Articles Posted in Kansas Supreme Court

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Plaintiff was injured in the course of a surgery performed by Doctor. Two days before the expiration of the statute of limitations Plaintiff filed sued against Doctor and his practice. Doctor wasn't properly served. The district court later granted Plaintiff's motion to dismiss the malpractice action without prejudice. Plaintiff subsequently filed through different counsel a new lawsuit seeking damages against Doctor. Doctor filed a motion to dismiss on limitations grounds. Plaintiff's original attorneys (Attorneys) filed a motion to intervene to oppose Doctor's motion to dismiss, which the district court granted. Thereafter, the court granted Doctor's motion to dismiss based on an expired statute of limitations. Attorneys appealed. The court of appeals reversed and remanded. Attorneys again appealed. The Supreme Court dismissed the appeal, holding that Attorneys lacked standing to intervene in district court and thus lacked standing to take this appeal. View "Ternes v. Galichia" on Justia Law

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On the second anniversary of her husband Curley's death, Plaintiff, individually and as the representative of the estate of Curley, filed a lawsuit against defendants Doctor and Hospital, in which she raised wrongful death and survival claims based on alleged medical malpractice. The district court granted summary judgment in favor of Defendants, finding that Plaintiff's claims were barred by a two-year limitation period. In so concluding, the court found that the causes of action accrued on the last date on which Defendants' negligence could have occurred and the date on which Curley's injuries were first ascertainable. The court of appeals reversed, concluding that the basis for Plaintiff's lawsuit did not accrue until Curley's death. The Supreme Court (1) affirmed the court of appeals' judgment as to the wrongful death action, holding that a claim for wrongful death accrues on the date of death unless information regarding the fact of death or the wrongful act that causes the death was concealed or misrepresented; and (2) reversed the court of appeals' holding regarding the statute of limitations applicable to the survival action, holding that the survival action in this case was barred by the statute of limitations. View "Martin v. Naik" on Justia Law

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Plaintiff sued Doctor for medical malpractice arising out of surgeries to treat her tracheal stenosis. Doctor filed a motion in limine to prevent Plaintiff's subsequent treating physician from testifying about the standard of care. The district court granted the motion because Plaintiff's treating physician did not meet the requirements of Kan. Stat. Ann. 60-3412. Under the statute, Plaintiff's treating physician must have spent at least fifty percent of his professional time within the two years before Plaintiff's first surgery in actual clinical practice if Plaintiff wished him to testify as an expert on the applicable standard of care. The court subsequently granted summary judgment for Doctor because, in the absence of expert testimony on the standard of care, Plaintiff could not carry her burden of proof. the court of appeals affirmed. The Supreme Court reversed, holding (1) the fifty percent rule for expert witnesses under section 60-3412 is inapplicable to treating physicians; and (2) therefore, the district court erred in granting summary judgment for Doctor. View "Schlaikjer v. Kaplan" on Justia Law

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Keely Foster, a minor, and her parents, Kim and Kevin Foster, sued Keely's pediatric orthapedic surgeon, Dr. Michelle Klaumann, for injury done to a nerve in Keely's leg while Keely was undergoing surgery. After a trial, the jury found in favor of Klaumann. The court of appeals reversed and remanded for a new trial. The Supreme Court reversed and reinstated the jury verdict, holding (1) it was not error to instruct the jury on both a general physician standard of care and a specialist standard of care when the parties did not dispute Klaumann was a specialist; and (2) the "best judgment" instruction does not misstate the law by instructing the jury that the physician has a right to use his or her best judgment in the selection of the choice of treatment. View "Foster v. Klaumann" on Justia Law

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Parents, individually and on behalf of their daughter (Daughter), filed a medical malpractice action against Hospital under respondeat superior, alleging that Hospital's employee, an obstetrical nurse (Nurse), breached the standard of care which caused permanent injury to Daughter. The jury returned a verdict for Hospital. The court of appeals affirmed. Parents appealed, contending that one jury instruction erroneously directed the jury to apply a community nursing standard of care when all of their twelve negligence claims were governed by a national standard. The Supreme Court affirmed, holding that the instruction given was correct for the negligence allegation based upon chain of command because it was governed by a community standard of care. View "Bates v. Dodge City Healthcare Group" on Justia Law

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Plaintiff sued her doctor, who mistakenly removed her left ovary during a laparoscopic surgery intended to take the right ovary, and a jury awarded her $759,680 in damages. The district court reduced that amount by $425,000 because of a state law limiting non-economic damages in personal injury lawsuits and a posttrial ruling finding Plaintiff's evidence of future medical expenses insufficient. Both sides appealed. The Supreme Court (1) upheld Kan. Stat. Ann. 60-19a02, which operated to cap Plaintiff's jury award for non-economic damages, as applied to Plaintiff; (2) reversed the district court's decision to strike the jury's award for Plaintiff's future medical expenses and remanded the case with instructions to reinstate that award; and (3) denied the doctor's trial error claims. View "Miller v. Johnson" on Justia Law

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Appellant, a medical doctor practicing medicine in Kansas and Missouri, appealed from the district court's order denying her petition to revoke an administrative subpoena issued by the Kansas Board of Healing Arts. The Supreme Court affirmed the district court's determination that Appellant was not required to exhaust administrative remedies before seeking relief from the district court under Kan. Stat. Ann. 65-2839a(b)(3)(B). On the merits of the appeal, the Court affirmed the district court's denial of Appellant's petition based on its conclusion that the Board had authority under the Kansas Healing Arts Act to investigate and subpoena Appellant, a Kansas licensee who was practicing under the Act, even though the investigation was based upon her practice of medicine in Missouri. View "Ryser v. State" on Justia Law

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John Brennan sued his physician, who had a $200,000 professional liability insurance policy, for medical malpractice. The insurer was declared insolvent after Brennan filed his claim but before he recovered. The insurer's insolvency triggered the Kansas Insurance Guaranty Association's (KIGA) statutory obligation to cover the insurer's obligations to the extent provided by the Kansas Insurance Guaranty Association Act. KIGA, which intervened in the suit, denied liability because Brennan received medical reimbursements from his personal health insurance policy that totaled more than the insolvent insurer's policy limits. The dispositive issue was whether Brennan's due process rights were violated by a retroactive statutory amendment permitting KIGA to offset Brennan's personal health insurance benefits against its liability on the insolvent insurer's $200,000 policy. The district court declared the statute's retroactive feature unconstitutional and entered judgment against KIGA for $200,000. The Supreme Court affirmed, holding (1) the retroactivity provision violated due process, and (2) Brennan's rights were governed by the preamended statute. View "Brennan v. Kan. Ins. Guar. Ass'n" on Justia Law

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In 2004, Plaintiff sued Defendant, a doctor, alleging negligence. Attorney Scott Mann represented Plaintiff, and an attorney from Bretz Law Offices allegedly agreed to assist as co-counsel. The district court judge granted Defendant's motion to disqualify the Bretz firm and Mann from continued representation of Plaintiff because an associate at Defendant's attorney's firm had left there and gone to work for the Bretz firm. In 2009, Mann entered his appearance for Plaintiff in district court. The district judge granted Defendant's motion to disqualify Mann. On interlocutory appeal, the Supreme Court reversed, holding (1) the district judge abused his discretion in extending the 2004 imputed disqualification of the Bretz firm to Mann because (a) there was no substantial competent evidence to support the legal conclusion that Mann must also be subject to imputed disqualification, and (b) the district judge failed to conduct an appropriate legal analysis of whether Mann was part of the Bretz firm; (2) the district judge's imputed disqualification of the Bretz firm in 2004 exerted no preclusive effect in the 2009 dispute over Mann's status; and (3) Mann was not subject to disqualification in 2009 because he was not likely to be a necessary witness on causation. View "Venters v. Sellers" on Justia Law