Irvin v. Smith

272 Kan. 112 (2001)

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Irvin v. Smith

Kansas Supreme Court
272 Kan. 112 (2001)



Ashley Irvin (plaintiff) was born with hydrocephalus, which required Irvin to have a ventriculoperitoneal shunt to pump excess fluid from her brain to her abdomen. The shunt was placed by Irvin’s neurosurgeon, Dr. Edwin MacGee, and allowed Irvin to live a normal life. In October 1995, when Irvin was 12 years old, she began having seizures, flulike symptoms, and neck and back pain. MacGee examined Irvin, determined that the shunt was not malfunctioning, and sent her home. However, X-rays taken at that time showed that the shunt’s tube had become blocked due to Irvin’s growth. Irvin’s symptoms continued. Irvin went to the hospital a month later and was seen by Dr. Michael Shull. Concerned that the shunt was malfunctioning, Shull took X-rays, but the radiologist reported no abnormalities. Shull did not review the X-rays from October. Shull transferred Irvin to another hospital, where she was seen by Dr. Lindall Smith. Although Smith received the October X-rays, Smith did not review them. Smith called Dr. Richard Gilmartin (defendant) to consult on the case. Gilmartin was not an employee of the hospital, had never met Irvin, and had not reviewed Irvin’s chart. Smith and Gilmartin discussed Irvin’s history, symptoms, and condition and jointly agreed that Gilmartin would evaluate Irvin the next morning and perform a shuntogram to check the shunt for a blockage. The next morning, before the procedure could be performed, Irvin’s condition worsened, and she was intubated. Once the shuntogram was performed, the blockage was identified and corrected. However, Irvin suffered severe, permanent brain damage, requiring Irvin to have full-time, continuous care. Irvin’s parents sued Gilmartin and several other doctors for medical malpractice on Irvin’s behalf. Gilmartin filed a motion for summary judgment, arguing that he did not have a physician-patient relationship with Irvin prior to physically evaluating her and therefore did not owe her a duty of care. The trial court granted the motion, and Irvin appealed.

Rule of Law


Holding and Reasoning (Abbott, J.)

Dissent (Lockett, J.)

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