Opinion
No. 108,676.
2013-10-18
Anne FOSTER, Appellant, v. Frank G. JUDILLA, M.D., Appellee, and The Headache & Pain Center, P.A., Defendant.
Appeal from Johnson District Court; Thomas M. Sutherland, Judge. Keith C. Sevedge, of Lenexa, G. Michael Fatall, Walter R. Simpson, and Donald F. McDonald, of Sanders & Simpson, P.C., of Kansas City, Missouri, of Kansas City, Missouri, for appellant. Matthew M. Merrill, of Brown & Ruprecht PC, of Kansas City, Missouri, for appellee.
Appeal from Johnson District Court; Thomas M. Sutherland, Judge.
Keith C. Sevedge, of Lenexa, G. Michael Fatall, Walter R. Simpson, and Donald F. McDonald, of Sanders & Simpson, P.C., of Kansas City, Missouri, of Kansas City, Missouri, for appellant. Matthew M. Merrill, of Brown & Ruprecht PC, of Kansas City, Missouri, for appellee.
Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.
MEMORANDUM OPINION
LARSON, J.
This appeal involves a medical malpractice action brought by Anne Foster against Frank G. Judilla, M.D.
Mrs. Foster appeals the district court's grant of Dr. Judilla's motion for summary judgment on the ground that the statute of limitations barred her cause of action.
We will set forth in detail the interaction between the parties on the various times and events which were critical to the rulings of the district court and are crucial to the issues raised on appeal. We do so by resolving all facts and inferences in favor of Mrs. Foster against whom summary judgment was rendered by the district court.
Factual and Procedural Background
During the summer of 2007, Mrs. Foster sought treatment from Dr. Judilla. The treatment recommended by Dr. Judilla and agreed to by Mrs. Foster was the injection of three thoracic epidural steroid shots to provide relief from her back pain.
Dr. Judilla administered the three thoracic epidural steroid injections on July 17, July 24, and July 31, 2007. The first two treatments by Dr. Judilla went without any notable incident. After being monitored in the clinic for about 15 minutes following the treatments, Mrs. Foster was able to easily walk out of the clinic. Both of these events were truly uneventful and Mrs. Foster's back pain was significantly improved after each of the first two injections.
Mrs. Foster's third epidural injection on July 31 was a different experience. She testified that after the third injection, she was being assisted to a stretcher for recovery when “all the life seemed to be going from her.” She stated she was totally paralyzed from her neck down and she thought she was “dying.” Mrs. Foster heard the nurse shout for help, and the nurse told her she would not leave her side. Mrs. Foster was aware that Dr. Judilla returned and gave her a shot of ephedrine. She knew her blood pressure was extremely low, but she did not realize how low it had been until the numbers were revealed by discovery in her filed malpractice action. She had feeling only in her head and it was difficult for her to talk. She was frightened and told her husband that she did not “want to live like this.”
Mrs. Foster's husband, Theodore, a retired doctor of osteopathy, accompanied her to the appointments with Dr. Judilla. Dr. Foster testified that the first two injections went without incident. On July 31, he was in the waiting room when a nurse came to take him back to his wife in the recovery room. Dr. Foster stated that “it seemed like a disturbing thing had happened.” When he saw his wife, he “thought she had a stroke or something happened.” He was concerned and “shocked” and “couldn't believe what she looked like.”
Dr. and Mrs. Foster both stated that Dr. Judilla came back to the recovery room. At first, Dr. Judilla said the recovery would take about 15 minutes. Sometime later, Dr. Judilla returned and said the recovery would take an hour but the nurse stated it had been over an hour at that point. Dr. Foster asked Dr. Judilla if he ever had a patient with a similar reaction, and Dr. Judilla said it had happened about 15 years ago. Dr. Foster said that Dr. Judilla never told them Mrs. Foster's reaction could be one of the side effects of the injection.
Dr. Judilla stated that when he gave Mrs. Foster the July 31 injection, the needle likely went past the epidural space where the medicine is supposed to be injected, and some local anesthesia was injected into the subarachnoid space where the spinal cord and nerves are located. Dr. Judilla stated that he “[didn't] feel good about it” and “was not happy” that it happened, but it is a known complication of the procedure and he always tells the patient about the possibility of the complication. He estimated the complication had happened every 3 or 4 years during his medical career. Dr. Judilla stated he had never witnessed any permanent injury from the complication. He said the patients usually have low blood pressure for about 15 to 30 minutes and then recovered pretty well.
The medical records from the July 31 procedure showed Mrs. Foster received the injection sometime before 9 a.m. and at 9, the nurse noted Mrs. Foster was “dizzy” and her blood pressure was very low. At 9:05, Dr. Judilla administered ephedrine to increase Mrs. Foster's blood pressure and she was also given oxygen. Over the next 45 minutes, Mrs. Foster's numbers in her extremities improved, she was able to move her arms and legs, and at 10:15 the nurse noted Mrs. Foster was feeling “much better.” At 10:30, she was sitting on the side of the bed and dangling her legs. Dr. Judilla's entry on her chart suggested that Mrs. Foster “recovered in twenty five minutes and went home uneventfully.” The doctor later acknowledged it should have been noted as 1 hour and 25 minutes.
Mrs. Foster was able to leave and exited the clinic in a wheelchair. She was weak and shaky. The nurse asked Mrs. Foster if she could hospitalize her, but Mrs. Foster refused. When Mrs. Foster returned to her home, she was “listless and tired and scared .”
On August 1, 2007, the day after the third injection, a nurse from Dr. Judilla's office called Mrs. Foster at home to check on her. The nurse called again on the morning of August 2. Mrs. Foster told the nurse she felt “listless and tired and weak.”
Mrs. Foster testified that in the evening of August 2, she noticed “enormous bruises” on her legs that became “really big, really black.” She said the bruises concerned her but she did not want to see Dr. Judilla again and did not want to go anywhere.
The next morning, August 3, Mrs. Foster called the clinic to speak with Nurse Bonita who had treated her, but the clinic informed Mrs. Foster that the nurse was not available. When Mrs. Foster stated she wanted to tell the nurse about her bruises, the clinic told Mrs. Foster she “had to come in and see the doctor.” Mrs. Foster said she did not want to see Dr. Judilla and asked for the nurse to call her back. But nobody ever called her back. Mrs. Foster later stated in an affidavit that she thought someone would have called her if the bruises were something she should be concerned about.
Dr. Judilla acknowledged that he did not do any followup with Mrs. Foster after the July 31 injection but, he did know that Mrs. Foster had indicated she did not wish to see or consult with him any further. The record is not clear as to when Dr. Judilla learned of Mrs. Foster's August 3 call to the clinic. During discovery, Dr. Judilla acknowledged that he did not know whether bruising in the legs is associated with deep vein thrombosis, but if such was diagnosed, he said the family doctor would be the one to take care of it.
Mrs. Foster stated that she remained inactive in the days following the July 31 injection. Dr. Foster said that Mrs. Foster was weak and tired during the time following the July 31 injection with some pain in her leg but he believed that her condition was improving.
However, on August 9, 2007, he noticed his wife's leg was really swollen. On the following day, August 10, 2007, her leg was even more swollen. Dr. Foster determined she needed to go to Research Medical Center Hospital although he stated he “never expected” that blood clots were causing the leg symptoms. At the hospital, multiple blood clots were discovered in Mrs. Foster's leg. She was immediately admitted to the hospital, tests were run, and she was diagnosed with deep vein thrombosis.
In an affidavit submitted in response to a summary judgment motion, Mrs. Foster stated that even after the deep vein thrombosis diagnosis, she did not know that the incident with Dr. Judilla could have caused it. Dr. Foster also submitted an affidavit which stated that as of August 10, 2007, he was unaware that his wife's condition and diagnosis could be related to Dr. Judilla's injection. Mrs. Foster stated that she has received medication, treatment, and continues to suffer physically and emotionally from the experience with the injections.
Dr. Howard Aks, an expert medical witness engaged by Mrs. Foster, testified in discovery that he believes the injection technique that Dr. Judilla used on Mrs. Foster fell below the standard of care. Dr. Aks opined that the injection of the anesthesia into Mrs. Foster's subarachnoid space on July 31, 2007, blocked her sympathetic nerves and caused her to experience low blood pressure and a pooling of blood in her extremities. Dr. Aks believed the low blood pressure and pooling of the blood caused a clotting cascade to develop.
On August 7, 2009, Mrs. Foster filed a medical malpractice action against Dr. Judilla and The Headache & Pain Center, P.A., claiming Dr. Judilla negligently performed the third injection on July 31, 2007, and that his negligence caused her deep vein thrombosis, requiring hospitalization and the placement of a vena cava filter. Mrs. Foster further alleged Dr. Judilla's negligence had caused her pain, suffering, and mental anxiety. Mrs. Foster later dismissed The Headache & Pain Center, P.A., as a defendant.
After timely answering and following discovery, Dr. Judilla filed a motion for summary judgment based on Mrs. Foster's failure to file her alleged cause of action within the 2–year statute of limitations under K.S.A. 60–513(a)(7). Subject to K.S.A. 60–513(c) a medical malpractice action is
“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 sometime after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party....”
Dr. Judilla argued in his motion that Mrs. Foster's injury was reasonably ascertainable immediately after her third injection on July 31, 2007, and her cause of action accrued on that date. Because the statute of limitations on Mrs. Foster's claim ran on July 31, 2009, her August 7, 2009, petition filing was untimely.
In response, Mrs. Foster argued that although she experienced negative symptoms following the third injection on July 31, 2007, she initially recovered significantly from the event and had no reason to believe that Dr. Judilla was negligent or that she should be concerned about a substantial or permanent injury. Thus, the fact of her injury was not reasonably ascertainable until her leg started to swell and she received a diagnosis of deep vein thrombosis on August 10, 2007. Since her cause of action did not accrue until that date, she argued her August 7, 2009, petition was timely filed within the 2–year statute of limitations.
Dr. Judilla replied that at the very latest, the fact of Mrs. Foster's injury was reasonably ascertainable to her on August 2, 2007, when huge bruises appeared on her leg making the August 7, 2009, filing untimely.
After hearing oral arguments, the district court granted Dr. Judilla's summary judgment motion finding that objective view of the uncontroverted facts resulted in the conclusion that the fact of Mrs. Foster's injury was reasonably ascertainable to her on July 31, 2007. The district court's ruling noted that after the third injection on July 31, 2007, Mrs. Foster was temporarily partially paralyzed and thought she was dying, her husband thought she had a stroke, and she left the clinic weak, shaky, listless, scared, and in a wheelchair. This experience was dramatically different than the two prior injections where she walked out of the clinic after a short recovery period with her pain significantly improved.
The district court's decision further stated that bruising on Mrs. Foster's leg on August 2, 2007, caused her to call The Headache & Pain Center and found that “apparently, this bruising was sufficient to cause plaintiff to ‘investigate.’ “
The district court discounted arguments Mrs. Foster made that the failure to return her August 3, 2007, telephone call to the clinic had any significance, that Dr. Judilla had no responsibility for Nurse Bonita's failure to return the call and that the failure was in no manner a concealment of the injury. The district court gave no credence to Dr. Foster's statement that they believed Mrs. Foster to be improving, nor did the court deem it significant that neither Dr. Judilla or Mrs. Foster was aware until August 10, 2007, that Dr. Judilla's July 31, 2007, injection was the cause of her deep vein thrombosis which was diagnosed on August 10, 2007. The district court's decision also gave no significance to Dr. Judilla's note that Mrs. Foster left the clinic on July 31, 2007, and “went home uneventfully” nor was any credence given to the fact that Dr. Judilla explained to the Fosters that possible side effects Mrs. Foster experienced were those that might be expected from the medical procedure she received.
From the district court's ruling granting summary judgment, Mrs. Foster has appealed.
Analysis of appellate issues, arguments, and authorities
Mrs. Foster raises the following two arguments on appeal: (1) The district court's assessment of the date upon which Mrs. Foster's fact of injury became “reasonably ascertainable” misapplies the express statutory accrual exception of K.S.A. 60–513(c) and warrants reversal, and (2) the district court impermissibly resolved genuine issues of material fact when determining Mrs. Foster's injury was “reasonably ascertainable” on the date of the injection mishap, which mandates reversal of the judgment entered below.
We consider both of Mrs. Foster's arguments together as essentially the ultimate issue we must resolve, utilizing the standards of review favorable to Mrs. Foster, is whether there are genuine issues of material facts which a jury must resolve to determine when the “fact of injury becomes reasonably ascertainable to the injured party.” Did the district court correctly decide that Mrs. Foster's cause of action against Dr. Judilla was barred by the statute of limitations?
The arguments on appeal are as argued below and need not be repeated here.
Standard of Review
The standard of review on summary judgment is well known but important in this case as it is determinative of the result we reach. The standard was recently set forth in Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013), as follows: When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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, summary judgment is appropriate. The district 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. 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, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence.
In addition, because one of the factual issues involves the knowledge of Mrs. Foster as to her status or condition, “ ‘[a] court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties.’ [Citation omitted.]” Brennan v. Kunzle, 37 Kan.App.2d 365, 378, 154 P.3d 1094,rev. denied 284 Kan. 945 (2007).
Summary judgment in a negligence action is generally proper if the only questions presented are questions of law. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 220–21, 262 P.3d 336 (2011). To the extent we are required to interpret the statutory provisions, this is a question of law over which an appellate court has unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.2d 1045 (2013).
Applicable Statutory Provisions
The primary issue in this appeal involves the application of the statute of limitations period established by K.S.A. 60–513 which in applicable part, states:
“(a) The following actions shall be brought within two years:
....
(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.
“(b) Except as provided in subsections (c) and (d), the causes of action listed in subsection (a) shall not be deemed to have accrued until the fact giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until sometime 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 an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.
“(c) 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 sometime 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.”
There are numerous cases which involve the issue of when a cause of action accrues under K.S.A. 60–513, and the rule has been firmly established that “[w]here there is conflicting evidence as to when a cause of action is deemed to have accrued under 60–513, [1970 Supp .], the matter becomes an issue for determination by the trier of fact.” Hecht v. First National Bank & Trust Co., 208 Kan. 84, Syl. ¶ 2, 490 P.2d 649 (1971); see Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, Syl. ¶ 3, 827 P.2d 51 (1992); Cleveland v. Wong, 237 Kan. 410, Syl. ¶ 2, 701 P.2d 1301 (1985); Kelley v. Barnett, 23 Kan.App.2d 564, Syl ¶ 2, 932 P .2d 471,rev. denied 262 Kan. 961 (1997).
In our discussion of Kansas appellate cases where K.S.A. 60–513 is in issue, it is important to realize that some (like our case) involve individual actions, but some may be survivorship actions (K.S.A.60–1801) and some involve wrongful death claims (K.S.A.60–1901). As is always true, the manner in which the limitations period is determined while involving the K.S.A. 60–513 statutory language, is strongly influenced by the different facts of each case.
Historically, in Kansas, the statute of limitations period began to run at the time the tort was committed. That rule changed because of the wording of K.S.A. 60–513(c) which was adopted in 1963 with a statute of repose period of 10 years. That time was limited to 4 years by the 1976 Kansas Legislature. L.1976, ch. 254, sec. 1.
In discussing this change in Kansas law, Justice Kaul in Hecht, 208 Kan. at 90, opined:
“The new provision works an abrupt change in the previous law with respect to malpractice actions, which was established by consistent holdings of this court in Graham v. Updegraph, 144 Kan. 45, 58 P.2d 475;Becker v. Floersch, 153 Kan. 374, 110 P.2d 752;Waddell v. Woods, 160 Kan. 481, 163 P.2d 348; and Hill v. Hays, 193 Kan. 453, 395 P.2d 298. The rule was firmly established that the statute of limitations begins at the time the tort is committed. Even though the court seemed to recognize the harshness of the old rule in Hill v. Hays, supra, it was not altered—the court adhering to the philosophy that limitations are created by statute and are legislative, not judicial acts.
“The court's reluctance to decree judicial legislation noted in Hill soon became of no moment as a result of the legislature's action in adding the provision interpreting the term ‘accrued’ when the applicable statute of limitations was reenacted in the form of 60–513, supra.
“Under the new provision the period of limitation does not commence until the act giving rise to the cause of action first causes substantial injury, or in the alternative, if the fact of injury is not reasonably ascertainable until sometime after the initial act, then not until the fact of injury becomes reasonably ascertainable to the injured party.”
The facts and holding in Hecht were well summarized by Judge Knudson in Hall v. Miller, 29 Kan.App.2d 1066, 1070–71, 36 P.3d 328 (2001), as follows:
“The plaintiff in Hecht had been diagnosed in 1964 with Hodgkin's disease and had completed a course of 20 radiation treatments with no significant adverse effects. In November 1965, she noticed lumps on her groin area, and in January 1966, she was diagnosed as suffering from a reoccurrence of the disease.
“Twenty more treatments were planned. After the first treatment, given in January 1966, plaintiff complained of a strange ‘crawling like’ sensation. 208 Kan. at 87. She received a second treatment. After the second treatment, the defendants determined she had suffered an abnormal skin reaction to the first treatment. She was given four more reduced treatments and then the treatments were totally discontinued because of the adverse skin reaction. Two weeks later, she was again examined by the defendants, who both told her the reaction was subsiding.
“Approximately 2 weeks after her exam by the defendants, she had a consultation with a separate physician. The consulting physician confirmed the opinion given by the defendants. It was not until December 1966 that the plaintiff was advised by another physician that she had an ulcer in her groin area, the ulcer had been caused by the radiation, and the ulcer would never heal without surgical intervention. Plaintiff filed her petition in 1968.
“The trial court, in granting summary judgment to the defendants, held: “ “In this case the fact of injury not only became ascertainable to the plaintiff before March 13, 1966, but she also had full knowledge of the fact of the burn injury and its progression to ulceration before that time.” “ 208 Kan. at 85. In reversing the lower court, the Kansas Supreme Court observed:
‘We believe a fair analysis of the testimony of the three physicians deposed clearly indicates that as of March 13, 1996, none of them had made a diagnosis or prognosis of plaintiff's condition in terms of substantial injury since it was too early to do so with reference to the time of the treatments and the healing condition of plaintiff at the time. We do not believe that plaintiff's knowledge of her condition from her own observation, and that acquired from her physicians, is sufficient to justify a determination, as a matter of law, that she knew or could have reasonably ascertained on March 13, 1966, that she had suffered substantial injury caused by the alleged negligent treatment of defendants.’ (Emphasis added.) 208 Kan. at 92.”
The holding in Hecht is instructive. Just as in Hecht, there is a real question in our case whether Mrs. Foster knew from her own observations before August 10, 2007, that she had suffered a substantial injury caused by the later alleged negligent treatment of Dr. Judilla.
In a 1985 case, the issue of when the fact of injury became reasonably ascertainable was submitted to a jury. In Cleveland v. Wong, 237 Kan. 410, 701 P.2d 1031 (1985), there was an initial surgery performed on May 19, 1978, an opinion by an expert on September 22, 1979, that incontinence was the direct result of the 1978 surgery, but the suit was not filed until August 14, 1980.
The defendant contended the plaintiff was both incontinent and impotent immediately following the 1978 surgery and the fact of injury was reasonably ascertainable to him. However, the Cleveland opinion pointed out that the defendant overlooked the fact that the defendant and plaintiff's personal physician both advised the plaintiff that temporary incontinence and impotence were normal immediately following the surgery. The Cleveland opinion then stated:
“Thus, while plaintiff knew that he was both incontinent and impotent immediately after the surgery, he had no reason to suspect that those conditions were permanent or that those conditions were the result of any negligence or malpractice on the part of the defendant. The evidence and the positions of the parties presented an issue of fact and the trial court properly submitted this issue to the jury by its instruction....
....
“A special question was submitted to the jury as follows: ‘Did Eugene Cleveland file this lawsuit within the time period permitted by law?’ The jury answered, ‘Yes.’ This was a fact issue; there was substantial competent evidence to support the answer to the special question returned by the jury. The symptoms of the injury were known to the plaintiff, but the fact of injury was not reasonably or immediately ascertainable. We conclude that the action was timely filed.” 237 Kan. at 414–15.
Just as in Cleveland, and resolving all facts and inferences in Mrs. Foster's favor, there are genuine issues of material facts in this matter which a jury, not a district court judge, should resolve. Properly instructed, and with all the facts presented by Mrs. Foster's appeal herein, the date the limitations period began to run is a jury question.
Our Supreme Court again considered the reasonably ascertainable language of K.S.A. 60–513(c) in Jones v. Neuroscience Assocs., Inc ., 250 Kan. 477, 827 P.2d 51 (1992). In this case, summary judgment for the physician defendants was reversed on appeal because there was conflicting evidence as to when the cause of action for medical malpractice was deemed to have occurred; thus, the question became an issue to be decided by the trier of fact. 250 Kan. at 489.
The facts in Jones showed that Ruby Jones was injured in an automobile accident in November 1985 and was referred to Dr. Robert Beatty for injuries to her neck and back. Dr. Beatty performed a cervical laminectomy on Jones on January 17, 1986. The day after surgery Jones could not move her left hand, and all the fingers were curled in a fist. Dr. Beatty told Jones that there had been a problem, but her condition would resolve in 2 months. This time was extended to 6 months, then 9 months, 18 months, and finally 2 to 4 years although Jones' condition did improve some during 1987.
Jones talked to the anesthesiologist, Dr. Steven Cohn, who after the surgery, informed her she was with the right people and the problem would clear up. Dr. Cohn did not inform Jones the injuries were permanent.
In April or May 1990, Jones consulted doctors at the University of Kansas Medical Center who told her the injury was caused by the manner in which she was positioned during the surgery which created pressure against the radial nerve. Jones was advised that immediately after the surgery, Dr. Beatty should have had an EMG performed on the left arm, but because of the delay, no further improvement was now possible. Jones claimed this was the first time she was aware the condition of her left hand was permanent.
Jones filed her action against the doctors on January 16, 1990, 1 day shy of 4 years after the surgery. After summary judgment was granted to the doctors by the district court, Jones appealed, contending that because there was disputed evidence as to when the substantial injury was first reasonably ascertainable, it was an issue for the jury to determine.
The Jones opinion summarized the facts and rulings of Hecht and Cleveland and then stated:
“Here, however, Jones' reliance on Hecht v. First National Bank & Trust Co., 208 Kan. 84, and Cleveland v. Wong, 237 Kan. 410, is persuasive. 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.” (Emphasis added.) 250 Kan. at 488–89.
The emphasized language is directly applicable to Mrs. Foster's uncertainty as to exactly what she was facing following the July 31, 2007, injection.
The Jones opinion did note that in both Cleveland and Hecht, our Supreme Court had refused to adopt the “physician-patient relationship” or “continuous treatment” doctrines as an element in measuring the time in which a cause of action accrues. 250 Kan. at 489. Further, P.W.P. v. L.S., 266 Kan. 417, Syl. ¶ 7, 969 P.2d 896 (1998), states: “Kansas has held that continuous treatment after the realization of injury does not toll the statute of limitations.”
Dr. Padilla strongly relies on language in P.W.P. v. L.S. stating that objective knowledge of an injury, not the extent of the injury, triggers the running of the statute of limitations. It must be noted that this statement in 266 Kan. 417, Syl. ¶ 3, is stated to apply to “nonmedical damage cases” making it questionable under our facts. Further, P.W.P. v. L.S. and Davidson v. Denning, 259 Kan. 659, 914 P.2d 936 (1996), were both cases which were distinguished in Hall v. Miller by the following discussion:
“In P.W.P., the plaintiff obtained counseling services from L.S. The plaintiff claimed L.S. had engaged in an improper social and sexual relationship with her, beginning in 1985.
....
“The trial court found that it was uncontroverted that plaintiff was well aware of her injuries as early as 1986 and at the latest by 1990, so her 1995 suit was barred by the 2–year statute of limitations. 266 Kan. at 422.
“In upholding the trial court's decision, the Kansas Supreme court found that under an objective standard the only possible conclusion, based on the record provided, was that the plaintiff was well aware of her injury prior to 1993. 266 Kan. at 425.
....
“In Davidson, 259 Kan. 659, there was a bright line event, a death, that placed the plaintiff on notice that something out of the ordinary had occurred. The Davidson court found the statute of limitations began to run at that moment. 259 Kan. 659, Syl. ¶ 2.
.... The facts in P.W.P. are analogous to the facts in Davidson because both cases contain bright line events. Unfortunately, the present case does not involve a bright line event, therefore, P. W.P. and Davidson are factually distinguishable and, in our estimation, legally distinguishable.” (Emphasis added.) 29 Kan.App.2d at 1072–73.
We have quoted at length from Hall v. Miller and relied on its reasoning and result. But, we have not summarized its facts which were not those of a “conventional professional negligence case.” 29 Kan.App.2d at 1066. Hall was referred by Dr. Tucker to Miller who counseled her from May 1984 to July 1994. During the years of treatment, Hall contended that Miller and Dr. Tucker implanted false memories of satanic ritual abuse causing her present mental illness.
According to Hall in May 1995, she told Dr. Tucker she did not believe Miller was correct that she suffered from satanic abuse. Dr. Tucker reinforced Miller's actions and attempted to convince Hall to accept the fact that satanic ritual abuse exists. Sometime in 1995 Hall received information referring to “false memories” and the fallacies of “satanic ritual abuse” therapy. A psychiatrist, in response to Miller and Dr. Tucker's summary judgment motion after Hall sued them in July 1996, opined that Hall did not possess sufficient facts which would have ted her to believe that Miller was responsible for her deterioration in function prior to July 1995 when she attended a meeting of the False Memory Syndrome Foundation (FMSF) and a subsequent appointment with him.
The trial court granted summary judgment to Miller and Dr. Tucker finding that under an objective standard the statute of limitations commenced to run against Miller and Dr. Tucker by January 1994.
The Court of Appeals reversed and after setting forth a more complete factual statements and the Hecht, P.W.P. v. L.S., and Davidson quotes we have previously set forth, concluded:
“Admittedly, Hall knew before terminating her counseling relationship with Miller that he had misdiagnosed her mental problems. However, prior to meeting with the individuals from the FMSF, Hall had no reason to believe Miller had caused her injury.
“Under the circumstances of this case, we conclude that when the fact of injury became reasonably ascertainable cannot be determined as a matter of law but rather should be submitted to the trier of fact for determination.” 29 Kan.App.2d at 1074.
This reasoning in Hall v. Miller relating to causation is directly applicable to our case. Both Dr. Judilla and Mrs. Foster stated that neither knew or suspected that Dr. Judilla's actions were the cause of Mrs. Foster's problems until at least August 10, 2007. Thus, the fact when the injury in our case was reasonably ascertainable to the injured party cannot be decided as a matter of law but must be submitted to the trier of fact for determination.
The cases we have discussed in great detail, Hecht, Cleveland, Jones, P.W.P. v. L.S., and Hall involved individual actions by a claimed injured party (such as the one being pursued by Mrs. Foster) against an allegedly negligent health care provider who has raised a statute of limitations defense. These cases appear to be most applicable to our issues on appeal.
However, there are numerous other Kansas appellate cases which involve K.S.A. 60–513(b) and (c), but in the context of a wrongful death action under K.S.A. 60–1901 and in most cases the companion survivorship action which is being pursued as allowed by K.S.A. 60–1801. For example, see Davidson v. Denning, 259 Kan. 659, 914 P.2d 936 (1996); Mason v. Gerin Corp., 231 Kan. 718, 647 P.2d 1340 (1982); Dreiling v. Davis, 38 Kan.App.2d 997, 176 P.3d 197 (2008); Kelley v. Barnett, 23 Kan.App.2d 564, 932 P.2d 471,rev. denied 262 Kan. 961 (1997). The above list is not exhaustive, as other appellate cases have raised similar issues. All of these cases contain some instructive language as to the construction of K.S.A. 60–513(b) and (c) to determine when the limitations period begins to run in wrongful death and survivorship actions. They may not, however, be as helpful as the cases we have primarily relied on.
But, the recent Supreme Court cases of Martin v. Naik, 297 Kan. 241, 300 P.3d 625 (May 3, 2013), has been pointed out to us by Dr. Judilla's counsel's Rule 6.09 letter as authority for us to apply only an objective standard as to when the cause of action accrues and in our case, Dr. Judilla argues “the fact of injury also coincides with the date of the act that gave rise to the cause of action and, under an objective standard, Plaintiff-appellant was able to reasonably ascertain her injury on July 31, 2007.” To do so would effectively read out of the last sentence of K.S.A. 60–513(c) the words “ to the injured party ” which our reading of the two justices' majority, the two justices' concurrence, and the three justices' dissent in Martin v. Naik indicate there are at least five and probably all seven votes on our Supreme Court which would not allow such a construction of K.S.A. 60–513(c).
Martin v. Naik involves the questions of when the statute of limitations began to run in a wrongful death and survival action brought against a physician and hospital. Both issues are important, although the holding overruling Crockett v. Medicalodges, Inc., 247 Kan. 433, 799 P.2d 1022 (1990), and its suggestion that under the right circumstances, the limitation period on a wrongful death claim may begin to run before the death of an injured party who has been negligently treated is not directly applicable to our case. AH seven of our Supreme Court justices agreed to the rule of Syllabus 3 of the Martin v. Naik opinion which states in applicable part: “A cause of action for wrongful death accrues on the date of death unless information regarding the fact of death or the wrongful act that caused the death was concealed, altered, falsified, inaccurate or misrepresented....” 297 Kan. 241, Syl. ¶ 3.
However, there was significant disagreement among our Supreme Court justices as to the limitations period of the survivorship claim and how the language of K.S.A. 60–513(c) and K.S.A. 60–515 should be applied. These differences have a considerable impact on the issues in our appeal. As always, we begin with the unique facts of Martin and the Court of Appeals decision which the Supreme Court opinion summarized in this manner:
“Macie Martin, both individually and as the representative of the estate of her husband, Curley Martin (Curley), filed a lawsuit against defendants Sandip Naik, M.D., and Specialty Hospital of Mid–America (Hospital), in which she raised wrongful death and survival claims based on alleged medical malpractice. Both defendants filed motions for summary judgment in which they argued the statute of limitations barred both causes of action. The relevant facts were uncontroverted for purposes of the motions. In the order granting the defendants summary judgment, the district court made the following findings and conclusions.
“On March 31, 2004, Curley, who was diabetic, was admitted to the Hospital under Naik's care. At that time, Curley ‘was unable to participate in his care’ because of his medical condition.
“On April 7, 2004, a nurse who was an employee of the Hospital administered insulin to Curley. Martin, who was at Curley's bedside, observed the nurse having difficulty and then heard another nurse say that the nurse who administered the insulin ‘did not know how to perform that care for him or was struggling to competently perform that care.’ Curley's condition became more serious, and Martin alleges the Hospital's employees failed to competently assess Curley's condition after the faulty insulin administration and failed to notify Naik of the deterioration in Curley's condition.
“Nevertheless, ‘[t]hese perceived deficiencies did not ... result in actionable harm until the morning of April 8, 2004, when [Curley's] condition [ ] had greatly deteriorated.’ Curley ‘suffered irreversible brain damages and other injuries.’ On April 8, Martin and her daughters had Curley ‘emergently transferred’ to Shawnee Mission Medical Center (SMMC). It is alleged the Hospital and Naik negligently delayed the transfer.
“While Curley was at SMMC, a physician told Martin and her family that the Hospital's staff allowed Curley to go into a diabetic coma and essentially killed him. Although Curley's ‘catastrophic conditions were stabilized at SMMC and he was subsequently moved to at least one other care facility before his death, he remained from April 8, 2004, until his death [on] October 25, 2004, incapacitated.’
“On the second anniversary of Curley's death, Martin filed suit. After limited discovery, the Hospital and Naik filed motions for summary judgment, arguing that Martin's claims were barred by the 2–year limitation period provided by K.S.A. 60–513(a)(5) and (a)(7).
“In granting the Hospital's and Naik's motions, the district court concluded Martin's ‘causes of action here for medical negligence in the survival action and the wrongful death claim accrued April 8, 2004,’ the last date on which the defendants' negligence could have occurred and the date on which Curley's injuries were first reasonably ascertainable. Further, the court found a 2–year statute of limitations applied under K.S.A. 60–513(a)(5) and (a)(7). As a result, the court concluded that, unless the statute of limitations was tolled, both the survival and wrongful death claims expired on April 8, 2006, more than 6 months before Martin filed suit. The district court noted there was a potential for tolling because Curley was disabled. Nevertheless, the court concluded that K.S.A. 60–515, the tolling provision relating to disabled parties, would only have extended the limitation period 1 year past Curley's death—to October 25, 2005. Because the tolling provision effectively shortened the limitation period, the district court concluded the tolling provision should not be applied. Consequently, the district court agreed with the Hospital's and Naik's assertions and found that the wrongful death and survival causes of action were barred when this case was filed on October 25, 2006.
“ Court of Appeals' Decision
“The Court of Appeals reversed the district court's order in Martin v. Naik, 43 Kan.App.2d 591, 228 P.3d 1092 (2010). The court held that neither Martin's wrongful death action nor the survival action was barred by the 2–year limitation period provided by K.S.A. 60–513(a)(5) and (aX7).
“With regard to the wrongful death claim, the Court of Appeals concluded that the basis for Martin's lawsuit did not accrue, and thus the statute of limitations did not begin to run, until Curley's death. Martin's wrongful death action, therefore, was timely because it was filed within 2 years of the death. Martin, 43 Kan.App.2d at 602.
“As to the survival action, the Court of Appeals determined Curley's medical condition rendered him unable to reasonably ascertain the fact of his injury. Consequently, the court considered the disability tolling provision in K.S.A. 60–515. The court concluded:
‘[B]ecause Curley could not reasonably ascertain the fact of his injury, his medical malpractice claim (the survival action) did not accrue so as to start the statute of limitations clock running until his death, so the 2–year limitation period of K.S.A. 60–513 did not commence to run at any time during the period of Curley's incapacity. The relevant portion of K.S.A. 60–515, its tolling provision, stops the clock that is running on an accrued but unfiled cause of action. Here, the clock was not running. It had not yet started. There was nothing for the statute to toll.’ Martin, 43 Kan.App.2d at 600.
“The court held that Naik and the Hospital were not entitled to summary judgment on either claim. Based on its ruling, the Court of Appeals reversed and remanded the case for further proceedings. Martin, 43 Kan.App.2d at 605.” 297 Kan. at 242–44.
After the petitions for review of the Hospital and Naik were granted, the limitations period on the wrongful death claim was resolved by holding its filing on the second anniversary of Curley's death, October 25, 2006, was timely. 297 Kan. at 256.
As to the survival action, the two justices' per curiam majority opinion (obviously Justices Beier and Moritz) broke down K.S.A. 60–513(c) into three parts in this manner:
“The first states a general rule: A medical malpractice action ‘shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action.’ The second part states an exception: The statute of limitations begins to run at the time of the act ‘unless the fact of injury is not reasonably ascertainable until sometime after the initial act.’ The third part provides the test for when the statute of limitations begins to run if the exception applies: ‘[T]hen the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.’ (Emphasis added.)” 297 Kan. at 257–58.
The majority noted the district court had construed K.S.A. 60–513(c) to apply an objective standard to determine both when the exception applies and when the fact of the injury becomes ascertainable to the injured party. This had the effect of placing a “reasonable person”—one who was not incapacitated—in place of Curley and not giving any effect to the provisions of K.S.A. 60–515.
The majority appeared to reason the Court of Appeals gave too much effect to K.S.A. 60–515 because it “concluded the cause of action did not accrue on that date, April 8, 2004, because ‘Curley had no capacity to apprehend that he had a claim and no ability to do anything about it.’ Martin, 43 Kan.App.2d at 598.” 297 Kan. at 258.
The majority then looked to the wording of K.S.A. 60–515, suggested the arguments of Martin and the Court of Appeals resulted in the adding of the words “to the injured party” into the second part of K.S.A. 60–513(c), turned to Seymour v. Lofgreen, 209 Kan. 72, 495 P.2d 969 (1972), (an early case involving K.S.A.1971 Supp. 60–515) and concluded:
“In this case, the date on which the fact of injury was reasonably ascertainable was April 8, 2004. This is also the last date on which alleged malpractice occurred and thus was the date on which at least some of the acts giving rise to the action occurred. Because the dates coincide, we conclude the exception was not triggered under the unique facts of this case—the fact of injury was reasonably ascertainable when the act that gave rise to the cause of action occurred. Consequently, we need not examine the third part of K.S.A. 60–513(c) to determine whether an objective standard applies or whether the words ‘the injured party’ in this portion of the statute are to be read out of the provision as was effectively done by the district court in this case and this court in Seymour.
“Further, we need not resolve whether the specific provisions of K.S.A. 60–515 mean the action had to be brought within 1 year of Curley's death or whether the action could be brought within 2 years of April 8, 2004, under K.S.A. 60–513(c). Either way, the survival action in this case was barred by the statute of limitations.” 297 Kan. at 262.
Based on this, the majority held Martin's survival claim was barred by K.S.A. 60–513(a) and (c).
Justice Johnson concurred (joined by Chief Justice Nuss) in the result but wrote separately because he disagreed with the apparent holding of the majority that the period of limitations was running against Curley while he was in a coma and that the provisions of K.S .A. 60–515 were not applicable. Secondly, Justice Johnson perceived some fallacies in the Court of Appeals opinion and the dissent in the case which the majority opinion did not address.
The concurrence disagreed with the majority's “conflating the concepts of cause of action and period of limitations when it parses K.S.A. 60–513(c) into three parts and suggest they all deal with when the ‘statute of limitations begins to run.’ “ 297 Kan. at 263. Justice Johnson continued, stating:
“In my view, it is more logical to divide the statute into two parts, one dealing with the accrual of the cause of action and the other establishing the running of the limitation period. The first part would read, in relevant part, that ‘[a] cause of action ... [for medical malpractice] ... 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 sometime after the initial act.’ (Emphasis added .) K.S.A. 60–513(c). After one has determined when the cause of action accrues—either when the act occurred or when the fact of injury was reasonably ascertainable—the next inquiry is laid out in the second part: ‘[T]hen the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.’ (Emphasis added.) K.S.A. 60–513(c). Pointedly, the statute does not say that the period of limitation commences when the cause of action is deemed to have accrued.” 297 Kan. at 263–64.
The concurring opinion reasoned this would avoid the objective versus subjective dilemma that seemed to trouble the other justices and give meaning to the redundant phrases about the fact of the injury being reasonably ascertainable. An objective criterion would be utilized to establish the accrual of the cause of action.
“But the commencement of the period of limitation (as opposed to the accrual of the cause of action) is based on the subjective knowledge of the injured party, i.e., the time during which the lawsuit must be filed does not begin to run on the accrued cause of action until the fact of injury is reasonably ascertainable to the injured party. Here, that would mean that the statute of limitations was toiled for Curley as long as he was in a coma and unable to know he had been injured. That is not to say that Curley's representative, next friend, or guardian ad litem could not file and successfully prosecute a medical malpractice suit while Curley is still alive, but comatose, because the cause of action had accrued on April 8, 2004.” 297 Kan. at 264–65.
Much of the rest of the concurrence deals with the application of K.S.A. 60–515 as it relates to the running of the statute of limitations for persons under disability. This is not applicable to our appeal, but the concurring justices agreed the limitations period had run against Curley's survival claims for the following reasons:
“Curley's cause of action accrued on April 8, 2004, because the fact of his injury was objectively ascertainable on that date; the period of limitation did not begin to run against Curley personally while he was alive but comatose because the fact of injury was not subjectively ascertainable by him; the period of limitation began to run against the person who succeeded to Curley's cause of action on the date of Curley's death and expired 1 year after death. Therefore, the successor's filing of the survival action approximately 1 1/2 years after Curley's death was barred by the plain language of K.S.A. 60–515(b).” 297 Kan. at 266.
Justice Luckert dissented in part and concurred in part (joined by Justices Rosen and Biles). The concurrence states the agreement with the majority's holding that Martin's cause of action for wrongful death was not barred by the statute of limitations.
The dissent was from the holding that the survival action brought by the personal representative of Curley's estate is barred. Justice Luckert opined:
“In my view, K.S.A. 60–513(c) must be read as a whole and the words ‘the injured party’ must be given meaning. The majority's construction of the statute, following Seymour v. Lofgreen, 209 Kan. 72, 495 P.2d 969 (1972), makes these words meaningless....
....
“ Davidson and similar decisions harmonize the seemingly disparate concepts contained in the phrase ‘reasonably ascertainable to the injured party.’ The words ‘reasonably ascertainable’ suggest an objective standard, while the phrase ‘to an injured party’ suggests a subjective one.... While the majority determines that this reconciliation would require adding the words ‘to the injured party’ into the exception stated in the second part of K.S.A. 60–513(c), the majority's analysis is equally objectionable because it essentially deletes those same words from the third part of the statute. The construction of the statute adopted by this court in Davidson does neither and reconciles the provisions by allowing consideration of the injured party's circumstances.
“In examining Curley's circumstances, one of the obvious considerations was his incapacity. Considering all of the circumstances, the fact of injury was not reasonably ascertainable by someone in Curley's situation. Consequently, I would conclude that the statute of limitations for Curley's cause of action for medical malpractice did not ‘commence’ on April 8, 2004, and was not running before Curley's death. I reach this conclusion by applying each of the three parts of K.S.A. 60–513(c) as written.
“The first part of the statute instructs us that a medical malpractice action ‘shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action.’ While this phrase does not explain what is meant by ‘the act giving rise to the cause of action,’ the second phrase directs us to look at the initial act by stating ‘unless the fact of injury is not reasonably ascertainable until sometime after the initial act.’ (Emphasis added.) By delaying the accrual of the cause of action, K.S.A. 60–513(c) deviates from the general rule that ‘a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises.’ [Citations omitted.]
“By operation of the first two parts of K.S.A. 60–513(c), Curley's cause of action did not accrue at the time of the occurrence of the initial act of negligence because, under the uncontroverted facts, the fact of injury was not reasonably ascertainable until sometime later—the next day. Then, because the exception stated in the second part of the statute is triggered, we must consider the third part of the statute. This part of the statute directs that ‘the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party! (Emphasis added.) It is uncontroverted that the fact of injury was not reasonably ascertainable to Curley before his death. Hence, I would hold that the limitation period was not commenced before that date.
“This reading of K.S.A. 60–513(c) reconciles the language of each part of the provision and does not frustrate the purpose of the statute of limitations, which is to ‘preclude[e] presentation of stale claims and encourage[e] diligence on the part’ of the injured party. [Citation omitted.]” 297 Kan. at 269–71.
The dissenters have clearly given consideration “to the injured party” language in K.S.A. 60–513(c) with the result they would have held the limitations period did not commence before Curley's death. They further disagreed with the concurring justices' reliance on K.S.A. 60–515 as to its application and stated: “Even if K.S.A. 60–515 applies, it should not be used to shorten the statute of limitations to 1 year after Curley's death.” 297 Kan. at 272. The dissenters would have affirmed the Court of Appeals' conclusion that the survival action was not barred by the statute of limitations and allow it to be determined as filed.
With the above extensive explanation of the reasoning of the three Martin v. Naik opinions as to their application of K.S.A. 60–513(c) to its unique facts, we must now determine their application to our appeal.
We first note that while Curley Martin became almost immediately incompetent, Mrs. Foster was and is at all material times in our case, competent. Thus, while the K.S.A. 60–515 references to individuals under disability may be necessary to understand the Martin v. Naik opinion, they are not material to our appeal.
Secondly, and most importantly, at least the two concurring justices and the three dissenting justices would require, under our facts, for consideration to be given to all of the language of K.S.A. 60–513(c) and where the fact of injury is not reasonably ascertainable until sometime after the initial act (as it certainly was not when we resolve all facts and inferences in favor of Mrs. Foster) “then the period of limitations shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.” (Emphasis added.) Properly instructed, this question becomes an issue for the jury to decide just as was done in Cleveland.
Our analysis of Martin v. Naik has not changed the teachings of Hecht, Cleveland, Jones, and Hall which we have previously set forth that where there is conflicting evidence (which under our standard of review we find to exist here) as to when a cause of action is deemed to have occurred or when the period of limitations has commenced to run under K.S.A. 60–513(c) the questions become issues for determination by the trier of fact and not the court.
We specifically find and hold there are material facts which remain in dispute and under our standards of review (summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence) and (courts should be cautious in granting a motion for summary judgment when resolving of the material issues necessitates a determination of the state of mind of one of the parties) we hold summary judgment was improperly granted to Dr. Judilla.
It becomes the obligation of Mrs. Foster to first convince the trier of fact based on the evidence to be produced and a properly instructed jury that her cause of action is not barred by the statute of limitations. If she is successful in doing so, she must further convince the jury by admissible evidence that medical malpractice was, in fact, committed and was the causal effect of the damages she claims results therefrom.
Reversed and remanded to the district court for further action consistent with this opinion.