Davidson v. Denning

• Decision Date: 23 June 1995
• Docket Number: No. 71776,71776
• Citation: 21 Kan.App.2d 225,897 P.2d 1043
• Parties: Lois DAVIDSON, Appellant, v. Dale DENNING, M.D., et al., Appellees.
• Court: Kansas Court of Appeals

Page 1043

897 P.2d 1043

21 Kan.App.2d 225

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

No. 71776.

Court of Appeals of Kansas.

June 23, 1995.

Review Granted Aug. 31, 1995.

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 trial 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. In an action for damages alleged to have resulted from medical malpractice and wrongful death, it is held that the two-year statute of limitations provided for under K.S.A. 60-513(a) does not commence to run until the fact of injury becomes reasonably ascertainable as provided for under K.S.A. 60-513(c).

David T. Greis, William H. Pickett, and Richard D. Fry, of William H. Pickett, P.C., Kansas City, MO, for appellant.

M. Warren McCamish, of Williamson & Cubbison, Kansas City, for appellee Dale Denning, M.D.

Evelyn Zabel Wilson, Thomas E. Wright, and J. Lyn Entrikin Goering, of Wright, Henson, Somers, Sebelius, Clark, & Baker, LLP, Topeka, for appellee Lawrence Memorial Hosp.

Michael P. Oliver and John M. Ross, of Wallace, Saunders, Austin, Brown and Enochs, Chartered, Overland Park, for appellees Richard Sosinski, M.D., and Gerald B. Pees, M.D.

Before LEWIS, P.J., ROYSE, J., and CARL B. ANDERSON, Jr., District Judge, Assigned.

CARL B. ANDERSON, Jr., District Judge, Assigned:

This is an action for wrongful death based upon claims of medical malpractice. A brief statement of the facts is necessary for an understanding of our decision.

Buddy Dean Davidson, the decedent, was admitted to Lawrence Memorial Hospital on February 9, 1991, suffering from facial burns. Subsequently, on February 12, 1991, Davidson died from a pulmonary embolism.

The decedent's wife filed this action on March 4, 1993, more than two years after his death. In her petition, the appellant claimed that at the time of her husband's admission, she told the emergency room nurse that he had a history of blood clots. She further alleged that this information was not recorded or brought to the attention of the treating physicians, nor did the treating physicians make independent inquiry into the decedent's medical history. As a result, the treating physicians failed to take measures to prevent blood clots, which, in fact, ultimately resulted and contributed to the decedent's death.

The hospital and treating physicians moved to dismiss, arguing that the appellant's wrongful death claim was barred by the statute of limitations, K.S.A. 60-513, because it was brought more than two years after the decedent's death. The trial court initially denied the motion, ruling that under K.S.A. 60-513(c), a wrongful death action may be brought at any time within two years after the appellant reasonably could have discovered that the death was the result of the appellees' negligence. The trial court later reversed its decision and granted judgment in favor of the appellees, ruling that the appellant reasonably could have discovered that the decedent's death was the result of the appellees' negligence on the date of his death and, therefore, the action was barred by the two-year statute of limitations. The record reveals that the trial court based its decision on the allegations contained in the appellant's amended petition, on the negligence theories set out in the appellant's pretrial questionnaire, and on statements made by the appellant's counsel during oral argument on the motion. Further facts will be related as needed.

The appellant first contends that the trial court erred in considering the allegations of her pretrial questionnaire and the statements of her attorney at oral argument in ruling that the cause of her husband's death was reasonably ascertainable on the date of his death. She argues that under a motion to dismiss for failure to state a claim upon which relief can be granted, the court may only consider the plaintiff's petition and the allegations of fact contained therein. Further, she maintains that her amended petition clearly alleges that she did not become aware that her husband's death was the result of appellees' negligence until after March 4, 1991, and, therefore, on the face of her amended petition her suit was timely filed.

Kansas law provides that a defense alleging that a claim has been filed outside an applicable statute of limitations may properly be raised on a motion to dismiss filed pursuant to K.S.A. 60-212(b)(6). Generally, in considering such a motion, the rule is that the trial court is confined to examining the well-pleaded facts of the plaintiff's petition in determining whether a claim has been stated upon which relief can be granted. In Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992), the court stated:

" ' "Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim." ' "

However, the rule is not iron clad. K.S.A. 60-212(b) also provides:

"If, on a motion asserting the defense provided in subsection (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256 and amendments thereto, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256 and amendments thereto." (Emphasis added.)

This exception to the general rule has been followed in numerous Kansas cases. See Beck v. Kansas Adult Authority, 241 Kan. 13, 24-29, 735 P.2d 222 (1987); Bethany Medical Center v. Knox, 10 Kan.App.2d 192, 193, 694 P.2d 1331 (1985).

Here, the trial court determined that it was going to receive and consider matters outside the appellant's amended petition. As a result and pursuant to K.S.A. 60-212(b), the appellees' motion to dismiss became a motion for summary judgment as if filed under K.S.A. 60-256. Thereafter, the court was required to decide the motion based upon the rules applicable to summary judgment motions. The standard of review for a summary judgment motion is set out in Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994), as follows:

"The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied."

It is a well-settled rule of law in Kansas that the "fact of injury" referred to in K.S.A. 60-513(b) and (c) is not reasonably ascertainable until it can reasonably be discovered that such injury was caused by the negligence of the defendant. See Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, 489, 827 P.2d 51 (1992). Ordinarily, the issue of when an injury and its cause become reasonably ascertainable is a question of fact. Crockett v. Medicalodges, Inc., 247 Kan. 433, 441, 799 P.2d 1022 (1990); see Cleveland v. Wong, 237 Kan. 410, 413-14, 701 P.2d 1301 (1985). Knowledge of a death does not automatically provide reason to believe that the death was a result of negligence, particularly in a medical malpractice case. Negligence in a malpractice case is never presumed and cannot be inferred merely from the lack of success of an operation or procedure or from an adverse result from treatment. Savina v. Sterling Drug, Inc., 247 Kan. 105, 129, 795 P.2d 915 (1990).

Patients having an unexpected result from surgery are not required to immediately determine whether it was the result of malpractice. See Jones v. Neuroscience Assocs., Inc., 250 Kan. at 489, 827 P.2d 51. Similarly, a decedent's heirs at law are not required to presume that the death was the result of negligence. A distraught surviving spouse or other heir cannot reasonably be expected to immediately begin investigating the cause of death in the absence of some reason to believe that malpractice occurred. See Fure v. Sherman Hospital, 64 Ill.App.3d 259, 271-72, 21 Ill.Dec. 50, 380 N.E.2d 1376 (1978).

Here, the trial court, in granting summary judgment, only considered the allegations contained in the appellant's amended petition, the explanation given by the appellant's attorney as to the reasons for the delay in filing the action, and the negligence theories set forth in the appellant's pretrial questionnaire. Based on these considerations, the court ruled as a matter of law that on the date of the decedent's death, it was reasonably ascertainable that his death was caused by the appellees' negligence.

A review of the appellant's amended petition reveals that the only allegation of fact which has any bearing on the discovery issue, other than the date of the...