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Watkins v. McAllister11/15/2002
he deposition testimony. The plaintiff's 11th hour attempt to use Abrams' affidavit to refute or recant deposition testimony is legally insufficient to preclude the grant of summary judgment. See Gassman v. Evangelical Lutheran Good Samaritan Society, Inc., 261 Kan. 725, 731, 933 P.2d 743 (1997); Limestone Farms, Inc. v. Deere & Company, 29 Kan. App. 2d 609, 613, 29 P.3d 457 (2001). The district court correctly determined there was no genuine issue of material fact and did not err in its grant of summary judgment to the defendants.
The Screening Panel Issue
The record on appeal does not contain the depositions, statement, or contract ordered stricken by the district court. Without benefit of those materials, appellate review is unduly hampered. Inclusion of the documents in the appendix of an appellate brief is not sufficient. See Zeferjohn v. Shawnee County Sheriff's Dept., 26 Kan. App. 2d 379, 383, 988 P.2d 263 (1999).
The defendants argue the screening panel issue is moot, noting that decisions of a screening panel are non-binding under Lawless v. Cedar Vale Regional Hosp., 252 Kan. 1064, 1071, 850 P.2d 795 (1993), and the district court's grant of summary judgment was predicated upon failure of the plaintiff to present expert testimony on the issue of causation, an omission of proof not implicated by the decision to strike depositions. We find the defendants' argument persuasive.
We will not consider Watkins' claim of error based upon exclusion of his written statement and the employment contract. However, regarding the depositions of medical providers, including those of the named defendants in the malpractice litigation, we believe the issue raised is of public importance, capable of repetition. We choose to address this issue on its merits notwithstanding mootness and the failure to include the depositions in the record. See Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996).
"Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature." Martindale v. Tenny, 250 Kan. 621, Syl. 1, 829 P.2d 561 (1992). "When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be." 250 Kan. 621, Syl. 2. Conversely, if legislative intent is not explicit, "we can presume that when the legislature expressly includes specific items, it intends to exclude any items not expressly included in the specific list." In Re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). With these standards in mind, we turn to the substantive issue.
K.S.A. 65-4903 provides, in material part, that after a screening panel is convened, it shall consider "medical records and medical care facility records, contentions of the parties, examination of x-rays, test results and treatises." Supreme Court Rule 142(d)(8) (2001 Kan. Ct. R. Annot. 195) states: "Oral testimony and the presence of the parties shall not be permitted."
We conclude the district court properly struck the depositions from consideration of the screening panel. First, a deposition is a form of oral testimony, explicitly excluded under Supreme Court Rule 142(d)(8). A deposition has been defined as " he testimony of a witness taken upon oral question . . . , not in open court, . . . and reduced to writing . . . , and intended to be used in preparation and upon the trial of a civil action or criminal prosecution." Black's Law Dictionary 440 (6th ed. 1990). Second, because the legislature listed specific items to be submitted in K.S.A. 65-4903 and did
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