Tompkins v. Bise

Six, J.,

dissenting: I would affirm the Court of Appeals and reverse the trial court.

The majority identifies the question before us as, “does K.S.A. 60-3412 require that an expert witness in a medical malpractice action be a health care provider licensed by the same professional board as the defendant, or does it require the expert witness to be engaged in performing a similar medical procedure as the defendant health care provider?”

By adopting the “performing a similar medical procedure” test, the majority has rewritten K.S.A. 60-3412.

I disagree with a 60-3412 interpretation that permits an expert witness to testify in a medical malpractice action if the expert is licensed in a different profession from the defendant health care provider.

*51Wisker v. Hart, 244 Kan. 36, 43-44, 766 P.2d 168 (1988), rejected the “related area of practice” standard for medical malpractice experts by holding that a physician expert was not limited to the defendant physician’s professional specialty. The two physicians sued in Wisker were Dr. Davis, the decedent’s family doctor, and Dr. Hart, a surgeon with whom Davis consulted concerning the decedent’s condition. Justice (now Chief Justice) McFarland, speaking for the court in Wisker, observed:

“Dr. Schlachter [an expert witness] is a general practitioner of medicine. Dr. Lavigne [another expert witness] is a surgeon. The trial court construed K.S.A. 1987 Supp. 60-3412 to preclude a surgeon from testifying as to die standard of care applicable to general practitioners and vice-versa. Hence, it limited the jury’s consideration of Dr. Lavigne’s testimony to the standard of care of defendant Hart, a fellow surgeon, and the jury’s consideration of Dr. Schlachter’s testimony to the standard of care of defendant Davis, a fellow general practitioner.
“Plaintiff contends this was an erroneous construction of the statute. We agree. K.S.A. 1987 Supp. 60-3412 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. The statute was not intended to require that only a surgeon could testify as to the standard of care of another surgeon, etc. The weight afforded the testimony of physicians testifying outside their area of professional specialization is a matter to be determined by the jury.” 244 Kan. at 43-44.

The majority, by adopting the “similar or related area of practice” standard, has either overruled or seriously questioned Wisker. The rationale advanced by the majority for permitting Captline to testify against Bise is based on a perceived similarity of specialty, oral and maxillofacial surgery.

The majority overlooks the concept of “profession” placed in 60-3412 by the legislature, “actual clinical practice in the same profession in which the defendant is licensed.” (Emphasis added.) In this malpractice action, only a licensed physician can qualify as an expert under K.S.A. 60-3412. Bise, a plastic surgeon, is licensed in the practice of medicine and surgery by the State Board of Healing Arts (K.S.A. 65-2802, K.S.A. 65-2812). Captline, as a dentist, would be licensed by the State Dental Board if practicing in Kansas (K.S.A. 65-1421, K.S.A. 74-1404). The “profession” in which Capt-*52line, is licensed is dentistry. Captline, a dentist, and Bise, a medical doctoreare not in the same profession. Captline has devoted no time “to actual clinical practice” in medicine and surgery, the “profession in which the defendant is licensed. ” (Emphasis added to the 60-3412 statutory language.) Captline is engaged in the actual clinical practice of dentistry. The type of surgery Captline performs, oral and maxillofacial surgery, is by regulation a specialty “branch of dentistry.” Oral and maxillofacial surgery means:

“that branch of dentistry concerning the diagnosis, surgical and adjunctive treatment of disease, injuries and defects of the oral and maxillofacial region.” K.A.R. 71-2-2.

K.S.A. 1994 Supp. 65-1423 relates to the regulation of dentists and dental hygienists. The practice of medicine is specifically excluded:

“Nothing in this act shall apply to the following practices, acts and operations:
“(a) To the practice of a person licensed to practice medicine and surgery under the laws of this state, unless such person practices dentistry as a specialty.”

The majority’s “performing a similar medical procedure” test would appear to permit: (1) a podiatrist to testily as to the standard of care for an orthopedic surgeon; (2) a midwife to testify as to the standard of care for an obstetrician (An obstetrician is a physician licensed by the State Board of Healing Arts. A midwife is a specialty branch of nursing licensed and governed by the State Board of Nursing. K.S.A. 65-1113[d] and [g]; K.S.A. 65-1130; K.A.R. 60-11-102. A midwife and obstetrician may be involved in “performing a similar medical procedure” [assisting in the birthing process]; however, they are not licensed in the same profession.); (3) a nurse anesthetist to testify as to the standard of care for an anesthesiologist (An anesthesiologist is a physician licensed by the State Board of Healing Arts. A nurse anesthetist is a specialty branch of nursing licensed and governed by the State Board of Nursing. K.S.A. 65-1113[g]; K.S.A. 65-1130; K.A.R. 60-11-102.); and (4) an optometrist to testify as to the standard of care for an ophthalmologist (Both are concerned with the eye. An ophthalmologist is a physician licensed by the State Board of Healing Arts. An optometrist is licensed by the State Board of Examiners in Optometry. K.S.A. 65-1502 and K.S.A. 65-1505).

*53The legislature has been engaged in medical malpractice policy issues and related matters for almost 20 years. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 339, 789 P.2d 541 (1990). By enacting 60-3412, the legislature has undertaken the task of establishing expert witness requirements in medical malpractice actions. The majority has judicially grouped within the same profession (as the term is used in 60-3412) the following: dentists and physicians, podiatrists and orthopedic surgeons, midwives and obstetricians, nurse anesthetists and anesthesiologists, optometrists and ophthalmologists. If a policy interpretation that departs from the plain reading of K.S.A. 60-3412 is needed, the remedy lies with the law-making authority, not with this court.

Robert H. Miller, C.J. Retired, assigned, joins the foregoing dissenting opinion.