Jones v. Neuroscience Associates, Inc., P.A.

• Decision Date: 28 February 1992
• Docket Number: No. 66529,66529
• Citation: 250 Kan. 477,827 P.2d 51
• Parties: Ruby JONES, Appellant, v. NEUROSCIENCE ASSOCIATES, INC., P.A., Robert M. Beatty, M.D., Anesthesiology Chartered, and Steven G. Cohn, M.D., Appellees.
• Court: Kansas Supreme Court

Page 51

827 P.2d 51

250 Kan. 477

Ruby JONES, Appellant, v. NEUROSCIENCE ASSOCIATES, INC., P.A., Robert M. Beatty, M.D Anesthesiology Chartered, and Steven G. Cohn M.D., Appellees.

No. 66529.

Supreme Court of Kansas.

Feb. 28, 1992.

Syllabus by the Court

1. In considering a motion for summary judgment, a trial court must give to a litigant against whom summary judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration.

2. Under the provisions of K.S.A. 60-513(c), a cause of action for medical malpractice does not accrue until such time as the fact of injury becomes reasonably ascertainable.

3. Where there is conflicting evidence as to when a cause of action for medical malpractice is deemed to have accrued under K.S.A. 60-513(c), the matter becomes an issue for determination by the trier of fact.

4. Under the facts of this case, evidence stemming from the "physician-patient relationship" or "continuous treatment" doctrines is relevant upon the issue of when it was reasonably apparent to the plaintiff that an injury was permanent, i.e., substantial.

Rosie M. Quinn, Rosie M. Quinn & Associates, Kansas City, argued the cause and was on the brief, for appellant.

James D. Griffin, Blackwell Sanders Matheny Weary & Lombardi, Overland Park, argued the cause, and Michael G. Smith and Larry L. McMullen, both of the same firm, Kansas City, Mo., were with him on the brief, for appellee Robert M. Beatty, M.D.

Katherine C. Opie, Couch, Strausbaugh, Pierce & King, Chartered, Overland Park, argued the cause, and Hal Pierce, was with her on the brief, for appellee Anesthesiology Chartered.

Thomas M. Sutherland, Holbrook, Heaven & Fay, P.A., Merriam, argued the cause, and Janet M. Simpson, was with him on the brief, for appellee Steven G. Cohn, M.D.

LOCKETT, Justice:

This is a medical malpractice action. Ruby Jones was injured in an automobile accident in November 1985. She underwent a cervical laminectomy on January 17, 1986. During this surgery, the radial nerve in her left arm was damaged. Jones filed this lawsuit on January 16, 1990, more than two years after the surgery. The trial court granted the defendants' motions for summary judgment, finding (1) the action was barred by the K.S.A. 60-513(a) two-year limitation for bringing the action, and (2) Anesthesiology Chartered could not be vicariously liable for the acts of its agents under K.S.A. 40-3403(h). Plaintiff appealed, claiming (1) her action was filed within the period of limitations; (2) the statute of limitations was tolled because of the continuous treatment or blameless ignorance doctrines, fraudulent concealment, or equitable estoppel; (3) she had a separate cause of action against Dr. Robert Beatty that did not relate to the initial surgery; (4) the trial court erred by granting summary judgment on the statute of limitations issue because genuine issues of fact existed; and (5) the trial court erred by granting Anesthesiology Chartered summary judgment.

Ruby Jones sustained injuries to her neck or back in the accident. One of the symptoms of the injury was pain in her right arm. Her physician, Dr. A.P. Taliaferro, referred Jones to Dr. Robert Beatty for treatment of the injuries.

Dr. Beatty hospitalized Jones in January 1986, and performed a cervical laminectomy. The anesthesiologist was Dr. Steven G. Cohn, an employee of Anesthesiology Chartered. The day after the surgery, Jones could not move her left hand and all the fingers on her left hand were curled into a fist. Jones now estimates she has lost 90% of the use of her left hand.

Jones' deposition indicates that on January 18, Dr. Beatty informed Jones that there had been a problem and they were going to continue to observe the situation. Dr. Beatty told Jones that her condition would be resolved in 2 months. He later informed Jones it would be resolved in 6 months; then 9 months; then 18 months; and finally 2-4 years. During 1987, Jones' condition did improve such that three fingers on her left hand had uncurled.

Jones' deposition also indicates that the day after her surgery Dr. Cohn visited Jones in her hospital room. Dr. Cohn told Jones there had been a little problem during the surgery. When asked by Jones what the problem was, Dr. Cohn did not go into any detail but told Jones she was with the right people and the problem would clear up. Jones saw Dr. Cohn two or three times after January 18, 1986. She last talked to Dr. Cohn sometime in 1986, during outpatient physical therapy treatment. Dr. Cohn did not inform Jones her injuries were permanent.

In a deposition, Dr. Beatty indicated Jones' problem with her left hand and arm was possibly related to the anesthesiologist, Dr. Cohn, positioning the patient during surgery. Dr. Beatty stated that Jones was positioned normally but it was his opinion that a metal strut which held the patient in a sitting position had rested against Jones' arm, creating pressure against the radial nerve. Dr. Beatty testified that although care was taken, there was sufficient pressure to cause Jones' injury. Dr. Beatty said he had diagnosed plaintiff's problem with her left hand and arm as a compressive radial nerve neuropathy which usually improves and it was improving in plaintiff's case.

Jones last saw Dr. Beatty in 1987 or 1988. In December 1989, Jones discovered the medical records at Providence-St. Margaret Health Center indicate that Dr. Beatty positioned her during the January 17, 1986, surgery, not Dr. Cohn.

After her surgery, Jones contacted two other doctors, Dr. Taliaferro and Dr. Ragland, about her condition. Both doctors informed her that if she was having any problem or had questions she should consult the doctor who was treating her, Dr. Beatty.

In April or May of 1990, Jones consulted doctors at the Neurology Department at the University of Kansas Medical Center. She was advised by the doctors that the radial nerve in her left arm had been damaged. Jones was informed that immediately after surgery Dr. Beatty should have had an EMG performed on her left arm. Jones was told because of Dr. Beatty's delay, no further improvement of her left hand was now possible. Jones claims she first became aware the condition of her left hand was permanent when she was informed by the doctors at the University of Kansas Medical Center in 1990.

Jones filed her action on January 16, 1990, four years after the surgery. All defendants filed motions for summary judgment, contending Jones' action was barred by the two-year limitation of K.S.A. 60-513. Anesthesiology Chartered further contended it should be dismissed as a defendant because it could not be held vicariously liable for its employee's, Dr. Cohn's, negligence under K.S.A. 40-3403(h).

The district judge noted that (1) Jones was aware her arm or hand was injured after the surgery on January 17, 1986, or on June 10, 1987, when Dr. Beatty stated in his deposition that Jones had suffered injury and damage during the surgery; (2) in addition to having knowledge of her injury, Jones admitted that two of her friends, who had medical experience, told her that the result of the operation was unusual and unexpected in such a surgical procedure; and (3) despite this knowledge, Jones did not institute this suit until January 16, 1990, well beyond the two-year limitation. The district judge granted all the defendants' motions for summary judgment, finding (1) the two-year statute of limitations had run and (2) Anesthesiology Chartered could not be held vicariously liable for Dr. Cohn's acts. Plaintiff raises several issues.

Jones contends there was no evidence before the trial court that either Anesthesiology Chartered or Dr. Cohn had a policy of professional liability insurance such that Anesthesiology Chartered would fall under the no vicarious liability umbrella of K.S.A. 40-3403(h). Jones further contends the doctrine of respondeat superior was not changed by the Kansas Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq.

K.S.A. 40-3403(h) provides:

"(h) A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act."

Anesthesiology Chartered's motion for summary judgment stated it was a health care provider who is qualified for coverage under the fund.

The district court correctly concluded K.S.A. 40-3403(h) abolished vicarious liability for health care providers in 1986 and that Anesthesiology Chartered should be granted summary judgment. See Sharples v. Roberts, 249 Kan. 286, 816 P.2d 390 (1991), for a discussion of 40-3403(h).

Was Jones' action filed within two years after the injury to her left arm or hand was reasonably ascertainable, i.e., within the two-year period of limitations for filing a medical malpractice action? In considering a motion for summary judgment, a trial court must give to a litigant against whom summary judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration.

K.S.A. 60-513(a)(7) and (c) provide:

"(a) The following actions shall be brought within two (2) years:

....

"(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.

....

"(c) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of...