Opinion
Civil Action No. 88-2311-0.
July 20, 1990
MEMORANDUM AND ORDER
This matter comes before the court on the motion of defendant Wichita OB-GYN Associates, P.A. (hereinafter "Wichita OB-GYN"), for judgment on the pleadings. Amber, Amy, Ashlee, and Amanda Morgan (hereinafter "the Morgan children") contend that they suffered personal injuries arising out of the rendering of or the failure to render professional services by the defendant Carl Christman, M.D. (hereinafter "Dr. Christman"). The Morgan children further allege that Dr. Christman was acting within the scope and course of his relationship with Wichita OB-GYN and that the negligence of Dr. Christman is therefore imputed to Wichita OB-GYN. For the reasons stated below, we will grant defendant's motion for judgment on the pleadings.
The court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him to relief. Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746 (1976); Mangels v. Pena, 789 F.2d 836, 837 (10th Cir. 1986). "All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true." Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). The court must view all reasonable inferences in favor of the plaintiff and the pleadings must be liberally construed. Id. The issue in reviewing the sufficiency of a complaint is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Defendant Wichita OB-GYN asserts that the negligence of Dr. Christman cannot be imputed to it because there is no allegation in plaintiffs' amended complaint of negligence on the part of Wichita OB-GYN independent of Dr. Christman's conduct. Plaintiffs have no objection to the dismissal of defendant Wichita OB-GYN as a defendant in this action. The Kansas Legislature has statutorily abrogated the doctrine of vicarious liability as it applies to health care providers as defined in K.S.A. 40-3401(f). The version of K.S.A. 40-3403(h) in effect at the time of the filing of plaintiffs' complaint provided as follows:
A health care provider who is qualified for coverage under the fund shall have no vicarious liability of responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act.
We find that K.S.A. 40-3403(h) is applicable herein and that this statute eliminates any cause of action arising by virtue of vicarious liability on the part of defendant Wichita OB-GYN. Wichita OB-GYN is therefore entitled to judgment on the pleadings in its favor, dismissing plaintiffs' action with prejudice to the refiling thereof.
IT IS THEREFORE ORDERED that the motion of defendant Wichita OB-GYN for judgment on the pleadings is hereby granted, thus dismissing this defendant with prejudice from the instant action.