Nash v. Blatchford, 119,155

CourtCourt of Appeals of Kansas
Citation435 P.3d 562,56 Kan.App.2d 592
Docket NumberNo. 119,155,119,155
Parties Aaron NASH, Appellant, v. Patrick T. BLATCHFORD, M.D., Appellee.
Decision Date04 January 2019

56 Kan.App.2d 592
435 P.3d 562

Aaron NASH, Appellant,
Patrick T. BLATCHFORD, M.D., Appellee.

No. 119,155

Court of Appeals of Kansas.

Opinion filed January 4, 2019

Kala Spigarelli, of The Spigarelli Law Firm, of Pittsburg, for appellant.

Anthony M. Singer and Matthew P. Sorochty, of Woodard, Hernandez, Roth & Day, L.L.C., of Wichita, for appellee.

Before Gardner, P.J., Atcheson and Powell, JJ.

Powell, J.:

Aaron Nash appeals the district court's grant of summary judgment in favor of Patrick T. Blatchford, M.D., for Nash's failure to file a notice of claim under

435 P.3d 567

K.S.A. 2017 Supp. 12-105b(d). Nash argues the district court erred because (1) he was not required to file a notice of claim since Blatchford is an independent contractor of a municipal hospital and K.S.A. 2017 Supp. 40-3403(h) abrogated a hospital's vicarious liability in malpractice claims; (2) if Blatchford is an employee of a municipal hospital, the district court erred in retroactively applying the 2015

56 Kan.App.2d 594

amendments to K.S.A. 12-105b(d) to bar his claim; and (3) the K.S.A. 2017 Supp. 12-105b(d) notice of claim requirement denies equal protection under the laws to medical malpractice victims of physicians employed at municipal hospitals. For the reasons more fully explained below, we disagree and affirm.


On January 5, 2017, Nash filed a medical malpractice suit against Blatchford, asserting damages from an alleged negligently performed surgery in January 2015. After filing his answer, Blatchford moved for summary judgment, arguing the district court lacked jurisdiction over Nash's claim because Blatchford is an employee at a municipal hospital and Nash was required and failed to file a written notice of claim under K.S.A. 12-105b(d) before suing him in the district court. Blatchford attached an affidavit (not included in the record on appeal), attesting to his employment status at South Central Kansas Regional Medical Center (South Central). Blatchford also argued that because of Nash's failure to comply with the notice requirement and the expiration of the two-year statute of limitations on his claim, any later attempt by Nash to refile the claim after filing a notice of claim was time-barred according to Gessner v. Phillips County Comm'rs , 270 Kan. 78, 11 P.3d 1131 (2000).

Nash asserted several arguments in response, including—assuming Blatchford is an employee of South Central—that the 2015 amendments to K.S.A. 12-105b(d) should not apply retroactively to bar his claim and he need not file a notice of a claim under K.S.A. 12-105b(d) because K.S.A. 40-3403(h) abrogated a hospital's vicarious liability for a doctor's negligence whether the doctor was an employee or an independent contractor. Finally, Nash argued that because the parties had not conducted discovery, summary judgment was premature on whether Blatchford was an employee or an independent contractor of South Central.

After hearing additional argument, the district court ordered the parties to conduct discovery and to submit supplemental briefing on Blatchford's employment status. These facts remained uncontroverted. Blatchford is licensed to practice medicine as a physician

56 Kan.App.2d 595

in Kansas. South Central is a municipally owned hospital subject to K.S.A. 75-6101 et seq., the Kansas Tort Claims Act (KTCA). Blatchford entered into a written contract with South Central in 2006 during his residency program and then entered into a new written contract in 2008 (with a 2010 addendum), which is still in effect. Nash asserted no claims against South Central. Between December 2014 and January 7, 2015, Nash received medical care and treatment from Blatchford.

After discovery, the district court granted summary judgment for Blatchford, holding it lacked jurisdiction to consider Nash's claim because Blatchford was an employee of South Central and Nash had failed to file a notice of claim as required under K.S.A. 2017 Supp. 12-105b(d).

Nash timely appeals.


Our standard of review of a district court's grant of summary judgment is well established:

" ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ An appellate court reviewing a district court's ruling on a motion for summary judgment applies the same legal standard and, because the motion is considered on uncontroverted facts and under the same standard as the district court, reviews the matter de novo as a question of law, granting no deference to the district court's judgment. [Citations
435 P.3d 568
omitted.]" Cady v. Schroll , 298 Kan. 731, 734, 317 P.3d 90 (2014).

To the extent our review requires interpretation of K.S.A. 2017 Supp. 12-105b, or any other relevant statute, this too

"is a question of law subject to de novo review. When interpreting a statute, the court first attempts to discern the legislature's intent through the language enacted, giving common words their ordinary meanings. When statutory language is plain and unambiguous, the court does not speculate as to legislative intent, and does not read into the statute words not readily found there. It is only when the language is unclear or ambiguous that the court employs the canons of statutory construction, consults legislative history, or considers other background information to ascertain the statute's meaning. [Citations omitted.]" Whaley v. Sharp , 301 Kan. 192, 196, 343 P.3d 63 (2014).
56 Kan.App.2d 596

"[E]ven when various statutory provisions are unambiguous, we may still construe them in pari materia with a view of reconciling and bringing the provisions into workable harmony." Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 919, 349 P.3d 469 (2015) (citing Northern Natural Gas Co. v. ONEOK Field Services Co. , 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 571 U.S. 826, 134 S.Ct. 162, 187 L.Ed.2d 40 [2013] ).

K.S.A. 2017 Supp. 12-105b(d) states:

"(d) Any person having a claim against a municipality or against an employee of a municipality which could give rise to an action brought under the [KTCA] shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with the clerk or governing body of the municipality and shall contain the following: ... Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first. A claim is deemed denied if the municipality fails to approve the claim in its entirety within 120 days unless the interested parties have reached a settlement before the expiration of that period. No person may initiate an action against a municipality or against an employee of a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the [KTCA] shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action." (Emphasis added.)

The notice of claim requirement under K.S.A. 2017 Supp. 12-105b(d) is a jurisdictional prerequisite to suing a municipality under the KTCA. Sleeth v. Sedan City Hospital , 298 Kan. 853, Syl. ¶ 1, 317 P.3d 782 (2014).

Given that it is undisputed that Nash failed to give proper notice under K.S.A. 2017 Supp. 12-105b, we must determine the existence of two conditions precedent to the notice requirement: First, whether Nash's claims fall under the KTCA; and second, whether Blatchford is an employee of South Central. If both are answered in the affirmative, then Nash was required to give notice under K.S.A. 2017 Supp. 12-105b, and his failure to do so bars his claims. We will address each in order.

A. Did Nash's claims fall under the KTCA?

At common law, the longstanding rule was that the State, as the sovereign, was immune from suit unless it consented. The

56 Kan.App.2d 597

Legislature provided that consent when it enacted the KTCA; now, subject to certain exceptions, liability is the rule and immunity the exception. Fettke v. City of Wichita , 264 Kan. 629, 633, 957 P.2d 409 (1998) ; see also K.S.A. 2017 Supp. 75-6103(a) (each governmental entity liable for damages caused by negligent acts of its employees acting within scope of employment). One exception is that claims based upon the rendering of professional services by a health care provider, such as the practice of medicine, are excluded from coverage under the KTCA. K.S.A. 2017 Supp. 75-6115(a).

K.S.A. 2017 Supp. 75-6115(c)(3) utilizes the health care provider...

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