Katy J. Brown and Christopher K. Brown, Individually and as Natural Parents and Next Friends of Carter Kent Brown, A Minor, Appellants,
Todd D. Trobough, M.D., Jeffrey M. Teply, M.D., Lincoln Center Obstetrics & Gynecology, P.A., and Kansas Medical Education Foundation, Appellees.
BY THE COURT
Cady v. Schroll, 298 Kan. 731, 317 P.3d 90 (2014),
our Supreme Court mandated that K.S.A. 40-3403(h) absolve all
health care providers from any responsibilities, including
independent liability, where the injured party sought damages
that were derivative of and dependent upon another health
care provider's professional services.
plaintiff's theory of liability against a health care
provider has no bearing on whether K.S.A. 40-3403(h) will
absolve that health care provider from responsibility.
Instead, whether K.S.A. 40-3403(h) absolves a plaintiff's
suit against a health care provider hinges on whether the
plaintiff's injuries arose out of the professional
services of another health care provider.
Under the facts of this case, K.S.A. 40-3403(h) absolved the
doctor who served as the training site director of the
residency program from liability for negligent supervision
because a resident and a faculty supervising doctor provided
the alleged negligent medical services at issue. Thus, any
claim against the doctor who served as the training site
director was derivative and dependent upon plaintiffs'
claims against the resident and the faculty supervisor.
from Shawnee District Court; Richard D. Anderson, judge.
Birch and Richard L. Budden, of Shamberg, Johnson &
Bergman, Chtd., of Kansas City, Missouri, for appellants.
L. Theis, of Foulston Siefkin, LLP, of Topeka, for appellee
Todd D.Trobough, M.D.
McPherson and David S. Wooding, of Martin, Pringle, Oliver,
Wallace & Bauer, L.L.P., of Wichita, for appellee Jeffrey
M. Teply, M.D.
Green, P.J., Standridge, J., and McAnany, S.J.
litigation arises out of a medical malpractice action for
birth injuries to Katy J. Brown and Christopher K.
Brown's minor son, Carter Kent Brown. The Browns
initially sued Stormont-Vail Hospital, as well as Dr. Todd
Trobough, the attending obstetrician, and Dr. Jennifer
Schuchmann, the resident physician, who both participated in
the labor and delivery of Carter. The Browns settled their
claims against Dr. Schuchmann and the hospital.
Browns then amended their petition and sued Lincoln Center
Obstetrics & Gynecology, P.A., and Jeffrey M. Teply,
M.D., for injuries to Carter. The trial court dismissed the
claims against Lincoln Center for two independent reasons:
(1) that the Browns and Carter were not intended
beneficiaries of the contracts that they relied on in support
of their claims against Lincoln Center and (2) that K.S.A.
40-3403(h) precluded liability against Lincoln Center for
injuries arising out of the rendering of care or failure to
render care by the resident physician and the attending
obstetrician. The Browns and Carter did not seek
interlocutory appeal from those rulings.
Dr. Teply moved for judgment on the pleadings for two
independent reasons: (1) that a duty of care for a physician
requires a physician-patient relationship which did not exist
here and (2) that K.S.A. 40-3403(h) precluded liability
against Dr. Teply because the Browns' and Carter's
injuries arose out of the care rendered or failed to be
rendered by Dr. Schuchmann or by Dr. Trobough or by both. The
trial court ruled that K.S.A. 40-3403(h) barred the
Browns' and Carter's claims against Dr. Teply. The
trial court did not consider the duty of care issue. This is
an interlocutory appeal arising out of the trial court's
order granting defendant Teply's motion for judgment on
the pleadings and entering judgment in his favor.
this appeal involves the application of K.S.A. 40-3403(h),
which is a provision of the Health Care Provider Insurance
Availability Act (Act). This provision absolves health care
providers who qualify for coverage under the Health Care
Stabilization Fund (Fund) from any responsibility for
injuries arising out of the rendering of or the failure to
render professional services by other health care providers
that qualify for coverage under the Fund.
Browns' argument hinges on their claim that our Supreme
Court applies the statutory scheme of K.S.A. 40-3403(h)
differently depending on whether a plaintiff's theory of
liability involves corporate negligence. Nevertheless, our
Supreme Court rejected this argument in Cady v.
Schroll, 298 Kan. 731, 746, 317 P.3d 90 (2014). In doing
so, the Cady court stated the following: "The
language of K.S.A. 40-3403(h) does not premise immunity on
the type of health care providers involved, the nature of the
relationship between the two health care providers, or
the nature of the theory of liability." (Emphasis
added.) 298 Kan. at 746.
in discussing the various theories of liability involved in
these cases as well as acknowledging that K.S.A. 40-3403(h)
seemingly undermines the public policy behind these theories
of liability, the Cady court clearly pointed out the
"[R]egardless of whether the liability arises from the
negligent hiring and supervision of an independent contractor
or an employee-employer relationship, the policy behind
imposing liability on the principal is the same: making
liable the entity or person who was in a position to protect
the patient, who profited from the business relationship with
the injured patient, and who is often best able to pay for
the damages. See Marquis, 265 Kan. at 331
(discussing duty to supervise); McVay, 255 Kan. at
377 (discussing corporate negligence); Plains Resources,
Inc. v. Gable, 235 Kan. 580, 590, 682 P.2d 653 (1984)
(discussing duty to hire and retain competent employees); see
also Gilbert v. Sycamore Municipal Hospital, 156
Ill.2d 511, 523, 622 N.E.2d 788 (1993) (discussing policy
reasons for recognizing vicarious liability of hospital for
acts of independent-contractor physician). We recognize that
K.S.A. 40-3403(h) arguably undermines the public policy
behind these theories of liability and diminishes the
protections otherwise available to patients. But 'courts
"are not free to act on . . . [their own] view of wise
public policy" in matters governed by legislation.
[Citation omitted.] Courts should instead "leave the
guidance of public policy through statutes to the
legislature." [Citations omitted.]' In re
Marriage of Hall, 295 Kan. 776, 784, 286 P.3d 210
(2012). Our task is to determine if there is any reason to
discern a legislative intent to distinguish between employees
and independent contractors or various theories of liability,
and we can find none." 298 Kan. at 748.
the facts establish that the Browns seek to hold Dr. Teply
responsible for Carter's birth injuries that were
derivative of and dependent upon the rendering and failure to
render professional services by Dr. Trobough and a resident
physician. Thus, we hold that K.S.A. 40-3403(h) bars the
Browns' negligence claim against Dr. Teply. Accordingly,
September 12, 2015, early in the morning, Katy went into
labor. A resident, Dr. Jennifer Schuchmann, managed
Katy's labor. Dr. Todd D. Trobough was the on-call
physician during Katy's labor. This meant that Dr.
Trobough was the faculty adviser supervising Dr. Schuchmann.
This also meant that Dr. Trobough was Katy's attending
physician. Dr. Trobough made rounds at the hospital sometime
during the morning of September 12, 2015; then he was told of
Katy's high risk pregnancy. But after this time, it seems
Dr. Trobough left the hospital.
the day, Dr. Schuchmann and Dr. Trobough continued to discuss
Katy's labor through text messages. Then, at 3:45 p.m.,
Katy was started on Pitocin, a drug that stimulates labor
contractions. By 5 p.m., Katy was in the second stage of
labor. At 8:04 p.m., Dr. Schuchmann texted Dr. Trobough to
come to the hospital for delivery. Dr. Trobough arrived at
8:20 p.m., and Katy delivered Carter at 8:30 p.m.
Carter was critically ill when he was born. Carter could not
breathe on his own for 14 minutes when he was delivered. He
was later diagnosed with Hypoxic-Ischemic Encephalopathy
(brain damage due to asphyxiation around the time of birth)
and Cerebral Palsy.
the delivery, Dr. Trobough texted another Lincoln Center
physician that when he arrived in Katy's delivery room,
he discovered that "the nurses were monitoring [the]
maternal heart rate" instead of both the maternal heart
rate and the fetal heart rate during Katy's labor. Once
Dr. Trobough discovered this, he immediately delivered
15, 2016, Katy and Christopher sued Dr. Schuchmann, Dr.
Trobough, and Stormont-Vail for negligence personally and on
behalf of their son Carter. The Browns asserted that
Stormont-Vail was vicariously liable for its nursing staff
and other employees "in relation to the care of, or
failure to care for . . . Katy and . . . Carter." The
Browns asserted that both Dr. Schuchmann and Dr. Trobough
violated their duty of care when treating Katy and Carter.
Specifically, the Browns alleged that Carter had been
"neurologically intact" before the second stage of
Katy's labor. They alleged that the defendants'
failure "to closely monitor Carter's condition via
continuous fetal heart monitoring during the second stage of
labor" resulted in Carter's injuries. The Browns
requested over $75, 000 in damages because of the
irreversible negligence that rendered Carter
"permanently disabled and forever unable to function
Stormont-Vail and Dr. Schuchmann entered into confidential
settlement agreements with the Browns. Shortly after entering
into those agreements, the Browns moved to amend their
petition. The Browns sought to add Dr. Teply, the Lincoln
Center Obstetrics & Gynecology, P.A., and the Kansas
University Medical Education Foundation as defendants in
their amended petition, which the trial court allowed.
their amended petition, the Browns argued that Dr. Trobough,
Dr. Teply, the Lincoln Center, and the Kansas University
Medical Education Foundation had a duty to supervise the
residents participating in the GME program at Stormont-Vail.
The Browns claimed that had Dr. Trobough "been present
to properly monitor Katy Brown's second stage of labor,
[Dr.] Trobough would have intervened and expeditiously
delivered Carter before he suffered permanent neurological
damage." The Browns claimed that "[b]ut for [Dr.]
Teply's negligence, Carter Brown would not have suffered
his birth injuries."
discovery, the Browns had learned about the residency program
at Stormont-Vail. Highly summarized, there were a series of
contracts governing the Kansas University Medical Education
Foundation's Graduate Medical Education (GME) program in
Obstetrics and Gynecology, of which Dr. Schuchmann was
enrolled. Under the program, the Lincoln Center agreed to
serve as teaching faculty for the residents in the GME
program at the Stormont-Vail training site. Lincoln Center
employed Dr. Trobough and Dr. Teply. Both doctors served as
faculty advisers to the residents in the GME program.
Moreover, Dr. Teply served as the training site director of
the GME program. Under the contracts governing the program,
the training site director had to assist the GME program
director "with selection and approve selection of
teaching faculty who [would] provide education, evaluation
and clinical supervision of the residents/fellows." The
contracts also included rules on resident supervision, such
as "[t]he physician faculty must be immediately
available to a resident if clinical activity is taking place
in the operating rooms and/or labor and delivery areas."
Lincoln Center then moved to dismiss the Browns' claim
for failure to state a claim upon which relief could be
granted under K.S.A. 60-212(b)(6). The Lincoln Center argued
that K.S.A. 40-3403(h) barred the Browns' negligence
claim against them because the Browns' request for
damages was derivative of and dependent upon Dr.
Schuchmann's and Dr. Trobough's medical negligence.
In making its arguments, the Lincoln Center relied heavily on
our Supreme Court's decision in Cady, 298 Kan.
Browns responded that they "[had] not alleged that [the]
Lincoln Center [was] liable for the acts or omissions of
others. Rather, Plaintiffs allege that [the] Lincoln Center
owed an independent duty to ensure that a licensed Lincoln
Center physician was physically present with the resident
while she managed the treatment of Katy and Carter
Brown." Thus, the Browns argued that Lincoln
Center's duty was "not dependent on any alleged
vicarious liability of Dr. Trobough or [Dr.
Schuchmann]." Next, the Browns cited Aldoroty v. HCA
Health Services of Kansas, Inc., 265 Kan. 666, 962 P.2d
501 (1998), and Glassman v. Costello, 267 Kan. 509,
986 P.2d 1050 (1999), as examples of when multiple health
care providers were held liable in the same case and not
barred under K.S.A. 40-3403(h).
a hearing on the parties' arguments, the trial court
granted the Lincoln Center's motion to dismiss. The trial
court determined that the Browns' negligence claim
against the Lincoln Center was comparable to Cady's
negligence claim in Cady, which our Supreme Court
deemed barred under K.S.A. 40-3403(h). The trial court
concluded that the Browns would have no claim against the
Lincoln Center if Carter had not been injured by Dr.
Schuchmann and Dr. Trobough. Furthermore, the trial court
asserted that the Aldoroty and Glassman
cases were distinguishable because "[t]his [was] not a
claim in which two separate healthcare providers were
separately negligent in providing care and treatment to the
the trial court granted the Lincoln Center's motion to
dismiss, Dr. Teply moved for a judgment on the pleadings
under K.S.A. 60-212(c). In his motion, Dr. Teply
"incorporat[ed] by reference the arguments and
authorities set forth in Lincoln Center's Motion to
Dismiss and supporting and reply memoranda, as ...