Natalini v. Little, No. 89,655.

• Decision Date: 25 June 2004
• Docket Number: No. 89,655.
• Citation: 278 Kan. 140,92 P.3d 567
• Parties: JOSEPH L. NATALINI, Appellee, v. BLAKE A. LITTLE, M.D., Appellant.
• Court: Kansas Supreme Court

278 Kan. 140

92 P.3d 567

JOSEPH L. NATALINI, Appellee, v. BLAKE A. LITTLE, M.D., Appellant.

No. 89,655.

Supreme Court of Kansas.

Opinion filed June 25, 2004.

Charles Henry Stitt, of Shaffer, Lombardo, Shyrin, of Kansas City, Missouri, argued the cause, and Gregory P. Forney, of the same firm, was with him on the briefs for appellant.

Fred J. Spigarelli, of The Spigarelli Law Firm, of Pittsburg, argued the cause, and Thomas E. Hayes and Lori Bolton Fleming, of the same firm, were with him on the brief for appellee.

Scott C. Nehrbass and Michael T. Jilka, of Shook, Hardy & Bacon, L.L.P., of Overland Park, were on the brief for amicus curiae Kansas Association of Defense Counsel.

The opinion of the court was delivered by

BEIER, J.

Plaintiff Joseph Natalini brought this medical malpractice action against defendant Blake A. Little, M.D., for failing to diagnose Natalini's lung cancer. At trial, Natalini was still alive and was expected to survive approximately 8 more months. Although he outlived that prediction, he has died since this court heard argument on this appeal.

The issue before us is whether the jury properly awarded wrongful death damages to Natalini's wife and adult children. We hold that no such damages were available in Natalini's medical malpractice action and reverse and vacate that portion of the jury's award. Our holding on this issue eliminates the need to address Little's alternative argument that the statutory cap on noneconomic damages was exceeded.

Natalini was referred to Little in March 1996 after detection of two nodules in Natalini's right lung. Little and Natalini agreed to have the nodules monitored with serial chest computerized tomography scans (CTs), which were performed in March, April, May, and November of that year. The November CT revealed a new, third nodule.

At an appointment on December 2, 1996, Little ordered another chest CT within 2 months. Natalini went to Dr. Douglas Weddle on December 19, 1996, to have the CT performed; and a member of Weddle's staff called Little's office to clarify Little's instructions. Little said that a chest x-ray instead of the CT would be acceptable. The chest x-ray was taken in February 1997.

Natalini did not see Little again until July 1998, when Weddle referred him back. Little then referred Natalini to a cardiothoracic surgeon, who diagnosed Natalini's lung cancer.

Natalini filed this action on July 14, 2000. Little admitted he had failed to meet the standard of care after the November 1996 CT, acknowledging he should have followed up with his patient based on the results of that scan and of the February 1997 x-ray.

During trial, in June and July 2002, Natalini was 59 years old. His cancer had spread, and neither side in the case expected him to survive until Christmas of that year. In contrast to Natalini's prospects, the additional life expectancy of a healthy white male his age was 19.7 years. Natalini, of course, had alleged that Little's negligence would be the cause of his premature death.

Natalini sought damages for his personal injuries, including pain, suffering, disability, mental anguish, loss of enjoyment of life, past and future medical bills, and past and future loss of consortium for his wife. None of those categories of damages is in issue on this appeal.

Natalini also claimed damages for his family as a result of his premature death: bereavement; mental anguish and suffering; loss of protection, advice, counseling, attention, and a complete family; and loss of pension and household services. The defense has consistently argued that these damages could be recovered by Natalini's family only in a wrongful death action.

Little first sought to exclude evidence of these damages and objected to plaintiff's proposed jury instructions. He termed this part of the action an "anticipatory wrongful death" claim, on behalf of the plaintiff's family. He also argued that the claim would lead to noneconomic damages in excess of the statutory cap of $250,000. The district judge rejected Little's arguments.

As a result, the jury was instructed:

"In determining the amount of damages sustained by the family of Joseph Natalini, you should allow the amount of money which will reasonably compensate them for the damages resulting from the premature death of Joseph Natalini. . . . [You should allow an] amount which you believe to be equivalent to the monetary benefits or compensation the family of Joseph Natalini could reasonably have expected to receive from Joseph Natalini during his previous anticipated life expectancy."

"The individuals you may find sustained damages are: . . . Judith Natalini, wife, Joseph Natalini, Jr., Brian Natalini, Steven Natalini, Mark Natalini, and Brenda Natalini Robinson."

The jury found that Little's conduct would result in Natalini's premature death and awarded the following damages to these family members:

Noneconomic loss $600,000.00 Economic loss $349,005.00 TOTAL DAMAGES SUSTAINED BY JOE NATALINI'S FAMILY $949,005.00

The award of noneconomic damages to the family members was remitted to $250,000, pursuant to K.S.A. 60-19a02.

After trial, Little moved to modify the judgment or for a new trial, arguing again that the district judge improperly permitted the jury to consider "the type of damages that may only be recovered in a wrongful death action, in favor of persons who are not parties to the action, in connection with a person who was still alive, at the time of trial." The district court again rejected Little's arguments.

On appeal, Natalini's counsel has not disputed that he sought a separate award of damages for members of his client's family to avoid the otherwise harsh effect of the intersection between K.S.A. 2003 Supp. 60-513(c), which includes a statute of repose for medical malpractice lawsuits, and K.S.A. 60-1901, which outlines the requirements for a Kansas wrongful death action.

K.S.A. 2003 Supp. 60-513(c) reads:

"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 limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action." (Emphasis added.)

K.S.A. 60-1901 reads:

"If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived . . . against the wrongdoer." (Emphasis added.)

Neither of these statutes is unclear or ambiguous. In circumstances like Natalini's, even if a malpractice plaintiff's premature death is highly likely to be caused by the malpractice, plaintiff's survival for more than 4 years beyond the negligent act means no wrongful death action will ever be possible. K.S.A. 2003 Supp. 60-513(c) and K.S.A. 60-1901 will combine to cut it off before it can accrue, i.e., before the death giving rise to the action has occurred. Although family members of the patient would qualify at the time of death as heirs at law entitled to seek recovery in a wrongful death suit, see K.S.A. 60-1902, they would be prevented from bringing an action because 60-513(c)'s repose language would have barred the injured patient's own lawsuit before his or her death. See K.S.A. 60-1901; Crockett v. Medicalodges, Inc., 247 Kan. 433, 440, 799 P.2d 1022 (1990) (if injured plaintiff's claim time barred before death, claim of heirs also barred); Mason v. Gerin Corp., 231 Kan. 718, Syl. ¶ 1, 647 P.2d 1340 (1982) (K.S.A. 60-1901 requires "existence of a right of action in the injured person at the time of his death as a condition precedent to the existence of a right...