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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 97, 971 SUSAN E. PUCKETT, Individually, as Heir at Law, and as Special Administrator of the Estate of RONALD E. PUCKETT, Deceased, Appellant, v. MT. CARMEL REGIONAL MEDICAL CENTER, BARBARA DERUY, A.R.N.P., and ADAM S. PAONI, D.O., Appellees.

SYLLABUS BY THE COURT 1. A trial court is required to give a jury instruction supporting a party's theory if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.

2. An objection to the giving or failure to give a jury instruction is waived if not asserted in a timely and specific manner, unless the instruction is clearly erroneous. 3. An appellate court reviews the trial court's determination to give or refuse to give an instruction on a party's theory by examining the record to determine if there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence.

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4. Even though the evidence supports the giving of an instruction, such an instruction must accurately and fairly state the law as applied to the facts of the case. This is a question of law over which an appellate court has unlimited review.

5. In order to establish a claim based on medical malpractice, a plaintiff must establish: (1) The health care provider owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the health care provider breached this duty or deviated from the applicable 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.

6. Individuals are not responsible for all possible consequences of their negligence, only those consequences that are probable according to ordinary and usual experience.

7. Proximate cause is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.

8. Proximate cause incorporates concepts that fall into two categories: causation in fact and legal causation. To prove causation in fact, a plaintiff must prove a cause-andeffect relationship between the defendant's conduct and the plaintiff's loss by presenting sufficient evidence from which a jury could conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred. To prove legal
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causation, the plaintiff must show that 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 were foreseeable.

9. The concept of intervening cause relates to legal causation and does not come into play until after causation in fact has been established.

10. An intervening cause is one which actively operates in producing harm to another after the first actor's negligent act or omission has been committed. An intervening cause absolves the first actor of liability only if it supersedes the first actor's negligence. In other words, the superseding and intervening cause component breaks the connection between the initial negligent act and the harm caused. If the intervening cause is foreseen or might reasonably have been foreseen by the first actor, his or her negligence may be considered the proximate cause, notwithstanding the intervening cause.

11. After the adoption of comparative fault in Kansas, intervening and superseding causes are still recognized in extraordinary cases.

12. Intentional tortious conduct, criminal acts of third parties, and forces of nature can be intervening causes.

13. In a medical malpractice case, a negligent health care provider cannot be held solely liable for subsequent negligence of other treating health care providers. Rather, if successive, negligent actions of more than one health care provider combine to cause an
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injury, the liability of each health care provider must be allocated based on comparative fault. Any contrary language in Fieser v. St. Francis Hospital & School of Nursing, Inc., 212 Kan. 35, 510 P.2d 145 (1973), is disapproved and rejected.

14. There may be more than one cause of an injury; that is, there may be concurrent causes, occurring independently or together, which combine to produce the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury.

15. Concurrent causes do not always occur simultaneously. One cause may be continuous in operation and join with another cause occurring at a later time.

16. When the concurring negligence of two or more persons causes an injury, each such person is at fault. If the negligence of only one person is the cause of the injury, then he or she alone is at fault. 17. Expert testimony is generally required in medical malpractice cases to establish the applicable standard of care and to prove causation, except where lack of reasonable care or existence of proximate cause is apparent to an average layperson from common knowledge or experience. In other words, if causation is not one within common knowledge, expert testimony may provide a sufficient basis for it, but in the absence of such testimony causation may not be drawn.

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18. Jury instructions are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. 19. The standard of review for questions regarding the admissibility of evidence is a multistep standard. The first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. If the evidence is relevant to a material fact, it may be admitted in accordance with the rules of evidence. A trial court always abuses its discretion when its decision goes outside the legal framework or fails to properly consider statutory limitations. For this reason, an appellate court reviews de novo whether a district court applied the correct legal standards when ruling on the admission or exclusion of evidence.

20. 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.

21. It is the judge's responsibility to instruct the jury on legal standards. If a witness testifies as to a legal standard, there is a danger that a juror may turn to the witness' legal conclusion rather than the judge's instruction for guidance on the applicable law. As a result, it is generally recognized that testimony expressing a legal conclusion should ordinarily be excluded because such testimony is not the way in which a legal standard should be communicated to the jury.
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Review of the judgment of the Court of Appeals in an unpublished opinion filed September 19, 2008. Appeal from Crawford District Court; A.J. WACHTER, judge. Opinion filed April 22, 2010. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed, and the case is remanded with directions. Zackery E. Reynolds, of The Reynolds Law Firm, P.A., of Fort Scott, argued the cause and was on the briefs for appellant.

Lawrence J. Logback, of Holbrook & Osborn, of Overland Park, argued the cause and was on the briefs for appellees Mt. Carmel Regional Medical Center and Barbara Deruy, A.R.N.P.

Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, argued the cause, and Leigh C. Hudson, of the same firm, was with him on the briefs for appellee Adam S. Paoni, D.O.

The opinion of the court was delivered by

LUCKERT, J.: On petition for review, the defendants in this medical malpractice case seek reversal of the Court of Appeals' determinations that the trial court erred by instructing the jury on intervening cause, the error was not harmless, the jury verdict rendered in the defendants' favor must be vacated, and the case remanded for retrial. See Puckett v. Mt. Carmel Reg. Med. Center, No. 97,971, unpublished opinion filed September 19, 2008. We affirm the Court of Appeals' decision, reverse the jury verdict, and remand the case with directions for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND On June 15, 2002, Ronald E. Puckett sought treatment for severe back pain at the emergency room of Mt. Carmel Regional Medical Center (Mt. Carmel) in Pittsburg, Kansas. Ronald was seen by Dr. Ronald Seglie, who examined him and prescribed pain medication and a muscle relaxer.

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Four days later, Ronald still had pain in his lower back and was also running a fever. He sought treatment at a clinic operated by Mt. Carmel where he was treated by Barbara Deruy, an advanced registered nurse practitioner (A.R.N.P.), who worked at the clinic under a collaborative practice agreement that required a supervising physician be within 50 miles. Nurse Deruy had previously treated Ronald for chronic back pain when she worked for his family doctor. When Ronald arrived at the clinic, Nurse Deruy noted that Ronald was moving very slowly and with great difficulty. Ronald indicated he had been running a fever that morning, but his chief complaint was the back pain. He had taken some medication containing acetaminophen before seeing Nurse Deruy and did not have a fever at the time of his visit. Nurse Deruy observed Ronald's reddened ears and throat, as well as nasal congestion, which she attributed to a viral infection, and made a differential diagnosis of low back pain and a viral syndrome. Nurse Deruy changed Ronald's prescription muscle relaxant and told him to report to the emergency room if his symptoms got worse. Ronald's symptoms did worsen over the next 2 days; he became confused and disoriented. On June 21, 2002, he was transported by ambulance to Hospital District No. 1 (Girard Hospital), was admitted, and was placed in the intensive care unit under the treatment of Dr. Adam Paoni, a board-certified physician in the area of family practice. Following a regimen of antibiotics to treat a urinary tract bacterial infection, Ronald initially improved. Unfortunately, his condition soon deteriorated and he developed respiratory distress. On June 23, 2002, Dr. Paoni transferred Ronald to St. John's Hospital (St. John's) in Joplin, Missouri, a larger "tertiary care" facility, where he could receive more specialized care, including long-term respiratory assistance, for sepsis that had developed from the bacterial infection.

At St. John's, Ronald was placed under the care of Dr. Habib Munshi, a physician board certified in the areas of pulmonary diseases, critical care medicine, and sleep disorders. Dr. Munshi described Ronald's status as "in extremis," meaning his whole
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system was severely unstable, the situation was "very critical," and he was at considerable risk of dying. Dr. Munshi stated at trial that considering the fact that Ronald "had several days of treatment and he still was in this situation, his prognosis for recovery was not very good." Ronald's white blood cell count was high, his heart rate was elevated, and he had severe respiratory problems. Dr. Munshi had to choose a method of providing respiratory assistance. He treated Ronald's respiratory distress with a bilevel positive air pressure (BiPAP) face mask rather than a ventilator, since he believed Ronald's medical condition was too perilous to attempt the intubation required if a ventilator was utilized. Dr. Munshi testified that Ronald had no contraindication to the use of the BiPAP mask.

On the morning of June 25, 2002, Dr. Munshi visited Ronald, who remained critically ill. For medical reasons and patient comfort, Dr. Munshi ordered the temporary removal of the BiPAP mask and the use of an oxygen mask. While the BiPAP mask was removed, Ronald sat up in bed and ate some breakfast. After approximately 3 hours, Ronald was placed back on the BiPAP mask. Soon thereafter Ronald went into cardiac arrest. Ronald had stopped breathing after having vomited and aspirated. His cardiac and pulmonary functions were restored, but he never fully regained consciousness.

Ronald died on August 6, 2002. The death certificate listed Ronald's cause of death as "anoxic encephalopathy," which basically means "there was a disease process of the brain that . . . resulted from lack of oxygen to the brain." Significant conditions listed as contributing to his death were sepsis, diabetes, and respiratory failure. At trial, Dr. Munshi opined that despite Ronald's receiving low oxygen, he would have expected him to recover but because of "underlying primary insults"--severe sepsis and major organ failure--his "coding" was "part of the underlying process."

Susan E. Puckett, the widow and special administrator of Ronald's estate, brought wrongful death and survivor actions against Mt. Carmel, Nurse Deruy (Mt. Carmel and
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Nurse Deruy will be referred to collectively as Nurse Deruy), and Dr. Paoni on the basis of medical malpractice. Susan alleged that Nurse Deruy was negligent in (1) failing to properly diagnose and treat Ronald's urinary tract infection that developed into sepsis after going untreated; (2) failing to obtain and review Ronald's medical chart; (3) failing to order a complete blood count and urinalysis; (4) failing to obtain a proper history; and (5) practicing outside her specialty. Susan alleged that Dr. Paoni was negligent in (1) failing to realize the severity of Ronald's condition; (2) failing to realize Ronald was having, or was at risk of having, multiple-system organ failure that could not be treated at Girard Hospital; and (3) failing to timely transfer Ronald to a facility where he could receive more specialized care.

In response, both Nurse Deruy and Dr. Paoni denied individual fault and raised the affirmative defense of comparative fault between the parties and Dr. Munshi. They alleged that Dr. Munshi, who is not a Kansas resident and is not a party to this lawsuit, was at fault for placing Ronald on the BiPAP mask instead of a ventilator. More specifically, they claimed Dr. Munshi failed to provide ventilation with a secure airway, resulting in Ronald's vomiting, aspirating, and cardiac arrest that led to his death. In the alternative, Nurse Deruy and Dr. Paoni claimed there was a superseding, intervening cause, which they now characterize as the "aspirating event," that relieved them of any liability.

The trial became a battle of the experts. Dueling opinions were admitted regarding whether Nurse Deruy and Dr. Paoni violated their respective standards of care and also whether Dr. Munshi was negligent. In addition, many of the experts offered opinions relating to causation, some suggesting Nurse Deruy's and Dr. Paoni's negligence caused or exacerbated Ronald's sepsis and others suggesting the severity of his illness was not the result of their actions or inactions. Primarily, the various defense expert opinions related to two of the defense theories--that Nurse Deruy and Dr. Paoni did not deviate from their applicable standards of care and that any negligence was attributable to
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Dr. Munshi or, at least, his negligence had to be compared to the negligence of Nurse Deruy and Dr. Paoni, if any. Other opinions related to Nurse Deruy's and Dr. Paoni's final theory of defense, i.e., whether a superseding, intervening event caused Susan's damages. As to the intervening cause defense, Ronald's treating physician at the time of death testified that Ronald's aspiration caused his anoxic brain injury and cardiac arrest. Plaintiff's expert, Dr. Larry Rumans, gave similar testimony. In addition, Nurse Deruy's and Dr. Paoni's experts focused on the aspiration event as the cause of death. For example, one of Dr. Paoni's expert's, Dr. David McKinsey, opined that Ronald's death "resulted from complications of aspiration" and "the reason he aspirated is he had a whole lot of fluid in his stomach and I can't blame that on the sepsis." Dr. McKinsey further opined that had Ronald not aspirated at St. John's, it was more likely than not he would have survived. Another defense expert, Dr. Wade Williams--board certified in the areas of internal, pulmonary, and critical care medicine--opined that Dr. Paoni's treatment of Ronald met the applicable standard of care but Dr. Munshi's did not. Specifically, in his opinion, Dr. Munshi should have intubated Ronald and placed him on a ventilator. Dr. Williams addressed causation as well, observing it was foreseeable that a patient with sepsis would need respiratory assistance. Nevertheless, Dr. Munshi had a choice of using a positive air pressure (PAP) device or intubation and, although PAP is used "quite often," it was not an appropriate treatment for Ronald, in Dr. Williams' opinion. Dr. Williams believed it was "fairly unlikely" that Ronald's sepsis led to his vomiting and aspiration. Rather, Dr. Williams stated that the use of the BiPAP mask caused pressure resulting in gastric distention and vomiting. Dr. Williams thought Ronald would not have suffered brain injury and death if he had been placed on a ventilator; it was an "iatrogenic complication," i.e., a medically induced complication, that ultimately resulted in Ronald's cardiac arrest. Nevertheless, Dr. Williams also testified that the use of BiPAP
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treatment is fairly common and is also fairly common in situations where patients have eaten.

Based on the opinions regarding Dr. Munshi's negligence in placing Ronald on the BiPAP mask and the causal relationship that decision had in Ronald's death, Nurse Deruy and Dr. Paoni proposed both comparative negligence and intervening cause jury instructions. They contended the intervening cause instruction was proper because the jury could have found they were negligent and still have concluded that Ronald's aspiration constituted an independent intervening cause, breaking the causal connection between Nurse Deruy's and Dr. Paoni's alleged negligence and Ronald's death. Over Susan's objection, the trial court instructed the jury on intervening cause, finding this was a case where "there could very well be an intervening cause[,] and that intervening cause is [that Ronald] aspirated in his mask due to the negligence of Dr. Munshi or not due to the negligence of Dr. Munshi." The trial court further indicated that, in this case, foreseeability was a matter of law.

After brief deliberations, the jury returned a verdict in favor of Nurse Deruy and Dr. Paoni, and Susan appealed. She contended the trial court erred in instructing the jury, in the jury selection process, and in refusing to admit standard of care testimony from Nurse Deruy.

COURT OF APPEALS The Court of Appeals found error in the trial court's decision to give an intervening cause instruction and found that error to be reversible. In reaching this conclusion, the Court of Appeals cited Kansas cases that indicate intervening cause cuts off liability for earlier negligence only in "extraordinary" cases. Puckett, slip op. at 9. The Court of Appeals noted that "[i]f the original actor reasonably should have foreseen the intervening act in light of the attendant circumstances, the original actor's negligence
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remains a proximate cause of the injury. [Citation omitted.]" Puckett, slip op. at 9. Applying this principle, the Court of Appeals focused on the issue of whether Dr. Munshi's alleged negligence was reasonably foreseeable by Nurse Deruy and Dr. Paoni.

Finding that the evidence established that respiratory problems commonly result from sepsis, the Court of Appeals concluded it was foreseeable that Ronald would develop respiratory difficulties if untreated. Also foreseeable was the fact that a later treating physician would elect the BiPAP mask among various methods in assisting Ronald. Given the extraordinary nature of an intervening cause case, the Court of Appeals examined the expert medical testimony to determine if the evidence showed that Dr. Munshi's care of Ronald was not only negligent, but also "so beyond the pale that it would not be foreseeable by Ronald's earlier medical providers." Puckett, slip op. at 11. According to the Court of Appeals, there was expert testimony that Dr. Munshi breached the applicable standard of care; however, no defense expert opined that Dr. Munshi's care was so deficient that it could not have been anticipated. Because there was "no evidence that Dr. Munshi's actions were so extraordinary or unusual as to break the causal connection between the claimed negligence of Nurse Deruy and Dr. Paoni and Ronald's eventual death," the panel concluded that this was not a case of intervening cause. Puckett, slip op. at 11. The Court of Appeals rejected Nurse Deruy's and Dr. Paoni's alternative argument that even if it was error to instruct the jury on intervening cause, the error was harmless because the jury found no fault on the part of either defendant. The Court of Appeals pointed out that the concept of an intervening cause had no bearing on the claims made in the survivor action. The survivor action dealt with the issue of injuries and damages suffered by Ronald before his transfer to Dr. Munshi's care at St. John's. Yet the verdict form failed to distinguish the survivor action (brought by Susan as administrator of Ronald's estate) from the separate wrongful death action (brought by Susan as heir at

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law), and the parties failed to distinguish the separate claims of wrongful death and survivorship in their closing arguments. With respect to the survivor action, the Court of Appeals observed that if the jury found either Nurse Deruy or Dr. Paoni negligent but also found that the intervening negligence of Dr. Munshi broke the causal connection between the negligence and Ronald's death, there was no way for the jury to enter a judgment in favor of Susan for any injuries or damages Ronald sustained before being transferred to St. John's. Rather, the verdict form was set up so that the jury had to first answer whether either Nurse Deruy or Dr. Paoni was at fault, and only if the question was answered in the affirmative was the jury to proceed in comparing the fault of Nurse Deruy, Dr. Paoni, and Dr. Munshi. If the jury found there was an intervening cause, the jury would answer the first question in the negative, finding no fault on the part of either Nurse Deruy or Dr. Paoni, and would not reach the issue of comparative fault. In fact, the jury did answer the first question in the negative. With regard to the wrongful death claim, the Court of Appeals pointed out that the jury had to determine more than whether either Nurse Deruy or Dr. Paoni deviated from the applicable standards of care; they also had to determine whether those deviations brought about Ronald's death. Given that, the Court of Appeals emphasized there were three possible explanations for the jury's no-fault finding:

"(1) Neither Deruy nor Dr. Paoni breached the applicable standard of care, (2) Deruy and/or Dr. Paoni breached the applicable standard of care but did not cause Ronald's death, or (3) Deruy and Dr. Paoni breached the applicable standard of care but their fault was interrupted by the intervening negligence of Dr. Munshi who caused Ronald's death." Puckett, slip op. at 13.

Nurse Deruy and Dr. Paoni argued that there was evidentiary support for explanations (1) and (2), so the jury could have resolved the case without considering the
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intervening cause instruction. But the Court of Appeals found it impossible to determine whether the jury followed the intervening cause instruction when rendering its verdict or if the jury decided the case without reference to it. Consequently, the Court of Appeals concluded that the trial court's error in giving the intervening cause instruction was not harmless. Puckett, slip op. at 13-14.

Based on its ruling, the panel declared Susan's remaining issues moot and reversed and remanded the case for a new trial. Puckett, slip op. at 14.

PETITION FOR REVIEW

Nurse Deruy and Dr. Paoni filed petitions for review, arguing that the trial court properly gave an intervening cause instruction because they raised alternate theories of defense--no fault, comparative fault, and intervening cause--which were supported by the evidence and required presentation to the jury. They contend that the Court of Appeals' decision essentially eliminates the possibility that a health care provider could ever simultaneously raise the alternate defense theories of comparative fault and intervening cause. In addition, Nurse Deruy and Dr. Paoni contend that the trial court did not err by giving a jury instruction on intervening cause because there was sufficient material evidence to support the intervening cause defense. They argue that in concluding the case did not fit the theory of an intervening cause and finding reversible error in the giving of an intervening cause instruction, the Court of Appeals failed to address one nuance of their intervening cause defense theory--specifically, that the aspiration event, triggered by nonnegligent actions of Dr. Munshi, was the intervening cause of Ronald's death. Thus, Nurse Deruy and Dr. Paoni contend the Court of Appeals failed to "comprehend" their alternate defense theories and issued an erroneous decision. Nurse Deruy and Dr. Paoni also argue, in the alternative, that giving an intervening cause instruction in this case was harmless, if it was error.

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Susan contends the alternative defense of nonnegligent intervening cause was not argued. The record reveals, however, that Nurse Deruy and Dr. Paoni raised three alternate theories of defense--no fault, comparative fault, and intervening cause--during the closing arguments, and the trial court recognized the intervening cause theory as being based on assertions of negligent conduct by Dr. Munshi and on nonnegligent conduct. We know this because the trial court, when ruling on Susan's objection to the intervening cause instruction, stated, "[T]here could very well be an intervening cause[,] and that intervening cause is [that Ronald] aspirated in his mask due to the negligence of Dr. Munshi or not due to the negligence of Dr. Munshi."

Regardless, Susan also counters that the Court of Appeals correctly applied the law in finding there was no factual basis on which to give an intervening cause instruction. She urges this court to affirm the Court of Appeals' decision.

This court's jurisdiction arises from K.S.A. 20-3018(b).

STANDARD OF REVIEW

Two standards are implicated by the issues raised in our review of the Court of Appeals' decision. The threshold standard is the one used by the trial court to determine whether a jury instruction should be given. The second standard applies to an appellate court's review of the trial court's decision regarding whether to give an instruction. In discussing these standards, the parties cite several versions, each supported by case law of this court. Under one variation of the standard for a trial court's determination of whether to give an instruction, some cases broadly indicate a court must instruct the jury on a party's theory of the case. E.g., Wood v. Groh, 269 Kan. 420, 423, 7 P.3d 1163 (2000). Under another variation, this court has indicated an instruction is warranted only if the party's
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theory is supported by evidence. Natalini v. Little, 278 Kan. 140, 146, 92 P.3d 567 (2004); Cox v. Lesko, 263 Kan. 805, 810, 953 P.2d 1033 (1998); Guillan v. Watts, 249 Kan. 606, 617, 822 P.2d 582 (1991); Hunter v. Brand, 186 Kan. 415, 419, 350 P.2d 805 (1960). Similarly, it has been stated a trial court should give an instruction if a party's theory is "supported by any competent evidence." (Emphasis added.) Bechard v. Concrete Mix & Construction Inc., 218 Kan. 597, 600-01, 545 P.2d 334 (1976).

There is yet another variation that sets a slightly higher evidentiary standard. Under this standard, a trial court must instruct on a party's theory if "'reasonable minds might reach different conclusions'" based on "'the evidence and all inferences that may reasonably be drawn therefrom.'" Pizel v. Whalen, 252 Kan. 384, 387-88, 845 P.2d 37 (1993). In essence, the Pizel court applied a standard of whether judgment could be rendered on the issue as a matter of law, stating the evidence must be "'accepted as true and considered in the light most favorable'" to the party asserting the theory. Pizel, 252 Kan. at 388 (comparing to summary judgment standard). Such a standard is consistent with that for a motion for judgment as a matter of law (directed verdict), lending consistency to the trial court's role in determining what issues should be presented to the jury. See K.S.A. 60-250 (judgment as a matter of law); Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007) (motion for judgment as a matter of law must be denied "'"[w]here reasonable minds could reach different conclusions based on the evidence"'"); cf. K.S.A. 22-3414(3) (instruction required in criminal case if there "is some evidence which would reasonably justify a conviction of some lesser included crime"); State v. Anderson, 287 Kan. 325, 332-33, 197 P.3d 409 (2008) (duty to instruct on affirmative defense arises where there is evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant's theory); State v. Boyd, 281 Kan. 70, 93, 127 P.3d 998 (2006) (same standard when lesser included offense requested).

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As we consider these variations of the standard for giving an instruction on a party's theory in a civil case, we conclude Pizel's holding is a more complete and accurate statement. Pizel, 252 Kan. at 387-88. We, therefore, clarify the standard and hold that a trial court is required to give an instruction supporting a party's theory if the instruction is requested and there is evidence supporting the theory which, if accepted as true and viewed in the light most favorable to the requesting party, is sufficient for reasonable minds to reach different conclusions based on the evidence. The next question is: What standard applies when an appellate court reviews the trial court's determination? The first consideration is whether there was an objection to the giving or failure to give an instruction. If there was not, the objection is waived unless the instruction is clearly erroneous. K.S.A. 60-251(b). Here, Susan made a timely and specific objection.

Given this determination, we turn to Cox, where this court cited Pizel in concluding an appellate court applies the same standard as a district court when considering whether an instruction should be given on a party's theory of the case. Cox, 263 Kan. at 812 (citing Pizel, 252 Kan. at 388). The Cox court also stated: "Even though the evidence supports the giving of an instruction, such an instruction must accurately and fairly state the law as applied to the facts of the case. This is a question of law, and we have unlimited review over such matters." Cox, 263 Kan. at 810-11.

We must apply these standards to the parties' arguments which implicate questions of whether the intervening cause instruction fairly reflected the law and whether it should have been given under the facts of the case. We begin our discussion with the question of whether the instructions fairly reflected the law. In turn, this discussion will frame our consideration of whether the instruction should have been given under the facts of this case.

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LAW RELATED TO CAUSATION AND INTERVENING CAUSE In order to establish a claim based on medical malpractice, a plaintiff must establish: (1) The health care provider owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury; (2) the health care provider breached this duty or deviated from the applicable 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. See Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438 (2008); Esquivel v. Watters, 286 Kan. 292, 296, 183 P.3d 847 (2008). The focus of this appeal is the fourth element--proximate cause. Kansas follows the traditional concept of proximate cause, i.e., "[i]ndividuals are not responsible for all possible consequences of their negligence, but only those consequences that are probable according to ordinary and usual experience. " Hale, 287 Kan. at 322; accord Sly v. Board of Education, 213 Kan. 415, 424, 516 P.2d 895 (1973); Hickert v. Wright, 182 Kan. 100, 108, 319 P.2d 152 (1957). Kansas appellate courts have consistently defined "proximate cause" as that cause which "'"'in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.'"' [Citation omitted.]" Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 499, 173 P.3d 642 (2007).

This traditional statement of proximate cause incorporates concepts that fall into two categories: causation in fact and legal causation. See, e.g., Corder v. Kansas Board of Healing Arts, 256 Kan. 638, 655, 889 P.2d 1127 (1994); Hammig v. Ford, 246 Kan. 70, 72, 785 P.2d 977 (1990). To prove causation in fact, a plaintiff must prove a causeand-effect relationship between a defendant's conduct and the plaintiff's loss by presenting sufficient evidence from which a jury could conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred. See
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Baker v. City of Garden City, 240 Kan. 554, 559, 731 P.2d 278 (1987); Weymers v. Khera, 454 Mich. 639, 647-48, 563 N.W.2d 647 (1997); Waste Management v. South Central Bell, 15 S.W.3d 425, 430 (Tenn. App. 1997). To prove legal causation, the plaintiff must show that 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 were foreseeable. See Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). The concept of "intervening cause" relates to legal causation and "does not come into play until after causation in fact has been established." Waste Management, 15 S.W.3d at 432; see also Prosser and Keeton, The Law of Torts

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