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The Law of Medical Malpractice in Kansas:
A Survey of Basic Considerations
This article provides an overview of Kansas medical malpractice law. The Sunflower State has adopted far-reaching tort reforms, including authorizing claims to be evaluated by medical expert screening panels, whose members the parties select and whose opinion can be used as evidence in the courtroom. State lawmakers also have imposed strict limits on monetary damages.
Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice action in Kansas.
To jump directly to any topic in the Table of Contents, simply click on it.
I. Overview of Basic Principles and Concepts
To prevail on a medical malpractice claim under Kansas law, a plaintiff must prove that: (1) the healthcare provider was required to meet or exceed a certain standard of health care to protect the patient from injury; (2) the healthcare provider deviated from the applicable standard of care; (3) the patient was injured; and (4) the injury resulted from the breach of the standard of care. Puckett v. Mt. Carmel Regional Medical Center, 228 P.3d 1048 (Kan. 2010).
Additionally, as will be discussed in Section III below, Kansas has also an expert screening panel process which may be invoked by the parties.
II. Filing Deadlines for Medical Malpractice Claims
Basic Time Limit
Under Kansas law, a plaintiff generally must file a medical malpractice claim within two years. The two-year “statute of limitations” commences running at the time of the alleged malpractice. The time limit can be extended beyond two years if the injury is not reasonably ascertainable until sometime later. Kan. Stat. Ann. § 60-513(a)(7), (c).
But importantly, there is an outer limit of four years. Known as a “statute of repose,” the four-year limit is designed to insulate defendants from liability after the time period has expired. Id.
There are some exceptions to these time limits. If a defendant deliberately conceals the existence of the malpractice, thus preventing the plaintiff from discovering it, it may be possible to pause the running of the two-year statute of limitations and, depending on the circumstances, the four-year statute of repose. See Bonin v. Vannaman, 929 P.2d 754 (Kan. 1996); Bradley v. Val-Mejias, 379 F.3d 892 (10th Cir. 2004).
A Case Example
In Bradley, supra, a heart patient claimed that his physician was negligent in replacing his pacemaker. Because the surgery occurred in the early 1990s and the patient did not file his malpractice lawsuit until 2000, the four-year statute of repose barred his claim. That is, he simply waited too long to file his lawsuit. The patient also accused his doctor of fraudulently concealing the problem with his pacemaker, hoping that this would lengthen the time limits. But under the facts here, the 10th U.S. Court of Appeals refused to extend the deadline for filing suit. The bottom line is that all of the patient’s claims against the physician were tossed out on the ground that he did not file them soon enough.
Unlike some states, Kansas does not recognize a “continuous treatment” exception to the applicable time limits. That is, the clock does not stop ticking simply because the patient is still receiving treatment from the allegedly negligent healthcare provider. P.W.P. v. L.S., 969 P.2d 896 (Kan. 1998).
A different statutory provision governs cases where a loved one dies as a result of medical malpractice, but the statute of limitations is still two years, with certain exceptions. Kan. Stat. Ann. § 60-513(a)(5); Martin v. Naik, 300 P.3d 625 (Kan. 2013); Bonura v. Sifers, 181 P.3d 1277 (Kan. App. 2008).
Injured Patients Who Are Minors
Special time limits apply to suits involving children. A child who is injured by negligent medical treatment may bring a malpractice lawsuit any time within one year after reaching the age of majority (18), but not later than “eight years after the time of the act giving rise to the cause of action.”
In Bonin, supra, a woman who recently reached her 18th birthday filed suit against a physician for failing to diagnose her scoliosis when she was a toddler and the problem would have been more easily treatable. The physician insisted that her lawsuit was time-barred because she brought it more than eight years after his alleged negligence occurred. The trial judge agreed and dismissed the malpractice claim, in the process rejecting the woman’s constitutional challenge to the statute. On appeal the decision was affirmed.
III. Screening Panels and Other Requirements
By statute, Kansas has created a special procedure for evaluating the merits of medical malpractice claims. The procedure involves empaneling a group of medical experts to confer and offer an impartial determination about whether the healthcare provider committed malpractice. The broader purpose of the screening panels is to provide for “the early resolution of many medical malpractice claims without the expense and delay of actual litigation,” in the words of the Kansas Supreme Court. Smith v. Graham, 147 P.3d 859 (Kan. 2006).
The procedure can be invoked either before or after a lawsuit is filed. Either party to a dispute can ask the court to convene a screening panel, and the court also can do this on its own motion under certain circumstances. To create the screening panel, the court appoints an attorney as nonvoting chairperson. The panel’s three voting members consist of (1) a healthcare provider selected by the claimant, (2) a healthcare provider selected by the opposing party, and (3) an additional healthcare provider that the parties appoint jointly.
The panel then meets and determines whether, in its opinion, the opposing party breached the applicable standard of health care and caused the claimant damages. Of crucial importance, the panel’s written report may be admitted into evidence in any subsequent legal proceedings on the malpractice claim. Kan. Stat. Ann. §§ 65-4901 to -4908; Macias v. Correct Care Solutions, Inc., 367 P.3d 311 (Kan. App. 2016).
If the claimant is dissatisfied with the panel’s opinion, the only option is to proceed with the lawsuit. There is generally no right to appeal from the appointing of a panel chairperson or any other court involvement in the screening panel process. Kan. Stat. Ann. § 65-4905; Macias, supra.
The Kansas Supreme Court has adopted a detailed rule addressing the operation of screening panels.Kan. S. Ct. R. 142.
To see how Kansas’ screening panels work in practice, consider the case of Cutler v. Sosinski, 122 P.3d 405 (Kan. App. 2005). There, a patient who believed she was the victim of malpractice asked the court to convene a screening panel. She was no doubt hoping the panel would issue an opinion in her favor, thus improving her chances of prevailing in a lawsuit or obtaining a favorable settlement. In response to her screening panel request, the court appointed an attorney to serve as the nonvoting chairperson. Three medical doctors were selected as the panel’s voting members: one chosen by the patient, one chosen by the accused physician, and one designated by the court because the parties were unable to reach agreement on who the third voting member should be.
The panel then met to review the medical records and documents submitted by both parties, and issued a unanimous report finding no malpractice. Displeased with the panel’s conclusion, the patient asked for a new screening panel to be convened, arguing that the screening panel had not supported its opinion with “corroborating references” to published medical literature and other relevant documents, as the statute indicates is required. But the court rejected her demand for a new screening panel, and on appeal the Kansas Court of Appeals agreed. Even though Kan. Stat. Ann. § 65-4904(a) mentions corroborating references, a screening panel is not obligated to include supporting citations in its report, the appeals court held.
It is worth commenting here that the patient could still proceed with her lawsuit. However, the screening panel’s finding might make it difficult for her to prevail, given that the panel’s report would be admissible in her lawsuit, and the panel members also could be subpoenaed to testify about their conclusions. Kan. Stat. Ann. § 65-4904(c).
Tolling for Screening Panels
To make it possible for a claimant to obtain a screening panel’s opinion before filing a lawsuit, Kansas law provides that if a person requests the convening of a screening panel, the statute of limitations stops running (in legal terminology it is “tolled”). Note, though, that the statute of repose does not appear to be extended. Kan. Stat. Ann. § 65-4908; Smith v. Graham, 147 P.3d 859 (Kan. 2006).
On an entirely different issue, at least 30 days before any medical malpractice lawsuit goes to trial, Kansas requires a settlement conference to be held to try to resolve the plaintiff’s claims by agreement. The judge or the judge’s designee conducts the settlement conference, and all persons with authority to settle the claim must attend unless excused by the court for good cause. Kan. Stat. Ann. § 60-3413.
IV. Health Care Stabilization Fund
Kansas law requires healthcare providers to carry a minimum amount of malpractice insurance and makes available additional coverage through the state-created Health Care Stabilization Fund, which is funded from payments made by healthcare providers. The Fund’s primary function is to provide excess professional liability coverage.Kan. Stat. Ann. §§ 40-3401 to -3424.
The statute establishing the Fund also addresses certain questions about malpractice liability, as discussed in the next subsection.
V. Immunities and Limitations on Liability
Generally speaking, healthcare providers in Kansas are not legally responsible for malpractice committed by other healthcare providers. By statute, a healthcare provider “shall have no vicarious liability” for injury arising out of malpractice committed by any other healthcare provider “who is also qualified for coverage” under the Health Care Stabilization Fund (discussed immediately above). Kan. Stat. Ann. § 40-3403(h).
Consequently, a hospital or other entity usually will not be vicariously liable for the malpractice of a physician that it employs. Cady v. Schroll, 317 P.3d 90 (Kan. 2014); Glassman, supra; Treaster v. HealthSouth Corp., 442 F. Supp. 2d 1171 (D. Kan. 2006).
Also, physicians generally cannot be held liable for the negligence of other members of the healthcare team under a so-called “captain of the ship” theory. Cady, supra.
A separate statute shields medical care facilities from liability for the conduct of physicians who see patients at the facility but are not the facility’s employees or agents. Kan. Stat. Ann. § 65-442(b).
Emergency Medical Care
Unlike some states, Kansas has not imposed special statutory obstacles to suing emergency room physicians and nurses. In Kansas the “ordinary standards of care and rules of negligence” apply to such suits. Kan. Stat. Ann. § 65-2891(d).
Before bringing suit against medical professionals who are employed by a government-owned hospital or clinic, it is sometimes necessary to give the government advance notice.Kan. Stat. Ann. § 12-105b(d).
In Whaley v. Sharp, 343 P.3d 63 (Kan. 2014), a patient died after being treated in a municipal hospital, and the patient’s daughter brought a malpractice suit. The treating physician argued that the daughter’s lawsuit should be barred because she neglected to give notice to the municipality before filing her suit. The trial judge agreed that notice was necessary and dismissed the malpractice claims on summary judgment. But on appeal the Kansas Supreme Court revived the daughter’s lawsuit, holding that the notice requirement was inapplicable here because the claim was brought only against a municipal employee, not against the municipality itself.
In suits against government-owned hospitals or clinics, various kinds of government immunity issues can also arise.
Kansas confers immunity on certain “state, regional or local” associations of healthcare providers for acts performed in good faith and without malice. Kan. Stat. Ann. § 65-4909. There is little case law interpreting this provision.
VI. Medical Expert Witnesses
Medical malpractice cases typically depend heavily on the testimony of medical experts, who aid the court and the jury in understanding whether malpractice occurred and caused the plaintiff’s injury. In Kansas there are strict rules about who may give expert testimony in a medical malpractice case.
Clinical Practice Requirement
One key requirement is that a medical expert witness must have an active clinical practice. The lawmakers’ purpose in imposing this rule was to prevent the use of “professional witnesses” in medical malpractice lawsuits. Endorf v. Bohlender, 995 P.2d 896 (Kan. App. 2000).
The Kansas statute is brief and to the point: No person may qualify as an expert witness regarding the proper standard of healthcare “unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.” Kan. Stat. Ann. § 60-3412.
By its terms, the statute applies only to expert testimony regarding the applicable standard of healthcare, and not to testimony on other issues.
Under the statute, an expert witness also must be engaged “in the same profession in which the defendant is licensed.” This raises the question of whether the expert and the defendant must practice in the same specialty area.
The general answer is no. The statute “was never intended to require that a medical doctor could only give standard of care opinions where both physicians practiced the same medical specialty,” the Kansas Supreme Court explained in Glassman v. Costello, 986 P.2d 1050 (Kan. 1999), discussing the legislative history. In that case, the high court concluded that nothing prevented a practicing pathologist from testifying on the standard of care in a malpractice suit filed against an obstetrician. Id.; see also Tompkins v. Bise, 910 P.2d 185 (Kan. 1996).
A Case Example
In Schlaikjer v. Kaplan, 293 P.3d 155 (Kan. 2013), a patient sued a physician for malpractice after unsuccessful trachea surgery. Testifying on the patient’s behalf was a medical school professor who had treated her after the surgery. The defendant physician sought to disqualify the professor from serving as an expert witness by disputing whether the professor had devoted at least 50 percent of his time to actual clinical practice, as statutorily required of medical experts. Agreeing with the defendant, the judge found that the professor did not have a sufficiently active clinical practice, torpedoing the patient’s malpractice claim on summary judgment because she did not have any other expert witnesses.
The case went up to the Kansas Supreme Court, which disagreed with the lower court rulings. According to the high court, actual clinical practice includes “advising on” or “addressing” care for a patient — which constituted a large part of the professor’s teaching activities. Under this broadened definition, the professor did indeed devote at least 50 percent of his time to actual clinical practice, and therefore he was not disqualified from being a medical expert witness.
On a separate issue, the Schlaikje court ruled that even a treating physician must satisfy the expert witness statute’s 50-percent requirement in order to testify on the standard of care. See also Williams v. Lawton, 207 P.3d 1027 (Kan. 2009).
Besides meeting the above clinical practice requirements, a medical expert witness must offer testimony that is based on reliable methods and principles. If an expert’s testimony does not reach a certain threshold of scientific reliability, the court will not allow the jury to hear it. Kan. Stat. Ann. § 60-456(b); Bereal v. Bajaj, 371 P.3d 349 (Kan. App. 2016).
VII. Comparative Negligence / Proportionate Liability
Sometimes a healthcare provider will try to pin the blame for a poor treatment outcome on the patient, accusing him or her of neglecting to follow post-surgery instructions or supplying inaccurate health history information, for instance. In cases where a patient does bear some fault for causing his or her own medical injury, Kansas applies the doctrine of “comparative negligence.” Under this doctrine, the patient’s monetary damages are reduced in proportion to the degree of the patient’s fault.
For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the physician but the amount will be reduced by 25 percent. However, if the plaintiff bore more blame than the defendant(s), he or she will be barred from recovering any damages whatsoever. Kan. Stat. Ann. § 60-258a(a); Puckett v. Mt. Carmel Regional Medical Center, 228 P.3d 1048 (Kan. 2010); Maunz v. Perales, 76 P.3d 1027 (Kan. 2003).
On a different issue, if there is more than one culpable defendant, who pays what share of the monetary damages? Under Kansas law, each defendant generally is liable for only so much of the plaintiff’s damages as are proportionate to that defendant’s percentage of fault. For instance, if a particular defendant was 30 percent to blame, that defendant pays 30 percent of the monetary damages. In other words, there is no “joint and several liability.” Kan. Stat. Ann. § 60-258a(d); Puckett, supra.
VIII. Limitations on Damages
Money claimed by a plaintiff as compensation for a loss is referred to as “monetary damages” or just “damages.” In Kansas medical negligence suits, some types of damages are subject to an upper limit. Different rules apply to each category of damages.
There is no limit, or “cap,” on damages such as medical bills (past and future) and lost earnings (past and future).
However, there is a cap on damages for pain and suffering, emotional distress, and other forms of intangible injury. Specifically, the total amount a plaintiff may recover for “noneconomic loss” may not exceed $300,000 (a dollar figure that will gradually adjust upward to a maximum of $350,000 in 2022). Kan. Stat. Ann. § 60-19a02; see also Miller v. Johnson, 289 P.3d 1098 (Kan. 2012) (rejecting a constitutional challenge to this provision).
Wrongful Death Damages
A separate Kansas statute addresses wrongful death cases. If a loved one dies as a result of medical negligence, the amount of damages “other than pecuniary loss sustained by an heir at law” cannot exceed a total of $250,000. Kan. Stat. Ann. § 60-1903.
Punitive damages are awarded to a plaintiff for the purpose of punishing an especially badly behaving defendant. Unlike other types of damages, they are not limited by the amount of the plaintiff’s proven loss.
Kansas imposes a statutory ceiling on punitive damages that is tied to the defendant’s income level: the upper limit usually equals the defendant’s annual gross income. But if the defendant has an income above $5 million, the limit is $5 million. Kan. Stat. Ann. § 60-3702; see also Wardrip v. Hart,949 F. Supp. 801 (D. Kan. 1996); cf. Capital Solutions, LLC v. Konica Minolta Business Solutions U.S.A., Inc., 695 F. Supp. 2d 1149 (D. Kan. 2010) (holding one procedural aspect of the statute unconstitutional).
IX. Limitations on Attorney Fees
Under Kansas law, all attorney fees received by counsel in medical malpractice cases must be approved by a court. In the words of the statute, “compensation for reasonable attorney fees to be paid by each litigant in the action shall be approved by the judge after an evidentiary hearing.” Kan. Stat. Ann. § 7-121b.
The mandate applies to both plaintiff’s and defendant’s attorney fees. To determine the reasonableness of counsel fees, courts rely on a “lodestar analysis,” with which most lawyers are familiar. One factor that is relevant is whether the lawyer took the case on a contingent fee basis. Whittington v. Newman Regional Health Center, No. 14-cv-4008, 2015 WL 6393920 (D. Kan. Oct. 21, 2015).
X. Apologies and Sympathetic Gestures
If a physician apologizes for a poor treatment outcome, can the apology be used as evidence that the physician was negligent? Unlike some states, Kansas does not have a statute that addresses the effect of apologies, expressions of regret, or other such gestures and whether they can be used as evidence in a court proceeding.
XI. Communications with Treating Physicians
May defense counsel communicate with a plaintiff’s treating physicians without the plaintiff’s consent?
The law on interviewing treating physicians other than through formal “discovery” procedures (used for obtaining information from others during litigation) is somewhat complex. Kansas law generally allows informal communications with treating physicians unless the plaintiff shows a specific reason for restricting them, such as sensitive medical history irrelevant to the lawsuit. But federal law plays a role here too: defense counsel may need to comply with the requirements of the Health Insurance Portability and Accountability Act of 1996, or HIPAA, relating to disclosure of protected health information. See Kan. Stat. Ann. § 60-427(d); 45 C.F.R. § 164.512(e); Pratt v. Petelin, No. 9-2252, 2010 WL 446474 (D. Kan. Feb. 4, 2010).
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