Holt v. Wesley Med. Center, 90,702
| Decision Date | 19 March 2004 |
| Docket Number | No. 90,702,90,702 |
| Parties | KIMBERLYN D. HOLT, a minor, by and through KIMBERLY R. HOLT and KENNETH F. HOLT, Her Parents, Natural Guardians, and Next Friends, and KIMBERLY R. HOLT and KENNETH F. HOLT, Individually, Plaintiffs, v. WESLEY MEDICAL CENTER, LLC, a Kansas Corporation, D/B/A WESLEY MEDICAL CENTER; WICHITA CENTER FOR GRADUATE MEDICAL EDUCATION, INC., a Kansas Corporation; BENJAMIN J. HARRIS, M.D.; CLIFFORD S. DEPEW, M.D.; JAMES E. DELMORE, M.D.; and TRAVIS W. STEMBRIDGE, M.D., Defendants. |
| Court | Kansas Supreme Court |
J. Greg Kite, of Wichita, argued the cause, and James J. Long, of Wichita, was with him on the briefs for plaintiffs.
John H. Gibson, of Gilliland & Hayes, P.A., of Wichita, argued the cause, and Michelle M. Watson and Matthew D. Tinnel, of the same firm, were with him on the briefs for defendant Wesley Medical Center, LLC.
David S. Wooding, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, argued the cause, and Roger E. McClellan and Teresa L. Mah, of the same firm, were with him on the briefs for defendants Wichita Center for Graduate Medical Education, Inc. and Benjamin J. Harris, M.D.
James J. Long and Donald S. Andersen, of Wichita, were on the brief for amicus curiae Ashley Raney-Neises.
Nathan D. Leadstrom, and Wayne T. Stratton, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, were on the brief for amicus curiae Kansas Hospital Association.
James R. Howell and Kyle J. Steadman, of Arden J. Bradshaw & Associates, of Wichita, were on the brief for amicus curiae Kansas Trial Lawyers Association.
The opinion of the court was delivered by
This medical malpractice action was filed by plaintiffs Kimberly R. Holt and Kenneth F. Holt, and their daughter, Kimberlyn D. Holt, by and through her parents in federal court. Defendants are Wesley Medical Center, LLC, d/b/a/ Wesley Medical Center, Wichita Center for Graduate Medical Education, Inc. (WCGME), and Doctors Benjamin J. Harris, Clifford S. Depew, James E. Delmore, and Travis W. Stembridge. Upon the application of plaintiffs, Judge Julie A. Robinson of the United States District Court for the District of Kansas ordered certification of a question of law to this court under K.S.A. 60-3201 et seq. The question arises from the legislature's retroactively including WCGME within the statutory definition of "health care provider," thus relieving it of vicarious liability pursuant to K.S.A. 2001 Supp. 40-3403(h). See K.S.A. 2001 Supp. 40-3414(i)(1).
Amicus curiae briefs have been filed by Ashley Raney-Neises, the Kansas Trial Lawyers Association, and the Kansas Hospital Association (KHA).
CERTIFIED QUESTION:
DOES THE RETROACTIVE APPLICATION, BY K.S.A. 2001 SUPP. 40-3414(i)(1), OF L. 2001, CH. 204 (S.B. 366), AMENDING K.S.A. 40-3401(f) AND K.S.A. 40-3403(h) OF THE HEALTH CARE PROVIDER INSURANCE AVAILABILITY ACT, DEPRIVE PLAINTIFFS OF A VESTED PROPERTY RIGHT AND VIOLATE § 18 OF THE BILL OF RIGHTS OF THE KANSAS CONSTITUTION AND, IN ADDITION, VIOLATE
The following brief statement of facts is taken from the uncontroverted facts set forth by WCGME and plaintiffs for purposes of a summary judgment motion.
WCGME is comprised of the University of Kansas School of Medicine-Wichita, Wesley Medical Center (Wesley), and Via Christi Regional Medical Center. WCGME is a not-for-profit corporation that at all relevant times employed defendant Benjamin Harris as a resident physician.
WCGME does not hold a license from the Kansas Board of Healing Arts, nor is WCGME licensed as a medical care facility. It is not a hospital, it maintains no medical supplies, and it does not advertise or solicit patients on its own or for the resident physicians it employs. Although WCGME does not engage in the practice of medicine, provide patient services, or provide medical services to the public, the resident physicians WCGME employs do.
The plaintiffs' claim is based upon the negligence of Dr. Harris as an employee and/or agent of WCGME based upon vicarious liability. Wesley contractually agreed to indemnify WCGME for the negligent acts of WCGME's physicians practicing at its facility.
In the months of March and May 2001 in meetings involving Wesley and various legislators, the status of WCGME as a health care provider was discussed. Patricia Dengler, general counsel for WCGME, presented testimony to the Senate Financial Institutions and Insurance Committee on April 26, 2001. She testified that WCGME had been named as a defendant in three medical malpractice actions, where the Health Care Stabilization Fund (Fund) initially advised WCGME that the Fund would provide defense costs and coverage of any settlement or judgment but later advised WCGME that it was not covered by the Fund. Minutes, Senate Fin. Inst. and Ins. Comm., April 26, 2001 (S.B. 366). Dengler proposed amendments to certain sections of the Health Care Provider Insurance Availability Act (Act), K.S.A. 40-3401 et seq., that would bring WCGME within the definition of "health care provider." See K.S.A. 2001 Supp. 40-3401(f). According to WCGME, Kimberlyn Holt was born at Wesley in Wichita, Kansas, on July 30, 1998. Since birth, she has had profound and permanent medical problems that plaintiffs attribute to negligence on the part of resident physicians, nurses, and other health care providers who participated in the labor and delivery. According to the Holts, the care and treatment of Kimberly Holt July 29-31 and October 22, 1998, resulted in her being unable to have other children and having bladder and urinary tract difficulties. The Holts also assert that they have sustained economic and noneconomic losses due to the continuing medical problems of mother and daughter.
The Holts contend that the retroactive provision of K.S.A. 2001 Supp. 40-3414(i)(1) deprives them of a vested property right in violation of § 18 of the Bill of Rights of the Kansas Constitution. The constitutional provision provides that "[a]ll persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay." Kan. Const. Bill of Rights, § 18. The statute provides:
"Subject to the provisions of paragraph (4), for the purposes of the health care provider insurance availability act, each nonprofit corporation organized to administer the graduate medical education programs of community hospitals or medical care facilities affiliated with the university of Kansas school of medicine shall be deemed to have been a health care provider as defined in K.S.A. 40-3401, and amendments thereto, from and after July 1, 1997."
The negligence alleged by the Holts occurred in 1998, and they filed suit on July 28, 2000. The challenged legislation was enacted in 2001. L. 2001, ch. 204, secs. 1 and 3.
The Holts rely heavily on Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 892 P.2d 497 (1995), for support of their position that their tort actions for negligence constitute a vested property right. In Fleischer the question "Under Kansas law, does the holder of accrued tort actions for negligence and breach of fiduciary duty, which have not yet been reduced to judgment have a vested property right in those causes of action?" was one of two questions certified to this court. 257 Kan. at 361, 364-74. Based on its examination of Kansas law and the law of other jurisdictions, the Fleischer court concluded that the holder of an accrued tort action for negligence has a vested property right in that cause of action. 257 Kan. at 374.
There is no question that plaintiffs had an accrued cause of action against WCGME for derivative negligence at the time the challenged legislation was enacted. WCGME, however, argues that because Fleischer involves direct rather than derivative liability, the case does not support the Holts' position that their derivative negligence cause of action was a vested property right. WCGME cites this court's caution in restricting the scope of its decision in Fleischer: (Emphasis added.) 257 Kan. at 374. As a matter of fact, the Resolution Trust's suit against former directors of a savings and loan association involved direct rather than derivative liability. Examination of the court's analysis in Fleischer, however, reveals no suggestion that the factual difference between direct and derivative negligence might be significant. Principles discussed in the analysis include the difference between procedural and substantive rights, only the latter being protected, and recognition of a link between the moment of accrual of a cause of action and the creation of vested rights. 257 Kan. at 366. In examining cases from other jurisdictions, the court distinguished cases relied on by the defendant directors as merely curing or clarifying defects in existing ambiguous statutes and those involving retroactive legislation aimed at urgent problems of overriding public interest. See 257 Kan. at 370-73. There is no hint that any distinction between direct and derivative liability entered into the court's analysis.
WCGME cites KPERS v. Reimer & Koger Assocs., Inc., 261 Kan. 17, 927 P.2d 466 (1996), for this court's rejection of Reimer & Koger's argument that seeking indemnity was a vested right. The court concluded that a cause of action for indemnity based on tort does not accrue until the indemnitee has suffered an actual loss. 261 Kan. at 40. Hence, were Reimer & Koger found not to be liable to KPERS, there would be nothing for Reimer & Koger to recover in indemnity. WCGME would draw a parallel with the...
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