Date: 06-01-2001

Case Style: Peggy Bain v. Dr. Dennis Artzer

Case Number: 84,678

Judge: Abbott

Court: Supreme Court of Kansas

Plaintiff's Attorney: Robert S. Tomassi, Tomassi Law Firm, L.L.C., Pittsburg, Kansas

Defendant's Attorney: Jame D. Oliver, Thomas L. Theis and Caleb Stegall of Foulston & Siefkin, L.L.P., Topeka, Kansas

Description: The appellant, Dr. Dennis Artzer, appeals from a ruling of the trial court granting the appellee, Peggy Bain, an order of voluntary dismissal without prejudice after she had presented all of her evidence at trial. Bain has filed a cross-appeal concerning the trial court's disqualification of one of her witnesses for failing to qualify as an expert pursuant to K.S.A. 60-3412.

Bain's husband Micky suffered from kidney failure in 1992. Micky was treated and placed on dialysis by his treating physician, Dr. Artzer. Artzer is a nephrologist, a physician who specializes in the care and management of patients with kidney disease. A permanent site was surgically placed in Micky's left arm.

On July 5, 1996, Micky complained that he did not feel well. His condition deteriorated over the next several days. On the afternoon of July 10, 1996, Bain called an ambulance because Micky was in considerable discomfort and could not stand on his own. Micky was given antibiotics and hospitalized. Micky complained that he had flu-like symptoms and that he had redness around both the subclavian shunt and the permanent site on his left arm. Artzer treated Micky with antibiotics. Micky died on July 29, 1996.

On August 22, 1997, Bain filed a medical malpractice suit against Artzer on her own behalf and as administrator of Micky's estate. Bain alleged that Artzer had failed to treat Micky with antibiotics and failed to properly diagnose his condition.

The case was tried, commencing on October 5, 1999, over 2 years after the action was filed.

Bain's expert witness, Dr. Glenn R. Hodges, was called to the stand and voir dired on his qualifications to testify concerning the standard of care. The testimony was taken out of the presence of the jury. The testimony revealed that Hodges spent less than 50% of his time in actual clinical patient care. Artzer objected to allowing Hodges to testify as an expert on the standard of care. The trial court ruled that Hodges did not have the minimum qualifications in clinical practice as required by K.S.A. 60-3412.

After Bain rested, she moved to dismiss the case without prejudice. Artzer moved for a directed verdict on the grounds that Bain had not presented any evidence as to causation or deviation from the standard of care. The trial court sustained Bain's motion to dismiss her case with conditions and denied Artzer's motion for a directed verdict on the basis that it was moot. In its written order, the court set forth:

"IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff's motion for permission to dismiss without prejudice the petition for the purpose of refiling the petition within the statutory permitted time is granted on the following conditions:

"(a) that in any newly filed action, plaintiff's witnesses and exhibits shall remain the same as those presented during the trial of this action with the exception that plaintiff is allowed to substitute another expert witness in place of Dr. Hodges;

"(b) and with the further condition that any substitute expert may not offer opinions that are different from or in addition to those set forth in the plaintiff's expert designation of Dr. Hodges in this action."

Bain filed a timely notice of appeal. Artzer filed a cross-appeal. This matter is before this court pursuant to K.S.A. 20-3018(c).

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Click the case caption above for the full text of the Court's opinion.

Outcome: Appealed dismissed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan