Martin v. Naik

Johnson, J.,

concurring: I concur in the results reached by the majority on both the wrongful death and survival actions. I write separately with respect to the survival action and the interpretation of K.S.A. 60-513(c) for two reasons. First, I disagree with the apparent holdings of the majority that the period of limitation was running against Curley while he was in a coma and that the provisions of K.S.A. 60-515 were not applicable here. Second, I perceive some fallacies in the reasoning of the Court of Appeals opinion and tire dissent in this case which the majority opinion did not address.

*263My fundamental disagreement with both the majority and dissent is drat they equate the accrual of a cause of action with the running of a statute of limitations on that cause of action. The plain language of K.S.A. 60-513(c) speaks to both the time when the “cause of action . . . shall be deemed to have accrued” and when the “period of limitation ... shall... commence.” Moreover, using the Court of Appeals’ own language, albeit in a different context, we commonly think of a cause of action accruing “ when the plaintiff first had die right to file and prosecute the action to a successful conclusion.’ ” Martin v. Naik, 43 Kan. App. 2d 591, 597, 228 P.3d 1092 (2010) (quoting Mason v. Gerin Corp., 231 Kan. 718, 722, 647 P.2d 1340 [1982]). Then, we frequently deal with scenarios where a cause of action has accrued but the statute of limitations has been tolled. In other words, they are different concepts. Moreover, it would seem to me that K.S.A. 60-513(c) contains a great deal of surplus language if the legislature simply intended the period of limitation for a medical malpractice action to always commence at the same time that the cause of action accrued.

I read tire majority opinion as conflating the concepts of cause of action and period of limitation when it parses K.S.A. 60-513(c) into three parts and suggests that they all deal with when the “statute of limitations begins to run.” 297 Kan. at 297. My question is, if the legislature intended K.S.A. 60-513(c) to address the sole question of when the period of limitation begins, why did it specifically speak to the time when the cause of action was deemed to have accrued and why did it include two consecutive phrases about the fact of injury not being reasonably ascertainable? Ordinarily, we presume the legislature does not intend to enact superfluous, meaningless, or redundant legislation. See Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 322, 255 P.3d 1186 (2011).

In my view, it is more logical to divide the statute into two parts, one dealing with the accrual of the cause of action and the other establishing the running of the limitation period. The first part would read, in relevant part, that “[a] cause of action . . . [for medical malpractice] . . . shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, *264unless the fact of injury is not reasonably ascertainable until some time after the initial act.” (Emphasis added.) K.S.A. 60-513(c). After one has determined when the cause of action accrues—either when the act occurred or when the fact of injury was reasonably ascertainable—the next inquiry is laid out in the second part: “[Tjhen the period of limitation shall not commence until the fact of injuiy becomes reasonably ascertainable to the injured party.” (Emphasis added.) K.S.A. 60-513(c). Pointedly, the statute does not say that the period of limitation commences when the cause of action is deemed to have accrued.

By utilizing the plain language approach, i.e., the first part deals with the “cause of action” and the second part addresses the “period of limitation,” we can avoid the objective versus subjective dilemma that troubles my colleagues and we can give meaning to the redundant phrases about the fact of injury being reasonably ascertainable. We do that by reading the statute as establishing an objective criterion for the accrual of the cause of action, the same way that this court did in Seymour, when it held that “[tjhe belated discovery provision in 60-513 . . . was obviously intended to apply to situations where the injury itself is of such a nature that it could not reasonably be ascertained until sometime after the commission of the act which caused it.” Seymour v. Lofgreen, 209 Kan. 72, 79, 495 P.2d 969 (1972). If the fact of injury is reasonably ascertainable by anyone, e.g., a duly appointed conservator for a disabled injured party, then the cause of action against the health care provider has accrued so that an action could be filed and successfully prosecuted.

But the commencement of the period of limitation (as opposed to the accrual of the cause of action) is based on the subjective knowledge of the injured party, i.e., tire time during which the lawsuit must be filed does not begin to run on the accrued cause of action until the fact of injury is reasonably ascertainable to the injured party. Here, that would mean that the statute of limitations was tolled for Curley as long as he was in a coma and unable to know he had been injured. That is not to say that Curley s representative, next friend, or guardian ad litem could not file and successfully prosecute a medical malpractice suit while Curley is still *265alive, but comatose, because the cause of action had accrued on April 8, 2004. See, e.g., K.S.A. 60-217(c) (“If a minor or incapacitated person does not have a duly appointed representative the minor or incapacitated person may sue by the minor or incapacitated person’s next friend or by a guardian ad litem,.”). But as the Court of Appeals declared, the cause of action belongs to Curley, not his wife or representative, so that he could not be personally barred by the statute of limitations while he is unable to ascertain the fact of injury. Martin, 43 Kan. App. 2d at 599.

This interpretation is not only what the statute plainly says, but it comports with the provisions of K.S.A. 60-515, which address the running of the statute of limitations for persons under legal disability. See Redd v. Kansas Truck Center, 291 Kan. 176, 195, 239 P.3d 66 (2010) (appellate courts must consider various provisions of an act in pari materia with view of reconciling and bringing provisions into workable harmony, if possible). That statute provides, in relevant part:

“(a) Effect Except as provided in K.S.A. 60-523, if any person entitled to bring an action, other than for the recovery of real property or a penalty or a forfeiture, at the time the cause of action accrued or at any time during the period the statute of limitations is running, is ... an incapacitated person . . ., such person shall be entitled to bring such action within one year after the person’s disability is removed, ....
“(b) Death of person under disability. If any person entitled to bring an action dies during the continuance of any disability specified in subsection (a) and no determination is made of the cause of action accrued to the deceased, any person entitled to claim from, by or under the deceased, may commence such action within one year after the deceased’s death.” K.S.A. 60-515.

The majority notes that K.S.A. 60-515 has broad application beyond the type of action involved in this case, at least intimating that it might not apply to a medical malpractice action because of the specific provisions in K.S.A. 60-513(c). But the plain language of K.S.A. 60-5l5(a) only excludes the application of its provisions from one statute, K.S.A. 60-523, and only excludes specified causes of action which are not applicable here. It makes no difference whether K.S.A. 60-515 was intended to apply to more than just medical malpractice actions, so long as the plain language of the *266statute malees a medical malpractice action one of those to which its provisions apply.

In the case before us, K.S.A. 60-515(a) does not control because Curley s disability was not removed, prior to his death. Rather, Curley or his representative was “entitled to bring an action” after the April 8, 2004, act of malpractice, but he died while under a disability set forth in subsection (a) and with “no determination . . . made of the cause of action accrued to [Curley],” which gave “any person entitled to claim from, by or under [Curley]” the right to “commence such action within one year after [Curley’s] death.” K.S.A. 60-515(b). Therefore, the statute of limitations began to run on the survival action for Curley’s damages on the date of his death but ran for only 1 year thereafter.

Accordingly, I would interpret K.S.A. 60-513(c) and K.S.A. 60-515(b) in harmony and apply them to the facts of this case as follows: Curley’s cause of action accrued on April 8, 2004, because the fact of his injury was objectively ascertainable on that date; the period of limitation did not begin to run against Curley personally while he was alive but comatose because the fact of injury was not subjectively ascertainable by him; the period of limitation began to run against the person who succeeded to Curley’s cause of action on the date of Curley’s death and expired 1 year after death. Therefore, the successor’s filing of the survival action approximately 1½ years after Curley’s death was barred by the plain language of K.S.A. 60-515(b).

The dissent does not apply K.S.A. 60-515(b) as it is plainly written because it believes that the provision cannot be employed to shorten the limitation period of K.S.A. 60-513(c). I would submit that 60-515 would not operate to shorten the 60-513(c) limitation period for Curley, because under the dissent’s subjective interpretation of 60-513(c), no limitation period ever commenced against him personally. Indeed, under the Court of Appeals’ rationale, the cause of action did not even accrue until death. If Curley is deemed to have been incapable of reasonably ascertaining tire fact of his injury while in a coma, his death did not cure that disability. A dead person can no more ascertain the fact of injury than a person who *267is in a coma, which would mean that the limitation period never begins to run.

I do not discern an explanation by the dissent as to why death triggers the commencement of the 60-513(c) 2-year limitation period. Similarly, the dissent does not say why the legislature must give a person that inherits or acquires a cause of action the same limitation period as tire decedent would have had if alive and not under disability. A rather fundamental principle of statutory construction is that we are to apply provisions as they are written, not as we think they should be applied to achieve the results we would like to see. See Kenyon v. Kansas Power Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161 (1993) (courts cannot delete vital provisions or supply vital omissions in statute; only legislature can correct such defects). Furthermore, we have demonstrated recently that we need not follow prior caselaw that ignored, contradicted, or misconstrued plain statutory language. See, e.g., State v. Berry, 292 Kan. 493, Syl. ¶ 6, 254 P.3d 1276 (2011) (rejecting court-made rule that contradicted plain language of statute); Casco v. Armour Swift-Eckrich, 283 Kan. 508, 525, 154 P.3d 494 (2007) (rejecting 80-year-old precedent that did not follow key tenet of statutory construction prohibiting adding language not found in statute).

The Court of Appeals’ explanation was that

“[u]pon Curley’s death, his medical negligence claim became an asset of his estate. At the time the fact of injury was reasonably apparent to the estate, the successor-injured party, thereby causing the survival action for medical malpractice to accrue and the running of tire period of limitation to commence pursuant to K.S.A. 60-513(c).” Martin, 43 Kan. App. 2d at 597.

While it may sound good at first, that rationale cannot withstand closer scrutiny.

I will begin by presuming that the term “estate” was intended to refer to a decedent’s estate, as opposed to a conservatorship estate, trust estate, partnership estate, etc., because, otherwise, the knowledge acquisition that the panel attributes to the “estate” would have occurred during Curley’s lifetime. Next, the panel’s rationale that Curley’s “estate” had the legal responsibility to pursue the collection of Curley’s personal assets only works if one assumes that death automatically gives rise to the creation of a legal *268entity that is entitled to hold and administer all of the decedent’s assets on behalf of the ultimate heirs and legatees. But that is not the case, as evidenced by the plethora of provisions contained in the Kansas Probate Code, K.S.A. 59-101 et seq., where actions are commenced by a petition. K.S.A. 59-103(b). Indeed, in today’s world of probate-avoidance estate planning it is probably the exception, rather than the rule, for a surviving spouse to instigate formal probate administration proceedings that would result in the appointment of an executor or administrator. In other words, the establishment of a decedent’s estate for Curley upon his death was no more required, or even likely, than the establishment of a con-servatorship estate while he was living, but comatose.

Even if a personal representative is created for a decedent, the panel does not explain why that invests the estate with the requisite legal knowledge of the fact of injury. Here, if that personal representative is Curley’s wife, she had the same knowledge when she was a potential conservator as when she became a potential executrix or administratrix. Moreover, a personal representative steps into the shoes of the person represented, but the panel would have it the other way around, with the deceased person acquiring the representative’s personal knowledge.

More importantly, the panel’s theory of knowledge acquisition by a deceased injured parly through the personal knowledge of a putative personal representative of a potential decedent’s estate is not founded on any statute, but rather it is a fabrication to justify declaxing that the cause of action did not accrue during Curley’s lifetime. That declaration is necessary to refute the plain language of K.S.A. 60-515, but it cannot survive scrutiny either. If the cause of action did not accrue until the statute of limitations began to run and the statute of limitations did not begin to run until Curley s death, then Curley’s wife could not have brought suit while her husband was still alive. As the Court of Appeals declared, Curley is the injured party in the survival action, not his wife. Martin, 43 Kan. App. 2d at 597. Therefore, the wife would have to find some resource, other than the tortfeasor, to provide the wherewithal to pay for her husband’s assisted living care for however long he might linger before his death triggered tire accrual of a medical malprac*269tice claim. But, of course, as noted above, that is simply not true; a suit could have been filed and prosecuted to a successful conclusion any time from and after April 8, 2004, by Curley’s representative, next friend, or guardian ad litem,. K.S.A. 60-217.

To reiterate, I would find, pursuant to K.S.A. 60-513(c), that Curley’s medical malpractice claim accrued when the fact of injury was objectively ascertainable, which was on April 8, 2004, but that the period of limitation in that statute never commenced because the fact of injury was never reasonably ascertainable by the injured party, Curley. Instead, because Curley died while suffering under a disability contemplated by K.S.A. 60-515(a), the period of limitation set forth in K.S.A. 60-515(b) applied, giving those entitled to claim from, by, or under the deceased 1 year from the date of death to commence the action. Because the action was not commenced within that statute of limitations, it was barred.

Nuss, C.J., joins in the foregoing concurring opinion.

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