Martindale v. Robert T. Tenny, M.D., P.A.

• Decision Date: 10 April 1992
• Docket Number: No. 66350,66350
• Citation: 250 Kan. 621,829 P.2d 561
• Parties: Marsha A. MARTINDALE, Appellant, v. ROBERT T. TENNY, M.D., P.A., and Midwest Neurosurgery Associates, Appellees, and Robert T. Tenny, M.D., Appellee/Cross-appellant.
• Court: Kansas Supreme Court

Page 561

829 P.2d 561

250 Kan. 621

Marsha A. MARTINDALE, Appellant, v. ROBERT T. TENNY, M.D., P.A., and Midwest Neurosurgery

Associates, Appellees,

and

Robert T. Tenny, M.D., Appellee/Cross-appellant.

No. 66350.

Supreme Court of Kansas.

April 10, 1992.

Syllabus by the Court

1. Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. It is a fundamental rule of statutory construction to which all other rules are subordinate that the intent of the legislature governs when that intent can be ascertained.

2. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.

3. Language in Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823 (1989), and Leiker v. Gafford, 249 Kan. 554, 819 P.2d 655 (1991), which implies that in construing K.S.A. 40-3403(h), the time when a claim arose rather than the time when a claim is filed controls the effective date of the statute, is clearly erroneous and is hereby specifically disapproved. The controlling language of the statute is: "The provisions of this subsection [K.S.A. 40-3403(h) ] shall apply to all claims filed on or after the effective date of this act."

4. It is a cardinal rule of construction that all statutes are to be so construed as to sustain them rather than ignore or defeat them; to give them operation if the language will permit, instead of treating them as meaningless.

5. Although statutes may not be strictly in pari materia, in the construction and interpretation of those relating to the same subject matter or having the same general purpose, reference may be made to them to determine the intent of the legislature as to such subject matter or purpose.

6. The general rule is that statutes or statutory provisions which relate to the same person or thing, or to the same class of persons or things, or to the same or a closely allied subject or object, may be regarded as in pari materia. Statutes which are parts of the same general scheme or plan, or are aimed at the accomplishment of the same results or the suppression of the same evil, are also considered as in pari materia.

7. Under the facts of this case, the filing of a request for a medical malpractice screening panel to consider a claim for malpractice under the provisions of the Medical Malpractice Screening Panel Act, K.S.A. 65-4901 et seq., constitutes a "claim filed" as contemplated by K.S.A. 40-3403(h).

8. K.S.A. 60-215(c) is an attempt to avoid the harsh application of the statute of limitations and, when its conditions are met, applies where there has been a good faith attempt to properly name and join the intended defendant but that attempt has been thwarted through an honest mistake in the identity of the proper defendant.

9. The provisions of K.S.A. 60-215(c) do not apply when a plaintiff knows the proper identity of a prospective defendant but makes no attempt to join that party as a defendant until after the statute of limitations has run.

H. Reed Walker, of Barnett, Walker & O'Connor, Chartered, Overland Park, argued the cause, and James M. Barnett, of the same firm, was with him on the brief, for appellant.

Phillip P. Ashley, of Williamson & Cubbison, Kansas City, argued the cause, and M. Warren McCamish, of the same firm, was with him on the brief, for appellees and cross-appellant.

HOLMES, Chief Justice:

This is a medical malpractice case based upon alleged acts of negligence by Robert T. Tenny, M.D. Plaintiff, Marsha A. Martindale, originally filed suit naming as defendants Robert T. Tenny, M.D., P.A., a professional corporation, and Midwest Neurosurgery Associates, a business association not specifically described. The named defendants (hereafter the corporate defendants) filed motions for summary judgment asserting that K.S.A. 40-3403(h) precluded any recovery against them based upon vicarious liability. The trial court sustained defendants' motions for summary judgment. Martindale timely appeals the trial court order granting summary judgment in favor of the corporate defendants.

At the time summary judgment was granted the corporate defendants, the trial court allowed Martindale to amend her petition to name Robert T. Tenny, M.D. as an individual defendant. After Martindale amended her petition asserting a cause of action against Dr. Tenny individually, he filed a motion for summary judgment, claiming the statute of limitations had run as to him. The trial court denied his motion for summary judgment, and Dr. Tenny timely cross-appeals from that order.

The facts relevant to the issues on appeal are not in dispute. On September 8, 1981, Marsha A. Martindale sought medical attention for tingling in her left hand and pain in her left arm. She was referred to Midwest Neurosurgery Associates, where Dr. Tenny examined her. On September 20, 1981, Dr. Tenny admitted Martindale to Shawnee Mission Medical Center for exploratory surgery. On September 23, 1981, Dr. Tenny performed surgery on Martindale, involving exploration of the brachioplexus, lysis of adhesions, and resection of a portion of her left first rib. On September 27, 1981, the hospital released Martindale. However, she continued to experience pain in her left shoulder, emanating from her left collarbone. Martindale contends she now suffers from chronic shoulder pain and disability.

On September 22, 1983, within the applicable statute of limitations, Martindale, pursuant to Supreme Court Rule 142 (1991 Kan.Ct.R. Annot. 119) and the Medical Malpractice Screening Panel Act, K.S.A. 65-4901 et seq., filed pleadings with the district court requesting that a medical malpractice screening panel (hereafter "the panel") be convened to review her claim.

Nearly five years later, on July 20, 1988, the panel issued its opinion. The record does not disclose any reason for the unusually long delay. The panel concluded, in part:

"[T]here was a departure from the applicable standard of care which, within reasonable medical certainty resulted in non-union of the clavicle.

"a. It is the opinion of the panel that the standard practice for neurosurgeons in this community, where transection of the clavicle is indicated, is to obtain consultation of an orthopedic specialist at or immediately following the surgery. The materials submitted by the parties indicate that, empirically, where there is proper orthopedic management following severance of the clavicle, the incidence of non-union is relatively small. (See materials cited Para. 1(e) & (f) above). Immediate post operative orthopedic management under such circumstances however, is standard practice in this community.

"b. It is the further opinion of the panel that orthopedic consultation would have resulted in efforts in the immediate post operative period to monitor the reunion of the transection by x-rays, to brace or immobilize the structure and to avoid premature use or exercise. (See Articles cited Para. 1(e) & (f) above). Such measures would probably have resulted in reunion."

On August 12, 1988, Martindale filed a medical malpractice petition in the District Court of Johnson County naming Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates as defendants. Although Dr. Tenny was referred to in the body of the petition as a defendant, it did not name Dr. Tenny, individually, as a defendant in the caption. K.S.A. 60-210(a). On August 17, 1988, two summonses naming Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates were personally served on Dr. Tenny as agent for those defendants. No attempt was made to secure a summons for, or to serve, Dr. Tenny personally.

On September 6, 1988, Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates filed answers wherein they raised several affirmative defenses. Defendants asserted that Martindale's claims against each of the two named defendants were barred by the statute of limitations, that Dr. Tenny was not included as a defendant in the petition, and that any claims Martindale intended to assert against Dr. Tenny, in his individual capacity, would also be barred by the statute of limitations. Defendants further asserted that as Martindale's claims against the corporate defendants were based solely on the theory of vicarious liability, the petition failed to state a claim upon which relief could be granted because vicarious liability against health care providers had been abrogated by K.S.A. 40-3403(h).

On May 30, 1990, the corporate defendants filed motions for summary judgment. Plaintiff timely filed a response. On October 2, 1990, the district court heard oral arguments on defendants' motions and granted their motions for summary judgment. The trial court held that K.S.A. 40-3403(h) abrogated vicarious liability for all health care providers who came within the terms of the statute and precluded any cause of action against Robert T. Tenny, M.D., P.A., and Midwest Neurosurgery Associates based solely upon vicarious liability. The court further noted that the petition in this case was filed in 1988, that K.S.A. 40-3403(h) became effective "sometime in 1986," and that the "clear and unambiguous" language of K.S.A. 40-3403(h) provided that all claims filed on or after the effective date of the act were subject to the act.

The trial court then sustained Martindale's oral motion to amend her pleadings to name as a defendant Dr. Tenny in his individual capacity.

A journal entry was filed, granting defendants' motions for summary judgment and granting Martindale's motion for leave to file an amended petition naming Dr. Tenny, individually, as a defendant. On October 10, 1990, Martindale filed an amended petition naming Dr. Tenny as a defendant and on October 24, 1990, Dr. Tenny filed an answer asserting, inter alia, that the claims against him were barred by the statute of limitations....