 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Handy v. Reed12/24/2003
would not be able to return to his former employment and as to "specific restrictions at this time, he is basically at no use of his left arm." The record reflects numerous additional office visits by Handy to Dr. Frevert and ultimately in a letter to Handy's workers compensation counsel opined on June 28, 1999, that Handy "has somewhere between a twenty-five and thirty percent (25 and 30%) impairment at the level of the shoulder of the left arm."
Handy's affidavit in response to Dr. Reed's motion for summary judgment states that he sought legal counsel concerning Dr. Reed's care subsequent to the November 20, 1998, appointment with Dr. Frevert. Handy was informed that any claim against Dr. Reed would only be that he lost a significant chance for a better recovery because of the manner in which Dr. Reed managed the rehabilitation of his shoulder and that any recovery would be subject to the statutory lien in favor of his former employer's workers compensation carriers. His affidavit acknowledges that he knew his claim could not be prosecuted economically as long as the lien existed.
Handy's first case (Handy I) was filed against Dr. Reed on September 5, 2000, but Dr. Reed was never served during the initial 90 days after the filing or during the 30-day extension Handy obtained. Handy contends this was because his workers compensation claim was still unresolved. On January 3, 2001, the district court granted Handy's request for a voluntary dismissal of Handy I "without prejudice subject to refiling within a six-month period from this date." It is important that Dr. Reed never appeared in Handy I and was not served with process in Handy I.
Exactly 6 months later on July 3, 2001, Handy filed a second malpractice action against Dr. Reed (Handy II) reasserting the same claims he had made in Handy I. Handy had settled his workers compensation claim and obtained waiver of the statutory lien by the compensation carrier, and Dr. Reed was served with process in Handy II on October 21, 2001.
Dr. Reed answered. After discovery, Dr. Reed moved for summary judgment based on several statute of limitations and statute of repose defenses. Handy responded, oral argument was held, and on January 2, 2003, the trial court issued its memorandum decision granting Dr. Reed's summary judgment motion and dismissing the case. The trial court stated:
"This motion raises two points as the basis of the position of the defendant; one, whether this action is time-barred for not having been commenced within the two (2) year period wherein the plaintiff's injuries were reasonably ascertainable, and two, whether the plaintiff's claim falls outside the four (4) year statute of repose. After much consideration, the Court finds and holds that Summary Judgment is granted as to both issues.
"Plaintiff maintains that the case of Jones v. Neuroscience Associates, 250 Kan. 477 (1992) is on point as to the determination of when a plaintiff's injuries are reasonably ascertainable, and that this determination is a 'jury question.' The Court has examined the Jones case in detail, and is convinced that the facts of that case greatly differ from the case at bar. In Jones the experts [doctors] were in dispute as to this issue. In this case it seems clear that the injuries were known, were told to the plaintiff, and that from that point it was more than two years before the filing of the case.
"The plaintiff further argues that this case was dismissed, and then refiled, after input from the Court. While this may be true, it is clear that under Kansas law, a case is not commenced until the defendant is served. As that act did not take place until after the Statute of Repose tim
Page 1 2 3 4 5 6 7 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|