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23 Kan. App. 2d 564
No. 75,305
GARY M. KELLEY, et al., Appellants, v. THOMAS E. BARNETT, JR., M.D., et al., Appellees.
SYLLABUS BY THE COURT
1. Medical malpractice and wrongful death causes of action are subject to a 2-year
statute of limitations. K.S.A. 60-513(a).
2. Under K.S.A. 60-513(c), a cause of action in medical malpractice does not
accrue until such time as substantial injury results from the alleged act of
malpractice or until the fact of injury becomes reasonably ascertainable. Where
there is conflicting evidence as to when a cause of action for medical
malpractice is deemed to have accrued under K.S.A. 60-513(c), the matter
becomes an issue for determination by the trier of fact.
3. The phrase "reasonably ascertainable" means that when an injury is known to
be substantial, a plaintiff in a medical malpractice or a wrongful death case has a
duty to conduct a reasonable investigation as to whether the injury was caused
by negligence.
Appeal from Johnson District Court; LAWRENCE E. SHEPPARD, judge. Opinion filed February
28, 1997. Affirmed.
William H. Pickett, David T. Greis, and Gregory J. Abella, of William H. Pickett, P.C., of Kansas
City, Missouri, and Michael E. Callen, of Kansas City, for appellants.
Scott K. Logan and M. Bradley Watson, of Logan & Logan, L.C., of Prairie Village, for appellee
Thomas E. Barnett, Jr., M.D.
M. Warren McCamish and Phillip P. Ashley, of Williamson & Cubbison, of Kansas City, for
appellee William C. Sclar, M.D.
Before KNUDSON, P.J., RULON, J., and ROBERT J. SCHMISSEUR, District Judge,
assigned.
SCHMISSEUR, J.: This is a medical malpractice and wrongful death case
stemming from the medical treatment and eventual death of Mary Brown Kelley. The
action is brought by Mary's husband Gary M. Kelley, individually and as the special
administrator of her estate, and her daughter Shannon E. Kelley against Thomas E.
Barnett, Jr., M.D., and William C. Sclar, M.D.
The plaintiffs contend that the trial court erred by granting the defendants'
motions for summary judgment, both of which alleged that the causes of action were
barred by the statute of limitations.
On March 18, 1990, Mary Kelley experienced abdominal pain and was
subsequently admitted to the hospital. The following day, Dr. Sclar operated on her
and removed parts of her colon. Dr. Barnett was a consultant for Mary Kelley's care
upon her hospital admission, and he provided post-operative care.
Following the first surgery, Mary Kelley experienced severe pain. Dr. Sclar
performed a second operation on March 25, 1990, for post-operative bowel obstruction.
During the operation, Dr. Sclar discovered a blood clot that had caused most of Mary
Kelley's small bowel to cease functioning. Dr. Sclar interrupted the surgery to discuss
the situation with Gary Kelley and Shannon Kelley. Advising them that Mary Kelley's
condition was catastrophic, Dr. Sclar indicated that he would have to remove most of
her small bowel.
After the surgery, Dr. Sclar advised the plaintiffs that there were potentially
serious problems in Mary Kelley's future care and treatment, including the indefinite
need for Total Parental Nutrition (TPN). TPN patients require feeding through a tube
and are highly susceptible to infection. On April 23, 1990, Mary Kelley was discharged
from the hospital.
On October 20, 1990, Mary Kelley suffered a major stroke, which left her
permanently paralyzed. Mary Kelley died on September 26, 1991. The plaintiffs filed a
petition on February 10, 1993.
Each defendant filed a motion for summary judgment, claiming that the action
was barred by the statute of limitations. After the motions were granted by the trial
court, the plaintiffs filed a timely appeal.
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"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.
When opposing a motion for summary judgment, an adverse party must come forward with evidence to
establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the
dispute must be material to the conclusive issues in the case. 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. [Citations omitted.]" Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891
P.2d 435 (1995).
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At the hearing on the motions for summary judgment, the parties disputed the
plaintiffs' technical compliance with Kansas Supreme Court Rule 141 (1996 Kan. Ct. R.
Annot. 162) regarding the procedure for summary judgment motions. Since the major
dispute between the parties is a legal one rather than a factual one, we view this
technical compliance dispute as superfluous.
In the present case, the applicable statute of limitations is found in K.S.A. 60-513(a), which provides:
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"The following actions shall be brought within two years:
. . . .
(5) An action for wrongful death.
. . . .
(7) An action arising out of the rendering of or failure to render professional services by a health
care provider, not arising on contract."
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Further, 60-513(c) provides:
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"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."
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Accordingly, the statute of limitations applicable to both counts in the plaintiffs'
petition is the 2-year time period. In Jones v. Neuroscience Assocs., Inc., 250 Kan.
477, 481, 827 P.2d 51 (1992), the 2-year statute of limitations period for filing a medical
malpractice claim was at issue. Experiencing a problem with a radial nerve, the plaintiff
filed her cause of action more than 2 years after surgery. She argued that the statute of
limitations was not triggered until she knew the extent of her injury. The defendants
argued that the statute of limitations begins upon knowledge of the fact of injury, not the
extent of injury.
In Jones, 250 Kan. at 489, the court concluded:
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"Under K.S.A. 60-513(c), a cause of action in medical malpractice does not accrue until such time as
substantial injury results from the alleged act of malpractice or until the fact of injury becomes reasonably
ascertainable. Where there is conflicting evidence as to when a cause of action for medical malpractice is
deemed to have accrued under K.S.A. 60-513(c), the matter becomes an issue for determination by the
trier of fact.
"Under the facts of this case evidence stemming from the 'physician-patient relationship' or
'continuous treatment' doctrines is relevant upon the issue of when it was reasonably apparent to Jones
that her injury was permanent, i.e., substantial. Since the evidence is inconclusive, Jones must be
afforded the right to have that issue determined by the trier of fact. If we were to decide otherwise,
patients having surgery and then suffering an unexpected result would be required to immediately
determine if the unexpected result was a substantial injury resulting from malpractice. This would be an
uncalled-for result, seriously impairing the physician-patient relationship."
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In Jones, 250 Kan. at 479, the day after surgery, the plaintiff was told there had
been "a little problem during the surgery." Throughout the following several months,
the plaintiff was continually assured that the problem would be resolved.
In the present case, Mary Kelley's second surgery was interrupted by Dr. Sclar,
who told the plaintiffs that there had been a catastrophe and that most of Mary Kelley's
small bowel would have to be removed. Further, Dr. Sclar told the plaintiffs that if Mary
Kelley were older, he "would not bother" to try to remedy the situation. After the
surgery, the plaintiffs were informed of potentially serious problems relating to Mary
Kelley's long-term feeding situation and her susceptibility to infection.
The trial court indicated that this information should have informed the plaintiffs
that the injury was substantial. Further, even if the injury were not ascertainable as
substantial at that time, the trial court ruled that it certainly was ascertainable as a
substantial permanent injury when Mary suffered a major stroke more than 2 years
before her cause of action was filed.
In Davidson v. Denning, 259 Kan. 659, 914 P.2d 936 (1996), the Kansas
Supreme Court reviewed two Court of Appeals cases: Davidson v. Denning, 21 Kan.
App. 2d 225, 897 P.2d 1043 (1995), and Raile v. Nationwide Agribusiness Ins. Co., No.
72,260, unpublished opinion filed June 23, 1995. The court also discussed Jones and
other statute of limitations cases that dealt with the question of when the statute of
limitations begins to run in a wrongful death case.
The present case involves both a medical malpractice action and a wrongful
death action. Davidson analyzes both the 2-year statute of limitations for medical
malpractice actions and the 2-year statute of limitations as applied to wrongful death
actions. Thus, the Davidson analysis is highly applicable here.
Davidson states:
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"The discovery rule, as codified at K.S.A. 60-513(b) and (c), states that the limitations period
starts when the 'fact of injury' is 'reasonably ascertainable.' The phrase 'reasonably ascertainable' means
that a plaintiff has the obligation to reasonably investigate available sources that contain the facts of the
death and its wrongful causation." 259 Kan. at 678-79.
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The duty to reasonably investigate should also apply to medical malpractice
cases. Davidson also states: "'Reasonably ascertainable' does not mean 'actual
knowledge.'" 259 Kan. at 678. "K.S.A. 60-513(b) and (c) provide that the limitations
period starts when the 'fact of injury' becomes 'reasonably ascertainable.' Inherent in
'to ascertain' is 'to investigate.'" 259 Kan. at 675.
The 2-year medical malpractice statute of limitations is discussed in Davidson,
259 Kan. at 671-73, which states:
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"We applied the discovery rule to the statute of limitations in several medical malpractice cases
involving living patients. In Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, 827 P.2d 51 (1992), the
district court granted the defendants' motions for summary judgment, ruling the action was time barred.
We reversed on the statute of limitations issues. 250 Kan. at 489. We cited Cleveland v. Wong, 237 Kan.
410, 701 P.2d 1301 (1985), and Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P.2d 649
(1971), as persuasive authority for our decision. 250 Kan. at 489.
"Jones concerned the question of when an injury received from surgery first became 'substantial,'
or permanent, after doctors had repeatedly assured Mrs. Jones that her condition would resolve over time.
Neither in Davidson nor in Raile is there a suggestion that medical personnel made any inaccurate or
misleading representations to Mrs. Davidson or Mr. Raile concerning the cause of death.
"In Cleveland, plaintiff, experiencing recurrent urinary tract infection and other related problems,
sought treatment from the defendant doctor, who performed a resection procedure on plaintiff's prostate
on May 19, 1978. Plaintiff filed suit on August 14, 1980. The question of when plaintiff's injury was
'reasonably ascertainable' and whether the action was therefore timely filed was submitted to the jury,
which determined that the action was timely. We affirmed. Cleveland, like Jones and unlike either
Davidson or Raile, involved a patient injured from surgery who was told by the treating surgeon and
personal physician that the conditions were temporary and normal immediately following surgery. The
passage of time revealed the physicians' statements to be wrong. Thus, plaintiff had no reason to suspect
that the conditions were permanent or the result of malpractice. 237 Kan. at 414.
"In Hecht, plaintiff was referred to the defendant doctors for radiation therapy for Hodgkin's
disease in 1964 and received 20 treatments. In January 1966, plaintiff was diagnosed with a recurrence
of Hodgkin's disease and was referred to defendants for additional x-ray therapy and treatment. Hecht
also involved an injury that could not be evaluated as permanent until the passage of time. Plaintiff's
doctors believed that the condition would heal.
"We have applied the discovery rule in a non-malpractice personal injury case, Gilger v. Lee
Constr., Inc., 249 Kan. 307, 820 P.2d 390 (1991). The district court in Gilger granted summary judgment
for defendants on statute of limitations grounds. The Court of Appeals reversed. Gilger v. Lee Constr.,
Inc., 14 Kan. App. 2d 679, 687-89, 798 P.2d 495 (1990). We affirmed the portion of the Court of Appeals
opinion concerning application of the K.S.A. 60-513(b) discovery rule. Gilger also involved a situation
where the tortfeasor made inaccurate representations to the injured plaintiff, forestalling plaintiffs' efforts to
find the real cause. The injury in Gilger was ongoing, and plaintiffs continued to be harmed until the cause
was determined and corrected. In Davidson and Raile, the injury was immediate and final.
"Friends University v. W.R. Grace & Co., 227 Kan. 559, 608 P.2d 936 (1980), a roof-leak case,
provides guidance about when an injury becomes 'reasonably ascertainable' within the meaning of K.S.A.
60-513(b). The university's new library was completed in September 1969 and began to leak in 1970 or
1971. The university complained to the roofing company and manufacturers. Repairs were first
attempted in 1970, but were not successful. Conferences and inspections were held, but the roofing
company and manufacturers each denied liability. In April 1975, an independent expert determined that
the cause of the leak was defective material supplied by W.R. Grace & Co., and the structure would
require reroofing. The university filed suit on March 29, 1977, claiming negligence, strict liability in tort,
and breach of implied warranty. The defendant manufacturers were granted summary judgment based on
the statute of limitations. On appeal, the university argued that under 60-513(b), the statute of limitations
did not commence to run until the expert's report was obtained, citing Hecht as authority. We disagreed
with the university and affirmed summary judgment, stating:
'The new roof was obviously defective in some respect when leaking occurred. These
defendants did not advise the plaintiff that the roof would heal itself or take any action to
lull plaintiff into believing the problem was less severe than it appeared.
. . . .
'In the case before us a new roof on a new building was leaking. The cause had to be defective
design, materials, workmanship, or some combination thereof. At any time Friends could easily have
obtained an expert opinion on the precise cause or causes for the leaking roof.' 227 Kan. at 562-65.
"Although the above cases provide general guidance on the question of when the 'fact of injury' is
'reasonably ascertainable,' none answer the question of how the discovery rule applies in wrongful death
actions."
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Dealing more specifically with the wrongful death issue, Davidson, 259 Kan. at
668-69, states:
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"K.S.A. 60-1901 provides:
'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, in accordance with the provisions of this article, against the wrongdoer, or his or her personal
representative if he or she is deceased.'
. . . .
"In 1963, when the Code of Civil Procedure was revised and enacted in its present form, the 2-year limitation in the wrongful death statute was relocated to what is now K.S.A. 60-513(a)(5).
Consequently, '[a]n action for wrongful death' is specifically listed as one that must be brought 'within two
years.' We have observed that this revision was made for convenience and organizational purposes
rather than to effect a change in the application of the wrongful death statute. [Citation omitted.]
. . . .
"The term 'reasonably ascertainable' as applied in 60-513(b) and (c) in a wrongful death action
suggests an objective standard based on an examination of the surrounding circumstances. [Citation
omitted.]"
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Davidson concludes:
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"We have not established a 'bright line' rule that the wrongful death limitations period may never
be extended beyond 2 years from the date of death. Here, there were no circumstances present justifying
an extension, such as concealment of the fact of death or of medical records not a misrepresentation,
alteration, inaccuracy, or falsification of any type." 259 Kan. at 679.
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Crockett v. Medicalodges, Inc., 247 Kan. 433, 438-41, 799 P.2d 1022 (1990),
discusses when the statute of limitations begins to run in a wrongful death action. In
Crockett, the plaintiff argued that the statute of limitations would not begin to run until
the date of death. It is true that the cause of action must be filed within at least 2 years
of the date of death; however, the statute of limitations will begin to run sooner if the
injury is reasonably ascertainable before that time. Likewise, in a medical malpractice
case, the statute of limitations accrues as soon as the injury occurs or when it is
reasonably ascertainable.
Here, the plaintiffs argue that Mary Kelley's injury must have been known and
that the causal connection between the injury and the negligence of the defendants
must have been identifiable before the statute of limitations began to run. As explained
in Davidson and Jones, however, once an injury is known to be substantial and
permanent, there is a duty placed on the plaintiff to reasonably investigate in order to
determine whether negligence caused the damage. By the time of her stroke, if not
before, Mary Kelley's condition was substantial and permanent. There is no allegation
that the defendants attempted to downplay the seriousness of Mary Kelley's condition
or to explain her condition as temporary.
If plaintiffs were allowed to wait to commence suit until directly confronted with
evidence of negligence, the statute of limitations would almost never begin to run. The
plaintiffs were aware of the severity of Mary Kelley's injury and should have investigated
the possibility of negligence within at least 2 years of her stroke.
The trial court did not err in ruling that the statute of limitations barred the
plaintiffs' causes of action.
Affirmed.
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