Decision: Kelly v. VinZant

December 12th. The Kansas Supreme Court has issued its decision in Kelly v. VinZant (No. 94, 648), a torts case. In a unanimous opinion, authored by Justice Luckert, the Court partly affirmed and partly reversed the Court of Appeals and District Court’s decisions terminating a case brought by William Kelly against Whitney VinZant, a surgeon. While blocking Kelly’s suit for fraud based by malpractice (since a prior jury had rejected his malpractice claim) and also blocking his attempt to sue for battery (on statute of limitations grounds), the Court left the door open to Kelly to pursue a claim against VinZant under the Kansas Consumer Protection Act (KCPA). In doing so it held that a 2007 amendment to the KCPA, passed by the legislature in response to a previous decision of the Court was not retroactive. All suits which predated the enactment of that amendment are therefore preserved.

VinZant had performed a series of three operations on Kelly. The first two were not wholly successful and culminated in Kelly losing one of his testicles. Kelly brought three suits (one for each of the operations) which alleged medical malpractice, fraud (VinZant had claimed he did ‘not do bad surgeries’), a violation of the KCPA (related to the fraud claim) and battery by way of fraud (that an operation without consent is battery and the consent was obtained by fraud). The District Court combined these suits and severed the claims. After a jury acquitted VinZant of malpractice the Judge dismissed the other suits since there was no malpractice, there was no fraud. The KCPA claim had been dismissed on the grounds that it did not apply to a medical setting (as opposed to advertisments for professional services).

On Appeal the Court of Appeals affirmed the District Court. It held that the battery claim was initiated outside of the statute of limitations, and that the fraud could not stem from the malpractice since there was none. It noted that after the District Court had ruled, the Supreme Court had decided Williamson v. Amrani which held that a medical practitioner could be sued under the KCPA. However, the Court of Appeals held that in this case the District Court was right for the wrong reason in that the KCPA claim was also barred by the jury’s finding of no malpractice.

The Supreme Court agrees with the Court of Appeals on the fraud. Kelly had sought to argue that the fraud was disconnected to the malpractice since it related to his decision making to allow the operations. Nevertheless the Supreme Court held that since the alleged fraud was connected to the surgeries that it is not a separate complaint but falls under medical malpractice. Therefore, the jury’s verdict foreclosed the fraud claim.

The Supreme Court also agrees with the lower courts on the battery claim. Kelly had argued that since he did not consider the consent to the operations to be fraudulently obtained until much later (at the conclusion of the three treatments) the statute of limitations on battery should run from there, just as the one for fraud runs from the moment of discovery of the fraud. The Court disagreed, holding that the statute of limitations for battery is one year from the physical incident and contains no exceptions.

Where the Supreme Court disagreed with the lower courts was over the KCPA. In doing so it brings to a close an issue which has involved all three branches of the State Government. In Williamson v. Amrani the Court had held that the KCPA applies medical situations where a physician’s statements to the patient constitute deceptive practices and not purely to other contexts such as advertising. In this case the ‘I not do bad surgeries’ statement might qualify. In 2007 the Legislature attempted to modify the KCPA to overturn Williamson (SB 55). The Governor vetoed SB 55, whereupon the Legislature again modified the KCPA via HB 2451, which became law. The Court examined the text of the amendment and held that it was not retroactive since there was no indication that it was intended that way, therefore while future suits are blocked, those already in progress may proceed. A footnote here is that the original text of the vetoed bill says ‘nothing in this act shall be construed to…’ while the amendment which made it into law says ‘the KCPA does not allow…’. Whether the Court would have considered SB 55 retroactive is a question which there will never be an answer to.

As a result of its ruling, Kelly’s various claims are terminated except for the KCPA case, which is remanded to the District Court for further proceedings.

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