concurring and dissenting: I concur with the majority’s determination that there is insufficient evidence to establish the negligence of Dr. Roberts.
In Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991), a majority of this court determined that K.S.A. 1990 Supp. 40-3403(h), which abrogated the common-law vicarious liability of an employer health care provider under circumstances specified in the statute, bears a reasonable relationship or basis to the objectives sought to be obtained by the legislature and does not violate Section 1 *298of the Bill of Rights of the Kansas Constitution. The majority noted no one has a vested right in common-law rules governing negligence actions which would preclude substituting a viable statutory remedy for one available at common law and that the legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished. 248 Kan. at 838-39. It then determined major statutory enactments establishing a broad, comprehensive statutory remedy or scheme of reparation in derogation of a previously existing common-law remedy may be subsequently amended or altered without each such subsequent change being supported by an independent and separate quid pro quo. 248 Kan. at 842, 844.
In Bair, I joined the separate dissents of Justice Herd and Justice Allegrucci, which stated that the substitute remedy originally granted by the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq., is not an adequate quid pro quo for the subsequent abrogation of vicarious liability of an employer health care provider as a remedy available to those injured by the negligence of employee health care providers.
Based on the rationale of the dissents in Bair, I must also dissent in this case.
Allegrucci, J., joins the foregoing dissenting and concurring opinion.