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MICK v. MANI12/9/1988
The opinion of the court was delivered by
This is a medical malpractice action in which plaintiff Douglas Mick claims damages arising from reconstructive surgery performed by defendant, Dr. Mani M. Mani. The district court entered summary judgment in favor of Dr. Mani on the basis that this action was barred by virtue of a verdict in a Rooks County trial in which Mick had sought recovery of damages against a different defendant which included the damages he claims against Dr. Mani in this action. Mick appeals from the entry of said summary judgment.
Douglas Mick was severely injured while working on a drilling rig in Gove County on April 24, 1982. In the accident, Mick sustained severe facial injuries which included crushing fractures to the left side of his face. He was transferred from the local hospital by air ambulance to the Kansas University Medical Center, where he was examined by Dr. Mani. Two other physicians, Dr. Thomas M. Beahm and Dr. John Hiebert, were also involved in his treatment at the medical center to some degree,
but their involvement is immaterial herein. Dr. Mani, a plastic surgeon , performed reconstructive surgery on Mick shortly after his arrival at the hospital.
On or about April 24, 1984, Mick filed two lawsuits. In the Rooks County action (No. 84-C-21), he sued Bethlehem Steel Corporation; Armco Steel Corporation; Armco, Inc.; Schwab's Tinker Shop, Inc.; Larry's Welding Service, Inc.; H & T Pipe; Aaron's Repair and Supply, Inc.; and Aaron G. Maresch. The Rooks County action was predicated upon the theory of products liability being the cause of the oilfield accident. In this action, Mick sought recovery for all of his damages rising from the accident including pain, loss of wages, permanent facial disfigurement, and visual disabilities. On April 24, 1984, he filed the instant action in Johnson County against Drs. Mani, Beahm, and Hiebert, seeking recovery for pain, loss of wages, permanent facial disfigurement, and visual disabilities. This action was predicated upon medical malpractice.
All defendants and, of course, Mick knew of the existence of both lawsuits. Certain joint discovery activities occurred, but plaintiff made certain that no deponents made reference to the existence of two lawsuits in their depositions. The joint discovery was apparently by consent and for convenience. No court order directed any consolidation for discovery or other purposes.
Ultimately, all of the defendants were dismissed from the Rooks County action except for Bethlehem Steel. A total of $40,000 was paid by the settling and/or dismissed Rooks County defendants. Drs. Beahm and Hiebert were dismissed from the case herein by agreement of the parties. Bethlehem Steel was the only remaining defendant in the Rooks County action, and Dr. Mani was the only remaining defendant in the case herein.
The Rooks County case proceeded to trial, commencing on January 20, 1987. Dr. Mani's fault was not compared. Dr. Mani was called as a witness by Mick. The jury returned a verdict finding no fault on the part of Bethlehem Steel. At trial plaintiff sought recovery of his entire damages against Bethlehem, including permanent facial deformity. No appeal was taken by the plaintiff from the verdict.
Following the trial, Dr. Mani filed a motion for summary judgment on the basis of the "one-action" rule (discussed later in the opinion). In his motion for a new trial in Rooks County, Mick
asked the court to consolidate the two cases. On February 5, 1987, Mick filed a motion with the Kansas Supreme Court (file No. 60,460) to consolidate the two cases. The motion was denied on February 13, 1987. Su
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