Tudor v. Wheatland Nursing L.L.C. (42 Kan.App.2d 624)

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Tudor v. Wheatland Nursing L.L.C. (42 Kan.App.2d 624)

Tudor v. Wheatland Nursing L.L.C. (42 Kan.App.2d 624)
Plaintiff (Appellee) – Tudor, Administrator for the Estate of Tracy Tudor (Deceased)
Defendant (Appellant) – Wheatland Nursing L.L.C.
Court of Appeals of Kansas (2009)
Plaintiff brought a survival and wrongful death action against defendant on behalf of his deceased sister who died while in the care of Wheatland. Wheatland moved for summary judgment which was granted by the trial court. Plaintiff appealed the decision.

Tracy Tudor was diagnosed on the early 1970’s with severe cerebral damage and “acute brain syndrome.” He also suffered from complex impulse disorder and dementia. Between 1974 and 2003 Tracy was placed in a secured unit for civilly committed mentally ill patients at Larned State Hospital.  This was in large part due to Tracy’s aggressive behavior towards staff and other patients.

In April, 2004 Tracy was ordered by the court to be involuntarily committed for psychiatric treatment at Larned.  He initially was released to Wheatland but then sent back to Larned briefly before returning to Wheatland again on October 14, 2004. The feeding instructions that Tracy was under at Larned were very strict. Due to his condition he was susceptible to aspiration and was therefore to be fed small cups of liquid at each meal to slow his consumption.

He had difficulty swallowing and had a habit of regurgitating his food. Because of these risks, Tracy needed assistance and supervision when eating. On November 3, 2004, Tracy was able to grab half a cheese sandwich off of a snack cart, stiff it in his mouth, causing him to choke. Wheatland’s staff unsuccessfully attempted to retrieve the sandwich, but Tracy had aspirated it and become unresponsive. Emergency services, along with the nursing home’s on- call physician were called and Tracy was rushed to the hospital where he was pronounced dead.

Tracy’s brother, David, as special administrator of David’s estate, filed a wrongful death suit against Wheatland, alleging a breach of duty of care owed to Tracy. The suit was based on:

  1. failure to properly monitor and supervise Tracy (given his history of difficulty swallowing and choking)
  2. failure to properly hire, train, and supervise the Wheatland staff
  3. failure to properly monitor and supervise the food cart
  4. failure to provide sufficient personnel to insure reasonable monitoring and supervision

He sought $502,100.07 in damages.

Wheatland learned through discovery that David did not intend to call any expert witnesses regarding the applicable standard of care that was owed to Tracy and filed a motion for summary judgment on those grounds.

The trial court granted Wheatland’s motion for summary judgment based on plaintiff’s failure to identify an expert witness to establish the applicable standard of care owed to the deceased patient.
  1. Was plaintiff required to provide an expert witness in order to establish the applicable standard of care in this case?
  2. Could the plaintiff assert the “common knowledge” exception to the expert testimony requirement?
  3. Did the Adult Care Home Licensure Act provide an applicable standard of care that could be asserted in lieu of expert testimony?
  1. Yes
  2. No
  3. No
The court agreed with Wheatland’s contention that Tracy’s condition, including severe brain damage, made the circumstances such any applicable standard of care would fall outside of any potential jury’s common knowledge.“Expert testimony is necessary only if the matter is outside the common knowledge of the jury.”

  • Cunningham v. Riverside Health Systems, Inc., 33 Kan.App.2d, 1,5

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