BY THE COURT
Where an unambiguous written contract controls an employment
relationship, whether one party to the agreement is an
employee or an independent contractor is a question of law
subject to unlimited review.
person having a claim against a municipality or an employee
of a municipality which could give rise to an action brought
under the Kansas Tort Claims Act is required to file a
written notice as provided in K.S.A. 2017 Supp. 12-105b(d).
medical malpractice claim against an employee of a
municipally owned hospital falls under the Kansas Tort Claims
Act even if that employee is a health care provider as
defined in K.S.A. 2017 Supp. 75-6115(c)(3).
Kansas Tort Claims Act and K.S.A. 2017 Supp. 12-105a(h)
specifically exclude an independent contractor from their
definitions of employee, but these same statutes provide a
broad definition of employee as they do not exclude as
employees all persons not specifically listed. These statutes
also do not define independent contractor.
independent contractor has been consistently defined as one
who, in exercising an independent employment, contracts to do
certain work according to his or her own methods, without
being subject to the control of the employer, except as to
the results or product of his or her work. The primary test
used is whether the employer has the right of control and
supervision over the work of the alleged employee and the
right to direct the manner in which the work is to be
performed, as well as the result which is to be accomplished.
It is not the actual interference or exercise of the control
by the employer but the existence of the right or authority
to interfere or control which renders one a servant rather
than an independent contractor.
fact that a municipal hospital has no right to control or
supervise a physician in his or her professional care of an
individual patient is not sufficient, in and of itself, to
create an independent contractor relationship between the
physician and the hospital.
K.S.A. 2017 Supp. 40-3403(h), which abrogated all
hospitals' vicarious liability for physicians in the
medical malpractice context, does not compel a finding that a
physician must be an independent contractor as a matter of
question of whether a physician is an employee or an
independent contractor of a hospital must be determined after
consideration of the totality of the written agreement and
the intent of the parties.
2015 amendments to K.S.A. 12-105b(d), enacted after a
party's claim has accrued but before suit has been
brought, may be retroactively applied provided the party has
a reasonable time to comply with the notice requirements
before the suit is barred.
2015 amendments to K.S.A. 12-105b(d) do not deny equal
protection under the law to medical malpractice victims of
municipally employed physicians as the notice requirements
are rationally related to the legitimate governmental purpose
of giving a municipality notice of a claim against one of its
from Cowley District Court; LaDonna L. Lanning, judge.
Spigarelli, of The Spigarelli Law Firm, of Pittsburg, for
Anthony M. Singer and Matthew P. Sorochty, of Woodard,
Hernandez, Roth & Day, L.L.C., of Wichita, for appellee.
Gardner, P.J., Atcheson and Powell, JJ.
Nash appeals the district court's grant of summary
judgment in favor of Patrick T. Blatchford, M.D., for
Nash's failure to file a notice of claim under K.S.A.
2017 Supp. 12-105b(d). Nash argues the district court erred
because (1) he was not required to file a notice of claim
since Blatchford is an independent contractor of a municipal
hospital and K.S.A. 2017 Supp. 40-3403(h) abrogated a
hospital's vicarious liability in malpractice claims; (2)
if Blatchford is an employee of a municipal hospital, the
district court erred in retroactively applying the 2015
amendments to K.S.A. 12-105b(d) to bar his claim; and (3) the
K.S.A. 2017 Supp. 12-105b(d) notice of claim requirement
denies equal protection under the laws to medical malpractice
victims of physicians employed at municipal hospitals. For
the reasons more fully explained below, we disagree and
and Procedural Background
January 5, 2017, Nash filed a medical malpractice suit
against Blatchford, asserting damages from an alleged
negligently performed surgery in January 2015. After filing
his answer, Blatchford moved for summary judgment, arguing
the district court lacked jurisdiction over Nash's claim
because Blatchford is an employee at a municipal hospital and
Nash was required and failed to file a written notice of
claim under K.S.A. 12-105b(d) before suing him in the
district court. Blatchford attached an affidavit (not
included in the record on appeal), attesting to his
employment status at South Central Kansas Regional Medical
Center (South Central). Blatchford also argued that because
of Nash's failure to comply with the notice requirement
and the expiration of the two-year statute of limitations on
his claim, any later attempt by Nash to refile the claim
after filing a notice of claim was time-barred according to
Gessner v. Phillips County Comm'rs, 270 Kan. 78,
11 P.3d 1131 (2000).
asserted several arguments in response, including-assuming
Blatchford is an employee of South Central-that the 2015
amendments to K.S.A. 12-105b(d) should not apply
retroactively to bar his claim and he need not file a notice
of a claim under K.S.A. 12-105b(d) because K.S.A. 40-3403(h)
abrogated a hospital's vicarious liability for a
doctor's negligence whether the doctor was an employee or
an independent contractor. Finally, Nash argued that because
the parties had not conducted discovery, summary judgment was
premature on whether Blatchford was an employee or an
independent contractor of South Central.
hearing additional argument, the district court ordered the
parties to conduct discovery and to submit supplemental
briefing on Blatchford's employment status. These facts
remained uncontroverted. Blatchford is licensed to practice
medicine as a physician in Kansas. South Central is a
municipally owned hospital subject to K.S.A. 75-6101 et
seq., the Kansas Tort Claims Act (KTCA). Blatchford
entered into a written contract with South Central in 2006
during his residency program and then entered into a new
written contract in 2008 (with a 2010 addendum), which is
still in effect. Nash asserted no claims against South
Central. Between December 2014 and January 7, 2015, Nash
received medical care and treatment from Blatchford.
discovery, the district court granted summary judgment for
Blatchford, holding it lacked jurisdiction to consider
Nash's claim because Blatchford was an employee of South
Central and Nash had failed to file a notice of claim as
required under K.S.A. 2017 Supp. 12-105b(d).
Nash Required to File a Notice of Claim?
standard of review of a district court's grant of summary
judgment is well established:
"'Summary judgment is appropriate when the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, show that
there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of
law.' An appellate court reviewing a district court's
ruling on a motion for summary judgment applies the same
legal standard and, because the motion is considered on
uncontroverted facts and under the same standard as the
district court, reviews the matter de novo as a question of
law, granting no deference to the district court's
judgment. [Citations omitted.]" Cady v.
Schroll, 298 Kan. 731, 734, 317 P.3d 90 (2014).
extent our review requires interpretation of K.S.A. 2017
Supp. 12-105b, or any other relevant statute, this too
"is a question of law subject to de novo review. When
interpreting a statute, the court first attempts to discern
the legislature's intent through the language enacted,
giving common words their ordinary meanings. When statutory
language is plain and unambiguous, the court does not
speculate as to legislative intent, and does not read into
the statute words not readily found there. It is only when
the language is unclear or ambiguous that the court employs
the canons of statutory construction, consults legislative
history, or considers other background information to
ascertain the statute's meaning. [Citations
omitted.]" Whaley v. Sharp, 301 Kan. 192, 196,
343 P.3d 63 (2014).
when various statutory provisions are unambiguous, we may
still construe them in pari materia with a view of
reconciling and bringing the provisions into workable
harmony." Neighbor v. Westar Energy, Inc., 301
Kan. 916, 919, 349 P.3d 469 (2015) (citing Northern
Natural Gas Co. v. ONEOK Field Services Co., 296 Kan.
906, 918, 296 P.3d 1106, cert. denied 571 U.S. 826');">571 U.S. 826
2017 Supp. 12-105b(d) states:
"(d) Any person having a claim against a municipality or
against an employee of a municipality which could
give rise to an action brought under the [KTCA] shall file a
written notice as provided in this subsection before
commencing such action. The notice shall be filed with the
clerk or governing body of the municipality and shall contain
the following: . . . Once notice of the claim is filed, no
action shall be commenced until after the claimant has
received notice from the municipality that it has denied the
claim or until after 120 days has passed following the filing
of the notice of claim, whichever occurs first. A claim is
deemed denied if the municipality fails to approve the claim
in its entirety within 120 days unless the interested parties
have reached a settlement before the expiration of that
period. No person may initiate an action against a
municipality or against an employee of a
municipality unless the claim has been denied in whole
or part. Any action brought pursuant to the [KTCA] shall be
commenced within the time period provided for in the code of
civil procedure or it shall be forever barred, except that, a
claimant shall have no less than 90 days from the date the
claim is denied or deemed denied in which to commence an
action." (Emphasis added.)
notice of claim requirement under K.S.A. 2017 Supp.
12-105b(d) is a jurisdictional prerequisite to suing a
municipality under the KTCA. Sleeth v. Sedan City
Hospital, 298 Kan. 853, Syl. ¶ 1, 317 P.3d 782
that it is undisputed that Nash failed to give proper notice
under K.S.A. 2017 Supp. 12-105b, we must determine the
existence of two conditions precedent to the notice
requirement: First, whether Nash's claims fall under the
KTCA; and second, whether Blatchford is an employee of South
Central. If both are answered in the affirmative, then Nash
was required to give notice under K.S.A. 2017 Supp. 12-105b,
and his failure to do so bars his claims. We will address
each in order.
Did Nash's claims fall under the KTCA?
common law, the longstanding rule was that the State, as the
sovereign, was immune from suit unless it consented. The
Legislature provided that consent when it enacted the KTCA;
now, subject to certain exceptions, liability is the rule and
immunity the exception. Fettke v. City of Wichita,
264 Kan. 629, 633, 957 P.2d 409 (1998); see also K.S.A. 2017
Supp. 75-6103(a) (each governmental entity liable for damages
caused by negligent acts of its employees acting within scope
of employment). One exception is that claims based upon the
rendering of professional services by a health care provider,
such as the practice of medicine, are excluded from coverage
under the KTCA. K.S.A. 2017 Supp. 75-6115(a).
2017 Supp. 75-6115(c)(3) utilizes the health care provider
definition from K.S.A. 40-3401(f): "a person licensed to
practice any branch of the healing arts by the state board of
healing arts" and "a medical care facility licensed
by the state of Kansas." K.S.A. 2017 Supp. 75-6115(c)(4)
includes a hospital within the definition of a medical care
facility contained in K.S.A. 65-425. It is uncontroverted
that South Central is a municipal hospital and that
Blatchford is a physician licensed to practice by the Board
of Healing Arts; both are health care providers, suggesting,
at first blush, that they fall under the exclusion to
coverage under the KTCA.
same statute that excludes the rendering of professional
services by a health care provider from the KTCA also lists
six exceptions from this exclusion, one being any claim made
against "a hospital owned by a municipality and the
employees thereof." K.S.A. 2017 Supp. 75-6115(a)(2).
Here, it is also undisputed that South Central is owned by a
municipality; therefore, it would appear that any malpractice
claim against South Central or its employees must fall under
the KTCA. However, Nash argues that Blatchford, as a health
care provider, cannot be an employee as defined by the KTCA
because health care provider is not included within the
definition of employee contained in K.S.A. 2017 Supp.
75-6102(d)(1), meaning that the exclusion from the KTCA
should apply to Blatchford because he is a health care
provider rendering professional services.
correct that K.S.A. 2017 Supp. 75-6102(d)(1) broadly lists a
number of persons to be considered employees under the KTCA
and does not include health care providers. But we disagree
with Nash that the Legislature intended to exclude as
employees all persons not specifically included in the
statute. First, K.S.A. 2017 Supp. 75-6102(d)(2)(B)
specifically excludes independent contractors as employees,
suggesting that the list of employees contained in K.S.A.
2017 Supp. 75-6102(d)(1) is not exclusive. Second, K.S.A.
2017 Supp. 75-6102(d)(1)(A) specifically includes
"employee" in its definition of employee, meaning
the Legislature intended to provide a broad definition of the
term. Thus, we reject Nash's contention that a health
care provider such as Blatchford must be excluded from the
definition of employee under the KTCA. Accordingly,
Nash's claims against Blatchford fall within the KTCA if
Blatchford is an employee of South Central. Therefore, we
must determine whether the district court properly found
Blatchford to be an employee based on his contract with South
Is Blatchford an employee or an independent contractor of
preliminary matter, we note the parties dispute how we should
review the district court's ruling that Blatchford was an
employee of South Central. Nash argues that whether a person
is an employee or an independent contractor is always a
question of fact. Blatchford argues that if a written
contract controls, then we are to exercise unlimited review
over the district court's ruling whether the person is an
employee or an independent contractor as a matter of law.
criteria for determining whether an employment relationship
or, in the alternative, an independent contractor
relationship exists vary under different contexts. . . .
[T]here is no absolute rule for determining whether an
individual is an independent contractor or an employee."
Hartford Underwriters Ins. Co. v. Kansas Dept. of Human
Resources, 272 Kan. 265, 270, 32 P.3d 1146 (2001).
"'Where the facts are undisputed or the evidence is
susceptible of only a single conclusion, it is a question of
law for the court whether one is an employee or an
independent contractor. However, generally speaking, the
question of whether an individual is an employee or an
independent contractor is considered a question of fact for
the jury or trier of facts.'" McCubbin v.
Walker, 256 Kan. 276, 281, 886 P.2d 790 (1994) (quoting
Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104');">815 P.2d 1104
Supreme Court recently directed:
"'The interpretation and legal effect of written
instruments are matters of law over which appellate courts
exercise unlimited review, including whether a written
instrument is ambiguous.' [An appellate court's]
review is 'unaffected by ...