Jury Finds Wichita Family Physician Liable for Misdiagnosing Pneumonia in Man Who Died of Pulmonary Embolism

James Jeffery Duncan went to see Dr. Robyn Hartvickson, a family physician at West Wichita Family Physicians, with symptoms she diagnosed as pneumonia. He died the next day of a large pulmonary embolism, a blood clot lodged in the lungs. He left a wife, Erin Duncan, and five children.

Erin Duncan sued as administratrix of her husband's estate and on behalf of herself and the children. The central claim was that Dr. Hartvickson departed from the standard of care by settling on pneumonia and never exploring whether Duncan's symptoms pointed to a pulmonary embolism. Her lawyers from Hutton & Hutton Law Firm in Wichita, J. Darin Hayes, Mark B. Hutton and Anne M. Hull, put on expert testimony supporting that theory.

Liability was fiercely contested. Dr. Hartvickson and her experts said she met the standard of care, and that the clot had likely formed so recently that it would not have been evident when she examined Duncan, which they argued made pneumonia a reasonable call. Both sides agreed on appeal that the question of fault was a hard-fought one.

The case went to a Sedgwick County jury, and deliberations ran about two and a half days. The jury sent the judge a note saying its last three votes had not changed and that it had no majority either way. The court answered with the pattern deadlocked-jury instruction over the defense objection and sent the jurors home for the evening. The next morning the jury found Dr. Hartvickson at fault and awarded $982,143 in economic damages. It awarded nothing for the family's noneconomic losses, although the plaintiffs had presented extensive evidence of them.

After the trial, one juror contacted the defense and gave an affidavit and live testimony at a hearing. He said every vote on liability had split seven to five in favor of the plaintiffs and never moved, and that the jurors then agreed to find liability in exchange for a very low damages figure. The trial court denied the defense motion for a new trial in a written memorandum opinion.

On January 8, 2010, the Kansas Court of Appeals reversed. Judge Greene wrote that the verdict showed objective signs of compromise: contested liability, a quick unanimity after the deadlock instruction, and no award at all for noneconomic loss. The juror's direct account confirmed it, and the panel remanded the case for a new trial without reaching the defense's other claims of trial error. The verdict did not stand, and we could not find a record of how the retrial was resolved.