Goodell, Stratton, Edmonds, & Palmer--2005 KANSAS BAR ASSOCIATION CASE LAW UPDATE

2005 KANSAS BAR ASSOCIATION CASE LAW UPDATE - HEALTH LAW

STATE AND FEDERAL CASES

Access to Medical Records

1. Cline v. Williams Gas Pipelines Southcentral, Inc.No. CIV.A.03-2655-GTV-DJW, 2004 U.S. Dist. LEXIS 19688 (D. Kan. Aug. 20, 2004).

Defendant filed a motion for an order of inspection and reproduction of medical, psychological, psychiatric, and employment records, seeking an order requiring plaintiffs employees and doctors to make available for an examination and reproduction all medical and employment records relating to plaintiff. Although plaintiff consented to the entry of such an order, the Court held that it had no jurisdiction over the doctors and employees to order production of records because the doctors and employees were not parties to the action. The Court noted that the records could be obtained through a subpoena process set forth in Fed. R. Civ. P. 45.

2. Grimsley v. Smith (In re S.R.S., a minor child), 2005 Kan. App. LEXIS 299 (Kan. App. April 1, 2005) (Unpublished Opinion).

Grimsley was declared the biological father of the minor child, S.R.S., after his incarceration in prison. Due to his incarceration and his prior convictions for sex offenses against children, Smith, S.R.S.'s biological mother, was awarded sole custody of the minor. Grimsley subsequently obtained copies of the minor's school and medical records. Smith then filed a motion to deny Grimsley a right of access to such records claiming he was using the information to harass the mother and her family. The trial court granted the motion and restricted Grimsley's access to S.R.S.'s school and medical records and only gave him a right to get a general update on S.R.S.'s school progress, grades and well-being every three months in the form of a letter from Smith. The Court of Appeals affirmed as a proper exercise of the trial court's discretion. The Court of Appeals found that the trial court properly limited required Grimsley's access to personal information about S.R.S. be monitored and supervised consistent with his current visitation rights.

Child Abuse Reporting

1. Aid for Women v. Foulston, 327 F. Supp. 2d 1273 (D. Kan. 2004).

Plaintiffs, health care workers and others, sued defendant District Attorney, in her official capacity and as a representative of a class consisting of all Kansas county and district attorneys, under 42 U.S.C. § 1983 for declaratory and injunctive relief with respect to the Kansas Reporting Statute, K.S.A. 38-1522, which required reporting of child abuse to State officials. A 2003 advisory opinion by the Kansas Attorney General, and a change from a 1992 interpretation, construed the statute to mean that any sexual activity by an unmarried person under age 16 had to be reported. Plaintiffs argued that the defendants should not be allowed to enforce the reporting statute to require them to report their adolescent patients and clients who might be sexually active where no actual abuse or injury was suspected. The Court found that plaintiffs had standing to challenge the statute. The Court held that plaintiffs did not show a likelihood of success on their claim that the statute was impermissibly vague or overbroad; however, they were likely to succeed on their claim that the statute violated the informational privacy rights of their minor patients and clients; as the statute required disclosure of highly personal information. As such, the Court found injunctive relief was appropriate. The Court declined to certify the question to the Kansas Supreme Court as to the interpretation of the statute. And, the Court held that the defendants were not entitled to judgment on the pleadings given the Court's findings. The Court therefore entered a preliminary injunction against enforcement of the state statute requiring reporting of sexual activities by minors as interpreted by the Kansas Attorney General. See also Recent Case, 118 Harv. L. Rev. 778 (2004).

Civil Rights

1. Lewis v. Stevenson, No. 04-3169, 2005 U.S. App. LEXIS 1993 (Tenth Cir. Feb. 8 2005) (Unpublished Opinion).

Pro se plaintiff brought an action against defendants under 28 U.S.C. § 1343, alleging the defendants provided negligent medical care to her 84-year-old father which contributed to his death. Plaintiff sought fifty billion dollars ($50,000,000,000) in damages and an additional one hundred twenty-five billion dollars ($125,000,000,000) in punitive damages claiming the defendants over-medicated her father and provided negligent medical care. The Tenth Circuit held that the district court properly found that it lacked subject matter jurisdiction over the plaintiff's complaint, which only asserted state law claims for medical malpractice and wrongful death over which the district court lacked subject matter jurisdiction. On appeal, plaintiff alleged that her father was African-American and that "discrimination could have been a primary factor for the negligent acts" of defendants. The Tenth Circuit found that plaintiff had not presented any extraordinary circumstances for her failure to raise the claim of racial discrimination as the cause of the negligent acts to the court below, and therefore refused to consider the arguments on appeal. The Court therefore affirmed the dismissal of the claims for lack of subject matter jurisdiction.

Conditions for Refiling Malpractice Action

1. Brown v. Baeke, No.02-2532-DJW, 2004 U.S. Dist. LEXIS 20098 (D. Kan. May 27, 2004).

Plaintiff patient filed a medical malpractice action against defendants, a doctor and an anaesthesiologist. Defendants filed a motion to strike plaintiffs standard of care expert in a motion for summary judgment. During a telephone conference, counsel for the patient conceded they would not have the necessary expert testimony at trial to establish negligence, but advised the Court that these circumstances could be attributed directly to grave personal problems experienced by the associate attorney working on this case. Based on these extenuating circumstances, the patient argued that in lieu of striking their expert and granting summary judgment in favor of the defendants, the more equitable and appropriate course of action would be to permit the patient to dismiss the case without prejudice and allow the patient to refile the case to retain the necessary standard of care experts. The Court found that while it was true that defendants produced documents, responded to written discovery, retained experts and produced witnesses for deposition, all this discovery readily could be used in the subsequent action the patient intended to refile. Next, the Court found that the patient had been diligent in the overall prosecution of the case and had not caused excessive delay. The Court accepted the patient's explanation for the need of dismissal and granted the patient's motion to dismiss without prejudice subject to several terms and conditions including the payment of part of defendants' attorneys fees.

2. Schneider v. Benton & Milfeld, 88 P.3d 1257, 2004 Kan. App. LEXIS 453 (Kan. Ct. App. May 7, 2004) (Unpublished Opinion).

Plaintiff filed a malpractice action against the surgeon and in his opening statement made reference to statements that the trial court ruled were inadmissible hearsay. Based upon the Court's ruling that the statements were inadmissible hearsay, the plaintiff moved to dismiss the case without prejudice explaining he could not go forward without the excluded testimony. The trial court granted the motion to dismiss without prejudice and granted the defendant's request of reasonable conditions for the dismissal pursuant to K.S.A. 60-241(a)(2). The court signed a Journal Entry containing the following conditions of dismissal: All rulings remain law of the case; the present pretrial order controls any next case; opinions of experts are locked and they may not be redeposed; and if the case is refiled, Schneider must pay defendant's costs and attorney's fees of about $9,000.00. Plaintiff then refiled the case in another county and defendants moved to dismiss or transfer the case back to the county where the original case was filed, which the court granted, transferring the case back to the original court. Following transfer, defendant moved to dismiss for failure to meet the conditions the court had set on refiling and that plaintiff had failed to pay the attorney's fees from the prior case. The trial court granted the motion and dismissed the case. On appeal, the Court of Appeals held that the trial court had authority to set reasonable conditions upon dismissal, including the payment of a portion of defendant's attorney's fees and that such action was not an abuse of discretion. Further, the Court of Appeals held that dismissing the refiled case with prejudice was properly within the trial court's discretion since plaintiff had over a year in which to comply with the court's order, yet had failed to do so. The Court of Appeals therefore upheld the trail court's dismissal with prejudice of the re-filed action.

Consent to Treatment

Kansas Attorney General Opinion No. 04-22 (July 22, 2004).

Attorney General Phill Kline opines that a mature minor may consent to out-patient mental health treatment in the absence of parental consent. This decision expands on Attorney General Opinion No. 2003-35. Thus, a minor age 14 to 18 may consent to out-patient as well as in-patient treatment at a treatment facility as a voluntary patient, but the facility must notify the minor's parent, legal guardian, or other interested person. Attorney General Opinion No. 2003-35 is withdrawn to the extent it conflicts with this opinion.

Contracts

1. Brodsky v. St. Francis Hosp., 94 P.3d 737, 2004 Kan. App. LEXIS 763 (Kan. Ct. App. July 30, 2004) (Unpublished Opinion).

Two physicians appealed from a district court's grant of summary judgment to the Hospital, denying the doctors' claim that Hospital breached an employment agreement by its refusal to pay "retirement" compensation when the doctors terminated the agreement, but continued and resumed the active practice of medicine. The doctors argued that the employment agreement was ambiguous and that the term "retirement" should be construed to include "separation from a job." The Court of Appeals upheld the district court decision, which found the term "retirement" means a "career-ending event." The Court found the dictionary meaning of the word retirement was consistent with the district court's findings and that prior case law supported the decision, and that when the agreement was construed in whole the term retirement as determined by the district court was consistent with the remaining provisions of the employment agreement.

Damages

1. Rose v. Via Christi Health System, Inc., 276 Kan. 539, 78 P.3d 798 (2003), rehearing granted, decision pending.

The Kansas Supreme Court in Rose v. Via Christi is evaluating whether a plaintiff in a personal injury action may recover as damages medical expenses that were originally billed by the provider but were written off pursuant to a contract under Medicare. The primary question is whether the Court of Appeals' rationale in Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996) (Medicaid writeoffs), applies equally to recovery of Medicare writeoffs. A majority of the Kansas Supreme Court originally held that the Medicare writeoffs could be recovered by plaintiff, but the Court then granted Via Christi's Motion for Rehearing. The Supreme Court heard oral argument on the issues again in March 2004, and the Court's decision is still pending. Pursuant to Supreme Court Rule 7.06(a) (2004 Kan. Ct. R. Annot. 53), the grant of rehearing suspends the effect of the original decision.

2. Fischer v. Farmers Insurance Company, Inc., 106 P.3d 99, 2005 Kan. App. LEXIS 167 (Kan. Ct. App. February 18, 2005) (Unpublished Opinion).

In damages question similar to that arising in Rose v. Via Christi, above, the district court issued an evidentiary ruling prohibiting the plaintiff from introducing evidence of medical damages which had been written off by plaintiff's health care providers pursuant to a contract with plaintiff's group health insurance carrier. The Court of Appeals affirmed, noting that applying Bates v. Hogg, 22 Kan. App. 2d 702, 921 P.2d 249, rev. denied 260 Kan. 991 (1996), across the board to writeoffs by Medicaid, Medicare, and private insurance alike will have the effect of restoring all plaintiffs to their pre-accident economic status without arbitrarily overcompensating some injured persons. As an unpublished opinion, however, this decision is not binding precedent although it does have persuasive value since there is not another published appellate opinion on the same issue. See Supreme Court Rule 7.04(f)(2).

Duty to Monitor

1. Roe v. Dep't of Soc. & Rehab. Servs., 278 Kan. 584, 102 P.3d 396 (2004).

Baby Roe was born to parents who lived in a residential mental health treatment facility. Because staff at the facility were concerned about the parents' ability to care for the baby, the Kansas Department of Social and Rehabilitation Services (SRS) and the Bureau of Indian Affairs (BIA) became involved. Baby Roe subsequently suffered severe and permanent injuries at the hands of his father despite ongoing monitoring of his family situation by SRS. Plaintiffs brought suit against SRS, claiming SRS voluntarily and affirmatively undertook a Restatement (Second) of Torts § 324A (1964) duty to monitor delivery of family support services for the care and protection of Baby Roe. The Court of Appeals held that plaintiffs had established SRS had undertaken a § 324A duty. The Supreme Court reversed the Court of Appeals decision, and affirmed the district court's entry of summary judgment against the plaintiffs, finding that the plaintiffs had failed to establish a § 324A undertaking by SRS to protect him from child abuse from his parents. The Supreme Court found that the duty in this case was a duty to the public at large and that plaintiffs had produced no evidence the defendants undertook to render services to Baby Roe's parents which they could have recognized as necessary for the protection of Baby Roe. The only evidence plaintiffs had was a SRS caseworker's promise to monitor the delivery of services by BIA and the mental health center, and the Court held this promise was insufficient, by itself, to support a § 324A duty, relying upon prior cases. The Court further found that SRS's agreement to monitor services was only a limited or incidental undertaking which did not give rise to a § 324A duty.

Experts and Experts Testimony

1. Cox v. Davis, No. 03-2507, 2004 U.S. Dist. LEXIS 18554 (D. Kan. Sept. 14, 2004) (Unpublished Opinion).

Plaintiffs, the Estate of the decedent and an heir-at-law of the decedent, brought a wrongful death action against a defendant doctor alleging the doctor had failed to properly diagnose a fractured vertebrae which caused or contributed to the decedent's later death. The Estate claimed that the x-rays revealed a fracture of the thoracic spine, but that the doctor discharged the decedent and instructed him to follow up with a doctor for treatment of a muscular injury. The doctor filed a motion for summary judgment claiming the Estate's only medical expert testified in his deposition that the doctor did not do anything to cause the death of decedent. The Court concluded that the expert's deposition testimony, taken as a whole, was sufficient to create a genuine issue for trial as to whether the doctor's actions were a contributing cause to decedent's death. The expert testified that the doctor "totally missed" decedent's injury and provided him with improper medical treatment. The Court determined that these statements provided a degree of proof required from a medical expert to submit the case to a jury and therefore denied the doctor's motion for partial summary judgment.

2. Ward v. Shawnee County Bd. of Comm'rs, 103 P.3d 993, 2005 Kan. App. LEXIS 61 (Kan. Ct. App. Jan. 14, 2005) (Unpublished Opinion).

Prior to his incarceration in the Shawnee County jail, Ward stepped on a nail with his right foot, causing an infection to develop. He was treated with antibiotics and the infection subsided. Ward's foot became reinfected shortly before being sent to jail for a probation violation. A staff doctor at the jail prescribed antibiotics and Ward's foot healed again. Two weeks later, Ward's foot again became infected and he requested antibiotics but did not receive them because a doctor was unavailable to write the prescription. The infection worsened, culminating in the amputation of part of Ward's right foot. Ward then filed a negligence action against Shawnee County premised on negligent operation of the jail for failure to supervise and failure to provide medical care for plaintiff. Ward missed the deadline to formally disclose expert witnesses, but subsequently listed the names and addresses of two health care facilities, ten doctors, three nurses, and one non-expert witness, later adding four more doctors, but did not comply with the requirements of K.S.A. 60-226(b)(6). Ward attempted to classify his cause of action as ordinary negligence rather than medical malpractice to circumvent the need for expert testimony, but the Court of Appeals held that the need for expert testimony depends not on the cause of action, but whether the subject matter is outside the common knowledge of jurors. By failing to disclose expert witnesses as required, Ward was unable to prove by expert testimony that Shawnee County breached its duty and that causal connection existed between the breached duty and Ward's injury. The Court affirmed the grant of summary judgment to Shawnee County.

Federal Tort Claims Act

1. Esposito v. United States, No. 02-2312-JAR, 2005 U.S. Dist. LEXIS 1420 (D. Kan. Jan. 31, 2005) (Unpublished Opinion).

Plaintiff widow filed an action against defendant United States under the Federal Tort Claims Act (FTCA) for the alleged wrongful death of her husband who at the time of the incident was incarcerated in the Federal Penitentiary. While the husband was incarcerated, he was treated and monitored by the Penitentiary staff for a heart condition. He was eventually transferred to a hospital for federal prisoners. The husband received hospice care and died less than a month later. The widow alleged in her complaint that the husband's life expectancy would not have diminished if he had been transferred to the prison hospital sooner. The government offered medical testimony to the effect that an earlier transfer would not have lengthened the husband's life. The widow did not offer any expert testimony but relied upon the common knowledge doctrine or res ipsa loquitur doctrine. The Court granted summary judgment in favor of the government and held that the widow had not presented any evidence from which a lay person could find as a matter of common knowledge that the husband's decline and death would not have occurred if the government had exercised due care. There was no evidence that the government's failure to transfer the husband to the medical facility on a earlier date caused him injury and therefore the widow's claim failed under both the common knowledge and res ipsa loquitur theory.

Fiduciary Duties

1. Anesthesia Assocs. of Topeka v. Diggs, 99 P.3d 150, 2004 Kan. App. LEXIS 1111 (Kan. Ct. App. Oct. 22, 2004) (Unpublished Opinion).

Diggs was sued by Anesthesia Associates for surgery previously performed by Dr. Ebeling. Diggs then brought a third-party action against the surgeon, claiming he caused personal injury protection benefits to be exhausted due to his failure to testify favorably at Diggs' prior personal injury lawsuit against the other driver. Specifically, Diggs claimed that Dr. Ebeling had told his insurer that the accident had aggravated his neck injuries requiring surgery. However, the surgeon then testified at trial that he did not have an opinion as to whether the accident caused or aggravated his preexisting neck injury. Diggs claimed he was not making a claim for alleged perjury but rather based upon the fiduciary duty owed by a physician to his patient. The Court of Appeals held that while a physician does owe a fiduciary duty to his patient, that fiduciary duty does not require a physician to give only favorable testimony or testimony that the client wants or approves. Kansas law does not require that a physician cooperate with a patient when giving testimony in a civil trial. Furthermore, the Court of Appeals found Digg's claim was based upon a claim for negligent or false testimony and that no such action existed under Kansas law. The Court of Appeals therefore upheld the trial court's decision.

Fraud and Abuse

1. United States v. Allen, 116 F. Appx. 210, 2004 U.S. App. LEXIS 23304 (Tenth Cir. 2004).

A nurse practitioner who owned and operated a medical clinic was convicted in this case for knowingly submitting false claims to Medicare for the services of a physician who was not working at the clinic when the billings were submitted and was not involved in any way in the care of the patients. The nurse practitioner had submitted five claims, totaling $2,675.64, for medical services "incident to" a physician's services when the physician had not even begun working at the clinic at the time. Evidence showed that other false claims beyond those identified in the indictment had been submitted. Upon appeal, the court concluded that sufficient evidence existed to establish that the defendant had knowingly submitted a false claim.

2. Anderson v. Thompson, 311 F. Supp. 2d 1121 (D. Kan. 2004).

Plaintiff was a former hospital Chief Executive Officer who was convicted of conspiracy and aiding and abetting in violation of the medical anti-kick-back statute which was previously upheld in a prior case. In response to the conviction, the defendant, the Secretary of the U.S. Department of Health and Human Services, excluded plaintiff under 42 U.S.C. § 132a-7(a)(1) from participation in Medicare, Medicaid, and all other federal health care programs for fifteen (15) years. Plaintiff sought judicial review from this decision. Plaintiff argued there was not substantial evidence supporting the administrative law judge's finding that plaintiff had caused hospital employees to order and pay bribes to two doctors in exchange for their referral of Medicare patients to the hospital. Plaintiff argued the ALJ failed to prove that his conviction, for conspiracy to commit kick-back violations, and offering and paying illegal remunerations was a "program-related" conviction. The Court found plaintiff's arguments were nothing more than a veiled collateral attack on his conviction, which was improper and beyond the scope of judicial review in the instant forum. The Court was not persuaded that the practice of paying remuneration in exchange for doctors' referral of patients was not abusive, even if plaintiff demonstrated patients were provided with quality care at competitive and reasonable prices. Plaintiff's acts resulted in a loss to Medicare because the hospital included the bribes or "consulting fees" paid to the doctors in its annual cost reports that were submitted for Medicare reimbursement. The Court held that fifteen (15) years was a reasonable period of exclusion, based on the nature, length, and effect of plaintiff's acts.

HIPAA

Kansas Attorney General Opinion No. 04-21 (July 7, 2004).

Attorney General was asked to determine whether entities covered under HIPAA are required to disclose protected health information (PHI) when called to testify in care and treatment proceedings, and whether if the testimony is required by the K.S.A. 60-427(c) exception to the physician-patient privilege, does this apply only to physicians and not to nurses or other medical staff? The Attorney General concluded that under 45 CFR § 164.512(a), a health care provider is permitted to disclose PHI contained in a report of a court-ordered evaluation required by K.S.A. 59-2961 if the disclosure is limited to evidence that is relevant and material to the question of whether the proposed patient is a mentally ill person subject to care and treatment. He concluded that the report and testimony of a court-ordered examiner is not subject to the requirement of satisfactory assurances or a qualified protective order as delineated in 45 CFR § 164.512(e). However, he ultimately concluded that a subpoena issued by the clerk is not the same as a subpoena signed by the court or judge and therefore satisfactory assurances must be received before disclosing PHI. Thus, the court-ordered evaluator can disclose the report and/or testify by virtue of the order for the evaluation, but other health care providers must have satisfactory assurances in order to disclose PHI.

Immunity

1. Garcia v. Estate of Arribas, 2005 U.S. Dist. LEXIS 5305 (D. Kan. March 31, 2005).

Plaintiff, decedent's daughter, filed a personal injury action against defendant company alleging that the company's employees were negligent in the medical and emergency services that they rendered to decedent and that the company was liable for the decedent's injury and death. The company filed for summary judgment, contending that they were entitled to the immunity afforded to emergency medical workers under K.S.A. 65-6124. Decedent became seriously ill and needed to be transferred to another hospital. The company, an air ambulance service, was hired to make the transfer via helicopter. While the transfer was in progress, decedent suffered a cardio-pulmonary arrest and the company's employees were unable to successfully intubate her. Decedent passed away the following day. In earlier proceedings, the court had acknowledged that the company's employee's were immune from liability for ordinary negligence under K.S.A. 65-6124. However, the court concluded that the Kansas Supreme Court would not interpret the statute to provide immunity from liability to the company simply for being an employer. The Court reasoned that the immunity conferred under the statute was personal to the emergency medical workers and therefore was not designed, nor could be used to benefit, their employer. The Court therefore denied the company's motion for summary judgment.

2. Holt v. Wesley Med. Ctr., 277 Kan. 536, 86 P.3d 1012 (2004).

Plaintiffs, parents and child, sued defendants, various medical entities, for medical malpractice. The United States District Court for the District of Kansas certified a question of law that arose from the Kansas Legislature's retroactively including the corporation within the statutory definition of "health care provider," thus relieving it of vicarious liability pursuant to K.S.A. 40-3403(h). The Kansas Supreme Court found that the parents' tort action for negligence against the corporation constituted a vested property right. The corporation had argued that the challenged legislation presented an exception to the general prohibition against retroactive legislation but impaired substantive rights. The Court found however that the retroactive amendment at issue, K.S.A. 40-3414(i)(1), was not part of a general provision of codification of the law concerning health care provider insurance, 2001 Kan. Session Laws 204. The Court held instead that the amendment at issue was one of several provisions, all having to do with non-profit corporations organized to administer graduate medical education programs, that were inserted into the already existing Act concerning health care provider insurance. The effect of the amendments was to make the existing health care provider insurance scheme applicable to an additional category of providers rather than to alter the existing scheme. Thus, the Court held that the retroactive provisions of K.S.A. 40-3414(i)(1), deprived the parents of a vested property right and violated the Kansas Constitutional Bill of Rights, § 18, but it did not violate the Equal Protection Clause of the Kansas Constitution, Bill of Rights § 1.

3. Holt v. Wesley Med. Ctr., No. 00-1318-JAR, 2004 U.S. Dist. LEXIS 13800 (D. Kan. July 19, 2004).

After receiving the answer to the certified questions from the Kansas Supreme Court in Holt v. Wesley Med. Ctr., 277 Kan. 536, 86 P.3d 1012 (2004), the federal trial court subsequently denied the motion for summary judgment concerning the immunity purportedly granted by K.S.A. 40-3401(f) and K.S.A. 40-3403(h). The Court held that since the Kansas Supreme Court had found the retroactive application of the statutes unconstitutional, the education center was vicariously liable for the actions of any employed physicians. The Court further held that plaintiffs presented sufficient facts suggesting that the education center and the medical center possessed an equal right of control over the residency program such that summary judgment was improper on the issue of joint enterprise. However, the Court found that the education center owed one of its defendant employees no contractual duty, and because plaintiffs have offered no expert testimony, the negligence claim for inadequate training and supervision failed as a matter of law. The Court further held that the plaintiffs were not intended third-party beneficiaries under the agreement between the education center and the medical center and therefore had no standing to sue on the employment agreement.

Jurisdiction

1. Diepenbrock v. Merkel, 33 Kan. App. 2d 97, 97 P.3d 1063 (2004).

Plaintiff's decedent suffered a heart attack while a patron of Harrah's Prairie Band Casino and received medical treatment from non-Indians who were employed by Potawatomi Tribal Emergency Services (PTES). The Douglas County district court dismissed plaintiff's suit, holding that it lacked subject matter jurisdiction because all events occurred on tribal property, and decided the case should be transferred to the Tribal Court of the Prairie Band Potawatomi Nation (PBPN). The Court of Appeals affirmed, holding that Tribal Court has exclusive jurisdiction over all civil matters arising on the reservation.

Jury Instructions

1. Combs v. Patterson, 106 P.3d 515, 2005 Kan. App. LEXIS 173 (Kan. Ct. App. Feb. 25, 2005) (Unpublished Opinion).

The Court of Appeals accepted Dr. Patterson's interlocutory appeal from the trial court's grant of a new trial after the trial Court concluded it gave an erroneous jury instruction in instructing the jury that a doctor is presumed to have carefully and skillfully treatment the patient. PIK recommends that the jury should not be instructed on any presumption of due care; since negligence is never presumed, neither should due care be presumed. Such an instruction could mislead a jury into thinking that plaintiff's burden is greater than a preponderance of the evidence. Apparently recognizing that the presumption of due care is a proper statement of law, the Court pointed out that under K.S.A. 60-414(b) a presumption ceases to exist when evidence is introduced which would support a finding that the presumed fact does not exist. Thus, since there was testimony that Dr. Patterson breached the standard of care, the Court concluded that the presumption of due care disappeared and the instruction should not have been given.

2. Wamsley v. Abay, 107 P.3d 456, 2005 Kan. App. LEXIS 220 (Kan. Ct. App. Mar. 11, 2005) (Unpublished Opinion).

Donna Wamsley filed suit against Dr. Abay claiming negligence in the diagnosis and treatment of decedent's brain tumor. Among the jury instructions given was PIK Civ. 3d 123.11, which allows a specialist to use his best judgment in the selection of the choice of treatment, consistent with the skill and care which other specialists in the same field would use in similar circumstances, where there are different courses of treatment available. Wamsley objected to this instruction, but did not specify any ground for her objection. The Court of Appeals noted that a party must object to a jury instruction stating distinctly the grounds for the objection, unless the instruction is clearly erroneous. However, the Court found the giving of this instruction was not clearly erroneous. It was coupled with an instruction based on PIK Civ. 3d 123.12 as approved by Hibbert v. Ransdell, 29 Kan. App. 2d 328, 26 P.3d 721 (2001).

Labor Relations

1. Nat'l Labor Relations Bd. v. CHS Cmty. Health Sys., Inc., No. 02-9569, U.S. App. LEXIS 17919 (Tenth Cir. Aug. 23, 2004).

A Union had filed unfair labor practices charges against the Hospital, alleging it violated 29 U.S.C. § 158(a)(1) and (5) of the National Labor Relations Act. After hearing, the National Labor Relations Board (NLRB), affirmed the decision and issued a Cease and Desist Order against the employer. The Union was not able to reach a collective bargaining agreement with the employer. Eventually, the employer refused to attend negotiation sessions and unilaterally changed its absence and sick leave policies. The Union then filed the complaint concerning the employer's refusal to bargain and its unilateral alteration of the policies. The administrative law judge found that the Union represented a majority of the employees, that the employer had unreasonably refused to bargain with it, that the policy changes violated § 158(a)(5), and that the refusal to provide the Union with a copy of the new policy manual also violated that section. The employer argued it should have been allowed to present documentation concerning its employee turnover rate, which, it contended, supported its good faith belief that the Union had lost its majority status. The Court found that substantial evidence supported the NLRB's findings and orders, that the employer was aware that a petition to decertify the Union had been signed by only six (6) out of one hundred ten (110) employees, and even if its employee turnover rate was high, the employer did not have the reasonable, good faith belief that the Union was no longer the employees' bargaining representative.

Licensure

Kansas Attorney General Opinion No. 04-15 (June 29, 2004).

K.S.A. 65-1436(d) allows the Kansas Dental Board to assess a fine in connection with disciplinary action. The board's actual costs related to the fine assessment and enforcement are to be credited to the dental board fee fund, and the balance is credited to the State General Fund. K.S.A. 74-1405(f), however, requires twenty percent (20%) of each such deposit to be credited to the State General Fund and the balance to be credited to the dental board fee fund. There the costs of the disciplinary action exceed the amount of the fine; however, the Kansas attorney general opined that pursuant to K.S.A. 65-1436(d), the full amount of the monies collected to the board should accrue to the dental board fee fund.

1. Caporale v. Kan. Behavioral Sciences Regulatory Bd., 107 P.3d 1262, 2005 Kan. App. LEXIS 252 (Kan. Ct. App. Mar. 18, 2005) (Unpublished Opinion).

The Kansas Behavioral Sciences Regulatory Board denied Caporale's application for licensure as a Ph.D. Psychologist. Caporale is a licensed Master's level Psychologist and received his doctoral degree in Clinical Psychology through Walden University's on-line distance learning program. Walden's doctoral psychology program is not accredited by the American Psychological Association and does not meet the academic requirements of K.A.R. 102-1-12. Although disagreeing with the Board's construction and application of two of the four bases on which the application was denied, the Court of Appeals concluded that the Board properly construed and applied two other requirements and did not err in denying licensure, nor was the Board's decision arbitrary or capricious.

2. State ex rel. State Bd. of Healing Arts v. Thomas, 33 Kan. App. 2d 73, 97 P.3d 512 (2004).

The Kansas Board of Healing Arts (BOHA) sought to enjoin Steven Thomas from attaching to his name the M.D. designation indicating that he engages in the treatment or diagnosis of human disease, illness, and injury. Thomas was licensed by the Kansas Dental Board as a dentist, and he received a Doctor of Medicine degree from a university in St. Johns, Antigua, West Indies. The degree program consisted of eight weeks on campus in Antigua, but Thomas did not complete a post-graduate training program nor did he complete any part of either the Federation Licensing Examination or the United States Medical Licensing Examination. He had not been licensed by the BOHA to practice any branch of the healing arts. The Kansas Court of Appeals held that BOHA's jurisdiction extended to unlicensed persons holding themselves out to the public as persons licensed to practice medicine. The Court further held that Thomas' use of the M.D. designation on business cards and in patient records and communications to hospitals is misleading, noting that the public associates the M.D. designation with years of medical study and training. The Court reversed the district court's conclusion of law that no public harm exists from using the M.D. designation, and ordered an injunction to be issued.

3. United States v. Nelson, 383 F.3d 1227 (Tenth Cir. 2004).

Defendant appealed from a decision of the United States District Court which convicted him of conspiracy to distribute controlled prescription drugs outside the usual course of professional practice (sale of prescription drugs over the internet) and conspiracy to engage in a monetary transaction which criminally deprived property (money laundering). Defendant was a physician who operated an internet pharmacy that sold hydrocodone over the internet. Defendant contended there was insufficient evidence to support his conviction on either conspiracy count because there was no evidence of a conspiracy. The Court held that there was sufficient evidence to support defendant's conspiracy conviction because the government presented the testimony of fifteen different witnesses and established the existence of an operation, in which defendant willfully participated, to distribute controlled prescription drugs over the internet and to hide the proceeds of those sales. The Court further held that the district court did not err in instructing the jury as to the conspiracy to distribute count because a medical practitioner was unauthorized to dispense a controlled substance if he acted either without a legitimate medical purpose or outside the usual course of professional practice.

Loss of Consortium

1. Wood v. Midwest Div. MMC, No.CIV.A.04-2063-GTV, 2005 U.S. Dist. LEXIS 515 (D. Kan. Jan. 11, 2005).

Plaintiffs, an injured patient and her spouse, filed a medical malpractice action against defendants, a medical center, two physicians, and an osteopath, alleging that the patient suffered a stroke because of the defendants' negligent care. A physician filed a motion to dismiss the claims alleged by the spouse in which he claimed to have suffered the loss of society, companionship, consortium, support and services of his lawful wife and that he had occurred and would continue to occur substantial medical expenses. The Court held that under K.S.A. 23-205, the spouse could not maintain a separate action for the loss of consortium and similar items because those claims were recoverable by the injured patient for the benefit of the spouse. However, the Court held the spouse was entitled to maintain a separate action for expenses that were incurred in relation to the patient's medical care and treatment. The Court found K.S.A. 23-205 did not preclude this type of claim for damages by the spouse and the spouse could remain a named party to seek damages for the patient's present and future medical expenses, but not for loss consortium damages.

Medicare/Medicaid Issues

1. Brewer v. Schalansky, 278 Kan.734, 102 P.3d 1145 (2004).

In 1994, Regina Brewer added her two nieces, whom she had raised, as joint tenants with rights of survivorship on Southwestern Bell Telephone Company's stock which Brewer inherited on her husband's death several years earlier. The stock could not be sold or otherwise disposed of without the consent of each joint tenant. In 2003, Brewer sought Medicaid benefits, which SRS denied, finding that Brewer had non-exempt available resources in excess of regulatory limits because of these stocks which were then worth approximately $33,000. Brewer petitioned for judicial review of the agency's action, and the district court reversed SRS's decision. The district court concluded that Brewer was not obligated to file a lawsuit seeking partition of the stocks because the cost of such a lawsuit would likely exceed any benefit Brewer would receive as a result and because such a lawsuit was unlikely to succeed. On appeal by SRS, the Kansas Supreme Court reversed the district court and reinstated SRS's decision. Under regulations adopted by the Secretary of SRS, an applicant with non-exempt available resources in excess of $2,000 is not eligible for public medical assistance. The Kansas Supreme Court noted that Brewer maintained an ownership interest and had the authority or power to liquidate her share. Although the partial transfer was outside the 3-year look-back period under Kansas regulations, the Court held that the stock was available as a "resource" since Brewer maintained an ownership interest. The Court further held that the need to force a partition sale of the stock, since Brewer's nieces would not consent to a sale, did not create a legal impediment so as to make the asset otherwise unavailable. Justice Davis dissented in a detailed opinion.

2. Jenkins v. Schalansky, 104 P.3d 1024, 2005 Kan. App. LEXIS 77 (Kan. Ct. App. Jan. 28, 2005) (Unpublished Opinion).

Plaintiffs attempted to file a class action § 1983 claim against the Secretary of SRS on behalf of applicants for home-based Medicaid long-term care services who had been placed on a waiting list. The named plaintiffs applied for the program in the summer of 2002, and in November 2002 the waiting list was frozen. After filing the proposed class action but before the class was certified, the named plaintiffs began receiving the services that they requested. The district court found that since the plaintiffs' individual claims were moot, they were no longer members of the class they purported to represent; therefore, the district court dismissed the entire action. The Court of Appeals affirmed.

3. Sanders v. Kan. Dep't. of Soc. and Rehab. Servs., 317 F. Supp. 2d 1233 (D. Kan. 2004).

Plaintiff had chronic progressive multiple sclerosis, quadriplegia, seizure disorder, and pulmonary dysfunction, in addition to other physical conditions and sued defendants, SRS and officials in their individual capacities, alleging violations of the rehabilitation act, 29 U.S.C. § 780 et seq., among other things. Plaintiff participates in the Kansas Medicaid program and in a home and community based waiver service. The programs approved under the subsection are waived for many of the Medicaid strictures including that medical assistance be made available to all individuals equally. The case had its geneses when the agency denied the plaintiff's request for an airway clearance vest. The basis for the agency's denial was disputed. The agency and officials alleged the denial because the vest was not shown to be medically necessary for the plaintiff. Plaintiff chose not to appeal the agency decision in state court and instead pursued filing a federal action. On defendant's motion to dismiss, the Court found that the ex parte exception to immunity inapplicable to the individual's claim brought against the individual officers in their official capacities. Accordingly, the Court found that immunity protected all defendants against all claims but the individual § 4.05 of the Rehabilitation Act, 29 U.S.C. § 794, as to which the state waived its immunity. The Court deferred to the institutional judgment of the agency in determining the appropriate level of benefits to be distributed in relation to the severity of the plaintiff's handicap. Because the individual did not contend that he met the essential eligibility requirements for the receipt of the service he sought, but alleged that the eligibility requirement should be changed, the Court held he failed to state a claim under the rehabilitation act.

Prescription Drugs

Kansas Attorney General Opinion No. 05-11 (March 30, 2005).

Evaluating the Governor's endorsement of I-SaveRx Program, under which consumers may purchase drugs from Canada, England, and Ireland, Attorney General held that the State is perilously close to violating the Federal Food, Drug and Cosmetic Act by causing consumers to violate laws against importation or re-importation of drugs, and found that the State may in fact be violating this law. However, General Kline held that the State was not violating the Kansas Pharmacy Act or the State Food, Drug, and Cosmetic Act, nor was the State subject to exposure under the Kansas Consumer Protection Act. General Kline further held that physicians are not likely to be exposed to liability for the assistance provided to consumers in obtaining prescription drugs through this avenue.

Sale of Property

Kansas Attorney General Opinion No. 04-25 (September 13, 2004).

Attorney General Phill Kline set out a procedure under which a county could purchase an ambulance, lease it to Prairie Band Potawatomi Nation, and ultimately sell it to Prairie Band Potawatomi Nation after the 5-year lease period ends.

Service of Process

1. Brown v. Baeke, No. 04-2291-JWL, 2005 U.S. Dist. LEXIS 1730 (D. Kan. Feb. 2, 2005).

After refiling a case previously dismissed, Brown v. Baeke, No. 02-2532-DJW, 2004 U.S. Dist. LEXIS 20098 (D. Kan. May 27, 2004) (cited above), plaintiff filed a medical malpractice complaint against defendants and did not serve defendants within the 120 day time period allowed by Fed. R. Civ. P. 4(m). Plaintiff filed a motion for extension of time to effect service. One of the defendants responded and filed a motion to dismiss the case for insufficiency of service of process. Counsel for plaintiff conceded that the circumstances for the failure of service did not rise to the level of good cause, but counsel simply did not realize that service had not been effected. The Court found that a permissive extension of time was warranted in the matter. The Court noted that if the case was dismissed for failure of service, the action would all in likelihood be barred under K.S.A. 60-513. The case had already been dismissed without prejudice on one occasion and plaintiff would probably not be able to claim the benefit of the saving statute, K.S.A. 60-518, for a second refiling. The Court acknowledged that the extension of time would cause some prejudice to defendants, but the Court found that the greater prejudice to plaintiff, precluding adjudication of plaintiff's claim on the merits, weighed in favor of granting the extension of time for filing.

Statute of Limitations

1. Anderson v. Collier, 92 P.3d 1147, 2004 Kan. App. LEXIS 681 (Kan. Ct. App. July 9, 2004) (Unpublished Opinion).

Plaintiff was an amputee who went to seek a new prosthetic in the summer of 1999. He was finally fitted for a new prosthetic device in the fall of 1999. However, on November 9, 1999, plaintiff discovered a bleeding wound at the end of his amputation stump and contacted defendant the next morning to tell him about the wound and described he could feel metal protruding through the inner lining of the prosthesis. He was then seen by several physicians concerning the wound over the next several months. On August 22, 2001, plaintiff visited with a physician who told him as a result of the massive infection and subsequent use of prosthetic devices the amputation stump had become friable and would never heal properly and that the plaintiff would likely have to undergo a re-amputation procedure. In September 2001, plaintiff underwent a revision procedure whereby his stump was surgically shortened by approximately five (5) inches. On May 29, 2002, plaintiff filed suit against the defendants. Defendants moved for summary judgment based upon the statute of limitations which the trial court granted. On appeal plaintiff argued that his cause of action was not accrued under K.S.A. 60-513(b) "until the act giving rise to the cause of action first causes substantial injury" and the "substantial injury" is the equivalent of permanent injury which he first discovered August 22, 2001. The Court of Appeals held that while "substantial injury" is sometimes referred to synonymously with "permanent injury" there are many other cases that equate "substantial injury" with "actionable injury." The Court of Appeals determined the distinguishing factor was that the permanent injury cases involved a consensual medical procedure with an expected period of recovery where the fact of injury may not be reasonably ascertainable until the patient fails to recover within the normal time frame. However, in plaintiff's case the bleeding wound was not an expected result of using the prosthetic device, plaintiff would not consent to being cut by the defective prosthetic, nor did he need to wait a necessary recovery period to learn that he had been injured by the defect. Therefore, the Court of Appeals held that the extent to which his injury would heal or the permanency of damage caused did not effect the commencement of the statute of limitations and he knew immediately upon seeing the wound that he had sustained some damage. Plaintiff had also been told within a month of discovering the wound that it was caused by an improperly fitted prosthetic. When plaintiff was unable to drive at the end of December 1999 as a result of his injuries the Court of Appeals held that a reasonable person would have ascertained that they had suffered a actionable injury, thereby starting the limitations clock.

2. Hallam v. Mercy Health Ctr. of Manhattan, Inc., 278 Kan. 339, 97 P.3d 492 (2004).

Plaintiffs sued defendant Hospital on a myriad of claims related to the harvesting of organs from the decedent based upon an alleged defective consent. Upon certified question from the United States District Court for the District of Kansas pursuant to K.S.A. 60-3201, the Kansas Supreme Court addressed the question of what the statute of limitations in Kansas was on a claim for outrage and intentional infliction of emotional distress. The Court held that the tort of outrage is the same as the tort of intentional infliction of emotional distress under Kansas law which is subject to the two year statute of limitations under K.S.A. 60-513(a) rather than the one year statute of limitations under K.S.A. 60-514(b). The Supreme Court also clarified its prior decision in Johnston v. Farmers Alliance Mut. Ins. Co., 218 Kan. 543, 545 P.2d 312 (1976), finding that the decision in Johnston correctly stated the statute of limitations on a tort of outrage claim has two years.

3. Bradley v. Val-Mejias, 379 F.3d 892 (Tenth Cir. 2004).

In 1981, plaintiff had received a pacemaker to treat a cardiac rhythm disturbance known as sick sinus syndrome. In 1988 plaintiff experienced a problem with his pacemaker and consulted with the defendant and the defendant reprogrammed the pacemaker. Four years later, in September of 1992, defendant replaced plaintiff's pacemaker, but reused the ventricle leads from the old pacemaker. In August of 1993, plaintiff again experienced problems with his pacemaker after being involved in a car accident and the generator of the pacemaker was replaced, but the ventricle leads were left untouched. In February of 1997, plaintiff was admitted to a hospital emergency room for heart palpitations, lightheadedness and left arm numbness, but no heart or pacemaker problem was diagnosed at that time. In March 1997, plaintiff consulted about his health problems with defendant who diagnosed him as having an inner ear problem. This diagnosis was repeated by the defendant during visits with plaintiff in May and June 1997. On April 29, 1998, plaintiff testified before an Administrative Law Judge in order to receive Social Security Disability benefits that he suffered from dizziness, numbness and had been feeling generally poor and that in his opinion his symptoms were caused by his pacemaker. One week later, plaintiff consulted with a cardiologist who traced his symptoms potentially to his pacemaker and performed more programming adjustments and later follow-up. On September 3, 1998, plaintiff was admitted to the Emergency Room where it was determined that the ultimate cause of his illness was a fractured ventricle lead on his pacemaker. Plaintiff filed suit against defendant Dr. Val-Mejias and the clinic for which he worked on September 1, 2000. The district court had entered summary judgment against plaintiff based upon the statute of limitations, finding that by May 1998, based upon his testimony to the Administrative Law Judge and his consultation with the cardiologist, he knew that the problems were with his pacemaker and that Dr. Val-Mejias had misdiagnosed him. Thus, the undisputed evidence showed that plaintiff knew of the fact of injury in May of 1998 and that he did not file suit until September 1, 2000, more that two years after May of 1998; therefore, his medical malpractice claims were time-barred. The Tenth Circuit held that both his medical malpractice claims and fraudulent concealment claims were barred by the two-year statute of limitations because the fact of injury was reasonably ascertainable in May 1998.

Subject Matter Jurisdiction

1. Barragan v. St. Catherine Hosp., 339 F. Supp. 2d 1141 (D. Kan. 2004).

Plaintiffs filed a medical malpractice action against defendants which arose from a child's birth in which the plaintiffs alleged the child suffered severe brain and central nervous system injury and personal injury to the mother as a result of the defendant's negligent care. Plaintiff's initial complaint properly alleged diversity jurisdiction, because the mother and the father were citizens of Mexico and defendants resided in Kansas. Upon the filing of the amended complaint, diversity jurisdiction no longer existed, because plaintiffs added claims asserted by the child, who was a child resident. However, the Court possessed federal question jurisdiction, and, as such, the court enjoyed supplemental jurisdiction over plaintiff's pendent state law claims pursuant to 28 U.S.C. § 1367. Because the parties by stipulation dismissed plaintiff's federal claims under the FTCA, the court had to determine whether to exercise its supplemental jurisdiction over plaintiff's remaining state law claims. If the Court exercised supplemental jurisdiction, all those claims arising out of the events surrounding the child's birth would have to be litigated in a lawsuit, thereby advancing the objectives of judicial economy and convenience of the parties. The Court found that when all federal claims had been dismissed, supplemental state claims would ordinarily be dismissed without prejudice. However, whether to exercise supplemental jurisdiction is within the district court's sound discretion and that discretion to try state law claims in the absence of any federal claims should only be exercised in those cases in which judicial economy, convenience and fairness would be served by retaining jurisdiction. The Court found declining supplemental jurisdiction would have simply created an additional lawsuit filed by the child in state court against the same defendants and the Court therefore exercised its discretion to retain supplemental jurisdiction over plaintiffs state law claims.

2. Hicks v. Leeson, No. CIV.A.03-2481-CM, 2004 U.S. Dist. LEXIS 20282 (D. Kan. May 28, 2004).

Plaintiff brought an action asserting claims of medical malpractice and unlawful detainment against defendant, an attorney for the employees of a treatment provider, for alleging forcing him to take injections of medications for an illness that he claimed he did not have and for violations of his civil rights. defendants moved to dismiss for lack of subject matter jurisdiction. The Court noted that the action arose from a civil commitment case pending in probate court. The Court found that the patient did not cite to any federal civil rights statute or constitutional provision that he contended had been violated by defendants. His claim for malpractice could not be construed as a civil rights claim upon which subject matter jurisdiction could be based under 28 U.S.C. § 1343 and he asserted no allegations that any defendant took any action under color of state law. The Court found that although he was receiving his treatment because of his involvement with the probate court, the fact that a state procedure, include a civil commitment procedure, was involved did not render the actions of private individuals "state actions" for purposes of 42 U.S.C. § 1983. Finally, the Court held that an attorney engaged in proceedings on behalf of client was not acting under color of state law.

3. Von Loh v. Synthes, Inc., No. 03-1371, 2004 U.S. App. LEXIS 15964 (Tenth Cir. Aug. 3, 2004) (Unpublished Opinion).

Plaintiff patient sought review of a decision of the district court which granted a motion to dismiss filed by defendants, a manufacturer, two physicians, their employer, and a health care corporation, for lack of subject matter jurisdiction. The patient filed a medical malpractice action in the district court against two physicians who performed a spinal fusion surgery on the patient. The physicians used screws made by the manufacturer to stabilize the spine. The plaintiff's complaint raised state law claims related to the alleged medical malpractice against the health care defendants, and products liability and breach of warranty claims against the manufacturer. The district court dismissed the matter because there was no federal jurisdiction under 28 U.S.C. § 1331. The patient raised in his reply to the motion to dismiss that he had a federal claim against the manufacturer under the Medical Device Amendments of 1976. The Tenth Circuit affirmed the dismissal because there is no question of federal law appearing on the face of the patient's amended complaint. The patient did not assert anywhere in his complaint that any of his claims arose under federal law. The district court lacked jurisdiction for the products liability claim and also properly declined to exercise supplement jurisdiction over the remaining state law claims.

Taxation

1. Main Line, Inc. v. Bd. of Reno County Comm'rs, 98 P.3d 303, 2004 Kan. App. LEXIS 1065 (Kan. Ct. App. Oct. 1, 2004) (Unpublished Opinion).

Main Line converted to a non-profit corporation in 1998. Main Line owned medical equipment, land, and buildings, all of which were leased to Hutchinson Clinic, P.A., a Kansas for-profit corporation which provided health care services. Main Line's only source of operating revenue is the rental income from the Clinic. Main Line appealed the Board of Tax Appeals classification of Main Line's rental real estate as commercial, rather than as property owned and operated by a non-profit corporation, seeking the more preferable tax rate for non-profit operations. The Court of Appeals upheld BOTA's decision that Main Line's leasing of the land to the Clinic did not constitute an operation of the land. The agency noted that the lease required the Clinic to pay the taxes and opined that Main Line's discretion to enforce the lease provision was not tantamount to operating the land. BOTA observed that the triple-net lease provision would give the benefit of the lower tax rate to the Clinic, which was responsible for paying the property taxes, but which was not tax exempt and thus the situation would have contravened the legislative intent.

Kansas Attorney General Opinion No. 04-29 (July 7, 2004).

Attorney General concluded that a proposed increase in the tax levy for funding Rawlins County Health Center under K.S.A. 19-4606 that exceeds six mills may be authorized by resolution of the board of county commissioners if approved by a majority of the voters on such question. However, once approved, the voters do not have the power to mandate an election to determine whether or not to repeal the county hospital levy other than under the terms of the proposal which allow a protest petition to be brought forward in 2008.

AA.

Wrongful Death

1. Natalini v. Little, 278 Kan.140, 92 P.3d 567 (2004).

Natalini sued Little, claiming Little failed to diagnose Natalini's lung cancer. In addition to a claim for his own personal injuries, Natalini also claimed damages for his family as a result of his anticipated premature death. Natalini brought this wrongful death claim to avoid the otherwise harsh effect of the statute of repose for medical malpractice lawsuits, which requires a lawsuit alleging medical negligence to be brought not more than four (4) years after the date of the alleged negligence. Since Natalini was expected to survive beyond the 4-year anniversary of the negligence, but not much longer, Natalini attempted to bring the wrongful death action himself since his family would be otherwise barred by the statute of repose after his death. The Kansas Supreme Court held that Natalini could not recover for his own wrongful death. Although his family members would qualify at the time of his death as heirs at law entitled to seek recovery in a wrongful death suit, they would be prevented from bringing such action because of the statute of repose. Since Natalini would be precluded from suit more than four years after the negligence, so too was his family precluded.

2. Wayne v. The Dermatology Clinic, 2005 Kan. App. LEXIS 302, (Kan. Ct. App. Apr. 5, 2005) (Unpublished Opinion).

Shannan Wayne obtained a prescription for Accutane from the The Dermatology Clinic to treat an acne problem. The Clinic administered a pregnancy test because of the dangers of Accutane on a fetus. The parties dispute whether the Clinic gave Wayne any instructions regarding whether or not to use the medication before the pregnancy test results were known. Wayne took two Accutane pills before learning her pregnancy test was positive. Due to the risks associated with taking Accutane while pregnant, Wayne decided to terminate the pregnancy. Wayne filed suit claiming wrongful death of the fetus and personal injury to Shannan Wayne. The Court of Appeals followed prior Supreme Court precedent in Humes v. Clinton, 246 Kan. 590, 792 P.2d 1032 (1990) and held that a non-viable fetus is not a "person" under the wrongful death statute and therefore affirmed the district court's grant of summary judgment on this claim. However, the Court of Appeals reversed the district court's dismissal of Wayne's personal injury claim, finding that the surgical termination qualifies as a physical injury sufficient to support a claim for emotional distress.

II.

KANSAS STATUTES

Kansas Statutes

HB 2077 — This bill creates a voluntary cancer drug repository, established by the Board of Pharmacy, for persons wishing to donate cancer drugs of deceased patients. Drugs may be donated at a physician's office, pharmacy, hospital, or non-profit clinic that elects to participate. The bill limits the liability of persons who accept cancer drugs under the program as well as the liability of drug manufacturers whose drugs are donated and dispensed, in certain circumstances.

HB 2086 — A home health agency may conduct an on-site survey at least once every 36 months, modified from prior law which required an on-site survey to be conducted within a 15-month period.

HB 2130 — Patient consent is not required for the exchange of treatment information and confidential communications by and between treatment facilities, correctional institutions, jails, juvenile detention facilities, or juvenile correctional facilities. Under prior law, this information could be shared only by state psychiatric hospitals and community mental health centers.

HB 2147 — Psychiatric evaluation reports of correctional facilities may be disclosed to additional individuals.

HB 2153 — The Secretary of Aging replaces the Secretary of Health and Environment with respect to the reporting and handling of complaints of suspected abuse, neglect or exploitation of residents in adult care homes.

HB 2154 — This bill repeals K.S.A. 65-1627d, K.S.A. 65-1627e, and K.S.A. 65-1627g relating to disciplinary hearings of the Board of Pharmacy.

HB 2155 — Pharmacists may refill certain prescriptions on an emergency basis without the prescriber's authorization, if reasonable efforts to contact the prescriber have failed and if, in the pharmacist's professional judgment, continuation of the medication is necessary for the patient's health, safety, and welfare. The pharmacist is not required to refill a prescription on an emergency basis, and the person prescribing can specifically prohibit emergency refills. Emergency refills are not permitted for any Schedule II drugs or narcotic drugs listed on any schedule of the Uniform Controlled Substances Act.

HB 2156 — The Board of Pharmacy is now authorized to limit, suspend, or revoke the registration of a pharmacy technician on any of the grounds that may be used to take action against a licensed pharmacist. Additionally, the Board of Pharmacy rather than the Legislature now prescribes the ratio of pharmacists to pharmacy technicians through rules and regulations to be adopted.

HB 2160 — This new law establishes a process for selling or transferring a structured settlement agreement to another party. The transferring must provide the payee a statement of the financial terms of the transactions at least three days before the transfer agreement is signed by the payee. The statement must also specify that the payee has the right to cancel the transfer agreement within a 3-day period.

No direct or indirect transfer of structured settlement payments is effective unless the transfer has been approved in advance by a final court order finding (a) the transfer is in the best interest of the payee; (b) the payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer; and (c) the transfer does not contravene any applicable statute or order of any court or government authority.

HB 2178 — This bill amends the Senior Care Act to establish a program of preventative health services to be established and administered by the Secretary of Aging with appropriations made for that purpose.

HB 2203 — Amends K.S.A. 40-19c06 to permit non-profit medical and hospital service corporations to cancel health insurance policies without offering continuation coverage in certain circumstances. It also changes the schedule of tax credits and adds health savings accounts to the employer contributions that qualify for a tax credit in certain circumstances.

HB 2264 — This bill permits the isolation and/or quarantine of individuals with infectious and contagious diseases and requires tuberculosis evaluations for students entering Kansas colleges and universities. Additionally, the term of office for the KDHE Director of Health is four years.

HB 2301 — This bill establishes the Senator Stan Clark Pregnancy Maintenance Initiative Program at KDHE, a program to award grants to not-for-profit organizations to provide services to women which enable them to carry pregnancies to term.

HB 2326 — This bill amends existing law relating to the Kansas Insurance Guarantee Association to clarify covered claims to the extent the claims are payable, to set a bar date for the filing of claims, to clarify the provisions for the exhaustion and offset requirements for claims, and to reclassify priority for claims filed.

HB 2330 — The Radiologic Technologists Practice Act, enacted in 2004, now becomes effective October 1, 2005 rather than July 1, 2005. Statutory dates for other activities related to licensure of Radiologic Technologists are also conformed. Finally, the bill establishes a number of certification requirements and titles for licensed Radiologic Technologists who have specialized training.

HB 2336 — Beginning with the license period commencing June 1, 2008, applicants for an initial Optometry license or license renewal must meet the requirements of and become a therapeutic licensee. Beginning with the license period commencing June 1, 2010, such applicants must meet the requirements for and become both a therapeutic and a glaucoma licensee. Additionally, the definition of oral drugs under K.S.A. 65-1501a is amended to include oral drugs with clinically accepted ocular uses. K.S.A. 75-1505 is amended to allow the interprofessional advisory committee to advise the State Board of Examiners in Optometry about new classes of drugs with ocular uses.

HB 2380 — The Child Rape Protection Act requires any physician who performs an abortion on a minor under age 14 to preserve fetal tissue extracted during the abortion and submit the tissue to KBI.

HB 2387 — This bill changes the procedure when the death of an inmate or prisoner was regularly attended by a licensed physician.

SB 10 — This bill allows students in elementary and secondary schools to self-medicate in accordance with a policy adopted by the school.

SB 27 — The "meth precursor bill" makes single ingredient ephedrine and single ingredient pseudoephedrine in all forms a Schedule V substance. Combination products that contain any amount of ephedrine or pseudoephedrine that are in starch tablet form, as well as gel coated starch based tablets, are also Schedule V. These drugs may not be sold over the counter. Additionally, the name, address, medication information, and date of purchase must be recorded in a log book, and a pharmacist, intern/student, or pharmacy technician must look at the customer's photo identification and initial the a log to keep track of all sales of these medications. No more than 3 packages or containers may be purchased within a 7-day period. Pharmacists are not responsible for monitoring the sales; law enforcement officers may inspect the log books in the course of their investigations.

SB 75 — SB 75 provides immunity from civil lawsuits for manufacturers, producers, sellers, marketers, or advertisers of food based on claims of negligence arising out of weight gain, obesity, or other conditions allegedly caused by the long-term consumption of food.

SB 100 — This bill relates to inspection reports and risk management programs for adult care homes.

SB 115 — Investigation of reports of abuse, neglect, or exploitation of certain adults may now be completed within ninety (90) working days, extended from thirty (30), if conducting the investigation within thirty (30) working days would interfere with an ongoing criminal investigation.

SB 116 — The Secretary of SRS may seek an injunction to restrain or prevent the operation of any private psychiatric hospitals, community mental health centers, or facilities for the mentally ill, mentally retarded, or other disabled persons that are operating without a license. Additionally, the Secretary of SRS is authorized to license and monitor group homes and similar residential settings.

SB 121 — Charitable organizations must file additional registration information with the Secretary of State's Office in order to solicit funds in Kansas. Organizations that receive contributions in excess of $500,000, increased from existing law of $100,000, are required to file a copy of the Federal Income Tax Return and an audited financial statement.

SB 152 — K.S.A. 80-2520 will now allow for an alternative method of disposal of property valued at $10,000 or more. Hospital districts also may now secure mortgages on hospital property. The alternative method for disposal of property which may be adopted by resolution by a hospital board must include the following methodology: (a) notification of the public of the property to be sold; (b) description of the property to be sold; (c) the method of sale, including by fixed price, negotiated bid, or otherwise; and (d) public notice inserted in one publication in a newspaper of general circulation in the hospital's taxing district. Procedures for disposal of property may differ for the sale of real property and for the sale of personal property. Finally, the