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Sleeth v. Sedan City Hosp.

Supreme Court of Kansas

February 7, 2014


Review of the judgment of the Court of Appeals in an unpublished opinion filed February 3, 2012.

Appeal from Chautauqua District Court; FREDERICK WILLIAM CULLINS, judge.



1. K.S.A. 2012 Supp. 12-105b(d) requires anyone bringing a claim against a municipality under the Kansas Tort Claims Act to provide that municipality with prior written notice setting out the specific facts and circumstances giving rise to the claim. Notice is a prerequisite to filing an action against a municipality.

2. K.S.A. 2012 Supp. 12-105b(d) provides that substantial compliance with its provisions and requirements is sufficient to constitute valid notice of a tort claim against a municipality. Within this statute's context, substantial compliance means providing the essential matters necessary to assure every reasonable statutory objective is met.

3. The statutory objectives of K.S.A. 2012 Supp. 12-105b(d) are to advise the proper municipality of the time and place of the injury, to give that municipality an opportunity to ascertain the character and extent of the injury sustained, and to allow for the early investigation and resolution of claim disputes.

4. K.S.A. 2012 Supp. 12-105b(d) provides a municipality 120 days to investigate and review a claim before a lawsuit may be filed, unless the municipality denies the claim earlier. This is a statutory condition precedent. A court lacks subject matter jurisdiction over a prematurely filed lawsuit.

G. Thomas Harris, of Harris Law Office, of Sedan, argued the cause and was on the brief for appellants.

Blake Hudson, of Hudson & Mullies, L.L.C., of Fort Scott, argued the cause was on the briefs for appellees.

Teresa L. Watson and David L. Cooper, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, were on the brief for amici curiae Kansas Association of Defense Counsel and Kansas Association of Counties.

BILES, J. LUCKERT, J., not participating. MORITZ, J., not participating. DANIEL D. CREITZ, District Judge, assigned.[1]


[298 Kan. 854] Biles, J.

In this wrongful death case against a municipal hospital and its employee, we must resolve widely conflicting opinions by the lower courts regarding whether written notice of the claim was given to the hospital as required before suit was filed. See K.S.A. 2012 Supp. 12-105b(d). The district court dismissed the lawsuit for lack of jurisdiction based on its determination that plaintiffs failed to comply with the statute. A fractured Court of Appeals panel reinstated the claim, but the panel majority disagreed as to the rationale for that outcome in Sleeth v. Sedan City Hospital, 268 P.3d 506, 2012 WL 402018 (Kan. App. 2012) (unpublished opinion). We granted review and now reverse the Court of Appeals on the issue subject to our review, affirming the district court's dismissal for lack of jurisdiction.

At issue is whether one or more letters to the hospital's administrator and an insurance carrier representative substantially complied with the statute as to content and manner of delivery. We have narrowed the issues somewhat and hold that substantial compliance with K.S.A. 2012 Supp. 12-105b(d) is not achieved when a claimant's notice fails to provide any statement of monetary damages. We hold further that the provision in K.S.A. 2012 Supp. 12-105b(d) giving a municipality 120 days to investigate and review a claim is a statutory condition precedent to filing a lawsuit and that a claimant's premature filing of a lawsuit leaves a court without subject matter jurisdiction.

In this case, even if we assume plaintiffs substantially complied with K.S.A. 2012 Supp. 12-105b(d) by May 2, 2010, which is the earliest date they provided the hospital with any statement of damages, the district court properly dismissed their case because they prematurely filed it.

Factual and Procedural Background

The tragic facts underlying this wrongful death claim are not dispositive to the issue involved. For our purposes, it is sufficient to understand that the case arose after the death of Christopher J. Johnson, a patient at Sedan City Hospital. His parents, Scott and Linda Sleeth, allege David Short, a hospital employee, punctured [298 Kan. 855] Johnson's bowel while inserting a feeding tube, causing his death on August 7, 2008. The Sleeths sued the hospital and Short.

The district court found that Sedan City Hospital was a municipality as defined by K.S.A. 2012 Supp. 12-105a(a) because it was owned by the City of Sedan, Kansas. This meant the wrongful death claim was subject to the notice requirements of K.S.A. 2012 Supp. 12-105b(d) (not amended since 2004; claim arose in 2008). See K.S.A. 75-6115(a)(2) (the Kansas Tort Claims Act is applicable to claims against a hospital owned by a municipality and the employees thereof alleging a health care provider's failure to perform professional services). The district court dismissed the action early in the proceedings, concluding the Sleeths failed to comply with the K.S.A. 2012 Supp. 12-105b(d) notice requirements.

The Sleeths initially argued their claim arose out of contract, rather than tort. Both lower courts rejected that argument. See Sleeth, 268 P.3d 506, 2012 WL 402018, at *4 (an injured party may not proceed on a contract theory under a factual scenario that depicts negligent conduct to avoid notice requirements). The Sleeths have not sought review of that issue, so we do not consider it. See Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 172, 298 P.3d 1120 (2013) ( " party aggrieved by a decision of the Court of Appeals on a particular issue must seek review in order to preserve the matter for Kansas Supreme Court review" ); Supreme Court Rule 8.03(g)(1) (2013 Kan. Ct. R. Annot. 74).

The Sleeths contend here that they actually or substantially complied with K.S.A. 2012 Supp. 12-105b(d) through a letter to the hospital administrator or a series of letters sent to the hospital administrator and an insurance carrier representative. We review those letters first to frame the issues. We then consider the district court proceedings, the Court of Appeals decision, and our relevant caselaw.

Communications Alleged to Constitute Notice

On February 21, 2010, the Sleeths' attorney sent a letter to Michelle Williams, the Sedan City Hospital administrator, identifying himself as the attorney for the Sleeths in a " wrongful death claim against your hospital and others." The letter threatened suit [298 Kan. 856] if a settlement could not be reached. It requested that Williams " forward this claim, in addition to all medical records relating thereto, to your claims manager or someone with authority to review and settle this matter." It also identified Short as a hospital employee and alleged Johnson died because of Short's negligent insertion of a feeding tube and the hospital staff's negligent failure to detect and repair the punctured bowel in a timely manner. The letter, however, did not include the Sleeths' address or any statement of the monetary damages sought--two content notice requirements expressly identified in K.S.A. 2012 Supp. 12-105b(d)(1) and (5).

On March 8, 2010, Jan Langgard, a medical liability analyst for the hospital's professional liability insurance carrier, responded by letter to the attorney's February 21 letter to Williams. Langgard requested an itemization of damages and enclosed authorization forms required to process the claim. Langgard also wrote that " [a]ny further correspondence regarding this matter should be directed to me."

On March 22, 2010, the Sleeths' attorney returned the forms and promised to provide " an itemization of appropriate damages or loss . . . in the near future."

On May 2, 2010, the Sleeths' attorney submitted another letter to Langgard specifying damages totaling $1,183,000 for " purposes of settlement only." Those damages included $900,000 for economic injury calculated from lost monthly disability benefits over a life expectancy of 50 years, $250,000 for " pain and suffering, grief and bereavement, ...

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