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HARRIER v. GENDEL3/25/1988
REPORTER'S NOTE: The holding in this case on the issue of erroneous admission of collateral source evidence was overruled in a 5-2 decision of the Supreme Court in Wisker v. Hart, 244 Kan. 36, Syl. 4, 766 P.2d 168 (1988).
The opinion of the court was delivered by
This appeal arises out of a medical malpractice suit. A jury returned a verdict in favor of the defendants, and plaintiff Harrier appeals.
Only the procedural facts in the present case are germane to the issues raised on appeal. On July 6, 1981, the plaintiff, David W. Harrier, filed the present personal injury action. Plaintiff's petition alleged that he had received substantial personal injuries as a result of the negligence of medical services by defendants Joseph Gendel, M.D., and The Topeka Medical Center. During the trial of the action before a jury, the Shawnee County District Court ruled that K.S.A. 1987 Supp. 60-3403, the medical malpractice collateral source payments statute, was constitutional and permitted the introduction of evidence relating to collateral source benefits received by the plaintiff.
Upon trial of the matter, the jury returned a special verdict finding no malpractice on the part of the defendants. The plaintiff's
motion for a new trial was denied on August 29, 1986, and the plaintiff filed a notice of appeal on September 4, 1986. The Court of Appeals issued a show cause order on July 28, 1987, ordering the parties to demonstrate why an order summarily affirming the trial court's decision should not be issued. Both parties responded to the show cause order. On August 20, 1987, the Court of Appeals notified the parties of its decision in the present case: "Affirmed pursuant to Supreme Court Rule 7.041, Farley v. Engelken, Case No. 59,314, filed July 17, 1987." The plaintiff's petition for review was granted on November 13, 1987.
The primary issue on appeal is whether the district court erred in permitting the introduction of evidence relating to collateral source benefits received by the plaintiff. The trial court ruled that K.S.A. 1987 Supp. 60-3403 was constitutional, and defendants were permitted to introduce evidence of the collateral source benefits paid to plaintiff from private insurance and social security . The issue of the constitutionality of the statute was raised by plaintiff at trial. At the time of the trial, Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), was pending before this court and was decided after this case was appealed to the Court of Appeals.
The Court of Appeals proceeded to summarily affirm the decision of the district court pursuant to Supreme Court Rule 7.041. Rule 7.041 provides for the summary disposition of appellate opinions under limited circumstances. The rule provides, in part:
"In any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision." (1987 Kan. Ct. R. Annot. 33.) The case cited by the Court of Appeals in its summary opinion, Farley v. Engelken, is not a prior controlling appellate decision which is "dispositive of the appeal." In Farley, we held that K.S.A. 1987 Supp. 60-3403, providing for the introduction of evidence relating to collateral source benefits in medical malpractice actions, was unconstitutional. In the present case, the district court's action in allowing the introduction of evidence relating to collateral source benefits was contrary to our holding in Farley, and clearly in error. The issue on appeal, therefore, is
whether the error of the district court
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