Illig v. BeLieu ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,347
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
AUBREY ILLIG,
Appellant,
v.
RENEE BELIEU, M.D., and KANSAS CITY WOMEN'S CLINIC,
Appellees.
MEMORANDUM OPINION
Appeal from Johnson District Court; ROBERT J. WONNELL, judge. Opinion filed October 14,
2022. Affirmed.
Michelle Illig, of Law Office of Michelle Illig, of Overland Park, for appellant.
Adam S. Davis, Diana L. Beckman, and Thomas A. Rottinghaus, of Wagstaff & Cartmell, LLP, of
Kansas City, Missouri, for appellees.
Before CLINE, P.J., ISHERWOOD and HURST, JJ.
PER CURIAM: Aubrey Illig sued Dr. Renee BeLieu and the Kansas City Women's
Clinic (KCWC) for personal injury damages allegedly resulting from their medical
negligence in ordering and administering a second round of Gardasil vaccines which
caused her personal injuries. The district court entered summary judgment in favor of Dr.
BeLieu and KCWC, collectively appellees, because Illig failed to identify an expert
witness to support her claims. Illig appeals, claiming the district court erred in granting
appellees summary judgment because she did not need an expert witness to support her
claims and a material fact dispute existed.
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FACTUAL AND PROCEDURAL BACKGROUND
On January 6, 2019, Illig sued appellees for damages and alleged they were
negligent in their "medical care, treatment, and management of [Illig]" because they
ordered and administered a second round of Gardasil vaccines for Illig after she had
already completed a full round of the Gardasil vaccine. A full dose of Gardasil is
administered through a series of either two or three vaccines, depending on the patient's
age. Illig alleged that appellees administered her first Gardasil shot in January 2014 and
directed Illig to obtain her second and third shots. Illig alleged she followed appellees'
instructions and obtained her second and third Gardasil shots from a different clinic while
away at college, and thus completed her first full round of the Gardasil vaccine in 2014. It
is unclear from the record whether Dr. BeLieu and the KCWC ever received records
confirming that Illig received her second and third doses of Gardasil.
Illig claimed she developed a "serious and chronic autoimmune disorder" after
completing the first full round of Gardasil vaccinations. She claimed that after some time
her disorder was improving, until Dr. BeLieu "recklessly ordered [Illig] a second round
of Gardasil" in July 2016. Illig said that she informed Dr. BeLieu she had received the
full Gardasil inoculation in 2014, consisting of three separate shots, but the KCWC lost
Illig's previous vaccination records during a software system migration. Illig alleged the
appellees negligently administered another three Gardasil shots over the span of 2016 and
2017, constituting her second full Gardasil inoculation. Illig asserted that appellees'
negligence in administering a second full Gardasil inoculation, consisting of three more
shots than required, caused her "severe and chronic autoimmune condition" to resurface
and worsen. Illig claims that those injuries would not have occurred had the appellees
"exercised appropriate medical care, treatment and management and not deviated from
the accepted standards of medical care."
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Illig added factual allegations in her May 10, 2019 amended petition, but did not
amend her legal allegations. The amended petition added the following factual
statements:
• The Centers for Disease Control and Prevention (CDC) recommend no
more than three Gardasil shots;
• the defendants failed to give Illig the Vaccine Information Sheet (VIS) as
required by the National Childhood Vaccine Injury Act (NCVIA) prior to
administering the Gardasil shots; and
• the second round of Gardasil "exacerbated [Illig's] autoimmune condition"
and caused her "systemic immunological harm."
Although Illig never identified in her petitions the autoimmune condition she alleged
became exacerbated, at a prehearing conference her counsel informed the district court
that the condition was ulcerative colitis.
The district court issued an amended case management order on November 9,
2020, which identified the trial date as November 15, 2021, and other important
procedural dates—including the discovery and expert witness deadlines. It specifically
stated that "[a]ny party with an affirmative claim for damages must designate an expert
witness on or before the 1st day of March, 2021." During litigation, the parties agreed to
extend the expert witness deadline until March 17, 2021. Illig failed to designate an
expert witness by the extended deadline, and failed to request an additional extension to
allow for a later designation.
Shortly after the expiration of the expert witness deadline, appellees filed a joint
motion for summary judgment and argued that because Illig failed to identify expert
witnesses, she could not establish the standard of care, causation, or damages to support
her claims. In her response, Illig did not controvert any of the appellees' statement of
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facts, but argued that her claims fell under the common knowledge exception, such that
they did not require testimony from medical experts.
After a hearing, the court found that Illig failed to controvert appellees' facts set
forth in their motion for summary judgment, and accepted them as the court's findings.
The district court found that Illig's medical malpractice claims required expert testimony
to establish causation, breach, and damages because the common knowledge exception
did not apply. Because Illig failed to identify any expert witnesses or seek an extension of
time to do so, the district court granted appellees' summary judgment motion.
DISCUSSION
Illig raises five issues on appeal, claiming the district court erred in granting
summary judgment for appellees because:
(1) The common knowledge exception applied to her claims;
(2) the district court failed to recognize that Illig's potential lay witnesses or
appellees' expert witnesses could testify to any material issues;
(3) she asserted a general negligence claim against the KCWC not requiring
expert testimony;
(4) her informed consent claim did not require expert testimony; and
(5) the district court abused its discretion by ignoring a material,
controverted fact.
The Standard of Review
The district court should grant the moving party summary judgment only when all
the pleadings, discovery, and records show "that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law."
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Patterson v. Cowley County, Kansas, 307 Kan. 616, 621, 413 P.3d 432 (2018). The
district court must resolve all facts and reasonable inferences "in favor of the party
against whom the ruling is sought." 307 Kan. at 621. Here, that means the district court
should have reviewed the facts in favor of Illig's claims. But Illig cannot merely rely on
the allegations in her pleadings in opposing the appellees' motion for summary judgment.
Illig needed to "come forward with evidence to establish a dispute as to a material fact."
See 307 Kan. at 621.
The district court must deny summary judgment if reasonable minds could differ
as to the conclusions drawn from the evidence. Stechschulte v. Jennings, 297 Kan. 2, 14,
298 P.3d 1083 (2013). Ordinarily, summary judgment will not be granted when, as is the
case here, discovery is incomplete—unless the facts pertinent to the material issues are
not controverted. See Halley v. Barnabe, 271 Kan. 652, 657, 24 P.3d 140 (2001).
Appellate courts review a district court's grant of summary judgment de novo, looking at
the facts and law anew with no deference to the district court's decision. GFTLenexa,
LLC v. City of Lenexa, 310 Kan. 976, 982, 453 P.3d 304 (2019); Acord v. Porter, 58 Kan.
App. 2d 747, 756, 475 P.3d 665 (2020).
A. Illig failed to set forth disputed facts and cannot rely on potential testimony to
avoid summary judgment.
Appellees' motion for summary judgment contained just 11 undisputed material
facts that they allege, if true, entitled them to judgment as a matter of law. Illig, in her
opposition, disputed none of those material facts. She merely reasserted her allegations
and claimed—with no legal support—that the CDC immunization guidelines established
the standard of care. On appeal, she does not oppose appellees' factual assertions with
contrary facts, but apparently claims that she should be allowed to oppose them at trial.
However, a party opposing a motion for summary judgment "may not rely merely on
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allegations or denials in its own pleading," but must "set out specific facts showing a
genuine issue for trial." K.S.A. 2021 Supp. 60-256(e)(2).
Illig argues that "the court failed to recognize that various doctors, including
[appellees'] expert witnesses, could potentially testify to issues, including causation." Illig
contends that because the time for discovery had not expired and she had identified
"potential witnesses" that could speak to the standard of care, the district court
improperly required her to identify her own expert witnesses to support her claims.
Contrary to Illig's arguments, a party cannot avoid summary judgment based on
the hope that facts will emerge through later discovery or trial that support their claims.
Mere speculation is insufficient to avoid summary judgment. Kincaid v. Dess, 48 Kan.
App. 2d 640, 656, 298 P.3d 358 (2013). If a party requires additional discovery to defend
against a motion for summary judgment, that party must seek a continuance to obtain that
discovery. See K.S.A. 2021 Supp. 60-256(f); Chesbro v. Board of Douglas County
Comm'rs, 39 Kan. App. 2d 954, 966, 186 P.3d 829 (2008).
Illig also contends that the district court abused its discretion by ignoring a
material controverted point when it accepted appellees' statement of facts as in their
summary judgment motion. A court abuses its discretion when its decision is arbitrary,
fanciful, unreasonable, or if it stems from an error of law or fact. See Biglow v.
Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). Because Illig failed to controvert
appellees' asserted factual statements, the district court adopted appellees' statement of
facts as its own.
"In reviewing the response filed by [Illig] to the motion for summary judgment, I
did not see any separately numbered paragraphs controverting or admitting to any of the
alleged facts filed in the petition—I'm sorry, in the motion for summary judgment.
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Accordingly, under my required findings of fact section, I find that the facts as pled by
[appellees] are uncontroverted and accepted as this Court's finding[s] of fact."
Illig now claims that statements in her medical records conflict with appellees'
summary judgment statement of facts—apparently challenging whether Dr. BeLieu
intended to give Illig Gardasil shots in excess of the first full round. But Illig failed to
controvert this point in her response to the motion for summary judgment or during the
summary judgment hearing. Based on the information available to the district court, it
was reasonable and not an abuse of discretion for it to find that Illig did not controvert
appellees' statement of facts and adopt those as its own.
Moreover, the district court properly set forth a March 1, 2021 expert witness
disclosure deadline that, although the parties agreed to extend at least once, Illig failed to
observe. See K.S.A. 2021 Supp. 60-216(d) (permitting district courts to control actions
within their court). The district court held that summary judgment for appellees was
appropriate as a matter of law because Illig's claims required expert witness testimony,
but she decided to proceed without it. See Crooks v. Greene, 12 Kan. App. 2d 62, 736
P.2d 78 (1987) (relied on by the district court in granting summary judgment). In Crooks,
a panel of this court upheld the district court's grant of summary judgment against a
patient claiming medical malpractice because the patient failed to identify expert
witnesses to establish causation. 12 Kan. App. 2d at 63-66.
Rather than supply disputed facts, Illig argued only, and inaccurately, that the
common knowledge exception applied, making expert witness testimony unnecessary.
The district court did not err in accepting appellees' uncontroverted facts as the findings
of the court.
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B. Illig's medical malpractice claims required expert testimony.
To succeed on a medical malpractice claim and recover damages, a plaintiff must
show that (1) the medical provider owed the patient a duty of care, (2) the provider
breached that duty or deviated from the standard of care, (3) the patient was injured, and
(4) the provider's breach proximately caused the patient's injury. See Burnette v. Eubanks,
308 Kan. 838, 842, 425 P.3d 343 (2018). Expert testimony is ordinarily required to
establish a medical provider breached the standard of care and to establish causation
between that breach and the alleged injury. See Hare v. Wendler, 263 Kan. 434, 440, 949
P.2d 1141 (1997); Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416(1988).
Illig accurately asserts that, while expert witness testimony is typically required in
medical malpractice cases, an exception exists permitting the plaintiff to pursue claims
without an expert. When "what is alleged to have occurred in the diagnosis, treatment,
and care of a patient is so obviously lacking in reasonable care and the results are so bad
that the lack of reasonable care would be apparent to and within the common knowledge
and experience of mankind generally," expert witness testimony is not required. Hare,
263 Kan. at 442. This exception is known as the common knowledge exception—and its
application is "extremely limited"—typically applied in cases where a foreign object was
left inside a patient during a surgery, or when a surgeon mistakenly operates on the
wrong body part. See Munoz v. Clark, 41 Kan. App. 2d 56, 62-63, 199 P.3d 1283 (2009);
see, e.g., Rule v. Cheeseman, Executrix, 181 Kan. 957, 962-63, 317 P.2d 472 (1957)
(applying the common knowledge exception when the physician failed to remove gauze
from a patient's abdomen after surgery); Bernsden v. Johnson, 174 Kan. 230, 238, 255
P.2d 1033 (1953) (applying the common knowledge exception when the physician left a
metal tongue suppressor in the patient's throat for an extended period of time); Schwartz
v. Abay, 26 Kan. App. 2d 707, 712, 995 P.2d 878 (1999) (applying the common
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knowledge exception when the surgeon removed a significant portion of the wrong
vertebral disc).
Illig contends that she was not required to put forth expert witness testimony to
establish the standard of care for the administration of the Gardasil vaccine or
maintenance of medical records because both standards of care are within the common
knowledge of the public. Illig asserts that this common knowledge exception should
apply because the CDC vaccination recommendations provide that a patient should only
receive two or three Gardasil shots and establishes the standard of care. Additionally,
Illig asserts—without any legal authority—that the jury does not need a medical expert to
see that the KCWC deviated from the standard of care when it lost her vaccination
record, and proximately caused her injuries by administering too many Gardasil shots.
She essentially argues a medical clinic's administrative duties to protect patient files are
within the common knowledge of the jury, and thus no expert testimony about standards
of medical record maintenance is required.
Even assuming this court accepts Illig's argument that expert witness testimony is
not required to establish appellees' standard of care and its breach of that standard, Illig
must still prove causation. Illig's petition, amended petition, brief, and reply brief all fail
to explain how appellees' negligent actions proximately caused exacerbation of her
existing ulcerative colitis. Illig merely alleged that after receiving the Gardasil shots that
exceeded the CDC's recommended dosage, she "experienced systemic immunological
harm due to further aggravation and elevation of her immune system," and that her
"autoimmune condition worsened as a direct result of [appellees'] negligent acts."
However, Illig never explains how the standard of care for Gardasil vaccines or the cause
of her alleged injuries fall within the common knowledge and experience of humanity
generally. This court is unaware of any generally accepted knowledge of the cause of
ulcerative colitis or what causes ulcerative colitis to worsen or flare up. "Even when there
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is no factual dispute about what the treating physician did or failed to do, questions of
causation in medical malpractice cases are often complex." Hare, 263 Kan. at 441.
Contrary to Illig's assertions, this court has required expert testimony on causation
even when there was a clear medical error—which this court does not presume here. See,
e.g., St. Francis Regional Med. Center, Inc. v. Hale, 12 Kan. App. 2d 614, 752 P.2d 129(1988). In Hale, a panel of this court affirmed the district court's grant of summary
judgment on a medical malpractice claim where medical providers left a clip in the
patient's leg after surgery and the patient developed a staph infection in that same leg.
Even though it was clear the clip should not have been left inside the patient's leg, the
patient still needed expert testimony to establish causation. Although a lay person has
common knowledge to know when a medical procedure did not proceed exactly as
planned, the resulting injury—if any—is not necessarily within the common knowledge
and experience of that lay person. 12 Kan. App. 2d at 620. The causation question here is
far more complex than in Hale—it requires knowledge of the Gardasil vaccine,
knowledge of the autoimmune condition known as ulcerative colitis, and knowledge of
how additional Gardasil shots may impact or exacerbate ulcerative colitis, none of which
are commonly known.
This court has found no caselaw to suggest that the potential medical
consequences, if any, of receiving more than three doses of the Gardasil vaccine are
within the common knowledge of the general public—unlike the potential consequences
of having surgery on the wrong body part. Similarly, this court is unpersuaded that the
general public possesses common knowledge of any of the causes of ulcerative colitis.
Thus, Illig's medical malpractice claims required expert witness testimony, not only as to
the standard of care, but also as to causation. See Bacon, 243 Kan. at 307. Illig failed to
disclose any expert witnesses, even after receiving additional time, and did not request
any further extension of time to identify an expert witness. Therefore, resolving all
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disputed facts and inferences in favor of Illig, she is still unable to establish her medical
malpractice claims against appellees without expert witness testimony.
C. Illig's general negligence and informed consent arguments were not raised
below and this court declines to reach them on appeal.
Illig next argues that her claims did not require expert witness testimony because
(1) her claim against the KCWC was for general negligence, not medical malpractice and
(2) her informed consent claim would not need expert testimony had the district court
specifically addressed it below. Appellees urge this court to not reach Illig's arguments
because they were not addressed below, but also argue that Illig would in fact need expert
witness testimony to establish her negligence and informed consent claims.
Generally, issues not raised before the district court cannot be first raised on
appeal. Gannon v. State, 303 Kan. 682, 733, 368 P.3d 1024 (2016). Exceptions exist
permitting such an occurrence when consideration of the theory is necessary to serve the
ends of justice or to prevent the denial of fundamental rights. See In re Estate of
Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008).
Illig failed to argue to the district court that her claims should be classified as
general negligence and informed consent claims rather than medical malpractice. In fact,
at a prehearing conference after inquiry from the district court, Illig explicitly said that
the case was based in medical malpractice, "[a]nd that's the basis of our case, because it
was negligence, it's medical malpractice." Illig did not oppose appellee's motion for
summary judgment by claiming she was raising general negligence and informed consent
claims rather than medical malpractice claims. Illig only argued that the common
knowledge exception applied and she was not required to provide expert witness
testimony to support her medical malpractice claims. Nor did Illig use the words
"informed consent" anywhere in her petition or amended petition. In Illig's reply brief,
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she acknowledges that she did not raise these issues below but argues—without citing
legal support—that this court should reach them on appeal to prevent the denial of a
fundamental right.
The decision to review an unpreserved claim under an exception to the general
prohibition is a prudential one. Even if an exception applies, this court need not reach the
unpreserved issue. State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020). The record
clearly shows that Illig classified her claims as medical malpractice before the district
court—thus not permitting the district court to consider her present argument—and she
has cited no legal support for her conclusory contention that this court's failure to reach
her claims would result in denial of a fundamental right. As a result, this court declines to
reach Illig's new arguments brought for the first time on appeal.
CONCLUSION
Illig brought medical malpractice claims against her provider and medical clinic
related to administration of more Gardasil shots than are required for full vaccination, but
she failed to disclose expert witnesses to support her claims. Rather than disclosing
experts, Illig proceeded on the theory that the common knowledge exception applied
making expert testimony unnecessary. But the common knowledge exception does not
apply to Illig's claims, and the district court did not err in granting summary judgment to
appellees. Nor did it err in rejecting Illig's argument about potential future witnesses or
by adopting appellees' uncontroverted statement of facts.
Affirmed.
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