Opinion
No. 107,776.
2013-03-15
Janet WHALEY, Coexecutor of the ESTATE OF Ann L. KRIER, Deceased, Appellant, v. Chad E. SHARP, M.D., Appellee. Janet Whaley, Surviving Adult Daughter and Heir–at–Law of Ann L. Krier, Deceased, Appellant. v. Chad E. Sharp, M.D., Appellee.
Appeal from Clark District Court; Van Z. Hampton, Judge. Lynn R. Johnson and David R. Morantz, of Shamberg, Johnson, Bergman, Chtd., of Kansas City, Missouri, for appellant. Jerry D. Hawkins, of Hite, Fanning & Honeyman, L.L.P., of Wichita, for appellee.
Appeal from Clark District Court; Van Z. Hampton, Judge.
Lynn R. Johnson and David R. Morantz, of Shamberg, Johnson, Bergman, Chtd., of Kansas City, Missouri, for appellant. Jerry D. Hawkins, of Hite, Fanning & Honeyman, L.L.P., of Wichita, for appellee.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
BRUNS, J.
Janet Whaley appeals the granting of summary judgment in favor of Chad Sharp, M.D., in her wrongful death and survival actions stemming from her mother's death. The district court granted summary judgment because Whaley failed to comply with K.S.A.2012 Supp. 12–105b(d)—which bars an action after a notice claim has been filed with a municipality until either the claim is denied or 120 days have passed. Rather than waiting the required statutory period, Whaley filed suit only 4 days after filing a notice of claim with Dr. Sharp's employer, Ashland Health Center. On appeal, Whaley argues that the statute does not apply to her lawsuits because the hospital was not named as a defendant. For the reasons set forth in this opinion, we find that there was no error committed by the district court and that Whaley was required to comply with the statutory waiting period after she filed a notice of claim with the hospital. Thus, we affirm the district court's grant of summary judgment.
Facts
On May 15, 2008, Ann Krier sought treatment in the emergency department of Ashland Health Center, where she was placed under the care of Dr. Sharp and Jonathan A. Bigler, P.A. At the time, both Dr. Sharp and Bigler were employees of the municipally owned hospital. Although Dr. Sharp admitted Krier to the hospital, she died the next day before she could be transferred to a hospital in Wichita. Evidently, the hospital terminated Dr. Sharp's employment about a week after Krier's death.
Krier's adult daughter, Janet Whaley, sent a notice of claim to Ashland Health Center on behalf of Krier's estate and heirs-at-law on May 6, 2010. In the notice, Whaley asserted claims against the hospital for the negligence of its employees—including the nursing staff, Dr. Sharp, and Bigler—arising out of the care and treatment provided to her mother. The notice also asserted a claim against the hospital for negligently hiring, credentialing, supervising and retaining Dr. Sharp. In addition, Whaley claimed monetary damages from the hospital in the total amount of $1,250,000.
Just 4 days after sending the notice of claim to the hospital, Whaley filed separate wrongful death and survival actions. Both petitions named Dr. Sharp and Bigler as defendants. Whaley did not, however, name the hospital as a party in either petition. In both petitions, Whaley alleged that Dr. Sharp and Bigler were negligent in the care and treatment of Krier while she was a patient at Ashland Health Center.
More than a year later, on June 3, 2011, Bigler was voluntarily dismissed as a defendant in both cases. About 7 months later, on February 2, 2012, the district court granted summary judgment to Dr. Sharp because Whaley had failed to comply with the notice of claim requirements set forth in K.S.A.2012 Supp. 12–105b(d). Thereafter, Whaley filed a timely notice of appeal.
Issues Presented
On appeal, Whaley contends that K.S.A.2012 Supp. 12–105b(d) does not require compliance with its requirements as a prerequisite to filing a lawsuit against an employee of a municipality. In the alternative, Whaley contends that she was not required to comply with K.S.A.2012 Supp. 12–105b because Ashland Health Center has no vicarious liability or responsibility for the alleged medical negligence of Dr. Sharp.
Standard of Review
Interpretation of a statute is a question of law over which this court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). This court first must attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009). When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it, nor will we read into the statute something not readily found in it. If there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent. Double MConstr. v. Kansas Corporation Comm'n, 288 Kan. 268, 271–72, 202 P.3d 7 (2009).
Notice of Claim Requirement Under K.S.A.2012 Supp. 12–105b
This case involves an interpretation of K.S.A.2012 Supp. 12–105b(d), which states:
“(d) Any person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action. The notice shall be filed with ... the municipality and contain the following: (1) The name and address of the claimant and the name and address of the claimant's attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee involved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested.... Once notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first.... No person may initiate an action against a municipality unless the claim has been denied in whole or part. Any action brought pursuant to the Kansas tort claims act shall be commenced within the time period provided for in the code of civil procedure or it shall be forever barred, except that, a claimant shall have no less than 90 days from the date the claim is denied or deemed denied in which to commence an action.” (Emphasis added.)
“Compliance with the notice of claim statute, K.S.A. 12–105b(d) is a jurisdictional prerequisite to commencing suit.” Christopher v. State, 36 Kan.App.2d 697, Syl. ¶ 1, 143 P.3d 685 (2006); see also Gessner v. Phillips County Comm'rs, 270 Kan. 78, Syl. ¶ 1, 11 P.3d 1131 (2000)(“The specific provisions of K.S.A. 12–105b(d) require written notice of claims by persons alleging injury from acts of municipalities as a jurisdictional prerequisite [condition precedent] to commencing a lawsuit under the Kansas Tort Claims Act.”). Furthermore, “[i]t is clear that the legislature intended that failure to provide the appropriate notice must be construed to preclude claimants from commencing a legal action.” Gessner, 270 Kan. at 82. Thus, if a plaintiff fails to substantially comply with K.S.A. 12–105b(d), “the action is void ab initio, given the district court's lack of jurisdiction.” Christopher, 36 Kan.App.2d 697, Syl. ¶ 3; see Steed v. McPherson Area Solid Waste Utility, 43 Kan.App.2d 75, 91, 221 P.3d 1157 (2010).
On the one hand, K.S.A.2012 Supp. 12–105b(d) requires that a claimant provide a municipality with the information necessary—including “the name and address of any public officer or employee involved”—to review and investigate a claim to determine whether it should attempt to negotiate settlement before litigating a claim that “could give rise” to liability under the Kansas Tort Claims Act (KTCA), K.S.A. 75–6101 et seq. On the other hand, if a claimant complies with the notice requirements of K.S.A.2012 Supp. 12–105b(d), the statute of limitations is tolled until the claim is denied or 120 days has elapsed, plus an additional 90 days. The King Decision
In King v. Pimentel, 20 Kan.App.2d 579, 890 P.2d 1217 (1995), this court expressly addressed the issue of whether the notice of claim requirement applies to claims that could give rise to an action against municipal employees. In King, the district court ruled that a plaintiff—who had sued both a municipality and three of its employees—was not required to provide a written notice of claim to a municipality under K.S.A. 12–105b(d) for claims against municipal employees arising out of the KTCA. Relying on Bradford v. Mahan, 219 Kan. 450, Syl. ¶ 3, 548 P.2d 1223 (1976), the district court found that the statute did not extend the applicable limitation period as to the plaintiff's claims against the municipal employees. Because the statute of limitations had expired, the district court granted summary judgment to the individual defendants.
On appeal, this court reversed the district court's decision, holding that the notice of claim provision in K.S.A. 12–105b(d) applies to both claims against a municipality and to claims against municipal employees that could give rise to an action under the KTCA. 20 Kan.App.2d at 589. After recognizing that its holding was a broad interpretation of K.S.A. 12–105b, this court explained:
“The law with regard to municipal liability has changed significantly since the Bradford decision. Now, under the KTCA, a governmental entity's liability for the negligent or wrongful acts or omissions of its employees, while acting within the scope of their employment, is the rule rather than the exception. K.S.A. 75–6103. Additionally, a governmental entity is obligated, with certain exceptions, to provide a defense for employees defending actions under the KTCA and is liable and must indemnify its employees against damages for injury or damage caused by the employees while acting within the scope of their employment. K.S.A. 75–6108, K.S.A. 75–6109, and K.S.A. 75–6116.
“The notice of claim requirement in K.S.A. 12–105b(d) affords a municipality an opportunity to review and investigate tort claims against it and to approve or deny such claims before having to litigate an action under the KTCA. Because a municipality faces significant liability, both in actions brought against it and actions brought against its employees under the KTCA, we conclude the legislature intended written notice of a claim under K.S.A. 12–105b(d) would be a prerequisite for bringing an action under the KTCA against municipal employees who cause injury or damages to another while acting within the scope of their employment. Such an interpretation of K.S.A. 12–105b(d) eliminates the necessity of bringing two separate KTCA actions, one against the municipality and one against individual municipal employees when, as here, the statute of limitations period expires before the municipality has responded to the notice of claim.” (Emphasis added.) King, 20 Kan.App.2d at 589–90.
Stare Decisis
In the present case, Whaley asks that we overrule our holding in King. “The doctrine of stare decisis maintains that once a point of law has been established by a court, it will generally be followed by the same court and all courts of lower rank in subsequent cases when the same legal issue is raised.” Miller v. Johnson, 295 Kan. 636, 653, 289 P.3d 1098 (Kan.2012). Appellate courts will follow established precedent “unless clearly convinced it was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent.” Rhoten v. Dickson, 290 Kan. 92, 112, 223 P.3d 786 (2010). “Stare decisis operates to promote system-wide stability and continuity by ensuring the survival of decisions that have been previously approved.” Crist v. Hunan Palace, Inc., 277 Kan. 706, Syl. ¶ 4, 89 P.3d 573 (2004).
Certainly, stare decisis is not an “inexorable command” to follow prior precedent. See Hall v. Dillon Companies, Inc., 286 Kan. 777, 787, 189 P.3d 508 (2008). “Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and [the legislature] remains free to alter what we have done.” Patterson v. McLean Credit Union, 491 U.S. 164, 172–73, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Hence, “[w]hen the legislature fails to modify a statute to avoid a standing judicial construction of that statute, the legislature is presumed to agree with the court's interpretation.” In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000); see Halsey v. Farm Bureau Mut. Ins. Co., 275 Kan. 129, 136, 61 P .3d 691 (2003).
More than 18 years ago this court held that “the legislature intended written notice of a claim under K.S.A. 12–105b(d) would be a prerequisite for bringing an action under the KTCA against municipal employees who cause injury or damages to another while acting within the scope of their employment.” King, 20 Kan.App.2d at 590. If the Kansas Legislature believed that King was wrongly decided, it has had many years to correct any perceived error in our interpretation of K.S.A. 12–105b(d). Because the legislature has not done so, we presume that the legislature agreed with the statutory construction set forth in King.
Over the years, numerous district and appellate courts—both state and federal—have cited and relied upon the King decision. Notably, in Orr v. Heiman, 270 Kan. 109, 112, 12 P.3d 387 (2000), the Kansas Supreme Court affirmed a trial court's decision that included the statement: “This requirement [of notice under K.S .A. 12–105b(d) ] not only applies to claims against the municipality itself but to claims against municipal employees arising out of the course and scope of their employment. King v. Pimental, 20 Kan.App.2d 579[, 890 P.2d 1217] (1995).”
Likewise, in Cummings v. City of Lakin, 276 Kan. 858, 863, 80 P.3d 356 (2003), our Supreme Court relied on King in finding that “the notice of claim requirement affords a municipality an opportunity to review and investigate tort claims against it and to approve or deny such claims before having to litigate an action under the Kansas Tort Claims Act,” while also “insur[ing] that a party complying with the statute's notice of claim provisions will not be prejudiced if during the rejection period the statute of limitations expires.”
The United States District Court for the District of Kansas also continues to rely upon King in interpreting the provisions of K.S.A.2012 Supp. 12–105b(d). See, e.g., Cano v. Denning, No. 12–2217–KHV, 2013 WL 322112, at *8 n. 7 (D.Kan.2013) (Slip op.) (“For purposes of the notice requirement, claims against a municipality include claims against municipal employees or officials acting in the scope of their employment.”); see also Richard v. Board of County Com'rs of Sedgwick County, Nos. 09–1278 & 10–1042–MLB–KMH, 2012 WL 4794588, at *4–7 (D.Kan.2012) (Slip op.);Brooks v. 10 Circuit Court of Appeals, No. 10–2452–MLB, 2010 WL 3878658, at *4 (D.Kan.2010) (unpublished opinion); Reindl v. City of Leavenworth, 361 F.Supp.2d 1294, 1299–300 (D.Kan.2005).
For many years, the law of Kansas has been clear that the notice of claim provision found in K.S.A. 12–105b(d) applies both to claims against municipalities and to claims against municipal employees that could give rise to an action under the KTCA. And we find that the interpretation of K.S.A. 12–105b(d) set forth in King has served litigants—both plaintiffs and defendants—well for the past 18 years. On the one hand, plaintiff's benefit from the tolling of the statute of limitations while claims are pending. On the other hand, a municipal defendant benefits by having the opportunity to review and investigate tort claims against it and to approve or deny such claims before having to litigate an action under the KTCA.
Ironically, Whaley's argument is nearly identical to that made by the municipality in King—that the provisions of K.S.A.2012 Supp. 12–105b(d) should not apply to claims against municipalities where only municipal employees are named. In fact, had Whaley's argument prevailed in King, the plaintiff's claim against the municipal employees would have been barred by the statute of limitations. Hence, although Whaley may benefit if we overruled King and its progeny, other plaintiffs would be harmed by no longer receiving benefit from the tolling provision of the K.S.A.2012 Supp. 12–105b(d) in actions filed against municipal employees. Likewise, plaintiffs would be required to bring two separate KTCA actions, one against the municipality and one against individual municipal employees when the statute of limitations period expires before the municipality has responded to the notice of claim. Thus, we decline the invitation to overrule the holding in King.
Vicarious Liability of Health Care Providers
In the alternative, Whaley contends that even if the King opinion continues to be viable precedent for the interpretation of K .S.A.2012 Supp. 12–105b(d), she still did not have to comply with its notice requirements. According to Whaley, the reasoning of King is not applicable to the present case because Ashland Health Center—as a health care provider—cannot be vicariously liable or responsible for the negligence of Dr. Sharp—who is also a health care provider—under the provisions of K.S.A.2012 Supp. 40–3403(h). In support of her argument, Whaley quotes Glassman v. Costello, 267 Kan. 509, 523, 986 P.2d 1050 (1999), in which the Kansas Supreme Court found that “[t]he adoption of K.S.A. 40–3403(h) abrogates vicarious liability where both health care providers, as defined by K.S.A. 40–3401(f), are covered by the Healthcare Stabilization Fund.”; see Jones v. Neuroscience Assocs ., Inc., 250 Kan. 477, 480–81, 827 P.2d 51 (1992). But this argument is unpersuasive for two reasons.
First, as Dr. Sharp points out, K.S.A. 75–6115(a)(2) is relevant to this issue. K.S.A. 75–6115(a) generally provides that the KTCA “shall not be applicable to claims arising from the rendering of or failure to render professional services by a health care provider....” But the statute goes on to state that this exception to the KTCA does not apply to “a hospital owned by a municipality and the employees thereof.” K.S.A. 75–6115(a)(2). Thus, although the KTCA does not generally cover medical malpractice claims, it does cover such claims brought against a municipally owned hospital and or its employees.
Second, like the district court, we need not determine the application of K.S.A.2012 Supp. 40–3403(h) or K.S.A. 75–6115(a)(2) in this case. Here, Whaley actually filed a notice of claim against Ashland Health Center only 4 days before filing suit against Dr. Sharp. This is significant because “[o]nce notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first.” (Emphasis added.) K.S.A.2012 Supp. 12–105b(d). The statute requires that the notice contain “the name and address of any public officer or employee involved, if known.” K.S.A.2012 Supp. 12–105b(d). And the notice to Ashland Health Center included Dr. Sharp's name and address.
We find that “no action” means just that—no action. Accordingly, the statute mandated that Whaley commence “no action” until Ashland Health Center denied her notice of claim or until after 120 days had expired. This would include no action against Ashland Health Center, Dr. Sharp, Bigler, or any other employee that Whaley identified in the notice of claim as being involved in the incident giving rise to the claim. See K.S.A.2012 Supp. 12–105b(d).
As indicated above, this court held in Knorp v. Albert, 29 Kan.App.2d 509, 517, 28 P.3d 1024,rev. denied 272 Kan. 1418 (2001), that a notice of claim was required before filing an action against a doctor employed by a municipal hospital—regardless of whether the plaintiff named the hospital employer as a party. Similar to King, this court and numerous others have relied on the Knorp decision. See Garcia v. Anderson, 46 Kan.App.2d 1094, 1100 (2012); Phillips v. Humble, 587 F.3d 1267, 1272–73 (10th Cir.2009); Brooks, 2010 WL 38778658, at *4. Further, because the Kansas Legislature has not attempted to correct any perceived error in our interpretation of K.S.A.2012 Supp. 12–105b(d) in the 12 years since we decided Knorp, we presume that the legislature agreed with the opinion.
In summary, K.S.A.2012 Supp. 12–105b(d) requires that “[a]ny person having a claim against a municipality which could give rise to an action brought under the Kansas tort claims act shall file a written notice as provided in this subsection before commencing such action.” Further, the statute states that “[o]nce notice of the claim is filed, no action shall be commenced until after the claimant has received notice from the municipality that it has denied the claim or until after 120 days has passed following the filing of the notice of claim, whichever occurs first.” But Whaley waited only 4 days after filing a notice of claim before filing lawsuits against two municipal hospital employees—a doctor and a physician's assistant. We, therefore, affirm the district court's dismissal of Whaley's lawsuits for noncompliance with K.S.A.2012 Supp. 12–105b(d).
Affirmed.
MALONE, C.J., dissenting.
I respectfully dissent. Under the plain language of the statute, K.S.A.2012 Supp. 12–105b(d) applies to any person having a claim against a municipality. The statute does not require notice of a claim against a municipal employee. This was the conclusion reached by the Kansas Supreme Court in analyzing a previous, but similar, version of the statute. See Bradford v. Mahan, 219 Kan. 450, Syl. ¶ 3, 548 P.2d 1223 (1976). Thus, Janet Whaley was not required to give notice of her claim against Chad Sharp, M.D., and the fact that she sent a notice of claim to Ashland Health Center did not prevent her from suing Dr. Sharp 4 days later. The fact that in this case Ashland Health Center has no vicarious liability for the alleged medical negligence of Dr. Sharp provides additional support for this conclusion. I conclude that the district court erred by granting summary judgment to Dr. Sharp on the ground that Whaley failed to comply with the notice requirements of K.S.A.2012 Supp. 12–105b(d).