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McVAY v. RICH9/3/1993
Anita Marie McVay, plaintiff/appellant, appeals the decision of the district court granting summary judgment to Memorial Hospital Corporation of Topeka (Memorial), defendant/appellee, on McVay's claim of negligence against Memorial.
The sole issue in the case is whether the trial court erred in ruling that Memorial was immune from liability as a matter of law based on K.S.A. 65-442(b).
For purposes of this appeal, the facts are undisputed and are as follows:
In April of 1990, McVay filed a lawsuit against Joseph E. Rich, M.D., and Memorial. Specifically, McVay alleged that on August
29, 1988, Dr. Rich negligently performed a hysterectomy and that as a result of his negligence, she was required to undergo additional surgeries.
McVay also claimed that Memorial, the hospital where the hysterectomy was performed, was negligent in not properly providing or performing a quality assurance program or taking corrective action to suspend or revoke Dr. Rich's staff privileges when Memorial knew or should have known Dr. Rich's staff privileges had been withdrawn at other area hospitals. As a result of Memorial's alleged negligence, McVay claimed she required additional surgery and will incur additional medical expenses in the future. She also claimed she suffered and will continue to suffer pain, mental anguish, embarrassment, and humiliation as a result of her medical condition, which was caused by Memorial's negligent care and treatment.
The record shows that Dr. Rich failed to renew his license to practice medicine and surgery within the time required by statute and therefore his license was cancelled as of August 1, 1987. The Kansas State Board of Healing Arts (BOHA) also found probable cause to believe Dr. Rich made false statements on his request for reinstatement and practiced medicine from August 1, 1987, to October 30, 1987, without a valid license. The BOHA issued a final order in February of 1988 reinstating Rich's license to practice medicine as of February 6, 1988.
Subsequently, in August of 1988, the BOHA filed another petition for revocation of Dr. Rich's license, finding probable cause that Rich had violated the Healing Arts Act, K.S.A. 65-2801 et seq. There is also evidence in the record to suggest that Dr. Rich's staff privileges had been revoked at St. Francis and Stormont-Vail hospitals in Topeka. Dr. Rich was licensed to practice medicine and surgery at the time he performed surgery on McVay.
In September of 1992, the trial court filed a memorandum decision, granting Memorial's motion for summary judgment. The court held because Dr. Rich was not an agent or employee of Memorial and because McVay did not claim Memorial was vicariously liable, Memorial was not liable to McVay based on K.S.A. 65-442(b). McVay subsequently settled with Dr. Rich, who was covered under the Health Care Stabilization Fund.
The present case turns on the interpretation of K.S.A. 65-442(b), which reads:
"There shall be no liability on the part of and no action for damages shall arise against any licensed medical care facility because of the rendering of or failure to render professional services within such medical care facility by a person licensed to practice medicine and surgery if such person is not an employee or agent of such medical care facility."
McVay argues that the statute only bars claims based on vicarious liability and her claim is for a breach of an independent duty owed to her by Memorial. In other words, her claim is not based on Memorial's vicarious liability for Dr. Rich's actions, but is based on a breach of Memorial's independent duty
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