Brain Injury Settlement
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and symptoms of cardiomyopathy had been evident for several weeks, during which she was getting progressively sicker under Dr. Estrada’s care. At barely 36 weeks of pregnancy, she had gained 76 pounds gaining nearly a pound a day for the previous month during which she was also developing progressive problems with severe swelling and shortness of breath. Dr. Estrada failed to work Sara up for these symptoms, despite several expressions of concern from Sara and her mother.
On September 19, 2002, Sara’s bag of water ruptured, and she was admitted to the obstetrical unit under the care of Dr. Snider with many abnormal vital signs and laboratory values. At the time of admission, Sara was struggling to breathe, could not lie down, and needed supplemental oxygen. These acute breathing problems were attributed to her history of mild asthma, even though the evidence was not consistent with asthma.
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Sara had no wheezing and had not been improving on asthma medication.
Ten hours and 45 minutes after admission, just after midnight on September 20, 2002, Sara stopped breathing, lapsed into respiratory arrest, lost pulse and blood pressure, and a Code Blue was called. By the time she was resuscitated, Sara had sustained a brain injury which has left her permanently disabled. Eventually, it was determined Sara had stopped breathing because she developed an enlarged heart, congestive heart failure, and pulmonary edema from an uncommon condition known as peripartum cardiomyopathy.
The most significant aspect of the case was the strategic decision made by the four defendants not to make any affirmative allegations of comparative fault against each other, pursuant to K.S.A. 60-258a, at the time of the Pretrial Conference. Instead, the defendants requested the court to include language in the Final Pretrial Order that, “In the event plaintiff settles or otherwise dismisses any defendant herein, then [defendant] incorporates by reference plaintiff’s previous allegations of and evidence concerning fault of same.” In advocating their right to make this allegation, defendants relied upon K.S.A. 60-208(e)(2), which allows for inconsistent, alternative, and hypothetical pleadings.
The trial court rejected the defendants’ proposed language and required the defendants to be specific in their affirmative claims of comparative fault. The court reasoned that K.S.A. 60-208 does not apply at the Final Pretrial Conference phase of the case, that K.S.A. 60-216 and Supreme Court Rule 140 require clarity regarding the claims and defenses in the Pretrial Order, and therefore at that stage of the litigation such alternative and hypothetical pleading is not appropriate.
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As the case proceeded, plaintiff settled with each of the defendant-physicians for their policy limits and dismissed her claims against them, and then sought to proceed to trial against Olathe Medical Center with no allegations of fault in the case against the dismissed physicians, or anybody besides Olathe Medical Center. The defendant-hospital then filed a Motion to Amend the Pretrial Conference Order to allow it to adopt plaintiff’s prior allegations of fault against the physicians, and also filed a separate Motion for Leave for the defendant to name the plaintiff’s experts to establish those claims. This strategy would have allowed the defendant-hospital to reduce its percentage of liability by casting blame to the now empty-chair undefended doctors. The court overruled both motions on the ground that all defendants had been “invited” at the Pretrial Conference to make such comparative fault claims but chose not to do so. While somewhat sympathetic to defendant’s position, the trial court held that the defendant’s procedural position was the result of defendant’s tactical choices, and there was no “manifest injustice” to defendant to justify amending the Pretrial Order.
The posture of the case at that point was that Olathe Medical Center would be the only defendant on the verdict form at trial, and although its fault was less than 100%, it was potentially liable for 100% of the damages. While Olathe Medical Center took the position the trial court had committed error, the case settled at a significant premium at the end of the second day of trial.
The lesson of this case for plaintiffs’ counsel is to press multiple defendants at every point to commit to their theories of defense, specifically the affirmative defense of comparative fault. We have been advocating this for many years. See Vic Bergman’s column from our Summer 1993 Newsletter. All of our newsletter issues are available at our website, www.sjblaw.com. |
