Where Community Standard of Nursing Care Equals National Standard, Jury Instruction Directing Application of Community Standard Not Reversible Error

A woman presented to the obstetrical department of a hospital approximately 35 weeks pregnant in severe pain. A labor and delivery nurse took a history and hooked her up to a fetal heart monitor. The fetal heart monitor indicated normal readings for the fetus. The nurse contacted the woman’s obstetrician and conveyed the information. The obstetrician ordered the woman to be admitted for observation, an IV started, and pain medications administered.


Shortly after speaking with the obstetrician the fetal heart monitor indicated fetal distress. Twenty-eight minutes later the nurse called the obstetrician again. The obstetrician arrived another 28 minutes later and immediately ordered a caesarian section. Thirty-three minutes later, 91 minutes after the fetal heart monitor indicated fetal distress, the woman’s daughter was delivered. The daughter was subsequently diagnosed with cerebral palsy with severe spastic quadriplegia and seizure disorder.


The parents and daughter sued the hospital for vicarious liability for the nurse’s negligence. Regarding the nurse’s alleged failure to activate and timely follow through on her medical chain of command, the jury was instructed that the nurse’s duty was to use that degree of learning and skill ordinarily possessed and used by members of that profession in the community in which she practices, or in similar communities. The jury returned a verdict in favor of the defendant. On appeal, the plaintiffs argued that the jury instruction should have indicated a national standard of care rather than a community standard of care. The court of appeals affirmed the trial court’s decision to allow the jury instruction.


The Supreme Court of Kansas affirmed the lower courts holding that the jury instruction was a correct statement of the law under the facts of the case. However, the court clarified that the appropriate standard of review for issues related to jury instructions is the stair-step analysis as explained in State v. Plummer, 295 Kan. 156, 283 P.3d 202 (Kan.  Aug 24, 2012), not the harmless error standard applied by the court of appeals. First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review. Second, the court should use an unlimited review to determine whether the instruction was legally appropriate. Third, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction. Fourth, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (Kan. Jul 29, 2011), cert. denied, 132 S.Ct. 1594 (U.S.Kan. Feb 21, 2012).


The court reasoned that, under the deferential standard of the third step, sufficient expert testimony was presented at trial to support an instruction that retained the community standards in the standard jury instructions, particularly regarding the chain of command claim. Additionally, under the same deferential standard, expert testimony readily established that the overall nursing standards for a jury to evaluate the nurse's conduct in the community were also the national standards of care. The court concluded that the instruction was accurate as the evidence, as noted by the plaintiffs’ attorney in closing arguments, was sufficient to support a conclusion that the community standard that applied was the same as the national standard. Furthermore, the community language contained in the instruction was not so confusing, as compared to other instructions, as to require reversal and remand.


See: Bates v. Dodge City Healthcare Group, L.P., 2013 WL 135570 (Kan., January 11, 2013) (not designated for publication).