Bair v. Peck, 65240

• Citation: 811 P.2d 1176,248 Kan. 824
• Decision Date: 24 May 1991
• Docket Number: No. 65240,65240
• Parties: Stephen BAIR, Plaintiff, v. Roger G. PECK, M.D.; Perry Smith, M.D.; Great Bend Internists, P.A.; and Alderson, Schuckman, and Smith, P.A., Defendants.
• Court: United States State Supreme Court of Kansas

Page 1176

811 P.2d 1176

248 Kan. 824

Stephen BAIR, Plaintiff, v. Roger G. PECK, M.D.; Perry Smith, M.D.; Great Bend

Internists, P.A.; and Alderson, Schuckman, and

Smith, P.A., Defendants.

No. 65240.

Supreme Court of Kansas.

May 24, 1991.

Syllabus by the Court

1. The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

2. The liability of a principal for the tortious acts of his agents and the liability of a master for the tortious acts of his servant are both grounded upon the doctrine of respondeat superior and are commonly referred to as vicarious liability.

3. The vicarious liability of a principal or a master to a third person is derivative and secondary to that of the actual tortfeasor who is primarily liable.

4. If a principal or master becomes liable under the doctrine of vicarious liability to a third person for personal injuries caused solely by the act of his agent or servant, and is required to respond to such third person in damages, he will be subrogated to the rights of the injured third person and may recover over from the agent or servant who is primarily liable.

5. The standards of review to be applied when a statute is alleged to be unconstitutional as a violation of the equal protection clauses of the United States and Kansas Constitutions are reviewed and applied.

6. Traditionally, the yardstick for measuring equal protection arguments has been the reasonable basis test.

7. K.S.A.1990 Supp. 40-3403(h), which abrogates the common-law vicarious liability of an employer health care provider under certain circumstances specified in the statute, bears a reasonable relationship or basis to the objectives sought to be obtained by the legislature and does not violate Section 1 of the Bill of Rights of the Kansas Constitution.

8. The right to a trial by jury guaranteed by Section 5 of the Bill of Rights of the Kansas Constitution is discussed and applied.

9. K.S.A.1990 Supp. 40-3403(h) does not limit the jury's right to determine the full amount of damages due an injured malpractice plaintiff nor does it limit the jury's right to assess the full amount of such damage against the actual tortfeasor. The statute does not deprive the plaintiff of the constitutional right to a trial by jury and does not violate Section 5 of the Bill of Rights of the Kansas Constitution.

10. The curtailment of vicarious liability by the enactment of K.S.A.1990 Supp. 40-3403(h) impacts a "remedy by due course of law" within the purview of Section 18 of the Bill of Rights of the Kansas Constitution.

11. No one has a vested right in common-law rules governing negligence actions which would preclude substituting a viable statutory remedy for one available at common law. The legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished.

12. Major statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparation in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo.

13. In considering the adequacy of the quid pro quo of comprehensive legislation, which substitutes a statutory remedy for one that formerly existed at common law, and its sufficiency to support subsequent amendments or modifications which diminish the substitute remedy originally granted, no hard and fast rule can apply to all cases.

14. The proper test to apply in determining if the original statutory substitute remedy will support subsequent modifications of the remedy is whether the substitute remedy as subsequently modified would have been sufficient if contained in the original act. If so, then no new or additional quid pro quo is necessary to support the modification against constitutional attack under Section 18 of the Bill of Rights of the Kansas Constitution.

15. The theory behind the common-law doctrine of vicarious liability was that the employer should be liable for the employee's negligence in order to assure that an innocent injured third party would not have to suffer the loss due to the inability of the tortfeasor employee to respond in damages.

16. There is a limit which the legislature may not exceed in altering the statutory remedy previously provided when a common-law remedy was statutorily abolished. The legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and sufficient substitute remedy.

17. K.S.A.1990 Supp. 40-3403(h) does not violate Section 18 of the Bill of Rights of the Kansas Constitution.

Allen G. Glendenning, of Turner and Boisseau, Chartered, Great Bend, argued the cause, and Lisa A. Beran, of the same firm, was on the brief, for plaintiff.

John L. Carmichael, of Woodard, Blaylock, Hernandez, Pilgreen & Roth, Wichita, argued the cause, and was on the brief, for defendants.

HOLMES, Chief Justice:

This case originated as a medical malpractice action filed in the United States District Court for the District of Kansas. Judge Sam A. Crow, pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq., has certified to this court the question of the constitutionality of K.S.A.1990 Supp. 40-3403(h). The specific question certified to this court reads:

"Does K.S.A. 40-3403(h) violate Sections 1, 5 and 18 of the Bill of Rights of the Kansas Constitution?"

The facts as submitted by the federal court are:

"This is a medical malpractice action against two treating physicians, defendants Roger Peck and Perry Smith, for negligence in the care and treatment of the plaintiff Stephen Bair during the period of November 25, 1985, through December 19, 1985. Plaintiff also seeks to recover damages from the defendants, Great Bend Internists, P.A. and Alderson, Schuckman and Smith, P.A. ('defendant associations'), on the basis of vicarious liability for the actions of the treating physicians. The parties tacitly agree that each of the defendants is a 'health care provider,' as that term is defined at K.S.A. 40-3401(f), who is 'qualified for coverage under the fund.' K.S.A. 40-3403(h).

"Defendant associations move for judgment on the pleadings. After noting that plaintiff did not allege any specific, independent act of negligence by them, the moving defendants argue that K.S.A. 40-3403(h) precludes them from being vicariously liable for the negligent acts of the treating physicians. Plaintiff attacks the constitutionality of this provision charging it violates sections 1, 5 and 18 of the Bill of Rights of the Kansas Constitution for the same reasons the Kansas Supreme Court has found other portions of the Health Care Act, K.S.A. 40-3401 et seq., unconstitutional."

As the individual defendants, Roger Peck, M.D., and Perry Smith, M.D., are not directly involved in the issues before this court, we will refer to the two "defendant associations" simply as the defendants.

K.S.A.1990 Supp. 40-3403(h) as enacted in 1986 provides:

"(h) A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act."

This statute is a part of the Health Care Provider Insurance Availability Act (Act), K.S.A. 40-3401 et seq., which was originally enacted in 1976 to address the perceived medical malpractice crisis, including the problems of obtaining and maintaining affordable malpractice insurance and maintaining the availability of medical services in Kansas. State ex rel. Schneider v. Liggett, 223 Kan. 610, 611, 576 P.2d 221 (1978). The history and rationale for the adoption of the Act and other legislation intended to alleviate the "insurance crisis" and bring about "tort reform" have been discussed in numerous cases and need not be repeated at length herein. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990); McGuire v. Sifers, 235 Kan. 368, 681 P.2d 1025 (1984); State ex rel. Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221. Suffice it to say the Act has not had smooth sailing and has been reviewed, amended, and/or supplemented one or more times during nearly every session of the legislature since its original enactment.

The legislature has amended and/or supplemented the Act numerous times and has adopted considerable other legislation on the subject of "tort reform." However, at the time of the adoption of K.S.A.1990 Supp. 40-3403(h) in 1986, the desired results had not been realized. Although medical malpractice insurance rates have declined in the last couple of years, the rates still remain high and in 1986 were continuing to rise. In response to the continued increase in the cost of obtaining medical malpractice insurance and after recommendations of the Special Committee on Medical Malpractice (See Proposal No. 47--Medical Malpractice, Report on Kansas Legislative Interim Studies to the 1986 Legislature 817 [December 1985], the legislature enacted additional major tort reforms in 1986, including H.B. 2661. See L.1986, ch. 229.

One of the 1986 reforms included in H.B. 2661 was K.S.A.1990 Supp. 40-3403(h), which eliminated the vicarious liability of one health care provider for the acts of another...