272 Kan. 112 (2001) 31 P.3d 934

ASHLEY IRVIN, a Minor Child, by and through her Parents and Legal Guardians, DAVID IRVIN and KIM IRVIN, and DAVID IRVIN and KIM IRVIN, Individually, Appellants/Cross-appellees,
v.
LINDALL E. SMITH, M.D., Appellee/Cross-appellant,
and RICHARD C. GILMARTIN, M.D., Appellee.

No. 85,063.

Supreme Court of Kansas.

Opinion filed September 21, 2001.

*113 William J. Skepnek, of Skepnek Law Firm, P.A., of Lawrence, argued the cause, and Ted F. Fay, of the same firm, was with him on the briefs for appellant/cross-appellee.

Jay F. Fowler, of Foulston & Siefkin L.L.P., of Wichita, argued the cause, and Tmothy B. Mustaine and Holly A. Dyer, of the same firm, were with him on the briefs for appellee/cross-appellant Smith.

Steven C. Day, of Woodward, Hernandez, Roth & Day, of Wichita, argued the cause and was on the brief for appellee Gilmartin.

*114 The opinion of the court was delivered by

ABBOTT, J.:

This is a medical malpractice action arising from an undiagnosed ventriculoperitoneal shunt malfunction which ultimately caused permanent brain damage to Ashley Irvin. Irvin and her parents filed suit against several parties. The district court granted summary judgment in favor of Dr. Richard C. Gilmartin on the basis that there was no physician-patient relationship. All of the other parties have either been dismissed or settled prior to trial, except for the suit against Dr. Lindall E. Smith. The jury returned a defendant's verdict in favor of Smith. Irvin raises several issues on appeal. Smith has also filed a cross-appeal raising two issues.

Irvin was born 6 weeks premature with hydrocephalus, a condition which required the surgical placement of a ventriculoperitoneal or "VP" shunt. The shunt is a pump with a tube. The tube extends from the brain to the abdomen. The purpose of the shunt is to drain excess cerebrospinal fluid from the skull. Once the fluid is drained from the brain, it is reabsorbed into the body through the abdomen. Without the shunt, Irvin would die. With a properly operating shunt, however, a hydrocephalic can live a normal life. The shunt was placed in Irvin at 2 days of age by her neurosurgeon, Dr. Edwin MacGee.

On October 15, 1995, 12-year-old Irvin began experiencing flulike symptoms and seizures. She also complained of neck and back pain. On October 18, Irvin was transported by life flight from Bob Wilson Memorial Hospital in Ulysses, Kansas, to St. Luke's Hospital in Kansas City, Missouri. At St. Luke's, Irvin was examined by MacGee to determine whether the shunt was working properly. During the 12 years the shunt had been in place, MacGee had performed two other surgeries on the shunt.

On October 19, MacGee determined there was no shunt malfunction. MacGee recalled speaking to an unidentified radiologist about the shunt. The radiologist told him that there was at least 2 inches of shunt tubing remaining in the abdomen. Dr. Karen Divelbiss, who did the official read of the shunt series, reported nothing wrong with the shunt. On October 21, Irvin was discharged and went home. The x-rays taken at St. Luke's, however, revealed *115 at trial that the distal end of the shunt tubing had pulled up into the abdomen wall due to Irvin's growth, intermittently blocking the flow of cranial fluid into the abdominal cavity.

On October 23, 1995, MacGee wrote Dr. Michael Shull, Irvin's pediatrician in Garden City, Kansas, and told him that the "shunt appeared to be working well."

Irvin's seizures, nausea, vomiting, and neck and back pain soon returned. On November 12, Irvin was admitted to St. Catherine's Hospital in Garden City, Kansas. At St. Catherine's Hospital, Irvin was examined by Shull. Shull worried that the shunt had malfunctioned. X-rays were taken of Irvin's chest and abdomen. The radiologist concluded that no abnormalities were present and reported nothing wrong with the shunt tubing. On November 13, Shull spoke with MacGee regarding Irvin's condition. MacGee indicated that he thought Irvin's shunt was operating correctly and instructed Shull to treat Irvin with hydration and seizure control medication to see if her symptoms would improve. Shull ordered an MRI of the brain to check for increased intracranial pressure caused by the shunt malfunction. The MRI was negative.

Irvin continued to experience nausea, vomiting, neck pain, and seizures on November 13 and 14. On November 14, Shull ordered Irvin to be transported by life-flight from St. Catherine's Hospital to Wesley Medical Center (Wesley) in Wichita, Kansas. Prior to her transfer, Shull spoke with Smith, a pediatric intensivist, at Wesley. Shull and Smith discussed Irvin's condition, history, symptoms, Shull's concern about her seizures, and the possibility of a shunt malfunction. Smith approved the transfer and use of the air ambulance. Shull also ordered additional x-rays.

Smith admitted Irvin at Wesley with x-ray films which showed the outlet or "tip" of her shunt embedded in the muscle of her abdominal wall in a position requiring that it be repaired. Smith testified that he could not remember whether he looked at the x-ray films, however. He admitted that had he looked at the films he would have seen that the shunt needed to be repaired. Smith explained that he could not remember looking at the x-ray films because he was led to believe that a radiologist in Garden City had *116 already read the x-rays and had concluded that they were "negative." No doctor in Garden City ever looked at Irvin's x-ray films.

On November 14, Smith made a telephone call to obtain a "neurological consult" from Gilmartin, a child neurologist, because Smith thought that Gilmartin was "the best consultant to use to help evaluate Ashley." Gilmartin and Smith discussed performing a shuntogram. A shuntogram is a procedure which involves injection of a radioactive isotope into the shunt to check for shunt blockage. After the consultation, a shuntogram and EEG were ordered for the following morning to be performed by Gilmartin and Smith. Gilmartin and Smith planned to do the shuntogram the next morning because Irvin appeared stable, alert, and conscious between seizures. Neither Smith nor Gilmartin believed that her symptoms indicated an impending shunt malfunction.

The next morning, November 15, Irvin was alert, awake, and verbal. At approximately 8:45 a.m., however, prior to any tests being performed to determine the status of the shunt, Irvin's condition deteriorated, became critical, and required that she be resuscitated and intubated.

At approximately 11:30 a.m., Irvin's condition became worse as her pupils dilated and became unresponsive to light. The shuntogram was finally performed, and it was determined that the shunt was obstructed. Surgery was performed to correct the shunt malfunction.

Prior to undergoing the shuntogram procedure, Irvin suffered permanent and severe brain damage. Specifically, Irvin suffered an ischemic brain injury as a result of lack of oxygen to the brain, which resulted in severe neurological impairment. Irvin was placed on a ventilator on November 15, on which she remained until December 6. Irvin then remained at Wesley until January 5, 1996. Since her discharge, Irvin has received continuous care, treatment, and rehabilitation. Irvin's condition requires that she be fed through a gastrostomy tube. Irvin is unable to walk or speak, is incontinent, and requires full-time care.

Irvin and her parents filed suit in the Sedgwick County District Court against MacGee, Neurology/Neurosurgery P.C., Smith, Gilmartin, and Wesley Medical Center. Irvin subsequently added St.

*117 Luke's Radiological Group, Divelbiss, and Columbia/HCA Healthcare Corporation (Columbia). Neurology/Neurosurgery P.C. and MacGee settled early and were dismissed. St. Luke's Radiological Group and its employee Divelbiss (who had moved to Pennsylvania) moved to dismiss for lack of personal jurisdiction. The motion was denied as to St. Luke's but granted as to Divelbiss. Irvin subsequently voluntarily dismissed her claim against St. Luke's.

Gilmartin moved for summary judgment, arguing that he owed no duty to Irvin as there was no physician-patient relationship. The district court agreed and granted summary judgment in favor of Gilmartin.

There have been three jury trials in this matter. The first case was tried in Sedgwick County before a jury in March 1999 against Columbia, Smith, and Wesley. The trial resulted in a directed verdict in favor of Columbia and a hung jury for Smith and Wesley. Irvin subsequently settled her claims against Wesley.

The second jury trial took place in November 1999 in Jackson County, Missouri, and resulted in a verdict of $1,770,391.08 against St. Luke's and Divelbiss. Irvin sought the same damages that were claimed in the Sedgwick County action. Irvin filed a motion for additur or in the alternative a motion for a new trial. The district court granted the motion for a new trial and vacated the verdict. Irvin subsequently settled with St. Luke's and Divelbiss for the full amount of the verdict.

The third jury trial took place in Sedgwick County in January 2000. The only defendant in the third jury trial was Smith. The jury returned a verdict finding no fault on the part of Smith. Irvin filed a motion for a new trial, which was denied by the court. It is from the third jury trial and the dismissal of Gilmartin that this appeal arises. Smith has also filed a cross-appeal in this matter.

I. SUMMARY JUDGMENT IN FAVOR OF GILMARTIN

Irvin argues that the district court erred in granting summary judgment in favor of Gilmartin by holding that no physician-patient relationship existed between Gilmartin and Irvin.

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together *118 with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999).

Prior to trial, Gilmartin moved for summary judgment, arguing that he owed no duty to Irvin because he had no physician-patient relationship with her. The district court agreed and granted the motion, stating:

"As to Mr. Day's Motion for Summary Judgment, my first reaction in this case is to offer the question as to whether or not a physician/patient relationship existed to the jury as a fact question; certainly [that] is the easiest thing to do. However, it is clear that the courts may and should decide under a number of different fact scenarios on a motion for summary judgment whether or not a physician/patient relationship exists, specifically whether or not such a relationship exists for a consulted physician.

"Now, I'm most concerned with the fact there is an obvious lack of Kansas law on this particular issue. I am willing to look to other jurisdictions for guidance, and I have done as much of my own research as I can also on the matter.

"It seems to me that while the scenarios can vary as to the facts involved and the facts looked at by appellate courts, those cases concerning the existence of a physician/patient relationship look to some facts other than the phone conversation itself, in that there is a contract, the doctor was on call, the doctor offered or gave direction for immediate medical care and treatment that he anticipated would be accepted and was accepted. Did offering to provide—or, I guess, agreeing to provide a further physical exam in the morning and conducting a shuntogram create that further fact that would give rise to a physician/patient relationship on the evening of November 14th? My interpretation of all the prior case law that has been presented in this case directs me in this case that the relationship did not exist until the 15th. The Motion for Summary Judgment is granted."

The plaintiff in a medical malpractice case bears the burden of proof in establishing the elements of the negligence claim. The *119 existence of the duty of care is dependent on the existence of a physician-patient relationship. See Reynolds v. Decatur Memorial Hosp., 277 Ill. App.3d 80, 85, 660 N.E.2d 235 (1996) (duty of physician is limited to situations where there is a physician-patient relationship); Doherty v. Hellman, 406 Mass. 330, 333, 547 N.E.2d 931 (1989) (plaintiff has the burden to demonstrate existence of physician-patient relationship in order to prove medical malpractice claim); Millard v. Corrado, 14 S.W.3d 42, 49 (Mo. App. 1999) (physician-patient relationship is "essential" to medical malpractice claim); McKinney v. Schlatter, 118 Ohio App.3d 328, 332-37, 692 N.E.2d 1045 (1997) (cannot find that physician breached duty where no physician-patient relationship exists); St. John v. Pope, 901 S.W.2d 420, 423 (Tex. 1995) (physician cannot be liable for malpractice where there is no physician-patient relationship).

Courts have concluded, as has this court, that whether a physician-patient relationship exists is generally a question of fact for the jury. See Rule v. Cheesman, Executrix, 181 Kan. 957, 964-65, 317 P.2d 472 (1957). See also Dodd-Anderson v. Stevens, 905 F. Supp. 937, 944 (D. Kan. 1995), affd 107 F.3d 20 (10th Cir. 1997) (in Kansas, following the Rule case, the existence of a physician-patient relationship is a question of fact); Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 524, 434 S.E.2d 63 (1993) (existence of physician-patient relationship is question of fact for jury); Gallion v. Woytassek, 244 Neb. 15, 20, 504 N.W.2d 76 (1993) (purview of jury to determine whether physician-patient relationship exists); Cogswell v. Chapman, 249 App. Div.2d 865, 866, 672 N.Y.S.2d 460 (1998) (it is generally a question of fact for the jury whether an implied physician-patient relationship exists); Tumblin v. Ball-Incon Glass Packaging, 324 S.C. 359, 365, 478 S.E.2d 81 (Ct. App. 1996) (existence of physician-patient relationship is question of fact for the jury); Lyons v. Grether, 218 Va. 630, 633, 239 S.E.2d 103 (1977) (physician-patient relationship is a question of fact).

A physician-patient relationship may be found and summary judgment may be considered, however, "where the facts are shown by such clear, palpable, and undisputed evidence that the jury could reasonably draw but one conclusion." Walker, 209 Ga. App. at 524.

*120 Generally, a physician-patient relationship is created only where the physician personally examines the patient. Millard, 14 S.W.3d at 49. A physician's indirect contact with a patient, however, does not preclude the finding of a physician-patient relationship. Adams v. Via Christi Regional Med. Center, 270 Kan. 824, 835, 19 P.3d 132 (2001). See also McKinney, 118 Ohio App.3d at 336 (lack of direct contact between physician and patient does not preclude the finding of a physician-patient relationship); Cogswell, 249 App. Div.2d at 866 (physician-patient relationship can be established by a telephone call to physician); Millard, 14 S.W.3d at 49 (physician-patient relationship may be found even in the absence of contact between the physician and patient); St. John, 901 S.W.2d at 424 (physician-patient relationship does not require a formal contract and may be implied by the circumstances). A physician-patient relationship may be found where a physician is contacted by someone on behalf of the patient. Reynolds, 277 Ill. App.3d at 85. Indeed, an implied physician-patient relationship may be found where the physician gives advice to a patient by communicating the advice through another health care professional. Campbell v. Haber, 274 App. Div.2d 946, 946-47, 710 N.Y.S.2d 495 (2000).

A physician who gives an "informal opinion," however, at the request of a treating physician, does not owe a duty to the patient because no physician-patient relationship is created. See Oliver v. Brock, 342 So.2d 1, 4 (Ala. 1976) (no physician-patient relationship found where physician never met with patient, did not even know the patient's name, and merely conversed with treating physician on "gratuitous" basis); Hill v. Kokosky, 186 Mich. App. 300, 304, 463 N.W.2d 265 (1990) (opinion directed at treating physician to do with "as he saw fit" does not create physician-patient relationship); Reynolds, 277 Ill. App.3d at 85 (informal opinion from consulting physician at request of treating physician does not create physician-patient relationship); Lopez v. Aziz, 852 S.W.2d 303, 306 (Tex. Civ. App. 1993) (physician cannot be liable where he or she merely consulted with treating physician and nothing more). A physician who assumes the role of treating the patient, however, can be liable for medical malpractice. Tumblin, 324 S.C. at 365; *121 Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 39-40 (Tex. Civ. App. 1993).

In Adams, we recently discussed the foundational requirements for the existence of a physician-patient relationship, stating:

"A physician-patient relationship is consensual. Thus, where there is no ongoing physician-patient relationship, the physician's express or implied consent to advise or treat the patient is required for the relationship to come into being. Stated otherwise, the doctor must take some affirmative action with regard to treatment of a patient in order for the relationship to be established." 270 Kan. at 835.

See also Reynolds, 277 Ill. App.3d at 85 (relationship between physician and patient is consensual and is founded in "trust and confidence"); Millard, 14 S.W.3d at 49 (relationship is consensual and exists where the patient or someone acting on his or her behalf employs a physician who consents to treat the patient); Tracy v. Merrell Dow Pharmaceuticals, 58 Ohio St.3d 147, 150, 569 N.E.2d 875 (1991) (physician-patient relationship is consensual and may be either implied or an express relationship); Tumblin, 324 S.C. at 365 (physician-patient relationship may be established when patient seeks assistance of physician and physician accepts patient).

In the present case, Irvin argues that the undisputed facts show that there was a physician-patient relationship between Gilmartin and Irvin and that the district court erred in granting summary judgment in favor of Gilmartin. The facts, Irvin argues, show that Gilmartin received a lengthy telephone call from Smith during which they engaged in a detailed conversation about the condition, care, and treatment of Irvin. Gilmartin was called because of his experience and expertise as a pediatric neurologist. Gilmartin was not an employee of the hospital and was not "on call" the night he received the phone call from Smith. As a result of the conversation, Gilmartin testified he had a "complete picture of Ashley Irvin's presentation" and that he had surmised that Irvin's condition was "stable." Gilmartin further testified that he and Smith "jointly developed a plan for the evaluation of Ashley Irvin" and that he assumed primary responsibility for performing the shuntogram tests the next day.

Before receiving a call from Smith on November 14, 1995, Gilmartin had never had contact with Irvin or her family and had no *122 involvement of any kind in her medical care. Clearly up to that point, there was no physician-patient relationship. Gilmartin was not "on call" on November 14, 1995, and was subject to no contractual obligation which would require him to attend any patients at Wesley.

During the evening of November 14, 1995, Smith called Gilmartin and asked him to perform a consultation on Irvin. The working diagnosis at the time was new onset seizure disorder, with concern over possible shunt malfunction. The two doctors discussed the case and it was agreed that Gilmartin would see the patient the next morning, carry out a formal consultation, and assist in conducting the diagnostic test known as a shuntogram. Gilmartin's position is that he had no duty as a physician until he assumed a physician-patient relationship with Irvin on the morning of November 15, 1995. Without a legal duty, there can be no compensable negligence.

Whether a physician owes a legal duty to a patient under a particular circumstance is a question of law. It is not a question of fact or of negligence. Absent the existence of a physician-patient relationship, there can be no liability for medical malpractice.

The mere act of a physician agreeing to see a patient at a later time does not begin the relationship. Nor does the fact that a plaintiff produces an expert witness who will testify that a particular act or omission constitutes "a departure from the standard of care" establish that a duty exists as a matter of law. See, e.g., Calwell v. Hassan, 260 Kan. 769, 925 P.2d 422 (1996). Actionable negligence must be based upon breach of duty. Honey cutt v. City of Wichita, 251 Kan. 451, 463, 836 P.2d 1128 (1992); Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989). Whether a legal duty exists is a question of law. Calwell, 260 Kan. at 777; Boulanger v. Pol, 258 Kan. 289, 298, 900 P.2d 823 (1995). See Dodd-Anderson, 905 F. Supp. at 945-46. Whether the duty has been breached becomes a question of fact for the jury. However, when the controlling facts are not at issue, the question becomes one for the court. Without a duty, there can be no breach. See Calwell, 260 Kan. at 777-78, 789.

*123 Here, the sole involvement of Gilmartin was as a private practitioner who had been asked to carry out a consultation the following day. The formal consultation refers to a full bedside review of the case which includes a physical examination of the patient. At the time Gilmartin spoke with Smith, Gilmartin had not examined Irvin, had not reviewed her hospital chart, and had never spoken with either her or her parents. The only information he had was what he had been told by Smith. There is no claim that Gilmartin entered any orders in the case or took any other action other than discussing the case in general terms with Smith and agreeing to consult the next day. This, by itself, does not create a physician-patient relationship.

This case, to a large extent, boils down to public policy concerns. The type of telephone conversation that took place here takes place on a frequent basis in the medical profession and is vital to the treatment of patients. For the courts to discourage such conversations is not to the patients' or the public's best interests.

II. PHYSICIAN-PATIENT RELATIONSHIP

Courts have used great caution when responding to requests that they recognize legal duties within this medically important but legally ambiguous world of the curbside consultation. Indeed, the published decisions are unanimous in agreeing that extension of the physician-patient relationship to include this type of informal consultation would be contrary to public policy. "Imposition of liability under these circumstances would not be prophylactic but instead counter-productive by stifling efforts at improving medical knowledge. Rainer v. Grossman, 31 Cal. App.3d 539, 544, 107 Cal. Rptr. 469 (1973). See Hill, 186 Mich. App. at 303-06; Lopez, 852 S.W.2d at 307. A good expression of these public policy concerns appears in Reynolds, 277 Ill. App.3d at 86, as follows:

"Plaintiffs suggest that what needs to be done is to find a physician-patient relationship to result from every such conversation. The consequence of such a role would be significant. It would have a chilling effect upon practice of medicine. It would stifle communication, education and professional association, all to the detriment of the patient. The likely effect in adopting plaintiffs' argument also would be that such informal conferences would no longer occur."

*124 Courts have taken these public policy concerns to heart and have routinely refused to extend liability for medical malpractice to doctors who have acted solely in the role of an informal or curbside consultant. This has been true even when the doctors' involvement in giving advice to the attending physician has been very extensive. In NBD Bank v. Barry, 223 Mich. App. 370, 566 N.W.2d 47 (1997), for example, the patient's attending physician, Dr. Miller, contacted the defendant, Dr. Barry, "on multiple occasions" asking his opinion of the patient's case. Not only did Barry discuss the case and make recommendations to Miller, he apparently even reviewed the chart once with Miller. However, Barry did not formally consult on the case and never contacted or examined the patient. In upholding summary judgment for Barry, the court concluded that contacts with Miller fell into the context of an informal consultation which did not create a physician-patient relationship with the patient. 223 Mich. App. at 372-73. Absent such a relationship, Barry owed no duty of care to the patient. While he had offered opinions to Miller, these "were simply recommendations that Miller was free to accept or reject." 223 Mich. App. at 373.

The same result was reached in Reynolds, 277 Ill. App.3d 80, a case with facts strikingly similar to the present case. There, a young boy who came to the emergency room had a history of falling at home. A pediatrician, Dr. Bonds, was called to the emergency room and assessed the child. The child had a fever of 102 degrees. At this point, Bonds called a colleague, Dr. Fulbright, and gave him a run down on the child's condition. Fulbright asked if the child had a stiff neck; Bonds checked and reported that he did. At the conclusion of the conversation, Fulbright recommended that a spinal tap be performed to rule out meningitis or a similar infectious process; this was done by Bonds. Unfortunately, the child was ultimately found to have had a spinal cord injury as opposed to an infectious process. His injuries left him permanently quadriplegic. The plaintiffs' expert witnesses in the case alleged that Fulbright had been negligent in making recommendations without first examining the patient. In rejecting this claim, the trial court granted summary judgment to Fulbright. On appeal, the court upheld the summary judgment concluding that there was no evidence that

*125 Fulbright had ever developed a physician-patient relationship with the patient. 277 Ill. App.3d at 85, 87. Of particular importance to this case, the court concluded that the law does not "require a physician to enter into a physician-patient relationship with every person treated in the hospital whose treating physician might make an informal inquiry about that case." 277 Ill. App.3d at 86. See Schrader v. Kohout, 239 Ga. App. 134, 522 S.E.2d 19 (1999); Hill, 186 Mich. App. 300; Flynn v. Bausch, 469 N.W.2d 125 (Neb. 1991); St. John, 901 S.W.2d 420; 1 Louisell & Williams, Medical Malpractice § 8.03 at 8-19, 8-20 (Matthew Bender 2001).

We conclude that Gilmartin was under no legal duty to go to the hospital on November 14, 1995; thus, his failure to do so cannot constitute a breach of duty to support a claim of negligence.

III. DR. RADETSKY'S TESTIMONY

Irvin argues that the district court erred in allowing Dr. Michael Radetsky, a pediatric intensivist, to testify that Smith did not violate the standard of care because Radetsky's testimony was outside the scope of Smith's expert designation and because Radetsky had refused to answer specific questions regarding the existence of such opinion during his discovery deposition.

The admission of expert testimony lies within the sound discretion of the trial court. Its decision will not be overturned absent an abuse of such discretion. Olathe Mfg., Inc. v. Browning Mfg., 259 Kan. 735, 762, 915 P.2d 86 (1996). One who asserts an abuse of discretion bears the burden of showing such abuse. State v. Mullins, 267 Kan. 84, 93, 977 P.2d 931 (1999).

Irvin argues that Smith was required to disclose Radetsky's opinions and the summary of the grounds for his opinions pursuant to K.S.A. 2000 Supp. 60-226(b)(6)(B). Because Smith failed to provide a report in which Radetsky offered his opinions regarding the standard of care of Smith, Irvin argues that his testimony should not have been admitted.

Radetsky was initially retained as an expert by Wesley to testify regarding the standard of nursing care provided to Irvin. After Wesley was dismissed, Smith asked Radetsky to testify in the second Sedgwick County trial.

*126 At the time of Radetsky's discovery deposition, his counsel stated: "He's not going to express any opinions at trial concerning the physicians in this case." When counsel for Irvin attempted to elicit Radetsky's opinions concerning the care of Smith, Radetsky's counsel reiterated: "He will not render any testimony whatsoever concerning the standard of care issues concerning any of the physicians involved with this case, either Wesley or anywhere else, period." Smith's counsel also joined with Radetsky's counsel, stating: "Dr. Radetsky did not render a report as to Dr. Smith .... But as I understand what Mr. North said ... the witness is not being offered on those subject matters beyond the scope of the report." Irvin's counsel persisted and asked: "Okay, Dr. Radetsky, what opinions do you have concerning the care rendered by Dr. Smith?" Radetsky's counsel again objected, stating: "No. Objection. It's beyond the scope of his expert report. He's not going to be offered as a witness at trial so he's not going to answer the question." Radetsky did not answer the question during the deposition.

During the course of the trial, Smith offered the testimony of two "standard of care" witnesses, Dr. George Reynolds and Radetsky. Reynolds had been designated and deposed as a standard of care expert for Smith. As previously noted, Radetsky initially had been designated and deposed as an expert witness whose opinions related to the nursing care provided by Wesley.

Early in the trial, Smith informed Irvin of his witness schedule, which included Radetsky. Irvin objected to the use of Radetsky as a standard of care witness several times. Smith informed the court that Radetsky would essentially provide the same testimony that he provided in the March 1999 trial, but that Radetsky would not be asked to comment on Smith's standard of care.

At trial, Radetsky testified via videotaped deposition. Radetsky testified that records and testimony showed nothing to indicate a shunt malfunction prior to 8:45 a.m. on November 15, 1995. Both Irvin and Smith filed designations of Radetsky's testimony. Irvin objected to the introduction of Radetsky's videotaped trial deposition. The district judge overruled the objection, stating:

*127 "This witness testified at the last trial, he's testified again at videotaped deposition on areas that I'm pretty confident are basically the areas that you covered the first time you had this trial. More importantly, he was listed as a witness by Doctor Smith in the pretrial order. I think that his testimony should be allowed in this case."

Irvin cannot claim surprise or prejudice by the district court's decision to allow Radetsky to testify in this matter.

Contrary to Irvin's assertions, Smith designated Radetsky as an expert in the pretrial order when he set forth and identified any "expert witnesses named by other defendants" in his witness list. Because Wesley had originally named Radetsky as an expert witness, Smith was able to call him as an expert in the second trial as the district court had previously ruled that witnesses listed by one party could be called by any other party.

Radetsky was questioned at length by Irvin during the discovery deposition on matters relating to the standard of care of Irvin; although the questions did not specifically mention or refer to Smith, they, nonetheless, shed light on Radetsky's opinions regarding the care provided to Irvin.

A thorough examination of the voluminous record reveals that Radetsky's testimony in the videotaped deposition taken during the second trial roughly mirrors that of the discovery deposition Radetsky gave prior to the first trial and is also similar to the testimony Radetsky provided at the first Sedgwick County trial. Furthermore, Radetsky's testimony at the second trial was consistent with the content of his report made for Wesley.

We cannot say the district court abused its discretion in allowing Radetsky to testify regarding Smith's standard of care.

IV. PURCHASE OF ANNUITY

Irvin next argues that the district court erred in allowing Smith to present testimony regarding the hypothetical purchase of an annuity as a way to convert future damages into present value. Irvin specifically argues that the annuity evidence is violative of the standard set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and that evidence of the purchase of a hypothetical annuity violates public policy.

*128 Because the jury found that Smith was not liable for Irvin's damages as he did not breach his duty of care, the issue of damages is moot. Irvin alleges, however, that the jury's perception of Irvin's credibility hinged on the damage testimony. Irvin originally claimed over $20 million dollars in damages. The court allowed testimony through the insurance agents who estimated that $20 million in damages could be covered by the purchase of a $3 million annuity. The reduction from the amount originally requested to a fraction of the original amount, Irvin argues, prejudiced the outcome of the trial by tipping the scales towards