Kansas Medical Malpractice Laws

Medical malpractice claims are nuanced in that there are a variety of facts that must be analyzed to make certain that your claim has merit and is permitted to be filed with a court. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Kansas; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Kansas. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Kansas

In Kansas, you may bring a medical malpractice case against a medical care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Kansas places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Kansas allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. Like many states, Kansas caps the amount of damages that may be awarded to you if your medical malpractice claim is successful.

How long do I have to file a medical malpractice case in Kansas?

The first step in bringing a claim for medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Kansas mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1]

This time limitation is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially help bolster your case would become less compelling.

The law in Kansas does provide a special exception to the two-year statute of limitations rule whereby the two-year clock does not begin to run until your injury has been, or should have been, discovered. However, a medical malpractice lawsuit may not be brought more than four years after the alleged malpractice took place, regardless of when you discovered your injury. [2]

Additionally, if the person who suffered an injury is a minor when the injury occurred, they are permitted to bring their claim within one year of their 18th birthday or within eight years of the act which caused the injury, whichever is sooner.

In Kansas Medical Malpractice Cases, who is Responsible?

In Kansas, an action arising out of a medical injury may be brought against any medical care provider. The law in Kansas considers a medical health care provider to be any individual or organization that is authorized, certified, and/or licensed to provide health care services to patients. [3]

Those that can be held responsible due to being included in the definition of a “medical care provider” include:

• Podiatrist
• Pharmacist
• Optometrist
• Physician
• Dentist
• Nurse
• Mental health technician
• Physical therapist
• Physical therapist assistant
• Respiratory therapist
• Physician assistant [4]

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove:

• You were owed a duty of care by your physician
• The owed duty of care was not met
• You suffered an injury
• The breach of the duty of care was the cause of your injury

What if I am partially to blame? Can I Still Recover Money for Kansas Medical Malpractice?

Kansas, along with 32 other states recognizes the doctrine of modified comparative fault. [5] The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Kansas is one of 12 states (Arkansas, Colorado, Georgia, Idaho, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia) that follow a 50% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 49% or less.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and alcohol that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not following the medication’s instructions when you consumed alcohol while on the medication. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Kansas decided to adopt a modified system.

Are there medical malpractice recovery caps in Kansas?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence. There are two main types of damage awards you may receive:

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – actual damages and general damages.

Actual damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

General damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

The law in Kansas caps the amount of non-economic damages (general damages) that you may be awarded to $300,000. [6] However, Senate Bill 311, which took effect in 2014 when the cap limited non-economic damages to $250,000, gradually increases the cap to $350,000 over a period of eight years. The current $300,000 cap is in place until July 1, 2018, when the cap will be increased to $325,000. That cap will remain until July 1, 2022, when the cap will be set to $350,000.

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than compensate the plaintiff. In Kansas, if you wish to seek an award of punitive damages, you must request the filing of an amended pleading from the court on the basis of affidavits in support of your claim that there is a probability that you will prevail on the claim. [7] To prevail on a punitive damage claim, you must prove by clear and convincing evidence that the defendant’s conduct was willful, wanton, fraudulent or malicious. [8]

The law in Kansas limits the amount of punitive damages that may be awarded to the lesser of the defendant’s highest annual gross income over the past five years or $5 million. [9]

Expert witness reporting and testimony

The law in Kansas requires an expert to provide testimony that supports the claims you are making against a healthcare provider in your medical malpractice case. The expert’s testimony is the best way to substantiate the merits of your claim. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered your injuries that would not otherwise have been incurred.

To qualify as an expert capable of providing testimony, a person must have spent at least 50% of their professional time over the two years preceding the alleged malpractice to actual clinical practice in the same profession in which the defendant is licensed. [10]

Are some parties immune from medical negligence cases?

Unlike laws in some other states, the law in Kansas holds state-owned hospitals to the same liability standards as those applied to private health care providers. [11] However, in some instances where the health care provider is a charitable hospital or a hospital owned by a political subdivision, damages are limited to $500,000 and an award of punitive damages are not permitted. [12]

Settling medical malpractice cases in Kansas

If either involved party requests or a judge makes an order, the case may go before a Medical Screening Panel prior to its arrival in court. The screening panel is made up of several members including, a health care provider designated by the defendant or by the person against whom the claim is made if no petition has been filed; a health care provider designated by the plaintiff or by the claimant if no petition has been filed; a health care provider selected jointly by the plaintiff and the defendant or by the claimant and the person against whom the claim is made if no petition has been filed; and an attorney selected by the judge of the district court from a list of attorneys maintained by the judge of the district court for such purpose. The attorney does not have a vote but instead acts as the chairperson during the proceeding. [13]

The panel serves to determine whether the defendant met the requisite medical standard of care and whether the plaintiff’s injuries were caused by the defendant’s professional negligence.

Litigating medical negligence cases in Kansas

A claim for medical malpractice in Kansas is initiated by preparing a Complaint and Summons that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to trial. In Kansas, a civil action, such as a medical malpractice lawsuit, is commenced at the time of the filing of a petition with the court. [14]

The law in Kansas then requires that once a complaint is filed, the court clerk will issue a summons which will be served upon the named defendants by the Sheriff.

A complaint should include:

• A statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the plaintiff is entitled to relief,
• A demand for the relief to which the plaintiff considers himself entitled [15]

A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. [16] Upon receipt, the defendants have 21 days to file an Answer which admits and/or denies statements made in the complaint. [17] The Answer should include:

• Reasons for denial of the relief sought by the plaintiff
• Affirmative defenses
• Affirmative relief sought by the defendant
• Whether there will be a counter-claim, set-off, cross-claim, or third-party claim
• The address of the defendant or their attorney

Additionally, Kansas has enacted a health care stabilization fund which provides payment over a health care provider’s standard liability coverage. If the named defendant is covered by the health care stabilization fund, you must serve the board of governors of the fund within ten days of filing the original petition with the clerk of the court. [18]

Preparing for Litigation

After the disclosures have been made and the complaint, summons, and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

The law in Kansas allows each side to obtain discovery by:

• oral examination or written questions;
• written interrogatories;
• requests for admission;
• request for production of documents or other information;
• physical and mental examinations

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

At the trial, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The law in Kansas does not mandate that claims of medical malpractice first be heard during an arbitration proceeding prior to the case reaching the trial stage of litigation. Therefore, if the involved parties are not able to come to a settlement agreement, the case will go to trial.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Kansas: a judge or a jury.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court.

Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Each side is granted three peremptory challenges whereby an objection may be made to a proposed juror. [19] A potential juror is not allowed to be excluded from jury service because of race, color, religion, sex, national origin or economic status. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Kansas, a person is considered to be qualified to be a juror if they are:

• A registered voter
• A citizen of the United States
• A resident of the county in which they have been summoned to serve
• At least 18 years of age
• Able to read, write, and comprehend the English language

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.

To appeal the decision of a lower court, you must file a Notice of Appeal with the clerk of the circuit court that entered the judgment no later than thirty (30) days from the date of the original judgment. [20]

How to find the best Kansas Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high-powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Do not let an attorney or firm pressure you into hiring them on the spot. Take your time and interview more than one law firm to make sure that the counsel you end up with is the right fit for you and your family.

Make certain to seek out an attorney or law firm that has extensive experience and knowledge with cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.

If the attorney or firm you are interviewing has a large case load, you will want to make sure that your case gets sufficient attention. Ask the firm or attorney if they have the time to focus on your case.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Kansas

These cases represent awards to plaintiffs in medical malpractice cases in Kansas. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Burnette v. Eubanks

The plaintiffs, Scott Nutter and John Parisi Shamberg, brought a lawsuit on behalf of Joel Burnette against the defendant, Dr. Kimber Eubanks.

In 2008, Joel Burnette sought treatment at PainCARE, for his chronic lower back pain. Subsequently, Dr. Daniel Bruning treated Joel with steroid injections to the joints on the right side of Joel’s back at several thoracic and lumbar vertebrae. Dr. Bruning saw Joel again and performed additional joint injections on the right side, together with a muscle injection. A little over a month later, Joel returned to the Clinic. This time Dr. Kimber Eubanks performed an epidural steroid injection and injections in the L5-S1 area.

In 2009, Erich Helfer, a physical therapist at the Clinic, performed a physical therapy assessment on Joel. His notes indicated a change in the bony alignment in the spine. The next day, Joel returned to see Dr. Eubanks at the Clinic. Dr. Eubanks performed an epidural steroid injection on the right side of Joel’s spine. Just a week later, Joel went to the emergency room at St. Luke’s Hospital suffering from fever, headache, and a stiff neck. Dr. Sarah Linderman performed a lumbar puncture to obtain a spinal fluid specimen. Evidently, the epidural steroid injection to Joel’s back caused the infection to spread. As a result, Joel contracted bacterial meningitis. This developed into an incurable disease of the central nervous system. As a result, Joel suffered from pain, and he had problems with his balance, bowel function, gait, and walking.

In 2010, Joel himself filed a medical negligence claim against Dr. Eubanks, Dr. Bruning, and the Clinic alleging that the negligent treatment by all three caused his injuries and damages. Dr. Bruning was dismissed from the lawsuit. However, as the case slowly progressed, Joel committed suicide in 2013. As a result, the trial court substituted Joel’s parents and his estate as successor plaintiffs in the lawsuit. They then filed an amended petition asserting a wrongful death claim, contending that Joel committed suicide due to pain associated with the infection he suffered following the substandard treatment by Dr. Eubanks and the Clinic.

The jury returned a verdict finding for the plaintiffs, attributing 75% of the liability to Dr. Eubanks and 25% to the Clinic. The jury awarded total damages of $2,060,317.84

Midwest Trust Co. of Missouri Inc., conservator v. Lisa Gard, M.D.

An 8-year-old girl was admitted to an emergency room in 2006 after experiencing neck pain, arm pain, and numbness in both of her hands and her feet. During her visit to the emergency room, the emergency department doctor did a full physical examination that she determined to be normal. The doctor performed a rapid strep test that was positive and, based upon the positive result, she diagnosed the girl with having streptococcal pharyngitis. The doctor then discharged the child and sent her home in the care of her parents.

A day and a half later, the girl was brought back to the emergency room by her father because of her progressing weakness and paralysis. She was then flown to a larger hospital where she was diagnosed with a rare congenital spinal cord defect known as an arteriovenous malformation that had hemorrhaged and was causing spinal cord compression. Surgery was performed to remove the compression but the delay in operating allegedly caused permanent spinal cord damage resulting in quadriplegia.

A medical malpractice lawsuit was filed against the emergency room doctor that first examined the girl as well as the hospital that employed the emergency room doctor. The suit claimed that the girl’s neurological condition should have been properly assessed to rule out a neurological problem and that if properly performed, would have prevented the unnecessary delay in diagnosing the actual cause of the symptoms.

The defense argued that the girl and her parents failed to provide accurate information regarding the girl’s symptoms, that the diagnosis of streptococcal pharyngitis as the cause of the neck pain was reasonable, that an earlier transfer to another hospital would not have made a difference in the outcome.

However, the Kansas jury sided with the plaintiffs and awarded $12.1 million in damages.

Footnotes

[1] K.S.A. § 60-513(a)(7)

[2] K.S.A. § 60-513(a)(7)

[3] K.S.A. § 65-4915

[4] K.S.A. § 40-3401

[5] K.S.A. § 60-258a(a)

[6] K.S.A. § 60-19a02

[7] K.S.A. § 60-209

[8] K.S.A. § 60-3702

[9] K.S.A. § 60-3701(e)

[10] K.S.A. § 60-3412

[11] K.S.A. § 75-6115

[12] K.S.A. § 75-6105

[13] K.S.A. § 65-4901

[14] KRCP 60-203

[15] KRCP 12-4202

[16] KRCP 60-205

[17] KRCP 60-212

[18] K.S.A. § 40-3409

[19] K.S.A. § 60-247

[20] K.S.A. § 60-2103