Consistent success for clients with complex issues.
REPORTED CASES
ELECTRONIC FILING; STATUTE OF LIMITATIONS
LAMBERT V. PETERSON, 309 KAN. 594, 439 P.3D 317 (2019)
Heir and Administrator of patient’s estate filed petition against medical providers and facilities, alleging that defendants committed negligence and medical malpractice that caused patient’s wrongful death. The District Court granted defendants’ motions to dismiss for failure to state a claim. Administrator appealed and the Kansas Supreme Court, Luckert, J., held that administrator failed to comply with procedural requirements relating to summary judgment motions and had not presented evidence that the attempted electronic filing of plaintiffs’ petition was timely or incorrectly rejected by the District Court clerk.
Affirmed.
SUMMARY JUDGMENT IN FEDERAL COURT; EMTALA, INTENTIONAL INFLICTION OF EMOTION DISTRESS UNDER KANSAS COMMON LAW AND BAR ON RESPONSIBILITY OF A HEALTH CARE PROVIDER UNDER K.S.A. § 40-3403(h).
PALMER V. SHAWNEE MISSION MED. CTR., INC., ET AL 355 F. SUPP. 3D 1003 (D. KAN. 2018)
Patient who delivered a child at home following discharge from a hospital with a diagnosis of false labor brought an action with her family members in the United State District Court for the District of Kansas. Plaintiffs alleged that Defendants violated the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd(d)(1), and also brought claims for intentional infliction of emotion distress under Kansas common law. Defendants filed motions for summary judgment as the record developed in discovery did not support the claims made. The Court agreed with Defendants’ position and granted the dispositive motions, terminating the case in its entirety. Importantly, this case expanded the analysis on the high standard of proof necessary in Kansas for a plaintiff to successfully prosecute a claim under the common law tort of intentional infliction of emotional distress, or, as it is sometimes referred to, the tort of outrage. Also, the Court re-affirmed the vicarious liability bar on responsibility for other health care providers under K.S.A. § 40-3403(h).
CASE OF FIRST IMPRESSION; IMMUNITY UNDER K.S.A. 38-2223(f)
T.H. v. University of Kansas Hospital Authority, et al, 2017 WL 66392, 388 P.3d 181, KAN.APP., January 6, 2017
Parents brought suit against a physician and the University of Kansas Hospital Authority alleging malpractice when a 9-month-old child was diagnosed with suspected sexual abuse. The district court dismissed the action, finding that both defendants were immune from suit under K.S.A. 2015 Supp. 38–2223(f) which protects certain individuals from civil liability for reporting suspected child abuse. Parents appealed the dismissal of their suit. In a case of first impression, the Kansas Court of Appeals recognized that K.S.A. 2015 Supp. 38-2223 (f) establishes protection to healthcare providers who investigate allegations of sexual abuse of children as long as the same is done without malice. Furthermore, the Court noted an absence of allegations that the physician’s actions were taken with a specific intent to injure anyone constituting actual malice, which is the only exception to this statutory immunity.
Affirmed.
TORTS; THIRD PARTY CAUSES OF ACTION; DUTY TO WARN
Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823, Kan., Aug 18, 1995
Voluntary mental patient’s uncle brought action against intermediate care facility and psychiatrist who treated patient at facility to recover for injuries sustained when patient shot uncle after patient’s release from facility. The Chautauqua District Court, Richard A. Medley, J., granted summary judgment for psychiatrist and facility, and uncle appealed. Upon transfer of case, the Supreme Court, Holmes, C.J., held that: (1) cause of action in favor of third party for negligent release of involuntary mental patient did not extend to voluntary patients; (2) psychiatrist had no duty to warn where uncle was already aware of danger posed by patient; and (3) no special relationship existed under circumstances of case such that psychiatrist had duty to warn or to involuntarily commit patient.
Affirmed.
CASE OF FIRST IMPRESSION; APPLICABILITY OF SUMMARY JUDGMENT TO PROBATE CODE, WILL CONTESTS
Matter of Estate of Brodbeck, 22 Kan.App.2d 229, 915 P.2d 145, Kan.App., Apr 19, 1996
Testator’s niece brought will contest, alleging undue influence by testator’s apartment manager and hairdresser, the proponents of the will. The District Court, Johnson County, Sam K. Bruner, J., granted summary judgment for proponents. Niece appealed. The Court of Appeals, Pierron, J., held that: (1) summary judgment is available in will contests based on undue influence; (2) despite confidential relationship, manager and hairdresser did not unduly influence testator in executing will; (3) testator’s belief that niece no longer loved her was not insane delusion; and (4) allowing proponents of will to draft summary judgment journal entry which judge signed was proper.
Affirmed.
CONSTITUTIONALITY OF WORKERS COMPENSATION LEGISLATION
Injured Workers of Kansas v. Franklin, 262 Kan. 840, 942 P.2d 591, Kan. Jul 18, 1997
In first case, various individuals, groups, and labor organizations filed a petition for declaratory judgment, seeking declaration that 1993 amendments to the Workers Compensation Act were unconstitutional and void. The District Court, Shawnee County, Charles E. Andrews, Jr., granted defendants’ motion for summary judgment. Plaintiffs filed notice of appeal with the Court of Appeals, and motion to transfer case to the Supreme Court which was granted. In second case, claimant filed application for review with the Workers Compensation Board, challenging award for shoulder injury, and the constitutionality of statutory amendment which classifies shoulder injuries as scheduled injuries. The Board ruled that it lacked authority to consider constitutionality of amendment, and affirmed award. Claimant appealed to the Court of Appeals and filed motion to consolidate his case with declaratory judgment case, which was granted. The Supreme Court, Abbott, J., held that: (1) amended notice of claim statute pursuant to which workers’ compensation claimants must notify employer of injury within ten days of occurrence of injury, or within 75 days at the most, does not violate equal protection or Due Process Clause of the Kansas Constitution; (2) amendment which classifies shoulder injury as a scheduled injury instead of as a whole body injury, does not violate equal protection or Due Process Clause of the Kansas Constitution; (3) amendment requiring offset of social security and private pension retirement benefits against workers’ compensation benefits does not violate equal protection; (4) amendment setting forth graduated contingency fee rates for attorneys does not interfere with Supreme Court’s inherent power to regulate the practice of law or unconstitutionally violate separation of powers doctrine; and (5) amendment setting forth graduated contingency fee rates does not violate equal protection or due process.
Affirmed.
MEDICAL MALPRACTICE; STATUTE OF LIMITATIONS
P.W.P. v. L.S., 266 Kan. 417, 969 P.2d 896, Kan., Dec 18, 1998
Patient brought action against therapist and mental health center, seeking recovery for emotional injures she sustained as result of sexual relationship with therapist. The District Court, Johnson County, Steve Leben, J., entered judgment for therapist and mental health center, and patient appealed. The Supreme Court, Larson, J., held that: (1) patient’s claims were reasonably ascertainable more than two years prior to initiation of lawsuit; (2) transference phenomenon did not toll statute of limitations with respect to patient’s claim; and (3) continuing patient-therapist relationship did not toll statute of limitations.
Affirmed.
UTILITY LAW, CONTRACT LAW, STATUTORY INTERPRETATION
Kansas Pipeline Partnership v. State Corp. Com’n of State of Kan., 22 Kan.App.2d 410, 916 P.2d 76, Kan.App., May 17, 1996
Natural gas pipeline submitted its natural gas sales and transportation contracts with natural gas local distribution company (LDC) to Kansas Corporation Commission (KCC) for approval. Commission issued order denying pipeline’s contention that contracts became deemed approved by operation of law because Commission failed to make decision within regulatory and statutory time limits. Pipeline sought judicial review. The Court of Appeals, Elliott, P.J., held that: (1) Commission order constituted “final agency action” subject to judicial review, and (2) contracts and related requests were deemed approved by operation of law due to Commission’s failure to finally act within 240 days of pipeline’s application, despite KCC’s issuance of stay and contention that Federal Energy Regulatory Commission (FERC) order asserting jurisdiction over pipeline was substantial alteration of facts so as to constitute “amendment” within exception to time limit.
Reversed.
UTILITY LAW; STATUTORY INTERPRETATION
Western Resources, Inc. v. State Corp. Com’n of State of Kan., 23 Kan.App.2d 664, 937 P.2d 964, Kan.App., Mar 19, 1997
Natural gas pipeline and natural gas local distribution company (LDC) sought approval of natural gas sales and transportation contracts between those parties before Kansas Corporation Commission (KCC). Commission consolidated dockets and issued order denying pipeline’s contention that contracts became deemed approved by operation of law because Commission failed to make decision within regulatory and statutory time limits. Pipeline sought judicial review. The Court of Appeals, 22 Kan.App.2d 410, 916 P.2d 76, reversed. On remand, Commission dismissed company’s application, claiming that dockets were consolidated only for purpose of common record. Company appealed. The Court of Appeals, Elliott, J., held that: (1) Commission improperly dismissed company’s application for approval of gas sales and transportation contracts following prior appeal, and (2) it would not reconsider its decision in prior appeal that it had jurisdiction of consolidated Commission dockets of pipeline and company.
Reversed and remanded with directions.
ZONING; ANNEXATION
Cedar Creek Properties, Inc. v. Board of County Com’rs of Johnson County, 249 Kan. 149, 815 P.2d 492, Kan., Jul 12, 1991
Owners of land adjoining property to be annexed to city as part of “island” annexation sought review of approval of annexation by board of county commissioners. The Johnson District Court, Phillip L. Woodworth, J., dismissed, and owners appealed. The Court of Appeals, 13 Kan.App.2d 734, 779 P.2d 463, affirmed, and owners petitioned for review. The Supreme Court, 246 Kan. 412, 789 P.2d 1170, reversed and remanded, determining that owners had standing to seek review of decision of board of county commissioners. On remand, the District Court, Johnson County, Phillip L. Woodworth, J., determined that use to be made of land could not be challenged in annexation proceeding and affirmed county board decision to allow annexation. On appeal following remand, the Supreme Court, Abbott, J., held that board was required to consider use of which land subject to island annexation would be put and determining whether proposed annexation would hinder proper development of land and in whether to approve annexation.
Reversed and remanded with directions.
MEDICAL MALPRACTICE
Heany v. Nibbelink, 23 Kan.App.2d 583, 932 P.2d 1046, Kan.App., Feb 28, 1997
Patient brought medical malpractice action against physician, alleging that negligent treatment caused postpartum bleeding. The District Court, Wyandotte County, Bill D. Robinson, Jr., J., granted summary judgment in favor of physician. Patient appealed. The Court of Appeals, Marquardt, P.J., held that: (1) patient failed to present expert testimony as to standard of care and as to whether physician’s conduct fell below standard, as required to maintain action, and (2) attorney work product doctrine rendered insurer’s claim file on physician immune from discovery.
Affirmed.
MEDICAL MALPRACTICE
Kelley v. Barnett, 23 Kan.App.2d 564, 932 P.2d 471, Kan.App., Feb 28, 1997
Administrator of estate of deceased patient, who had suffered stroke which left her permanently paralyzed six months after undergoing abdominal surgery and who had died 11 months later, brought medical malpractice and wrongful death actions against surgeons who had treated patient. Surgeons moved for summary judgment, and the Johnson District Court, Lawrence E. Sheppard, J., granted motion. Plaintiffs appealed, and the Court of Appeals, Robert J. Schmisseur, District Judge, assigned, held that injury to patient was reasonably ascertainable by patient and her family, beginning operation of statute of limitations, at time patient suffered stroke.
Affirmed.
MEDICAL MALPRACTICE
Anderson v. Collier, 92 P.3d 1147 (Table), Kan.App.,2004. Jul 09, 2004
Insulin dependent diabetic, who lost a foot in a work related injury, brought negligence action against physician, hospital and prosthesis designer for alleged negligent prescription and fitting of artificial leg resulting in further amputation of the limb. Defendants moved for summary judgment, and the Wyandotte County District Court, George A. Groneman, granted motions. Plaintiff appealed the granting of summary judgment to all the defendants based upon the statute of limitations and to the University of Kansas Hospital Authority (KUHA) on the additional grounds that KUHA owed no duty to Anderson. The Court of Appeals, C. Fred Lorentz, District Judge, assigned, held that the statute of limitations began to run on the date Anderson discovered his wound was caused by a faulty prosthesis and that accordingly the action was time barred.
Affirmed.
CHOICE OF LAW; INSURANCE POLICY CONSTRUCTION
Frasher v. Life Investors Ins. Co. of America, 14 Kan.App.2d 583, 796 P.2d 1069, Kan.App. Jul 27, 1990
Estate of buyer of vehicle brought suit for benefits under credit life policy buyer had obtained through Kansas car dealer during purchase of vehicle. The Johnson District Court, Janice D. Russell, J., granted summary judgment to insurer, and administrator of estate appealed. The Court of Appeals, Brazil, P.J., held that: (1) “insured” in credit life policy referred to buyer rather than dealer, and thus, because buyer resided in Missouri, Missouri law governed construction of policy, and (2) policy was “issued” to buyer, and thus Missouri statute barring suicide as defense to nonpayment of life benefits applied, and insurer was required to pay benefits following buyer’s suicide, notwithstanding policy’s suicide exclusion.
Reversed and remanded.
ANNEXATION; MUNICIPAL LAW; STATUTORY CONSTRUCTION
City of Leawood v. City of Overland Park, 245 Kan. 283, 777 P.2d 830, Kan. Jul 14, 1989
Municipality filed petition for declaratory judgment seeking to have annexation ordinances of neighboring city declared invalid, thereby giving municipality jurisdiction over disputed land. Neighboring municipality moved for summary judgment. The District Court, Johnson County, Larry McClain, J., entered judgment, and appeal and cross appeal were taken. On transfer of case from Court of Appeals, the Supreme Court, Herd, J., held that annexation of multiple contiguous tracts under heading and one ordinance was proper.
Affirmed.
PROJECTS
- Assisted client in the development of a $100 million-plus office and hotel project on the Country Club Plaza.
- Advised a client on the establishment of a groundbreaking land trust to preserve natural areas in a streamway corridor.
- Assisted a national retail company in obtaining zoning in an upscale development.
- Obtained summary judgment in behalf of a financial institution involving claims of fraud and wrongful foreclosure in a Missouri circuit court.
- Prepared a best practices policy for a large not-for-profit organization on the subjects of online marketing and website information.
- Prepared all of the documentation in a $9.165 million loan transaction involving an apartment and townhome community in Kansas City, Missouri.
- Represented a large public utility on two significant zoning applications involving the siting of facilities in Johnson County, Kansas.
- Negotiated and prepared documentation on a client’s multimillion dollar investment in an online business.
- Prepared lease and management agreements for a complex trust holding real estate and significant business interests in Wyoming and Kansas.
- Represented a probate estate in the marketing of, and preparation of sale documentation on, farm properties in Sumner County, Kansas.
- Advised a large public agency on matters pertaining to audits and financial practices.
- Conducted due diligence review and participated in the preparation of loan documentation on shopping center projects in Kansas and Arizona.
- Negotiated a favorable settlement of a zoning dispute between a landowner client and a municipality.
- Drafted rules of procedure on governance issues for affiliates of a large not-for-profit organization.
- Obtained a favorable settlement for a client bank in a case involving employment claims and interpretations of the Bank Secrecy Act.
