IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,077
MARIAN E. DAWSON,
Appellant,
v.
DR. SANDRA PRAGER, M.D., and THE MENNINGER CLINIC, INC.,
Appellees.
SYLLABUS BY THE COURT
1. Where normal experience and qualifications of laypersons serving as jurors would not permit them to draw proper conclusions, expert testimony is necessary to prove a health care provider's deviation from the standard of care.
2. In a medical malpractice liability action in which a health care provider's standard of care is at issue, K.S.A. 60-3412 disqualifies an expert witness on such issue unless at least 50% of the witness' professional time within the 2-year period preceding the incident giving rise to the action was spent in actual clinical practice in the same profession in which the defendant is licensed.
3. When a statute is plain and unambiguous, the court gives effect to the intention expressed by the legislature.
4. As a general rule, a party may not defeat summary judgment by filing an affidavit that contradicts prior deposition testimony.
5. K.S.A. 2002 Supp. 60-256(e) does not allow a party opposing a motion for summary judgment to rest upon the mere allegations or denials of its pleading, but instead requires the party to set forth specific facts showing that there is a genuine issue for trial.
Appeal from Shawnee district court, JAMES M. MACNISH, JR., judge. Opinion filed September 26, 2003. Affirmed.
Rebecca M. Randles, of Evans & Mulliinix, P.A., of Shawnee, argued the cause and was on the briefs for appellant.
Gerald L. Goodell, of Goodell, Stratton, Edmonds & Palmer, L.L.P., argued the cause, and Curtis J. Waugh and Marta Fisher Linenberger, of the same firm, were with him on the brief for appellees.
The opinion of the court was delivered by
BRAZIL, S.J.: Marian Dawson sued Dr. Sandra Prager and The Menninger Clinic, Inc. (Menninger), alleging negligence and other wrongs in her psychiatric care and treatment. Defendants counterclaimed for unpaid medical bills. On defendants' motions, the trial court entered summary judgment on all issues against Dawson and in favor of defendants. Dawson appealed. The court transferred the case from the Court of Appeals. See K.S.A. 20-3018(c).
Marian Dawson filed this lawsuit against Dr. Prager and Menninger in June 1997. Against Dr. Prager, Dawson alleged medical malpractice, negligent infliction of emotional distress, breach of fiduciary duty, money had and received, and outrage. Against Menninger, Dawson alleged medical malpractice, breach of nondelegable duty, negligent infliction of emotional distress, and money had and received.
Dawson alleged that Dr. Prager treated her between October 1993 and June 1995. Dawson alleged that Dr. Prager, who was a resident, did not have the professional experience to treat her severe psychiatric problems and should not have undertaken her diagnosis and treatment. Among other allegations against Dr. Prager, Dawson alleged that the doctor did not provide her with a safe environment in which she would be protected from self-inflicted injury. According to Dr. Robert Simon, the plaintiff's designated expert witness on psychiatric matters, Dawson burned herself approximately 10 or more times in March, April, and May 1995. Dr. Simon testified that Dawson burned herself both at Menninger and while on passes from the facility.
Dawson alleged that Menninger failed to protect her from self-inflicted injury and failed to adequately supervise Dr. Prager.
Against both Dr. Prager and Menninger, Dawson alleged a cause of action for money had and received. Dawson sought to have the money she paid for treatment and care returned to her based on improper care.
Menninger filed a counterclaim for unpaid medical bills of $69,219.17.
The district court granted defendants' motion for partial summary judgment on all Dawson's claims except medical malpractice.
After deposing Dr. Simon, defendants sought summary judgment on the medical malpractice claim on the ground that Dawson's designated expert witness on standard of care did not spend at least 50% of his professional time in actual clinical practice for the 2 years preceding the incident giving rise to the cause of action, as required by K.S.A. 60-3412. In response, Dawson filed an affidavit by Dr. Simon. Defendants requested that the affidavit be stricken. The district court ordered the affidavit to be stricken and granted summary judgment against Dawson and in favor of defendants.
The district court and the parties treat the district court's entry of summary judgment based on Dr. Simon's lack of qualification as finally disposing of all claims in this case. Expert testimony is necessary to prove a deviation from the standard of care by a health care provider where normal experience and qualifications of laypersons serving as jurors would not permit them to draw proper conclusions. Pope v. Ransdell, 251 Kan. 112, 120, 833 P.2d 965 (1992). In the present case, where it appeared that expert testimony would be necessary, the time in which Dawson was required to designate her expert witness was expired. Although no express finding was made by the district court that Dawson's case could not be made without expert testimony on the standard of care, it reasonably may be inferred from the district court's entering final judgment that it believed an expert witness was indispensable.
Dawson has not raised the district court's refusal to allow additional time for her to designate an expert witness as an issue on appeal.
PLAINTIFF'S EXPERT ON STANDARD OF CARE
K.S.A. 60-3412 provides:
"In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person's professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed."
The statute "is intended to prevent the use of 'professional witnesses.' That is, practitioners of healing arts who spend less than 50 percent of their professional time in actual clinical practice in their profession are considered to be 'professional witnesses' rather than practitioners of their profession." Wisker v. Hart, 244 Kan. 36, 43-44, 766 P.2d 168 (1988). If, as here, the district court's decision to admit expert testimony is based upon an interpretation of the statute, the court has de novo review. Endorf v. Bohlender, 26 Kan. App. 2d 855, 860, 995 P.2d 896, rev. denied 269 Kan. 932 (2000).
In a written Memorandum Decision and Order, the district court concluded that under K.S.A. 60-3412 Dr. Simon was not qualified to testify on the standard of care because he spent less than 50% of his professional time during the 1993 to 1995 time period in actual clinical practice. The district court looked to Endorf for the meaning of "actual clinical practice." In that case, the Court of Appeals rejected the contention that administrative and academic pursuits and research would satisfy the statutory requirement of actual clinical practice. The Court of Appeals concluded:
"'Actual clinical practice' means patient care. However, patient care should not be limited to a physical presence or bedside requirement. For example, here, Dr. Bohlender was criticized by Dr. Barish for failing to call Poison Control. Had such a call been placed, the physician in Poison Control advising the emergency room doctor on patient care would be engaged in patient care and thus in actual clinical practice. In this technological age of video teleconferencing, and the like, the practitioner of healing arts advising on, or addressing care for, a distant patient is engaged in actual clinical practice." 26 Kan. App. 2d at 865.
The district court's conclusion that Dr. Simon spent less than 50% of his professional time during the 1993 to 1995 period in patient care was based on Dr. Simon's deposition testimony, which was given in January 2000. When asked if he agreed that at the time of the deposition he spent less than half his time in actual clinical practice, as defined by defendants' counsel, Dr. Simon answered affirmatively. When asked about 1993 to 1995, Dr. Simon said that it was "[p]robably true then too."
Dawson contends on appeal, as she did in the district court, that Dr. Simon's answers would have satisfied the statutory requirement if defendants' counsel had not defined actual clinical practice too narrowly. The district court considered and rejected the argument:
"The crux of Plaintiff's argument is that Dr. Simon was misled in that Defendant limited Dr. Simon's response to 'patient care' meaning 'direct work with treating patients.' However, although Defendants' counsel made such initial statement, it is clear that Dr. Simon included in his figure the amount of time spent on advising on and addressing patient care needs and other peripheral duties relating to actual patient care. . . . Defendants' counsel continually clarified what was actual clinical practice and gave Dr. Simon many opportunities to explain everything he does so there would be no guessing game on what portion of Dr. Simon's time is spent on clinical practice. As an example of the broad range of patient related activities included in the time Dr. Simon figured as actual clinical practice, the following colloquy took place between Dr. Simon and Defendants' counsel:
'Q. . . . All Right. Now, again talking about actual clinical practice and I have a loosely defined that as actual patient care
- 'Let me ask you this if I may, counsel, I also consult to Suburban's outreach program to the social workers that go out and follow up on patients who have been admitted and discharged from Suburban, both psychiatric and non-psychiatric; it's in regard to their emotional needs. I do consultation on that. I don't know if you want to consider that direct patient care or not, but I do, do that as well.
'Q. Sure. What I want from you, really, doctor, is describe your clinical practice in terms of patient care and
'A. That would qualify I think.
'Q. Can you give me a sense of the hours?
'A. Of that?
'Q. Yes.
'A. That would only be one hour a month, yeah.
'Q. Okay.
'A. I do some inpatient supervision. That's about an hour a month as well.'
"In addition, on various occasions Dr. Simon was asked the percentage of time he spends on clinical practice now and in the 1993-1995 time period and responded, for example as follows:
'Q. Is it fair to say that you spend less than half your time currently treating outpatients?
'A. That's true.
'Q. All right. Now in '93, '95 is it fair to say that you spent less than half your time treating outpatients?
'A. Yeah, I think that's correct.
'Q. Okay. Now, I used the term actual clinical practice and defined that as patient care earlier?
'A. Yes.
'Q. Would you agree that you spend less than half your time now in actual clinical care as I have defined it?
'A. Yes.
'Q. And what about in '93, '95?
'A. Probably true then too.'
"Again, although Plaintiff had counsel present at the deposition which could have attempted to clarify any testimony, it was Defense counsel who attempted to make certain the testimony of Dr. Simon was clear and accurate, asking:
'Q. Let me do the proverbial one more question, which is to go back to when I asked about how you split up your work and how much time was spent on different things.
'A. I know what you are going to ask me now.
'Q. Not necessarily.
'A. I do.
'Q. We talked about actual clinical practice, meaning actual patient care, and you gave me some figures on what you did with outpatients and then also your writing and research and scholarship and university work and all. I believe your testimony was that, with your outpatient care today and then also back in 1993, '95, the period at issue in this lawsuit, that less than half your time was spent in clinical outpatient care?
'A. Right.
'Q. My question is was less than half your time spent with patient care now and back then?
'A. Was
'Q. Do you spend less than half of your time today
'A. Yes.
'Q. on patient care?
'A. Yes.
'Q. What about '93,'95?
'A. Yes.
'Q. Less than half your time
'A. Yes.
'Q. was spent on patient care?
'A. Yes.
'Q. As we have defined it?
'A. Right.
'Q. The reason I ask you again, quite frankly, is that we have talked about outpatient care you have provided in what you described in your office over here, and I wanted to broaden that if you are talking about other patients because you said you were in hospitals and you described a number of other contexts. Even in those other contexts, back in '93 and '95 and today, it's your testimony that less than half of your time is spent with patient care?
'A. Unless I have four or five admissions on a unit. Then it's 10, 15 hours, 20 hours per admission, but that hasn't happened for a while. If you get a bunch of hospital admissions, then your hours go up.
'Q. Or they don't and they go down?
'A. And don't, and you don't have them.
'Q. On the average?
'A. Right, is less.
'Q. Both now, January 2000, and also back in '93 to '95?
'A. Yes, I think that's accurate.
'Q. Less than 50 percent?
'A. Right.'
"It is clear Dr. Simon included in patient care the time spent consulting, supervising, admitting patients, and other various duties associated with patient care. In addition, it is clear the definition provided by Defendants' counsel was not limited to outpatient care as Plaintiff contends. After consideration of the deposition as a whole, and the fact that Plaintiff had counsel present who could have cross-examined Dr. Simon or clarified the issue, and the fact Dr. Simon did not provide corrections on his errata sheet, the Court finds Dr. Simon testified that his time spent in actual clinical practice, or patient care under the meaning discussed in Endorf, is not at least 50% as is required by K.S.A. 60-3412, and as such [he is] not qualified to testify as an expert on the standard of care in this matter."
On appeal, Dawson reiterates the position she took in the district court. In particular, she complains that the definition defendants' counsel used in questioning Dr. Simon excluded indirect patient care from "actual clinical practice." As the district court observed, although defendant's counsel focused on direct patient care, he also told the witness that indirect patient care, such as consulting with social workers who follow up with patients discharged from Suburban Hospital, qualified as actual clinical practice.
Examination of Dr. Simon's testimony about his professional activities shows that he included indirect patient care in his computation of time spent in patient care.
The only period of Dr. Simon's activities that is relevant under K.S.A. 60-3412 is the period 1993 to 1995, but the deposition contains a more thorough discussion of the range of Simon's professional activities in 2000. In consequence, the testimony about 1993 to 1995 is more readily understood in light of the testimony about 2000. For this reason only, the testimony about Simon's professional activities in 2000 is set out here.
With regard to his activities in January 2000, Dr. Simon testified that he engaged in the following types of direct and indirect patient care:
outpatient care 5-10 hours/week
group therapist/partial hospitalization 2½ -3 hours/week
emergency room on call 2-4 times/monthno estimate of time
federal government consulting no estimate of time
consult with social workers1 hour/month
inpatient supervision 1 hour/month
Dr. Simon testified that he devoted at least 10 hours per week to writing and editing and approximately 20 hours per week to legal consulting. Simon did not estimate the time he spent in his other January 2000 professional activities that did not involve patient carehis directorship of the program of psychiatry and law at Georgetown and his involvement with professional organizations and committees. Thus, in January 2000, for those activities that Simon estimated time spent, he did direct and indirect patient care less than 15 hours per week and nonpatient pursuits approximately 30 hours per week.
For the period 1993 to 1995, the 2 years preceding the incident giving rise to the action, Dr. Simon testified that he spent approximately 20 hours, perhaps more, per week in outpatient care. He stated that, unlike in January 2000, in the earlier period he was not taking emergency room on-call duty, he was not doing group therapy/partial hospitalization work, he was doing less consulting with the hospital, and he was doing less inpatient and partial hospitalization supervision. He did not mention federal government consulting during the 1993 to 1995 period.
Hence, in the earlier period, Dr. Simon did not engage in the types of indirect patient care that took the greatest amount of his time in January 2000. In the earlier period, according to his testimony, his indirect patient care activities consisted only of consulting with the hospital and inpatient and partial hospitalization supervision. Dr. Simon's only testimony about the amount of time spent in those activities was that it was less than at the time of the deposition. His estimate of the time he spent in those activities at the time of the deposition appears to be approximately 2 hours per month. Fewer than 2 hours per month in indirect patient care does not meaningfully affect the computation of Dr. Simon's professional activities for purposes of K.S.A. 60-3412. Thus, contrary to Dawson's contention, when defendants' counsel asked Simon what percentage of his professional time he spent in 1993 to 1995 in outpatient care, the question did not significantly narrow the scope of the witness' actual clinical practice activities.
Dr. Simon estimated the percentage of his time with outpatients in 1993 to 1995 at "probably 30 to 40 percent." As noted by the district court, each time Simon was asked about the fraction or percentage of his professional time spent in 1993 to 1995 in actual clinical practice or patient care, he testified that it was less than half his time or less than 50%.
Twenty hours per week is 50% of a 40-hour workweek. When Dr. Simon stated that 20 hours per week of outpatient care amounted to approximately 30 to 40% of his professional time, he was not calculating the percentage on a standard 40-hour week. If 20 hours of outpatient care was 30% of his professional time, his workweek would be 67 hours (20/.3 = 66.6666). If 20 hours was 40%, his work week would be 50 hours (20/.4 = 50). Dr. Simon was asked, "You said 20 hours, a 40-, 50-hour week?" He answered, "Maybe it was more."
Dawson directs the court's attention to similar statutory schemes in four other states that qualify standard of care witnesses on the ground that a certain portion of time is spent in clinical practice. She notes that "despite the simple elegance" of these statutes each of these states have had questions arise in construing their statutes, including the way to count hours to assess the percentage of time the experts spent in their clinical practice.
We note two cases, one from Michigan and one from North Carolina, that when compared to the present case, would seem to have anomalous results
In Estate of Gawel ex rel. Gawel v. Schatten, 109 F. Supp. 2d 719 (E.D. Mich. 2000), plaintiff designated as expert witness a Dr. Shapiro who had retired from the active clinical practice of medicine to teach 8 to 10 hours per week at a university of applied health services. Defendant urged the court to interpret the statutory phrase, "a majority of his or her professional time," as requiring full-time employment. 109 F. Supp. 2d at 722. The district court declined to do so on several grounds. First, requiring full-time employment would not serve the legislative purpose of banishing "hired guns." Second, requiring full-time employment would be contrary to the rule of statutory construction that prescribes the broad interpretation of statutory requirements that constrain access to the courts. Third, the number of hours a medical expert spends on his or her profession goes to credibility rather than qualification. 109 F. Supp. 2d at 723-24.
In Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255 (2002), it was noted that the North Carolina evidentiary rule requires a medical expert witness, in the year immediately preceding the occurrence, to have devoted a majority of his or her professional time to active clinical practice or the instruction of students. The court held that a retired physician who, as a volunteer, taught in an accredited medical school was qualified to testify because, even though he spent little time teaching, his teaching time constituted 100% of the time he devoted to professional pursuits.
Even though the experts in these two cases apparently devoted less than half the number of hours to legislatively-approved activities that Dr. Simon spent in this case, they were qualified to testify as experts and Dr. Simon was not.
However, just as in Michigan and North Carolina, if it were shown that Dr. Simon devoted 8 to 10 hours per week to "actual clinical practice" and that constituted at least 50% of his professional time, he would have been qualified to testify under K.S.A. 60-3412.
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it. State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001) (citing In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 [1998]).
It might be argued that our construction of the statute leads to unreasonable results. The legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results. Bennett v. Van Doren Industries, Inc., 262 Kan. 426, 433, 939 P.2d 874 (1997).
However, ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
If, for example, we were to conclude that 20 hours represents 50% of a 40-hour workweek, Dr. Simon would be qualified to testify under the statute. But we would be adding something to the statute as written, and that is a legislative function.
Under the clear and unambiguous wording of K.S.A. 60-3412, Dr. Simon did not spend at least 50% of his professional time devoted to actual clinical practice in the 2-year period preceding the incident giving rise to the present action and was not qualified to testify on the standard of care.
DR. SIMON'S POST-DEPOSITION AFFIDAVIT
Dr. Simon was deposed in January 2000. In mid-April 2000, he prepared an affidavit on the subject of the time he spent in professional pursuits. After it was filed in the district court, defendants sought to have the affidavit stricken on the ground that it contradicted Simon's deposition testimony. The district court agreed: "Dr. Simon's affidavit in direct contravention of his deposition testimony should be and is stricken. Although Dr. Simon's affidavit states he is a full time clinical psychiatrist, this does not mean his time is spent 'full time' on actual clinical practice as defined by Kansas law."
Dawson's principal contention is that an affidavit is an appropriate means for supplementing deposition testimony, and that Simon's affidavit was intended to supplement and clarify his deposition testimony rather than contradict it.
Examination of the affidavit reveals very limited references to Simon's activities during the period 1993 to 1995. The two affidavit statements specific to the relevant period assert that Simon devoted more than 50% of his professional time in 1993 to 1995 to actual clinical practice:
"During the two years prior to the events involved in this lawsuit, my clinical practice accounted for more than fifty percent of my professional time as well."
"During the two years preceding the events in this lawsuit, I had a greater outpatient load and more inpatients. My clinical practice during those two years exceeded fifty percent (50%) of my professional time."
Simon's deposition testimony that he spent less than half his professional time in actual clinical practice during the 1993 to 1995 period seems to be contradicted by the affidavit.
The inquiry, however, does not end there because Dawson contends that defendants' counsel's overly narrow definition of actual clinical practice accounts for the difference. Hence, it logically ought to follow that application of a proper definition of actual clinical practice will reconcile the estimated percentages of Simon's deposition and affidavit. In an effort to explain why his estimates varied, Simon averred:
"During the deposition of me taken on January 28th, 2000, Defense counsel defined 'clinical practice' as 'patient care' and 'outpatient care.' He asked repeatedly if I spent less than half of my professional time in 'clinical practice' as he defined it. Taking into account only the outpatient care and group therapy I conduct, as I was required to do under the questions he posed, then I appropriately answered that I spent less than fifty percent of my time in clinical practice.
"However, defense counsel ignored my testimony concerning other areas of clinical practice in which I am engaged including governmental evaluations, emergency room duties, increased hours when patients are admitted, clinical supervision at Suburban Hospital, case consultation and suicidality assessment at Suburban Hospital, consultation with other providers and students regarding patient care, grand rounds, and clinical classes I teach to Georgetown students."
In his affidavit, particularly in paragraph 10, Simon perpetuates the failure of the deposition questions and answers to distinguish between January 2000 and 1993 to 1995 activities. Examination of his deposition shows that the items Simon listed in paragraph 10 of the affidavit have little bearing on the percentage of time he devoted to actual clinical practice during the period 1993 to 1995, insofar as can be ascertained:
governmental evaluations no mention for 1993 to 1995
emergency room duties "not taking emergency room call" in 1993 to 1995
admitting patients admitting patients from the emergency room was part of his responsibility as the on-call doctor for the department of psychiatry, he was not taking emergency room on-call duty in 1993 to 1995
clinical supervision at Suburban; and case consultation and assessment at Suburban time spent in these activities in 1993 to 1995 was less than in 2000. Estimated time Simon spent in those activities in 2000 appears to be approximately 2 hours per month. Hence, less than 2 hours per month.
consultation with other providers and students regarding patient care no mention for 1993 to 1995
clinical grand rounds no mention
clinical classes taught at Georgetown "sporadic," one hour per week for eight weeks; no mention for 1993 to 1995
In summary, from what we can learn from the affidavit, approximately a quarter of an hour per week was all the time that was not taken into account in Dr. Simon's deposition estimate that he spent 30-40% of his working hours in actual clinical practice during the period of 1993 to 1995. An additional quarter of an hour does not significantly increase the percentage of a 50 to 67-hour workweek.
The reasons offered by Simon in paragraph 10 of his affidavit for increasing his estimation of the percentage do not support the change. Thus, his attempt to reconcile his deposition and affidavit percentages fails.
What remains to be considered are paragraphs 3 and 9 of the affidavit in which Dr. Simon estimated that he spent more than 50% of his professional time in actual clinical practice during the period 1993 to 1995. His averments in the affidavit contradict his deposition testimony, where Dr. Simon estimated he devoted 30-40% of his professional time to actual clinical practice during that period.
Dawson's fallback position is that she can resist summary judgment through the use of Simon's affidavit even though it is at odds with his earlier deposition. She relies on Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348 (1983), and purports to quote from Mays. In fact, the principle quoted by Dawson was quoted in Mays, 233 Kan. at 46, from Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th Cir. 1980), which the court distinguished as involving a clarifying rather than a contradictory affidavit. 233 Kan. at 45-46. The affidavits in Mays contradicted the pri