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OBERZAN v. SMITH3/4/1994
The opinion of the court was delivered by
This summary judgment appeal arises from a medical malpractice case. The plaintiff, Katherine Oberzan, alleged her injuries occurred while being prepared for a barium enema. Paula Davis, an x-ray technician employed by Maude Norton Memorial Hospital (the hospital) in Columbus, Kansas, prepared Oberzan for the enema. Davis inserted the enema tip that perforated Oberzan's rectum. The defendant, William Smith, M.D., was not
present when the enema tip was inserted. The trial court granted Smith's motion for summary judgment. Our jurisdiction is under K.S.A. 20-3017 and Rule 8.02 (1993 Kan. Ct. R. Annot. 43). We granted Oberzan's motion for transfer from the Court of Appeals.
Oberzan advances three issues for review. Did the trial court err in concluding that: (1) the x-ray technician was an agent of the hospital and not an agent of Smith; (2) based on K.S.A. 40-3403(h), Smith could not be held vicariously liable for the negligent acts of the x-ray technician (40-3403 is a statute abrogating vicarious liability between two health care providers [K.S.A. 40-3401(f)] who are both qualified for coverage under the Health Care Stabilization Fund); and (3) K.A.R. 28-34-86(a) does not provide an independent basis for imposing liability (the administrative regulation concerns supervision of patient services in a recuperation center radiology department)?
We find no error and affirm. We address issues one and three. The health care provider liability abrogation issue need not be reached because Oberzan's contention under issue two relies on Davis being a joint agent of the hospital and of Smith. Oberzan's reliance is misplaced.
Facts
Oberzan admitted the following facts in response to Smith's summary judgment motion. The trial court found the facts were uncontroverted:
"2. The pretrial questionnaire prepared by the plaintiff alleges that Dr. Smith or his x-ray technician perforated plaintiff's rectum during the barium enema procedure.
"3. The plaintiff was referred to Dr. Smith by Dr. Jones for the barium enema procedure.
"4. The usual procedure for performing barium enemas is that the x-ray technician inserts the enema tip for the barium enema and then gets Dr. Smith to begin the examination. All patients are in the prone position with the tip in place when Dr. Smith walks into the room.
"5. With respect to the plaintiff, when Dr. Smith walked into the room, the plaintiff was already lying in the prone position with the tip already inserted by the technician.
"6. In February, 1988, Paula Davis was employed by Maude Norton Hospital as an x-ray technician.
"7. As an x-ray technician, Paula Davis was trained to prep patients for exams, which would include inserting enema tubes for barium enemas.
"8. Paula Davis inserted the enema tip into the rectum of the plaintiff for the barium enema before Dr. Smith entered the room for the procedure.
"9. After Dr. Smith entered the room, the exam began. Right after Paula Davis began injecting the barium, she noticed bleeding at the tip of the rectum.
"10. After the procedure was halted, Dr. Smith immediately contacted Dr. Jones to inform him of the bleeding."
Oberzan states in her brief, "The x-ray technician perforated the Plaintiff's rectum inserting the nozzle for the barium enema."
The Trial Court's Ruling
In granting Smith's motion for summary judgment, the trial court reasoned, in
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