This section contains the nature of the case and procedural background.

p.p1 {margin: 0.0px 0.0px 0.0px 0.0px; font: 12.0px Helvetica; min-height: 14.0px} p.p2 {margin: 0.0px 0.0px 0.0px 0.0px; text-align: center; font: 12.0px Helvetica} p.p3 {margin: 0.0px 0.0px 0.0px 0.0px; font: 12.0px Helvetica} ADAMS V. VIA CHRISTI REGIONAL MEDICAL CENTER 19 P.3d 132 (2001) NATURE OF THE CASE: Adams (Ps), the parents of the decedent, Christi (D), hospital, and Ohaebosim (D), doctor, all appealed from a judgment in a personal injury and wrongful death action. FACTS: Nichelle was 22 years old and was living with her parents and her younger sister. On July 22, at approximately 8:40 p.m. Nichelle had been complaining about her stomach and had gone to bed. P was concerned. Dr. Ohaebosim (D), an osteopath, who had been a family practitioner for 22 years, had been the family physician for Ps and their three children for several years. He had a patient file on Nichelle, but he had not seen her in his office since 1988. On July 6, Nichelle completed a form for Planned Parenthood in which she answered 'no' to the question 'Do you have a family physician?' Dr. Ohaebosim (D) continued to provide medical care to other members of the family. P had gotten medical advice from Dr. Ohaebosim (D) over the telephone on a number of occasions. Until 1990, Dr. Ohaebosim (D) delivered over a thousand babies. After 1990, he referred women to other practitioners for prenatal care, labor, and delivery. P was unaware that Dr. Ohaebosim had eliminated obstetrical care from his practice. At approximately 9 p.m. on July 22, P called Dr. Ohaebosim (D). P told Dr. Ohaebosim (D) that Nichelle was 5 to 8 weeks pregnant and was experiencing abdominal pain. P later told a doctor at the hospital that she mentioned shortness of breath to Dr. Ohaebosim (D). Dr. Ohaebosim (D) later denied it, and at the time of the trial, P could not remember telling him anything other than Nichelle was pregnant and had abdominal pain. Dr. Ohaebosim (D) testified that 8 weeks is the typical time when an ectopic pregnancy becomes symptomatic because the fetus becomes too large for the fallopian tube. When P told Dr. Ohaebosim (D) of Nichelle's condition, he did not suspect that Nichelle might have an ectopic pregnancy. According to Dr. Ohaebosim (D), P did not express urgency or serious concern when she called him on July 22. Dr. Ohaebosim (D) testified that he told P that abdominal pain was not abnormal during pregnancy but to take Nichelle to the emergency room if she got any worse. He also told her to have Nichelle see a doctor the next day. P testified that Dr. Ohaebosim (D) did not mention taking Nichelle to the emergency room, but that he did say to bring her into his office the next day. Dr. Ohaebosim (D) did not ask P any questions about Nichelle's condition. Nichelle was admitted to the emergency room at 12:25 a.m. on July 23. She was agitated and thrashing aroundand vomited in the examination room. Nichelle had gone into cardiac arrest and was being taken to surgery. Nichelle was on life support systems and nonreactive to light. Dr. Ohaebosim (D) discussed Nichelle's condition with her family, and at approximately 6:30 p.m. she died after being removed from the support systems pursuant to her family's decision. There was evidence that Nichelle might have lived if she had received medical care at 9 or 9:30 p.m. on July 22, instead of after midnight. P settled with the hospital for $170,000. The jury found Dr. Ohaebosim (D) 90% at fault and the hospital 10% at fault. The jury found that a physician-patient relationship existed between Nichelle and Dr. Ohaebosim (D) on July 22, 1992. The total damage award was $2,015,000; $ 200,000 of the award to Nichelle's estate was for pain and suffering. In 1992, K.S.A. 60-1903(a) placed a cap of $ 100,000 nonpecuniary damages in a wrongful death action. The court limited damages and held that Ps take nothing against Dr. Ohaebosim (D) for their wrongful death claim. Everyone appealed. ISSUE Does K.S.A. 60-1903 or K.S.A. 60-258a expressly take the apportionment principles or procedures beyond trial proceedings? May a physician-patient relationship be created in any number of ways, including the act of a physician agreeing to give advice to a patient in person or by telephone? RULE OF LAW: Neither K.S.A. 60-1903 nor K.S.A. 60-258a expressly takes the apportionment principles or procedures beyond trial proceedings. A physician-patient relationship may be created in any number of ways, including the act of a physician agreeing to give advice to a patient in person or by telephone.' HOLDING AND DECISION: (Allegrucci, J.) Does K.S.A. 60-1903 or K.S.A. 60-258a expressly take the apportionment principles or procedures beyond trial proceedings? No. May a physician-patient relationship be created in any number of ways, including the act of a physician agreeing to give advice to a patient in person or by telephone? Yes. Subsection (a) of 60-1903 authorizes a court or jury to award fair and just damages but prohibits nonpecuniary damages from exceeding in the aggregate the sum of $ 100,000. The legislature used the terms 'award' and 'damages,' words associated with trials and verdicts. It did not use the terms 'proceeds' or 'settlement.' The legislature expressly limited damages 'in the aggregate,' which clearly shows the legislature's intent to aggregate the damage awards attributable to co-tortfeasors, but the statute is silent as to settlement proceeds. Subsection (b) of 60-1903, too, is in trial terms. Subsection (b) comes into play if the jury verdict results in an award of damages for nonpecuniary loss which, after deduction of any amounts pursuant to K.S.A. 60-258a and amendments thereto, exceeds the limitation of subsection (a). In that event, the court is required to enter judgment for nonpecuniary loss in the amount of the limit. The comparative negligence statute requires that the percentage of fault attributable to each party be determined and limits each party's liability to its percentage of the total damage award. Thus, it appears that the phrase, 'after deduction of any amounts pursuant to K. S. A. 60-258a,' in subsection (b) of K.S.A. 60-1903 refers to any percentage of the total damage award for which the claimant is responsible due to imputation of the percentage of fault determined to be attributable to the decedent. It further appears that what remains after the deduction of any percentage of the damage award imputed to the claimant is the 'aggregate sum' to which the statutory cap is applied. Neither K.S.A. 60-1903 nor K.S.A. 60-258a expressly takes the apportionment principles or procedures beyond trial proceedings. This court has held that the comparative negligence statute will not permit a jury verdict to be reduced by any amount the plaintiff may have received in settlement from other defendants. Neither K.S.A. 60-1903 nor K.S.A. 60-258a expressly takes into account a settlement agreement between a decedent's heirs and a tortfeasor. Moreover, the interpretation given to the statutes by the trial court does not seem to be implied in the statutory language. The cap specified in K.S.A. 60-1903 is not a measure of damages but rather limits the recovery of the damages awarded by a judge or jury. The percentage of fault is applied to the jury's nonpecuniary damages award to determine the amount of damages attributable to a defendant. Where the damages attributable to the defendant are in excess of the cap, the recovery is limited to the amount of the cap. The jury verdict included an award of $ 1,800,000 to Ps for the nonpecuniary loss of their daughter. With no-fault being attributed to the decedent, there was no percentage imputed to the parents to be deducted from the award. Applying the jury's apportionment of 90% fault to the doctor to the $ 1,800,000 produces the figure of $ 1,620,000. The statutory cap applies to the award of $ 1,620,000, thus reducing the award to $ 100,000. Ps are entitled to a judgment of $ 100,000 against Dr. Ohaebosim (D). Thus, the trial court erred in not granting Ps a judgment of $ 100,000 for their wrongful death claim. Dr. Ohaebosim (D) first argues that he had no duty of care to Nichelle. Whether a duty exists is a question of law. This court's review of a question of law is unlimited. Dr. Ohaebosim (D) contends that there was no physician-patient relationship. Whether a duty exists is a question of law. This court's review of a question of law is unlimited. Certain general principles may be drawn that govern situations in which the existence of a physician-patient relationship is in question. A doctor's not dealing directly with a patient does not preclude the existence of a physician-patient relationship. A doctor, who instead of giving medical advice, suggests that a patient contact another doctor or transfer to another facility does not form a physician-patient relationship. A physician-patient relationship is consensual. Thus, where there is no ongoing physician-patient relationship, the physician's express or implied consent to advise or treat the patient is required for the relationship to come into being. The doctor must take some affirmative action with regard to the treatment of a patient in order for the relationship to be established. 'A physician-patient relationship may be created in any number of ways, including the act of a physician agreeing to give or giving advice to a patient in person or by telephone.' Dr. Ohaebosim (D) discussed Nichelle's condition with P. In doing so, he consented to give medical advice about Nichelle's condition and he gave it. It is immaterial that he had not seen Nichelle for several years. It is immaterial that he did not speak directly to Nichelle on July 22. It is not significant in the circumstances that he states that he did not consider Nichelle to be his patient and that Nichelle did not consider him to be her doctor. He did consider P to be his patient. He was a family physician, and in years past he had treated her daughter, Nichelle. When P spoke to him by telephone on July 22 and told him that Nichelle was 5-8 weeks pregnant and experiencing abdominal pain, Dr. Ohaebosim (D) did not say that he did not consider Nichelle to be his patient. He did not say that he no longer provided obstetrical care. He listened to what P told him about Nichelle and gave her his medical opinion in response. Dr. Ohaebosim's (D) undertaking to render medical advice as to Nichelle's condition gave rise to a physician-patient relationship. The earlier physician-patient relationship was renewed. The matter is remanded to the district court with directions to enter judgment against Dr. Ohaebosim (D) in the amount of $293,500, which includes wrongful death damages in the amount of $113,500, together with interest on the judgment from June 9, 1999, until paid in full. LEGAL ANALYSIS: We bolded additional rules of law in the holding. Kan. Stat. Ann. § 60-1903's requirement was for a court or jury “to award fair and just damages” is “associated with trials and verdicts” but not settlements. 'The physician-patient relationship is a consensual one in which the patient knowingly seeks the physician's assistance and the physician knowingly accepts the patient as a patient. The relationship is contractual and wholly voluntary and is created by agreement expressed or implied. A physician-patient relationship may be created in any number of ways, including the act of a physician agreeing to give or giving advice to a patient in person or by telephone.' Brief telephone advice given to a currernt patient related to her daughter and a prior patient of the doctor creates a physician-patient relationship. This entire case seems premised on the reasonable expectations of the patients. But the doctor did voluntarily give medical advice about the ex-patient and the daughter of the patient. © 2007-2025 Abn Study Partner

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