JUSTICE FOR 90-YEAR-OLD PLAINTIFF MADE POSSIBLE BY RECENT KANSAS SUPREME COURT DECISION

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In May 1998, a Crawford County, Kansas, jury returned a verdict in favor of Agnes Biederman, a 90-year-old woman who brought a medical negligence suit against Pittsburg surgeon Robert Huebner, M.D. The case arose from a questionably unnecessary esophageal dilatation procedure during which Dr. Huebner perforated the patient's stomach. Steve Brown and John Parisi tried the case, and the jury found Dr. Huebner 100% at fault, awarding damages of $186,000. Mrs. Biederman had $11,000 in medical bills and no lost wages or other economic damages.

The case appeared difficult on liability because Mrs. Biederman's story of Dr. Huebner's poor treatment of her during the esophageal dilatation procedure was contradicted by the nurses' and Dr. Huebner's versions at their depositions. Mrs. Biederman testified at deposition that during the procedure the doctor continued to use dilators, disregarding her pleas for him to stop, that she experienced severe pain, and that she pointed repeatedly to her stomach as a means of identifying the location of the pain. Until the month before trial, Mrs. Biederman's story stood uncorroborated and denied by the defendant and nurses.

Fortunately, the recent decision of the Kansas Supreme Court in Adams v. St. Francis Hosp., 264 Kan. 144 (1998), helped bring out the true facts which supported Mrs. Biederman's account. In a collaborative effort with Wichita attorney Randy Fisher, Lynn Johnson, of our office, assisted in arguing the Adams case to the Supreme Court.

Adams focused on the clash between statutory privileges and the plaintiff's need for factual information shielded by the privileges, holding that due process may require that privileges of all kinds yield to the need to know.

In Adams, the "peer review" privilege was at issue. The Kansas Supreme Court overturned a trial court's decision to exclude the use of certain peer review records and information in the case, even though with the documents the plaintiff could make a punitive damages claim stick, and without them punitive damages were not warranted. The court weighed the purpose of the "peer review" privilege provided by the Kansas statute against the plaintiff's interest in discovering facts, stating:

In the present case, we conclude that although the interest in creating a statutory peer review privilege is strong, it is outweighed by the fundamental right of the plaintiffs to have access to all the relevant facts. The district court's protective order and order granting other discovery relief denied plaintiffs that access and thus violated plaintiffs' right to due process and fair determination of their malpractice action against the defendants.

Shamberg, Johnson &
Bergman

John E. Shamberg
Lynn R. Johnson
Victor A. Bergman
John M. Parisi
Steven G. Brown
Stephen N. Six
Patrick A. Hamilton

4551 W. 107th St.
Suite 355
Overland Park, KS 66207
913-642-0600
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The Adams opinion contains helpful analysis for those seeking access to any documents as to which a privilege is claimed.

For Mrs. Biederman, the Adams case opened the door to discovery of incident reports the nurses had filed soon after the dilatation procedure over defendant's "peer review" objections. The reports stated the nurses' concerns about Dr. Huebner's treatment of Mrs. Biederman during the procedure. Previously at their depositions, Dr. Huebner and the nurses testified that there was nothing unusual about the way Dr. Huebner performed the procedure and that Mrs. Biederman did not point to her stomach indicating an area of pain. The documents corroborated Mrs. Biederman's version.

Under an Adams analysis, the district court determined that the plaintiff had the right to the facts contained in the incident reports. Without access to the contemporaneous facts recorded in the incident reports, rendered subject to disclosure by Adams, the defendant's misleading version of events may have prevailed, and justice frustrated.

TENTH CIRCUIT UPHOLDS WOLFGANG VERDICT

The United States Court of Appeals for the Tenth Circuit recently rejected bids by World of Outlaws and Lakeside Speedway to overturn an August 1997, jury award of $1,215,000 in damages in favor of Douglas Wolfgang for injuries sustained due to defendants' wanton conduct in providing fire safety and rescue services at Lakeside Speedway following a crash. Wolfgang v. Mid-America Motorsports and World of Outlaws, Inc., 111 F.3d 1515 (1997).

In April of 1992, Doug Wolfgang, one of the nation's top sprint car drivers, crashed during a practice session at the race track in Kansas City, Kansas. Wolfgang lost control of his alcohol-fueled sprint car and slammed into a retaining wall at a

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