WOZNIAK v. LIPOFF

SYLLABUS BY THE COURT

1. CIVIL PROCEDURE — Directed Verdict Motion — Appellate Review of Denial of Motion — Scope of Review. A trial court is required to submit a case to the jury if the evidence and all inferences reasonably drawn therefrom, viewed in the light most favorable to the party against whom the ruling is sought, are such that reasonable minds could differ on the conclusion to be drawn. In reviewing a trial court's denial of a motion for a directed verdict, the appellate court's scope of review is the same; if the evidence or the inferences which may be drawn therefrom could, when viewed in the light most favorable to the party opposing the motion, reasonably support different conclusions, the decision is properly one for the jury.

2. PHYSICIANS AND SURGEONS — Medical Malpractice — Proof Required for Plaintiff to Prevail — Expert Testimony. Three elements must be proven through expert testimony in order for a plaintiff to prevail in a medical malpractice case: (1) that a duty was owed by the physician to the patient; (2) that the duty was breached; and (3) that a causal connection existed between the breached duty and the injury sustained by the patient.

3. SAME — Medical Malpractice — Sufficiency of Evidence to Support Allegations of Negligence and to Defeat Motion for Directed Verdict. When competent evidence is introduced in support of each allegation of negligence in a medical malpractice case, including the three elements essential for a plaintiff to prevail in a medical malpractice case, it is not error for a trial court to overrule a motion for a directed verdict.

4. TRIAL — Jury Instructions on Modification of Plaintiff's Allegations of Negligence — Trial Court Discretion. It is not an abuse of discretion for a trial court to instruct the jury on a modification of a plaintiff's allegation of negligence if there is evidence to support the modification and the defendant was adequately apprised of the nature of the plaintiff's claim.

5. NEGLIGENCE — Intervening Cause — Jury Determination. Whether an intervening cause exists in a negligence action is a question ordinarily to be decided by the jury.

The opinion of the court was delivered by

McFARLAND, J., dissenting:

I believe the district court erred in failing to grant Dr. Lipoff's motion for a directed verdict. By virtue of the nature of the issues raised, a detailed statement of the evidentiary facts is necessary. I believe the recitation of facts contained in the majority opinion is too highly summarized and conclusional. Therefore, although there are areas of repetition with the majority opinion, a more detailed recitation of the facts is included herein as follows.

Graves' disease is considered to be a controllable condition. There are three options for treatment:

1. surgical removal of a substantial part of the thyroid gland;

2. ingestion of radioactive iodine which collects in the gland and burns part of the gland away; and

3. drug therapy by means of a thyroid inhibiting drug such as Propylthiouracil (PTU).

Each of the alternative treatments has pluses and minuses associated with it. Surgical treatment with optimum results can lead to a permanent solution to the problem. As with any surgery there are risks associated with the administration of anesthesia, and post-surgical complications. If too much of the gland is removed, the patient may become hypothyroid requiring lifetime thyroid supplemental medication. If too little of the gland is removed, the patient may remain hyperthyroid. Obviously, surgical removal of a part of the gland results in a permanent alteration of a portion of the body.

Treatment with radioactive iodine does not involve the surgical risks and the optimum result can be a permanent cure. However, if too much or too little of the gland is burned away, the same permanent problems are present as with too much or too little of the gland being surgically removed. Also, as with the surgical alternative, a permanent alteration of the body has occurred.

Drug treatment has the advantage that no permanent alteration of the body occurs. The patient is not exposed to the risks of surgery or the ingestion of a radioactive substance into the body. If drug therapy does not work, the other two options are still available. Cure is effected only 40 to 50 percent of the time. Drug therapy usually takes two years. The patient starts out with a relatively high dosage of the drug. When normal thyroid function is restored the dosage is reduced, then further reduced if the patient's thyroid function stays in the normal range, then further reduced and so on until the final very low dosage is stopped. Hopefully, the period of remission will become permanent and no further treatment will be needed. Much of the time, however, the thyroid function will gradually increase until the patient must again be treated with the three options again presented. Not infrequently, a patient who has been unsuccessful in achieving long-term control under the drug treatment may elect, the second time, to proceed with the surgical or radioactive iodine alternative. Fortunately, side effects from the administration of the drug PTU are rare. One of the reasons that the drug treatment is so prolonged is that the thyroid-inhibiting drug, unlike blood pressure regulating drugs or drugs regulating heart rate, for example, does not have speedily determinable results. The thyroid gland has the ability to store its hormone and it takes six weeks to two months to determine what effect a particular dosage is having on the production of the hormone.

With this general discussion of the disease and its treatment, I turn to the facts involved in the treatment of Mrs. Wozniak by Dr. Lipoff.

Patricia Wozniak was hired by Dr. Lipoff to be his medical secretary in his Leavenworth office in June of 1982. In July of 1984, Dr. Lipoff noticed that Mrs. Wozniak had an enlarged thyroid gland (thyromegaly) and bulging eyes (proptosis). Diagnostic tests and laboratory studies were made which revealed Mrs. Wozniak was significantly hyperthyroid. Dr. Lipoff diagnosed the problem as being Graves' disease. Mrs. Wozniak requested Dr. Lipoff, who specializes in internal medicine, to treat her Graves' disease. She started out with a 300 milligrams per day dosage of PTU. In September of 1984, additional tests showed that Mrs. Wozniak was somewhat improved, but still hyperthyroid. The dosage of PTU was increased to 600 milligrams per day. In October of 1984, further testing showed Mrs. Wozniak's thyroid functioning in the euthyroid or normal range, although near the upper limit of the range. November testing was quite similar to the October results.

Shortly after Thanksgiving 1984, Mrs. Wozniak started showing emotional problems in the office — crying spells, being overly anxious, etc. On December 13, 1984, Dr. Lipoff decided that hospitalization was necessary for Mrs. Wozniak's emotional problems and contacted her husband, Gerald Wozniak. They discussed Mrs. Wozniak's increasing psychological problems. As Dr. Lipoff was going to be out of town until December 15, 1984, he asked Mr. Wozniak to watch his wife closely, and to be at the hospital for admittance of Mrs. Wozniak's on December 15, 1984. This was accomplished against Mrs. Wozniak's wishes. She was very depressed, anxious, and delusional upon admittance, and Dr. Lipoff admitted her on a diagnosis of paranoid schizophrenia.

Dr. Lipoff concluded a consultation was appropriate and attempted to call in a psychiatrist. This psychiatrist was out of town, so Dr. Lipoff selected Dr. Frederick Tirrell, a psychologist with whom he had previously discussed Mrs. Wozniak's case on an informal basis.

Thyroid tests made from December 13, 1984, samples revealed her thyroid function was in the low normal range and, out of concern that Mrs. Wozniak might become hypothyroid, Dr. Lipoff reduced her PTU dosage to 300 milligrams per day upon admission. Dr. Lipoff also prescribed Sinequan (an antidepressant drug) and Haldol (an antipsychotic drug) to control her psychiatric symptoms. Dr. Tirrell met with Mrs. Wozniak daily during her hospitalization and conferred with Dr. Lipoff. Dr. Tirrell was in charge of the patient's mental therapy, and Dr. Lipoff remained team captain and in charge of her treatment for Graves' disease. Further thyroid function testing led Dr. Lipoff to believe Mrs. Wozniak was borderline hypothyroid and he temporarily stopped administration of PTU on December 21. Upon her release from the hospital on December 22, she was told to resume PTU on December 24 at 50 milligrams per day. On December 26 or 27, after the receipt of further test results showing low borderline thyroid function, Dr. Lipoff telephoned Mrs. Wozniak and advised her to stop taking PTU. At the time of the telephone call, Mrs. Wozniak had an appointment with Dr. Lipoff scheduled for December 31 where her needs could be reviewed. It should be noted that there was a time delay between the taking of blood samples and obtaining the thyroid function results as the blood samples had to be processed by distant out-of-state laboratories.

For the first few days in the hospital, Mrs. Wozniak showed no improvement psychologically. On December 20, 1984, she exhibited great improvement and was discharged on December 22 with a prescription of 60 pills (100 milligrams each) of Sinequan with instructions to take one at bedtime. Mrs. Wozniak functioned well during the Christmas period but did not resume work for Dr. Lipoff. She did not like the effects of Sinequan (drowsiness, lethargy) and took it irregularly even though her family urged her to take the medication. Dr. Tirrell had agreed to the prescription for Sinequan. Mrs. Wozniak was to see Dr. Tirrell on December 26, but she called and cancelled, stating she was feeling fine. She was to see Dr. Lipoff on December 31, 1984. On December 27, Dr. Tirrell, at his own insistence, saw Mrs. Wozniak. She was unhappy with Dr. Lipoff both as her employer and her physician, and Dr. Tirrell suggested she secure a different physician.

Because of a snowstorm, Dr. Lipoff cancelled his December 31 appointments. Attempts were made to contact Mrs. Wozniak about the cancelled appointment, but she could not be reached. As a result, both she and her husband showed up for the appointment and were quite angry because the physician was not present. Dr. Lipoff called her home that evening and both Wozniaks were quite irate over the missed appointment. Dr. Lipoff tried to make a new appointment, but this suggestion was refused. The next day his staff sought to reschedule, but the Wozniaks refused. Dr. Lipoff never saw Mrs. Wozniak again as a patient.

On January 3, 1985, Dr. Tirrell spoke with the Wozniaks. They were angry over the December 31 appointment missed by Dr. Lipoff. As a result of this conversation, Dr. Tirrell conferred with a Dr. Milgram, a psychiatrist, about seeing Mrs. Wozniak as a patient. Dr. Milgram and Dr. Tirrell agreed that it would be best for her to see an endocrinologist first to determine the status of the patient's Graves' disease. An appointment to see such a specialist, Dr. David Sneid, was set up for the afternoon of January 7, 1985.

On January 4, 1985, Mrs. Wozniak and Craig, her college student son, went to Dr. Lipoff's office to secure her medical records in anticipation of the January 7 appointment with Dr. Sneid. The records had to be photocopied and were not immediately available. Dr. Lipoff talked to Mrs. Wozniak about her decision to see Dr. Sneid. Later that day, an angry Mr. Wozniak came to the office and secured the records.

On January 7, 1985, Mr. and Mrs. Wozniak went to the Sneid appointment. Dr. Sneid carefully explained Graves' disease and the three treatment options. He advised them the disease was controllable. Mrs. Wozniak ruled out surgery but was undecided as between radioactive iodine and drug therapy. She asked thoughtful and appropriate questions. That evening, Mrs. Wozniak seemed more relaxed and happier. Her family urged her to take her Sinequan at bedtime, to which she agreed, but she did not take the medicine. The following morning she drove one of her children to school and returned home to do housework. Around noon her son Craig left for awhile. At approximately 4:00 p.m., she was found dead — having ingested the remaining pills of Sinequan. The amount was estimated at 55 pills as she had only taken five in the 17-day period she had had the prescription. At no time in the period after her hospitalization had Dr. Tirrell seen her as a suicide risk, nor had Dr. Sneid so viewed her the previous day, although he had been advised she had talked of suicide while hospitalized, and he had, accordingly, been looking for signs thereof. Additional facts will be stated as necessary for the discussion of particular issues.

MOTIONS FOR A DIRECTED VERDICT

The main thrust of the motions was that the plaintiffs had failed to show that any negligent acts or omissions of defendant had caused or contributed to the suicide of Mrs. Wozniak. I believe this issue has merit and should be dispositive of the appeal.

In Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), we stated the rules regarding motions for a directed verdict as follows:

"In ruling on a motion for directed verdict pursuant to K.S.A. 60-250 the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977); Lemley v. Penner, 230 Kan. 25, 27, 630 P.2d 1086 (1981). The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where that is true, the issue must be submitted to the jury. Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, Syl. ¶ 3, 495 P.2d 930 (1972). Where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court's determination. Thurman v. Cundiff, 2 Kan. App. 2d 406, 411, 580 P.2d 893 (1978); Southards v. Central Plains Ins. Co., 201 Kan. 499, 505, 441 P.2d 808 (1968); Kemp v. Railway Co., 91 Kan. 477, 483, 138 P. 621 (1914)."

See EF Hutton Co. v. Heim, 236 Kan. 603, 609, 694 P.2d 445 (1985).

In Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), we discussed the fundamental principles of the law of negligence as follows:

"Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. See Marks v. St. Francis Hospital School of Nursing, 179 Kan. 268, 270-71, 294 P.2d 258 (1956). An accident which is not reasonably to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441 (1951); and Carrington, Victim's Rights Litigation: A Wave of the Future?, 11 U. Rich. L. Rev. 447, 461 (1977). In Kansas it is a fundamental rule actionable negligence must be based on a breach of duty. Hanna v. Huer, Johns, Neel, Rivers Webb, 233 Kan. 206, 221, 662 P.2d 243 (1983). See also Robertson v. City of Topeka, 231 Kan. 358, 363, 644 P.2d 458 (1982); and Madison v. Key Work Clothes, 182 Kan. 186, 192, 318 P.2d 991 (1957). Robertson v. City of Topeka, 231 Kan. 358, recognized a special relationship between certain persons could give rise to a duty. Whether a duty exists is a question of law, McIntosh v. Milano, 168 N.J. Super. 466, 495, 403 A.2d 500 (1979); Chesapeake Pot. Tel. Co. v. Bullock, 182 Va. 440, 445, 29 S.E.2d 228 (1944); Tort Law — Duty to Warn — Psychiatrist's Duty to Warn Parties of Dangerous Patients, 19 Duq. L. Rev. 181, 185 (1980); and Carrington, 11 U. Rich. L. Rev. at 461. Whether the duty has been breached is a question of fact. Chesapeake Pot. Tel. Co. v. Bullock, 182 Va. at 445. Further, whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact. Stucky v. Johnson, 213 Kan. 738, 739, 518 P.2d 937 (1974).

"In Kansas negligence is never presumed. Blackmore v. Auer, 187 Kan. 434, 440, 357 P.2d 765 (1960). This court in Blackmore commented it may be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, as a result of which such other person suffers injury. 187 Kan. at 440. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself. 187 Kan. at 440. An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), 59 A.L.R. 1253. The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based, 187 Kan. at 441.

"At the center of negligence is the concept of the reasonable person. What would a reasonable and prudent person, confronted by like circumstances and exercising reasonable care, have done? In other words, negligence involves acting other than as a reasonable person would do in the circumstances. The reasonable person has been observed to be the epitome of ordinariness, never reckless or absent-minded, yet neither endowed with exceptional courage, foresight or skill. Mellor, The Law, p. 53 (3rd ed. 1966)." 234 Kan. at 488-89.

We then turned, in Durflinger, to a discussion of medical malpractice and the duties of physicians as follows:

"The particular area of the law of negligence with which we are concerned herein is that of medical malpractice. Negligence is an essential element of a medical malpractice action. Natanson v. Kline, 187 Kan. 186, 354 P.2d 670 (1960). In Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), we summarized the duties of physicians and hospitals as follows:

"`In Tefft v. Wilcox, 6 Kan. 46, 61, this court held that a physician is obligated to his patient under the law to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill and experience which is ordinarily possessed by other physicians in the same or similar locations. We have continued to impose those duties upon physicians. See PIK, Civil, 15.01 and cases there cited. A physician also has the duty to make a reasonable disclosure to the patient of pertinent facts within his knowledge relating to proposed treatment, in order that the patient may intelligently consent to or refuse the treatment. [Citation omitted.]

"`Hospitals owe a duty to their patients to exercise reasonable care. This is such care, skill and diligence as the known physical and mental condition of the patient may require, and it is that degree of care used by other hospitals in the community or similar communities under like circumstances. See PIK, Civil, 15.02, and cases therein cited.' 220 Kan. at 375.

"In Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 574 P.2d 136 (1977), this court said:

"`A physician or surgeon is expected to have and to exercise that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities; similarly, a hospital is required to exercise that degree of care, skill and diligence used by hospitals generally in the community or in similar communities under like circumstances. Avey v. St. Francis Hospital School of Nursing, 201 Kan. 687, 442 P.2d 1013, and cases cited therein.' 223 Kan. at 3. See also PIK Civ.2d 15.01. It should be noted a physician is not a guarantor of good results and civil liability does not arise merely from bad results, nor if bad results are due to some cause other than his treatment. Voss v. Bridwell, 188 Kan. 643, 364 P.2d 955 (1961); Goheen v. Graber, 181 Kan. 107, 309 P.2d 636 (1957).

"Rules of law governing the duty of physicians and surgeons to their patients apply generally to dentists ( Simpson v. Davis, 219 Kan. 584, 549 P.2d 950 [1976]), and to registered nurses ( Hiatt v. Groce, 215 Kan. 14, 523 P.2d 320 [1974]). The duty of a physician to exercise reasonable and ordinary care and diligence remains the same regardless of the particular medical speciality in which the physician practices. However, the particular decisions and acts required of the physician in fulfilling the duty will vary with the circumstances of the patient's situation and the medical speciality of the physician. Obviously such diverse medical specialities as dermatology, radiology, pediatrics, surgery, and psychiatry confront the professional practitioner of each with radically different medical problems. However, what constitutes negligence in a particular situation is judged by the professional standards of the particular area of medicine with which the practitioner is involved." 234 Kan. at 489-90.

In order to prevail in a case of medical malpractice, a plaintiff must establish three elements through competent expert medical testimony: (1) a duty owed by the physician to the patient; (2) a breach of that duty; and (3) a causal connection between the breached duty and the injuries sustained by the patient. Durflinger v. Artiles, 234 Kan. 484, Syl. ¶ 1; Webb v. Lungstrum, 223 Kan. 487, 489-90, 575 P.2d 22 (1978); Funke v. Fieldman, 212 Kan. 524, 530, 512 P.2d 539 (1973).

In Allman v. Holleman, 233 Kan. 781, 786, 667 P.2d 296 (1983), we said:

"The concept of fault also requires a causal connection between the conduct in question and the injury complained of. A negligent act is the proximate cause of an injury only when the injury is the natural and probable consequence of the wrongful act."

In Elliott v. Chicago, Rock Island Pac. Rld. Co., 203 Kan. 273, 284, 454 P.2d 124 (1969), we said:

"There are many definitions of the term `proximate cause,' but one of the most widely quoted defines the proximate cause of an injury to be that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the injury would not have occurred. It has been said the proximate cause of an injury is that which naturally leads to, and which might have been expected to be directly instrumental in, producing the result. In testing whether a negligent act is the proximate cause of an injury it is said the injury is the proximate result of negligence only where the injury is the natural and probable consequence of the wrongful act. Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur. It has also been said that it must appear the injury was anticipated or that it reasonably should have been foreseen by the person sought to be charged with liability."

The plaintiffs asserted multiple claims of negligence against the defendant physician. It is necessary at this point to discuss each claim, apply the aforesaid rules, and decide whether a submissible case had been presented on such claim. The simplest way to do this is to state each such claim in the language in which it was ultimately submitted to the jury. The sequence of these claims has been rearranged from that submitted to the jury and as discussed in the majority opinion in order to achieve more chronological continuity.

1. THE DEFENDANT NEGLIGENTLY ENTERED INTO TREATMENT OF A PERSON WHO WAS HIS EMPLOYEE FOR A DISEASE THAT HAD PSYCHOLOGICAL, PSYCHIATRIC, AND EMOTIONAL COMPONENTS, AND WHICH PLACED THE DOCTOR AND PATIENT INTO A CONFLICTING RELATIONSHIP WITH THAT OF EMPLOYER AND EMPLOYEE, AND THIS CONFLICT EVENTUALLY PROVED TO BE A FACTOR IN THE DEATH OF PATRICIA WOZNIAK.

There was no evidence presented that it is negligence for a physician to treat an employee. There was some testimony that it might be better to avoid such a situation, but that such activities are very common among physicians as the employee-patient generally desires it due to his or her confidence in the physician and the convenience of such arrangements.

There was testimony that Mrs. Wozniak's employment duties increased in the fall of 1984 and that she, of necessity, was involved in the training of new personnel in the office. This was stressful for her and Graves' disease patients need an environment with as little stress as possible. In this claim, plaintiffs are attempting to make a medical malpractice claim out of working conditions. This might be likened to a physician treating his wife (contrary to the better practice) and allowing or permitting stress in the home to be used in a claim for malpractice. It is difficult to see how a physician complaining to his patient-wife about a cold dinner or asking her to do an errand for him could constitute medical malpractice by increasing stress on the wife. In any event, there was no expert testimony that the employee-patient relationship with Dr. Lipoff was a cause in the suicide of Mrs. Wozniak.

2. THE DEFENDANT NEGLIGENTLY FAILED TO PROPERLY ADVISE PATRICIA WOZNIAK OR HER FAMILY CONCERNING THE SYMPTOMS OF GRAVES' DISEASE, THE TREATMENT MODALITIES ACCEPTED FOR THE CONDITION, AND OF THE EXISTENCE OR NONEXISTENCE OF SIDE EFFECTS FROM THE PROGRAM OF THERAPY.

There was expert testimony that a physician should thoroughly advise the patient about all aspects of Graves' disease, the various treatment modalities, and involve the family where appropriate. Dr. Lipoff's records do not reflect any such explanation was given to her and based solely upon such absence there was expert testimony that this was a breach of a duty owed the patient. Dr. Lipoff testified that he fully explained the disease and treatment options to Mrs. Wozniak and there is corroborating evidence she was provided by him with a pamphlet detailing the disease and its treatment.

Assuming that no such explanation occurred, and that, therefore, a breach of a duty in this regard existed, there was no expert testimony that this was a cause of Mrs. Wozniak's suicide. Dr. Lipoff had discussions with Mr. Wozniak in December 1984 about Mrs. Wozniak's Graves' disease and her mental problems. However, Dr. Tirrell was the man directly responsible for the treatment of her psychological problems. The prescription for Sinequan (for her mental problems) will be discussed in conjunction with another claim. There was no expert evidence that any failure of Dr. Lipoff to discuss Graves' disease, its treatment modalities, etc., with Mr. Wozniak was a breach of a duty which was a cause of Mrs. Wozniak's suicide.

3. THE DEFENDANT FAILED TO FORMULATE AND COMMUNICATE A DEFINITIVE TREATMENT PLAN FOR THE DECEDENT'S CONDITION, DESPITE THE FACT THAT THE REQUIREMENT OF THE DEVELOPMENT OF SUCH A PLAN AND COMMUNICATING IT TO THE PATIENT ON AN UNDERSTANDABLE BASIS WOULD BE A CRITICAL ELEMENT IN THE SUCCESSFUL TREATMENT OF THIS CONDITION.

Based upon the absence of any reference thereto in Dr. Lipoff's medical records that he developed a treatment plan and discussed it with Mrs. Wozniak, there was expert testimony that this was a breach of a duty. Dr. Lipoff testified he thoroughly discussed his plan with her and that she accepted it. This is corroborated in a number of ways. For example, shortly after the disease was diagnosed, Mrs. Wozniak stated to her son that her drug therapy would take two years to complete. Dr. Lipoff testified the patient was afraid of surgery and ruled that option out — this was the same response she made to Dr. Sneid on January 7. Treatment of the disease with PTU is an accepted treatment modality. Even assuming that no such discussion occurred, and that, therefore, Dr. Lipoff breached a duty in this regard, there was no expert testimony that this breach was a cause of Mrs. Wozniak's suicide.

4. THE DEFENDANT FAILED TO REFER PATRICIA WOZNIAK TO AN APPROPRIATE CONSULTING PHYSICIAN DESPITE HIS DIFFICULTY IN MANAGING THIS PARTICULAR CASE, AND DESPITE HIS LACK OF EXPERIENCE WITH GRAVES' DISEASE.

There was no expert testimony that it was a breach of a duty for Dr. Lipoff, an internal medicine specialist, to treat Mrs. Wozniak rather than refer her to an endocrinologist. Nor was there any criticism by the experts in his calling in Dr. Tirrell, a psychologist, for the treatment of her mental problems. No submissible case was made on this claim.

5. THE DEFENDANT FAILED TO COMMUNICATE NECESSARY INFORMATION REGARDING THE TREATMENT OF PATRICIA WOZNIAK TO THE CONSULTANT ALTHOUGH THE DEFENDANT KNEW THAT THE CONSULTANT WOULD CONTINUE TO TREAT PATRICIA WOZNIAK.

The claim here is based upon Dr. Lipoff's failure to advise Dr. Tirrell that he had discontinued the drug PTU. There was expert testimony that Dr. Lipoff should have advised Dr. Tirrell that he had discontinued PTU. Dr. Tirrell testified that he told Dr. Lipoff, during the patient's hospitalization, that the Graves' disease should be treated "aggressively." He testified that he was unfamiliar with what "aggressive" treatment of Graves' disease should involve as this was outside his area of expertise.

Dr. Tirrell testified:

"Q. [By attorney for defendant] Okay. Doctor, was in your opinion — I want to talk about now before the event — was any medical facts available to you or were any medical facts available to you that in your opinion would be predictive of suicide of Pat Wozniak based upon what you knew then?

"A. Well, actually, it was more based on what I didn't know, which was I presumed that after the hospitalization that she was continuing with PTU and that the Graves' disease was continuing to be treated very aggressively, and I didn't know that it had been discontinued, and when I saw her on the 27th, I didn't ask her, are you still being treated with PTU and so forth, so that certainly — that would be my answer to your question.

"Q. Okay. My question was: Are there any facts that you know of or knew of that would be predictive of suicide for her prior to the event?

"A. Well, as in if I'd known, for instance, that she wasn't taking the PTU, then I would say, well, watch out, she'll commit suicide or something? No, I think even if I['d] known that, I wouldn't have thrown a red flag up and said, whoa, this is terrible.

"Q. Okay. If we assume for the purpose of the question that she was not taking her PTU, you wouldn't have come down to the Leavenworth County Courthouse and tried to commit her?

"A. No, I wouldn't have.

"Q. Okay.

"A. Would have insisted we get going with something, I think."

There was no expert testimony that the failure of Dr. Lipoff to advise Dr. Tirrell of the cessation of PTU was a cause of the suicide of Mrs. Wozniak. The collapse of the relationship between Dr. Lipoff and the Wozniaks after the missed December 31 appointment resulted in Dr. Lipoff not having the opportunity to take additional blood tests and determine if PTU should be resumed. Additionally, when Dr. Sneid, the endocrinologist, saw her on January 7, 1985, he was aware that she had been off PTU for a week to ten days and saw no reason to rush resumption of the medication.

6. THE DEFENDANT FAILED TO GIVE SUFFICIENT WEIGHT AND CONSIDERATION TO THE OPINION OF THE CONSULTANT OBTAINED BY HIM IN THE TREATMENT OF THE DECEDENT.

This claim goes to Dr. Lipoff's failure to treat the Graves' disease "aggressively" as suggested by Dr. Tirrell during Mrs. Wozniak's hospitalization. This was discussed in the preceding claim. There was no expert testimony that Dr. Lipoff deviated from any standard of medical care in failing "to give sufficient weight and consideration to the opinion of' Dr. Tirrell or that such failure had a causal connection to the suicide of Mrs. Wozniak.

7. THE DEMEANOR AND ATTITUDE OF THE DEFENDANT AS EXPRESSED THROUGH HIS ACTS AND STATEMENTS MADE TOWARD THE DECEDENT WERE IN DIRECT CONTRADICTION AND VIOLATION OF ALL STANDARDS RELATING TO THE CARE OF THE ENDOCRINE CONDITION OF GRAVES' DISEASE AND DIRECTLY CONTRIBUTED TO THE DEATH OF PATRICIA WOZNIAK.

Mrs. Wozniak was upset over the fact that the other patient in her semi-private hospital room was a terminally ill woman whose presence bothered her. Additionally, Mrs. Wozniak did not want to be hospitalized and was a difficult patient. At some point, Dr. Lipoff may have told her she was "too demanding." Mrs. Wozniak's son testified that Dr. Lipoff was "rude" when he and his mother attempted to obtain copies of her medical records to take to Dr. Sneid. Mrs. Wozniak told Dr. Tirrell that Dr. Lipoff was aloof and cold in his demeanor toward her. Let us assume all of this is true (although controverted) and defendant's attitude and demeanor fell far short of television's Dr. Marcus Welby's example of physician demeanor. However, there was no expert testimony that Dr. Lipoff breached any standard of professional conduct in this regard or that such conduct was a cause of Mrs. Wozniak's suicide.

8. THE DEFENDANT IGNORED NUMEROUS AND OBVIOUS SYMPTOMS AND SIGNS THAT THE DECEDENT CONTINUED TO SUFFER FROM HER CONDITION OF GRAVES' DISEASE, AND DISCONTINUED TREATMENT FOR THAT CONDITION.

There was expert testimony that the six months' treatment of Mrs. Wozniak's Graves' disease with its rapid drop-off of PTU had virtually no possibility of effecting a permanent remission of the disease. Dr. Lipoff did not direct the discontinuation of the PTU on December 26 or 27 on the belief Mrs. Wozniak was cured. Rather, he was concerned that, based upon blood tests, she might be becoming hypothyroid. Mrs. Wozniak had, at the time, a scheduled appointment with Dr. Lipoff on December 31 where her condition and needs would be evaluated. This was the missed appointment which triggered the collapse of the physician-patient relationship. Mrs. Wozniak had, prior to that date, expressed dissatisfaction with Dr. Lipoff and resentment over his having diagnosed her as a paranoid schizophrenic upon her hospital admission.

There was expert testimony that the rapid dropping of the dosage from 600 milligrams to zero was improper as it could have little likelihood of curing the disease and that a return to hyperthyroidism was almost a certainty. However, blood tests taken a day before Mrs. Wozniak's death revealed that her thyroid function was only mildly elevated over normal levels. There was no expert testimony that the failure to take PTU after hospitalization or that the rapid decrease in the amounts of the medication during hospitalization were a cause of her suicide.

9. THE DEFENDANT NEGLIGENTLY PRESCRIBED A QUANTITY OF A PSYCHOTROPIC DRUG, SOLD UNDER THE BRAND NAME OF SINEQUAN, IN CONTRADICTION AND VIOLATION OF THE ADVICE AND CAUTION OF THE MANUFACTURERS OF THIS DRUG, WHICH DIRECTLY CAUSED THE DEATH OF PATRICIA WOZNIAK.

No expert testified that the mental problems for which Mrs. Wozniak was hospitalized were the sole result of her Graves' disease. At the time of her admission to the hospital and throughout the hospitalization, her test results showed that her thyroid function was within normal limits. There was considerable testimony that depression often occurs in patients with Graves' disease. Yet, no expert stated her extreme anxiety, delusions, etc., were the result of uncontrolled Graves' disease or Dr. Lipoff's treatment of the disease. Rather, there was a separate mental illness in Mrs. Wozniak which was probably aggravated by the presence of the Graves' disease. There was no evidence that her bizarre behavior leading to the hospitalization had anything to do with Dr. Lipoff's treatment of her disease. She was given Haldol and Sinequan in the hospital which resulted in a dramatic improvement in her condition. She was discharged from the hospital on December 22 in quite good spirits, and the family enjoyed a pleasant Christmas. Neither Dr. Tirrell nor any other expert testified that the treatment of the patient with these two drugs during hospitalization was inappropriate.

Prescribing Sinequan at a daily dosage of 100 milligrams as a take-home medication, was, likewise, not faulted by the experts. The claim herein rests on the number of pills prescribed — 60, which was a 60-day supply under the prescription. Sinequan is an antidepressant drug. The manufacturer's insert states:

"Since suicide is an inherent risk in any depressed patient and may remain so until significant improvement has occurred, patients must be closely supervised during the early course of therapy. Prescriptions should be written for the smallest feasible amount."

One of plaintiffs' experts, Dr. Burglass, testified that with a new patient who was thought to be a suicide risk, he thought the lowest feasible amount might be a two-day supply if he was going to see a patient every two days. After he had an opportunity to become more familiar with the patient and evaluate the risk of suicide, he could then, if satisfied, prescribe longer-lasting prescriptions. This witness did not testify the number of pills prescribed for Mrs. Wozniak was improper. This witness testified only as to how he personally prescribed the drug and expressed no opinion on whether Dr. Lipoff had breached any duty of care in prescribing the drug.

The strongest testimony in regard to the number of pills prescribed came from Dr. Kyner, an endocrinologist, who stated:

"Q. [Attorney for plaintiff] Now, Doctor, in this particular case, the prescription was for 60 tablets of Sinequan with an authorization for three refills. In your —

"A. Yes sir.

"Q. In your professional view, is that the smallest feasible amount?

"A. Well, no, you can give a smaller amount.

"Q. All right. And if we excuse that, Doctor, as well as we might, let me add some facts and ask if this would change your opinion at all. If we had a woman who had discussed — whose husband had had a treating physician discuss suicide with him on December 13, who had been hospitalized with all kinds of floride psychiatric sequalia [ sic] for a week during December, who had many times in the hospital been described as severely depressed, and, in fact, mentioning suicidal ideations, and who on the 3rd and 4th the treating physician who gave her that prescription as delusional and psychotic, would you view the role and duty of the treating physician in that situation to caution those people around her about that drug for the reason mentioned in the caution by the manufacturer?

"A. Yes.

"MR. GURNEY: Your Honor, I'm going to object. I think that's highly speculative. The factors that he's injected at this time, he's asking him to go back in time and make a determination on all these factors, which the determination that would have been made by Dr. Lipoff was based probably on a whole assortment of other things that Dr. Kyner isn't in a position to weigh.

"THE COURT: Overruled.

"BY MR. WHITE:

"Q. Your answer was, Doctor?

"A. Well, I think it's probably true, but I'm not a psychiatrist and I don't know how much was really going on at that point in time.

"Q. Was your answer yes, Doctor?

"A. Yes.

"Q. All right. Now, —

"A. I qualified it." (Emphasis supplied.)

The only professional seeing Mrs. Wozniak on January 3 or 4 was Dr. Tirrell and he did not view her as being delusional or psychotic. In fact, he saw her as posing no risk of suicide — a position also taken by Dr. Sneid on January 7.

The "lowest feasible amount" is a variable term. Obviously, a prescription of a single pill to be taken in the presence of the prescribing physician is the absolute lowest amount, but is such a prescription feasible when long-term usage is anticipated? Webster's New World Dictionary 511 (2nd College Ed. 1980) defines feasible as "1. capable of being done or carried out; practicable; . . . suitable." Under the rationale of the majority opinion, any time a patient overdoses on Sinequan the prescribing physician is liable, as a smaller number of pills could have been supplied. So, to be on the safe side, the physician should require the patient to visit his or her office each day for a new one-pill prescription. Weekends and holidays presumably would have to be skipped. Such a procedure is hardly feasible. Where a patient is not considered to be a suicide risk, there was no evidence that prescriptions for larger amounts of the drug were a breach of any duty.

No one testified as to what constituted a lethal amount of Sinequan. It is a potent drug — hence the manufacturer's warning. There was no testimony relative to whether 10, 20, or 30 pills would have been lethal. On her visit to Dr. Sneid on January 7, she had her disease and the treatment options fully explained to her. She was told her disease was controllable. Dr. Sneid and Mr. Wozniak testified the patient's mood was uplifted by the Sneid appointment. Mrs. Wozniak was in good spirits that evening and the following morning when she drove her child to school and did her housework. Neither the professionals involved nor her family had any apprehension or concern of Mrs. Wozniak being a suicide risk on January 8. If the experts have no concern that suicide is a risk for the patient, there is nothing to warn the family of relative to the number of pills prescribed at one time. The lowest feasible amount manufacturer warning relates to how the expert views the patient's mental condition as it pertains to the risk of suicide. Dr. Lipoff did not view Mrs. Wozniak as a suicide risk after her discharge from the hospital, nor did the two other experts who saw her.

I do not believe plaintiffs made a submissible case on any theory. I would reverse the judgment on the ground it was error for the district court to deny defendant's motion for a directed verdict. This issue should be dispositive of the appeal. Inasmuch as the majority has concluded otherwise, a brief discussion of at least one other issue is appropriate.

Even assuming there was enough evidence to submit the case on one or two theories of negligence, the submission of all the other erroneous theories was highly prejudicial to the defendant. The jury was free to pick and choose and could find liability where the necessary three elements of liability never converged in a single theory. As we stated in Franklin v. Northwest Drilling Co., Inc., 215 Kan. 304, 524 P.2d 1194 (1974):

"Here two of three theories of recovery were tried to a jury upon a general verdict with erroneous charges. It seems obvious in this case that the rules as to nonprejudicial error cannot be applied. In fairness and justice we must hold under the circumstances of the case the general verdict cannot be upheld. To hold otherwise would require speculation and conjecture that the general verdict was on the proper theory and not on improper theories." 215 Kan. at 314-15.

I would reverse the judgment herein.

MILLER and HOLMES, JJ., join the foregoing dissent.