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Wilson v. Ramirez6/2/2000
SYLLABUS BY THE COURT
1. Kansas mandates claims-based medical malpractice insurance coverage. Although K.S.A. 40-3402(a) before July 1, 1997, used the term "per occurrence," that language did not alter Kansas' claims-based insurance coverage structure. On July 1, 1997, the legislature clarified the statutory "per occurrence" language by replacing it with "per claim."
2. The K.S.A. 40-3403 statutory medical malpractice insurance coverage under the Kansas Health Care Stabilization Fund provides coverage with a liability limit per judgment or settlement.
3. Under the facts of this case, where the cause of plaintiff's injury was failure to diagnose and the defendant physician continually failed to diagnose, there was but one proximate, uninterrupted, and continuing cause which resulted in all of the plaintiff's injuries and damages.
4. When there is only one cause of plaintiff's injuries, there is only one claim or occurrence for purposes of medical malpractice insurance coverage.
5. In a medical malpractice declaratory judgment appeal questioning the amount of insurance coverage available to a plaintiff who is also the plaintiff in an underlying loss of chance of survival malpractice action against a physician insured by defendants in the declaratory judgment action, the record is examined and it is held that the district court was correct in holding only one policy limit of coverage applied to plaintiff's loss of chance of survival claim.
Appeal from Crawford district court, GERALD W. HART, judge. Opinion filed June 2, 2000. Affirmed.
This declaratory judgment action questions the amount of insurance coverage available to insure Dr. Augusto Ramirez for professional negligence. The insurance providers are defendants Kansas Medical Mutual Insurance Company (KaMMCO) and the Kansas Health Care Stabilization Fund (the Fund). The case arises out of the medical treatment of plaintiff Michael R. Wilson. In an underlying failure to diagnose/loss of chance of survival medical malpractice action, Wilson claims five separate and distinct injuries over approximately a 21-month period. Wilson alleges his injuries result from five separate and distinct negligent acts of Ramirez. Wilson asserts each act (episode of treatment) gives rise to separate policy coverage under the KaMMCO policy and the Fund. KaMMCO and the Fund contend only $300,000 (one policy limit of coverage from each) is available. The district court agreed with defendants and granted summary. Wilson appeals.
Our jurisdiction is under K.S.A. 20-3017. (A motion to transfer to this court was granted.)
The question is whether the district court was correct in holding that only one policy limit of coverage applied to Wilson's loss of chance of survival claim.
Finding no error, we affirm.
FACTS
The facts are not in dispute. In the summer of 1992, Wilson noticed a "peeling spot" or lesion on his lower lip. The lesion recurred every few weeks for several months. He sought treatment from Ramirez in October 1992. Ramirez performed an excision, removing the lesion. The excised tissue was sent to pathology to determine if it was cancerous. The pathology report showed no cancer. Wilson contends the specimen sent to pathology did not include the epithelial membrane and was therefore insufficient for a complete analysis. Wilson also contends Ramirez did not read the pathology report (the first claimed act of malpractice).
In the summer of 1993, Wilson again noticed a lesion on his lip. Ramirez performed a second excision in December 1993. Based on the first pathology report, Ramirez concluded the recur
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