Smith v. Graham, 94,120.

• Decision Date: 08 December 2006
• Docket Number: No. 94,120.,94,120.
• Citation: 147 P.3d 859
• Parties: Laura SMITH, Appellant, v. Becky GRAHAM, D.O., Appellee.
• Court: Kansas Supreme Court

147 P.3d 859

Laura SMITH, Appellant, v. Becky GRAHAM, D.O., Appellee.

No. 94,120.

Supreme Court of Kansas.

December 8, 2006.

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Zackery E. Reynolds, of The Reynolds Law Firm, P.A., of Fort Scott, argued the cause and was on the briefs for appellant.

Daniel P. Hanson, of Law Office of Daniel P. Hanson, of Overland Park, argued the cause and was on the briefs for appellee.

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

Plaintiff Laura Smith filed a suit for damages against defendant Becky Graham, D.O., alleging negligent medical treatment. The district court granted Graham's motion to dismiss, finding that Smith's petition was not timely filed. Smith appealed; the Court of Appeals affirmed the trial court's determination that Smith's petition was filed outside the proper statute of limitations. This court granted Smith's petition for review and has jurisdiction under K.S.A. 20-3018(b).

The sole issue in this appeal is whether the statute of limitations for filing plaintiff's medical malpractice action was tolled by the operation of K.S.A. 65-4908.

On May 11, 1999, Graham performed a pelvic laparoscopy with adhesiolysis on Smith. During the procedure, Smith's sigmoid colon was lacerated. On April 24, 2001, Smith filed in the district court a "Memorandum Requesting Medical Malpractice Screening Panel," asking that a panel be convened to evaluate the quality of medical care provided by Graham. On April 8, 2002, Smith asked the district court to dismiss the screening panel as she intended to file a petition for medical negligence. The district court dismissed the screening panel for "GOOD CAUSE SHOWN." The court did not explain what constituted "good cause."

That same day, April 8, 2002, Smith filed a petition (the first petition) in the district court seeking damages in excess of $75,000 due to Graham's negligent treatment. Smith alleged that Graham negligently failed to convert to an open procedure when dense adhesions were noted, which caused or contributed to her injuries. Smith claimed pain and suffering, loss of income, and that she would incur further medical testing, hospitalizations, and surgical procedures due to Graham's negligence. Graham answered the petition, raising the expiration of the statute of limitations as an affirmative defense. She also filed a motion to dismiss on that same basis.

On July 19, 2002, while the first petition was pending, Smith filed a second medical negligence petition (the second petition) in district court. This petition is identical to the first petition except that it states that Smith filed a motion to dismiss the medical malpractice screening panel so she could file a petition for medical negligence. Smith has stated that the sole purpose of the second petition was to obtain service on The Health Care Stabilization Fund, which was inadvertently not served with the first petition. Conversely, the district court found no indication in the record as to Smith's reason for filing the second petition.

On January 6, 2003, the clerk of the district court notified Smith that the first petition would be dismissed on January 16, 2003, for lack of prosecution, unless good cause was shown to prevent the dismissal. Smith admits nothing was filed to prevent dismissal; the petition was dismissed on January 16, 2003. Likewise, on February 24, 2004, the clerk of the district court notified Smith that the second action would be dismissed on March 8, 2004, for lack of prosecution, unless good cause was shown. On March 9, 2004, the court dismissed the second petition. This order of dismissal is not contained in the record. According to the district court, the order reads, "Now on this 9th day of March 2004, the above-captioned matter comes on for dismissal. It is hereby ordered, adjourned (sic) and decreed that the above-captioned matter is hereby dismissed. IT IS SO ORDERED."

On September 3, 2004, Smith filed a third medical malpractice petition (the third petition). Smith claimed this action was permitted pursuant to K.S.A. 60-518 because the second petition was dismissed other than upon the merits. Otherwise, the petition was identical in content to the second petition. Graham answered the petition, raising the affirmative defense of the statute of limitations. She subsequently filed a motion to dismiss, arguing that Smith's petition was barred by the expiration of the 2-year statute of limitations set forth in K.S.A. 60-513(a)(7). She asserted that to toll the statute of limitations, K.S.A. 65-4908 requires that a screening panel actually be convened and the district court must notify the parties of that action.

The district court granted Graham's motion. The court found that one may not toll the statute of limitations "by simply running into court and filing a Memorandum Request for a Screening Panel and taking no further action." The court generally adopted Graham's supplemental memorandum. The court found to be a "huge and distinguishing difference" the fact that in White v. VinZant, 13 Kan.App.2d 467, 773 P.2d 1169 (1989), there was an actual order convening the screening panel and designating the panel chairperson. The court further found that in making her argument, Smith "totally ignore[d]" the fact that the second petition was filed while the first petition was pending and had not yet failed other than on its merits.

Smith appealed. She argued that her third petition was timely filed because her request for a screening panel tolled the statute of limitations. She also asserted that her second petition was timely filed as it was filed while her first petition was pending. The Court of Appeals determined that the first clause of K.S.A. 65-4908, the tolling statute, makes the statute applicable only to "those cases before a screening panel." Smith v. Graham, No. 94,120, 130 P.3d 148, 2006 WL 619211, unpublished opinion filed March 10, 2006, slip op. at 5. Supreme Court Rule 142(a)(7) (2005 Kan. Ct. R. Annot. 209) and the court's holding in White both state that notification from a judge of the commencement of a panel is necessary to bring a case before a screening panel. Slip op. at 5. Since such did not occur in this case, the Court of Appeals held that the statute of limitations was not tolled. Slip op. at 5. Therefore, the Court of Appeals concluded that the first petition was filed outside the applicable statute of limitations and application of the 6-month savings statute found at K.S.A. 60-518 would not save the third petition. Slip op. at 5-6.

This court granted Smith's petition for review.

DISCUSSION

Smith contends the district court erred in granting Graham's motion to dismiss because from the date she filed her request for a screening panel there was either a screening panel action or a lawsuit continuously on file or saved by K.S.A. 60-518. Graham counters that the third petition was not timely filed.

The interpretation and application of a statute of limitations is a question of law for which an appellate court's review is unlimited. Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1027, 58 P.3d 1284 (2002). Likewise, this court's review of conclusions of law is unlimited. Dougan v. Rossville Drainage Dist., 270 Kan. 468, 472, 15 P.3d 338 (2000).

Smith first asserts that the Court of Appeals failed to follow the clear language of K.S.A. 65-4908, which states that the filing of a memorandum requesting the convening of a screening panel tolls the statute of limitations.

Medical negligence actions must be brought within 2 years of the date of injury or the date the injury becomes reasonably ascertainable to the injured party. K.S.A. 60-513(a)(7), (c). Smith learned of her injury on the date of her surgery — May 11, 1999. Thus, the statute of limitations on her claim would have expired on May 11, 2001.

Smith filed her Memorandum Requesting Medical Malpractice Screening Panel on April 24, 2001, within the 2-year statute of limitations period. She did not, however, file her first petition in district court until the dismissal of her screening panel request on April 8, 2002. At issue is the operation of the tolling provision for claims before a medical malpractice screening panel. K.S.A. 65-4908 provides:

"In those cases before a screening panel which have not been formalized by filing a petition in a court of law, the filing of a memorandum requesting the convening of a screening panel shall toll any applicable statute of limitations and such statute of limitations shall remain tolled until thirty (30) days after the screening panel has issued its written recommendations." (Emphasis added.)

Smith maintains that the first clause of the statute merely indicates that the tolling provision applies when a negligence petition has not been filed in the district court. Graham counters that the phrase "before a screening panel" limits the application of the tolling provision to "those cases before a screening panel" to insure that the screening panel has been properly convened and commenced before invoking the tolling protection.

Kansas case law concerning this provision is sparse. The factual scenario presented by this case raises an issue of first impression in Kansas. A screening panel has been convened in those cases in which this court has addressed the tolling provision. See v. Hartley, 257 Kan. 813, 822, 896 P.2d 1049 (1995) (holding that the 4-year time bar of K.S.A. 60-513[c] is subject to the savings provision of K.S.A. 60-518 and the tolling provision of K.S.A. 65-4908); Lawless v. Cedar Vale Regional Hosp., 252 Kan. 1064, 1072-73, 850 P.2d 795 (1993) (finding the cause of action barred by the statute of limitations because it was not filed within 30 days of the issuance of the screening panel's recommendations); Martindale v. Tenny, 250 Kan. 621, 643, 829 P.2d 561 (1992) (finding that although the action was timely as to corporate defendants because it was filed within 30 days of...