Davidson v. Denning, s. 71776

• Citation: 259 Kan. 659,914 P.2d 936
• Decision Date: 19 April 1996
• Docket Number: Nos. 71776,72260,s. 71776
• Parties: Lois DAVIDSON, Appellant, v. Dale DENNING, M.D., et al., Appellees. Taryn Dawn RAILE, et al., Plaintiffs/Appellees, v. NATIONWIDE AGRIBUSINESS INSURANCE COMPANY; Caldwell's, Inc., a Kansas Corporation; and Wilbur Staatz, Defendants/Appellees, and Karlene Barrett and Gerald Brandenburg, Defendants/Appellants.
• Court: United States State Supreme Court of Kansas

Page 936

914 P.2d 936

259 Kan. 659

Lois DAVIDSON, Appellant, v. Dale DENNING, M.D., et al., Appellees.

Taryn Dawn RAILE, et al., Plaintiffs/Appellees, v. NATIONWIDE AGRIBUSINESS INSURANCE COMPANY; Caldwell's,

Inc., a Kansas Corporation; and Wilbur Staatz,

Defendants/Appellees,

and

Karlene Barrett and Gerald Brandenburg, Defendants/Appellants.

Nos. 71776, 72260.

Supreme Court of Kansas.

April 19, 1996.

Syllabus by the Court

1. When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim and the district court receives and considers matters outside the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided under K.S.A. 60-256.

2. The record is reviewed in two consolidated wrongful death cases and it is held:

(a) The "discovery rule," as codified in subparagraphs (b) and (c) of K.S.A. 60-513 expressly applies to the 2-year wrongful death limitation at 60-513(a)(5).

(b) The term "reasonably ascertainable," as applied in 60-513(b) and (c) in a wrongful death case, suggests an objective standard based on an examination of the surrounding circumstances.

(c) K.S.A. 60-513(b) and (c) provide that the limitations period starts when the "fact of injury" becomes "reasonably ascertainable." Inherent in "to ascertain" is "to investigate." "Reasonably ascertainable" does not mean "actual knowledge." The "fact of injury" in a wrongful death action means the "fact of death." The limitations period should start on the date of death unless the information from which the fact of death or negligence can be determined was either concealed, altered, falsified, inaccurate, or misrepresented. The fact of death should be a starting point for inquiry. The wrongful death plaintiff is charged with constructive knowledge of information that is available through a reasonable investigation of sources that contain the facts of the death and its wrongful causation. In the cases at bar, those facts were available more than 2 years before the actions were filed.

3. There is nothing on the face of K.S.A. 60-513 that creates a separate class consisting of wrongful death plaintiffs and singles them out for different application of the discovery rule. If application of the discovery rule in a wrongful death case produces a different result than in a personal injury case, the difference should be based on the facts.

Michael E. Callen, of Boddington & Brown, Chtd., Kansas City, argued the cause, and William H. Pickett, Richard D. Fry, and David T. Gries, of William H. Pickett, P.C., Kansas City, Missouri, were on the briefs, for appellant Davidson.

M. Warren McCamish and Phillip P. Ashley, of Williamson & Cubbison, Kansas City, were on the brief, for appellee Denning.

Anne Lamborn Baker, of Wright, Henson, Somers, Sebelius, Clark & Baker, LLP, Topeka, argued the cause, and J. Lyn Entrikin Goering and Thomas E. Wright, of the same firm, were with her on the briefs, for appellee Lawrence Memorial Hospital.

Michael P. Oliver, of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, argued the cause, and John M. Ross, of the same firm, was with him on the brief, for appellees Sosinski and Pees.

Thomas M. Sutherland, of Holbrook, Heaven & Fay, P.A., Kansas City, argued the cause, and Brent G. Wright, of the same firm, was with him on the briefs, for appellants Barrett and Brandenburg.

Michael V. Foust, Goodland, argued the cause and was on the briefs, for appellees Raile, et al.

Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and Larry G. Pepperdine, of the same firm, was on the briefs, for appellees Nationwide Agribusiness Insurance Company, Caldwell's, Inc., and Wilbur Staatz.

SIX, Justice:

The dominant issue before us in two wrongful death cases requires our determination of when K.S.A. 60-513(a)(5), the 2-year statute of limitations, commences to run. We granted petitions for review in conflicting decisions filed on the same day by different panels of the Court of Appeals. Davidson v. Denning, 21 Kan.App.2d 225, 897 P.2d 1043 (1995), and Raile v. Nationwide Agribusiness Ins. Co., 896 P.2d 1117, unpublished opinion filed June 23, 1995. Both cases involve the question whether the "fact of injury" was "reasonably ascertainable" at the date of death, so that 60-513(a)(5) began to run at death, or sometime later. Davidson is a medical malpractice case. Raile concerns a claim of negligent care against two ambulance attendants. The Davidson panel, rejecting Clark v. Prakalapakorn, 8 Kan.App.2d 33, 648 P.2d 278, rev. denied 231 Kan. 799 (1982), held that plaintiff's claim was not barred, reversing the district court's dismissal of the action. The panel in Raile, following Clark, held that the statute of limitations had run and reversed the district court. Davidson is an appeal from summary judgment. K.S.A. 60-212(b)(6). Raile is before us as an interlocutory appeal. K.S.A. 60-2102(b); Rule 4.01 (1995 Kan.Ct.R.Annot. 23). The two cases have been consolidated for argument and decision. Rule 2.06 (1995 Kan.Ct.R.Annot. 16). Our jurisdiction is under K.S.A. 20-3018(b).

We hold that the claims in both cases are time barred.

The questions for review are:

(1) Did the Davidson district court err in considering matters outside the petition when ruling on defendants' motion to dismiss under K.S.A. 60-212(b)(6) and in determining that the action was time barred? The answer is, "No."

(2) Did the Davidson district court's interpretation of 60-513(a)(5) violate the Equal Protection Clause of the 14th Amendment to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights? The answer is, "No."

(3) Did the Raile district court err in denying the defendants' motion to dismiss under K.S.A. 60-212(b)(6) and determining that the action was not time barred? The answer is, "Yes."

FACTS

Davidson

Buddy Dean Davidson was admitted to the Lawrence Memorial Hospital emergency room on February 9, 1991, for treatment of facial burns. His wife, Lois Davidson, told an emergency room nurse that Davidson previously had experienced trouble with blood clots. The blood clot information was allegedly not conveyed to Davidson's treating physicians. Davidson died at the hospital on February 12, 1991, from a pulmonary embolism (blood clot obstructing the pulmonary artery between the heart and lungs). Davidson's physicians allegedly failed to: (1) take an adequate medical history, (2) diagnose pulmonary emboli, and (3) treat Davidson to prevent formation of blood clots. At the urging of Davidson's brother, Mrs. Davidson The doctors and the hospital filed motions to dismiss under to K.S.A. 60-212(b)(6) for failure to state a claim, arguing the action was time barred. Davidson filed a motion to amend her petition "to more clearly state that while Plaintiff was aware of her husband's death on February 12, 1991, the earliest she could have known that there was a link between the death and any negligence of Defendants was March 4, 1991." The district court denied the motions to dismiss. The district judge's memorandum decision cited Clark, but stated: "Clark is a fact case as clearly signaled by the judges when they added the words 'in this case.' I am not willing to extrapolate it into authority for a motion to dismiss where the facts are not part of the pleadings."

on March 11 and 12, 1991, spoke with an investigator from the offices of the attorneys that represented her in this case in the district court and in the Court of Appeals. During her discussion, she learned that because of her husband's history of blood clots, he would be prone to develop them again if he lay in bed for some time. She also learned that medication to thin her husband's blood could have been given to lessen the chance of blood clots forming and moving to the lungs. On March 4, 1993, Mrs. Davidson filed an action against the hospital, three doctors, and other medical personnel, alleging that her husband's death resulted from negligent medical care at the hospital. Her original petition alleged that she "was without knowledge of any negligence or causal connection with regard to any fault or negligence of any health care provider that caused or contributed to cause the death of Buddy Dean Davidson until March 4, 1991."

Thereafter, two of the doctors and the hospital filed motions to reconsider the district court's ruling. Mrs. Davidson filed another motion to amend her petition, with a supporting memorandum including more detailed factual allegations of Davidson's treatment and death. The memorandum also addressed her knowledge of her husband's treatment and death and attached answers to interrogatories describing her March 11 and 12, 1991, conversations with the investigator from her attorneys' office. She stated that she was not aware of the defendants' negligence until "after March 4, 1991." Some parties exchanged interrogatories, document production requests, and responses. The parties filed pretrial questionnaires, and a pretrial conference was held. Mrs. Davidson also filed a First Supplemental Pretrial Questionnaire which specified her theories of negligence.

The district court heard oral argument on: (1) the motions to reconsider, (2) Mrs. Davidson's motion to amend her petition, and (3) a pending motion for summary judgment filed by one of the physicians which is not part of this appeal. The Davidson panel's review of the record suggested that the district court may not have considered Mrs. Davidson's responses to certain interrogatories. She answered that she did not know until after March 4, 1991, that her husband was likely to develop blood clots if he lay in bed for an extended period or that medications could have been given to prevent the development of blood clots. 21 Kan.App.2d at 229, 897 P.2d 1043. We question the Court of Appeals' observation. The answers to interrogatories were attached to her motion to amend her...