Rogers v. Moll

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 127,119 SHARON ROGERS and ROBERT ROGERS, individually and as heirs-at-law of ARYN ROGERS, and as the Co-Administrators of the ESTATE of ARYN ROGERS, Appellants, v. MATTHEW MOLL, M.D., Appellee. SYLLABUS BY THE COURT 1. To prevail on a medical malpractice claim in Kansas, a plaintiff must prove: (1) The physician owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the physician breached this duty or deviated from the applicable standard of care; and (3) the patient was injured and the injury proximately resulted from the physician's breach of the standard of care. 2. If the jury instructions properly and fairly state the law and are not reasonably likely to mislead the jury, it is immaterial if another instruction, upon retrospect, is also legally and factually appropriate, even if such instruction might be clearer or more thorough than the one given. Review of the judgment of the Court of Appeals in an unpublished opinion filed August 22, 2025. Appeal from Butler District Court; CHAD M. CRUM, judge. Oral argument held May 20, 2026. Opinion 1 filed September 4, 2026. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. James R. Howell, of Prochaska, Howell & Prochaska LLC, of Wichita, argued the cause, and Jakob J. Provo, of the same firm, was with him on the briefs for appellants. Brian L. Burge, of Sanders Warren & Russell LLP, of Overland Park, argued the cause, and Kaitlin M. Marsh-Blake and Bradley S. Russell, of the same firm, were with him on the brief for appellee. The opinion of the court was delivered by WALSH, J.: After the death of their adult daughter, Aryn Rogers, Sharon and Robert Rogers sued several medical professionals for medical malpractice. Eventually, they went to trial against only Dr. Matthew Moll, M.D., who had initially treated Aryn in the emergency room. A jury returned a verdict in Dr. Moll's favor, and the Rogers appealed, challenging the jury instructions and the verdict form. On appeal, a panel of the Kansas Court of Appeals found no error and thus affirmed. The Rogers then petitioned this court for review, which we granted. Like the Court of Appeals panel, we affirm. But we highlight a potential problem with the PIK's approach to the element of "causation" and with the concept of "fault" altogether in the context of a single defendant case. FACTS AND PROCEDURAL BACKGROUND The issues before us center around the jury instructions provided at trial. We ultimately conclude that those instructions were legally and factually appropriate and, thus, we do not reach the question of harmlessness. Consequently, like the panel before us, we will only briefly discuss the underlying facts. 2  Aryn Rogers was born with hydrocephalus. When she was a few months old, doctors surgically installed a ventriculoperitoneal (VP) shunt in her body. This shunt was essentially a tube that allowed accumulated fluid to drain from her head into her body cavity. Without the shunt, the fluid would continue to build up inside Aryn's skull, creating pressure that would eventually be fatal. The shunt could fail, and when Aryn was very young, she needed several surgeries to correct issues with the shunt. At the end of January 2015, Aryn—who was 32 years old and living with her parents—was admitted to the hospital for pancreatitis. After she came home, she began complaining of a severe headache and vomiting; after she had a seizure, her parents took her to the emergency room of Susan B. Allen Memorial Hospital. Dr. Moll was working as an E.R. physician in the hospital that evening. After Aryn's father told him about the shunt—and the connection he had observed between previous shunt malfunctions and Aryn's seizures—Dr. Moll ordered a head CT scan. The results of that scan (as interpreted by a radiologist) and other diagnostic information led Dr. Moll to conclude that Aryn's symptoms were probably not caused by a shunt malfunction. Dr. Moll did not consult with a neurosurgeon and did not order a "shunt series" of X-rays before reaching this conclusion. Instead, Dr. Moll suspected that Aryn had likely contracted an infection from her previous hospitalization. On Dr. Moll's recommendation, a hospitalist admitted Aryn to the hospital, at which point Dr. Moll had nothing more to do with her care. Tragically, Aryn's condition worsened quickly, and she ultimately died. Aryn's parents filed this medical malpractice lawsuit against Dr. Moll and several other medical providers, along with the hospital. By the time of trial, only Dr. Moll remained as a defendant. The jury heard from several expert witnesses, some of whom testified that Dr. Moll had violated the standard of care and that his violations had caused 3 or contributed to Aryn's death, and some of whom opined that Dr. Moll did nothing wrong. Dr. Moll also testified, as did Aryn's parents. As we will discuss, the parties debated their proposed jury instructions and verdict form at length. Ultimately, the district court issued instructions that did not provide a separate definition of fault or causation and a verdict form that simply asked the jury which side it "find[s] for." The jury found for Dr. Moll, and the district court entered judgment in Dr. Moll's favor. The Rogers then appealed. On appeal the Rogers challenged the district court's rulings on their jury instructions. Rogers v. Moll, No. 127,119, 2025 WL 2427624, at *1. The Court of Appeals panel concluded that although the instructions could have been "better," they were not legally inappropriate. 2025 WL 2427624, at *1. The panel thus affirmed the district court. 2025 WL 2427624, at *1, 4. The Rogers petitioned this court for review, which we granted. We have jurisdiction. K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review). ANALYSIS The Rogers challenge two jury instructions—Nos. 11 and 13—and the verdict form. They argue that these two instructions—which presented the standard of care and the parties' contentions—along with the verdict form failed to tell the jury how to consider the concept of causation and were thus erroneous. We disagree. 4  1. Standard of Review An appellate court follows a four-step process when analyzing whether instructional error has occurred. Biglow v. Eidenberg, 308 Kan. 873, 880-81, 424 P.3d 515 (2018). We (1) consider reviewability by jurisdiction and preservation viewpoints using an unlimited standard of review; (2) determine whether the instruction was legally appropriate using an unlimited standard of review; then (3) determine whether the evidence, viewed in the light most favorable to the requesting party, would support the instruction (i.e., whether the instruction was factually appropriate); and (4) if there was error, whether it was harmless, under the appropriate standard. "The first element of this analysis ultimately affects the last one 'in that whether a party has preserved an issue for review will have an impact on the standard by which we determine whether an error is reversible.' [Citations omitted.]" State v. Hillard, 313 Kan. 830, 844–45, 491 P.3d 1223 (2021). When a party challenges jury instructions on appeal, we do not read them in isolation; instead, we "consider jury instructions together and read them as a whole." Burnette v. Eubanks, 308 Kan. 838, 842, 425 P.3d 343 (2018). See also State v. Hillard, 315 Kan. 732, 770, 511 P.3d 883 (2022), abrogated in part on other grounds by State v. Barnes, 320 Kan. 147, 563 P.3d 1255 (2025). The same standard of review applies to alleged errors within a verdict form. E.g., Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 387, 266 P.3d 516 (2011); Aeroflex Wichita, Inc. v. Filardo, 63 Kan. App. 2d 588, 614, 534 P.3d 610 (2023). We note that, although the Rogers objected to the standard of care instruction and to the verdict form, they did not object to the contentions instruction they challenge on appeal. Because we ultimately find no error in the instructions as a whole—and because 5 the Rogers' arguments all effectively raise the same point—we need not decide how to parse the different harmlessness standards here. 2. The Challenged Instructions The Rogers do not argue that the instructions were factually inappropriate. But they claim that, because the instructions failed to accurately instruct the jury on the element of causation, they were legally inappropriate. Specifically, instruction No. 11, which defined the standard of care, instructed the jury that: "A physician has a duty to use the learning and skill ordinarily used by other members of that same field of medicine in the same or similar circumstances. In using this learning and skill, the physician must also use ordinary care and diligence. A violation of this duty is negligence." The instruction given was entirely consistent with PIK Civ. 4th 123.01 (defining the standard of care). Left out of the instruction was the Rogers' proposed additional language: "A party is at fault when he is negligent, and that negligence caused or contributed to the event which brought about the claims for damages." This proposed language is consistent with language our courts have repeatedly used—primarily in the context of comparative fault cases. See Burnette, 308 Kan. at 847-48, 852 (discussing nearly identical language). As the parties note, the PIK Committee specifically deleted the instruction defining causation from PIK. See PIK Civ. 4th 104.01 ("The Committee recommends that no instruction be given defining causation."). In doing so, the Committee suggested 6 that, in light of Kansas' adoption of comparative fault, proximate cause is "almost, but not quite, obsolete." Instruction No. 13, which set forth the parties' contentions, told the jury: "The Plaintiffs, Sharon Rogers and Robert Rogers, as the parents of decedent Aryn Rogers, as well as the Estate of Aryn Rogers, claim that Defendant was at fault in one or more of the following respects: "1. Failing to consult a neurosurgeon while Aryn was in the ER. "2. Failing to order a shunt series. "3. Failing to examine the shunt tube on the chest x-rays to look for a problem in the shunt tubing. "4. Relying on an inconclusive preliminary head CT report to rule out a shunt malfunction. "Plaintiffs have the burden to prove that their claims set forth above are more probably true than not true. It is not necessary that each of you agree upon a specific claim. "Defendant denies that he was negligent in the care and treatment of Aryn Rogers, or that he was at fault in causing or contributing to her death. Defendant asserts that his decision-making during Aryn Rogers' presentation to the emergency department was reasonable and in keeping with the medial needs of the patient. Lastly, Defendant denies that Plaintiffs' claimed damages are of the nature or extent alleged." Without explanation (or objection), the district court ultimately cut the following language from the Rogers' proposed version of the instruction: 7  "Dr. Moll was negligent and breached his duty to provide safe and proper care to Aryn Rogers, and his negligence caused and/or contributed to her prolonged pain, suffering and anguish. As a further result of his negligence and carelessness, Aryn Rogers died and as a result thereof, Robert and Sharon Rogers suffered economic and noneconomic losses." The instruction as given is generally consistent with PIK Civ. 4th 106.01. Finally, in relevant part, the verdict form asked: "Do you find for the Plaintiffs or Defendant Dr. Moll?" and asked the jury to "Circle One." The Rogers had originally posed the question as, "Do you find Dr. Moll to be at fault?" with an option to circle "yes" or "no." 3. Instructions given were legally appropriate. To prevail on a medical malpractice claim in Kansas, a plaintiff must prove: "(1) [T]he health care provider owed the patient a duty of care, which required that the provider meet or exceed a certain standard of care to protect the patient from injury; (2) the provider breached that duty or deviated from the standard of care; (3) the patient was injured; and (4) the injury proximately resulted from the health care provider's breach of the standard of care." Eidenberg, 308 Kan. at 887. Like the panel, we conclude that the instructions adequately conveyed the concept of causation to the jury. Critically, Dr. Moll's portion of the contentions instruction told the jury, "Defendant denies that he was negligent in the care and treatment of Aryn Rogers, or that he was at fault in causing or contributing to her death." By tying the "at fault" concept to the "causing or contributing to her death" language, the instruction provided the missing link between the Rogers' claim—that Dr. Moll was "at fault" in one or more of four separate failures—and Aryn's death. See Burnette, 308 Kan. at 852 8 (assessing multiple instructions that, taken together, instructed the jury that, to impose liability, "it would have to find defendant's negligence was a but-for cause of his death"). And while it might have been advisable to permit the Rogers their positive framing of the concept of causation in the contentions instruction, there was no legal error in the district court's excision of language that also arguably misstated the relevant duty Dr. Moll owed to Aryn. Finally, the verdict form asked the jury to summarize this gestalt analysis under the simple guise of announcing which side it "found" for. While we can certainly envision an instruction that more precisely communicates the required element, i.e., that Dr. Moll's negligence was the cause of Aryn's death, the instructions here were not misleading. "If the jury instructions properly and fairly state the law and are not reasonably likely to mislead the jury, it is immaterial if another instruction, upon retrospect, is also legally and factually appropriate, even if such instruction might be clearer or more thorough than the one given." State v. Ervin, 320 Kan. 287, Syl. ¶ 4, 566 P.3d 481 (2025). 4. Guidance Regarding PIK Our analysis could end here. But the concern animating the Rogers' appeal is valid: the standard PIK instructions do not define causation. See PIK Civ. 4th 104.01 ("The Committee recommends that no instruction be given defining causation."). Yet it is an element of a medical malpractice claim. We have written extensively on the concept of proximate cause, and while we have held that the phrase "caused or contributed to" can adequately capture the gist of the concept, as the panel put it, it is not so intuitive that we necessarily condone silence on the matter. See Burnette, 308 Kan. at 852-53; Castleberry v. DeBrot, 308 Kan. 791, 802- 04, 424 P.3d 495 (2018). Because we have strongly endorsed litigants' use of PIK, we 9 highlight, for the Committee's consideration, our concern over the total absence of a causation definition, which threatens to omit a critical piece of information from the jury's consideration. Cf. State v. Bernhardt, 304 Kan. 460, Syl. ¶ 1, 372 P.3d 1161 (2016) ("The use of pattern jury instructions [PIK] published by the Kansas Judicial Council is not mandatory but is strongly recommended."). See also State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009) (finding error in the PIK's inclusion of the language "[a]nother trial would be a burden on both sides" and writing that, "The PIK Committee should strike this language from this instruction."). And while we do not sanction the Rogers' proposed solution to the perceived problem in this case, which was to inject more references to "fault" into the instructions—and to make them the through-line for the jury, including in the verdict form—we wonder if the term "fault" itself, which appears repeatedly in PIK Civ. 4th 106.01 (which formed the skeleton of what eventually became instruction No. 13 here) may lead both litigants and juries astray in a negligence case involving a single defendant—especially where, as here, there is no claim that a plaintiff's own "fault" contributed to the harm they suffered. Cf. Westerbeke & McAllister, Survey of Kansas Tort Law: Part I, 49 U. Kan. L. Rev. 1037, 1122-23 (2001) (reviewing K.S.A. 60-258a, the comparative negligence/comparative fault statute). See also Simmons v. Porter, 298 Kan. 299, 306-08, 312 P.3d 345 (2013) (discussing background of comparative negligence statute). We thus highlight the PIK's use of "fault" and the omission of a causation definition for the Committee's future consideration—at least in cases such as this, where there is only one defendant and no claim that the plaintiff's "fault" contributed to the injury. 10  Because the instructions here sufficiently conveyed the information, we find no error and affirm the decision of the Court of Appeals affirming the district court. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. 11