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Hajda v. University of Kan. Hosp. Auth.

Court of Appeals of Kansas

July 31, 2015

NINA EVA HAJDA, Appellant,
v.
UNIVERSITY OF KANSAS HOSPITAL AUTHORITY, d/b/a THE UNIVERSITY OF KANSAS HOSPITAL, d/b/a UNIVERSITY OF KANSAS MEDICAL CENTER; GARY A. JOHNSON, M.D.; EMILY RANGEL, M.D.; RHONDA JOHNSON, Ph.D.; EVELYN REYNOLDS, M.D.; RACHEL VAN HORN, M.D.; and NANCY E. HAMMOND, M.D., Appellees

Page 2

Appeal from Wyandotte District Court; CONSTANCE M. ALVEY, judge.

SYLLABUS

1. K.S.A. 2014 Supp. 60-203(a) states: " A civil action is commenced at the time of: (1) Filing a petition with the court, if service of process is obtained or the first publication is made for service by publication within 90 days after the petition is filed, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff; or (2) service of process or first publication, if service of process or first publication is not made within the time specified by paragraph (1)."

2. Under K.S.A. 2014 Supp. 60-203(b), if service of process or first publication purports to have been made but is later adjudicated to be invalid due to an irregularity in form or procedure or a defect in making service, the action is still commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days of the adjudication. The court may extend the initial 90-day window by 30 days upon a showing of good cause.

3. When a new party is identified in an amended petition, the date of service controls when the action is commenced pursuant to K.S.A. 2014 Supp. 60-203(a)(2) as to that newly identified party.

4. K.S.A. 2014 Supp. 60-203(b) cannot be used to circumvent the running of the statute of limitations against the newly identified party in the amended petition when no prior service had been attempted on that party.

5. K.S.A. 2014 Supp. 60-203(b) cannot be used to fix the defect of initially trying to sue and obtain service of the wrong party.

6. A plaintiff must have valid service upon a defendant before a default judgment can be granted.

7. A motion for default judgment for a sum in excess of $75,000 must provide notice to " the party against whom relief is sought of the amount of money for which judgment will be taken." K.S.A. 2014 Supp. 60-254(c).

Nina Eva Hajda, appellant, Pro se.

M. Bradley Watson, Scott K. Logan, Jeff K. Brown, Christopher H. Logan, and David M. Tyrrell, of Logan Logan & Watson, L.C. of Prairie Village, for appellees Gary A. Johnson, M.D.; Emily Rangel, M.D.; Rhonda Johnson, Ph.D.; Rachel Van Horn, M.D.; Evelyn Reynolds, M.D.; and Nancy Hammond, M.D. M.D.; Rhonda Johnson, Ph.D.; Rachel Van Horn, M.D.; Evelyn Reynolds, M.D.; and Nancy Hammond, M.D.

Lori D. Dougherty-Bichsel and Janet M. Simpson, of Simpson, Logback, Lynch, Norris, P.A., of Overland Park, for appellee University of Kansas Hospital Authority.

Before SCHROEDER, P.J., GREEN, J., and LARSON, S.J.

OPINION

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Schroeder, J.:

Nina Eva Hajda timely filed this medical malpractice suit against six doctors, the University of Kansas Hospital (the Hospital), and the University of Kansas Medical Center (KUMC). She timely issued summonses on all of the parties, but she failed to obtain valid service. Pursuant to K.S.A. 2014 Supp. 60-203(b) and the district court's order, after the statute of limitations had run, Hajda re-served

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the six doctors and received permission from the district court to amend her petition. In the amended petition, Hajda changed the name of the defendant entities she initially served from KUMC and the Hospital to the Kansas University Hospital Authority (KUHA). K.S.A. 2014 Supp. 60-203(b) extends the time to obtain service if the original attempt at service is determined to be defective due to an irregularity in form, procedure, or a defect in making service. Additionally, if the service is obtained within the statutory deadlines of subsection (b), the service date relates back to the date the petition was filed.

Valid service on the six doctors was subsequently obtained within the statutory time frame of K.S.A. 2014 Supp. 60-203(b), and the service related back to when the petition was filed. However, filing a lawsuit and naming the wrong party is not an irregularity in form or procedure or a defect in making service. K.S.A. 2014 Supp. 60-203(b) cannot be used to extend the time upon which valid service on a party not initially named as a defendant can be obtained. The district court correctly granted KUHA's motion to dismiss.

Hajda also requests that we change the district court judge and/or assign her case's venue to another judicial district. We deny her requests. We affirm in part, reverse in part, and remand for further proceedings.

Facts

Hajda began treatment at the Hospital on December 7, 2010. Following several months of treatment, Hajda consulted an attorney in February 2011 regarding a potential medical malpractice claim against the Hospital and several of Hajda's physicians. On December 12, 2012, Hajda filed a pro se pleading alleging medical malpractice against the Hospital; KUMC; Gary A. Johnson, M.D.; Rhonda Johnson, Ph.D.; Rachel Van Horn, M.D.; Emily Rangel, M.D.; Evelyn Reynolds, M.D.; and Nancy E. Hammond, M.D. On December 17, 2012, Hajda attempted to serve all the defendants by serving a single summons on the office of James Pottorff, general counsel for KUMC. The summons was actually served on Pottorff's administrative assistant, Patrick Phillips.

On August 13, 2013, the district court sent Hajda a letter stating her case was on the dismissal docket for failure to prosecute. On August 26, 2013, Hajda requested an entry of default judgment against the defendants for failure to answer. At the dismissal hearing on August 30, 2013, the district court gave Hajda 60 days to re-serve the defendants.

On October 29, 2013, Hajda filed a motion requesting permission to amend her petition to " correct the misnomer and properly name" KUHA as a defendant, replacing the Hospital and KUMC. Hajda also filed a motion for an extension of time to re-serve the defendants. On November 15, 2013, following a hearing on Hajda's motions, the district court granted her motion to amend her petition to change the name of the defendant from the Hospital and KUMC to KUHA and granted her motion for additional time to serve the defendants.

Hajda filed summonses to serve the defendants on November 20, 2013, and service was obtained on the defendants between November 23, 2013, and December 10, 2013. On December 10, 2013, defense attorney Brad Watson filed a motion to dismiss pursuant to K.S.A. 2014 Supp. 60-212(b)(5) on behalf of the six doctors. KUHA filed a motion to dismiss on December 12, 2013, pursuant to K.S.A. 2014 Supp. 60-212(b)(2) and K.S.A. 2014 Supp. 60-212(b)(6), because the statute of limitations had run before valid service was obtained on KUHA. On January 27, 2014, Hajda filed a request for default judgment against Dr. Van Horn. Hajda then filed a motion for default judgment against Dr. Van Horn on February 11, 2014, for her failure to answer.

On February 13, 2014, the district court held a hearing on the defendants' motions to dismiss. As a preliminary matter in response to Hajda's motion for default judgment against Dr. Van Horn for failure to answer, Watson explained on the record he was the attorney of record for all six doctors and was actually answering on behalf of all six doctors. Following a discussion on whether Dr. Van Horn had been served, the district court clarified its decision would apply

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to all the defendants including Dr. Van Horn and denied Hajda's motion for default judgment.

At the February 13, 2014, hearing, the district court judge summarized based on her recollection what had occurred at the August 30, 2013, dismissal docket:

" At that time, in August, the plaintiff requested an entry of default based on the fact that none of the defendants had answered, and while that dismissal docket is usually not on the record, and in this case wasn't, the Court, without looking at the files or dealing with any statute of limitations issue, directed the plaintiff, or told the plaintiff, that the Court didn't believe she had good service, for the sole reason that the Court knew that KU didn't usually ignore service, number 1.
" Number 2, the Court also knew that . . . it was difficult to get proper service on KU and the doctors, because I know of attorneys that couldn't get correct service on the correct department.
" MS. HAJDA: Entity
" THE COURT: ...

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