1 IN THE SUPREME COURT OF THE STATE OF KANSAS No. 97, 971 SUSAN E. PUCKETT, Individually, as Heir at Law, and as Special Administrator of the Estate of RONALD E. PUCKETT, Deceased, Appellant, v. MT. CARMEL REGIONAL MEDICAL CENTER, BARBARA DERUY, A.R.N.P., and ADAM S. PAONI, D.O., Appellees. SYLLABUS BY THE COURT 1. A trial court is required to give a jury instruction supporting a party's theory if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence. 2. An objection to the giving or failure to give a jury instruction is waived if not asserted in a timely and specific manner, unless the instruction is clearly erroneous. 3. An appellate court reviews the trial court's determination to give or refuse to give an instruction on a party's theory by examining the record to determine if there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.
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IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 97, 971
SUSAN E. PUCKETT, Individually, as Heir at Law,
and as Special Administrator of the Estate of
RONALD E. PUCKETT, Deceased,
Appellant,
v.
MT. CARMEL REGIONAL MEDICAL CENTER,
BARBARA DERUY, A.R.N.P., and ADAM S. PAONI, D.O.,
Appellees.
SYLLABUS BY THE COURT
1.
A trial court is required to give a jury instruction supporting a party's theory if the
instruction is requested and there is evidence supporting the theory which, if accepted as
true and viewed in the light most favorable to the requesting party, is sufficient for
reasonable minds to reach different conclusions based on the evidence.
2.
An objection to the giving or failure to give a jury instruction is waived if not
asserted in a timely and specific manner, unless the instruction is clearly erroneous.
3.
An appellate court reviews the trial court's determination to give or refuse to give
an instruction on a party's theory by examining the record to determine if there is
evidence supporting the theory which, if accepted as true and viewed in the light most
favorable to the requesting party, is sufficient for reasonable minds to reach different
conclusions based on the evidence.
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4.
Even though the evidence supports the giving of an instruction, such an instruction
must accurately and fairly state the law as applied to the facts of the case. This is a
question of law over which an appellate court has unlimited review.
5.
In order to establish a claim based on medical malpractice, a plaintiff must
establish: (1) The health care provider owes the patient a duty of care and was required
to meet or exceed a certain standard of care to protect the patient from injury; (2) the
health care provider breached this duty or deviated from the applicable standard of care;
(3) the patient was injured; and (4) the injury proximately resulted from the health care
provider's breach of the standard of care.
6.
Individuals are not responsible for all possible consequences of their negligence,
only those consequences that are probable according to ordinary and usual experience.
7.
Proximate cause is that cause which in natural and continuous sequence, unbroken
by an efficient intervening cause, produces the injury and without which the injury would
not have occurred, the injury being the natural and probable consequence of the wrongful
act.
8.
Proximate cause incorporates concepts that fall into two categories: causation in
fact and legal causation. To prove causation in fact, a plaintiff must prove a cause-and-
effect relationship between the defendant's conduct and the plaintiff's loss by presenting
sufficient evidence from which a jury could conclude that more likely than not, but for
the defendant's conduct, the plaintiff's injuries would not have occurred. To prove legal
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causation, the plaintiff must show that 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 were foreseeable.
9.
The concept of intervening cause relates to legal causation and does not come into
play until after causation in fact has been established.
10.
An intervening cause is one which actively operates in producing harm to another
after the first actor's negligent act or omission has been committed. An intervening cause
absolves the first actor of liability only if it supersedes the first actor's negligence. In
other words, the superseding and intervening cause component breaks the connection
between the initial negligent act and the harm caused. If the intervening cause is foreseen
or might reasonably have been foreseen by the first actor, his or her negligence may be
considered the proximate cause, notwithstanding the intervening cause.
11.
After the adoption of comparative fault in Kansas, intervening and superseding
causes are still recognized in extraordinary cases.
12.
Intentional tortious conduct, criminal acts of third parties, and forces of nature can
be intervening causes.
13.
In a medical malpractice case, a negligent health care provider cannot be held
solely liable for subsequent negligence of other treating health care providers. Rather, if
successive, negligent actions of more than one health care provider combine to cause an
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injury, the liability of each health care provider must be allocated based on comparative
fault. Any contrary language in Fieser v. St. Francis Hospital & School of Nursing, Inc.,
212 Kan. 35, 510 P.2d 145 (1973), is disapproved and rejected.
14.
There may be more than one cause of an injury; that is, there may be concurrent
causes, occurring independently or together, which combine to produce the injury. A
cause is concurrent if it was operative at the moment of injury and acted with another
cause to produce the injury.
15.
Concurrent causes do not always occur simultaneously. One cause may be
continuous in operation and join with another cause occurring at a later time.
16.
When the concurring negligence of two or more persons causes an injury, each
such person is at fault. If the negligence of only one person is the cause of the injury,
then he or she alone is at fault.
17.
Expert testimony is generally required in medical malpractice cases to establish
the applicable standard of care and to prove causation, except where lack of reasonable
care or existence of proximate cause is apparent to an average layperson from common
knowledge or experience. In other words, if causation is not one within common
knowledge, expert testimony may provide a sufficient basis for it, but in the absence of
such testimony causation may not be drawn.
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18.
Jury instructions are to be considered together and read as a whole, and where they
fairly instruct the jury on the law governing the case, error in an isolated instruction may
be disregarded as harmless. If the instructions are substantially correct and the jury could
not reasonably have been misled by them, the instructions will be approved on appeal.
19.
The standard of review for questions regarding the admissibility of evidence is a
multistep standard. The first question is relevance. K.S.A. 60-401(b) defines relevant
evidence as evidence that is probative and material. On appeal, the question of whether
evidence is probative is judged under an abuse of discretion standard; materiality is
judged under a de novo standard. If the evidence is relevant to a material fact, it may be
admitted in accordance with the rules of evidence. A trial court always abuses its
discretion when its decision goes outside the legal framework or fails to properly
consider statutory limitations. For this reason, an appellate court reviews de novo
whether a district court applied the correct legal standards when ruling on the admission
or exclusion of evidence.
20.
Typically the admission of expert testimony is reviewed under an abuse of
discretion standard and depends on finding that the testimony will be helpful to the jury.
21.
It is the judge's responsibility to instruct the jury on legal standards. If a witness
testifies as to a legal standard, there is a danger that a juror may turn to the witness' legal
conclusion rather than the judge's instruction for guidance on the applicable law. As a
result, it is generally recognized that testimony expressing a legal conclusion should
ordinarily be excluded because such testimony is not the way in which a legal standard
should be communicated to the jury.
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Review of the judgment of the Court of Appeals in an unpublished opinion filed September 19,
2008. Appeal from Crawford District Court; A.J. WACHTER, judge. Opinion filed April 22, 2010.
Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is
reversed, and the case is remanded with directions.
Zackery E. Reynolds, of The Reynolds Law Firm, P.A., of Fort Scott, argued the cause and was
on the briefs for appellant.
Lawrence J. Logback, of Holbrook & Osborn, of Overland Park, argued the cause and was on the
briefs for appellees Mt. Carmel Regional Medical Center and Barbara Deruy, A.R.N.P.
Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, argued the cause, and Leigh C.
Hudson, of the same firm, was with him on the briefs for appellee Adam S. Paoni, D.O.
The opinion of the court was delivered by
LUCKERT, J.: On petition for review, the defendants in this medical malpractice
case seek reversal of the Court of Appeals' determinations that the trial court erred by
instructing the jury on intervening cause, the error was not harmless, the jury verdict
rendered in the defendants' favor must be vacated, and the case remanded for retrial. See
Puckett v. Mt. Carmel Reg. Med. Center, No. 97,971, unpublished opinion filed
September 19, 2008. We affirm the Court of Appeals' decision, reverse the jury verdict,
and remand the case with directions for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
On June 15, 2002, Ronald E. Puckett sought treatment for severe back pain at the
emergency room of Mt. Carmel Regional Medical Center (Mt. Carmel) in Pittsburg,
Kansas. Ronald was seen by Dr. Ronald Seglie, who examined him and prescribed pain
medication and a muscle relaxer.
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Four days later, Ronald still had pain in his lower back and was also running a
fever. He sought treatment at a clinic operated by Mt. Carmel where he was treated by
Barbara Deruy, an advanced registered nurse practitioner (A.R.N.P.), who worked at the
clinic under a collaborative practice agreement that required a supervising physician be
within 50 miles. Nurse Deruy had previously treated Ronald for chronic back pain when
she worked for his family doctor. When Ronald arrived at the clinic, Nurse Deruy noted
that Ronald was moving very slowly and with great difficulty. Ronald indicated he had
been running a fever that morning, but his chief complaint was the back pain. He had
taken some medication containing acetaminophen before seeing Nurse Deruy and did not
have a fever at the time of his visit. Nurse Deruy observed Ronald's reddened ears and
throat, as well as nasal congestion, which she attributed to a viral infection, and made a
differential diagnosis of low back pain and a viral syndrome. Nurse Deruy changed
Ronald's prescription muscle relaxant and told him to report to the emergency room if his
symptoms got worse.
Ronald's symptoms did worsen over the next 2 days; he became confused and
disoriented. On June 21, 2002, he was transported by ambulance to Hospital District No.
1 (Girard Hospital), was admitted, and was placed in the intensive care unit under the
treatment of Dr. Adam Paoni, a board-certified physician in the area of family practice.
Following a regimen of antibiotics to treat a urinary tract bacterial infection, Ronald
initially improved. Unfortunately, his condition soon deteriorated and he developed
respiratory distress. On June 23, 2002, Dr. Paoni transferred Ronald to St. John's
Hospital (St. John's) in Joplin, Missouri, a larger "tertiary care" facility, where he could
receive more specialized care, including long-term respiratory assistance, for sepsis that
had developed from the bacterial infection.
At St. John's, Ronald was placed under the care of Dr. Habib Munshi, a physician
board certified in the areas of pulmonary diseases, critical care medicine, and sleep
disorders. Dr. Munshi described Ronald's status as "in extremis," meaning his whole
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system was severely unstable, the situation was "very critical," and he was at
considerable risk of dying. Dr. Munshi stated at trial that considering the fact that Ronald
"had several days of treatment and he still was in this situation, his prognosis for recovery
was not very good." Ronald's white blood cell count was high, his heart rate was
elevated, and he had severe respiratory problems. Dr. Munshi had to choose a method of
providing respiratory assistance. He treated Ronald's respiratory distress with a bilevel
positive air pressure (BiPAP) face mask rather than a ventilator, since he believed
Ronald's medical condition was too perilous to attempt the intubation required if a
ventilator was utilized. Dr. Munshi testified that Ronald had no contraindication to the
use of the BiPAP mask.
On the morning of June 25, 2002, Dr. Munshi visited Ronald, who remained
critically ill. For medical reasons and patient comfort, Dr. Munshi ordered the temporary
removal of the BiPAP mask and the use of an oxygen mask. While the BiPAP mask was
removed, Ronald sat up in bed and ate some breakfast. After approximately 3 hours,
Ronald was placed back on the BiPAP mask. Soon thereafter Ronald went into cardiac
arrest. Ronald had stopped breathing after having vomited and aspirated. His cardiac
and pulmonary functions were restored, but he never fully regained consciousness.
Ronald died on August 6, 2002. The death certificate listed Ronald's cause of
death as "anoxic encephalopathy," which basically means "there was a disease process of
the brain that . . . resulted from lack of oxygen to the brain." Significant conditions listed
as contributing to his death were sepsis, diabetes, and respiratory failure. At trial, Dr.
Munshi opined that despite Ronald's receiving low oxygen, he would have expected him
to recover but because of "underlying primary insults"—severe sepsis and major organ
failure—his "coding" was "part of the underlying process."
Susan E. Puckett, the widow and special administrator of Ronald's estate, brought
wrongful death and survivor actions against Mt. Carmel, Nurse Deruy (Mt. Carmel and
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Nurse Deruy will be referred to collectively as Nurse Deruy), and Dr. Paoni on the basis
of medical malpractice. Susan alleged that Nurse Deruy was negligent in (1) failing to
properly diagnose and treat Ronald's urinary tract infection that developed into sepsis
after going untreated; (2) failing to obtain and review Ronald's medical chart; (3) failing
to order a complete blood count and urinalysis; (4) failing to obtain a proper history; and
(5) practicing outside her specialty. Susan alleged that Dr. Paoni was negligent in (1)
failing to realize the severity of Ronald's condition; (2) failing to realize Ronald was
having, or was at risk of having, multiple-system organ failure that could not be treated at
Girard Hospital; and (3) failing to timely transfer Ronald to a facility where he could
receive more specialized care.
In response, both Nurse Deruy and Dr. Paoni denied individual fault and raised the
affirmative defense of comparative fault between the parties and Dr. Munshi. They
alleged that Dr. Munshi, who is not a Kansas resident and is not a party to this lawsuit,
was at fault for placing Ronald on the BiPAP mask instead of a ventilator. More
specifically, they claimed Dr. Munshi failed to provide ventilation with a secure airway,
resulting in Ronald's vomiting, aspirating, and cardiac arrest that led to his death. In the
alternative, Nurse Deruy and Dr. Paoni claimed there was a superseding, intervening
cause, which they now characterize as the "aspirating event," that relieved them of any
liability.
The trial became a battle of the experts. Dueling opinions were admitted
regarding whether Nurse Deruy and Dr. Paoni violated their respective standards of care
and also whether Dr. Munshi was negligent. In addition, many of the experts offered
opinions relating to causation, some suggesting Nurse Deruy's and Dr. Paoni's negligence
caused or exacerbated Ronald's sepsis and others suggesting the severity of his illness
was not the result of their actions or inactions. Primarily, the various defense expert
opinions related to two of the defense theories—that Nurse Deruy and Dr. Paoni did not
deviate from their applicable standards of care and that any negligence was attributable to
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Dr. Munshi or, at least, his negligence had to be compared to the negligence of Nurse
Deruy and Dr. Paoni, if any. Other opinions related to Nurse Deruy's and Dr. Paoni's
final theory of defense, i.e., whether a superseding, intervening event caused Susan's
damages.
As to the intervening cause defense, Ronald's treating physician at the time of
death testified that Ronald's aspiration caused his anoxic brain injury and cardiac arrest.
Plaintiff's expert, Dr. Larry Rumans, gave similar testimony. In addition, Nurse Deruy's
and Dr. Paoni's experts focused on the aspiration event as the cause of death. For
example, one of Dr. Paoni's expert's, Dr. David McKinsey, opined that Ronald's death
"resulted from complications of aspiration" and "the reason he aspirated is he had a whole
lot of fluid in his stomach and I can't blame that on the sepsis." Dr. McKinsey further
opined that had Ronald not aspirated at St. John's, it was more likely than not he would
have survived.
Another defense expert, Dr. Wade Williams—board certified in the areas of
internal, pulmonary, and critical care medicine—opined that Dr. Paoni's treatment of
Ronald met the applicable standard of care but Dr. Munshi's did not. Specifically, in his
opinion, Dr. Munshi should have intubated Ronald and placed him on a ventilator. Dr.
Williams addressed causation as well, observing it was foreseeable that a patient with
sepsis would need respiratory assistance. Nevertheless, Dr. Munshi had a choice of using
a positive air pressure (PAP) device or intubation and, although PAP is used "quite
often," it was not an appropriate treatment for Ronald, in Dr. Williams' opinion. Dr.
Williams believed it was "fairly unlikely" that Ronald's sepsis led to his vomiting and
aspiration. Rather, Dr. Williams stated that the use of the BiPAP mask caused pressure
resulting in gastric distention and vomiting. Dr. Williams thought Ronald would not
have suffered brain injury and death if he had been placed on a ventilator; it was an
"iatrogenic complication," i.e., a medically induced complication, that ultimately resulted
in Ronald's cardiac arrest. Nevertheless, Dr. Williams also testified that the use of BiPAP
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treatment is fairly common and is also fairly common in situations where patients have
eaten.
Based on the opinions regarding Dr. Munshi's negligence in placing Ronald on the
BiPAP mask and the causal relationship that decision had in Ronald's death, Nurse Deruy
and Dr. Paoni proposed both comparative negligence and intervening cause jury
instructions. They contended the intervening cause instruction was proper because the
jury could have found they were negligent and still have concluded that Ronald's
aspiration constituted an independent intervening cause, breaking the causal connection
between Nurse Deruy's and Dr. Paoni's alleged negligence and Ronald's death. Over
Susan's objection, the trial court instructed the jury on intervening cause, finding this was
a case where "there could very well be an intervening cause[,] and that intervening cause
is [that Ronald] aspirated in his mask due to the negligence of Dr. Munshi or not due to
the negligence of Dr. Munshi." The trial court further indicated that, in this case,
foreseeability was a matter of law.
After brief deliberations, the jury returned a verdict in favor of Nurse Deruy and
Dr. Paoni, and Susan appealed. She contended the trial court erred in instructing the jury,
in the jury selection process, and in refusing to admit standard of care testimony from
Nurse Deruy.
COURT OF APPEALS
The Court of Appeals found error in the trial court's decision to give an
intervening cause instruction and found that error to be reversible. In reaching this
conclusion, the Court of Appeals cited Kansas cases that indicate intervening cause cuts
off liability for earlier negligence only in "extraordinary" cases. Puckett, slip op. at 9.
The Court of Appeals noted that "[i]f the original actor reasonably should have foreseen
the intervening act in light of the attendant circumstances, the original actor's negligence
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remains a proximate cause of the injury. [Citation omitted.]" Puckett, slip op. at 9.
Applying this principle, the Court of Appeals focused on the issue of whether Dr.
Munshi's alleged negligence was reasonably foreseeable by Nurse Deruy and Dr. Paoni.
Finding that the evidence established that respiratory problems commonly result
from sepsis, the Court of Appeals concluded it was foreseeable that Ronald would
develop respiratory difficulties if untreated. Also foreseeable was the fact that a later
treating physician would elect the BiPAP mask among various methods in assisting
Ronald. Given the extraordinary nature of an intervening cause case, the Court of
Appeals examined the expert medical testimony to determine if the evidence showed that
Dr. Munshi's care of Ronald was not only negligent, but also "so beyond the pale that it
would not be foreseeable by Ronald's earlier medical providers." Puckett, slip op. at 11.
According to the Court of Appeals, there was expert testimony that Dr. Munshi breached
the applicable standard of care; however, no defense expert opined that Dr. Munshi's care
was so deficient that it could not have been anticipated. Because there was "no evidence
that Dr. Munshi's actions were so extraordinary or unusual as to break the causal
connection between the claimed negligence of Nurse Deruy and Dr. Paoni and Ronald's
eventual death," the panel concluded that this was not a case of intervening cause.
Puckett, slip op. at 11.
The Court of Appeals rejected Nurse Deruy's and Dr. Paoni's alternative argument
that even if it was error to instruct the jury on intervening cause, the error was harmless
because the jury found no fault on the part of either defendant. The Court of Appeals
pointed out that the concept of an intervening cause had no bearing on the claims made in
the survivor action. The survivor action dealt with the issue of injuries and damages
suffered by Ronald before his transfer to Dr. Munshi's care at St. John's. Yet the verdict
form failed to distinguish the survivor action (brought by Susan as administrator of
Ronald's estate) from the separate wrongful death action (brought by Susan as heir at
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law), and the parties failed to distinguish the separate claims of wrongful death and
survivorship in their closing arguments.
With respect to the survivor action, the Court of Appeals observed that if the jury
found either Nurse Deruy or Dr. Paoni negligent but also found that the intervening
negligence of Dr. Munshi broke the causal connection between the negligence and
Ronald's death, there was no way for the jury to enter a judgment in favor of Susan for
any injuries or damages Ronald sustained before being transferred to St. John's. Rather,
the verdict form was set up so that the jury had to first answer whether either Nurse
Deruy or Dr. Paoni was at fault, and only if the question was answered in the affirmative
was the jury to proceed in comparing the fault of Nurse Deruy, Dr. Paoni, and Dr.
Munshi. If the jury found there was an intervening cause, the jury would answer the first
question in the negative, finding no fault on the part of either Nurse Deruy or Dr. Paoni,
and would not reach the issue of comparative fault. In fact, the jury did answer the first
question in the negative.
With regard to the wrongful death claim, the Court of Appeals pointed out that the
jury had to determine more than whether either Nurse Deruy or Dr. Paoni deviated from
the applicable standards of care; they also had to determine whether those deviations
brought about Ronald's death. Given that, the Court of Appeals emphasized there were
three possible explanations for the jury's no-fault finding:
"(1) Neither Deruy nor Dr. Paoni breached the applicable standard of care, (2) Deruy
and/or Dr. Paoni breached the applicable standard of care but did not cause Ronald's
death, or (3) Deruy and Dr. Paoni breached the applicable standard of care but their fault
was interrupted by the intervening negligence of Dr. Munshi who caused Ronald's death."
Puckett, slip op. at 13.
Nurse Deruy and Dr. Paoni argued that there was evidentiary support for
explanations (1) and (2), so the jury could have resolved the case without considering the
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intervening cause instruction. But the Court of Appeals found it impossible to determine
whether the jury followed the intervening cause instruction when rendering its verdict or
if the jury decided the case without reference to it. Consequently, the Court of Appeals
concluded that the trial court's error in giving the intervening cause instruction was not
harmless. Puckett, slip op. at 13-14.
Based on its ruling, the panel declared Susan's remaining issues moot and reversed
and remanded the case for a new trial. Puckett, slip op. at 14.
PETITION FOR REVIEW
Nurse Deruy and Dr. Paoni filed petitions for review, arguing that the trial court
properly gave an intervening cause instruction because they raised alternate theories of
defense—no fault, comparative fault, and intervening cause—which were supported by
the evidence and required presentation to the jury. They contend that the Court of
Appeals' decision essentially eliminates the possibility that a health care provider could
ever simultaneously raise the alternate defense theories of comparative fault and
intervening cause. In addition, Nurse Deruy and Dr. Paoni contend that the trial court did
not err by giving a jury instruction on intervening cause because there was sufficient
material evidence to support the intervening cause defense. They argue that in
concluding the case did not fit the theory of an intervening cause and finding reversible
error in the giving of an intervening cause instruction, the Court of Appeals failed to
address one nuance of their intervening cause defense theory—specifically, that the
aspiration event, triggered by nonnegligent actions of Dr. Munshi, was the intervening
cause of Ronald's death. Thus, Nurse Deruy and Dr. Paoni contend the Court of Appeals
failed to "comprehend" their alternate defense theories and issued an erroneous decision.
Nurse Deruy and Dr. Paoni also argue, in the alternative, that giving an intervening cause
instruction in this case was harmless, if it was error.
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Susan contends the alternative defense of nonnegligent intervening cause was not
argued. The record reveals, however, that Nurse Deruy and Dr. Paoni raised three
alternate theories of defense—no fault, comparative fault, and intervening cause—during
the closing arguments, and the trial court recognized the intervening cause theory as
being based on assertions of negligent conduct by Dr. Munshi and on nonnegligent
conduct. We know this because the trial court, when ruling on Susan's objection to the
intervening cause instruction, stated, "[T]here could very well be an intervening cause[,]
and that intervening cause is [that Ronald] aspirated in his mask due to the negligence of
Dr. Munshi or not due to the negligence of Dr. Munshi."
Regardless, Susan also counters that the Court of Appeals correctly applied the
law in finding there was no factual basis on which to give an intervening cause
instruction. She urges this court to affirm the Court of Appeals' decision.
This court's jurisdiction arises from K.S.A. 20-3018(b).
STANDARD OF REVIEW
Two standards are implicated by the issues raised in our review of the Court of
Appeals' decision. The threshold standard is the one used by the trial court to determine
whether a jury instruction should be given. The second standard applies to an appellate
court's review of the trial court's decision regarding whether to give an instruction. In
discussing these standards, the parties cite several versions, each supported by case law
of this court.
Under one variation of the standard for a trial court's determination of whether to
give an instruction, some cases broadly indicate a court must instruct the jury on a party's
theory of the case. E.g., Wood v. Groh, 269 Kan. 420, 423, 7 P.3d 1163 (2000). Under
another variation, this court has indicated an instruction is warranted only if the party's
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theory is supported by evidence. Natalini v. Little, 278 Kan. 140, 146, 92 P.3d 567
(2004); Cox v. Lesko, 263 Kan. 805, 810, 953 P.2d 1033 (1998); Guillan v. Watts, 249