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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 111,105

DOUGLAS L. CASTLEBERRY, Individually and as the Administrator of the ESTATE OF 

BARBARA MAE CASTLEBERRY, Deceased, and on behalf of SUSAN M. KRAFT and SCOTT 

CASTLEBERRY, Adult Heirs at Law of BARBARA MAE CASTLEBERRY, Deceased,

Appellees,

v.

BRIAN L. DEBROT, M.D.,

Appellant.

SYLLABUS BY THE COURT

1.

In a civil case, when the Kansas Supreme Court grants a petition for review of a 

Court of Appeals' decision, only those issues presented in the petition, or fairly included 

therein, will be considered. 

2.

Proximate cause is the cause that in a natural and continuous sequence, unbroken 

by any superseding cause, both produced the injury and was necessary for the injury. The 

injury must be the natural and probable consequence of the wrongful act. Individuals are 

not responsible for all possible consequences arising from their negligence—just those 

that are probable according to ordinary and usual experience.

3.

Any perceived distinction between the phrases "causing an event" and 

"contributing to an event" is a distinction without a difference.
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4.

Remarks of counsel in a civil case result in reversible error when the prejudiced 

party has not had a fair trial. Reversal is appropriate when there is a reasonable 

probability the error affected the trial's outcome in light of the entire record.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 22, 2016.

Appeal from Sedgwick District Court; RICHARD T. BALLINGER, judge. Opinion filed August 24, 2018. 

Judgment of the Court of Appeals affirming the district court is affirmed on the issues subject to review.

Judgment of the district court is affirmed on the issues subject to review.

Steven C. Day, of Woodard, Hernandez, Roth & Day, LLC, of Wichita, argued the cause, and 

Christopher S. Cole, of the same firm, was with him on the briefs for appellant. 

Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of Kansas City, Missouri, argued the 

cause, and Larry Wall and Tina Huntington, of Wall Huntington Trial Law, of Wichita, were with him on 

the briefs for appellees.

The opinion of the court was delivered by

BILES, J.: Brian L. DeBrot, M.D., appeals after a jury found him negligent and 

awarded damages to his deceased patient's heirs and estate. The medical malpractice

theory was that DeBrot failed to recognize the patient was about to suffer a stroke the day 

before she had it. A Court of Appeals panel affirmed. See Castleberry v. DeBrot, No. 

111,105, 2016 WL 1614018, at *30 (Kan. App. 2016) (unpublished opinion). We granted 

review and now affirm on the issues subject to our review, although our rationale differs 

in some respects.

At the outset, we must resolve a challenge about what issues DeBrot's petition for 

review identifies. We hold those questions are: (1) whether it was error to instruct the 

jury that a party is at fault when the party's "negligence caused or contributed to the event 
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which brought about the claims for damages"; (2) whether plaintiffs' counsel's closing 

arguments contained improper remarks and, if so, whether that requires reversal; and (3) 

whether expert standard-of-care testimony that doctors must "err on the safe side" was 

improper and, if so, whether that requires reversal.

As to the instructions, we adhere to our holding in Burnette v. Eubanks, 308 Kan. 

___, Syl. ¶ 3, ___ P.3d ___ (this day decided) ("Any perceived distinction between the 

phrases 'causing an event' and 'contributing to an event' is a distinction without a 

difference."). We also hold that plaintiffs' counsel improperly urged the jury to decide the 

case on concerns other than the law and the evidence. But we determine there is no 

reasonable probability the verdict would have been different without this error. Finally,

we hold the district court did not abuse its discretion by permitting experts to testify as 

they did because they simply explained the mental processes used in forming their 

opinions about whether DeBrot breached the standard of care. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Barbara Castleberry suffered a debilitating stroke on December 20, 2007. About a 

year later, she fell and sustained a fatal head injury. This lawsuit claims a direct causal 

connection between these two events and DeBrot's medical malpractice.

Barbara saw DeBrot, a primary care physician, five times before her 2007 stroke, 

including December 6 and December 19. During the first December visit, Barbara's 

"chief complaint" was left hand numbness. She reported tingling in the hand, increasing 

difficulty picking things up, difficulty turning pages, dizziness, and foot numbness. She 

wondered if she was having a stroke. DeBrot believed these symptoms were caused by 

carpal tunnel syndrome. He testified a stroke "[w]asn't even a consideration" because he 
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clinically reproduced her symptoms, which would have been impossible if she had 

suffered a stroke.

DeBrot referred Barbara to a carpal tunnel specialist, who confirmed the diagnosis 

and began treatment. She returned to DeBrot on December 19—the day before her 

stroke—chiefly complaining about wrist pain. She had high blood pressure and reported 

dizziness, constipation, increased numbness, blurred vision, and emotional problems. 

DeBrot believed a steroid injection given by the specialist two days earlier caused the 

pain. DeBrot rescheduled her follow up with the specialist for an earlier date.

After Barbara died, her husband and estate sued DeBrot for damages sustained 

during her remaining lifetime after the stroke and for damages resulting from Barbara's

death. The negligence focused on DeBrot's alleged failure to recognize the impending 

stroke or to diagnose Barbara with transient ischemic attacks (TIA) during the two 

December 2007 visits.

Barbara suffered an ischemic stroke, which occurs when a blood vessel becomes 

blocked, depriving necessary blood supply to an area in the brain. This is different from a 

hemorrhagic stroke, in which a blood vessel ruptures, placing pressure on the surrounding 

brain cells. A TIA, like an ischemic stroke, blocks blood flow to one or more areas in the 

brain; but unlike a stroke, the blockage is temporary. A TIA is a warning sign for an 

impending stroke. Plaintiffs claimed the stroke was avoidable had DeBrot acted within 

the standard of care during Barbara's December visits because (1) he would have 

discovered the blockage in Barbara's carotid artery by listening to the artery or ordering 

an ultrasound or Doppler examination; or (2) he would have placed Barbara on aspirin 

therapy, which reduces the ischemic stroke risk.
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A jury found DeBrot at fault and awarded Barbara's estate, her husband, and 

children economic and noneconomic damages. The district court entered judgment 

against DeBrot for damages totaling $907,484.69. DeBrot appealed.

Before the Court of Appeals, DeBrot argued for reversal claiming: (1) the district 

court did not properly instruct the jury on causation and the evidence required to prove it;

(2) the court instructed the jury it could not assign fault to plaintiffs; (3) plaintiffs' 

counsel made prejudicial remarks during closing arguments; (4) the court permitted 

plaintiffs' experts to redefine the duty of care owed to Barbara; and (5) the court erred in 

making various evidentiary rulings. The panel affirmed. Castleberry, 2016 WL 1614018, 

at *30.

DeBrot filed a petition for review with this court, which we granted. Jurisdiction is 

proper. See 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).

ISSUES NOT PROPERLY BEFORE THIS COURT

We begin by defining the issues because DeBrot's supplemental brief, filed after 

this court granted review, argued questions not itemized as being erroneously decided by 

the Court of Appeals. Plaintiffs objected to this. Our rule states:

"An order granting review may limit the issues on review. If review is not limited, the 

issues before the Supreme Court include all issues properly before the Court of Appeals 

which the petition for review or cross-petition allege were decided erroneously by the 

Court of Appeals. In civil cases, the Supreme Court may, but need not, consider other 

issues that were presented to the Court of Appeals and that the parties have preserved for 

review." (Emphasis added.) Supreme Court Rule 8.03(h)(1) (2018 Kan. S. Ct. R. 56).
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The rules also explain how petitions for review are to be drafted. Rule 8.03(a)(4) 

states:

"The petition must contain concise statements of the following, in the order indicated:

. . . .

"(C) A statement of the issues decided by the Court of Appeals of which review is 

sought. The court will not consider issues not presented or fairly included in the petition.

The court, however, may address a plain error not presented. In a civil case, the petitioner 

also must list, separately and without argument, additional issues decided by the district 

court which were presented to, but not decided by, the Court of Appeals, which the 

petitioner wishes to have determined if review is granted." (Emphasis added.) Supreme 

Court Rule 8.03(a)(4) (2018 Kan. S. Ct. R. 54). 

In DeBrot's petition for review, he stated in his "Statement of Issues For Which 

Review Is Sought" as follows:

"Although Dr. DeBrot believes all of the issues raised in this appeal should be 

considered, the following particularly merit review:

"1. Whether the PIK recommended instructions on causation are fundamentally 

flawed, in that they do not correctly state the law of proximate cause?

"2. Whether the Court of Appeals erred by failing to address the prejudicial impact 

of plaintiffs' improper 'Reptile Litigation' arguments in light of the overall theme 

of plaintiffs' case and applied the wrong legal standard?

"3. Whether the Court of Appeals incorrectly upheld the trial court in allowing 

expert witnesses to redefine the legal duty of a physician?" (Emphasis added.)
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After review was granted, DeBrot included a section in his supplemental brief 

entitled, "The Court of Appeals Erred in Rejecting Defendant's Contentions as to Several 

Evidentiary Issues." Similarly, DeBrot argued in his supplemental brief that the panel

erred in rejecting his argument that the district court should have instructed the jury that 

its causation findings had to be based on expert testimony. DeBrot never explained why 

he included these issues in his supplemental brief nor did he explain their earlier omission 

from his petition for review or his reply in support of that petition for review.

When asked at oral argument about these omissions, DeBrot's counsel conceded 

the additional issues were not raised in the petition for review but hoped the introductory 

phrase—"Dr. DeBrot believes all of the issues raised in this appeal should be 

considered"—was sufficient to overcome plaintiffs' objection. 

"A party aggrieved by a decision of the Court of Appeals on a particular issue 

must seek review in order to preserve the matter for Kansas Supreme Court review." 

Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 172, 298 P.3d 1120 (2013). We 

hold that DeBrot failed to preserve the arguments regarding the evidentiary issues, the 

question regarding limiting causation evidence to experts, and the instruction that 

plaintiffs were not at fault. See Bullock v. BNSF Railway Co., 306 Kan. 916, 920, 399 

P.3d 148 (2017) (quoting Supreme Court Rule 8.03[h][1], which states "'[t]he issues 

before the Supreme Court include all issues properly before the Court of Appeals which 

the petition for review or cross-petition allege were decided erroneously by the Court of 

Appeals" to limit the issues to be addressed); Chism v. Protective Life Ins. Co., 290 Kan. 

645, Syl. ¶ 1, 234 P.3d 780 (2010) ("In a civil case, when the Kansas Supreme Court 

grants a petition requesting review of a Court of Appeals' decision . . . only issues

presented in the petition, or fairly included therein, will be considered.").
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We note Rule 8.03(h)(1) recites, in part, "In civil cases, the Supreme Court may, 

but need not, consider other issues that were presented to the Court of Appeals and that 

the parties have preserved for review." This discretion ties to Rule 8.03(a)(4)(C), which 

requires parties to identify and separately list any issues presented to—but not decided 

by—the Court of Appeals that the party believes the Supreme Court should consider in its 

review. Rule 8.03(h)(1) is not a stealth mechanism to excuse the specificity required by 

Rule 8.03(a)(4) and our other rules controlling the review process. Similarly, we do not 

consider DeBrot's introductory phrase quoted above as sufficient to be considered "fairly 

included" in the petition.

To view this otherwise would do a disservice to the other parties who must decide

whether to oppose review. They should not have to guess about this. See Rule 8.03(c) 

(granting a party opposing a petition or cross-petition right to file a response). In the same 

vein, uncertainty about the issues in controversy overly complicates this court's decisionmaking process when determining whether to grant review or grant review only on 

limited issues. 

We hold the questions subject to review are those itemized in DeBrot's petition for 

review: (1) whether it was error to instruct the jury that a party is at fault when the 

party's "negligence caused or contributed to the event which brought about the claims for 

damages"; (2) whether plaintiffs' counsel's closing arguments contained improper 

remarks and, if so, whether that requires reversal; and (3) whether expert standard-of-care 

testimony that, e.g., doctors must "err on the safe side" was improper and, if so, whether 

that requires reversal.
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THE CAUSATION INSTRUCTIONS

DeBrot argues the judgment must be reversed because the district court did not 

properly instruct the jury on causation. He contends the instructions permitted the jury to 

impose liability without finding Barbara's injuries would not have occurred "but-for" his 

negligence. We disagree.

Additional Facts

Two doctors testified as plaintiffs' experts: William Miser and Frank Yatsu. We 

must detail their testimony.

Miser concluded DeBrot departed from the standard of care by failing to consider 

TIA or stroke; failing to listen to Barbara's carotid artery for blockage; failing to recheck 

her abnormally high blood pressure at the December 19 visit; failing to comply with 

standards on hypertension treatment by using only one medication to treat her; failing to 

place her on aspirin; failing to do additional clinical tests that would have contradicted 

carpal tunnel as the sole explanation for her symptoms; and failing to explore or 

document the blurred vision and other symptoms she reported. He did not dispute 

DeBrot's carpal tunnel diagnosis but concluded it inadequately explained the symptoms. 

Miser believed the sudden numbness, particularly on the left side, was a 

neurological symptom that should have led DeBrot to address the stroke possibility. 

Miser said the negative changes between the two December visits—during which carpal 

tunnel treatment began—"scream[ed] out that something [was] going on." He noted 

Barbara's blurred vision and dizziness could have been caused by "showers of clots" 

during a TIA. He concluded DeBrot should have investigated and ruled out psychological 
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problems Barbara reported, even if they were not stroke related. Miser determined

DeBrot's "judgments [were] below the safe practice of medicine, standard of care."

Miser also testified DeBrot's failure to adequately treat Barbara's hypertension, to 

begin aspirin therapy, and to test for a carotid artery blockage all led to DeBrot's failure 

to recognize an impending stroke. Miser "absolutely believe[d]" aspirin "would have 

reduced and probably prevented, more probably right than wrong, [Barbara's] stroke, 

disabilities, and death." Miser said DeBrot's shortcomings caused Barbara's injuries 

because the carotid artery stenosis could have been addressed with a procedure that

restores blood flow through a blocked artery; and, if done soon enough after the 

blockage's onset, can reverse its symptoms. When performed, the operation averts a 

stroke by timely restoring blood flow. Miser explained other reasons for the stroke were

DeBrot's failure to follow up on Barbara's psychological changes and his failure to seek 

medical attention for the neurological symptoms. He said DeBrot's mismanagement of 

Barbara's blood pressure "was an important part of the reason she had a stroke, 

disabilities, and death."

Yatsu died before trial but his deposition was read. Yatsu disagreed with DeBrot's 

conclusion that Barbara had carpal tunnel syndrome. He believed DeBrot departed from 

the standard of care by failing to diagnose the TIA. In particular, he cited DeBrot's failure 

to adequately address her reported dizziness, blurred vision, and psychological 

symptoms, as well as her hypertension and dyslipidemia, which Yatsu said are known to 

provoke artery obstruction. Yatsu said it would have taken just a few seconds to listen to 

Barbara's carotid artery, but he could not say to a reasonable degree of certainty whether 

DeBrot would have heard a "bruit," indicating artery obstruction. Yatsu said a carotid 

duplex ultrasound would have revealed a stenosis. Yatsu said DeBrot should have 

ordered this test on December 6 based on Barbara's hand numbness and tingling, 
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dizziness, hypertension, and hyperlipidemia. Similarly, Yatsu believed DeBrot should 

have diagnosed Barbara's TIA on December 19.

Yatsu noted there is a surgical procedure to address stenosis that has a 65-75% 

chance of success. He said if DeBrot had discovered Barbara's stenosis and had Barbara 

undergone that surgery, it was more probable than not Barbara would have avoided the 

stroke. Yatsu said there was time for the surgery before the December 20 stroke. He 

believed if Barbara's TIA was treated on either visit, the stroke more probably than not 

could have been avoided. Yatsu testified Barbara's illnesses after the stroke were caused

by the stroke.

DeBrot's experts, Doctors Alexander Davis and Jeffrey Kaplan, testified DeBrot 

acted within the standard of care. Hinting at causation, Davis said blood pressure 

treatment to avoid strokes would occur over years and suggested a patient would not have 

a stroke "next month" if treatment was not altered in the next four visits. And he said 

blood pressure only directly causes hemorrhagic strokes, which was not the type Barbara

had. Kaplan's testimony did not address causation.

Jury Instructions

The district court gave the following relevant instructions:

"Instruction No. 7

"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."
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"Instruction No. 8

"In determining whether a primary care physician used the learning, skill, and conduct 

required, you are not permitted to arbitrarily set a standard of your own or determine this 

question from your personal knowledge. On questions of medical or scientific nature 

concerning the standard of care of a primary care physician, only those qualified as 

experts are permitted to testify. The standard of care is established by members of the 

same profession in the same or similar circumstances. It follows, therefore, that the only 

way you may properly find that standard is through evidence presented by expert 

witness."

"Instruction No. 12

"Negligence is defined in Instruction No. 7.

"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." (Emphases added.)

In addition, Instruction No. 11 advised jurors: "[DeBrot] further denies that any 

act or omission on his part was the cause of any of plaintiffs' claimed damages or 

injuries." (Emphasis added.) Instruction No. 14 informed: "If you find Doug Castleberry 

is entitled to recover damages, you should allow the amount of money which will 

reasonably compensate him for the loss caused by defendant." (Emphasis added.) And 

Instruction No. 15 advised: "If you find Susan Kraft or Scott Castleberry are entitled to 

recover damages, you should allow the amount of money which will reasonably 

compensate them for the loss caused by the defendant." (Emphasis added.)

DeBrot requested four modifications to the instructions to address his causation

concerns. First, he proposed an alternative instruction describing the ways plaintiffs 

claimed damages because of his fault. Second, he requested an instruction that "the 
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plaintiff in a medical malpractice case bears the burden of showing not only the 

defendant's negligence, but that the negligence caused the plaintiff's injury." (Emphasis 

added.) Third, he requested an instruction that "the proximate cause of an injury is that 

cause which in natural and continuous sequence produces the injury and without which 

the injury would not have occurred," and that

"[c]onduct is the proximate cause of an injury if the conduct is a substantial factor in 

bringing about the harm. Conduct is a substantial factor if it has such an effect in 

producing the harm as to lead a reasonable person to regard it as a cause of the harm so 

that the conduct in question may properly be regarded as being responsible for the 

injury."

Fourth, DeBrot requested a comparative fault instruction, which defined "fault" as 

negligence that "caused or contributed to the event which brought about the claims for 

damages." But unlike the instructions given, DeBrot's would have directed the jury to (1) 

determine if any party is at fault; (2) assign percentages of fault to each person found to 

be at fault; and (3) assign a total of 100% fault among those individuals. They would 

have had the jury consider comparative fault between him, Barbara, and plaintiffs and 

assign appropriate percentages of fault to each.

DeBrot also objected that the combination of Instruction No. 12's "contributed to" 

language and the absence of a proximate cause definition would imply that any small 

contribution might be adequate to find fault.

Court of Appeals Rulings

The panel held the district court erred by using the "caused or contributed to" 

language in Instruction No. 12. It noted this phrasing was adapted from PIK Civ. 4th 

105.01, which discusses comparative fault. The panel determined Instruction No. 12's use
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of this phrase was legally inappropriate because comparative fault was inapplicable to the 

current case. Castleberry, 2016 WL 1614018, at *8.

Even so, the panel concluded this error was harmless because there was no 

reasonable probability it affected the trial's outcome. 2016 WL 1614018, at *9. It

explained the "central issue" was whether DeBrot's negligence caused Barbara's injury. It 

further noted plaintiffs' experts testified DeBrot's failure to diagnose stroke led to 

Barbara's injury and death, while defendant's experts testified DeBrot did not deviate 

from the standard of care. The panel concluded:

"Simply put, the question presented to the jury was whether the defendant caused 

Barbara's injury. There was no other source presented that could have contributed to her 

injury. As a result, the defendant has failed to show a reasonable probability that the 

definition of causation given in [the instruction] affected the outcome of the trial." 2016 

WL 1614018, at *9.

The panel rejected DeBrot's claim that the court should have instructed the jury on 

proximate cause. It noted the PIK Committee specifically recommends no instruction 

defining causation. Given that, the panel concluded the district court did not err in 

refusing to give DeBrot's requested proximate cause instructions. 2016 WL 1614018, at 

*9.

Standard of Review

"'For jury instruction issues, the progression of analysis and corresponding 

standards of review on appeal are: (1) First, the appellate court should consider the 

reviewability of the issue from both jurisdiction and preservation viewpoints, exercising 

an unlimited standard of review; (2) next, the court should use an unlimited review to 

determine whether the instruction was legally appropriate; (3) then, the court should 

determine whether there was sufficient evidence, viewed in the light most favorable to 
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the defendant or the requesting party, that would have supported the instruction; and (4) 

finally, 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 (2011) . . . .' [Citation omitted.]" Foster v. Klaumann, 296 Kan. 

295, 301-02, 294 P.3d 223 (2013).

Discussion

Because DeBrot objected to the causation instructions and requested alternatives

that he now argues should have been given, he preserved these claims for appeal. See 

Foster, 296 Kan. at 302 (holding medical malpractice litigant preserved instructional 

error issue by objecting to instructions at trial); Wolfe Electric, Inc. v. Duckworth, 293 

Kan. 375, 403, 266 P.3d 516 (2011) (noting failure to raise issue before trial court would 

preclude litigant from raising it before appellate court).

To be legally appropriate, "'an instruction must always fairly and accurately state 

the applicable law, and an instruction that does not do so would be legally infirm."' State 

v. McDaniel, 306 Kan. 595, 615, 395 P.3d 429 (2017) (quoting State v. Plummer, 295 

Kan. 156, 161, 283 P.3d 202 [2012]). "If an instruction is legally appropriate and 

factually supported, a district court errs in refusing to grant a party's request to give the 

instruction." Plummer, 295 Kan. at 162.

"To establish medical malpractice, a plaintiff must show: (1) the 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. Miller 

v. Johnson, 295 Kan. 636, Syl. ¶ 15, 289 P.3d 1098 (2012)." Foster, 296 Kan. at 302.
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Our caselaw defines proximate cause as

"the cause that in a natural and continuous sequence, unbroken by any superseding cause, 

both produced the injury and was necessary for the injury. The injury must be the natural 

and probable consequence of the wrongful act. Yount v. Deibert, 282 Kan. 619, 624-25, 

147 P.3d 1065 (2006). Individuals are not responsible for all possible consequences of 

their negligence, but only those consequences that are probable according to ordinary and 

usual experience." Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008).

Proximate cause is ordinarily a factual question to be resolved by the trier of fact. 

Cullip v. Domann, 266 Kan. 550, 556, 972 P.2d 776 (1999). But see Hale, 287 Kan. at 

324 (noting when "all the evidence on which a party relies is undisputed and susceptible 

of only one inference, the question of proximate cause becomes a question of law").

"There are two components of proximate cause: causation in fact and legal 

causation. To establish causation in fact, a plaintiff must prove a cause-and-effect 

relationship between a defendant's conduct and the plaintiff's loss by presenting sufficient 

evidence from which a jury can conclude that more likely than not, but for defendant's 

conduct, the plaintiff's injuries would not have occurred. To prove legal causation, the 

plaintiff must show it was foreseeable that the defendant's conduct might create a risk of 

harm to the victim and that the result of that conduct and contributing causes was 

foreseeable." Drouhard-Nordhus v. Rosenquist, 301 Kan. 618, 623, 345 P.3d 281 (2015).

DeBrot argues the phrase "or contributed to" in the given instruction permitted the 

jury to impose liability on him without finding causation in fact, because "[n]othing in the 

ordinary meaning of the word contributed suggests the existence of the legally critical 

'but for' requirement." In other words, he asserts the instruction was not legally 

appropriate.
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The panel took a different tack but agreed the instruction was legally 

inappropriate. The panel held the error arose because this was not a comparative fault

case. From the panel's perspective, the district court used a definition from a pattern 

instruction involving a theory of liability inapplicable to the case. Castleberry, 2016 WL 

1614018, at *8-9.

This holding comes to us on review unchallenged by plaintiffs since they did not 

cross-petition for review. See Snider, 297 Kan. at 172 (challenge to Court of Appeals' 

holding not before Supreme Court on review when issue not raised in petition or crosspetition). Ordinarily, that would settle the matter. See Friends of Bethany Place v. City of 

Topeka, 297 Kan. 1112, 1121, 307 P.3d 1255 (2013) (litigant's failure to cross appeal for 

review of claim precluded its consideration). But in this instance, we cannot accept this 

conclusion because our logic in rejecting DeBrot's contentions so necessarily undercuts 

the panel's rationale that we end up concluding there was no error in the district court's 

instruction. See Burnette, 308 Kan. ___, Syl. ¶ 3 ("Any perceived distinction between the 

phrases 'causing an event' and 'contributing to an event' is a distinction without a 

difference.").

In Burnette, we considered causation instructions substantially similar to those 

given in the current case. We concluded they were legally and factually appropriate, and 

rejected defense arguments substantially similar to those DeBrot raises. We held the 

instructions correctly communicated the cause-in-fact requirement under Kansas law. 

Burnette, slip op. at 19 ("[T]he instructions told the jury that to impose liability for [the 

decedent's] suicide on either defendant, it would have to find defendant's negligence was 

a but-for cause of his death."). We also concluded:

"The 'caused or contributed to' language in Instruction No. 11 permitted the jury 

to assign fault only if a defendant's negligence 'ha[d] a share in' producing the injury. 
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[Lollis v. Superior Sales Co., Inc., 224 Kan. 251, 263, 580 P.2d 423 (1978)]. If the jury 

believed the injury would have occurred without a defendant's negligence, i.e., the 

negligence did not have a share in producing the injury, the instructions told the jury to 

assign no fault to that defendant." Burnette, slip op. at 20.

We could make these same points here when addressing whether the error the 

panel found was harmless. But in the end, since we would logically circle back to the real 

point, i.e., it was not error for the district court to give the instructions, it is simpler to 

acknowledge the instructions given were legally appropriate. And since there was no 

error, there necessarily was no reasonable probability the jury imposed fault based on 

anything less than a "but-for" causal relationship between DeBrot's negligence and the 

injuries and damages.

Regardless, we note under this case's facts, the error DeBrot claims could not 

possibly have required reversal. The causation evidence was that treatment within the 

standard of care probably would have averted the stroke. For the jury to conclude 

DeBrot's negligence had anything to do with the stroke, it would have to have concluded 

the stroke would not have occurred if DeBrot had recognized it was imminent and taken 

appropriate measures to address the situation. We affirm on this issue. 

IMPROPER CLOSING ARGUMENT 

DeBrot next argues he deserves a new trial because plaintiffs' counsel improperly 

suggested during closing that the verdict would have either a beneficial or adverse impact 

on the community depending on how the jury found. Counsel tied the verdict to whether 

the jury wanted "safe medicine or unsafe medicine." We agree this was error but hold it 

was harmless. 
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Additional Facts

In closing arguments, plaintiffs' counsel listed the "available and affordable tools 

and tests and treatments that were not used or performed" during the two visits in 

December. He claimed these were "designed . . . to prevent tragedies such as occurred in 

this matter." Counsel faulted DeBrot for not listening to Barbara's carotid artery for signs 

of stenosis and for not using a blood pressure monitor. He argued a carotid Doppler is 

"completely safe" and noninvasive. He criticized DeBrot for failing to consult a 

neurologist about the "safest thing" to do under the circumstances. And he blamed 

DeBrot for not simply admitting Barbara to the hospital for tests, which he argued would 

have been "the safest thing to do." Counsel also claimed DeBrot prevented Barbara from 

"participation in her own safety" by failing to talk to her about the risks of not running 

the tests. Finally, he faulted DeBrot for deciding to "guess instead of test," failing to fully 

explore Barbara's symptoms, and failing "to use the common sense test" when he 

dismissed Barbara's concern about having a stroke without investigation.

This standard of care argument culminated with counsel's remark: "When we 

establish standards of care in this case, as a jury you'll want to decide if you want safe 

medicine or unsafe medicine." (Emphasis added.) Defense counsel objected at this point, 

but the court overruled it because "[t]he jury [had] been instructed to follow the 

instructions." Plaintiffs' counsel then returned to the "safety" theme several more times, 

by asserting:

"The evidence is clear. DeBrot broke several basic and foundation cornerstones 

of the rules of safe medical practice which resulted in the care being below the standard 

of care. . . .

"We presented evidence that doctors should always provide patients a margin of 

safety. We presented evidence that doctors must always err on the side of safety. Don't 
20

drive right on the edge of the road. Give yourself a margin of safety. Don't follow the 

truck right behind it. Give yourself a margin of safety. . . . And then you can never 

needlessly endanger a patient. . . . 

"And what was the danger of sending her for the carotid duplex test? No 

danger. . . . What was the danger of picking up the phone and saying this woman thinks 

she has a stroke, doctor neurologist, here's what I've done, do you think I've missed any 

steps . . . [?]"

Counsel summarized why the jury should find DeBrot liable by stating, "So 

Barbara Castleberry's life story is in your hands. You'll either right a wrong or you'll say 

with your verdict that DeBrot was practicing safe and reasonable [medicine] and within 

the standard of care." Later, during a narrative about Barbara's life leading up to the 

stroke, counsel said "a reasonable doctor who wants to err on the safe side" would ask

"what is the cause of this[?] And if he rushes to judgment and says it's carpal tunnel 

syndrome, he better remember, you know, you can have carpal tunnel syndrome and a 

TIA at the same time, I haven't ruled anything dangerous out, I have played God, I have 

chosen this disease for this woman without being safe, no margin of safety, no erring on 

the safe side."

In rebuttal, plaintiffs' counsel quoted extensively from Yatsu's testimony 

including, "[t]o say that dizziness and all of [Barbara's] symptoms are not stroke related" 

was not "safe medicine." He argued, "Our effort here was to educate you, not to scare 

you, as somebody says, but to educate you so you could make a fair, appropriate, safe 

decision about whether or not he acted within the standard of care." Counsel then told the 

jury,

"Here's a piece of information we believe we've provided to you, not to scare you 

but to put you on notice as to the knowledge that Dr. DeBrot had. 60.2 percent of strokes 
21

occur in women. 60.2 percent occur in women. When you go to the doctor's office, did 

you know 60.2 percent were going to be on your side?"

Counsel reminded the jury Barbara asked DeBrot about stroke risk, but there was 

no mention of that inquiry in her medical records. He argued if DeBrot went on vacation 

the next doctor would not know Barbara had been concerned about stroke. He asked the 

jury, "How is that safe and prudent care?"

Then, counsel addressed DeBrot's failure to recheck Barbara's blood pressure after 

a high initial reading during the December 19 consultation. He argued the medical 

literature established this should have been done, "[a]nd would anybody think that they'd 

want the doctor to treat somebody against the guidelines? Is that what you would think 

would be reasonable, prudent, safe, on-the-side-of-the-patient medicine . . . ?"

In analyzing the closing arguments on appeal, the panel did not decide whether the 

"safe medicine or unsafe medicine" comment was improper but concluded instead it "was 

arguably a prohibited golden rule argument." Castleberry, 2016 WL 1614018, at *11. 

Nevertheless, the panel reasoned reversal was not required, even if the comment was 

improper, because DeBrot "failed to argue, let alone establish a likelihood, that this 

improper remark . . . changed the result of the trial." 2016 WL 1614018, at *11.

Standard of Review

In civil cases, "counsel are granted latitude in making arguments. '"This court has 

consistently followed the general rule against imposing narrow and unreasonable 

limitations upon argument of counsel made to the jury."'" Bullock v. BNSF Railway Co., 

306 Kan. 916, 942, 399 P.3d 148 (2017). But if counsel injects error into the trial by 

exceeding that latitude, a court must determine whether that error prejudiced a party's 
22

right to a fair trial. 306 Kan. at 943. The test is whether "'there is a reasonable probability 

that the error will or did affect the outcome of the trial in light of the entire record.'" 306 

Kan. at 943 (quoting Siruta v. Siruta, 301 Kan. 757, 772-73, 348 P.3d 549 [2015]).

Discussion

DeBrot argues the panel erred by not reversing the jury verdict and ordering a new 

trial because the "safe medicine or unsafe medicine" argument improperly asked the jury 

to base its decision on achieving a social goal and was not harmless since it was tied to 

plaintiffs' litigation strategy. Plaintiffs argue the comments were proper because they 

were directed at the jury's decision on the standard of care, and there was evidence 

DeBrot violated that standard of care by practicing unsafe medicine.

The court addressed a similar comment in Bullock. There, plaintiff's counsel 

argued: 

"'Justice is an ideal that is given meaning by your values. You decide what justice is 

based on what you feel and what values you have, and you learn those values within your 

community. And your verdict, whatever your verdict is, the justice you decide upon will 

reflect your values and the values of this community. It will speak to the values of how an 

employer should treat an employee, what kinds of conditions of work and employment 

. . . a person in this community is entitled to, and that's really important stuff.' (Emphases 

added.)" 306 Kan. at 942.

The Bullock court concluded the comment was improper because the "'community 

values'" reference "'suggested the jury could improperly decide the case based on 

something other than the law contained in the instructions.'" 306 Kan. at 945. It compared

the comment to an erroneous jury instruction in a different case, telling the jury to "'act 

upon [its] conscientious feeling about what is a fair result in this case and acquit the 
23

defendant if you believe that justice requires such a result.'" 306 Kan. at 944 (quoting 

State v. McClanahan, 212 Kan. 208, 209, 510 P.2d 153 [1973]). The court further 

reasoned that commentary about the verdict's reflection of the community's "'values of 

how an employer should treat an employee'" was improper because "[j]uries are tasked 

with deciding cases based on the evidence presented by counsel and the law instructed by 

the court, not with protecting their communities through their verdicts." 306 Kan. at 945.

In Sledd v. Reed, 246 Kan. 112, 114, 785 P.2d 694 (1990), the court held it was 

improper to argue "'[i]f we hold Doctor Reed responsible and other doctors responsible 

who do their best and who make their best judgments as they treat these kinds of cases, 

no one will answer these calls.'" The court reasoned the argument was calculated to 

inflame jurors' passions or prejudices by predicting their verdict's consequences. The 

argument was "inappropriate, [and] had no bearing upon the issues before the jury." 246 

Kan. at 116-17.

The "safe medicine or unsafe medicine" argument is similar to those in Bullock

and Sledd. It invited the jury to determine whether DeBrot's conduct met the standard of 

care based on whether it desired "safe medicine or unsafe medicine," instead of the 

evidence and the law. The evidence included expert testimony that, e.g., DeBrot's failure 

to "err on the safe side" contributed to the experts' opinions that he deviated from the 

standard of care. But it did not go to the jury's values about whether they wanted "safe 

medicine or unsafe medicine." As phrased, the comment implied the jury's decision could 

reach beyond the confines of the case and impact medical care elsewhere. As presented in 

this case, the comments were error. See Biglow v. Eidenberg, 308 Kan. ___, ___ P.3d ___ 

(this day decided), slip op. at 29 (holding district court within discretion to prohibit 

during closing argument a "broad and abstract statement that a physician's job is to 'take 

care of people and help people, but really the safety'" because it did nothing to establish a 

deviation from the standard of care).
24

The next question is whether there is a reasonable probability this error affected 

the verdict. The panel concluded reversal was not required because DeBrot failed to 

argue the remark prejudiced him. DeBrot argues the panel improperly placed the burden 

on him and was wrong about whether he asserted prejudice, directing our attention to his 

Court of Appeals brief. Plaintiffs argue any error was harmless.

We agree with DeBrot that the panel misallocated the burden of proving 

harmlessness. In Bullock, the court took its standard of review from the reasonable 

probability test articulated in State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). 

Bullock, 306 Kan. at 944. In analogous situations using the test in the jury instruction 

context, we have made clear the party benefiting from the error has the burden to show 

harmlessness when the other party objected to an erroneous instruction. Siruta, 301 Kan. 

at 772. In this case, if anyone benefitted from the improper argument it was plaintiffs, so 

they have the burden to demonstrate the error was harmless.

That said, we hold the panel correctly concluded any error was harmless. In Sledd, 

the improper argument that liability would deprive the community of doctors did not 

require reversal because the matter was "thoroughly tried" by competent counsel; the 

central issue was whether the doctor committed malpractice; the trial was several days 

long and consisted of over 600 pages of testimony; the experts were well respected; the 

jurors heard the testimony and asked questions during deliberations that showed they 

understood the issues; and the jury was instructed to disregard arguments not based on 

the evidence. 246 Kan. at 117-18; see also Thompson v. KFB Ins. Co., 252 Kan. 1010, 

1028-29, 850 P.2d 773 (1993) (holding counsel's erroneous closing arguments were 

harmless because "[t]he charges of counsel misconduct . . . certainly are not of the same 

magnitude as those complained of in" Walker v. Holiday Lanes, 196 Kan. 513, 413 P.2d 

63 [1966], and Glynos v. Jagoda, 249 Kan. 473, 819 P.2d 1202 [1991]). 
25

DeBrot argues the comment about patient safety "represented the linchpin of 

plaintiffs' entire litigation theory." He argues this theme was the "final step in a 'Reptile 

Litigation' strategy," which he argues is designed to encourage juries to decide cases 

"based upon fear, generated by plaintiff's [sic] counsel, that a verdict in favor of the 

defendant will harm the safety of the community, and thus the juror." The differences 

between Sledd and this case lend some merit to DeBrot's argument.

While the Sledd court viewed the improper commentary as divorced from that 

case's central issue, here the remark went directly to its core—whether DeBrot violated 

the standard of care. It did so by tying the answer to the jurors' personal values on how 

"safe" medical practice should be. Plaintiffs' counsel urged the jury to make a "safe 

decision," which lends credence to DeBrot's claim that the remark was strategic. And the 

district court's failure to sustain DeBrot's objection did nothing to mitigate the prejudice 

from that remark. 

Nevertheless, we conclude there is no reasonable probability this error affected the 

trial's outcome in light of the entire record. The call to decide the case on improper 

grounds was much more subtle than those in Sledd and Bullock. And when made, the 

court promptly noted the jury had been instructed to follow the court's instructions. Those 

instructions properly directed the jury to base its standard-of-care findings on expert 

testimony, which focused on the care DeBrot rendered rather than community values.

Finally, and as discussed with the next issue, "patient safety" was a theme embedded

throughout the expert testimony—frequently without objection. This tied the "safety"

theme—mentioned during closing arguments by both sides—within the context of 

explaining that testimony. Accordingly, the error was harmless.
26

PROPER ADMISSION OF EXPERT TESTIMONY

The final issue is whether plaintiffs' expert testimony impermissibly redefined the 

legal duty a physician owes to a patient. We hold there was no error.

Additional Facts

DeBrot identifies five instances in which the district court overruled objections to 

testimony he believed redefined the standard of care. Except for the fifth instance, 

DeBrot objected on grounds the questions misstated the legal standard. In the fifth, he 

objected that the witness was not designated as an expert.

In the first instance, the court ruled it would permit a question-and-answer 

exchange from DeBrot's deposition to be read in which plaintiffs' counsel asked DeBrot 

"[o]n December 6th, were you permitted to needlessly endanger patients?" 

Second, the court allowed Miser to testify he took "into consideration the caveat 

that a doctor is to never needlessly endanger a patient," must provide a margin of safety, 

and must err on the side of safety in his "opinion that [DeBrot] deviated from the 

standard of care . . . ."

Third, the court permitted plaintiffs' counsel to ask defense expert Davis how it 

was "safer for [Barbara] not to have" her carotid artery listened to and whether that was 

"a safer way to treat the patient." Davis responded, "It was appropriate." Plaintiffs' 

counsel continued, asking "[w]as it safer?" Davis responded that safety is important, but 

everything was appropriate and within the standard of care because listening to the 

carotid arteries was not expected and "not considered good medicine" at each patient 

contact.
27

Fourth, during plaintiffs' cross-examination of defense expert Kaplan, the court 

permitted plaintiffs' counsel to elicit testimony that Kaplan "err[ed] on the conservative 

safe side" in arriving at his opinions.

And, fifth, the court permitted a physician who treated Barbara before DeBrot to 

testify he was "trying to avoid needlessly endangering" her while treating her.

Although these are the particular instances that drew DeBrot's objections, the 

panel noted,

"the record reflects numerous occasions where similar evidence was introduced . . . 

without objection. Indeed, Dr. Miser testified repeatedly, without objection, that the 

standard of care required the defendant to take 'safety steps,' that safety was 'the number 

one factor in treating people,' that the standard of care required the defendant to have 

good reason to 'deviate from these safety rules' and fail to obey 'safety features,' and that 

the standard of care involved 'the safe practice of medicine.'" Castleberry, 2016 WL 

1614018, at *14.

The panel concluded the district court did not err by permitting these questions 

because they went to the standard of care, which is defined by experts, while the duty of 

care is defined by law. The panel held the evidence "defined the applicable standard of 

care, as an expert witness is allowed—and required—to do," so the district court did not 

abuse its discretion in admitting it. Castleberry, 2016 WL 1614018, at *15.

Standard of Review

Evidentiary rulings follow a multistep analysis:
28

"'"Generally, when considering a challenge to a district judge's admission of 

evidence, an appellate court must first consider relevance. Unless prohibited by statute, 

constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-

407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. 

K.S.A. 60-401(b). To establish relevance, there must be some material or logical 

connection between the asserted facts and the inference or result they are intended to 

establish. [Citation omitted]."' Mooney, 283 Kan. at 620 (quoting State v. Gunby, 282 

Kan. 39, 47, 144 P.3d 647 [2006]).

"'[T]he question of whether evidence is probative is judged under an abuse of 

discretion standard; materiality is judged under a de novo standard.' Shadden, 290 Kan. at

817 (citing State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 [2008]). The next step is to 

determine which additional rules of evidence or other legal principles govern

admissibility. 'On appeal, this conclusion is reviewed de novo.' 290 Kan. at 817 (citing

Boldridge v. State, 289 Kan. 618, Syl. ¶ 10, 215 P.3d 585 [2009]). '"[E]videntiary rules 

governing admission and exclusion may be applied either as a matter of law or in the 

exercise of the district judge's discretion, depending on the contours of the rule in

question."' Mooney, 283 Kan. at 620 (quoting Gunby, 282 Kan. at 47)." Manhattan Ice & 

Cold Storage v. City of Manhattan, 294 Kan. 60, 69-70, 274 P.3d 609 (2012).

"Typically the admission of expert testimony is reviewed under an abuse of 

discretion standard and depends on finding that the testimony will be helpful to the jury." 

Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 444, 228 P.3d 1048 (2010).

Error in the admission or exclusion of evidence does not warrant reversal unless 

"there is a 'reasonable probability that the error will or did affect the outcome of the trial 

in light of the entire record.'" State v. McCullough, 293 Kan. 970, 981-82, 270 P.3d 1142 

(2012).
29

Discussion

DeBrot argues the judgment must be reversed because the district court admitted 

expert testimony he claims redefined the duty of care by supplanting reasonable care 

under the circumstances with a more onerous duty, e.g., to "err on the conservative, safe 

side." He claims the testimony was not "relevant to questions of fact involving the legally 

defined standard of care" and instead redefined the duty of care "into a duty to do 

'whatever is safest.'"

At the time of trial, K.S.A. 60-456(b) provided,

"If the witness is testifying as an expert, testimony of the witness in the form of opinions 

or inferences is limited to such opinions as the judge finds are (1) based on facts or data 

perceived by or personally known or made known to the witness at the hearing and (2) 

within the scope of the special knowledge, skill, experience or training possessed by the 

witness."

The panel did not perform a relevance analysis, but instead framed the issue as 

whether the district court abused its discretion admitting the opinion testimony "under 

K.S.A. 2015 Supp. 60-456." Castleberry, 2016 WL 1614018, at *14. The panel reasoned 

that since expert testimony was required to prove the standard of care, testimony that this

standard involved "'err[ing] on the side of safety'" did not "create a new legal standard but 

instead defined the applicable standard of care, as an expert witness is allowed—and 

required—to do." 2016 WL 1614018, at *15. The panel's analytical path was sound.

When a district court permits a witness to testify as an expert, "the court cannot 

regulate the factors or mental process used by the expert in reaching his opinion or 

conclusion on the case. The factors and mental processes used by the expert 'can only be 

challenged by cross-examination testing the witness' credibility.'" Pope v. Ransdell, 251 
30

Kan. 112, 123, 833 P.2d 965 (1992) (quoting City of Bonner Springs v. Coleman, 206 

Kan. 689, 695, 481 P.2d 950 [1971]).

In Schlaikjer v. Kaplan, 296 Kan. 456, 469, 293 P.3d 155 (2013), the trial court 

granted a motion in limine that "testimony based on physician treatment preferences" 

could not be introduced on direct examination, but might be explored on crossexamination to test credibility. The Schlaikjer court affirmed the district court's decision 

"insofar as it addressed physician preference testimony admitted on direct examination 

for the purpose of proving the applicable standard of care." 296 Kan. at 470. The 

Schlaikjer court relied on Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 

510 P.2d 190 (1973), in which the court affirmed a directed verdict based on plaintiff's 

failure to adduce testimony sufficient to establish the applicable standard of care or 

breach when the expert testified only what his practices were with respect to patients in 

circumstances similar to the plaintiff's. But the expert "stopped short of testifying that 

defendant's methods constituted unsound medical practice," so the evidence was 

"'insufficient to establish . . . the "degree of learning and skill ordinarily possessed by 

members of his profession and of his school of medicine in the community where he 

practices or similar communities."'" Schlaikjer, 296 Kan. at 470 (quoting Karrigan, 212 

Kan. at 50).

In Pope, the conservator for a minor child born with developmental disabilities 

sued the mother's doctor for negligent obstetrical care. A defense expert testified the 

injuries were caused by the mother's drug use. On cross-examination, plaintiff's counsel 

attempted to ask whether it was "possible" for various conditions to cause injury. 

Defendant objected that an expert's opinion testimony must be based on reasonable 

medical probabilities, not possibilities. The district court sustained the objection. On 

appeal, the court drew a distinction between opinions that must be "within a reasonable 

medical probability," and the "factors or mental processes used by the expert in reaching 
31

his opinion or conclusion on the case." 251 Kan. at 123. The court held the crossexamination would have been appropriate, so the district court erred in prohibiting it. 251 

Kan. at 124.

The testimony to which DeBrot objects as misstating the legal standard is like the 

testimony in Pope. It tended to show—albeit in general terms—the conduct required by 

the legal duty flowing from DeBrot to Barbara. It did not tend to show DeBrot was 

subject to a standard other than the standard applicable to a physician in like 

circumstances. Moreover, the claim that it redefines the standard of care to impose a duty 

of ultra-vigilance is dubious. Like the cross-examination questions in Pope, and unlike 

the physician-preference testimony in Karrigan, the questions were asked within the 

context of the witnesses' overarching opinions that DeBrot deviated from the standard of 

care. The questions about "margin of safety" and "erring on the safe side" illustrate the 

experts' mental processes in reaching their conclusions.

Because this testimony was within the scope of permissible expert testimony, the 

district court did not abuse its discretion admitting it. 

Neither was there an abuse of discretion overruling DeBrot's objection that a 

treating physician should have been designated as an expert before being permitted to 

testify he was "trying to avoid needlessly endangering" her while treating her. The 

testimony related to that doctor's own actions and did not purport to establish the standard 

of care DeBrot owed to Barbara under the circumstances or whether DeBrot deviated 

from the standard. Even if inadmissible for some other reason, the testimony was not 

objectionable for lack of an expert witness designation. See K.S.A. 60-404 (specific 

ground for objection must be stated); State v. Robinson, 306 Kan. 1012, 399 P.3d 194 

(2017) (holding appellant could not argue on appeal grounds for exclusion of evidence on 

appeal that were not included in trial objection).
32

Affirmed.

* * * 

BEIER, J., concurring: I agree with the majority's ultimate outcome and much of 

its reasoning on this case. Still, I must write separately because I cannot agree with its 

application of our Rule 8.03 (2018 Kan. S. Ct. R. 53)—soon to be amended for overdue 

clarification and improvement—to prevent consideration of other issues the defendant 

pursued before the Court of Appeals. Ultimately these other issues cannot carry the day 

for the defendant, but I believe he has a right to have them analyzed by the full court.

Under the current version of Rule 8.03(h)(1), this court may choose when it grants 

a petition for review to limit the issues it will consider. We did not make that choice in 

this case. In such a situation, as quoted by the majority, "the issues before the Supreme 

Court include all issues properly before the Court of Appeals which the petition for 

review . . . allege[s] were decided erroneously by the Court of Appeals." In addition, the 

rule provides, "In civil cases, the Supreme Court may, but need not, consider other issues 

that were presented to the Court of Appeals and that the parties have preserved for 

review." (2018 Kan. S. Ct. R. 56.)

As the majority also acknowledges, defendant Brian L. DeBrot, M.D., filed a 

petition for review that specifically said that he believed "all of the issues raised in this 

appeal should be considered." He then said that specific issues "particularly" merited 

review. It is only this latter set of issues that the majority is willing to entertain. 

The majority is correct that DeBrot failed to "list, separately and without 

argument," the issues that did not fall into the category of "particularly" meriting review 
33

as "additional issues decided by the district court which were presented to, but not 

decided by, the Court of Appeals, which the petitioner wishes to have determined if 

review is granted" under Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54). But I do not think 

that this minor deviation is deserving of the ultimate punishment of being ignored. It may 

be a bit inconvenient for us to review DeBrot's brief filed before the Court of Appeals 

and the panel's decision to determine the additional issues his petition for review was 

referring to when he said he believed that "all of the issues raised in this appeal should be 

considered," but mere inconvenience is hardly a worthy rationale for the majority's 

rigidity.

Thus I would reach the merits on all of the preserved issues that DeBrot raised in 

the Court of Appeals. His petition for review's reference to his belief that all issues 

should be considered plus his list of issues "particularly" meriting review qualified under 

Rule 8.03(a)(4)(C) (2018 Kan. S. Ct. R. 54) as a "statement of the issues decided by the 

Court of Appeals of which review is sought," and we should not treat certain issues as 

"not presented or fairly included in the petition" for review. Our procedural stinginess is 

simply unwarranted, particularly when we take up an issue on which the plaintiffs did not 

file a cross-petition, i.e., the Court of Appeals panel's decision that causation instructions 

were erroneous.

The additional issues on which DeBrot sought review are not nothing. They are 

numerous and, in at least a few cases, meritorious. They are:

• Whether a jury instruction should have been modified to say that, in a

medical malpractice case, causation must be established through expert

testimony. 

• Whether it was error to instruct the jury that plaintiffs were not at fault as a

matter of law. 
34

• Whether plaintiffs' counsel's closing argument about DeBrot probably

being rushed during Barbara Castleberry's December 19, 2007, visit

because he wanted to get to a holiday party was error. 

• Whether plaintiffs' counsel unnecessarily called for two bench conferences

during defense counsel's closing argument. 

• Whether plaintiffs' counsel's use of a denial in response to a pretrial request

for admissions in an effort to impeach DeBrot was error.

• Whether plaintiffs' counsel's questions regarding informed consent were

error.

• Whether it was error to permit plaintiffs' counsel to read a sentence from a

letter written by an author of an article regarded by an expert witness as

authoritative, when the letter was solicited by plaintiffs' counsel and was

not admitted into evidence. 

• Whether it was error to permit plaintiffs' counsel's cross-examination to 

exceed the scope of direct testimony.

• Whether several other pieces of evidence should have been excluded or

lines of questioning prohibited, some because they allegedly violated limine 

orders; these issues focused on questioning about another doctor's personal 

treatment preference, a mention of DeBrot's credibility, a line of 

questioning about conversations between defense counsel and a defense 

expert, an expert's reference to the annual number of deaths attributable to 

medical error, questions posed to Castleberry's son about overheard 

conversations among health care personnel, and other questions suggesting 

that there was an inappropriate relationship between DeBrot and a nurse.

• Whether 17 exhibits should have been admissible under the learned treatise

exception to the hearsay rule.

• Whether cumulative error requires reversal and remand for a new trial. 
35

The first of these issues untouched by the majority concerns the district judge's 

refusal to modify Instruction 8 at DeBrot's request to say that a medical malpractice case 

not only requires expert testimony to establish the standard of care but also to establish 

causation. DeBrot is correct that this is Kansas law. See Sharples v. Roberts, 249 Kan. 

286, 292, 816 P.2d 390 (1991); Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 

756 P.2d 416 (1988). He is also correct that even an otherwise factually and legally 

appropriate instruction can be misleading and erroneous if it is incomplete. The district 

judge's refusal to modify the instruction was error, and the Court of Appeals panel was 

wrong when it employed an alternative, nonmeritorious argument made by DeBrot on 

this issue as a straw man to rule in plaintiffs' favor.

I would not hold that this error is reversible standing alone. My review of the trial 

record persuades me that causation was simply not the fulcrum of this case. Rather, it 

turned on identification of the standard of care and on whether DeBrot breached it. 

Nearly all of defense counsel's lengthy closing argument was focused on standard of care 

and breach; it included a very brief mention of damages near its conclusion. On 

causation, defense counsel was silent. He no doubt appreciated that there was never a 

question about Castleberry's subsequent stroke causing all of her and her heirs' damages. 

He correctly focused on the true question: Should DeBrot have seen the stroke coming 

and reacted in a way that would have prevented it or minimized its ultimately disastrous 

consequences?

Regarding the issue of whether plaintiffs' counsel's argument about DeBrot's 

probable hurry to a holiday party was error, I would agree with the Court of Appeals 

panel that it was. The comment was unsupported in the evidence and effectively 

encouraged the jury to rely on impermissible inference stacking. State v. Banks, 306 Kan. 

854, 859, 397 P.3d 1195 (2017) (inference stacking prohibited); State v. Akins, 298 Kan. 
36

592, 601, 315 P.3d 868 (2014) (error to comment on facts not in evidence). I would hold 

that this error is not reversible standing alone.

I would part company from the Court of Appeals on whether plaintiffs' counsel 

should have been permitted to read from the letter from the author of an article regarded 

as authoritative by an expert. A letter solicited by counsel is not a learned treatise, even if 

the letter is written by a learned individual whose work is respected and relied upon by an 

expert witness. See K.S.A. 60-460(cc); see also State v. Baldwin, 36 Kan. 1, 17, 12 P. 318 

(1886) (authors do not write under oath; "grounds of belief and processes of reasoning 

cannot be tested by cross-examination"), cited in Wilson v. Knight, 26 Kan. App. 2d 226, 

229-30, 982 P.2d 400 (1999). Again, however, I would hold that this error is not 

reversible standing alone.

I would hold that additional error occurred when plaintiffs' counsel questioned 

Miser about his preference for whether he or a nurse performed a review of a patient's 

systems. The Court of Appeals initially said that the record was insufficient to support 

this appellate claim, but, if there was error, it was not reversible. I agree with the second 

part of its holding because the error was cured in part by counsel's rephrasing of a 

question after a defense objection; the error is not reversible standing alone. 

I would also agree with the Court of Appeals that a reference to the number of 

deaths attributable to medical error by expert William Miser, M.D., was a violation of the 

district court's limine order. Again, I would hold that this error is not reversible standing 

alone. It was brief and isolated, and no participant in the trial ever returned to it.

This brings me to cumulative error. Walker v. Holiday Lanes, 196 Kan. 513, 520, 

413 P.2d 63 (1966) (Cumulative error is to be viewed "in relation to the record in its 

entirety" and necessitates reversal when the "various [errors] have so permeated and 
37

tainted the entire proceedings that [a party] has been deprived of the fair trial to which 

every litigant is entitled."). 

I would hold that the combination of the five errors I have listed with the error 

identified by the majority—plaintiffs' counsel's improper linkage between the verdict and 

whether the jury wanted "safe medicine or unsafe medicine"—does not require reversal 

under the cumulative error doctrine. But I think this case presents a close call, in part 

because I am also troubled by what a lawyer from an earlier generation might refer to at 

least two instances of "sharp practice" by plaintiffs' counsel. Although these instances fell 

short of the standard for an appellate court to identify them as legal error, they 

nevertheless would have had a tendency to undermine the overall fairness of the trial. 

Plaintiffs' counsel inappropriately questioned Castleberry's son about the fact that there 

were things he could not say in front of the jury, when the limitation on his testimony 

originated in a proper order in limine. This was too clever by half, as any alert juror 

would inevitably suspect that important, and possibly damning, information was being 

concealed. And plaintiffs' counsel's questions about any relationship between DeBrot and 

the nurse are simply not amenable to characterization as intended to elicit relevant 

evidence. 

LUCKERT and JOHNSON, JJ., join the foregoing concurrence.