Opinion
No. 107,644.
2013-01-25
Douglas HERONEMUS, Appellant, v. CORRECT CARE SOLUTIONS, LLC, Dr. Chad Sharp, and Dr. Tatiana Okolzina, Appellees.
Appeal from Butler District Court; Charles M. Hart, Judge. Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Douglas Heronemus, appellant pro se. Jeffrey A. Bullins, of Holbrook & Osborn, P.A., of Overland Park, for appellee Correct Care Solutions, LLC.
Appeal from Butler District Court; Charles M. Hart, Judge.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Douglas Heronemus, appellant pro se. Jeffrey A. Bullins, of Holbrook & Osborn, P.A., of Overland Park, for appellee Correct Care Solutions, LLC.
Lawrence J. Logback and Trevin E. Wray, of Holbrook & Osborn, P.A ., of Overland Park, for appellee Dr. Tatiana Okolzina.
Jerry D. Hawkins, of Hite, Fanning & Honeyman L.L.P., of Wichita, for appellee Dr. Chad Sharp.
Before STANDRIDGE, P.J., ATCHESON, J., and DANIEL L. HEBERT, District Judge Retired, assigned.
MEMORANDUM OPINION
HEBERT, J.
On March 12, 2006, Douglas Heronemus broke his right wrist while he was incarcerated at the El Dorado Correctional Facility (EDCF). EDCF had a contract with Correct Care Solutions, LLC (CCS) to provide medical care for inmates. On March 13, 2006, Heronemus was cared for by a nurse practitioner. His wrist was x-rayed and placed in a splint. Heronemus saw a nurse practitioner again on March 20, 2006, but the nurse practitioner did not make any changes or recommendations to his treatment plan.
On April 3, 2006, Heronemus was seen by Dr. Chad Sharp. This was Heronemus' only medical visit with Dr. Sharp. Dr. Sharp removed the splint and reexamined Heronemus' wrist, noting that the wrist was swollen and tender to palpitation. Dr. Sharp ordered a referral to see a specific orthopedic surgeon in Wichita. Heronemus was scheduled to be transferred from EDCF to the Lansing Correctional Facility (LCF) the next day, and, because he did not want to cancel his transfer, he signed a form refusing the recommended treatment. Dr. Sharp placed the wrist in a short arm cast and issued the patient a sling. Dr. Sharp recommended that Heronemus follow up with a physician at LCF in two weeks and get an x-ray before the appointment.
Heronemus was transferred to LCF on April 4, 2006. On April 15 or 16, 2006, Heronemus was seen by Dr. Tatiana Okolzina. Heronemus told Dr. Okolzina that he was in quite a bit of pain. Dr Okolzina advised him that the pain was normal and that his cast would be removed in a month. In May 2006, Dr. Okolzina told Heronemus that x-rays showed progressive healing. On June 6, 2006, Heronemus saw a nurse because he had lost all feeling in his right hand and fingers except his little finger. Heronemus was scheduled to have an x-ray on June 13, 2006, but there was no x-ray technician available. Dr.Okolzina would not remove the cast until another x-ray was taken. The x-ray was finally completed on July 14, 2006.
On July 20, 2006, Heronemus removed the cast himself. After doing so, it appeared to him that his wrist was crooked and that his wrist bones were not aligned. On July 25, 2006, Heronemus filed a written grievance concerning his medical care. Heronemus next saw Dr. Okolzina on July 27, 2006, at which time he alleged that Dr. Okolzina said she “could not be responsible for this” and walked out. However, at some point she wrapped his wrist in an ace bandage and told him she was ordering new x-rays. Heronemus was x-rayed again on July 28, 2006, but he did not see Dr. Okolzina again until October 17, 2006.
Heronemus appealed the denial of his grievance about his medical care on October 27, 2006, and again on December 7, 2006. On December 20, 2006, he was seen by a different doctor, who referred him to an orthopedic specialist. He eventually had surgery on his wrist on May 14, 2007.
On May 30, 2008, Heronemus filed a pro se “complaint” in Leavenworth County District Court against CCS, Dr. Sharp, and Dr. Okolzina alleging medical malpractice. He alleged that if his wrist had been properly set within the first few months, the surgery would not have been necessary. He further claimed that CCS was liable for the doctors' negligence. He requested judgment for lost wages, damages for injuries to his person, punitive damages, costs, and other just relief. Heronemus also filed a motion to convene a medical malpractice screening panel pursuant to K.S.A. 60–3502.
CCS filed a motion for summary judgment, arguing that it did not employ Dr. Sharp or Dr. Okolzina. Attached to its memorandum in support of its motion for summary judgment was an affidavit from Patrick Cummiskey, the executive vice-president of CCS. CCS also filed a response in opposition to Heronemus' motion to convene the medical malpractice screening panel.
On October 3, 2008, Dr. Okolzina filed a motion to dismiss, arguing that the lawsuit against her was barred by the statute of limitations because Heronemus had failed to obtain service of process on her within the 90–day time period afforded by K.S.A. 60–203(a)(1).
On July 28, 2009, the Leavenworth County District Court held a hearing on the motions filed by CCS and Dr. Okolzina, and although the court announced that it was granting both motions, no journal entries were filed at that time. On August 3, 2009, Dr. Sharp filed a motion to change venue to Butler County District Court and to set aside the order convening a screening panel. On August 11, 2009, Heronemus filed a motion to reconsider the district court's July 28 rulings.
On October 26, 2009, the Leavenworth County District Court filed a “Memorandum Decision” and separate journal entries concerning its July 28, 2009 rulings. The court granted CCS's motion for summary judgment and dismissed CCS from the litigation with prejudice. The district court granted Dr. Okolzina's motion to dismiss based on the statute of limitations. On the same date, the Leavenworth County District Court granted Dr. Sharp's motion for change of venue to Butler County District Court and set aside its order for a screening panel.
On December 28, 2009, Heronemus filed a motion to reconvene a medical malpractice screening panel in the Butler County action, and on January 8, 2010, Dr. Sharp filed a response, also requesting that a panel be convened. The Butler County District Court entered an order on March 1, 2010, convening a screening panel and staying all but written discovery. Heronemus filed a written submission to the screening panel, and Dr. Sharp responded.
The medical malpractice screening panel convened on April 16, 2011, and issued its report on May 2, 2011. The panel determined that it had adequate material with which to determine whether there was a departure from the standard of care applicable to the practice of the health care provider and whether a causal relationship existed between the claimed injury and any departure. The panel unanimously agreed that the medical care provided to Heronemus by Dr. Sharp on April 3, 2006, did not depart from the standard of care. On May 16, 2011, Heronemus filed a motion requesting further findings by the screening panel, which motion was denied by the district court on June 16, 2011.
On August 10, 2011, Heronemus filed a request to lift the stay on discovery, and on the same day he filed an amended complaint in which he alleged that Dr. Sharp and Dr. Okolzina were “contracted” by CCS instead of “employed.” He also included a new allegation of lack of informed consent.
On August 19, 2011, Dr. Sharp filed a motion for summary judgment, arguing he was entitled to judgment in his favor because Heronemus was unable to find an expert and intended to proceed without one. Heronemus argued that an expert was not necessary for a judge or jury to determine the issues in the case based on the common knowledge exception. On December 7, 2011, the district court held a telephone conference and issued its ruling, granting summary judgment in favor of Dr. Sharp and awarding costs. On January 10, 2012, the district court filed its journal entry of judgment, and on February 1, 2012, Heronemus filed an amended notice of appeal.
Did the District Court Err in Granting Summary Judgment to Correct Care Solutions, LLC?
We first address Heronemus' claim that the District Court of Leavenworth County erred by granting CCS's motion for summary judgment.
CCS moved for summary judgment on the ground that it did not employee Dr. Sharp or Dr. Okolzina and therefore could not be vicariously liable for their actions. In substantial compliance with Supreme Court Rule 141 (2012 Kan. Ct. R. Annot. 247), CCS supported its contentions of uncontroverted fact by attaching the affidavit of Patrick Kummiskey, the executive vice-president of CCS. Heronemus filed no response contesting CCS's factual statements. Pursuant to Rule 141, failure to timely respond to a motion for summary judgment is deemed admission of the uncontroverted contentions of fact set forth in the motion. See e.g. Slaymaker v.. Westgate State Bank, 241 Kan. 525, 529, 531, 739 P.2d 444 (1987); Johnson v. Johnson, 26 Kan.App.2d 321, Syl. ¶ 2, 988 P.2d 244 (1999); Orlovetz v. Day & Zimmerman, Inc., 18 Kan.App.2d 142, 143, 848 P.2d 463 (1993). It is also clear that the summary judgment procedures set forth in Rule 141 apply equally to pro se litigants as well as to those represented by counsel. Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, 595, 730 P.2d 1109 (1986).
The district court held a hearing on July 28, 2009, and announced that, based on the submissions of CCS, it was granting CCS's summary judgment motion, finding “that Correct Care Solutions, LLC did not employ Dr. Sharp or Dr. Okolzina, but rather that those same physicians were independent contractors for which Correct Care Solutions could not be held vicariously liable.” This ruling was memorialized in a journal entry which was ultimately filed on October 26, 2009, but on August 11, 2009, Heronemus filed a motion to reconsider, asserting a new theory—vicarious liability of CCS as the contractor of the physicians—although no new factual claims were asserted. A shift in theory proposed by a motion for reconsideration of summary judgment must be accompanied by a factual statement, as required by Rule 141. Cf. Russell v. Braden, 42 Kan.App.2d 811, 217, Syl. ¶ 7, P.3d 997 (2009). In a memorandum of decision, also filed on October 26, 2009, the district court adopted the arguments and authorities outlined by CCS in its response to Heronemus' motion for reconsideration and ruled: “In summary, as this defendant is not a health care provider, it cannot legally employ physicians under Kansas law, and therefore cannot be vicariously liable for their alleged negligence or misconduct.”
The district court denied reconsideration and affirmed its prior order dismissing Heronemus' claim against CCS.
The general rule is that, although an employer is subject to vicarious liability for a tort committed by one of its employees acting within the scope of employment, an employer usually is not held liable for the negligence of an independent contractor it hires. See Restatement (Third) of Agency, § 7.07(1) (2006); Mitzner v. State Dept. of SRS, 257 Kan. 258, 261, 891 P.2d 435 (1995). Apart from broad conclusory allegations, Heronemus, having now admitted both implicitly and explicitly that the physicians are contractors and not employees, offers no factual suggestion as to why the general rule is inapplicable in the instant case.
Based on the facts and circumstances established before the district court, we find no error of law in granting summary judgment of dismissal to CCS, and we affirm the judgment of the Leavenworth County District Court.
Did the District Court Err in Granting Summary Judgment to Dr. Chad Sharp?
Heronemus alleges that the District Court of Butler County erred in granting summary judgment in favor of Dr. Chad Sharp.
This Court has reviewed and considered the journal entry of judgment entered by Butler County District Court Judge Charles Hart, filed on January 10, 2012. We find that there is no reversible error of law in granting summary judgment in favor of Dr. Sharp.
Accordingly, the decision of the district court is affirmed under Rule 7.042(b)(3) and (5) (2012 Kan. Ct. R. Annot. 63).
Did the District Court Abuse Its Discretion in Granting Dr. Tatiana Okolzina's Motion to Dismiss for Improper Service?
Heronemus alleges that the District Court of Leavenworth County abused its discretion in granting Dr. Tatiana Okolzina's motion to dismiss due to untimely service of process upon her. Dr. Okolzina claimed that Heronemus failed to bring his claim against her within the relevant statute of limitations.
This court has reviewed and considered the “Journal Entry of Dismissal of Defendant Tatiana Okolzina, M.D.” decided by Leavenworth County District Court Judge Gunnar Sundby on September 8, 2009, and filed on October 26, 2009. We find that there is no reversible error of law in granting the order of dismissal in favor of Dr. Okolzina.
Accordingly, the decision of the district court is affirmed under Rule 7.042(b)(3) and (5) (2012 Kan. Ct. R. Annot. 63).
Did the District Court Abuse Its Discretion in Not Allowing Plaintiff Discovery?
Heronemus also argues that the District Court of Butler County abused its discretion in refusing to allow him to proceed with discovery in his action against Dr. Sharp.
The district court did not abuse its discretion in staying discovery. The record would indicate that Heronemus was requesting interrogatories in order to amend his petition to include a claim that Dr. Sharp failed to obtain his informed consent to medical treatment. Dr. Sharp, however, agreed that he would allow Heronemus to so amend his complaint. Heronemus obtained the result he wanted. Furthermore, the decision of the district court granting Dr. Sharp's motion for summary judgment was based primarily on Heronemus' lack of expert witnesses, and the discovery Heronemus wanted to undertake would not have changed the court's decision.
The discovery issue, as presented by Heronemus, fails to establish a basis for relief.
Did the District Court Abuse Its Discretion in Failing to Require the Medical Malpractice Screening Panel to Document Its Finding?
Heronemus argues that the District Court of Butler County abused its discretion in not requiring the screening panel to document its findings. He cited “Supreme Court Rule 147(10)” ( sic ) as support for his argument. In his request for further findings by the screening panel, he argued that the panel's decision was deficient because it did not state what treatises it considered. See Supreme Court Rule 142(1)(10) (2012 Kan. Ct. R. Annot. 253). The district court found that Heronemus was given the chance to present the panel with the authorities he wished them to consider, so there was no need for the panel to reconsider its decision,
A medical malpractice screening panel shall make its decision after considering “medical records and medical care facility records, contentions of the parties, examination of x-rays, test results and treatises.” K.S.A. 65–4903. Rule 142(1)(10) (2012 Kan. Ct. R. Annot. 257) provides that a screening panel shall prepare a written opinion and shall support its findings “by corroborating references to published literature and other relevant documents....” The panel stated that it considered each of the parties' submissions. Heronemus does not suggest what literature the panel should have considered. The district court did not err in denying Heronemus' request to have the panel further document its findings.
Did the District Court Err in Ordering Heronemus to Pay the Costs of the Medical Malpractice Screening Panel?
Heronemus argues that the District Court of Butler County erred in determining that a medical malpractice screening panel (MMSP) is an alternate dispute resolution mean, and in requiring him to reimburse $1,250 in costs.
We agree. Under K.S.A.2011 Supp. 65–4907(b), Dr. Sharp, as the prevailing party before the panel, was required to pay the panel's fees. There is no provision requiring Heronemus to assume such cost simply because he went forth with his lawsuit. We decline to designate a medical malpractice screening panel as an “alternative dispute resolution means” under K.S.A.2011 Supp. 60–2003(7). A medical malpractice screening has a limited function of determining the relevant standards of medical care and whether the medical practitioner departed from such standard to the injury of the patient. It does not arbitrate or attempt to resolve the ultimate issues or differences between the parties. The parties are not present during the panel's deliberations. The panel's determination is admissible in evidence at any subsequent trial or dispositive proceeding. A screening panel is more properly considered as part of the litigation process rather than an alternative thereto.
The matter is remanded to the District Court of Butler County with direction to set aside any order for Heronemus to reimburse costs of the screening panel.
The judgments of the Leavenworth County District Court are affirmed.
The judgments of the Butler County District Court are affirmed, except for the assessment of the MMSP costs against Heronemus, which is reversed and remanded with directions. ATCHESON, J., concurring.
I join in the decision to affirm the dismissal of Plaintiff Douglas Heronemus' medical negligence action and to reverse the assessment of the screening panel fees against him as statutory costs. But I am uncomfortable with how Heronemus' claim against Correct Care Solutions has been handled in the district court and here on appeal. I would decide the matter this way: The claim against CCS is based on vicarious liability—Heronemus says the company should be legally responsible for any negligence of Dr. Chad Sharp and Dr. Tatiana Okolzina—but he cannot show either physician was negligent, so there is nothing for which CCS can be vicariously liable.
There are enough loose ends related to CCS's theory of defense that I question whether the district court should have granted summary judgment on that argument. CCS submitted that neither Dr. Sharp nor Dr. Okolzina was an employee of the company. But that doesn't automatically cut off vicarious liability. The negligence of independent contractors may be imputed to the entities for whom they work based on ostensible or apparent authority. See Dealers Leasing, Inc. v. Allen, 26 Kan.App.2d 745, 754–55, 994 P.2d 651 (1999). CCS also has asserted it is not a health care provider as defined in K.S.A.2007 Supp. 40–3401(f); the company, therefore, cannot take advantage of K.SA.2007 Supp. 40–3403(h), cutting off vicarious liability of one health care provider for another health care provider's professional negligence. Heronemus, representing himself as he has throughout, asked the district court to withhold ruling on the summary judgment motion until he had the opportunity to engage in discovery regarding the contractual relationship between the physicians and CCS. But he was rebuffed. Those circumstances kick up doubt about the district court's basis for granting summary judgment to CCS.
An appellate court may affirm a ruling that is correct in its result but wrong in its reasoning. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005). In this case, Heronemus chose to pursue his medical malpractice claim against Dr. Sharp without supporting expert testimony. The district court properly found that Heronemus could not, as a matter of law, prevail against Dr. Sharp without such testimony regarding deviations from appropriate standards of care and on causation. Plaintiffs asserting medical negligence typically must build their claims with expert testimony. Puckett v. Mt. Carmel Regional Med. Center, 290 Kan. 406, 435–36, 228 P.3d 1058 (2010). Only in exceedingly rare cases would the physician's error be sufficiently patent to warrant submitting a malpractice claim to a jury in the absence of supporting expert testimony. This is not such a case. Heronemus has alleged both Dr. Sharp and Dr. Okolzina deviated from appropriate standards of care and their negligence combined to cause his injury. In addition, Heronemus' own conduct may have contributed to the harm, as when he removed his own cast. Sorting out those issues would be well beyond the ken of jurors without the assistance of relevant expert testimony. So Dr. Sharp was properly granted summary judgment.
The same conclusion necessarily flows from the claims against Dr. Okolzina, since they are inextricably bound up with those against Dr. Sharp. That is, Heronemus could not have proven Dr. Okolzina was professionally negligent and the degree to which that negligence caused him harm without expert testimony about both her conduct and that of Dr. Sharp. The claim against her would have been legally unsustainable on that basis even if she had not been dismissed on statute of limitations grounds. (It is fairly debatable whether an agent's successful limitations defense should extinguish the vicarious liability of a principal that has been sued within the limitations period. I choose not to engage that debate, for it is unnecessary.)
Accordingly, Heronemus failed to present a submissible case of professional negligence against either Dr. Sharp or Dr. Okolzina. In the absence of such proof, Heronemus could not obtain judgments against the physicians. In turn, Heronemus could not prevail against CCS on a vicarious liability theory, since he was in no position to prove some actionable wrong that would be imputed to the company. On that basis, the district court properly could have entered judgment for CCS. And, therefore, the result in the district court should be affirmed.