Boydston v. Board of Regents for State of Kan.

• Decision Date: 30 October 1987
• Docket Number: No. 59923,59923
• Citation: 744 P.2d 806,242 Kan. 94
• Parties: , 42 Ed. Law Rep. 964 Adoria BOYDSTON, As Executor of the Estate of Mercia Boydston, deceased; and Adoria Boydston, as lawful heir of Mercia Boydston; and Adoria Boydston and Maurice Wilson, Appellants, v. BOARD OF REGENTS FOR the STATE OF KANSAS, Appellee.
• Court: Kansas Supreme Court

Page 806

744 P.2d 806

242 Kan. 94, 42 Ed. Law Rep. 964

Adoria BOYDSTON, As Executor of the Estate of Mercia

Boydston, deceased; and Adoria Boydston, as

lawful heir of Mercia Boydston; and

Adoria Boydston and Maurice

Wilson, Appellants, v. BOARD OF REGENTS FOR the STATE OF KANSAS, Appellee.

No. 59923.

Supreme Court of Kansas.

Oct. 30, 1987.

Syllabus by the Court

1. The trial court has discretion to determine whether a party's claim is a late shift in the thrust of the case which prejudices the opposing party. In reviewing the trial court's exercise of such discretion, we must determine whether the opposing party was taken by surprise and, as a result, whether the opposing party was substantially prejudiced.

2. The primary purpose of a pretrial conference and discovery is to reduce, if not eliminate, surprise from the trial and to identify and simplify the issues and procedure. In all but the simplest cases, reason and common sense dictate that a pretrial conference be held within an appropriate time prior to trial, and that a pretrial order be prepared and filed, as required by Supreme Court Rule 140. (235 Kan. cix.)

3. Although the dismissal of a case with prejudice based upon a late shift in the theory or thrust of the case may be appropriate in certain cases, it should only be utilized when other less drastic action is insufficient to rectify or overcome the resulting prejudice to the opposing party.

Michael L. Hodges, Overland Park, argued the cause was on the briefs for appellants.

Janet M. Simpson, of Holbrook, Ellis & Heaven, P.A., of Kansas City, argued the cause, and Thomas M. Sutherland, of the same firm, was with her on the brief for appellee.

ALLEGRUCCI, Justice:

This is a medical malpractice action brought by Adoria Boydston on behalf of her daughter, Mercia Boydston, and by Adoria Boydston and Maurice Wilson individually against the University of Kansas Medical Center (KUMC) through the Board of Regents for the State of Kansas; Glen P. Dewberry, M.D.; and Lynn E. Katterhenrich, R.N. Following settlement by defendants Dewberry and Katterhenrich, the trial court granted the Board of Regents' motion to dismiss and the plaintiffs timely appeal.

The basic facts are not in dispute. On January 2, 1985, the plaintiffs filed this action against the Board of Regents, alleging, in part:

"4. That in October of 1983, Adoria Boydston became pregnant and consulted physicians at the University of Kansas Medical Center, College of Health Sciences and Hospital in Kansas City, Kansas, for medical care and treatment, including prenatal care and delivery of her child. Up to and including the time of her delivery on June 23, 1984, Adoria Boydston was accepted as a patient and was treated by various doctors employed by the University of Kansas Medical Center.

....

"6. That during the course of plaintiff, Adoria Boydston's, pregnancy, employees of the defendants willfully, wantonly and carelessly refused to render care to the plaintiff, causing her physical and emotional harm. These acts by the defendants should entitle plaintiffs to punitive damages."

On March 6, 1985, in response to defendant Board of Regents' first set of interrogatories, plaintiffs set out their claim of negligence as follows:

"ANSWER:

"a) Nurses who attended the labor and delivery of MERCIA BOYDSTON. We believe their names to be Adair, Bain and Pearson;

....

" *4(b) The nurses failed to respond timely to documented indications of fetal distress, thereby unduly delaying the emergency delivery of MERCIA BOYDSTON, thereby causing severe injury to said MERCIA BOYDSTON. Further, all agents or employees of this defendant who participated in the attempted, unauthorized spinal tap of MERCIA BOYDSTON in July 1984. Their names are known to this defendant, and will be developed during discovery, as well as the damages caused by said unauthorized, attempted spinal tap."

The plaintiffs amended their petition on July 18, 1985, by adding Dr. Glen P. Dewberry and Lynn E. Katterhenrich, R.N., as additional parties/defendants. The amended petition made specific allegations and incorporated by reference the allegations of negligence made in the original petition. On November 25, 1985, the plaintiffs filed a pretrial questionnaire which stated, in part:

"5. Theory of your claim, if any (including grounds of negligence, if applicable.):

....

"C. As to defendant The Board of Regents for the State of Kansas, plaintiff claims:

"1. Imputed liability for negligent acts of defendant Katterhenrich and defendant Dewberry, based on theory of respondeat superior.

"2. This defendant was also negligent in that it did not have a board certified obstetrician and gynecologist on duty the night of June 23, 1984, and did not have an adequate nursing staff on duty the night of June 23, 1984, and had an inadequate number of doctors on duty the night of June 23, 1984, in the labor and delivery area.

"3. It did not have proper procedures to screen and monitor the experience, knowledge and skill of the nurses working in the OB/GYN department.

"4. It did not have continuing education program[s] to make sure that the nurses working in the OB/GYN department knew what they were doing, specifically, in regard to interpreting fetal monitor tracings.

"5. It negligently hired nurses to work in the OB/GYN department."

On June 27, 1986, the plaintiffs filed a second amended petition which reflected the death of the infant Mercia Boydston on May 21, 1986. Otherwise, the second amended petition reaffirmed the allegations of the plaintiffs' prior petitions. On the same day, the parties entered into a discovery scheduling agreement. Under the agreement, the attorney for the plaintiffs was to prepare a statement of his contentions before July 15, 1986, and submit it to the defendants, who would then incorporate the contentions into a proposed pretrial order.

In a letter dated July 10, 1986, the attorney for the plaintiffs wrote to the separate counsel for the Regents, Dewberry, and Katterhenrich concerning the contentions advanced by the plaintiffs. Under the heading "Basis of Liability," the letter denoted five paragraphs detailing the alleged negligence of Nurse Katterhenrich, and six paragraphs detailing the alleged negligence of Dr. Dewberry. There are no separate allegations of any negligent acts by the defendant Regents.

After receiving this letter, counsel for the Regents prepared a proposed pretrial order which was delivered to the plaintiffs. The proposed order stated, in part:

"C. As to the defendant the Board of Regents for the State of Kansas, the plaintiff claims the following acts of negligence:

"(1) Imputed liability for the negligent acts of defendant Katterhenrich based on the theory of respondeat superior.

"(2) The defendant Hospital failed to have a board certified obstetrician and gynecologist on duty the night of June 23, 1984, did not have an adequate nursing staff on duty the night of June 23, 1984, and had an inadequate number of doctors on duty the night of June 23, 1984 in the labor and delivery area.

"(3) The Hospital failed to have proper procedures to screen and monitor the experience, knowledge and skill of the nurses working in the OB/GYN department.

"(4) The Hospital failed to have continuing education programs to make sure that the nurses working in the OB/GYN department knew how to interpret the fetal heart monitor tracings.

"(5) The Hospital negligently hired nurses to work in the OB/GYN department."

No pretrial conference was held in this case, nor was the proposed pretrial order filed with the court. Trial of the case was set to begin on Monday, August 4, 1986, and discovery continued up to the week of trial. On Friday, August 1, the separate attorneys for defendants Dewberry and Katterhenrich informed counsel for the Regents that the plaintiffs had settled with their clients. Under the terms of the settlement, the plaintiffs had settled all claims against Dewberry and Katterhenrich, and had released the Regents from "all claims that may arise as a result of the vicarious liability of Kansas University Medical Center for the alleged negligent acts of Glen Dewberry, M.D. and Lynn Katterhenrich, R.N."

At 4:00 p.m. the same day, counsel for the plaintiffs submitted to the Regents' attorneys a list of claims advanced by the plaintiffs. The list basically restated the plaintiffs' allegations of negligence against the Board of Regents as set out in plaintiffs' pretrial questionnaire.

The morning that trial was set to begin, counsel for the plaintiffs submitted "Updated Answers to Defendant's First Confirming Set of Interrogatories." The plaintiffs amended their answers to Interrogatory No. 4 by setting out the alleged acts of negligence committed by the defendant.

On the same day, the defendant filed motions to strike, for summary judgment, and to dismiss. The defendant contended that the plaintiffs were "attempting at this late minute to manufacture a cause of action against the hospital where none exists. This changes the whole complexion of this lawsuit should the court allow the plaintiffs to do this, and now necessitates a trial by ambush." The trial court agreed and found that the plaintiffs were changing the theory of their lawsuit to raise new claims against defendant and granted the motion to dismiss with prejudice.

The only question presented on appeal is whether the trial court abused its discretion in granting defendant's motion to dismiss with prejudice. The plaintiffs advance numerous arguments to support their contention that the trial court erred. However, we believe that plaintiffs misinterpret the rationale for the trial court's decision and incorrectly frame the issues on appeal.

The plaintiffs argue that the court erred in dismissing the case for failure to comply with its orders, by treating the motion to dismiss as a summary judgment motion, and by holding that the release of one joint tortfeasor...