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Dawson v. Prager9/26/2003
e court explained:
"This does not mean that a doctor can never be liable for fraud or breach of contract. Instead, this simply means that a fraud or breach of contract cause of action can only be based upon a physician's misconduct if that misconduct is beyond a breach of the legal duty which every doctor has the obligation to uphold." 261 Kan. at 210.
In the present case, there is no showing that Dawson's contract allegation is based on misconduct that is beyond a breach of legal duty.
The second ground was raised only in Dawson's answer to defendants' counterclaim. The record on appeal does not contain a file-stamped copy of the answerthe copy in the record on appeal is attached to a motion for leave to file it. The district court observed in its decision that "Plaintiff's petition fails to allege that Plaintiff was improperly billed for services rendered." In addition, in her opposition to defendants' motion for summary judgment, Dawson did not satisfy the K.S.A. 60-256 requirement that she demonstrate improper billing with specific facts and supporting documentation. In her brief on appeal, Dawson asserts that " t appears from the records that Menninger Clinics, Inc. engaged in billing irregularities concerning plaintiff," and the citation she gives for the assertion is "See infra Section IV." Section IV of her brief is the statement of facts, where Dawson primarily sets out her contentions of billing irregularities rather than facts. Examination of the citations to the record on appeal contained in the portion of the statement of facts that addresses billing reveals only contentions, nothing of evidentiary value.
Outrage
According to the trial court, Dawson alleged in support of her claim for the tort of outrage (intentional infliction of emotional distress) that "Dr. Prager failed to keep appropriate boundaries, failed to protect plaintiff from her own self-destructiveness, abruptly abandoned her relationship with Plaintiff and was negligent in handling the therapeutic process." On defendant's motion for summary judgment, the trial court considered materials outside the pleadings and examined Dawson's allegations, considering their sufficiency and how they related to the malpractice claim before concluding that summary judgment was proper on the claim of outrage.
Accepting Dawson's allegations as true, the trial court considered whether they were sufficient to establish the threshold requirements for liability for the tort of outrage.
Comparing the allegations in the present case with the circumstances of Taiwo v. Vu, 249 Kan. 585, 822 P.2d 1024 (1991), and Gomez v. Hug, 7 Kan. App. 2d 603, 645 P.2d 916, rev. denied 231 Kan. 800 (1982), the district court concluded that Prager's alleged conduct may not reasonably be regarded as so extreme and outrageous as to meet the threshold requirements for submission to a jury. In addition, the district court found that the alleged conduct, "while certainly a potential cause of action for malpractice, would not rise to the level of outrageous. The allegations point to a substandard of care but not extreme and outrageous under the law."
We agree. Because Dawson's allegations stated a cause of action for malpractice, the trial court returned to the principle of Bonin, 261 Kan. 199, which disapproved theories of recovery against a physician to the extent they are connected with plaintiff's allegations of defendant's failure to maintain the medical standard of care. The trial court concluded that adequate remedies for Dawson's alleged emotional distress were available under the tort of medical negligence and that her allegation remained an action for malpractice, not
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