holding medical malpractice insurance requirements existing "[a]t the time of the malpractice alleged by the plaintiff" were adequate to support amendment eliminating vicarious liability claims against doctors' employers because quid pro quo would have been sufficient if amendment was part of original Act
How later courts described this case
- holding medical malpractice insurance requirements existing "[a]t the time of the malpractice alleged by the plaintiff" were adequate to support amendment eliminating vicarious liability claims against doctors' employers because quid pro quo would have been sufficient if amendment was part of original Act
- reasoning mandatory liability insurance minimums were "a sizeable quid pro quo . . . and certainly [were] an adequate substitute remedy for the common-law rights given up by injured malpractice victims."
- holding medical malpractice minimums provided substitute remedy for abrogation of vicarious liability claim against health care provider's employer
- abrogation of vicarious liability between health care providers if they are both covered by the Act
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Miller v. Johnson, 295 Kan. 636 (2012)
248 Kan. 824 , 811 P.2d 1176 (1991), and abrogated on other grounds by Miller, 295 Kan. 636
The opinion
Allegrucci, J.,
dissenting: I join the dissent of Justice Herd and make some additional comments.
I basically agree with the majority’s statements of law, but disagree with the majority’s rationale in concluding that K.S.A. 1990 Supp. 40-3403(h) does not violate Section 18 of the Bill of Rights of the Kansas Constitution.
As recognized by the majority, “ ‘[t]he legislature can modify the common law so long as it provides an adequate substitute remedy for the right infringed or abolished.’ ” I disagree, however, that the substitute remedy originally granted by the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq., is an adequate quid pro quo for the subsequent abrogation of vicarious liability as a remedy available to those injured by the negligence of health care providers.
Although further recognizing that the legislature, once having established a substitute remedy, cannot constitutionally proceed to emasculate the remedy, by amendments, to a point where it is no longer a viable and a sufficient substitute remedy, the majority concludes that point has not been reached. The majority arrives at this conclusion by convincing itself that the “sizeable quid pro quo” granted by the passage of the original Act is an adequate substitute remedy to support the continued reduction of the remedies available to injured malpractice victims. Such rationale is nothing more than a legal sleight of hand. I am unable to determine at what point the majority of this court would find *846 the systematic abrogation of remedies to be constitutionally impermissible.
Herd and Lockett, JJ., join the foregoing dissent.