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Dreiling v. Davis

January 18, 2008

RAYMOND DREILING, INDIVIDUALLY, AND AS ADMINISTRATOR OF THE ESTATE OF LORETTA DREILING, DECEASED, APPELLANT,
v.
W. DUNCAN DAVIS, M.D., KENNETH AUSTIN, M.D., AND GOODLAND REGIONAL MEDICAL CENTER OF GOODLAND, KANSAS, APPELLEES.



Appeal from Sherman District Court; GLENN D. SCHIFFNER, judge.

SYLLABUS BY THE COURT

1. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

2. The burden of pleading and proving the applicability of the affirmative defense of statute of limitations rests on the defendant; the plaintiff bears the burden of proving facts sufficient to toll the statute of limitations.

3. This court has unlimited review of the district court's interpretation and application of K.S.A. 60-513 to uncontroverted facts.

4. Negligence, wrongful death, and medical malpractice actions must be brought within 2 years, unless the fact of injury is not reasonably ascertainable until some time after the initial act, in which case the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party. In no event shall such an action be commenced more than 4 years beyond the time of the act giving rise to the cause of action.

5. The term "reasonably ascertainable," as applied in 60-513(b) and (c) in a wrongful death case, suggests an objective standard based on an examination of the surrounding circumstances. Inherent in the words "to ascertain," is "to investigate." Reasonably ascertainable does not mean actual knowledge. The fact of injury in a wrongful death action means the fact of death. The limitations period should start on the date of death unless the information from which the fact of death or negligence can be determined was either concealed, altered, falsified, inaccurate, or misrepresented. The fact of death should be a starting point for inquiry. The wrongful death plaintiff is charged with constructive knowledge of information that is available through a reasonable investigation of sources that contain the facts of the death and its wrongful causation.

6. Summary judgment is not proper where there is a genuine issue of fact as to the time when the applicable statute of limitations commences to run. Under the circumstances shown in this appeal, reasonable minds could differ as to when the 2-year statute of limitations would begin to run, and summary judgment should not have been granted.

The opinion of the court was delivered by: Marquardt, J.

Dismissed in part; reversed and remanded in part.

Before MARQUARDT, P.J., LEBEN, J., and KNUDSON, S.J.

Raymond Dreiling, individually, and as administrator of the estate of Loretta Dreiling, appeals the grant of summary judgment in a medical malpractice wrongful death case. We dismiss in part, and reverse in part and remand for further proceedings.

On February 25, 2002, Dr. Duncan Davis performed a laparoscopic cholecystectomy (gallbladder removal) on 70-year-old Loretta at Goodland Regional Medical Center of Goodland, Kansas (Goodland Regional). Dr. Kenneth Austin, Loretta's long-time doctor, assisted Dr. Davis in the surgery.

On March 1, 2002, Loretta died. Dr. Davis issued a death certificate on March 11, 2002, stating that Loretta's cause of death was "acute/fulminant liver failure," with a secondary diagnosis of nodular cirrhosis. Raymond testified that "[t]he funeral director told us that an autopsy probably would not be helpful" and no autopsy was performed at that time.

A month after Loretta's death, in April 2002, Raymond spoke with his attorney about Loretta's death. In May 2002, Raymond contacted a law firm and asked them to investigate Loretta's death; however, a month later, that law firm declined to pursue a claim. Four and one-half months after Loretta's death, another attorney wrote that he and his associate were unable to determine ...


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