxygen.

17
• Nurse Shinn, Dr. Breall, and Dr. Sibai each testified that the symptoms
noted by Nurse VanEpps during the performance of her 7:15 a.m. nursing
assessment were consistent with pulmonary edema.
• Nurse Shinn—who testified as an expert witness on behalf of Perez at
trial—rendered the opinion within a reasonable degree of probability that
Nurse VanEpps violated the appropriate nursing standard of care "[b]y
failing to report signs and symptoms that were consistent with pulmonary
edema, either using the words pulmonary edema or specifically the
respiratory findings and the fluid . . . intake and output findings that were
consistent with that diagnosis of pulmonary edema."
• Nurse Shinn also testified that the symptoms recorded by Nurse VanEpps
during her initial nursing assessment of Lindsay were consistent with
possible pulmonary edema.
• In Dr. Bender's deposition—a portion of which was read to the jury because
she was living in Florida at the time of trial—she testified that she was a
third-year MFM resident at the time of Lindsay's hospitalization.
• Dr. Bender testified that Nurse VanEpps paged her at approximately 7:30
a.m. and that she immediately responded by telephone.
• According to Dr. Bender, her initial phone conversation with Nurse
VanEpps around 7:33 a.m. "was very routine" and primarily involved the
nurse reporting that Lindsay had elevated blood pressures. In an attempt to
control Lindsay's blood pressure, Dr. Bender ordered that Procardia be
administered.
• Dr. Bender further testified that Nurse VanEpps contacted her again around
8:26 a.m. Dr. Bender recalled that Nurse VanEpps told her that she was
concerned about Lindsay's respiratory status and that there were still no
results from radiology regarding a chest x-ray that had been taken at 7:55
a.m.

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• Dr. Bender testified after receiving the additional information from Nurse
VanEpps about Lindsay's respiratory status at 8:26 a.m., she considered it
to be an emergent issue and headed to the hospital from her office across
the street.
• Also, Dr. Bender testified that she called radiology while she was walking
from her office to the medical center and was told the chest x-ray showed
probable pulmonary edema.
• After calling her attending physician to confirm, Dr. Bender ordered Lasix
and it was administered at 8:47 a.m.
• It does not appear from the record that Nurse VanEpps talked to any other
physician about Lindsay's case during the time between her first and second
phone conversations with Dr. Bender.
• Dr. Breall—who served as one of Perez' causation experts—testified that in
his opinion it would take a doctor about 10 or 15 minutes to "do a
reasonable examination" of a patient and "come up with a preliminary
diagnosis" of pulmonary edema.
• Dr. Breall rendered the opinion that "[t]here's no question in [his] mind"
that Lindsay was showing signs and symptoms consistent with pulmonary
edema at 7:15 a.m., and the appropriate treatment would be the
administration of Lasix, which is "a medicine that will help [the patient]
excrete that fluid." If timely treatment is not administered and the patient
continues to receive fluids, then the "fluid ends up in the lungs and it ends
up in the peripheral tissues."
• Dr. Breall further opined that "[t]here's no question" that Lindsay's death
was preventable had she been timely treated with Lasix.
• Dr. Breall rendered the opinion that he is 95% certain that if Lasix had been
administered by 8 a.m., Lindsay would have survived.

19
• In addition, Dr. Breall opined that even if Lasix had been given by 8:30
a.m., it is likely that Lindsay would have survived.
• Dr. Sibai—who served as Perez' other causation expert witness—testified
that in his opinion, Lindsay was showing many symptoms of pulmonary
edema by 7:15 a.m. After going through the examination notes on Lindsay's
chart after Nurse VanEpps' 7:15 a.m. assessment, Dr. Sibai testified that
"definitely she has congestive heart failure and pulmonary edema [] putting
all the picture together."
• Dr. Sibai also opined that pulmonary edema should be considered a medical
emergency.
• Dr. Sibai rendered the opinion that Lindsay's death "definitely" was
preventable.
• Dr. Sibai testified that he had administered Lasix in the treatment of
patients with high-risk pregnancies 200 or more times.
• Dr. Sibai rendered the opinion that third-year residents have sufficient
knowledge to recognize that Lasix should be given if they are suspicious of
pulmonary edema.
• Dr. Sibai went on to opine that this is the standard of care.
• Dr. Sibai testified that if Lasix had been given by 7:50 a.m., Lindsay would
have had an 80% to 90% likelihood of surviving.
• Also, Dr. Sibai opined that Lindsay's life could have been saved if Lasix
had been started by 8:30 a.m.

Notwithstanding, Wesley Medical Center suggests that Dr. Sibai's testimony
regarding what a third-year obstetrics’ resident would know about the administration of
Lasix to treat suspected pulmonary edema was not in evidence because the district court
sustained a purported objection to this testimony. However, a review of the trial
transcript—which is the official record of the proceedings—reveals that the purported

20
objection was not made until after Dr. Sibai had answered the question about the
knowledge of third-year residents. In fact, the purported objection was not made until
after Dr. Sibai had answered the next question.

Specifically, the trial transcript shows that the following occurred:

Even if we assume that the answer was given so quickly that defense counsel did
not have time to object, a motion to strike would have been the appropriate remedy. See
State v. Campbell, 268 Kan. 529, 538, 997 P.2d 726 (2000); see 3 Hayden, Kansas Law
and Practice: Lawyer's Guide to Evidence § 1:13 (5th ed. 2021) (if objection is sustained,
a motion to strike should be made as to any testimony presented which would not be
admissible as a result of the ruling). Although counsel for Wesley Medical Center
suggested during oral argument before this court that the jury instructions given by the
court at the end of the trial functioned as an order to strike, we have reviewed the
instructions and find nothing striking this testimony. The district court did give a standard
21
instruction indicating generically that it had "ruled upon objections to the admission of
evidence" and that the jury "must consider only the evidence which is admitted. " Here,
we find that the evidence quoted above was admitted and was properly before the jury for
consideration.

In particular, we do not find that defense counsel's "excuse me" statement is
adequate to meet the requirement of a clear and specific ground of objection to evidence
as required under Kansas law. See K.S.A. 60-404; see also City of Overland Park v.
Cunningham, 253 Kan. 765, 772, 861 P.2d 1316 (1993) ("[A] contemporaneous objection
must be made and it should be specific enough that the trial judge can rule intelligently
upon the objection, and the specific contemporaneous objection must be made known to
the opposing counsel when the objection is lodged."). Even when evidence is challenged
prior to trial by a motion in limine, a timely and specific objection must still be made at
trial. Adamson v. Bicknell, 295 Kan. 879, 894, 287 P.3d 274 (2012). As our Supreme
Court has explained, "a pretrial objection by itself is not timely because the evidence may
be . . . viewed differently by the judge in the context of all of the evidence and argument
heard at trial." State v. Kelly, 295 Kan. 587, 590, 285 P.3d 1026 (2012). Thus, we find
that this evidence was properly before the jury for consideration.

Wesley Medical Center also contends that it was entitled to judgment as a matter
of law because Perez failed to prove that Dr. Bender would have changed her course of
treatment if she had been properly informed that Lindsay was showing signs of
pulmonary edema. In support of this contention, the medical center cites Drouhard-
Nordhus, 301 Kan. 618. In Drouhard-Nordhus, the plaintiff claimed that a radiologist
committed medical malpractice for allegedly misinterpreting a CT scan. In that case, the
plaintiff failed to come forward with sufficient evidence to establish that subsequent
healthcare providers relied on the alleged flawed interpretation in providing care and
treatment to the plaintiff. As a result, the district court granted summary judgment in
favor of the radiologist.

22
In affirming the district court's decision to grant summary judgment, the Kansas
Supreme Court found that the testimony of an expert witness "may be sufficient to
establish that a different evaluation would have resulted in a different diagnostic test . . . .
But to establish the final link in the causation chain, plaintiff must show that those tests
would have resulted in a treatment that would have prevented Drouhard's death." 301
Kan. at 624. See also Emerson v. Macy, No. 93,867, 2006 WL 2337216, at *4-6 (Kan.
App. 2006) (unpublished opinion) (nurse's alleged failure to call a surgeon in a timely
manner to notify him of a patient's post-operative complications did not cause the
patient's death because the surgeon testified that he would not have acted had he been
told of the patient's condition at the time).

We find both Drouhard-Nordhus and Emerson to be distinguishable from the
present appeal. Unlike those cases, a review of the record in this case reveals that there
was expert testimony that—if believed—was sufficient to establish a causal link between
the alleged failure of Nurse VanEpps to promptly and/or fully inform Dr. Bender or
another physician about Lindsay's condition immediately following her 7:15 a.m. nursing
assessment and the timely administration of Lasix to treat for suspicion of pulmonary
edema. In turn, we find that there is expert testimony in the record that—if believed—is
sufficient to establish within a reasonable degree of probability that the timely
administration of Lasix would have saved Lindsay's life. Unlike Drouhard-Nordhus and
Emerson, we do not find that it was appropriate under the circumstances presented here
for the district court to take the decision regarding fault out of the hands of the jury.

Based on the evidence in the record—as well as the rational inferences that could
be drawn from the evidence—in the light most favorable to Perez, we find that the jury
could have reasonably concluded that Nurse VanEpps failed to immediately report all the
symptoms she noted during her 7:15 a.m. nursing assessment of Lindsay to Dr. Bender or
any other physician. Although there is conflicting evidence in the record as to what Nurse
VanEpps told Dr. Bender during the 7:33 a.m. phone call, we recognize that this was a

23
question for the jury to decide. We also find that the jury could have reasonably
concluded that the symptoms of high blood pressure, pitting edema, bilateral lung
crackles, fluid overload, and the need for oxygen charted by Nurse VanEpps are
consistent with pulmonary edema. Furthermore, we find that the jury could have
reasonably concluded that Dr. Bender or any other physician under the same or similar
circumstances would have ordered that Lindsay be given Lasix for suspicion of
pulmonary edema had they been promptly and fully informed of the symptoms noted by
Nurse VanEpps during her initial nursing assessment. Finally, we find that the jury could
have reasonably concluded that Lindsay would have survived had Lasix been timely
administered.

As discussed above, a motion for judgment as a matter of law must be denied
when there is evidence in the record upon which a reasonable jury could find in favor of
the nonmoving party. Bussman, 298 Kan. at 707. Similarly, the question of causation is
generally a question of fact and only becomes a question of law if "'all the evidence on
which a party relies is undisputed and susceptible of only one inference.'" Burnette, 308
Kan. at 846. We do not find that to be the situation in this case. Instead, based on our
review of the record, we find that the evidence—although hotly contested—was adequate
to support the jury's verdict on the issue of fault including both negligence and causation.
Thus, we conclude that the district court erred in granting Wesley Medical Center's
motion for judgment as a matter of law under the circumstances presented.

Motion to Reduce Non-Economic Damages Award and Enforce Pretrial Order

Perez also contends that the district court erred when it granted Wesley Medical
Center's posttrial "Motion to Reduce Non-Economic Damages Award and Motion to
Enforce the Pretrial Order." We review a district court's decision on a motion to alter or
amend a judgment—which would include a motion to reduce the amount of judgment—
under an abuse of discretion standard. See Exploration Place, Inc. v. Midwest Drywall

24
Co., 277 Kan. 898, 900, 89 P.3d 536 (2004); Wenrich v. Employers Mutual Insurance
Co., 35 Kan. App. 2d 582, 585-86, 132 P.3d 970 (2006). A judicial action constitutes an
abuse of discretion only if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on
an error of law; or (3) it is based on an error of fact. Biglow v. Eidenberg, 308 Kan. 873,
893, 424 P.3d 515 (2018). The party asserting the district court abused its discretion—in
this instance Perez—bears the burden of showing such an abuse of discretion. Gannon v.
State, 305 Kan. 850, 868, 390 P.3d 461 (2017).

After the jury returned a verdict awarding $6.5 million in damages, Wesley
Medical Center moved to reduce the amount of the award. In support of its motion, the
medical center raised several arguments. Significant to this appeal, it argued that the
verdict should be reduced to the amount requested in the final pretrial order. In granting
the motion in part and denying it in part, the district court determined that the final
pretrial order was binding on the parties "unless a motion is made to modify it."
Accordingly, the district court reduced the amount of the verdict to $5,370,832 as
requested in the final pretrial order entered on July 15, 2019.

We pause to note that the district court denied the part of the motion in which
Wesley Medical Center sought to have the damages awarded reduced in accordance with
the statutory caps on damages. The district court ruled that the Kansas Supreme Court's
holding in Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1149-50, 442 P.3d 509 (2019),
applied to medical malpractice cases and that the limitation on damages in wrongful
death cases under K.S.A. 60-1903 was unconstitutional. Because Wesley Medical Center
has not filed a cross-appeal from this ruling, this issue is not before us for resolution. See
K.S.A. 2020 Supp. 60-2103(h).

Although the parties discuss Kansas Supreme Court Rule 118 (2021 Kan. S. Ct. R.
205) in their briefs, the district court's ruling on the motion to reduce was based on the
provisions of the final pretrial order rather than the rule. A review of the record reflects

25
that the final pretrial order was agreed to by the parties before it was executed and filed
by the district court. Consistent with K.S.A. 2020 Supp. 60-216(d), the final pretrial order
entered by the district court in this case expressly stated that it "shall supersede all
pleadings, shall control the subsequent course of this case and shall not be modified
except by consent of the parties with Court approval, or by order of the Court on its own
motion to prevent manifest injustice."

The purpose of a final pretrial order is to eliminate surprise at trial by fully
disclosing to all parties the anticipated evidence and legal issues. See Bussman v. Safeco
Ins. Co. of America, 298 Kan. 700, 708, 317 P.3d 70 (2014). Here, the final pretrial order
entered by the district court set forth an itemized list of the damages claimed by Perez.
Still, the final pretrial order also states that Perez only reserved the right to amend the
itemization of damages prior to the end of the trial "so long as plaintiff does not increase
the total amount of damages claimed."

At no time did Perez request to amend the final pretrial order to exceed the total
amount of damages set forth in the order. Instead, the record reflects that Perez expressly
represented to the district court at a motions hearing held prior to the presentation of
evidence at trial that he would not be asking the jury to award more damages than those
requested in the final pretrial order. Because the final pretrial order was not subsequently
modified by—or with the approval of—the district court, the parties were bound by its
terms absent a showing of manifest injustice. See K.S.A. 2020 Supp. 60-216(e); Cerretti
v. Flint Hills Rural Elec. Co-op Ass'n, 251 Kan. 347, 361, 837 P.2d 330 (1992); Ettus v.
Orkin Exterminating Co., Inc., 233 Kan. 555, 561, 665 P.2d 730 (1983); Smith v. Oliver
Heights, 49 Kan. App. 2d 384, 391-92, 311 P.3d 1139 (2013).

Perez suggests that the district court's enforcement of the final pretrial order may
be unconstitutional because a jury is entitled to determine the amount of damages—if
any—to be awarded in a civil trial under Section 5 of the Bill of Rights of the Kansas

26
Constitution. Although Perez cites K.S.A. 2020 Supp. 60-238 and Hilburn, we find that
neither support his argument. In particular, neither K.S.A. 2020 Supp. 60-238 nor
Hilburn stand for the proposition that holding a party to the terms of a final pretrial
order—especially one that is agreed upon by the parties—is unconstitutional.

Perez also suggests that K.S.A. 2020 Supp. 60-254(c) supports his position that the
district court erred in enforcing the terms of the final pretrial order. As the statute—which
addresses default judgments—states on its face, "[e]very other final judgment should
grant relief to which each party is entitled, even if the party has not demanded that relief
in its pleadings." Here, the issue before us is not whether Perez could assert a claim for
relief above the amount of damages demanded in his pleadings. Rather, the issue is
whether Perez should be held to the amount of damages that was included in the final
pretrial order issued by the district court. As our Supreme Court has held, "[u]nder notice
pleading, the petition is not intended to govern the entire course of the case. Rather, the
pretrial order is the ultimate determinant as to the legal issues and theories on which the
case will be decided. Halley v. Barnabe, 271 Kan. 652, 656-57, 24 P.3d 140 (2001)."
Unruh v. Purina Mills, LLC, 289 Kan. 1185, 1191, 221 P.3d 1130 (2009).

We conclude that pretrial orders are important tools for district courts to perform
their duties in a way that ensures that the parties receive a fair trial. The purpose of a
pretrial order is to define and clarify the issues in order to reduce—if not eliminate—
surprise during trial. Bussman, 298 Kan. at 708. Under K.S.A. 2020 Supp. 60-216, a
pretrial order entered by the district court is a binding order that controls the subsequent
proceedings unless modified to prevent manifest injustice. Thus, based on our review of
the record, we conclude that the district court properly exercised its discretion by granting
Wesley Medical Center's motion and reducing the amount of the jury's verdict to the
amount claimed in the final pretrial order.

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CONCLUSION

After reviewing the record on appeal in a light most favorable to Perez, we
conclude that the district court erred in granting Wesley Medical Center's judgment as a
matter of law under K.S.A. 2020 Supp. 60-250(a)(1). More specifically, we find that the
record reflects a legally sufficient evidentiary basis to support the jury's verdict regarding
the alleged fault of the medical center. In particular, we find that there is evidence on the
issue of causation from which the jury could conclude within a reasonable degree of
probability that the acts or omissions of Nurse VanEpps—for whom Wesley Medical
Center is vicariously liable—caused or contributed to Lindsay Perez' injuries and death.

However, we do not find that the district court abused its discretion in reducing the
amount of the damages awarded to Perez to conform with the amount claimed in the final
pretrial order. Furthermore, it is not necessary for us to consider the other issues
addressed by the parties in their briefs. We, therefore, affirm in part, reverse in part, and
remand this case to the district court to reinstate the judgment in favor of Perez in the
amount of $5,370,832.

Affirmed in part, reversed in part, and remanded with directions.

Perez v. Wesley Medical Center

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