Malone v. University of Kansas Medical Center

• Decision Date: 23 July 1976
• Docket Number: No. 48025,48025
• Citation: 552 P.2d 885,220 Kan. 371
• Parties: Rose MALONE and Grant Malone, Appellants, v. The UNIVERSITY OF KANSAS MEDICAL CENTER et al., Appellees.
• Court: Kansas Supreme Court

Page 885

552 P.2d 885

220 Kan. 371

Rose MALONE and Grant Malone, Appellants, v. The UNIVERSITY OF KANSAS MEDICAL CENTER et al., Appellees.

No. 48025.

Supreme Court of Kansas.

July 23, 1976.

Syllabus by the Court

1. Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal they are not properly before the appellate court for review.

2. In an action against the Kansas University Medical Center and the Board of Regents for damages for failure to provide proper care, the record is examined and it is held that the plaintiffs may not characterize such an action as one in contract in order to avoid the bar of governmental immunity.

Robert A. Sundblad, Kansas City, Mo., argued the cause, and Dwight Kingery, Kansas City, and H. George Lafferty, Jr., Kansas City, Mo., were with him on the brief for the appellants.

Lee J. Dunn, Jr., Special Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for the appellees.

MILLER, Justice:

This is an action for damages arising from the alleged failure of the defendants, University of Kansas Medical Center and the Board of Regents of the University of Kansas Medical Center, to provide the plaintiff, Rose Malone, with complete, competent, necessary, and authorized medical treatment. The trial court sustained defendants' motion to dismiss and plaintiffs appeal. The principal issue here is whether the amended petition states a cause of action in tort and not in contract.

The plaintiffs, husband and wife, filed an original petition drawn in eight counts on August 2, 1974. It alleged that Rose Malone presented herself at the Medical Center for examination, diagnosis, and treatment on August 22, 1973. She was examined by three physicians, one of whom gave her a prescription for an alleged infection and instructed her to return home. On the following day she became ill, suffered intense pain, and was returned to the Medical Center by ambulance. Her uterus had ruptured, causing the death of the fetus she was carrying. A total abdominal hysterectomy was performed without her consent. The eight counts were based upon claims of negligence and were variously against four physicians, the Medical Center, and the Board of Regents.

The Medical Center and the Board of Regents moved to dismiss on the grounds, inter alia, that the Medical Center and the Board of Regents were immune from liability and suit for negligence under the provisions of K.S.A. 46-901. Plaintiffs filed motion for leave to amend the petition which was granted, and an amended petition was filed November 4, 1974. The first four counts of the amended petition claimed damages for negligence and were against physicians individually. These counts were later dismissed with prejudice on plaintiffs' motion.

Counts 5 and 6 concern the remaining defendants, the Medical Center and the Board of Regents. Both counts include by reference all of the allegations of counts 1, 2, 3, and 4 which are pertinent. Count 5 alleges that when Rose Malone presented herself for treatment on August 22, she entered into an 'express contract' with the Medical Center, by the terms of which the Center agreed to provide 'complete, competent, and necessary medical treatment' for her. The petition then alleges that the Medical Center breached that contract in that it failed to provide the medical treatment promised but instead released her, gave her a prescription for an alleged infection and sent her home. Count 6 alleges that when Rose Malone presented herself for treatment on August 23, 1973, both plaintiffs entered into an express contract with the Medical Center by the terms of which the Medical Center agreed to provide 'only necessary, competent and authorized medical treatment' for Mrs. Malone. The Center, it is alleged, breached this agreement by (a) 'failing to provide competent physicians and surgeons to treat' Rose, and (b) 'performing a hysterectomy on (Rose) without her informed consent.'

The Medical Center and the Board of Regents again moved to dismiss for the reason that the amended petition fails to state a 'cause of action' upon which relief can be granted. Defendants alleged that Rose was not a patient on August 22, 1973; that the mere unsubstantiated allegation that a contract has been created is not sufficient to substantiate a 'cause of action' for breach of contract; and that although the amended petition is couched in terms of the breach of an express contract, it actually presents a 'cause of action' the gravamen of which is in tort, for which the defendants are not liable under K.S.A. 46-901.

The motion was argued and counsel presented briefs to the court. On May 14, 1975, the court wrote to counsel, disclosing its finding that the motion to dismiss should be sustained for the reason that 'it would appear that this is an action in tort and not one in contract, and the mere endeavor to couch a petition in contract based upon facts in tort is not permissible.' The journal entry, which followed, recites that the court finds that 'plaintiffs' action is one in tort and not in contract and that the defendants' motion to dismiss should be granted.'

We note that the court ignored other grounds advanced in support of the motion as well it should. We no longer have the requirement in our law that a petition set forth a 'cause of action' with particularity and specificity. The petition merely need set forth 'a short and plain statement of the claim showing that the pleader is entitled to relief,' and a demand for relief. K.S.A. 60-208. Even a written contract need not be recited at length in the petition; it is sufficient to reasonably identify it and state the substance thereof. K.S.A. 60-209(h). If the opposing party wishes further information, various inexpensive and efficacious discovery procedures are provided. We note that no discovery has been conducted in this case. The only affidavits submitted with the motion state that Rose Malone was not treated on August 22, 1973, and explain that she was seen twice on August 23, first at 2 o'clock and again at 7 o'clock that morning. Whether she was seen on consecutive days or twice on the same date is immaterial at this stage of the proceeding.

Two points were designated and are argued on appeal. These are (1) that K.S.A. 46-901 is unconstitutional and therefor plaintiffs' lawsuit may be maintained whether it sounds in tort or in contract; and (2) that the trial court erred in finding that the first amended petition sounds in tort and not in contract.

There are two reasons why the constitutional argument must fail. This court's recent exhaustive analysis of the question of governmental immunity and its constitutionality culminated in Justice Schroeder's opinion on rehearing in Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015, wherein we held that K.S.A. 46-901 is not unconstitutional. We adhere to that determination. The second reason why the argument must fail is that it is not properly before us. Plaintiffs did not bring the question of the constitutionality of K.S.A. 46-901 into issue until the filing of their brief in this court. They did not raise that issue in the trial court. In State v. Estes, 216 Kan. 382, 532 P.2d 1283, we said:

'Where constitutional grounds for reversal of a judgment are asserted for the first time on appeal they are not properly before the appellate court for review.' (Syl.3.)

And in Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262, we held that:

'A constitutional challenge to a legislative act will not be entertained on appeal to this court unless the challenge has been alleged in the pleadings or presented to the trial court, absent some compelling state interest.' (Syl. 4.)

No such compelling state interest here appears.

We...