Esquivel v. Watters

154 P.3d 1184 (2007)

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Nature of the Case

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Facts

P was pregnant and obtained obstetric counseling from the Ark City Clinic. A clinic worker gave P a certificate from SCKRMC for a free gender determination sonogram. P went to SCKRMC for her free sonogram on November 15, 2001. P signed a document entitled 'Consent to Procedure to Determine Sex of Unborn Baby.' The consent form stated in relevant part: '2. The purpose of the procedure is to attempt to determine the sex of my unborn baby and I acknowledge there is no guarantee or assurance that an accurate determination can be made by this procedure. 'I further acknowledge that this procedure is not to determine any fetal abnormality or any other complication of pregnancy and is not considered a diagnostic examination for any medical purpose other than to attempt to determine the sex of my unborn baby. '3. To induce Medical Center to perform this procedure the undersigned hereby waives and releases South Central Kansas Regional Medical Center, its officers, employees, agents, and affiliates from any and all claims, costs, liabilities, expenses, judgments, attorney fees, court costs, causes of action and compensation whatsoever arising out of the foregoing described procedure.' Hazlett performed the sonogram and noted that the baby's bowel was outside of his body, a condition known as gastroschisis. Hazlett was not a doctor and not qualified or licensed to make a medical diagnosis. Because of the gastroschisis, the gender could not be determined. Hazlett sent the pictures to a radiologist at the Ark City Clinic. The radiologist refused to look at them because the sonogram was only for gender determination and not for diagnosis. Hazlett reported the irregularity to D, P's obstetrician. Hazlett sent no written report to D and D made no note in Michelle's medical chart. D’s nurse made 11 attempts to contact P by telephone over the next 10 days. On November 26, 2001, a man answered the phone. The nurse told him to tell P to call D. P missed her prenatal appointment that day and when she saw D on January 4, 2002, he had forgotten about the sonogram and there was nothing in P's chart to remind him. P became ill and went to SCKRMC for treatment. Jadon was born by emergency caesarean section the next day. Jadon had gastroschisis. until he was born. Jadon was transferred to Wesley Medical Center (WMC) in Wichita on the day he was born. Dr. Knight performed surgery on Jadon that day. Almost all of Jadon's bowel had been dead for weeks prior to his birth. He was sent home to die. Ps sued D, the Ark City Clinic, and SCKRMC. The court granted summary judgment to the Ark City Clinic, whose radiologist refused to examine P's sonogram. It granted summary judgment to D based upon the failure of Ps to present expert testimony that D deviated from the applicable standard of care and the lack of proximate cause between the' failure to notify P and Jadon's postnatal suffering and death. It granted summary judgment to SCKRMC holding that SCKRMC did not owe Ps a duty and Ps’ claims were barred by the release signed before the sonogram. Ps appealed.