Werner v. Kliewer, 57612

CourtUnited States State Supreme Court of Kansas
Writing for the CourtHOLMES
Citation238 Kan. 289,710 P.2d 1250
PartiesJayne WERNER, Appellant, v. Vernon KLIEWER, M.D. and Prairie View, Inc., Appellees, v. Roger WERNER, Third Party Defendant-Appellee.
Docket NumberNo. 57612,57612
Decision Date06 December 1985

Page 1250

710 P.2d 1250
238 Kan. 289
Jayne WERNER, Appellant,
Vernon KLIEWER, M.D. and Prairie View, Inc., Appellees,
Roger WERNER, Third Party Defendant-Appellee.
No. 57612.
Supreme Court of Kansas.
Dec. 6, 1985.

Page 1251

Syllabus by the Court

In an action by a patient against her former psychiatrist and his employer seeking damages for the unauthorized disclosure of confidential information, the record is examined and it is held: The trial court did not commit error in finding no cause of action was established for an invasion of privacy (1) based upon an intrusion upon seclusion under Restatement (Second) of Torts § 652B (1976); (2) based upon unreasonable publicity given to the plaintiff's private life under § 652D; and (3) based upon tort theories outside the scope of the Restatement (Second) of Torts § 652. It is further held the trial court did not commit error in granting summary judgment to defendants on plaintiff's alleged cause of action for breach of contract.

Karen Black of Black & Black, Salina, argued the cause and was on brief for appellant.

Charles E. Hill of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause and was on brief for appellee Vernon Kliewer, M.D.

Clarence L. King, Jr. of King, Adrian, King & Brown, Chartered, Salina, argued the cause and was on brief for appellee Prairie View, Inc.

Page 1252

Patrik W. Neustrom of Achterberg & Neustrom, Salina, was on brief for third-party defendant-appellee Roger Werner.

HOLMES, Justice.

Jayne Werner, plaintiff in the district court, appeals from an order of summary judgment in favor of defendants, Vernon Kliewer, M.D. and Prairie View, Inc., in her action for damages based upon invasion of privacy and breach of contract.

Pursuant to Supreme Court Rule 3.05 (235 Kan. 1xiv) the parties have submitted a prepared statement of facts and issues in the district court in lieu of a record on appeal. The agreed statement provides:


"Plaintiff's petition in district court sought damages for invasion of privacy or, alternatively, breach of contract. Her claim was based on the action of defendant Vernon Kliewer, M.D., who disclosed medical information about her without her consent. Prairie View, Inc. was named co-defendant as Dr. Kliewer's employer. [238 Kan. 290] The defendants then filed a third-party petition against Roger Werner, plaintiff's ex-husband, seeking indemnity in the event plaintiff obtained judgment against them.

"The essential facts for consideration on appeal are as determined by the district court in ruling on defendants' motions for summary judgment.

"In January, 1981, while hospitalized for exhaustion and depression, plaintiff took an overdose of aspirin. Three days after release from this hospitalization, plaintiff took an overdose of 18 antidepressant pills in a suicide attempt.

"In mid-November, 1982, plaintiff was having suicidal feelings. On more than one occasion, she told her husband she was going to commit suicide. On the morning of November 18, 1982, plaintiff took a butcher knife with her in the car and drove toward Lake Kanopolis with the idea of committing suicide.

"Plaintiff voluntarily admitted herself as a patient at Prairie View, Inc. on November 18, 1982. At the time of admission, she was having suicidal thoughts.

"Plaintiff went to Prairie View because she felt they were qualified to help her. Dr. Vernon Kliewer was the physician responsible for examination, diagnosis and treatment of plaintiff. She discussed her suicidal thoughts with Dr. Kliewer and told him of her history of suicide attempts.

"At the time she entered Prairie View, plaintiff was involved in a divorce proceeding in Saline County District Court, before Judge Morris Hoobler. The well-being of her minor children was at issue.

"In November, 1982, plaintiff was having trouble with such things as getting her children ready for school. During this time, plaintiff's children were frightened because of her behavior. Before going to Prairie View, plaintiff did not think about telling anyone where she was going, and did not make arrangements for her children to be taken care of. When plaintiff entered Prairie View, she had no feeling or concern for her family. She first became concerned about her children after she had been at Prairie View for two or three days.

"Prairie View's staff was concerned about plaintiff's welfare and told her she needed further care. Dr. Kliewer told plaintiff's husband that his impression was plaintiff needed further observation and evaluation.

"Plaintiff did not stay at Prairie View long enough to make much progress and, on November 24, 1982, left Prairie View against medical advice.

"Judge Hoobler was concerned about the welfare of plaintiff's children.

"At plaintiff's husband's request, Dr. Kliewer wrote a letter ... to Judge Hoobler because he felt there should be a determination as to plaintiff's dangerousness. Although Dr. Kliewer did not accept plaintiff's husband's statements literally as fact, he recognized their substance and the need for further investigation of their truth. He believed the statements to be important enough to require further observation and evaluation of the plaintiff.

Page 1253

"The only persons who saw Dr. Kliewer's letter were the court services officer in whose care it was addressed; the judge; and attorneys for the parties.

"Plaintiff suffered no damage to her reputation. She believes Dr. Kliewer wrote the letter at her husband's request. She believes her husband advised Dr. Kliewer of his concern for plaintiff's welfare.

"Plaintiff does not dispute the truth of any of the information contained in the second paragraph of Dr. Kliewer's letter. Plaintiff believes that her husband made all of the comments which are set forth in paragraph three in speaking with [238 Kan. 291] Dr. Kliewer, and that Dr. Kliewer accurately reported the comments made to him by plaintiff's husband. Plaintiff admits that the statement in the letter that her children were frightened about her behavior is true. She believes all of the statements made by Dr. Kliewer in paragraph four of the letter are true. Plaintiff believes that her husband made the statement referred to in paragraph five of the letter, which is attributed to the husband. Plaintiff agrees that the first full paragraph on page two of the letter sets forth nothing other than the doctor's professional opinions. Plaintiff believes that her husband made all of the comments which are attributed to him in Dr. Kliewer's letter. She admits there was no information in the letter that was not already known by her husband. She did not have any objection to the Prairie View staff discussing her care and condition with her husband.

"Plaintiff did not claim damage to her reputation as a result of the letter, nor dispute the truth of the statements in the letter, whether those statements are attributed to her former husband, or are Dr. Kliewer's observations and opinions.

"Plaintiff's petition claimed damages for 'intense mental and emotional anguish' suffered as a result of the defendant's action.


"The legal issues before the trial court were:

A. Whether plaintiff has an actionable claim against the defendant for invasion of privacy.

B. Alternatively, whether plaintiff had a claim against the defendant for breach of contract, on the ground that a covenant not to disclose patient's secrets is part of the contractual relationship between patient and physician."

The letter of which Mrs. Werner complains states in its entirety:

"November 29, 1982

"The Honorable Morris V. Hoobler

c/o John Burchill

Court Service Officer

Box 1746

Salina, Kansas 67401

"RE: Jayne Werner

"Dear Judge Hoobler:

"I am writing at the request of the husband of the above-named individual who is concerned about her as well as their children.

"Jayne Werner was admitted to Prairie View Hospital 11/18/82 when she came suddenly a day ahead of a planned initial appointment. She was extremely distraught, particularly with the prospect of finalizing a divorce from her husband. She claimed having not slept for several nights and having had sleep problems for several weeks. She also had not been eating well for some time. She was preoccupied with suicidal urges and told of being overwhelmed with the responsibility for the children. She wanted no contact with her family at that time.

"On November 23, in a phone call Mr. Werner alleged that Mrs. Werner had frightened the children with her behavior prior to her coming to the hospital [238 Kan. 292] here. She had kept her daughter with her through the night threatening suicide. He alleged also that in the period of a week to ten days prior to her coming here, she had in his hearing and the hearing of their minister threatened suicide as well as threatening death for herself and the children. He reported that she had a long history of fluctuating

Page 1254

mood, manipulative behavior and strong self-will.

"Over the next few days after coming to the hospital, Mrs. Werner fairly quickly became settled. However, on November 23 and 24 she became extremely demanding about being dismissed from the hospital stating that her children were very upset because she was here. Family members, however, were reporting that they were upset because of their experience with her. In the evening of November 24, Mrs. Werner left the hospital without authorization, alleging that she had made arrangements with her mother to finance her going to Indiana for continued treatment. She refused to return to the hospital here.

"In a phone conversation with Mr. Werner on November 29, he reported that Mrs. Werner was at home but was still fluctuating widely in her mood and attitude.

"I see this person as being oriented to time, place and person. I did not sense obvious delusion or hallucinations; however, there is obvious discrepancy between how she reports perceiving situations and how they are...

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