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Brown v. Trobough

Court of Appeals of Kansas

September 27, 2019

Katy J. Brown and Christopher K. Brown, Individually and as Natural Parents and Next Friends of Carter Kent Brown, A Minor, Appellants,
v.
Todd D. Trobough, M.D., Jeffrey M. Teply, M.D., Lincoln Center Obstetrics & Gynecology, P.A., and Kansas Medical Education Foundation, Appellees.

         SYLLABUS BY THE COURT

         1. In 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.

         2. A 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.

         3. 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.

          Appeal from Shawnee District Court; Richard D. Anderson, judge.

          Matt Birch and Richard L. Budden, of Shamberg, Johnson & Bergman, Chtd., of Kansas City, Missouri, for appellants.

          Thomas L. Theis, of Foulston Siefkin, LLP, of Topeka, for appellee Todd D.Trobough, M.D.

          Lisa McPherson and David S. Wooding, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellee Jeffrey M. Teply, M.D.

          Before Green, P.J., Standridge, J., and McAnany, S.J.

          Green, J.

         This 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.

         The 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.

         Similarly, 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.

         Thus, 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.

         The 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.

         Moreover, 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 following:

"[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.

         Here, 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, we affirm.

         On 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.

         Throughout 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.

         Tragically, 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.

         Following 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 Carter.

         On June 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 independently."

         Eventually, 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.

         In 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."

         During 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."

         The 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. 731.

         The 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).

         Following 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 patient."

         After 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 ...


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