Bonin v. Vannaman

Decision Date20 December 1996
Docket NumberNo. 75014,75014
Citation261 Kan. 199,929 P.2d 754
PartiesAmanda Kay BONIN, Appellant, v. Donald D. VANNAMAN, M.D.; Marcile Bonin; and Arthur T. Bonin, Jr., Appellees.
CourtKansas Supreme Court

Syllabus by the Court

1. In considering a motion to dismiss for failure of the petition to state a claim, the court must view the facts in the light most favorable to the plaintiff and, with all doubt resolved in the plaintiff's favor, determine if the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate the plaintiff does not have a claim. However, this court is not required to accept conclusory allegations argued by the plaintiff regarding the legal effect of the presumed facts if the allegations do not reasonably follow from the facts.

2. A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive.

3. The 8-year statute of repose under K.S.A. 60-515(a) applies to all tortious acts committed while the plaintiff is a minor, regardless of how old the plaintiff is (a minor or an adult) when the action actually accrues.

4. The nature of a claim--whether it sounds in tort or contract--is determined from the pleadings and from the real nature and substance of the facts therein alleged.

5. Certain duties and obligations are imposed upon physicians and hospitals by law. Breach of such duty by a physician is malpractice, and an action for damages for malpractice is one in tort, even though there may have been an express or implied contract for proper care.

6. The general rule is that a plaintiff will not be permitted to characterize a tort action as one in contract in order to avoid the bar of the statute of limitations or governmental immunity.

7. Determining whether a statute violates the constitution is a question of law. When determining a question of law, this court may exercise an unlimited de novo standard of review.

8. A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.

9. K.S.A. 60-515(a) qualifies as malpractice legislation, and the rational basis test is the appropriate standard to apply in evaluating the equal protection concerns of the statute.

10. The rational basis test, also known as the reasonable basis test, is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State's legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

11. If a remedy protected by due process is abrogated or restricted by the legislature, such change is constitutional if the change is reasonably necessary in the public interest to promote the general welfare of the people of the state, and the legislature provides an adequate substitute remedy to replace the remedy which has been restricted.

12. The test in determining the constitutionality of a statute under due process or equal protection weighs identical factors.

13. In order to insure due process, the legislature is required to provide an adequate, substitute remedy when a common-law remedy, such as a minor's cause of action for personal injury, is modified or restricted.

14. K.S.A. 60-515(a) restricts a minor's common-law right to recover damages for personal injury by imposing an 8-year statute of repose on minors' causes of actions. The quid pro quo for this restriction is the continued availability of health care in Kansas. Health care is readily available in Kansas because medical malpractice insurance is available to physicians at a reasonable rate, in part due to the passage of K.S.A. 60-515(a) and its 8-year statute of repose.

15. Kansas does not recognize a separate right to an open court independent from the recognized right to due process.

16. Whether the doctrine of continuous treatment should be recognized in Kansas within the context of a medical malpractice action is a question of law. Thus, this court may exercise an unlimited, de novo standard of review.

17. The statute of repose for a malpractice cause of action begins to run from the time the malpractice occurs, regardless of the negligent doctor's continued treatment of the patient.

18. A parent's decision regarding whether a child's medical condition should be investigated for signs of malpractice or whether a malpractice action should be pursued is an exercise of parental discretion regarding a child's medical condition and financial well-being, in which a court should not interfere.

Bryson R. Cloon, of Cloon, Bennett & Ronan, Overland Park, argued the cause, and was on the brief, for appellant.

Roger W. Warren, of Blackwell Sanders Matheny Weary & Lombardi, L.C., Overland Park, argued the cause, and Todd A. Scharnhorst, of the same firm, was with him on the brief, for appellee Donald D. Vannaman, M.D.

Theodore A. Corless, of Armstrong, Teasdale, Schlafly & Davis, Kansas City, MO, argued the cause, and Lynn W. Hursh and Thomas H. Mills, of the same firm, were on the brief, for appellees Marcile Bonin and Arthur R. Bonin, Jr.

Wayne T. Stratton and Jeffrey A. Houston, of Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, were on the brief, for Amicus Curiae Kansas Medical Society.

ABBOTT, Justice:

The plaintiff, Amanda Kay Bonin, brought this action against her medical doctor for malpractice and fraud and against her parents for negligence in not bringing an action against her doctor before her cause of action became barred by the applicable statute of repose. The trial court held against her on all issues. This appeal involves the constitutionality of K.S.A. 60-515(a) (statute of repose); a claim of fraud for failure of plaintiff's doctor to disclose her condition; a claim that the doctrine of continuous treatment is an exception to the statute of repose; and a claim that the doctrine of parental immunity does not shield plaintiff's parents from liability.

Amanda Kay Bonin was born on February 22, 1976. Defendant Dr. Donald D. Vannaman became her pediatrician shortly after birth. In January 1980, when Amanda was 3 years old, Dr. Vannaman evaluated her for possible chest pneumonia. As a part of this evaluation, Dr. Vannaman referred Amanda to a radiologist who performed a chest x-ray. In summarizing Amanda's chest x-ray, the radiology report stated in part: "There is mild scoliosis of the thoraco-lumbar spine but this could be positional." Dr. Vannaman made handwritten notes on the radiology report In May 1987, when Amanda was 11 years old, she participated in a routine scoliosis exam performed by the school nurse at her elementary school. From this exam, Amanda received a report of spine deformity. The report recommended that Amanda see a physician for a scoliosis evaluation. Amanda underwent a series of x-rays and was diagnosed with moderately severe scoliosis. As a result, Amanda underwent several spinal surgeries. The surgeries were minimally successful, and Amanda presently suffers severe disability, preventing her from participating in many activities. Amanda may require future invasive surgery throughout her life.

concerning Amanda's pneumonia. Thus, it appears that Dr. Vannaman reviewed the radiology report. Dr. Vannaman never communicated to Amanda or her parents any concern raised by the radiology report that Amanda might have scoliosis. While Dr. Vannaman provided all of Amanda's care, including her physical exams, he took no steps to further evaluate her possible scoliosis condition. Dr. Vannaman did not diagnose Amanda with scoliosis at this time. According to Amanda, scoliosis in the "mild" stage is correctable with proper treatment. Prompt and proper treatment of scoliosis at an early stage prevents progression into the "moderate" stage, which may require invasive surgery and cause lifelong problems.

Defendants Marcile and Arthur T. Bonin, Jr., are Amanda's parents. When Amanda was diagnosed with moderately severe scoliosis, her parents did not investigate to determine if Dr. Vannaman had failed to promptly diagnose Amanda's scoliosis, nor did they bring a timely malpractice action against Dr. Vannaman.

In the fall of 1994, when Amanda was 18 years old, Amanda and her mother began to gather Amanda's medical records, including those from Dr. Vannaman, in order to assist Amanda in formulating a lifetime spine management plan. In reviewing these records, Amanda discovered the 1980 x-ray report possibly identifying her mild scoliosis at age 3. On February 21, 1995, Amanda brought this action against Dr. Vannaman for fraud by silence and for malpractice in failing to promptly diagnose her scoliosis at age 3.

Dr. Vannaman filed a motion to dismiss the action. Dr. Vannaman claimed that both the malpractice and fraud claims were barred by K.S.A. 60-515(a). K.S.A. 60-515(a) is both a statute of limitations and a statute of repose. If a tortious act occurs while a person is a minor, then the minor is entitled to bring the action 1 year after reaching the age of majority (18), but "no such action shall be commenced by or on behalf of any [minor] more than eight years after the time of the act giving rise to the cause of action." K.S.A. 60-515(a). Dr. Vannaman contended that more than 8 years from his alleged failure to...

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