Appeal from Wyandotte District Court; ERNEST L. JOHNSON, judge.
SYLLABUS BY THE COURT 1. In a negligence action, summary judgment is generally proper if the only questions presented are questions of law. 2. An appellate court's review of a district court's grant of summary judgment where the facts are uncontroverted, including one based on a statute of limitations defense, is unlimited and de novo. 3. A cause of action for wrongful death accrues on the date of death unless information regarding the fact of death or the wrongful act that caused the death was concealed, altered, falsified, inaccurate, or misrepresented. Crockett v. Medicalodges,
Inc., 247 Kan. 433, 799 P.2d 1022 (1990), which held a wrongful death action accrues at the time of the wrongful act that causes the death, is overruled. 4. In K.S.A. 60-513(c), which controls when a statute of limitations begins to run in a medical malpractice action, the legislature stated an objective standard when it provided that a cause of action accrues at the time of the occurrence of the act giving rise to the cause of action "unless the fact of injury is not reasonably ascertainable." Consequently, the fact a particular patient is incapacitated, which would be a subjective factor, does not affect whether the fact of injury was reasonably ascertainable.
Review of the judgment of the Court of Appeals in 43 Kan. App. 2d 591, 228 P.3d 1092 (2010).
Judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded.
This appeal raises issues regarding when the statute of limitations begins to run in a wrongful death and survival action brought against a physician and hospital. We first determine that a cause of action for wrongful death accrues on the date of death unless information regarding the fact of death or the wrongful act that causes the death was concealed, altered, falsified, inaccurate, or misrepresented. Second, in construing K.S.A. 60-513(c), which controls when the statute of limitations period begins to run in a medical malpractice action, we hold that the legislature stated an objective standard when it provided that a cause of action accrues at the time of the occurrence of the act giving rise to the cause of action "unless the fact of injury is not reasonably ascertainable." Consequently, the fact a particular patient is incapacitated, which would be a subjective factor, does not affect whether the fact of injury was reasonably ascertainable.
FACTS AND PROCEDURAL BACKGROUND
Macie Martin, both individually and as the representative of the estate of her husband, Curley Martin (Curley), filed a lawsuit against defendants Sandip Naik, M.D., and Specialty Hospital of Mid-America (Hospital), in which she raised wrongful death and survival claims based on alleged medical malpractice. Both defendants filed motions for summary judgment in which they argued the statute of limitations barred both causes of action. The relevant facts were uncontroverted for purposes of the motions. In the order granting the defendants summary judgment, the district court made the following findings and conclusions:
On March 31, 2004, Curley, who was diabetic, was admitted to the Hospital under Naik's care. At that time, Curley "was unable to participate in his care" because of his medical condition.
On April 7, 2004, a nurse who was an employee of the Hospital administered insulin to Curley. Martin, who was at Curley's bedside, observed the nurse having difficulty and then heard another nurse say that the nurse who administered the insulin "did not know how to perform that care for him or was struggling to competently perform that care." Curley's condition became more serious, and Martin alleges the Hospital's employees failed to competently assess Curley's condition after the faulty insulin administration and failed to notify Naik of the deterioration in Curley's condition.
Nevertheless, "[t]hese perceived deficiencies did not . . . result in actionable harm until the morning of April 8, 2004, when [Curley's] condition had greatly deteriorated." Curley "suffered irreversible brain damage and other injuries." On April 8, Martin and her daughters had Curley "emergently transferred" to Shawnee Mission Medical Center (SMMC). It is alleged the Hospital and Naik negligently delayed the transfer.
While Curley was at SMMC, a physician told Martin and her family that the Hospital's staff allowed Curley to go into a diabetic coma and essentially killed him. Although Curley's "catastrophic conditions were stabilized at SMMC and he was subsequently moved to at least one other care facility before his death, he remained from April 8, 2004, until his death [on] October 25, 2004, incapacitated."
On the second anniversary of Curley's death, Martin filed suit. After limited discovery, the Hospital and Naik filed motions for summary judgment, arguing that Martin's claims were barred by the 2-year limitation period provided by K.S.A. 60-513(a)(5) and (a)(7).
In granting the Hospital's and Naik's motions, the district court concluded Martin's "causes of action here for medical negligence in the survival action and the wrongful death claim accrued April 8, 2004," the last date on which the defendants' negligence could have occurred and the date on which Curley's injuries were first reasonably ascertainable. Further, the court found a 2-year statute of limitations applied under K.S.A. 60-513(a)(5) and (a)(7). As a result, the court concluded that, unless the statute of limitations was tolled, both the survival and wrongful death claims expired on April 8, 2006, more than 6 months before Martin filed suit. The district court noted there was a potential for tolling because Curley was disabled. Nevertheless, the court concluded that K.S.A. 60-515, the tolling provision relating to disabled parties, would only have extended the limitation period 1 year past Curley's death-to October 25, 2005. Because the tolling provision effectively shortened the limitation period, the district court concluded the tolling provision should not be applied. Consequently, the district court agreed with the Hospital's and Naik's assertions and found that the wrongful death and survival causes of action were barred when this case was filed on October 25, 2006.
Court of Appeals' Decision
The Court of Appeals reversed the district court's order in Martin v. Naik, 43 Kan. App. 2d 591, 228 P.3d 1092 (2010). The court held that neither Martin's wrongful death action nor the survival action was barred by the 2-year limitation period provided by K.S.A. 60-513(a)(5) and (a)(7).
With regard to the wrongful death claim, the Court of Appeals concluded that the basis for Martin's lawsuit did not accrue, and thus the statute of limitations did not begin to run, until Curley's death. Martin's wrongful death action, therefore, was timely because it was filed within 2 years of the death. Martin, 43 Kan. App. 2d at 602.
As to the survival action, the Court of Appeals determined Curley's medical condition rendered him unable to reasonably ascertain the fact of his injury. Consequently, the court considered the disability tolling provision in K.S.A. 60-515. The court concluded:
"[B]ecause Curley could not reasonably ascertain the fact of his injury, his medical malpractice claim (the survival action) did not accrue so as to start the statute of limitations clock running until his death, so the 2-year limitation period of K.S.A. 60-513 did not commence to run at any time during the period of Curley's incapacity. The relevant portion of K.S.A. 60-515, its tolling provision, stops the clock that is running on an accrued but unfiled cause of action. Here, the clock was not running. It had not yet started. There was nothing for the statute to toll." Martin, 43 Kan. App. 2d at 600.
The court held that Naik and the Hospital were not entitled to summary judgment on either claim. Based on its ruling, the Court of Appeals reversed and remanded the case for further proceedings. Martin, 43 Kan. App. 2d at 605.
Naik and the Hospital filed petitions for review, which this court granted. This court has jurisdiction under K.S.A. 20-3018(b) (petition for review).
In a negligence action, summary judgment is generally proper if the only questions presented are questions of law. Thomas v. Board of Shawnee County Comm'rs, 293 Kan. 208, 220-21, 262 P.3d 336 (2011). Here, the district court granted summary judgment to the defendants by applying legal conclusions regarding the application of the statute of limitations to uncontroverted facts. On appeal to the Court of Appeals, neither party contended there was a genuine issue of material fact that precluded summary judgment, leading the Court of Appeals to consider only issues of law under a de novo or unlimited standard of review. Martin, 43 Kan. App. 2d at 593.
In supplemental briefs filed after the petition for review was granted, Martin argues there is a question of fact. She now suggests Curley's injury was not reasonably ascertainable until the physician at SMMC told Martin and other family members of the long-lasting effects of Curley's injury. This point in time-the date on which a reasonable person would have ascertained Curley's injury-is the date on which the statute of limitations began to run, at least according to the defendants and the district court. Hence, this potential question of fact is material. Yet, Martin did not make this contention in her briefs before the Court of Appeals or in her petition for review. Consequently, it is not properly before us. State v. Kelly, 295 Kan. 587, 600, 285 P.3d 1026 (2012) (waiver of issue and preclusion of appellate review can occur by failure to raise issue before lower court, failure to raise issue in appellate brief, or failure to raise issue in petition for review). As such, we accept the district court's use of April 8, 2004, as the date on which the defendants' alleged malpractice was reasonably ascertainable, that is when viewed from an objective standard of a reasonable person. We also note that Martin does not suggest that using this later point in time would make the filing of this action timely if the defendants and district court are correct about the statute of limitations beginning to run on the date a reasonable person-as opposed to an incapacitated person such as Curley- would have ascertained the existence of the injury.
For his part, Naik does not suggest that there are controverted and material facts, but he does suggest that the Court of Appeals erred in applying a de novo standard of review to this case. He contends an appellate court "should be limited to determining whether it was reasonable to grant summary judgment based upon the uncontroverted statements of fact. . . . [R]review should be limited to conclusions of law." For support Naik cites Nicholas v. Nicholas, 277 Kan. 171, 83 P.3d 214 (2004).
Examination of Nicholas reveals that it does not support Naik's invocation of a reasonableness standard of review implying district court discretion. Instead, the Nicholas court stated: "In this case, the material facts are not in dispute. Rather, it is the legal conclusions of the trial court and the Court of Appeals that are at issue. Our review of conclusions of law is unlimited." Nicholas, 277 Kan. at 177. This conclusion is consistent with a long line of cases that establish an appellate court's review of a district court's grant of summary judgment where the facts are uncontroverted, including one based on a statute of limitations defense, is unlimited and de novo. Godley v. Valley View State Bank, 277 Kan. 736, 741, 89 P.3d 595 (2004); Duarte v. DeBruce Grain, Inc., 276 Kan. 598, 602, 78 P.3d 428 (2003); see Kelly v. VinZant, 287 Kan. 509, 514-15, 197 P.3d 803 (2008) (application of statute of limitations).
Naik also contends the Court of Appeals went outside the record to conclude Curley was comatose and then repeatedly referred to his comatose state. See, e.g., Martin, 43 Kan. App. 2d at 598-99. Even if the Court of Appeals' description of Curley's condition was improper, the significant point was that Curley was incapacitated, and Naik does not dispute the district court's determination that Curley was incapacitated from April 8, 2004, until his death.
We, therefore, begin our analysis with five essential and, for purposes of analyzing the district court's summary judgment decision, undisputed facts in mind. Those are: (1) The first date on which there was alleged negligence that caused injury to Curley was April 7, 2004; (2) alleged acts of negligence occurred on April 8, 2004, when there was a failure to properly diagnose Curley's condition and to expediently arrange his transfer to SMMC; (3) the fact of injury was reasonably ascertainable on April 8, 2004; (4) Curley was unable to personally ascertain his injury because he was incapacitated from April 8, 2004, until his death on October 25, 2004; and (5) this wrongful death and medical malpractice survival action was filed by Martin on October 25, 2006.
The controversy in this appeal is how to apply the statute of limitations in K.S.A. 60-513 to those facts. Issues of statutory interpretation and construction raise questions of law reviewable de novo on appeal. Shrader v. Kansas Dept. of Revenue, 296 Kan. ___, Syl. ¶ 1, 290 P.3d 549 (2012); State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012).
The statute of limitations for a wrongful death action is found in K.S.A. 60-513(a)(5). That provision simply states: "The following actions shall be brought within two years: . . . [a]n action for wrongful death." The question of when that time period begins to run is answered by K.S.A. 60-513(b), (c), or (d). K.S.A. 60-513(c) applies in this case because it relates to causes of action arising from alleged medical malpractice. It states:
"A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four years beyond the time of the act giving rise to the cause of action."
Clearly, there are different points in time at which a cause of action could accrue under this subsection, which means that there are different points in time at which the statute of limitations could begin to run. It is equally clear that one of those points in time is the "occurrence of the act giving rise to the cause of action."
What is not clear in a wrongful death action is whether the act that gives "rise" to the cause of action is the death itself or the wrongful act that caused the death. The plaintiff and the Court of Appeals took the position that the cause of action did not arise until the date of Curley's death or, alternatively, that the fact of injury, while previously predictable, was not actually ascertainable until that date. For support, the Court of Appeals primarily relied on Natalini v. Little, 278 Kan. 140, 92 P.3d 567 (2004); Davidson v. Denning, 259 Kan. 659, 914 P.2d 936 (1996); Mason v. Gerin Corp., 231 Kan. 718, 721, 647 P.2d 1340 (1982); and Nesbit v. City of Topeka, 87 Kan. 394, 124 P. 166 (1912). On the other hand, the defendants and the district court took the position that the act giving rise to the cause of action occurred on April 7, 2004, the date of the first act of alleged negligence or, alternatively, on April 8, 2004, when it was reasonably ascertainable by others that Curley had been injured by that negligence. This court's decision in Crockett v. Medicalodges, Inc., 247 Kan. 433, 799 P.2d 1022 (1990), supports this position.
In the face of conflicting decisions by this court, we begin our determination of which line of cases is correct by considering the oldest of these cases-Nesbit. There, we find a clear statement that a wrongful death action accrues at the time of the decedent's death. In Nesbit, the issue was whether a wrongful death action was barred because the City of Topeka had not been timely notified of the accident that eventually caused the death. The City argued notice was required by a statute that declared no person could file suit for damages against a city unless notice of the injury had been given to the city within 4 months of the injury. Neither the injured party nor his surviving spouse had filed a notice within 4 months of the accident that caused the initial injury, and the death that resulted from the injury occurred more than 4 months after the accident. To determine whether the surviving spouse was required to give notice within 4 months of the fatal injury, this court reviewed the wrongful death statutes and, based on the wording of those statutes, concluded:
"The damages recoverable by a widow in such an action are for her loss caused by the death of her husband. A cause of action accrued to him when he was injured. A cause of action accrued to her at his death. [Citations omitted.] She was not the person injured and so was not required to give the notice ...