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BAIR v. PECK5/24/1991
The opinion of the court was delivered by
This case originated as a medical malpractice action filed in the United States District Court for the District of Kansas. Judge Sam A. Crow, pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq., has certified to this court the question of the constitutionality of K.S.A. 1990 Supp. 40-3403(h). The specific question certified to this court reads:
"Does K.S.A. 40-3403(h) violate Sections 1, 5 and 18 of the Bill of Rights of the Kansas Constitution?"
The facts as submitted by the federal court are:
"This is a medical malpractice action against two treating physicians, defendants Roger Peck and Perry Smith, for negligence in the care and treatment of the plaintiff Stephen Bair during the period of November 25, 1985, through December 19, 1985. Plaintiff also seeks to recover damages from the defendants, Great Bend Internists, P.A. and Alderson, Schuckman and Smith, P.A. (`defendant associations'), on the basis of vicarious liability for the actions of the treating physicians. The parties tacitly agree that each of the defendants is a `health care provider,' as that term is defined at K.S.A. 40-3401(f), who is `qualified for coverage under the fund.' K.S.A. 40-3403(h).
"Defendant associations move for judgment on the pleadings. After noting that plaintiff did not allege any specific, independent act of negligence by them, the moving defendants argue that K.S.A. 40-3403(h) precludes them from being vicariously liable for the negligent acts of the treating physicians. Plaintiff attacks the constitutionality of this provision charging it violates sections 1, 5 and 18 of the Bill of Rights of the Kansas Constitution for the same reasons the Kansas Supreme Court has found other portions of the Health Care Act, K.S.A. 40-3401 et seq., unconstitutional." As the individual defendants, Roger Peck, M.D., and Perry Smith, M.D., are not directly involved in the issues before this court, we will refer to the two "defendant associations" simply as the defendants.
K.S.A. 1990 Supp. 40-3403(h) as enacted in 1986 provides:
"(h) A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act."
This statute is a part of the Health Care Provider Insurance Availability Act (Act), K.S.A. 40-3401 et seq., which was originally enacted in 1976 to address the perceived medical malpractice crisis, including the problems of obtaining and maintaining affordable malpractice insurance and maintaining the availability of medical services in Kansas. State ex rel. Schneider v. Liggett, 223 Kan. 610, 611, 576 P.2d 221 (1978). The history and rationale for the adoption of the Act and other legislation intended to alleviate the "insurance crisis" and bring about "tort reform" have been discussed in numerous cases and need not be repeated at length herein. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990); McGuire v. Sifers,
235 Kan. 368, 681 P.2d 1025 (1984); State ex rel. Schneider v. Liggett, 223 Kan. 610. Suffice it to say the Act has not had smooth sailing and has been reviewed, amended, and/or supplemented one or more times during nearly every session of the legislature since its original enactment.
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