Nash v. Blatchford
Decision Date | 04 January 2019 |
Docket Number | No. 119,155,119,155 |
Citation | 435 P.3d 562,56 Kan.App.2d 592 |
Parties | Aaron NASH, Appellant, v. Patrick T. BLATCHFORD, M.D., Appellee. |
Court | Kansas Court of Appeals |
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.
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 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 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 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:
"[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:
(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.
At common law, the longstanding rule was that the State, as the sovereign, was immune from suit unless it consented. The 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) ( ). 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 definition from K.S.A. 40-3401(f) : "a person licensed to practice any branch of the healing arts by the state board of healing arts" and "a medical care facility licensed by the state of Kansas." K.S.A. 2017 Supp. 75-6115(c)(4) includes a hospital within the definition of a medical care facility contained in K.S.A. 65-425. It is uncontroverted that South Central is a municipal hospital and that Blatchford is a physician licensed to practice by the Board of Healing Arts; both are health care providers, suggesting, at first blush, that they fall under the exclusion to coverage under the KTCA.
But the same statute that excludes the rendering of professional services by a health care provider from the KTCA also lists six exceptions from this exclusion, one being any claim made against "a hospital owned by a municipality and the employees thereof." K.S.A. 2017 Supp. 75-6115(a)(2). Here, it is also undisputed that South Central is owned by a municipality; therefore, it would appear that any malpractice claim against South Central or its employees must fall under the KTCA. However, Nash argues that Blatchford, as a health care...
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