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Dawson v. Prager9/26/2003
Affirmed.
Marian Dawson sued Dr. Sandra Prager and The Menninger Clinic, Inc. (Menninger), alleging negligence and other wrongs in her psychiatric care and treatment. Defendants counterclaimed for unpaid medical bills. On defendants' motions, the trial court entered summary judgment on all issues against Dawson and in favor of defendants. Dawson appealed. The court transferred the case from the Court of Appeals. See K.S.A. 20-3018(c).
Marian Dawson filed this lawsuit against Dr. Prager and Menninger in June 1997. Against Dr. Prager, Dawson alleged medical malpractice, negligent infliction of emotional distress, breach of fiduciary duty, money had and received, and outrage. Against Menninger, Dawson alleged medical malpractice, breach of non-delegable duty, negligent infliction of emotional distress, and money had and received.
Dawson alleged that Dr. Prager treated her between October 1993 and June 1995. Dawson alleged that Dr. Prager, who was a resident, did not have the professional experience to treat her severe psychiatric problems and should not have undertaken her diagnosis and treatment. Among other allegations against Dr. Prager, Dawson alleged that the doctor did not provide her with a safe environment in which she would be protected from self-inflicted injury. According to Dr. Robert Simon, the plaintiff's designated expert witness on psychiatric matters, Dawson burned herself approximately 10 or more times in March, April, and May 1995. Dr. Simon testified that Dawson burned herself both at Menninger and while on passes from the facility.
Dawson alleged that Menninger failed to protect her from self-inflicted injury and failed to adequately supervise Dr. Prager.
Against both Dr. Prager and Menninger, Dawson alleged a cause of action for money had and received. Dawson sought to have the money she paid for treatment and care returned to her based on improper care.
Menninger filed a counterclaim for unpaid medical bills of $69,219.17.
The district court granted defendants' motion for partial summary judgment on all Dawson's claims except medical malpractice.
After deposing Dr. Simon, defendants sought summary judgment on the medical malpractice claim on the ground that Dawson's designated expert witness on standard of care did not spend at least 50% of his professional time in actual clinical practice for the 2 years preceding the incident giving rise to the cause of action, as required by K.S.A. 60-3412. In response, Dawson filed an affidavit by Dr. Simon. Defendants requested that the affidavit be stricken. The district court ordered the affidavit to be stricken and granted summary judgment against Dawson and in favor of defendants.
The district court and the parties treat the district court's entry of summary judgment based on Dr. Simon's lack of qualification as finally disposing of all claims in this case. Expert testimony is necessary to prove a deviation from the standard of care by a health care provider where normal experience and qualifications of laypersons serving as jurors would not permit them to draw proper conclusions. Pope v. Ransdell, 251 Kan. 112, 120, 833 P.2d 965 (1992). In the present case, where it appeared that expert testimony would be necessary, the time in which Dawson was required to designate her expert witness was expired. Although no express finding was made by the district court that Dawson's case could not be made without expert testimony on the standard of care, it reasonably may be inferred from the district court's entering final judgment that it believed an expert witness was indispensable.
Dawson has not raised the district court's re
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