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Bonura v. Sifers

May 2, 2008

MARIAN BONURA, AS THE ADMINISTRATOR OF THE ESTATE OF MARION BONURA; MARIAN BONURA, INDIVIDUALLY AND AS HEIR OF THE ESTATE OF MARION BONURA; LUIGI BONURA, INDIVIDUALLY AND AS HEIR OF THE ESTATE OF MARION BONURA; AND FRANK BONURA, INDIVIDUALLY AND AS HEIR OF THE ESTATE OF MARION BONURA, APPELLANTS, DENNIS ESSEN AND THERESA ALLMAN, PLAINTIFFS,
v.
TIMOTHY L. SIFERS, AS THE EXECUTOR OF THE ESTATE OF TIMOTHY M. SIFERS, M.D., AND TIMOTHY M. SIFERS, M.D., P.A., APPELLEES.



Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge.

SYLLABUS BY THE COURT

1. Summary judgment is appropriate when the pleadings and pertinent discovery documents included within the appellate record reveal no material factual dispute which precludes judgment as a matter of law. When addressing a motion for summary judgment, therefore, an appellate court, as well as the trial court, must resolve all facts and reasonable inferences supported by the evidence in favor of the party opposing summary judgment. Nevertheless, in order to survive summary judgment, the party opposing summary judgment must demonstrate a disputed fact issue material to the resolution of the issues raised in the case.

2. A wrongful death action is a statutory creation designed to provide damages to heirs for the wrongful death of a decedent. K.S.A. 60-1901.

3. Under K.S.A. 60-1901, an action for wrongful death must be premised upon an underlying cause of action the decedent would have been able to bring if he or she had survived. Therefore, a variety of theories may support a wrongful death action. Nevertheless, regardless of the nature of the underlying claim, a wrongful death action is subject to a 2-year statute of limitations. K.S.A. 60-513(a)(5).

4. Generally, the limitations period for a wrongful death claim starts when the fact of injury is reasonably ascertainable. Moreover, the fact of injury generally means the date of death unless the information necessary to determine the fact of death or negligence was either concealed, altered, falsified, inaccurate, or misrepresented.

5. Under K.S.A. 60-1801, a cause of action for personal injury to a person survives the death of that person. Such an action, which is personal to the decedent, may be brought on behalf of the decedent's estate by a personal representative.

6. K.S.A. 60-513(a)(4)(c) provides a 2-year limitations period for a medical malpractice claim and allows for tolling if the injury is not reasonably ascertainable until some later time.

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

Affirmed.

Before BUSER, P.J., GREEN and CAPLINGER, JJ.

Plaintiffs Marian Bonura (Mrs. Bonura), individually and as the administrator of the estate of Marion Bonura (Mr. Bonura), Luigi Bonura, and Frank Bonura appeal the trial court's decision granting summary judgment in favor of defendants Timothy L. Sifers, as the executor of the estate of Timothy M. Sifers, M.D., and Timothy M. Sifers, M.D., P.A. The plaintiffs contend that the trial court erred in refusing to toll the applicable statute of limitations for their claims alleging wrongful death, medical malpractice, fraud, and violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. In addition, the plaintiffs challenge the trial court's ruling that the KCPA does not apply to a healthcare provider. Finding no reversible error, we affirm.

On November 13, 2000, Mr. Bonura viewed a television news report about a new weight-loss surgical procedure offered in the Kansas City area by Dr. Sifers. The news report called the procedure a "duodenal switch" and stated that Dr. Sifers was the only surgeon in the metropolitan area who performed the procedure. Mr. Bonura researched the duodenal switch procedure on the internet and became excited about the possibility of losing weight without dieting or exercise. The internet resources included in the record refer to the procedure alternately as "biliopancreatic diversion with duodenal switch" or simply "duodenal switch."

Some of Mr. Bonura's family members expressed reservations to Mr. Bonura about the surgical procedure, recalling Mr. Bonura's problems with blood clots during an earlier surgery. Nevertheless, Mr. Bonura contacted Dr. Sifers about the weight-reduction surgery in December 2000. Mr. and Mrs. Bonura visited Dr. Sifers on January 8, 2001, for a surgical consultation.

During the consultation, Dr. Sifers explained three types of weight-loss surgeries, utilizing diagrams to demonstrate the differences. The surgical option recommended by Dr. Sifers was called a "duodenal switch." According to Mrs. Bonura, Dr. Sifers failed to review Mr. Bonura's medical history and to discuss any potential health risks or complications resulting from the surgery. In response to a specific inquiry by Mrs. Bonura, Dr. Sifers stated that Mr. Bonura's blood clotting history posed no danger. At the end of the consultation, Mr. Bonura scheduled surgery for January 15, 2001.

On January 15, before the surgery, Mr. Bonura signed a consent form which characterized the surgical procedure as a "duodenal switch." The hospital admission form also indicated that the scheduled operation was for a "duodenal switch." In contrast, the report summarizing the operation indicated that Dr. Sifers had performed a "bilipancreatic [sic] diversion."

Because Mr. Bonura developed breathing problems, he was placed on a respirator and, following surgery, was taken to the intensive care unit. A black liquid began to ooze out of Mr. Bonura's incision, as the result of a staph infection. Mr. Bonura stayed in the intensive care unit for 8 days. After the respirator was removed, Mr. Bonura was moved from the intensive care unit.

The following morning, January 26, 2001, Mr. Bonura died. The death certificate listed pulmonary embolism resulting from morbid obesity as the cause of death. Mrs. Bonura was not at the hospital when she received a phone call from Dr. Sifers. After that day, Mrs. Bonura never spoke with Dr. Sifers. Nevertheless, Mrs. Bonura did request Mr. Bonura's medical records. Mrs. Bonura, however, denied reviewing the medical records. On the other hand, Luigi examined the records and contacted an attorney within a few months of Mr. Bonura's death.

Nearly 3 years after Mr. Bonura's death, a reporter from The Pitch contacted Mrs. Bonura for an interview concerning Mr. Bonura's surgery by Dr. Sifers. The reporter told Mrs. Bonura that other patients of Dr. Sifers had not received the duodenal switch procedure as they had requested. On February 26, 2004, the reporter published her article entitled, "The Deepest Cut," relating the account of Mr. Bonura's interest in weight-loss surgery and accusing Dr. Sifers of fraudulently promising the duodenal switch procedure but actually performing a biliopancreatic diversion procedure.

On November 1, 2004, the plaintiffs filed their first petition, which is not included in the record on appeal. Because Dr. Sifers had died, the trial court approved the substitution of Timothy L. Sifers as the executor of the doctor's estate. The plaintiffs then filed an amended petition, alleging three claims for medical negligence: (1) Dr. Sifers negligently performed a biliopancreatic diversion procedure rather than the authorized duodenal switch procedure; (2) Dr. Sifers failed to warn Mr. Bonura of the potential risks and complications attending the surgery; and (3) Dr. Sifers negligently conducted the actual weight-reduction surgery performed. The petition also raised a claim for wrongful death arising out of the same allegations of negligence and claims for fraud and violations of the KCPA.

As damages personal to Mr. Bonura, the Estate alleged that Mr. Bonura suffered (1) intra-abdominal and subcutaneous wounds, blood loss, ventilation problems, and pulmonary emboli; (2) various post-surgical complications; (3) pain, fever, abdominal swelling, mental anguish, and emotional distress; (4) a loss of enjoyment of life; and (5) a loss of income. Mr. Bonura's heirs claimed damages for (1) mental anguish, bereavement, loss of society, and loss of companionship; (2) loss of services, attention, filial care, and protection; (3) loss of financial support; (4) pain, mental anguish, and emotional distress; (5) medical expenses as the result of a prolonged hospitalization; (6) funeral expenses; (7) loss of enjoyment of life; and (8) loss of income.

The defendants' answer raised multiple affirmative defenses, including the statute of limitations. On November 23, 2005, the defendants moved for summary judgment, arguing, in part, that the plaintiffs' claims were barred by the applicable statutes of limitations. The plaintiffs countered with motions to strike the defendants' motion for summary judgment and to equitably estop the defendants from raising the affirmative defense of the statute of limitations.

On January 30, 2006, the trial court filed its memorandum decision granting summary judgment to the defendants with respect to the wrongful death, medical malpractice, fraud, battery, and KCPA claims related to the death of Mr. Bonura. Essentially, the trial court ruled that the causes of action were reasonably ascertainable when Mr. Bonura died and, therefore, the commencement of the limitations period was not tolled.

Did the Trial Court Correctly Determine That the Plaintiffs' Claims Were Barred by the Applicable Statutes of Limitations?

Summary judgment is appropriate when the pleadings and pertinent discovery documents included within the appellate record reveal no material factual dispute which precludes judgment as a matter of law. When addressing a motion for summary judgment, therefore, this court, as well as the trial court, must resolve all facts and reasonable inferences supported by the evidence in favor of the party opposing summary judgment. In order to survive summary judgment, however, the party opposing summary judgment must demonstrate a disputed fact issue material to the resolution of the issues raised in the case. Williamson v. Amrani, 283 Kan. 227, 230, 152 P.3d 60 (2007).

Here, the trial court's decision rested primarily upon application of the applicable statutes of limitations. Once a defendant has established a prima facie showing that a particular claim was filed outside the limitations period prescribed by statute, the plaintiff bears the burden of demonstrating facts justifying the tolling of the limitations period in order to survive summary judgment. Underhill v. Thompson, 37 Kan. App. 2d 870, 875, 158 P.3d 987, rev. denied 285 Kan. ___ (November 6, 2007).

A. Wrongful Death

A wrongful death action is a statutory creation designed to provide damages to heirs for the wrongful death of a decedent. K.S.A. 60-1901; see also Mason v. Gerin Corp., 231 Kan. 718, 721, 647 P.2d 1340 (1982) ("[A] wrongful death action . . . is for the exclusive benefit of the heirs, and allows them to recover damages accruing after death for such things as loss of support, companionship and mental anguish."). Under K.S.A. 60-1901, an action for wrongful death must be premised upon an underlying cause of action the decedent would have been able to bring if he or she had survived. Therefore, a variety of theories may support a wrongful death action.

Regardless of the nature of the underlying claim, a wrongful death action is subject to a 2-year statute of limitations. K.S.A. 60-513(a)(5). Generally, the limitations period starts when the "fact of injury" is "reasonably ascertainable." Moreover, the "fact of injury" generally means the date of death. See Davidson v. Denning, 259 Kan. 659, 678, 914 P.2d 936 (1996) ("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."). Nevertheless, the commencement of ...


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