Tillman v. Goodpasture, 117,439

• Decision Date: 15 June 2018
• Docket Number: No. 117,439,117,439
• Citation: 424 P.3d 540
• Parties: Alysia R. TILLMAN and Storm Fleetwood, Appellants, v. Katherine A. GOODPASTURE, D.O., Appellee. Office of Attorney General Derek Schmidt, Intervenor.
• Court: Kansas Court of Appeals

424 P.3d 540

Alysia R. TILLMAN and Storm Fleetwood, Appellants,

v. Katherine A. GOODPASTURE, D.O., Appellee.Office of Attorney General Derek Schmidt, Intervenor.

No. 117,439

Court of Appeals of Kansas.

Opinion filed June 15, 2018.

Lynn R. Johnson, David R. Morantz, and Paige L. McCreary, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, and Stanley R. Ausemus, of Stanley R. Ausemus, Chartered, of Emporia, for appellants.

Dustin J. Denning and Jacob E. Peterson, of Clark, Mize & Linville, Chartered, of Salina, for appellee Katherine A. Goodpasture, D.O.

Bryan C. Clark, assistant solicitor general, and Dwight R. Carswell, assistant solicitor general, for intervenor Office of Attorney General Derek Schmidt.

Before Schroeder, P.J., Gardner, J., and Burgess, S.J.

Schroeder, J.:

The Kansas Legislature is vested with setting the public policy of our state. Even though some may disagree with that public policy, we must accept that policy unless it conflicts with our Constitution. On appeal, Alysia R. Tillman and Storm Fleetwood challenge the denial of their cause of action, first recognized by our Kansas Supreme Court in Arche v. United States of America , 247 Kan. 276, 798 P.2d 477 (1990). In 2013, our Legislature passed K.S.A. 60-1906, stating no cause of action exists in Kansas for wrongful birth of a child. The district court granted Dr. Katherine A. Goodpasture, D.O.'s motion for judgment on the pleadings. The district court found K.S.A. 2013 Supp. 60-1906 was constitutional, finding Section 5 and Section 18 of the Kansas Constitution Bill of Rights did not protect this cause of action since wrongful birth was not a cause of action recognized in 1859 when our Constitution was adopted. We agree with the district court. K.S.A. 2013 Supp. 60-1906 is constitutional since a cause of action for wrongful birth was unavailable when our Constitution was adopted and thus does not implicate Sections 5 or 18 of the Kansas Constitution Bill of Rights. We affirm.

FACTS

Tillman and Fleetwood filed a wrongful birth action against Dr. Goodpasture resulting from the birth of their daughter, Baby A. They alleged Dr. Goodpasture failed to diagnose severe structural abnormalities and defects in the fetus' brain. In utero, Baby A was subsequently diagnosed with schizencephaly and is alleged to be severely and permanently neurologically, cognitively, and physically handicapped.

Tillman and Fleetwood alleged Dr. Goodpasture's failure to diagnose appropriately the structural abnormalities and defects denied them the right to make an informed decision on whether to terminate the pregnancy and, had they been informed of the physical, neurological, and cognitive defects, they would have terminated the pregnancy. Tillman and Fleetwood also alleged K.S.A. 2013 Supp. 60-1906 violated Section 5 and Section 18 of the Bill of Rights by denying them their right to trial by jury and their right to remedy by due course of law. They sought damages over $75,000 and a determination K.S.A. 2013 Supp. 60-1906 was unconstitutional.

Dr. Goodpasture moved for judgment on the pleadings contending K.S.A. 2013 Supp. 60-1906 barred Tillman and Fleetwood's cause of action. Tillman and Fleetwood responded, arguing K.S.A. 2013 Supp. 60-1906 was unconstitutional. The State moved to intervene to defend the constitutionality of K.S.A. 2013 Supp. 60-1906. The district court heard argument on the motion for judgment on the pleadings and granted the State's motion to intervene. After the hearing, the district court allowed supplemental briefing.

Upon receipt of the supplemental briefing, the district court granted Dr. Goodpasture's motion for judgment on the pleadings. It found Arche , which recognized wrongful birth as a new cause of action in Kansas in 1990, required proof of two additional elements beyond the elements necessary to prove ordinary negligence. As a result, the district court found wrongful birth was a new cause of action that did not exist when the Kansas Constitution was adopted in 1859, and thus K.S.A. 2013 Supp. 60-1906 did not implicate Section 5 or Section 18 of the Bill of Rights.

Procedurally, this matter comes to us from the district court's grant of Dr. Goodpasture's motion for judgment on the pleadings. In this posture, we presume the facts alleged in the petition are true.

The appellants' motion to transfer this appeal to the Kansas Supreme Court was denied.

ANALYSIS

In 1990, the Kansas Supreme Court first recognized a cause of action for wrongful birth in Arche . In a tort of wrongful birth, "suit is brought by the parents, who claim they would have avoided conception or terminated the pregnancy had they been properly advised of the risks or existence of birth defects to the potential child." 247 Kan. at 278, 798 P.2d 477.

In 2013, the Legislature enacted K.S.A. 60-1906(a) :

"No civil action may be commenced in any court for a claim of wrongful life or wrongful birth, and no damages may be recovered in any civil action for any physical condition of a minor that existed at the time of such minor's birth if the damages sought arise out of a claim that a person's action or omission contributed to such minor's mother not obtaining an abortion."

On appeal, Tillman and Fleetwood challenge the constitutionality of K.S.A. 2013 Supp. 60-1906. Determining a statute's constitutionality is a question of law subject to unlimited review. The appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if any reasonable construction would maintain the Legislature's apparent intent. Solomon v. State , 303 Kan. 512, 523, 364 P.3d 536 (2015). It is the duty of the party attacking the statute to sustain its burden of proof the statute is unconstitutional. State ex rel. Schneider v. Liggett , 223 Kan. 610, 616, 576 P.2d 221 (1978).

K.S.A. 2013 Supp. 60-1906 does not implicate Section 5 of the Bill of Rights.

Tillman and Fleetwood argue K.S.A. 2013 Supp. 60-1906 violates Section 5 of the Bill of Rights, which guarantees the right to a jury trial, because their claim for wrongful birth was an action seeking monetary damages. Since they sought monetary damages, they argue wrongful birth is an action at law triable to a jury when our Constitution was adopted, and they are guaranteed a trial by jury.

In contrast, Dr. Goodpasture and the State argue K.S.A. 2013 Supp. 60-1906 does not violate Section 5 of the Bill of Rights because Section 5 only applies to specific causes of action justiciable in 1859. Since abortion was illegal in Kansas until 1973 and the Kansas Supreme Court first recognized a cause of action for wrongful birth in Arche , as a new tort , Dr. Goodpasture and the State contend Section 5 does not apply to wrongful birth claims.

Section 5 of the Bill of Rights states: "The right of trial by jury shall be inviolate." It preserves the jury trial right as the right existed at common law when our Constitution was adopted. Miller v. Johnson , 295 Kan. 636, 647, 289 P.3d 1098 (2012). In Samsel v. Wheeler Transport Services, Inc. , 246 Kan. 336, 349, 789 P.2d 541 (1990), abrogated on other grounds by Miller , 295 Kan. 636, 289 P.3d 1098, the Kansas Supreme Court described the common law:

"The common law can be determined only from decisions in former cases bearing upon the subject under inquiry. As distinguished from statutory or written law, the common law embraces that great body of unwritten law founded upon general custom, usage, or common consent, and based upon natural justice or reason. It may otherwise be defined as custom long acquiesced in or sanctioned by immemorial usage and judicial decision. 15A Am. Jur. 2d, Common Law § 1.

"In a broader sense, the common law is the system of rules and declarations of principles from which our judicial ideas and legal definitions are continually derived. See generally Steele v. Latimer, 214 Kan. 329, 332, 521 P.2d 304 (1974). It is not a codification of exact or inflexible rules for human conduct, the redress of injuries, or protection against wrongs; rather, it is the embodiment of broad and comprehensive unwritten principles, inspired by natural reason and an innate sense of justice, and adopted by common consent for the regulation and government of the affairs of men. 15A Am. Jur. 2d, Common Law § 1."

In Hoffman v. Dautel , 189 Kan. 165, Syl. ¶ 2, 368 P.2d 57 (1962), the Kansas Supreme Court held: "The common law is not static, but is endowed with vitality and a capacity to grow. It never becomes permanently crystalized but changes and adjusts from time to time to new developments in social and economic life to meet the changing needs of a complex society."

The Kansas Supreme Court recently addressed the Section 5 analysis:

"Although our caselaw has never explicitly acknowledged it, there are two basic questions in any Section 5 analysis: In what types of cases is a party entitled to a jury trial as a matter of right? See, e.g. , Hasty v. Pierpont , 146 Kan. 517, 72 P.2d 69 (1937) (distinguishing causes at law from causes in equity) .... And when such a right exists, what does the right protect? See, e.g. , Miller , 295 Kan. at 647-48, 289 P.3d 1098 (analyzing jury's role in determining damages); Kimball v. Connor , 3 Kan. 414, 432 (1866) (‘[ Section 5 ] ... does [not] contemplate that every issue, which, by the laws in force at the adoption of the constitution of the State, was triable by jury ... should remain irrevocably triable by that tribunal.’).

"In answering the second question, this court has consistently noted that when the Section 5 jury trial right is implicated, ‘ "[i]t applies no further than to give the right of such trial upon issues of fact so tried at common law and does not affect the pleading stage of the case." ’ (Emphasis added.) Hasty , 146 Kan. at 519, 72 P.2d 69. The right to have the jury determine issues of fact is in contrast to the determination of issues of

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