Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nash v. Blatchford

Court of Appeals of Kansas

January 4, 2019

Aaron Nash, Appellant,
v.
Patrick T. Blatchford, M.D., Appellee.

         SYLLABUS BY THE COURT

         1. 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.

         2. Any 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).

         3. A 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).

         4. The 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.

         5. An 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.

         6. The 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.

         7. 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 law.

         8. The 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.

         9. The 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.

         10. The 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 employees.

          Appeal from Cowley District Court; LaDonna L. Lanning, judge.

          Kala Spigarelli, of The Spigarelli Law Firm, of Pittsburg, for appellant.

          Anthony M. Singer and Matthew P. Sorochty, of Woodard, Hernandez, Roth & Day, L.L.C., of Wichita, for appellee.

          Before Gardner, P.J., Atcheson and Powell, JJ.

          Powell, J.

         Aaron 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 affirm.

         Factual and Procedural Background

         On 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).

         Nash 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.

         After 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.

         After 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 timely appeals.

         I. Was Nash Required to File a Notice of Claim?

         Our 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).

         To the 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).

         "[E]ven 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 [2013]).

         K.S.A. 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.)

         The 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 (2014).

         Given 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.

         A. Did Nash's claims fall under the KTCA?

         At 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).

         K.S.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.

         But the 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.

         Nash is 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 Central.

         B. Is Blatchford an employee or an independent contractor of South Central?

         As a 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.

         "The 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 [1991]).

         Our 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.