 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
SHARPLES v. ROBERTS8/7/1991
The opinion of the court was delivered by
Arthur K. Sharples, plaintiff in a medical malpractice action, appeals from separate orders of the district court granting summary judgment to the defendants Warren E. Roberts, M.D., and Urology Associates of Topeka, P.A. (Urology Associates). The district court found there was insufficient evidence to establish causation between the alleged negligence of Dr. Roberts and the injury or damage plaintiff alleged. The court also found that the action against Urology Associates was precluded by K.S.A. 1990 Supp. 40-3403(h), a section of the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq. (the Act). The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c). We affirm the district court.
On May 1, 1984, plaintiff began seeing defendant, Dr. Roberts, a general practitioner, for treatment of a urinary tract infection.
Dr. Roberts conducted urine tests which revealed 1 + red blood cells in plaintiff's urine and prescribed a broad spectrum antibiotic. The dates of the tests, the type of testing, and the frequency of antibiotic treatment are not disclosed in the record on appeal. Dr. Roberts apparently continued conservative treatment until April 1985 when tests disclosed 2 + red blood cells in plaintiff's urine. At that time, Dr. Roberts ordered an intravenous pyelogram which revealed the presence of a large staghorn calculus (kidney stone) in plaintiff's left kidney. The x-rays and pyelogram also disclosed that there was renal function in both kidneys despite the existence of the large kidney stone.
Upon learning of these results Dr. Roberts referred plaintiff to Dr. Walter Mau, a urologist who was a member of the defendant Urology Associates. Dr. Mau treated plaintiff from April 1985 until March 17, 1986, primarily with antibiotics. During this period, Dr. Mau discussed with plaintiff the possibility of surgery to remove the kidney stone by means of a kidney split operation. For various reasons the surgery was never performed and on April 11, 1986, plaintiff began seeing Dr. Iloreta. According to Dr. Iloreta's medical records, a renal scan was performed on plaintiff on April 29, 1986, which revealed the left kidney was no longer functioning, and on May 23, 1986, Dr. Iloreta determined that a nephrectomy to remove the left kidney was necessary. The operation was performed June 26, 1986.
This action was filed against both defendants on June 20, 1988. The petition named the wrong person as plaintiff, and an amended petition naming the correct plaintiff was filed July 1, 1988. Plaintiff made no independent claims of negligence against Urology Associates, seeking recovery only on the theory of vicarious liability for the alleged negligence of Dr. Mau. Dr. Mau died prior to the time this suit was filed and apparently no attempt was made by plaintiff to assert a claim against Dr. Mau's estate.
Motions for summary judgment were filed by the defendants. The motion of Urology Associates was sustained on the basis that K.S.A. 1990 Supp. 40-3403(h) precluded any recovery from the corporation for the negligent acts of Dr. Mau. Following discovery, the motion of Dr. Roberts was sustained because plaintiff's expert could not testify that the ultimate loss of the plaintiff's kidney was caused by the delay of Dr. Roberts in diagnosing and
treating plaintiff's illness. Additional facts will be stated as necessary in discussing the issues on appeal.
The first issue on appeal applies only to the action against Urology Associates. The issue is framed as being whether K.S.A. 1990 Supp. 40-3403(h) is unconstitutional as violating Sections 1 and
Page 1 2 3 4 5 6 7 8 Kansas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|