Smith v. Welch
| Decision Date | 18 September 1998 |
| Docket Number | No. 78,553,78,553 |
| Citation | 967 P.2d 727,265 Kan. 868 |
| Parties | Peggy L. SMITH, Appellant/Cross-appellee, v. Lauren K. WELCH., M.D., Appellee/Cross-appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The rules of summary judgment are stated and applied.
2. A physician is obligated to his or her patient to use reasonable and ordinary care and diligence in the treatment of cases the physician undertakes, to use his or her best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians.
3. When an independent medical examination is performed under K.S.A. 60-235, or one agreed to by the parties during litigation, even though the physician conducting the examination is practicing medicine, the physician-patient relationship does not exist.
4. When performing an independent medical examination under K.S.A. 60-235, or one agreed to by the parties, examining physicians have a duty not to cause harm or injury to the person examined, to use reasonable and ordinary care and diligence in the examination undertaken, to use their best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians.
5. The duty of a physician not to injure the person being examined by the physician is not affected by the fact that the physician was employed by a third person and no contractual relationship existed between the physician and the person being examined.
6. A physician performing an independent medical examination is obligated to the person being examined to make a reasonable disclosure of pertinent facts within the physician's knowledge relating to the proposed examination so that the person being examined may make an intelligent decision to consent to or to refuse the examination.
7. The Kansas Criminal Code, K.S.A. 21-3101 et seq., does not bar, suspend, or otherwise affect any civil right or remedy, authorized by law to be enforced in a civil action, based upon conduct which the code punishes. K.S.A. 21-3103.
8. Assault, battery, and sexual battery are statutory crimes. However, the civil injury caused by an assault, battery, or sexual battery is not merged in the crime in that the injured party has a civil right or remedy against the perpetrator of the crime.
9. The tort of outrage has two threshold requirements that the trial court must determine: (1) whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by the plaintiff was of such extreme degree the law must intervene because the distress inflicted was so severe that no reasonable person should be expected to endure it.
10. To prove the tort of outrage, a litigant must show: (1) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant's conduct and the plaintiff's mental distress; and (4) the plaintiff's mental distress was extreme and severe.
W. Thomas Gilman, of Redmond & Nazar, L.L.P., of Wichita, argued the cause and was on the briefs for appellant.
Eldon L. Boisseau, of Turner and Boisseau, Chartered, of Wichita, argued the cause and was on the briefs for appellee.
Plaintiff Peggy Smith was injured in an automobile accident and filed suit against Edward Williams, the other driver. During the litigation, plaintiff agreed to an independent medical examination by defendant's medical expert. Plaintiff alleges that during the examination, she was asked personal and inappropriate questions and was sexually battered by the examining doctor. Plaintiff brought an action for negligence, misrepresentation, assault, battery, invasion of privacy, outrage, and violation of her right to informed consent. The district court granted the examining doctor summary judgment on the claims of informed consent, assault, battery, tort of outrage, and invasion of privacy. Plaintiff voluntarily dismissed her negligence and misrepresentation claims to pursue this appeal. We accepted jurisdiction pursuant to K.S.A. 20-3018(c).
The relevant facts are incorporated from the district court's order granting summary judgment. Peggy Smith alleged she suffered head and neck injuries in an automobile accident on January 11, 1994, and filed an action against Edward Williams. Rather than requiring Williams' attorney to obtain a court-ordered medical examination pursuant to K.S.A. 60-235, Smith's attorney agreed his client would undergo an independent medical examination by Dr. Lauren Welch, a board-certified neurologist. The purpose of the independent medical examination was to determine the extent, if any, of Smith's head and neck injuries.
During the examination at Dr. Welch's office, while Smith and Dr. Welch were alone, Welch asked Smith a series of questions about her medical history. While taking Smith's history, Dr. Welch would snap his fingers and tell her she was not answering fast enough. Numerous times Dr. Welch told Smith she was stupid or lying and she had better start cooperating or she would not receive her settlement.
Some of Welch's questions had obvious medical relevance to a head and neck injury and other questions required a detailed statement of Smith's sexual past. Although not a complete list, Dr. Welch asked Smith whether her parents and her sister were sexually active, whether Smith was having sex with someone else while dating her present boyfriend, what qualities about her boyfriend made her want to have sex with him, whether Smith had ever had sex with more than one person at a time, and whether she had ever had sex with her sister.
While asking Smith questions of a sexual nature, Dr. Welch told Smith numerous times that she had better answer his questions because he worked for the other side and a failure to answer would result in Smith not receiving a settlement in her personal injury action. Dr. Welch asked Smith if she knew what it meant to not "count your chickens before they hatch." He stated it meant she had better not count on her settlement because she was not doing what he required.
After Dr. Welch obtained Smith's medical history, he led her to an examination room where he threw a gown at Smith and told her to undress and put on the gown. Smith did. When Dr. Welch and his nurse entered the examination room, he untied the gown and exposed Smith's breasts. Smith crossed her arms over her breasts. Welch grabbed Smith's arms and moved them away from her breasts. Dr. Welch began to examine Smith's breasts. Smith states it was unlike any other breast examination she had undergone previously. Smith asserted that Dr. Welch fondled her nipples and placed a cold stethoscope on them.
During the course of the examination, Smith repeatedly placed her hands over her breasts. Dr. Welch continually removed her hands from her breasts. Welch told Smith not to be a "baby" about the examination.
After examining Smith's breasts, Dr. Welch moved his hands towards Smith's abdomen. Smith covered her pubic region with her hands. As Welch's hands reached Smith's pubic area, he attempted to move Smith's hands. At that point, Smith sat up and ended that portion of the examination.
Dr. Welch then placed his hands on the back of Smith's head and started lifting. Smith complained that this was hurting her. Dr. Welch told her to "just take it, she would be fine."
Smith settled her claim for the injuries to her head and neck. She then filed this action against Dr. Welch, claiming the examining physician had acted negligently; violated her right to informed consent; misrepresented the need for various aspects of the examination; and committed an assault, a battery, an outrageous act, and an invasion of her privacy.
The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
In a letter to Smith's counsel, Smith's expert, Dr. Janice M. Mullinix, wrote:
After significant discovery, Dr. Welch filed a motion for summary judgment. The district court stated in its conclusions of law:
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