2000 KANSAS BAR ASSOCIATION
ANNUAL SURVEY
CASE LAW UPDATE - HEALTH LAW
  
 
I. CASE LAW
 
 
A. Ad Valorem Taxation
 
 
In re Application of Kansas Christian Home, 2000 Kan. Lexis 196 (March 17, 2000).
 
Harvey County sought to tax a portion of the facilities of various not-for-profit corporations operating continuing care retirement communities ranging from independent living to nursing home care. The county sought to tax housing units for the elderly, but not adult care home facilities operated by the various corporations. The Board of Tax Appeals concluded that each of the three facilities in question was exempt under K.S.A. 79-201(b)Fifth. because they either provided services at the lowest feasible cost or at less than cost. In the interim between the decision of the Board of Tax Appeals and the decision by the Kansas Supreme Court, the statute was amended to reference a ruling by the Internal Revenue Service. The question was whether costs should be determined with reference solely to the independent living unit of the larger organization or on an organization-wide basis. The court determined that the exempt status had properly been determined with reference to the operation of the entire facility.
 
Presbyterian Manors, Inc. v. Douglas County, 2000 Kan. Lexis 18 (Feb. 4, 2000).
 
The Board of Tax Appeals denied a property tax exemption for an adult care home and facility to provide housing for the elderly operated by Presbyterian Manors. The board denied the exemption because it found that Presbyterian Manors did not charge for its services at a level that was less than its cost nor provide services at the lowest feasible cost. In the interim between that ruling and the decision by the Kansas Supreme Court, the pertinent Kansas statutes were amended to specifically reference an IRS Revenue Ruling as the controlling standard. The Kansas Supreme Court analyzed the legislative intention underlying that amendment and concluded that substantial weight was to be accorded to the fact of federal income tax exemption. The Court also found that the evidence in the record indicated that Presbyterian Manors= operation was consistent with the applicable Revenue Ruling and reversed the order denying the exemption.
B. Antitrust
 
 
Mitchael v. Intracorp, Inc., 179 F.3d 847 (10th Cir. 1999).
 
A group of chiropractors brought an antitrust action against automobile liability insurers and a utilization review company that reviewed chiropractic claims for the insurers. The Tenth Circuit agreed with the trial court that the plaintiffs had failed to establish the existence of an agreement in restraint of trade among the various defendants and sustained the trial court=s order granting summary judgment to the defendants.
 
Orr v. Beamon, 77 F. Supp. 2d 1208 (D. Kan. 1999).
 
This antitrust action was brought by a physician who had been an at-will employee of an emergency physician group and who was terminated after he advocated switching from a billing service that was controlled by the majority shareholders in the physician group. The primary focus of the case is on standing for antitrust purposes. The plaintiff argued that the Kansas antitrust statutes are broader than the federal statutes and that he should have standing under Kansas law even if he did not have it under federal law. The court rejected this argument, concluding that standing under the Kansas antitrust statutes would require an antitrust injury similar to that required under federal law. The plaintiff was unable to show any injury to competition and summary judgment was thus entered in favor of the defendant.
 
Wichita Clinic, P.A. v. Columbia/HCA Healthcare Corp., 45 F. Supp.2d 1164 (D. Kan. 1999).
 
This antitrust and state law tort claim was instituted by a large medical clinic after joint venture negotiations between it and the defendant hospital failed. The hospital then employed a number of family care physicians who had previously been employees of the clinic and paid off liquidated damage provisions in the physicians= employment contracts with the clinic. The plaintiff primarily relied upon a claim of attempted monopolization. After extensive factual and legal analysis, the court granted summary judgment because the facts did not support a threat to competition in the relevant market. The court found that the plaintiffs had not established antitrust injury, a dangerous probability of success of monopolization or illegal predatory conduct on the part of the defendant. The court also granted summary judgment as to various state law tort claims consisting of fraud, unfair competition, and tortuous interference with contract rights. In a subsequent opinion, the court granted summary judgment as to claims of misappropriation of trade secrets and tortuous interference with a business expectancy. The plaintiff also alleged a breach of confidentiality related to a letter of intent executed when the parties first began joint venture negotiations. The court found that the agreement was limited in scope and that information as to physician productivity, patient lists and other financial information was not confidential. According to the court, the plaintiff failed to demonstrate that this information was subject to reasonable protective efforts to maintain its confidentiality.
 
C. Bankruptcy
 
 
In re Budig, 240 B.R. 397 (D.Kan. 1999).
 
The vagaries of managed care led these debtors into bankruptcy and a hospital that provided over $50,000 in care to unsuccessfully object to their discharge. Mr. Budig was admitted to Via Christi Medical Center for heart bypass surgery when he was covered by a Blue Cross Blue Shield policy issued by his wife=s employer. The policy stated that payment for services provided by a non-contract provider would be made directly to the insured. Via Christi was not a Blue Cross Blue Shield provider. Neither of the debtors understood the ramifications of this until they first received a hospital bill for approximately $54,000, followed by a check from Blue Cross Blue Shield for approximately $31,000, and realized that they were indebted to the hospital for the remainder of the hospital=s bill. After the heart surgery, Mr. Budig could not return to work and his wife=s income was reduced because of the necessity that she care for her husband. They utilized the insurance money from Blue Cross Blue Shield for living expenses and also medical expenses, including $10,000 paid to Via Christi. They ultimately filed for bankruptcy to discharge the debt owed to Via Christi, which objected to discharge on the ground that use of the funds from Blue Cross Blue Shield was willful and malicious. Prior to admission, Mr. Budig had executed an assignment in favor of the hospital but the bankruptcy court found that neither debtor knew that the assignment could make the insurance money the property of the hospital. Thus, the court found that neither debtor had the necessary intent to cause willful injury and that the debt should be discharged. This ruling was affirmed by the district court on appeal.
 
D. Comparative Negligence
 
 
Huffman v. Thomas, 1999 Kan.App. Lexis 1498 (July 7, 1999).
 
Plaintiffs= decedent was injured when a truck he drove on a lift fell and pinned him underneath. A jury awarded plaintiffs damages. Prior to trial plaintiff moved to exclude evidence of their son=s comparative negligence. There was evidence the decedent incorrectly placed the truck on the lift. The trial judge excluded the evidence. On appeal, this ruling was upheld. The Court of Appeals determined, based upon Florida and Colorado cases, that conduct prior to the alleged malpractice should not be compared. The Florida case found that prior conduct is not legally significant unless it is a legal or proximate cause of the injury or death. The Colorado Court found that it was inconsistent with the parties normal and reasonable expectations for the court to reduce or excuse the providers liability simply because it was the patient=s own fault for requiring care. The appellate court did not further refine its rationale, except to say that even if comparison were allowed, it did not appear that the patient=s negligence would be proven. The court also found there was sufficient evidence on causation and pecuniary damages, and that there was no abuse of discretion in failing to award a new trial based on juror misconduct.
 
E. Costs
 
 
Noll v. Burns, 2000 Kan.App. Lexis II (Jan. 21, 2000).
 
Plaintiffs= son died from anaphylactic shock following an allergen injection at the Emporia State University health clinic. During opening arguments, defendants argued that factors other than defendants= negligence cause the death. This defense was apparently contradictory to the pretrial order and the court informed defendants they could proceed without comparison or could reschedule the trial and pay plaintiffs= costs. Defendants chose the latter. At the second trial, defendants did not compare and a jury verdict was entered against defendants. On appeal, the court found the award of costs proper stating that the trial court could, under K.S.A. 60-216(b), enter any order it deemed just upon finding a party was in violation of the pretrial order. A bad faith finding was not required. Plaintiffs= cross-appeal to increase the costs was unsuccessful.
 
F. Criminal Law
 
  2000 U.S. App. Lexis 5475 (10th Cir. March 29, 2000) [With correction].
United States v. Anderson, 55 F.Supp.2d 1163, 79 F. Supp.2d 1233, 85 F.Supp.2d 1047, 85 F.Supp.2d 1084, 1999 U.S. Dist. Lexis 18771 (D. Kan. 1999).
 
In a series of decisions, the court continued to deal with charges for violating the anti-kickback statute brought against two doctors, three hospital executives and two lawyers. Two of the doctors and two of the hospital executives were convicted after a nine-week jury trial. In the decision reported at 55 F.Supp.2d 1163, the court addressed the propriety of the government=s act of naming three lawyers as unindicted co-conspirators. The court determined that due process had been denied to all three attorneys and ordered the clerk to completely and permanently strike all references to the three attorneys in a pleading filed by the government. In a comprehensive decision reported at 85 F.Supp.2d 1047, the court specifically addressed post-judgment motions for acquittal in a comprehensive analysis out of the anti-kickback statute. The court addressed the mens rea required by the statute and the degree of linkage required between payment of remuneration and referral of patients. The decision at 85 F.Supp.2d 1084 addressed sentencing, particularly whether enhancement was required, and the amount of restitution. The court rejected a motion for reconsideration of its decision as filed by the government in the decision reported at 79 F.Supp.2d 1233 and also overruled a two-level obstruction of justice enhancement filed by one of the physicians in the decision reported in Lexis.
 
United States v. Wood, 2000 U.S. App. Lexis 5475 (10th Cir. March 29, 2000).
 
A physician was indicted for the murder of a patient under his care at a VA hospital after the physician gave the patient an abnormally high level of potassium through injection. The patient=s heart stopped immediately after the injection and the patient was pronounced dead shortly thereafter. The government conducted a four-year investigation before obtaining the first-degree murder indictment against the physician. At trial, the jury acquitted the physician of charges of first-degree and second-degree murder but returned a guilty verdict on the charge of involuntary manslaughter. The court found that the trial court should have not even submitted the first and second-degree murder charges to the jury, stating that well-intentioned but inappropriate medical care, by itself, does not raise an inference that the killing was willful and premeditated or that the defendant had malice aforethought. The Tenth Circuit also determined that the evidence presented at trial was sufficient to support the conviction for involuntary manslaughter but determined that cumulative errors required that the verdict be set aside and the case remanded for a new trial.
 
G. Damages
 
 
Hoover v. Innovative Health of Kansas, Inc., 26 Kan.App.2d 447 (1999).
 
In this nursing home malpractice case, plaintiff claimed her decedent fell and was injured on four separate occasions. Defendant appealed from a jury award. The defendant appealed that the trial court failed to reduce noneconomic damages to $250,000 under K.S.A. 60-19a02. The trial court allowed each claim to have a separate cap because the plaintiff could have filed four separate lawsuits. The Court of Appeals found that one cap applied because it was one action. The court found that the trial court erred in failing to enter judgment in the amount of $250,000 for noneconomic loss. However, the court also held that the trial court properly denied defendant=s Motions for Summary Judgment, Judgment, Notwithstanding the Verdict and New Trial.
 
Wilson v. Knight, 26 Kan.App.2d 226 (1999).
 
When plaintiff was 14, he was treated by defendant for appendicitis. Plaintiff apparently did not improve after his appendix was removed and it was subsequently discovered he had a pelvic abscess and rectovesical fistula. A jury awarded plaintiff $100,000. In defendant=s appeal the Court of Appeals held that various journal articles and treatises were admissible under the learned treatises exception to the hearsay rule. The court advised caution in admitting learned treatises, but found sufficient predicate testimony and relevancy (on four of the six articles, the other two articles were harmless error). According to the Court of Appeals, defendant=s Motions for Directed Verdict and Judgment Notwithstanding the Verdict were properly denied because there was some, although not abundant evidence related to post-operative infection. Plaintiff cross-appealed that he should be allowed to recover medical expenses incurred during his minority and paid by his parents. The court held that unless the child is emancipated, the parent, rather than the child is entitled to recover for medical expenses incurred during minority.
 
H. EMTALA
 
 
Blake v. Richardson, 1999 U.S. Dist. Lexis 7391 (D.Kan. April 2, 1999).
 
Plaintiff was diagnosed with appendicitis, but his operation was delayed pending results of a HIV test requested by the surgeon. The court denied defendant=s Motion to Dismiss finding plaintiff had stated a viable EMTALA claim. By claiming he was treated differently from other emergency department patients with appendicitis, he was not given the same level of care.
 
I. Experts
 
 
Christensen v. Gleason, 2000 U.S. Dist. LEXIS 1029 (D.Kan. 1-12-00).
 
Plaintiff alleged defendant was negligent in using a catheter during delivery of her child and in repairing perineal and ureteral lacerations. The court dismissed plaintiff=s complaint. Plaintiff had previously filed and dismissed the lawsuit and an order was entered to apply that discovery to the second case. Plaintiff failed to present expert testimony on her malpractice claim. Plaintiff also alleged fraud, because defendant=s repairs were more extensive than his notes or what he led her to believe. Because plaintiff=s fraud claim was grounded in her malpractice claim, it could not be separately maintained.
 
Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999).
 
Several Denver police officers sued under the ADA for forcing them to retire on disability rather than transferring them to other positions. During trial, one officer=s treating physician testified about his observations during the patient=s course of treatment, the treatment, explained medical terminology, provided a diagram to explain the patient=s injuries that rendered him disabled, and opined that the retirement cause the patient=s psychological stress. Defendants appealed that the physician crossed the line between rule 701 and Rule 702 without being designated as an expert under Rule 26. The Tenth Circuit disagreed finding that a treating physician, even when testifying as a lay witness, can state Aexpert@ facts to the jury in order to explain his testimony.
 
Endorf v. Bohlender, 2000 Kan.App. Lexis 6 (Jan. 14, 2000).
 
Defendant appealed a jury verdict assessing him 31% negligent on the grounds of improperly admitted expert testimony. The Court of Appeals found the testimony should not have been admitted, warranting a new trial. The court held that actual clinical practice necessary to qualify an expert witness under K.S.A. 60-3412 means actual patient care. It found plaintiff did not meet his burden to show the experts qualified under the rule.
 
Glassman v. Costello, 267 Kan. 509 (1999).
 
This appeal arose from the anesthesia related death of a woman while undergoing a cesarean section. The jury found the physician 1% liable. The anaesthesiologist who settled before trial was found 99% at fault. The plaintiffs= appealed the court=s decision to exclude, in limine, the testimony of two pathologists from testifying about the standard of care of the obstetrician. The trial court focused on whether the pathologists were in a similar or related area of practice as defendant. The Supreme Court, relying on Wisker agreed with plaintiff. The Court found that the language of Thompson relating to Aarea@ of practice is an expansion, not a limitation of the rule and was used in Thompson to justify the licensure difference. The language of Thompson according to the Court is not to be used to limit testimony of experts holding the same license. On cross-appeal the court considered whether the obstetrician had a duty to direct the administration of anesthesia. The court found that under K.S.A. 40-3403(h) the obstetrician had no vicarious liability for the CRNA, but found that the trial court properly allowed the jury to consider his independent duty to direct the CRNA in light of the individual technical duties of the physician and CRNA under K.S.A. 65-1158 (requiring physician and CRNA to act in an interdependent role).
 
Latshaw v. Mt. Carmel Hospital, 53 F.Supp.2d 1133 (D.Kan. 1999).
 
Plaintiff alleged defendants failed to properly treat his self-inflicted gunshot wound. Defendants sought to strike plaintiff=s expert under Fed. Rule Evidence 702 and K.S.A. 60-3412 because the expert (an emergency room physician) did not practice in the same areas as defendants (a psychiatrist and a surgeon) and his opinions would not be reliable. The court found that Daubert need not be applied when the expert testimony is based solely on experience and training. The court found that since the expert had experience treating gunshot wounds he was qualified.
 
Schwartz v. Abay, 1999 Kan.App. Lexis 1086 (Oct. 22, 1999).
 
Plaintiff alleged defendant operated on the wrong disc. Defendant admitted he did so. Plaintiff prevailed on liability on summary judgment. Defendant moved for summary judgment on causation and damages, contending plaintiff failed to offer expert testimony that defendant caused damages or that plaintiff suffered damages. This motion was granted. The Appellate Court reversed and remanded determining that the case fell within the common knowledge exception. Defendant argued that plaintiff had to show the negligence caused the alleged injury. The admitted negligence was operating on the wrong vertebrae. The court stated on this issue, AIt is a mystery how Dr. Abay successfully argued to the district court that his negligence did not cause him to operate on the wrong vertebrae . . . Dr. Abay admitted the injury, which is a separate and distinct issue from the issue of what damage was caused.@
 
J. False Claims
 
 
United States ex rel Hafner v. Spectrum Emergency Care, Inc., 190 F.3d 1156 (10th Cir. 1999).
 
The question in this case was whether qui tam plaintiffs qualified as original sources as required by the federal False Claims Act. The plaintiff Dr. Hafner was employed by an emergency room service both as an emergency room physician and as medical director of a medical center in Dallas. When Dr. Hafner was contacted by an attorney with regard to a medical malpractice case involving the emergency room, Dr. Hafner made a number of comments that led to an amendment in the malpractice action to assert an additional claim of violation of the Texas Medical Practices Act. Thereafter, Dr. Hafner filed a qui tam action in which he alleged that the defendant had submitted false and fraudulent reimbursement claims to the government. The trial court determined that the information underlying the False Claims Act case had been publically disclosed in the prior action and that the plaintiff physicians did not qualify as original sources for the information involved in the fraud allegations. The Tenth Circuit affirmed. Of note is that the principal allegation of false and fraudulent conduct was that the defendant had violated the anti-kickback statute and that this had tainted its claims for reimbursement. The 10th Circuit was careful to detail this theory but also stated in a footnote that it expressed no opinion as to it viability.
 
K. Fund Issues
 
 
Miller v. Sloan, Listrom, Eisenbarth, Sloan and Glassman, 267 Kan. 245 (1999).
 
Plaintiff claimed defendants settled the medical negligence case filed against him in bad faith. The defendants were granted summary judgment on the issue of damages although the court found the attorney=s breached their duty to Miller. The court noted that the insurance contract gave the insurer the right to settle. Miller=s insurer tendered its limits to the fund. The Fund employed the attorneys who settled the case thus the insurer did not breach its duty of loyalty to Miller by noting notifying him of the settlement. The insurer did not act in bad faith and summary judgment was affirmed. The Supreme Court found that the State, the Fund and Fund=s director were immune under the KCTA, and that it was implicit in the act creating the Fund that providers relinquish their right to prevent a settlement where claims are settled within the Fund=s limits. To find otherwise would undermine the statutory framework. Summary judgment dismissing the plaintiff=s claim of outrage was upheld; the court finding the conduct did not rise to the necessary level. The appellate court also found no identifiable damages on the claims of negligence and fraud, thus affirming summary judgment.
 
L. Intervening Cause
 
 
Kennedy v. United States, 1999 U.S. Dist. LEXIS 10473 (D.Kan. 5-18-99).
 
Plaintiff=s decedent was treated at the VA for shortness of breath. He chose to leave the hospital the same day and on the next day committed suicide. There was nothing in the examination or history to suggest suicide. Because the suicide was not foreseeable, defendant was granted summary judgment.
 
Rishell v. Wellshear, 1999 U.S. App. LEXIS 14155 (10th Cir. 6-25-99).
 
Plaintiff hung herself when she was a psychiatric unit inpatient. After a defense verdict, she appealed based upon trial errors. The court held it was not error to give an instruction that the failure of the nurses to monitor the patient could be an intervening cause. The court found that staff negligence was not foreseeable because the staff was well trained and experienced. The Appellate court also plaintiff was not prejudiced because the defendant abandoned some of the defenses stated in the pretrial order.
 
M. Licensure
 
 
Abbott v. Kansas Board of Examiners in Optometry, 2000 WL 263255 (March 10, 2000).
 
Five optometrists challenged their public censure by the Kansas Board of Examiners in Optometry for failing to furnish information pursuant to a Board investigation. Initially, the Board advised the optometrists that it intended to investigate their practices, which utilized leased space from a retail optical dispenser, to determine whether the practices were part of the unlicensed retail business. The optometrists refused to answer questions in a meeting to be conducted in private with the Board president and the Board attorney unless a court reporter was present and transcribed what was said. The Board then publically censured the optometrists for failure to cooperate in the investigation. The court upheld this action, finding that the optometrists had no legal right to record the conversation with Board representatives.
 
Hart v. Board of Healing Arts, 2000 Kan. App. Lexis 117 (March 17, 2000).
 
Dr. Hart appealed from an order of the Board of Healing Arts that limited his license to practice medicine and imposed a civil fine. The Board found that Dr. Hart had performed surgery without sufficient studies, had performed excessive surgery, had failed to manage post-operative care in a manner consistent with the standard of care and had failed to properly document patient information. The Board also took note that Dr. Hart had been sanctioned by two hospitals. The principal dispute in the case focused on testimony provided during the Board hearing by an expert witness who described various findings related to the care of each of the six patients in question but did not specifically define a standard of care in a manner such as that required for a malpractice case. The court held that this was not required and that the Board could rely upon its own expertise to understand the evidence as it related to whether the conduct fell below the applicable standard of care. The court also upheld the constitutionality of K.S.A. 65-2836(s), which allows disciplinary action to be taken by the Board if sanctions have been taken against a licensee by a health care facility. Finally, the court upheld assessment of a civil fine by the Board because of Dr. Hart=s violation of an order entered prior to the Board hearing requiring pre-surgical and post-surgical consultations.
 
Pitts v. Kansas Dental Board, 1999 WL 463279 (1999).
 
Dr. Pitts requested that the Kansas Dental Board reinstate his dental license that had been revoked in 1982. The Board denied the motion on the ground that it had no authority to reinstate a license that had been previously revoked. The district court affirmed, principally because no language appears in the Kansas Dental Act similar to that which appears in other licensure acts that authorizes reinstatement. The Supreme Court nonetheless concluded that the Kansas Dental Act did not operate to permanently bar an individual from practicing dentistry after revocation of a license and that the Kansas Dental Board did have the authority to reinstate a previously-revoked license.
 
N. Malicious Prosecution
 
 
Bartal v. Brower, 268 Kan. 195 (1999).
 
This malicious prosecution case arose from a medical malpractice case. The Kansas Supreme Court affirmed summary judgment for defendants. Dr. Bartal alleged that defendant knew or should have known he did not perform the part of the surgical procedure in question that caused damage. The Supreme Court reviewing the rules governing malicious prosecution cases concluded that the Browers were entitled to rely upon the advice of counsel defense and that based upon the facts known to the attorneys at the time suit was filed, there was probable cause to file suit.
 
O. Managed Care
 
 
Aetna Health Management, Inc. v. Mid-American Health Network, Inc., 82 F. Supp. 2d 1220 (D. Kan. 2000).
 
The issue before the court in this decision was simply whether Aetna was entitled to a determination that the defendants had violated earlier agreements between the parties and should therefore recover attorney=s fees. The case is of interest because of its factual context, which involved a contract between Aetna, which was selling health care plans, and Healthnet, a managed care organization that had contracted with a network of health care providers. The underlying agreement was what is known as a Arental access agreement@ by which Aetna rented access to Healthnet=s network of health care providers. The defendant Healthnet had utilized its access to Aetna=s confidential client list to plan a marketing strategy that the court found to be deliberate violation of the agreements between the parties.
 
P. Notice
 
 
Smith v. Kennedy, 26 Kan.App.2d 351 (1999).
 
Plaintiff sued a county hospital and its employed physician for negligence. Plaintiff originally served the K.S.A. 12-105b notice on the Coffey County Clerk and the hospital administrator. On the last day of the limitations period, plaintiff served another K.S.A. 12-105b notice on the Chairman of the hospital board. The trial court dismissed because the first claim was served on the wrong party and because the second claim was not denied, nor had the 120 days passed. The appellate court held that there was substantial compliance with the statute. It also found that even though the employed physician was not named in the Notice, the notice was sufficient.
 
Q. Privilege
 
 
State v. Berberich, 267 Kan. 215 (1999).
 
The defendant in this case was charged in 1998 with the murder of a child in 1979. In 1989, after the defendant had been convicted of several felonies, his attorney arranged for a counselor to meet with the defendant, at which time the defendant was alleged to have admitted that he had killed the child. K.S.A. 65-5810 provides that confidential relations and communications between a licensed professional counselor and the counselor=s client are privileged and are placed on the same basis as provided by law for those between an attorney and an attorney=s client. The same provision is provided in K.S.A. 74-5323 with regard to communications with a licensed psychologist. The counselor, however, was licensed under neither statute at the time of the communication in question even though the defendant arguably thought that he was. The trial court concluded that the communications were privileged because of the defendant=s reasonable belief that he was dealing with a licensed psychologist. The Supreme Court reversed, finding that a strict interpretation of a privilege statute required that the privilege would extend only to those who were licensed and not to someone that a client might reasonably believe to be licensed.
 
R. Products Liability
 
 
Wright v. Abbott Labs, 62 F.Supp.2d 1186 (D.Kan. 1999).
 
A nurse mistakenly took saline with a sodium chloride concentration of 14.6% instead of normal saline having a .9% concentration of sodium chloride from the shelf. The saline was administered undiluted via IV. Less than one hour later the mistake was repeated causing substantial injuries to an infant. The plaintiff settled with the hospital and nurse and sued Abbott alleging it provided an inadequate product warning. Summary Judgment was granted to Abbott finding that Abbott gave adequate warnings to the hospital B a learned intermediary. There were warnings in the package insert and on the package label.
 
S. Savings Statute
 
 
Clanton v. Estivo, 26 Kan.App.2d 340 (1999).
 
Defendant replaced plaintiff=s hip on November 14, 1994. On March 22, 1996, plaintiff filed her first lawsuit. One week before trial, plaintiff requested a continuance. It was granted. Prior to the second trial, plaintiff requested a continuance, but then dismissed the case without prejudice. Plaintiff refiled her case one week later. Subsequently, plaintiff moved to dismiss again because the Fund was not served. Plaintiff wanted to refile the same day and keep the trial date. Plaintiff argued it would not violate the two-dismissal rule since both refilings would be within the six months period. The court granted dismissal, but did not rule on the plaintiff=s ability to refile. Plaintiff refiled and defendant moved to dismiss with prejudice. Defendant=s motion was granted and affirmed on appeal.
 
T. Venue
 
 
Schmidt v. Shearer, 1999 Kan.App. Lexis 1469 (Dec. 30, 1999).
 
Plaintiff appealed from a jury determination that physician was 1% liable and from a summary judgment determination in favor of a Wichita hospital. Another hospital and a CRNA settled before trial after the trial court found the CRNA to be negligent per se. After summary judgment was granted to the Wichita hospital, the other defendant moved to transfer to Ford County. The trial court granted the motion. The Court of Appeals found summary judgment proper because plaintiff failed to establish factually and by expert testimony causation. The Court of Appeals found the venue determination proper and within the trial court=s discretion. The question of where a wrongful death action arises was one of first impression. The court found a wrongful death action arises either at the place of injury causing death or at the place of death. Because Ford County was a more convenient forum, transfer was appropriate. Plaintiff also claimed that defendant should not have been permitted to compare the negligence of the CRNA. On cross-examination of plaintiff=s witnesses, testimony as to the CRNA=s negligence was elicited. Because plaintiff raised the issue of the CRNA=s negligence, it was not a new issue and was properly compared.
 
II. LEGISLATION AND REGULATION
 
 
A. Department of Health and Environment. K.A.R. 28-1-2 and K.A.R. 28-1-18 were amended effective 2-18-00 to expand infectious disease reporting obligations.
 
B. Board of Nursing. K.A.R. 60-6-101 establishes requirements for mental health technician programs; K.A.R. 60-11-1101 defines the role of ARNPs; K.A.R. 60-11-103 defines ARNP qualifications; K.A.R. 60-11-104a sets prescription protocol requirements; K.A.R. 60-11-106 defines functions of a nurse anesthetist. Changes were also made to advanced nursing education programs.
 
C. Extensive patient=s rights requirements were added to the Medicare Conditions of Participation for hospitals at 42 C.F.R. '482.13. 64 Fed.Reg. 36069 (July 2, 1999). The standards address patient privacy, confidentiality of records, restraints, seclusion and grievance processes.
 
D. The Department of Health and Human Services published its final rule for the new Healthcare Integrity and Protection Data Bank as mandated by the Health Insurance Portability and Accountability Act of 1996. 64 Fed.Reg. 57739 (Oct. 26, 1999). The Data Bank is to contain final adverse actions against health care providers, suppliers and practitioners to include civil judgments related to the delivery of health care items or services, but not including malpractice judgments, federal or state criminal convictions related to delivery of health care, actions by federal or state agencies responsible for licensing or certification of health care providers and exclusion of health care providers from participation in federal or state health care programs. Federal and state governments and health care plans may access information in the Data Bank but hospitals are not presently allowed to do so.
 
E. In regulations published at 19 Kan. Reg. 571 (April 20, 2000), the Board of Healing Arts defined dishonorable conduct to encompass sale of non-health related products or services to a patient from the physician=s office and recruitment or solicitation of a patient while at the physician=s office to participate in a business opportunity. The regulation will be referenced as K.A.R. 100-20-3. The Board also extensively revised the requirements for supervision of physician=s assistants and defined the circumstances under which a physician=s assistant may prescribe or supply a prescription drug. These regulations will be referenced as K.A.R. 100-60-9, 10-60-10, and 100-60-13.
 
F. SB 238; SB 224. These laws deal with coroners and autopsies, clarifying the power of the coroner and autopsies of individuals who died while in custody.
 
G. SB 541 amends the Pharmacy Act to cover hospice institutional drugs rooms and to provide that a veterinary medical teaching hospital pharmacy is covered by the act. HB 2759 authorizes pharmacists to administer vaccines pursuant to a written vaccination protocol developed by the pharmacist and a physician.
 
H. SB 2169 amends the Nurse Practice Act relating to the practice of nursing by nursing students.
 
I. SB 2696 makes changes to the laws governing the Emergency Medical Services Board and expiration dates of certificates.
 
 

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