Hill v. Farm Bureau Mut. Ins. Co.
| Decision Date | 23 January 1998 |
| Docket Number | No. 77809,77809 |
| Citation | 952 P.2d 1286,263 Kan. 703 |
| Parties | Nancy HILL, Appellee, v. FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The control of discovery is entrusted to the sound discretion of the trial court, and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion.
2. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.
3. An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant's claim of alleged error fails.
4. Assertions of fact in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.
Patrick E. McGrath, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, argued the cause, and Paul Hasty, Jr., and Casey O. Housley, of the same firm, were on the briefs, for appellant.
Robert A. De Coursey, Kansas City, argued the cause and was on the brief, for appellee.
This action was filed by an insured seeking recovery for personal injury from her insurance carrier under uninsured motorist coverage. The case was ultimately dismissed without prejudice. The matter before us arose during discovery when the insurance carrier subpoenaed the insured's medical records from a nonparty hospital and concerns the district court's quashing of the subpoena and its direction as to payment of the cost of photocopying the medical records. The case was transferred to this court on our own motion pursuant to K.S.A. 20-3018(c).
The petition filed herein alleges that plaintiff, Nancy Hill, was injured in an automobile accident in January 1992, said accident being the fault of the other driver, who was uninsured. Hill sought $52,000 from defendant Farm Bureau Mutual Insurance Company (Farm Bureau), her insurance carrier, under the policy's uninsured motorist coverage.
As a part of its discovery, Farm Bureau served a subpoena duces tecum on Providence Medical Center (Providence), pursuant to K.S.A. 60-245a, seeking Hill's medical records.
Providence filed an objection on the grounds federal law precluded disclosure of the records without consent of the patient or a court order stating such disclosure was necessary in the interests of justice. A hearing was held. The subpoena was quashed, Providence was to make the medical records available at the hospital to Farm Bureau's counsel, and any requested photocopies were to be made by Providence at the cost the hospital "normally" charged. Copies were made. Farm Bureau disputes the cost thereof in this appeal. Other facts (and the lack thereof) will be stated as needed in the discussion of the issues.
Before proceeding, the applicable standards of review need to be stated. Control of discovery is entrusted to the sound discretion of the trial court, and orders concerning discovery will not be disturbed on appeal in the absence of clear abuse of this discretion. Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, Syl. p 20, 856 P.2d 906 (1993); Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, Syl. p 9, 815 P.2d 550 (1991); Ryan v. Kansas Power & Light Co., 249 Kan. 1, 11, 815 P.2d 528 (1991).
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Simon v. Simon, 260 Kan. 731, Syl. p 2, 924 P.2d 1255 (1996).
We turn now to the issues. For its first issue, Farm Bureau contends the trial court erred in not allowing it to take the deposition of the custodian of the records of Providence.
In its argument on this issue, Farm Bureau paints with an extremely broad brush, spending little time on the particulars of this case. Rather, it states the general proposition that there are two ways to obtain hospital medical records: (1) through a medical authorization from the patient, which may be a slow process and expensive, as Farm Bureau argues, Kansas hospitals "commonly gouge attorneys" on the cost of copies; and (2) by subpoena duces tecum requiring the records to be brought to the requesting attorney's office, which is a faster and cheaper means, with a date certain, and the attorney can make the copies on his or her own office equipment.
Farm Bureau argues that had the subpoena duces tecum not been quashed, the records would have been brought to its attorney's office by the custodian, where copies would have been made at an economical cost. This is the harm the quashing of the subpoena caused--Farm Bureau had to pay an allegedly exorbitant bill for the copies made by Providence.
There are several major flaws in the arguments presented on this issue. The subpoena duces tecum issued to Providence provides in pertinent part:
"You are commanded to produce the records listed below before a Certified Shorthand Reporter for the State of Kansas from Jay E. Suddreth & Associates, Inc., at your place of business 8929 Parallel Parkway, Kansas City, Kansas...." (Emphasis supplied.)
Had the subpoena not been quashed, the medical records would have been produced...
To continue reading
Request your trial
-
State v. Jackson
...This implied finding is supported by the evidence in the record and will not be overturned on appeal. See Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998). There is no merit to this Fairness of the officers in conducting the investigation Jackson argues that the offi......
-
Kan. Med. Mut. Ins. Co. v. Svaty
...discovery will not be disturbed on appeal in the absence of clear abuse of discretion. [Citations omitted.]" Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 704, 952 P.2d 1286 (1998). However, as previously noted, the Mohawk Court recognized mandamus as a potential remedy under some circumst......
-
Kloster v. Hancock (In re Rockhill Pain Specialists, P.A.)
...Standard of review and preservation The standard of review for discovery issues is abuse of discretion. Hill v. Farm Bur. Mut. Ins. Co. , 263 Kan. 703, 704, 952 P.2d 1286 (1998). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by ......
-
State v. Thomas
...argues the court can consider remand if meaningful appellate review is precluded. It relies on language from Hill v. Farm Bur. Mut. Ins. Co. , 263 Kan. 703, 952 P.2d 1286 (1998), where a litigant challenged an order quashing a subpoena, but did not raise the challenge in the district court.......