Fieser v. St. Francis Hospital & School of Nursing, Inc.

• Decision Date: 12 May 1973
• Docket Number: No. 46714,46714
• Citation: 212 Kan. 35,510 P.2d 145
• Parties: Dr. John E. FIESER, Appellant, v. ST. FRANCIS HOSPITAL AND SCHOOL OF NURSING, INC., et al., Appellees.
• Court: Kansas Supreme Court

Page 145

510 P.2d 145

212 Kan. 35

Dr. John E. FIESER, Appellant, v. ST. FRANCIS HOSPITAL AND SCHOOL OF NURSING, INC., et al., Appellees.

No. 46714.

Supreme Court of Kansas.

May 12, 1973.

Rehearing Denied June 21, 1973.

Syllabus by the Court

1. If a negligent party is liable for another's bodily injury he is also subject to liability for any additional bodily harm resulting from normal effects of third persons in rendering aid which the other's injury reasonable requires, irrespective of whether such acts are done in a proper or a negligent manner.

2. When a successive tort occurs at the hands of an independent tortfeasor a general release gives to the original tortfeasor does not automatically release the successive tortfeasor.

3. A successive tortfeasor may be released if it is so intended or if the consideration paid for the release constitutes full compensation or is accepted as such.

4. If the release of the original tort-feasor is not actually intended to release the doctors and hospitals who have treated or may in the future treat the tort victim, and if the amount paid to the tort victim does not constitute full compensation for claims against the original tortfeasor and the doctor and the hospital as well, and was not accepted as such, the tort victim can fairly and equitably seek further recovery from the doctor and the hospital for malpractice.

5. Whether a release given to the original tortfeasor allegedly responsible for an injury has been intended to release both the original tortfeasor and the doctor and hospital who treated the tort victim and whether the tort victim has been fully compensated are questions of fact.

6. When a general release discloses on its face that it has been given to named releasees who denied liability but made payment by way of compromise and settlement, then and in that even other alleged successive wrongdoers who were not parties to the release and made no payment toward satisfaction can fairly be called upon to show that either the release which they rely on was intended to discharge them or that the releasor has received full compensation.

7. The execution of a release pleaded by a defendant in his answer is an allegation of an affirmative defense concerning which the defendant must sustain the burden of proof.

8. The rule relating to the release of successive tortfeasors declared in Keown v. Young, 129 Kan. 563, Syl. 3, 283 P. 511, and in Paris v. Crittenden, 142 Kan. 296, 46 P.2d 633, is disapproved and said cases are overruled insofar as they conflict with the rule adopted in the present opinion.

9. In a malpractice action, where the defense relied on was a general release given by the plaintiff to an original tortfeasor allegedly responsible for the injuries treated by defendants, fact questions precluding summary judgment for defendants were presented.

Terry O'Keefe, Wichita, argued the cause, and Martha R. Hodges and Walter C. Williamson, Wichita, were with him on the brief for the appellant.

Lawrence McDonough, of Jochems, Sargent & Blaes, wichita, argued the cause, and J. Francis Hesse, Wichita, was with him on the brief for St. Francis Hospital and School of Nursing, Inc., appellee.

Jerry G. Elliott, of Foulston, Siefkin, Powers & Eberhardt, Wichita, argued the cause, and Robert C. Foulston, Wichita, was with him on the brief for The Wichita Clinic and Dr. John F. Lance, appellees.

FROMME, Justice:

This is an appeal by plaintiff from summary judgment entered in favor of all defendants. The problem presented concerns a release given to an original tortfeasor and raises the question of what effect such a release has on a subsequent malpractice action.

On March 7, 1969, plaintiff was injured when his car collided with another automobile parked on a highway near Wellington, Kansas. The offending automobile was owned by Kenneth J. Stinnett and had been left unattended on the highway by his son, James D. Stinnett. On March 17, 1969, plaintiff in compromise and settlement with the Stinnetts received $2300 for damage to his car and $1200 for medical expenses and injuries to his person. He signed a general release which in pertinent part reads as follows:

'. . . the undersigned hereby releases and forever discharges Kenneth Stinnet(t) and James Stinnet(t) . . . and all other persons, firms or corporations liable or who might be claimed to be liable, . . . from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 7th day of March, 1969 . . .

'Undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.'

It was stipulated that at the time the release was signed plaintiff did not know he had suffered a ruptured intervertebral disc that would require hospitalization and surgery, although the ruptured disc was directly caused by the accident. Several months after the accident plaintiff learned of the ruptured disc and selected the defendant, John F. Lance M.D., an orthopedic surgeon to treat him. It was stipulated that plaintiff exercised due care in selecting the surgeon.

On January 15, 1970, Dr. Lance assisted by the personnel of St. Francis Hospital and School of Nursing, Inc., performed a laminectomy on plaintiff's back to relieve the effects of the ruptured disc. During the operation a four by twelve inch sponge was left in plaintiff's body. As a result of this act of negligence, a second operation was necessary to remove the sponge.

The present action was brought against the doctor and hospital for negligence in performing the laminectomy and in subjecting the plaintiff to a second operation to extract the sponge.

The defendant doctor and hospital filed a motion for summary judgment attaching the Stinnett release of March 17, 1969, and asserting that said release constituted a full release of the claim of plaintiff against the defendants. The facts necessary for a determination of the motion were stipulated by the parties, the motion was argued and the court entered summary judgment in favor of all defendants. This appeal followed.

Before considering the questions raised on this appeal we wish to note this is the third appeal to reach this court arising from the injuries plaintiff incurred in this automobile collision. In Fieser v. State Farm Mutual Automobile Ins. Co., 210 Kan. 418, 502 P.2d 837, we considered the liability of plaintiff's own insurance company for medical benefits. In Fieser v. Stinnett, 212 Kan. 26, 509 P.2d 1156, (this day decided) we upheld the validity of the Stinnett release so far as the liability of the Stinnetts is concerned. We are here concerned only with the effect of the Stinnett release on the malpractice action.

Two Kansas cases, Keown v. Young, 129 Kan. 563, 283 P. 511, and Paris v. Crittenden, 142 Kan. 296, 46 P.2d 633, were relied on by defendants in the court below. In Keown it was held:

'When one sustains personal injuries by the negligence of another and settles his claim for damages against such party, and executes to him a release and discharge 'of all suits, actions, causes of action and claims for injuries and damages, which I have or might have arising out of the injuries,' such release covers and includes a claim for injuries resulting from the negligence of a physician called by the injured party to treat his injuries when there is no claim of a lack of due care in selecting a physician, or in following his advice with respect to the treatment.' (Syl. 3)

The release in the instant case is even broader than the one in Keown since it purports to release 'all other persons, firms or corporations' for liability 'from any and all claims . . . which have resulted or may in the future develop from an accident which occurred on or about the 7th day of March, 1969 . . .'

Keown was followed by Paris v. Crittenden, supra, which stated in the syllabus:

'A person injured on a stairway was taken to a hospital where he was treated in a negligent manner by a carefully chosen physician, which resulted in a serious injury-the loss of the use of an arm. He brought an action against the original wrongoders, and afterwards settled with them for the injury for a small sum. After treatment by the physician for an extended time and after settling with defendants, he brought this action against the physician for malpractice and alleged the loss of the use of his arm through the physician's negligence. Held, that the original wrongdoers were guilty of the proximate result to plaintiff, and when they settled with plaintiff and secured a release from all damages growing out of the accident his release covered the negligence of the physician and acquitted him of all damages in his treatment.'

In addition to Keown and Paris the defendants-appellees rely on Harris v. Brian, 255 F.2d 176, a case from the tenth circuit court of appeals which recognizes and follows the Kansas rule set out in Keown and Paris.

The plaintiff-appellant points out that in each of the foregoing cases the release was not given until after the injured party had received the treatment and hospitalization, and the tortious acts had occurred. In the present case the release was executed only ten days after the automobile accident and, although plaintiff had seen his own personal doctor several times, x-rays had failed to disclose any need for back surgery. He had not consulted the defendant Dr. Lance but the extent of his physical...