Alysia R. Tillman and Storm Fleetwood, Appellants,
Katherine A. Goodpasture, D.O., Appellee. Office of Attorney General Derek Schmidt, Intervenor.
BY THE COURT
we review a motion for judgment on the pleadings, we assume
the facts alleged in the petition are true.
Determining a statute's constitutionality is a question
of law subject to unlimited de novo review. The party
attacking the constitutionality of a statute has the burden
of proof to show the statute is unconstitutional. The
appellate courts presume statutes are constitutional and must
resolve all doubts in favor of a statute's validity.
Courts must interpret a statute in a way that makes it
constitutional if any reasonable construction would maintain
the Legislature's apparent intent.
Section 5 of the Kansas Constitution Bill of Rights preserves
the right to a jury trial as the right existed at common law
when our Constitution was adopted.
Kansas Supreme Court recognized wrongful birth as a new tort
in Arche v. United States of America, 247 Kan. 276,
798 P.2d 477 (1990), not an extension of an already existing
claim for medical malpractice. The new tort of wrongful birth
fashioned in Arche in 1990 was based on public
policy that sprang into being in 1973 with Roe v.
Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973),
and could not have existed in 1859 just because the tort of
medical malpractice existed in 1859.
Section 5 only applies to those causes of action recognized
in 1859. Thus, Section 5 is not implicated in this case, and
the Legislature was within its power to enact K.S.A. 2013
Section 18 of the Kansas Constitution Bill of Rights
provides: "All persons, for injuries suffered in person,
reputation or property, shall have remedy by due course of
law, and justice administered without delay." Section 18
only applies to causes of action existing at common law when
the Kansas Constitution was adopted.
K.S.A. 2013 Supp. 60-1906 is constitutional.
from Riley District Court; John F. Bosch, judge.
R. Johnson, David R. Morantz, and Paige L. McCreary, of
Shamberg, Johnson & Bergman, Chtd., of Kansas City,
Missouri, and Stanley R. Ausemus, of Stanley R. Ausemus,
Chartered, of Emporia, for appellants.
J. Denning and Jacob E. Peterson, of Clark, Mize &
Linville, Chartered, of Salina, for appellee Katherine A.
C. Clark, assistant solicitor general, and Dwight R.
Carswell, assistant solicitor general, for intervenor Office
of Attorney General Derek Schmidt.
Schroeder, P.J., Gardner, J., and Burgess, S.J.
Kansas Legislature is vested with setting the public policy
of our state. Even though some may disagree with that public
policy, we must accept that policy unless it conflicts with
our Constitution. On appeal, Alysia R. Tillman and Storm
Fleetwood challenge the denial of their cause of action,
first recognized by our Kansas Supreme Court in Arche v.
United States of America, 247 Kan. 276, 798 P.2d 477
(1990). In 2013, our Legislature passed K.S.A. 60-1906,
stating no cause of action exists in Kansas for wrongful
birth of a child. The district court granted Dr. Katherine A.
Goodpasture, D.O.'s motion for judgment on the pleadings.
The district court found K.S.A. 2013 Supp. 60-1906 was
constitutional, finding Section 5 and Section 18 of the
Kansas Constitution Bill of Rights did not protect this cause
of action since wrongful birth was not a cause of action
recognized in 1859 when our Constitution was adopted. We
agree with the district court. K.S.A. 2013 Supp. 60-1906 is
constitutional since a cause of action for wrongful birth was
unavailable when our Constitution was adopted and thus does
not implicate Sections 5 or 18 of the Kansas Constitution
Bill of Rights. We affirm.
and Fleetwood filed a wrongful birth action against Dr.
Goodpasture resulting from the birth of their daughter, Baby
A. They alleged Dr. Goodpasture failed to diagnose severe
structural abnormalities and defects in the fetus' brain.
In utero, Baby A was subsequently diagnosed with
schizencephaly and is alleged to be severely and permanently
neurologically, cognitively, and physically handicapped.
and Fleetwood alleged Dr. Goodpasture's failure to
diagnose appropriately the structural abnormalities and
defects denied them the right to make an informed decision on
whether to terminate the pregnancy and, had they been
informed of the physical, neurological, and cognitive
defects, they would have terminated the pregnancy. Tillman
and Fleetwood also alleged K.S.A. 2013 Supp. 60-1906 violated
Section 5 and Section 18 of the Bill of Rights by denying
them their right to trial by jury and their right to remedy
by due course of law. They sought damages over $75, 000 and a
determination K.S.A. 2013 Supp. 60-1906 was unconstitutional.
Goodpasture moved for judgment on the pleadings contending
K.S.A. 2013 Supp. 60-1906 barred Tillman and Fleetwood's
cause of action. Tillman and Fleetwood responded, arguing
K.S.A. 2013 Supp. 60-1906 was unconstitutional. The State
moved to intervene to defend the constitutionality of K.S.A.
2013 Supp. 60-1906. The district court heard argument on the
motion for judgment on the pleadings and granted the
State's motion to intervene. After the hearing, the
district court allowed supplemental briefing.
receipt of the supplemental briefing, the district court
granted Dr. Goodpasture's motion for judgment on the
pleadings. It found Arche, which recognized wrongful
birth as a new cause of action in Kansas in 1990, required
proof of two additional elements beyond the elements
necessary to prove ordinary negligence. As a result, the
district court found wrongful birth was a new cause of action
that did not exist when the Kansas Constitution was adopted
in 1859, and thus K.S.A. 2013 Supp. 60-1906 did not implicate
Section 5 or Section 18 of the Bill of Rights.
this matter comes to us from the district court's grant
of Dr. Goodpasture's motion for judgment on the
pleadings. In this posture, we ...