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August 25, 2017 Digests

Posted By Administration, Monday, August 28, 2017

 

Kansas Supreme Court 

  

 

Civil

 

DUTY—NEGLIGENCE—TORTS
RUSSELL V. MAY
SEDGWICK DISTRICT COURT— COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART—DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART—CASE REMANDED
NO. 111,671— AUGUST 25, 2017

FACTS: Russell discovered a lump in her breast in 2008. Dr. Goering, her primary care physician, sent Russell for diagnostic imaging. The physicians who viewed the images felt that the mass was benign and sent Russell back to Dr. Goering. Russell's obstetrician recommended that Russell have a biopsy to put her mind at ease, but Russell did not follow up. A few years later there were signs that the lump was growing, so Russell again called Dr. Goering, who ordered diagnostic testing. At that time a biopsy was performed and cancer was discovered. Russell filed suit against Dr. Goering plus two other physicians who provided care. The district court granted Dr. Goering's motion for judgment as a matter of law but denied the motion as to the other two doctors. A jury found that neither of those doctors was at fault. The court of appeals affirmed the district court's grant of the motion for judgment as a matter of law and the Supreme Court granted a petition for review.

ISSUES: (1) Grant of motion for judgment as a matter of law; (2) admission of expert testimony

HELD: Russell presented sufficient evidence to show that Dr. Goering owed a duty to meet the standard of care. Russell and Dr. Goering had a physician-patient relationship. And there was sufficient evidence presented to show that Dr. Goering breached the appropriate standard of care and that a reasonable jury could conclude that this breach was a proximate cause of Russell's delayed diagnosis. There is no evidence that the district court's grant of the motion for judgment as a matter of law was harmless. The disputed answers given by the expert were ambiguous, and there is no reasonable probability that the assumed error affected the verdict against Dr. May. 

STATUTES: K.S.A. 60-250(a), -260(a), -261; K.S.A. 60-404

 

criminal 

 

appeals—constitutional law—criminal procedure
state v. tappendick
saline district court—affirmed; court of appeals—affirmed
no. 109,272—august 25, 2017

FACTS: Tappendick convicted in 2011 of offenses committed in 2008.  Sentence imposed included lifetime registration under Kansas Offender Registration Act (KORA). For first time on appeal, Tappendick argued the KORA registration requirement violated the Ex Post Facto Clause because KORA required only a 10-year registration period in 2008. Court of appeals concluded this issue was not properly preserved, rejecting Tappendick’s reliance on two exceptions for considering the issue for first time on appeal. Tappendick filed petition for review, alleging court of appeals incorrectly ruled he could not raise this claim for first time on appeal. 

ISSUE: Preservation of issue on appeal

HELD: The petition for review failed to challenge the panel’s stated reasons for concluding that Tappendick did not satisfy the exceptions’ requirements. Panel’s decision to not consider the ex post facto claim is affirmed.  

STATUTES: K.S.A. 2016 Supp. 22-4906(d)(3); K.S.A. 22-4901 et seq.

 

 

Kansas Court of Appeals 

 

Civil

 

ADMINISTRATIVE LAW; WORKERS COMPENSATION
VIA CHRISTI HOSPITALS V. KAN-PAK LLC
WORKERS COMPENSATION BOARD - REVERSED
NO. 116,692 – AUGUST 25, 2017

FACTS: Pinion was burned while working for Kan-Pak LLC and was treated at Via Christi Hospital. Although Pinion's treatment cost over $1 million, Kan-Pak's insurance carrier paid much less than that to Via Christi. The 2010 fee schedule for workers compensation introduced the "stop-loss method" that was meant to be applied to particularly costly services. That fee schedule persisted in 2011, but an addition was made which instructed that providers should be reimbursed using either the stop-loss method or the traditional method, whichever was least. It is unclear how or when the rule was amended, and insurers who inquired were told to ignore it. But Kan-Pak's insurer would not, claiming that this was a properly published regulation that must be followed. Both the hearing officer and Board found that they could not alter the written language of the regulation, and this appeal followed.

ISSUE: Is the language in the 2011 regulations enforceable

HELD: The Division of Workers Compensation has a statutory obligation to adopt rules and regulations which establish a fee schedule. Every step of the process must follow the statutory rules. The 2011 amendment to the fee schedule that introduced the "whichever is least" language did not follow the required procedure; there was no cost study to gauge the impact of the addition of the statement. Because the rule process here did not follow proper procedure and the rule change was apparently an accident, the court was not required to enforce it.

STATUTES: K.S.A. 2016 Supp. 44-510i(a), -510i(b), -510i(c), -510i(d), 77-415, -416(b)(1); K.S.A. 2010 Supp. 44-510j; K.S.A. 1990 Supp. 44-510(a)(1)

 

CONTEMPT—DUE PROCESS
IN RE PATERNITY OF S.M.J. V. OGLE
DOUGLAS DISTRICT COURT—VACATED AND REMANDED

NO. 115,776—AUGUST 25, 2017

FACTS: Jacobs and Ogle had a child together and then separated. After the separation, Ogle persisted in making disparaging remarks about Jacobs, both in front of his child and to the community at large. Ogle's remarks did not stop even after Jacobs was given sole custody of the child and Ogle's parenting time was restricted to supervised visits and monitored phone calls. After Ogle shared remarks about Jacobs with her employer, Jacobs lost her job. She asked the district court to hold Ogle in contempt for violating its order not to share accusations about her with third parties. Ogle was ordered to appear at a contempt hearing but he failed to do so despite knowing about the hearing. The district court held the hearing in Ogle's absence and found Ogle was in contempt. The judge ordered monetary sanctions plus a 30-day jail term that would be suspended if Ogle paid. Ogle appealed. 

ISSUE: (1) District court's ability to hold the hearing 

HELD: Statutory provisions did not allow the district court to hold a hearing without Ogle. When Ogle did not attend the hearing the district court should have either attempted to secure his presence with a phone call or issued a bench warrant for his arrest. Because the hearing violated Ogle's due process rights, the district court's order was vacated.

STATUTES: K.S.A. 2016 Supp. 20-1204a, -1204(b), -1204a(b), -1204a(c)

 

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