noting that equitable estoppel “ ‘is not available for the protection of one who has suffered loss solely by reason of his own acts or omissions. Equity aids the vigilant and not those who slumber on their rights.’ ” (quoting Rex v. Warner, 183 Kan. 763, 332 P.2d 572, 579 (1958))
How later courts described this case
- noting that equitable estoppel “ ‘is not available for the protection of one who has suffered loss solely by reason of his own acts or omissions. Equity aids the vigilant and not those who slumber on their rights.’ ” (quoting Rex v. Warner, 183 Kan. 763, 332 P.2d 572, 579 (1958))
- “It seems senseless for defendant to argue that the ‘gravamen’ of the plaintiff’s cause of action is [medical] malpractice when that action, according to the defendant, has been eliminated by the lies and fraud of the defendant herself”
- “Equitable estoppel does not depend upon legislative authority; it is an inherent power of the courts used to punish unconscionable conduct and estop a guilty party from taking advantage of his or her fraudulent conduct.”
Written by the judges who cited it.
Distinguished
Distinguished by P.W.P. v. L.S., 266 Kan. 417 (1998)
Both defendants correctly point out that all of the cases cited by patient with the exception of Robinson are contract cases and are distinguishable from the instant case, which is a tort action.
The opinion
Knudson, J.,
concurring and dissenting: I concur in the judgment but not with some of the holdings expressed in the majority opinion. Specifically, I do not agree with the holdings in paragraphs 6, 7, and 8 of the syllabus and the corresponding portions of the opinion.
I agree with the majority that the plaintiff did state a cause of action for fraudulent concealment. However, I do not agree that *834 the 10-year statute of repose had run. Moreover, the doctrine of equitable estoppel would not preclude the defendant from asserting the statute of repose as an absolute bar to the plaintiff’s recovery.
Dr. Shah allegedly committed malpractice on November 9, 1983. On November 18, 1983, the plaintiff contends Dr. Shah knew surgical sponges had been left in her abdomen after surgery. From that time until 1986, Dr. Shah continued as the plaintiff’s gynecologist, and the plaintiff continued to complain of abdominal pain. It is the plaintiff’s contention that Dr. Shah fraudulently concealed what had occurred during the entire doctor-patient relationship. Because Dr. Shah had an ongoing duty to disclose the true nature of what had occurred to the plaintiff throughout the period in which Dr. Shah was her physician and ostensibly treating her for pain and discomfort arising as a result of the sponges being left in the plaintiff’s abdomen, I conclude the 10-year statute of repose had not run as of August 16, 1994, when the plaintiff filed her lawsuit. In my opinion, the majority has confused the doctor’s act of malpractice with the subsequent and ongoing fraudulent concealment.
If the plaintiff’s cause of action for fraudulent concealment accrued on November 18, 1983,1 would be required to dissent as I do not agree that the doctrine of equitable estoppel tolls a statute of repose. I believe the majority ignores the essential legal difference between a statute of limitations and one of repose. I also believe “but in no event” as used in K.S.A. 60-513(b) and (c) is plain and unambiguous, leaving no room for application of equitable estoppel.
Our appellate courts recognize the essential distinction between a statute of limitations and a statute of repose. In Morrison v. Watkins, 20 Kan. App. 2d 411, 423 , 889 P.2d 140 , rev. denied 257 Kan. 1093 (1995), this court examined the 10-year statute of repose in K.S.A. 60-513(b) and stated:
“Morrison asserts that the continuous representation [in an attorney-client relationship] rule tolls the statute of limitations. However, K.S.A. 1993 Supp. 60-513(b) establishes a statute of repose rather than a statute of limitations. [Citation omitted.] Statutes of repose are generally substantive and abolish a cause of action *835 after a specific time period, even if the cause of action may not have accrued yet. Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668 , 831 P.2d 958 (1992). In Harding, the Kansas Supreme Court quoted Menne v. Celotex Corp., 722 F. Supp. 662 (D. Kan. 1989), which stated that statutes of repose ‘ “generally lack tolling provisions” ’ 250 Kan. at 662 .” 20 Kan. App. 2d at 423 .
Swartz v. Swartz, 20 Kan. App. 2d 704 , Syl. ¶¶ 2, 3, 894 P.2d 209 (1995), also addresses the differences between a statute of limitations and a statute of repose:
“A statute of limitations extinguishes the right io prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural.”
“A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not yet have accrued. It is substantive.”
I conclude from the above rationale that the doctrine of equitable estoppel, a judge-made remedy, is inconsistent with the entire concept of a statute of repose.
Moreover, “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621 , Syl.¶ 2, 829 P.2d 561 (1992). The majority’s result-oriented holding ignores this fundamental principle by suggesting the legislature could not have possibly contemplated such a result. However, my review of legislative history does not support the majority’s reasoning. See Stephens v. Snyder Clinic Ass’n, 230 Kan. 115 , 631 P.2d 222 (1981), for a discussion of the legislative history of K.S.A. 60-513(c) that contains the same “but in no event” phrase as in 60-513(b).
Because we have no published cases addressing the issue of whether equitable estoppel may bar application of the statute of repose, we understandably have looked at decisions from sister states that might be instructive. The majority cites and quotes from Koppes v. Pearson, 384 N.W.2d 381 (Iowa 1986). Clearly, that decision supports the majority’s rationale.
However, the holding in Bowlin Horn v. Citizens Hosp., 425 So. 2d 1065 (Ala. 1982), comes to a contrary result. In Bowlin Horn , *836 the court considered an Alabama statute which provided a 4-year statute of repose, using the “but in no event” language just as found in the Kansas medical malpractice statute of repose. 425 So. 2d at 1067 . The court construed the “but in no event” language as an absolute bar, even in the presence of fraudulent concealment. I find the reasoning in Bowlin Horn more persuasive than that in Koppes .
This is an issue of firsUimpression in Kansas, and there are good arguments on both sides of the issue. That is another reason I conclude the applicable statute of repose should not be modified by judicial decree but rather left to the legislature for consideration of any proposed exception to the period of repose.