Kelly v. Vinzant

• Decision Date: 12 December 2008
• Docket Number: No. 94,648.,94,648.
• Citation: 197 P.3d 803
• Parties: William J. KELLY, Appellant/Cross-appellee, v. Whitney L. VINZANT, M.D., Appellee/Cross-appellant.
• Court: Kansas Supreme Court

197 P.3d 803

William J. KELLY, Appellant/Cross-appellee, v. Whitney L. VINZANT, M.D., Appellee/Cross-appellant.

No. 94,648.

Supreme Court of Kansas.

December 12, 2008.

[197 P.3d 805]

Susan R. Schrag, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause, and Edward L. Robinson, of the same firm, was with her on the briefs for appellant/cross-appellee.

Jerry D. Hawkins, of Hite, Fanning & Honeyman, L.L.P., of Wichita, argued the cause, and Randy J. Troutt, of the same firm, was with him on the briefs for appellee/cross-appellant.

The opinion of the court was delivered by LUCKERT, J.:

This appeal raises questions of whether a medical malpractice plaintiff may state a claim for fraud and for violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., after a jury found that the physician did not commit medical malpractice, and whether the statute of limitations for battery based upon a fraudulently obtained consent begins to run when the fraud is discovered or when the battery occurred.

We hold that where the alleged fraud occurs as part of the informed consent process during medical treatment, a common-law fraud claim may not be stated independent of the medical malpractice claim. On the other hand, a KCPA claim may be, and a defense verdict on the medical malpractice claim does not foreclose the KCPA claims, which in this case were severed for a separate trial. Finally, we hold the statute of limitations begins to run on a battery claim at the time of the touching, even if the consent leading to the touching was vitiated by fraud not discovered immediately. The legislature defines periods of limitations and has not provided an exception to or stated any circumstances extending the statute of limitations for battery based upon concealment of fraud or an inability to discover the battery.

FACTS

William J. Kelly's family physician, Dr. Edward Lind, examined a lump in Kelly's groin area. After diagnosing a hernia, Lind told Kelly he needed surgery and recommended two surgeons—Dr. Whitney L. VinZant and another doctor.

Kelly went to VinZant, who examined Kelly, confirmed the diagnosis of a hernia, and recommended surgery. VinZant described the procedure he would perform to repair the hernia and gave Kelly a pamphlet explaining the surgery. On October 22, 1999, VinZant performed inguinal hernia surgery on Kelly.

At a follow-up visit on October 28, 1999, Kelly complained of soreness in his groin area and that his left testicle was missing. VinZant performed an examination and, according to Kelly, said, "There it is. It's right there at the base. It should drop ... down where it belongs." Kelly asked whether VinZant had done something to cause the testicle to be missing. Kelly summarized VinZant's response as, "All my surgeries are good; I do not do bad surgeries."

Kelly saw VinZant again on November 4, 1999. Kelly's groin pain was better, but his left testicle had still not dropped. Over the next 6 weeks, VinZant performed weekly examinations of Kelly; during this time, there was no change in Kelly's condition. Kelly then saw his family physician, Lind, and reported that his left testicle had not dropped since the hernia surgery. Lind called VinZant's office, and VinZant examined Kelly again. At that point, VinZant told Kelly he needed another surgery. VinZant explained that Kelly's testicle was in his body cavity and, if it was still functional, it could be pulled back down; if it was not functional, it would need to be removed because it could become cancerous.

On April 7, 2000, VinZant performed exploratory surgery and removed a mass of tissue, which he thought was the testicle. Subsequent testing revealed the tissue was not the testicle, and, on April 13, 2000, VinZant told Kelly another surgery was necessary.

After a sonogram was performed, VinZant performed a third surgery on April 15, 2000, and was able to locate and remove the necrotized testicle.

Two years later, on April 15, 2002, Kelly filed three separate lawsuits, each based on one of the three surgeries. All of the petitions contained a claim for medical malpractice based on allegations that the respective surgeries were performed negligently and/or without informed consent. The petitions relating to the last two surgeries each alleged common-law fraud based on VinZant's statement that "[a]ll my surgeries are good; I do not do bad surgeries"; battery in the form of the two subsequent surgeries, which Kelly alleged were induced by the fraudulent statement; and violations of the KCPA based on the statement.

The district court consolidated the three lawsuits but bifurcated the proceedings, holding that the malpractice action would be tried first; then the common-law fraud, battery, and KCPA claims would be presented in a second, separate trial. Damage issues already decided in the first trial would not be relitigated.

Prior to trial, VinZant filed a motion for partial summary judgment on Kelly's KCPA, fraud, and battery claims. After a hearing, the district court granted summary judgment to VinZant on the KCPA claims, holding that under the rationale of State ex rel. Stovall v. ConfiMed.com, 272 Kan. 1313, 38 P.3d 707 (2002), the statements made by VinZant to Kelly in the context of an office visit did not constitute marketing and were not entrepreneurial in nature and therefore did not fall within the context of the KCPA. However, the district court declined to grant summary judgment on the two common-law fraud claims or two claims for battery based on fraudulently obtained consent.

The case proceeded to trial. VinZant's statement that "[a]ll my surgeries are good; I do not do bad surgeries" was not introduced at trial. Nor was there any evidence introduced concerning VinZant's record as a surgeon. The district court had held that such information would be inadmissible in the negligence trial under K.S.A. 60-455 as evidence of a prior civil wrong and would be reserved for the second trial on the fraud and battery claims.

The jury rendered a verdict in favor of VinZant by answering "No" to each of the following questions submitted to them:

"1. Do you find Defendant Whitney VinZant to be at fault in connection with the October 22, 1999 surgery?

"2. Do you find Defendant Whitney VinZant to be at fault in failing to perform imaging studies prior to the April 7, 2000 surgery?

"3. Do you find Defendant Whitney VinZant to be at fault in failing to inform Mr. Kelly of the potential risks of nerve damage prior to any of the operations?"

Following the verdict, the district court dismissed the fraud claims, holding "it would be inconsistent to ask the jury to go forward and to deliberate upon an allegation of fraud on all my surgeries are good, I don't do a bad surgery, ... when in fact, the jury has found that he didn't do a bad one [in] this case." The district court also dismissed the battery claims based on fraudulently obtained consents, holding that the statute of limitations had expired. Finally, the district court denied motions for a judgment notwithstanding the verdict and for a new trial based on juror misrepresentations during voir dire and assessed various expenses as costs to Kelly.

Kelly appealed, arguing that the district court erred in granting partial summary judgment to VinZant on the KCPA claims; the district court erred in dismissing his fraud and battery claims following the defense verdict on his allegations of medical malpractice; and the district court abused its discretion in disallowing certain evidence, in denying Kelly's motion for a new trial based on juror misconduct, and in awarding certain costs and expenses. VinZant cross-appealed the district court's failure to grant summary judgment on the fraud claims.

In addressing Kelly's first argument, the Court of Appeals noted in Kelly v. VinZant, 2007 WL 1239300 (Kan.App.2007) (unpublished opinion) that after the district court's ruling in this case regarding the KCPA, this court in Williamson v. Amrani, 283 Kan. 227, Syl. ¶ 1, 152 P.3d 60 (2007), held that "a physician providing care or treatment to a patient can be found to have engaged in deceptive acts and practices in violation of K.S.A. 50-626 and unconscionable acts and practices in violation of K.S.A. 50-627."

Nevertheless, the Court of Appeals concluded the district court correctly granted judgment on the KCPA claims, albeit for the wrong reason, because the issue of fraud was implicitly resolved by the jury's finding of no negligence. Under these facts, which the Court of Appeals stressed were unusual and unique, the alleged statement of fraud—"All my surgeries are good; I do not do bad surgeries"—was disproved with regard to Kelly as a result of the no-fault finding in the medical malpractice action, i.e., the statement was not untrue because the surgeries were not performed negligently.

The Court of Appeals also upheld the district court's dismissal of the battery claims based on the applicable statute of limitations, agreeing with the district court that "`[t]he fact that what looked like a consensual surgery is later determined to have been induced fraudulently vitiates the consent but doesn't change the time from which the battery occurred.'" Because the batteries occurred at the time of the second and third surgeries, the 1-year limitations period had expired prior to the filing of Kelly's petition.

Furthermore, the Court of Appeals held that Kelly did not properly preserve for appeal his argument that the district court abused its discretion in disallowing certain evidence; the district court did not abuse its discretion in denying Kelly's motion for a new trial based on juror misconduct; and the district court did not abuse its discretion in awarding certain costs and expenses.

Kelly filed a petition for review alleging the Court of Appeals erred in upholding the district court's rulings on the KCPA, fraud, and battery claims and maintaining...