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Tillman v. Goodpasture

Court of Appeals of Kansas

June 15, 2018

Alysia R. Tillman and Storm Fleetwood, Appellants,
v.
Katherine A. Goodpasture, D.O., Appellee. Office of Attorney General Derek Schmidt, Intervenor.

         SYLLABUS BY THE COURT

         1. When we review a motion for judgment on the pleadings, we assume the facts alleged in the petition are true.

         2. 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.

         3. 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.

         4. The 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.

         5. 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 Supp. 60-1906.

         6. 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.

         7. K.S.A. 2013 Supp. 60-1906 is constitutional.

          Appeal from Riley District Court; John F. Bosch, judge.

          Lynn 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.

          Dustin J. Denning and Jacob E. Peterson, of Clark, Mize & Linville, Chartered, of Salina, for appellee Katherine A. Goodpasture, D.O.

          Bryan C. Clark, assistant solicitor general, and Dwight R. Carswell, assistant solicitor general, for intervenor Office of Attorney General Derek Schmidt.

          Before Schroeder, P.J., Gardner, J., and Burgess, S.J.

          Schroeder, J.

         The 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.

         FACTS

         Tillman 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.

         Tillman 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.

         Dr. 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.

         Upon 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.

         Procedurally, 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 ...


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