Motion to Dismiss — Liggett v. Kansas ex rel. Schneider

ne Court, U. S.

FILED

H JUN 28 1978

biti ein)

In the Supreme Court of the United States ——

OCTOBER TERM, 1977

No. 77-1621

BYRON TIMOTHY LIGGETT,

Appellant,

VS.

STATE OF KANSAS, EX REL., CURT T. SCHNEIDER,

ATTORNEY GENERAL, KANSAS HOSPITAL ASSOCIA-

TION, THE KANSAS MEDICAL SOCIETY, THE

KANSAS HEALTii CARE PROVIDER INSURANCE

AVAILABILITY PLAN,

Appellees.

On APPEAL FROM THE SUPREME COURT OF KANSAS

JOINT MOTION TO DISMISS OR AFFIRM

CurT T. SCHNEIDER

Attorney General

DonALD R. HOFFMAN

Assistant Attorney General

State Capitol Building

Topeka, Kansas 66612

Attorneys for State of Kansas—

Petitioner-Appellee

(Other Counsel on Inside Cover)

E. L. MeNpeNHALL. Isc... 926 Cherry Street, Kansas Citv, Mo. 64106, (816) 421-3031

TABLE OF CONTENTS

Index to Citations

CASES

Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702,

at Se EY EEE eccidhscncecnndctincsnctinnchsbnninidinenbmanisnicciniipmiiaie

Barsky v. Board of Regents, 347 U.S. 442, 74 S.Ct. 650,

TERE ry Ore OnE eae

Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.

a ee ED Secceesputessnipsndeainsetieintehceeieaieenlpilocaalenieindintdichiniaas

Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27

UE: miccisiceteceiedeneceicaesmninceniabeiainesiedlaombbibiaphiaashuailbanpiattaasteti

Buschbacher v. Supreme Court of Ohio, No. C-2-75-743

(S.D. Ohio, filed Oct. 13, 1976), affirmed Mem. sub.

nom., Cuyahoga County Bar Association v. Supreme

Court of Ohio, 430 U.S. 901, 97 S.Ct. 1167, 51 L.Ed.2d

SOP STITT shutscssieunicedlatcicealanislaaphieaibohaeeitanisaadccstaieanaicinanennaed SOE

City of Tucson v. Stewart, 45 Ariz. 36, 40 P.2d 72

TEETER Serer ae eee

Continental Baking Co. v. Woodring, 286 U.S. 352, 52

S.Ct. 595, 76 L.Ed. 1155 (1932) .............. eens deaascdotant

Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423,

72 S.Ct. 405, 407, 96 L.Ed. 469, 472 (1952) ................... 5

Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32

EE EET a ee 8

Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10

EE eee 4

Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 8 81 L.Ed.

Se CD cecerinernarsitiectineninesinrctsinsinedinmciubisrincsiiosticbeiabesnsionss 7

In Re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed.

SEP III ceneesasetiestattinasieserientenenescsnszansernsennnmenssatpentnteasieennans 6

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 354, 95

S.Ct. 449, 455, 42 L.Ed.2d 477, 485 (1974) 000. 7

Jones v. State Board of Medicine, 97 Idaho 859, 555

P.2d 399 (1976), cert. denied, 431 U.S. 914, 97 S.Ct.

173, SS LEG.2d BBS (1977) 2..n.n.ceccccecececcccesesececcecececeneeees 7

Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct.

ee 4

Konigsburg v. State Bar, 353 U.S. 252, 7 1 1 S.Ct. 722, 1

BO EE 9

Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49

gE a ee 4,6

McGuffey v. Hall, 557 S.W.2d 401 (Ky. 1977) ies ae

Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97

S.Ct. 1932, 52 L.Ed.2d 531 (1977)... cccccccccccccccceceneeeeens 4

Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 18 L.Ed.

ae 4,7

Noble State Bank v. Haskell, 219 U.S. 104, : 31 S.Ct. 186,

55 L.Ed. 112 (1911) ............ etcasiadiibianiidiiaadumnamupsanalcatemeass 5

North Dakota State Board of Phermany | v. antes

ne Pops Inc., 414 U.S. 156, 94 S.Ct. 407, 38

Payne v. State ex rel. Brewster, 248 U.S. 112, 39 S.Ct.

32, 63 L.Ed. 153 (1918), affirming, State ex rel.

Brewster v. Mohler, 98 Kan. 465, 158 P. 408 (1916) 7

Schware v. Board of Bar Examiners, 353 U.S. 232, 77

S.Ct. 752, 1 LEd.2d 796 (1957) oo... cccccccccccceceeeeseeene 9

Semler v. Oregon State Board of Dental Examiners,

294 U.S. 608, 612, 55 S.Ct. 570, 572, 79 L.Ed. 1086,

EARL Re Ee 7

Slochower v. Board of Education, 350 U.S. 551, 76 S.Ct.

G37, 100 LiKe. GBS (1GGG) nnn. ccccccccccccceccocececseseececes 9

State ex rel. Schneider v. Liggett, 223 Kan. 610, 615,

ee PUD ta MF IIE icicrceiecticrrsesiaterieuninisienstentinsiasicats 4,7

Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct, 215, 97

I a)

Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct.

OS ee 5,6

STATUTES

Kan. Stat. Ann. 40-3402(a) (Supp. 1977) 000000. 2

Kan. Stat. Ann. 40-3404(a) (Supp. 1977) .. aa 2

Kan. Stat. Ann. 40-3401(f) (Supp. 1977) 00000

OTHER AUTHORITIES

Note, Recent Legislation: The Kansas Approach to

Medical Malpractice, 16 Wash. L.J. 395 (1977) ........ 2

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1621

BYRON TIMOTHY LIGGETT,

Appellant,

vs.

STATE OF KANSAS, EX REL., CURT T. SCHNEIDER,

ATTORNEY GENERAL, KANSAS HOSPITAL ASSOCIA-

TION, THE KANSAS MEDICAL SOCIETY, THE

KANSAS HEALTH CARE PROVIDER INSURANCE

AVAILABILITY PLAN,

Appellees.

On APPEAL FROM THE SUPREME CouRT OF KANSAS

JOINT MOTION TO DISMISS OR AFFIRM

The appellees move, pursuant to S.Ct.R. 16, to dismiss

this appeal or affirm the decree on the ground that: (1)

the Kansas Supreme Court specifically found, as a factual

matter, that the statute in question was reasonably neces-

sary to the promotion of the public health and welfare;

(2) this court has held in a long line of cases that such

a finding is sufficient to uphold a statute as against a

due process attack; and (3) the issue presented is therefore

not a substantial federal question deserving of briefing

or argument.

2

I,

STATEMENT

A.

Statutes

The appellant seeks to challenge a compulsory insur-

ance requirement imposed upon him by the Kansas Health

Care Provider Insurance Availability Act [Kan. Stat. Ann.

40-3401 to 3419 (Supp. 1977)]. The Act was passed by

the 1976 Kansas legislature, along with 11 other bills,

as a response to what was perceived to be a severe problem

caused by increasing premiums for and decreasing avail-

ability of professional liability insurance for health care

professionals. See generally Note, Recent Legislation: The

Kansas Approach to Medical Malpractice, 16 Washburn L.J.

395 (1977). The primary feature of the act is a require-

ment that all “health care providers” carry, as a condition

of practicing within the state, basic professional liability

coverage in the amount of $100,000 per occurrence with

a $300,000 annual aggregate for all claims made during

the policy period. Kan. Stat. Ann. 40-3402(a) (Supp. 1977).

In addition, all health care providers are required to pay

a surcharge on all policies, which in turn is paid into

a state-administered fund that provides excess coverage

for any liability beyond the basic $100,000/$300,000 limit.

Kan. Stat. Ann. 40-3404(a) (Supp. 1977). The term “health

care provider” is defined as a person licensed or who

holds a temporary or fellowship permit under the Kansas

Healing Arts Act, a medical care tacility, a health mainte-

nance organization, an optometrist, a podiatrist, a pharma-

cist, a nurse anesthetist, or a professional corporation made

up of individuals engaged in such professions, a dentist

licensed to administer anesthetics, a physical therapist,

or a mental health center or clinic. Kan. Stat. Ann. 40-

3401 (f) (Supp. 1977).

Proceedings Below

The appellant in this case, a physician, refused to

comply with the compulsory insurance requirement and,

on August 2, 1977, was enjoined by the District Court

of Barton County, Kansas from practicing medicine until

such time as he did so. By entering such an order, the

court rejected the appellant’s contention that the require-

ment violated the due process and equal protection clauses

of the fourteenth amendment.

Although the trial court recognized the constitutional

issues alleged to exist, it viewed the case as one primarily

hinging upon its peculiar facts. The record before it

consisted of over 1,000 pages of legislative testimony and

other material replete with references to the twin problems

of increasing costs and decreasing availability of malprac-

tice insurance. The record reflected significant concern

as to the possibility that the problems might drive estab-

lished practitioners from the state and discourage new

ones from establishing themselves, thereby causing a gen-

eral decrease in the quality of health care available to

the Kansas public. Kansas is, of course, a rural state

with an already-severe health care problem caused by

a shortage of trained personnel. The trial court concluded,

in light of the impressive testimony outlining the problem

and proposing compulsory insurance as the most likely

solution, that without question the legislature could have

reasonably decided that compulsory insurance was neces-

sary. In support of its conclusion, the trial court entered,

as an appendix to its Journal Entry of Judgment, numer-

ous findings of fact outlining in detail the lengthy testi-

4

mony heard by the legislature. The appellant has ne-

glected to include that appendix in his jurisdictional state-

ment but it may be found herein as Appendix A.

Upon appeal to the Supreme Court of Kansas, the

decision of the trial court was affirmed. State er rel.

Schneider v. Liggett, 223 Kan. 610, 576 P.2d 221 (1978).

The Kansas Supreme Court rejected the appellant's equal

protection claim, a point that is not pursued here. It

also held that the mandatory insurance provisions do not

violate due process, finding that “[mJandatory malpractice

insurance bears a rational relationship to the health and

welfare of the citizens of this state by not only providing

protection to patients who may be injured as a result

of medical malpractice, but by assuring that there continues

to exist in the state an adequate supply of health care

providers.” Id. 223 Kan. at 616, 576 P.2d at 227.

Il,

ARGUMENT

Ever since the demise of substantive due process exern-

plified by Lochner v. New York, 198 US. 45, 25 S.Ct.

539, 49 L.Ed. 937 (1905), this court has generally refused

to inject itself into a legislative debate as to the wisdom

or utility of a particular legislative policy. See Moore

v. City of East Cleveland, Ohio, 431 USS. 494, 97 S.Ct.

1932, 52 L.Ed.2d 531 (1977); Ferguson v. Skrupa, 372 U.S.

726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); Bartkus v. IUlinois,

359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Nebbia

v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940

(1934). As this court has expressly stated, it does not

“sit as a superlegislature to weigh the wisdom of legislation

nor to decide whether the policy which it expresses offends

the public welfare.” Day-Brite Lighting, Inc. v. Missouri,

342 U.S. 421, 423, 72 S.Ct. 405, 407, 96 L.Ed. 469, 472

(1952). State legislatures thus have “constitutional author-

ity to experiment with new techniques” entitling them

to their “own standard of the public welfare” and this

court will “leave debatable issues as respects business,

economics, and social affairs to legislative decision.” Id.,

342 U.S. at 423, 425, 72 S.Ct. at 407, 408, 96 L.Ed. at

472, 473. As was said in Williamson v. Lee Optical Co.,

348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), a case

involving state regulation of ophthalmologists, optometrists

and opticians:

It is enough that there is an evil at hand for cor-

rection, and that it might be thought that the particu-

lar legislative measure was a rational way to correct

it.

The aay is gone when this Court uses the Due Process

Clause of the Fourteenth Amendment to strike down

state laws, regulatory of.business and industrial condi-

tions, because they may be unwise, improvident, or

out of harmony with a particular school of thought.

Id. 348 U.S. at 488, 75 S.Ct. at 464, 99 L.Ed. at 572.

The appellant nonetheless suggests that those estab-

lished principles are somehow inapplicable to him. He

contends that in the area of occupational licensing this

court has forever limited the parameters of the police

power to regulation reasonably related to fitness and com-

petency. To the contrary, however, this court has ex-

pressly stated that the boundaries of the police power

are always flexible, never rigid. Berman v. Parker, 348

U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954); Noble State Bank

v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112 (1911).

This court has in fact repeatedly recognized that the states

possess especially broad power in the area of occupational

licensing because it is so peculiarly affected by the public

interest. North Dakota State Board of Pharmacy v. Syn-

der’s Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38

L.Ed.2d 379 (1973); Williamson v. Lee Optical Co., 348

U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955); In Re Summers,

325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1975 (1945). See

also Buschbacher v. Supreme Court of Ohio, No. C-2-75-

743 (S.D. Ohio, filed Oct. 13, 1976), affirmed Mem. sub.

nom., Cuyahoga County Bar Association v. Supreme Court

of Ohio, 430 U.S. 901, 97 S.Ct. 1167, 51 L.Ed.2d 577 (1977).

For example, in Williamson v. Lee Optical Co., the

law in question prohibited opticians from fitting or dupli-

cating lenses without a prescription. It also prohibited

advertising by all eye care professionals and barred retail

stores from furnishing space for eye examinations. The

requirements clearly bore no particular relationship to fit-

ness or competency. In fact, the evidence tended to show

that the public benefit was at best remote and, in all

likelihood, imaginary. Nonetheless, the law was upheld:

The .. . law may exact a needless, wasteful ze-

quirement in many cases. But it is for the legislature,

not the courts, to balance the advantages and disad-

vantages of the new requirement. ... [T]he law

need not be in every respect logically consistent with

its aims to be constitutional. It is enough that there

is an evil at hand for correction, and that it might

be thought that the particular legislative measure was

a rational way to correct it.

Id. 348 U.S. at 487-88, 75 S.Ct. at 464, 99 L.Ed. at 571-72.

Moreover, even during the Lochner era of due process

this court recognized that the state could, pursuant to

its police power, require members of a given profession

7

to maintain a bond. It upheld a Kansas law that required

livestock commission merchants to provide a bond as a

prerequisite to doing business. Payne v. State ex rel.

Brewster, 248 U.S. 112, 39 S.Ct. 32, 63 L.Ed. 153 (1918),

affirming State ex rel. Brewster v. Mohler, 98 Kan. 465,

158 P. 408 (1916). Similarly, mandatory insurance for

public carriers has withstood the same attack made here.

Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct.

595, 76 L.Ed. 1155 (1932). Health care is certainly as

affected with the public interest as are public carriers.

See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 354,

95 S.Ct. 449, 455, 42 L.Ed.2d 477, 485 (1974); Semler v.

Oregon State Board of Dental Examiners, 294 U.S. 608,

612, 55 S.Ct. 570, 572, 79 L.Ed. 1086, 1090 (1935); Nebbia

v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940

(1934). Finally, a form of insurance that affects every

citizen has been upheld by this court—Social Security.

Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed.

1307 (1937).

In consequence, several state courts have upheld man-

datory insurance or bond requirements. See City of

Tucson v. Stewart, 45 Ariz. 36, 40 P.2d 72 (1935). Com-

pulsory insurance is therefore a fact of life for many

professions and occupations. The Kansas Supreme Court

identified seven different vocations required by Kansas

law to maintain liability insurance. State ex rel. Schneider

v. Liggett, 223 Kan. 610, 615, 576 P.2d 221, 226 (1978).

The Idaho Supreme Court identified nine in an opinion

presenting the identical question involved here. Jones

v. State Board of Medicine, 97 Idaho 859, 555 P.2d 399

(1976), cert. denied, 431 U.S. 914, 97 S.Ct. 173, 53 L.Ed.2d

223 (1977). Thus, the issue has long been settled and

no longer presents a substantial federal question. This

court obviously recognized that just last term when it

denied certiorari in Jones v. State Board of Medicine.

The two cases relied upon by the appellant do not

stand for a contrary result. The first, Dent v. West Vir-

ginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889), was

an early occupational licensing case in which the court

recognized the breadth of the police power and that under

it the states were “authorized” to impose training and

skill requirements on the professions. Id., 129 U.S. at

122, 9 S.Ct. at 223, 32 L.Ed. at 626. The case does not

stand for the proposition asserted by the appellant and

most certainly does not establish a rule forever cast in

stone:

In this country, the requirement [of due process]

is intended to have a similar effect against legislative

power, that is, to secure the citizen against any arbi-

trary deprivation of his rights, whether relating to

his life, his liberty, or his property. Legislation must

necessarily vary with the different ob jects upon which

it is designed to operate. It is sufficient, for the pur-

poses of this case, to say that legislation is not open

to a charge of depriving one of his rights without

due process of law, if it be general in its operation

upon the subjects to which it relates, and is enforce-

able in the usual mode established in the administra-

tion of government with respect to kindred matters,

that is, by process or proceedings adapted to the nature

of the case. The great purpose of the requirement is

to exclude everything that is arbitrary and capricious

in legislation affecting the rights of the citizen.

Id., 129 U.S. at 124, 9 S.Ct. at 234, 32 L.Ed. at 626 (em-

phasis added). In this case of course the object was not

to insure competent practitioners but, rather was to reduce

the cost and increase the availability of malpractice insur-

ance. Such difference in purpose may obviously lead to

a difference in method.

The second case relied upon by the appellant, Schware

v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752,

1 L.Ed.2d 796 (1957), is even further from the mark. The

case stands for two propositions. The first is that the

old right-privilege distinction exemplified by Barsky v.

Board of Regents, 347 U.S. 442, 74 S.Ct. 650, 98 L.Ed.

829 (1954), is no longer valid. 353 U.S. at 239 n.5, 77

S.Ct. at 756, 1 L.Ed.2d at 801. The second is that the

state may not penalize the exercise of first amendment

rights by a licensee or an applicant for a license by deny-

ing or revoking an occupational license on that basis;

Schware centered upon a refusal to permit a law school

graduate to take the bar examination because of previous

political associations. Although the court used broad lan-

guage that has been seized upon by the appellant, the

primary authorities cited leave no doubt that the court

regarded the case as one involving first amendment rights.

In both of the cases cited [Slochower v. Board of Educa-

tion, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) and

Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed.

216 (1952)], the court utilized the due process clause to

protect first amendment freedoms. The point was more

clearly made in Schware’s compansion case, Konigsburg v.

State Bar, 353 U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 (1957),

in which the court held that the power of a state to

select its bar could not be exercised in an “arbitrary or

discriminatory manner nor in such way as to impinge

on the freedom of political expression or association.” 353

U.S. at 273, 77 S.Ct. at 733, 1 L.Ed.2d at 825. In addi-

ition, subsequent cases have interpreted Schware as one

involving the first amendment. See Baird v. State Bar

of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971);

Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675,

17 L.Ed.2d 69 (1967). This is patently not a first amend-

ment case.

10

Finally, although it is not binding on this court, brief

mention should be made of McGuffey v. Hall, 557 S.W.2d

401 (Ky. 1977), in which the Kentucky Supreme Court

concluded that compulsory malpractice insurance was un-

constitutional. The case is hardly persuasive because the

Kentucky court’s analysis was the exact opposite of that

utilized by this court. It placed the burden on the state

to justify the legislation and then found that “the provision

for compulsory malpractice insurance has not been shown

to be justified as an exercise of the police power.” 557

S.W.2d at 414. Moreover, the decision rested on the Ken-

tucky Constitution: “We express no opinion with respect

to the due process provision of the federal Constitution,

which in latter times has become something of a moving

target, defying captivity.” 557 S.W.2d at 414. The decision

was also made in a vacuum, without reference to any

legislative facts justifying the legislation:

We have held the compulsory insurance requirement

invalid because there is neither a showing nor any-

thing else of which we may take judicial notice to

indicate how it might tend to alleviate the problem

of scarcity and high cost of medical malpractice insur-

ance. It is entirely possible that this deficiency can

be remedied.

557 S.W.2d at 416 (emphasis added). The findings of

fact entered in this case conclusively remedy any “defi-

ciency,” if in fact one exists.

Ill.

CONCLUSION

In a nutshell, therefore, this court has for many years

upheld broad utilization of the police power, requiring

11

only that legislation have some connection with the prob-

lem at hand. The findings entered in this case clearly

show the existence of such a connection. The appellees

therefore move the court to dismiss this appeal or, in

the alternative, to affirm the judgment entered in the

matter by the Supreme Court of Kansas on the ground

that the issue involved has long been decided and no

longer presents a substantial federal question.

Respectfully submitted,

Curt T. SCHNEIDER

Attorney General

DonaLp R. HorrMAN

Assistant Attorney General

State Capitol Building

Topeka, Kansas 66612

Attorneys for State of Kansas—

Petitioner-Appellee —

Wayne T. STRATTON

CHARLES R. Hay

GOODELL, CoGswELL, STRATTON, EDMONDS,

PALMER & WRIGHT

215 East Eighth Street

Topeka, Kansas 66603

Attorneys for Kansas Hospital Asso-

ciation and Kansas Medical Society

—Intervenor-Appellees

L. M, Cornisn, JR.

GLENN, CornisH & LEUVENBERGZE

First National Bank Tower

Topeka, Kansas 66603

Attorney for Kansas Health Care

Provider Insurance Availability

Plan—Intervenor-Appellee

13

APPENDIX “‘A”’

Appendix to Barton County District Court

Journal Entry of Judgment

(Filed August 2, 1977)

APPENDIX I

Legislative Facts

1. The interim special legislative committee on medi-

cal malpractice met seven times. At each meeting, a num-

ber of representatives from legal, medical, and insurance

groups were present. (Minutes of special committee on

medical malpractice for June 24/25, 1975, July 22/23,

1975, August 27/28, 1975, September 23/24, 1975, October

14, 1975, October 28, 1975, November 13/14, 1975.)

2. The interim committee ai its first meeting was

told that the medical liability insurance problem was na-

tionwide although the problem had perhaps not reached

crisis proportions in Kansas. (Interim committee minutes,

June 24/25, 1975, p. 2.)

3. The committee heard a synopsis of the views of

medical providers, the insurance industry, the legal profes-

sion, and consumer groups. (Minutes, June 24/25, 1975,

Attachment A.)

4. The committee was also told that the Kansas Medi-

cal Society had reported in February, 1975, that premiums

had increased 50 to 150 percent during the past three

years with some increases going as high as 300 percent.

It was also told that a number of insurance companies

writing coverage in the state would not accept new physi-

cians for coverage, that the physicians who had had claims

14

filed against them had a chance at being canceled, and

that a number of letters had been received from practi-

tioners in the state who could not find an insurer. Finally,

the committee heard that some sources had stated that

the ratio of malpractice wlaims per doctor in the state

of Kansas went from 1 in 33 in 1969 to 1 in 18 in 1973.

(Minutes, June 24/25, 1975, p. 4, Attachment A.)

5. The committee was told that the Department of

Health, Education and Welfare had commissioned a study

of the medical malpractice insurance problem, and a copy

of a summary of that committee’s recommendations was

made available to the interim committee members. (Min-

utes, June 24/25, 1975, Attachment B.)

6. Summaries of legislation proposed in the Congress

and either proposed or enacted in various states were

also given to committee members. (Minutes, June 24/25,

1975, Attachments G through O.) One of the states men-

tioned, Wisconsin, had passed a bill permitting its commis-

sioner of insurance to establish a mandatory risk-sharing

plan involving compulsory liability insurance for health

care providers. (Minutes, June 24/25, 1975, Attachment

N.)

7. The interim committee members also received a

copy of an article setting forth the insurance industry's

view of the problem, a newspaper report taking note of

the increasing malpractice insurance problem in a number

of states and a summary of the law of damages and of

limitations of actions as they relate to medical malpractice.

(Minutes, June 24/25, Attachments C through E.)

8. Finally, the committee heard Fletcher Bell, Kansas

Commissioner of Insurance, and representatives of Kansas

hospitals testify as to their view of the problem. (Minutes,

June 24/25, 1975.)

15

9. Commissioner Bell told the committee that the

insurance problem had not yet reached a crisis point in

Kansas but that there were “some disturbing indications

that this period of relative tranquility is coming to an

end.” Bell noted that there was already a potentially

serious problem in Hutchinson and another in Wichita

caused by the withdrawal of Lloyds of London from the

medical malpractice insurance market. He noted that

“everyone must share in the responsibility and everyone

must be willing to contribute and perhaps even sacrifice

a portion of the advantages they now have if we are

to avoid some of the difficulties experienced in other locali-

ties.” (Minutes, June 24/25, 1975, Attachment P.)

10. Frank Gentry, of the Kansas Hospital Association,

told the committee that the problem in Kansas had become

“extremely severe” in the last 18 months, especially with

the withdrawal of the Argonaut Insurance Company from

Kansas. Mr. Gentry cited as examples of the problem

two increases in hospital premiums of 300 percent and

one of 400 percent in the year immediately preceding.

He also stated that although he had no proof he strongly

believed that a national factor was computed into Kansas

premiums in a manner that caused Kansas premiums to

be higher than its claim experience would otherwise re-

quire. (Minutes, June 24/25, 1975, Attachment S.) Mr.

Gentry also gave to each interim committee member an

American Hospital Association report containing details

of the problem on a state-by-state basis. (Minutes, June

24/25, 1975, Attachment T.)

11. Mr. Jerry Jorgensen, administrator of Stormont-

Vail Hospital in Topeka, explained his view of the problem

and noted that the medical liability portion of his hospital’s

insurance was on the increase. (Minutes, June 24/25, 1975,

pp. 12-13.)

16

12. Mr. Steve Blaes, an attorney, told the committee

that the insurance problem could drive hospital costs up-

ward, cause increasing defensive medicine practices, force

many older and part-time physicians into early retirement,

cause young physicians to forego private practice entirely,

and have an adverse effect on hospital bond offerings.

(Minutes, June 24/25, 1975, Attachment U).

13. The interim committee members also received

from Commissioner Bell copies of reports on medical mal-

practice insurance in Kansas prepared by him and dated

March 14, 1975, and June 25, 1975. (Minutes, June 24/25,

1975, Attachments Q and R.)

14. In the March 14, 1975, report (Attachment B),

Commissioner Bell noted that:

(a) The Kansas public could suffer from lack of ade-

quate numbers of health care providers and from higher

health care costs if the malpractice insurance problem

were not resolved;

(b) Approximately 15 insurance companies were li-

censed to write malpractice coverage in Kansas, but the

estimated Kansas premium volume represented only .7

percent of the national total of premiums collected;

(c) Of the companies writing insurance coverage in

this state, the Medical Protective Company provided 50

percent of the coverage and the St. Paul Insurance Com-

panies 36 percent. Hartford Accident and Indemnity Com-

pany wrote 6 percent and other companies 8 percent;

(d) Although the Kansas rate was relatively low,

insurance companies were nevertheless reluctant to write

coverage for additional health care providers because of

the steadily increasing malpractice claim settlement costs

and claims frequency potential;

17

(e) Data compiled by the Insurance Commissioner’s

office showed the ratio of claims per doctor to have in-

creased from 1 in 33 in 1969 to 1 in 18 in 1973;

(f) The so-called “long tail” of medical malpractice

insurance caused by claims incurred but not reported until

sometime after the actual injury was causing substantial

problems in establishing fair premiums;

(g) The unfavorable loss experience of the insurance

companies on a national basis, changes in the public atti-

tude and in legal opinions, and the inflated economy were

all three causes of the lack of market stability in Kansas;

(h) Additional or higher rates would not induce

availability of insurance;

(i) He had been informed that some individual medi-

cal practitioners had ceased to practice in Kansas because

adequate insurance coverage was not available.

15. The June 25, 1975, report (Attachment Q) sup-

plemented the March 14 report. In it, Commissioner Bell

noted that:

(a) Two companies had requested rate increases of

200 percent or more.

(b) The Liberty Mutual Insurance Company had in-

dicated a desire to withdraw from the state.

(c) New physicians and surgeons were frequently

requesting the insurance department's assistance in locat-

ing adequate coverage, and without the direct assistance

of the department, the necessary insurance coverage was

difficult to obtain.

(d) Even the two largest carriers of malpractice in-

surance in the state did not write enough premium volume

to be used as a creditable basis for rate formulation based

only on the Kansas experience.

18

16. At its July meeting, the interim committee was

told by Dr. Don George, interim association dean-ofthe—

Wichita branch of the University of Kansas Medical School,

that a group of private practitioners who taught at the

Wichita Medical School had encountered substantial diffi-

culty in obtaining coverage for their teaching activities.

He noted that the problem was the only one of its kind

to date but that if it became the trend it would result

in the closing of the Wichita branch of the medical school

or in the expenditure of state money to provide full-time

faculty. (Interim committee minutes, July 22/23, 1975,

p. 3.)

17. Dr. David Robinson, acting executive vice chan-

cellor of the University of Kansas Medical Center, stated

that doctors were practicing defensive medicine and were

not attempting new techniques because of the insurance

problem. He noted that it had been estimated that the

insurance problem added 12 to 15 billion dollars per year

to the public’s medical bills. (Minutes, July 22/23, 1975,

p. 5.)

18. The interim committee also heard Roy House,

administrator of Wesley Medical Center in Wichita, Kansas,

explain that the premium cost for Wesley had gone from

$13,000 per year from mid-1958 through mid-1969 to $103,-

000 per year from mid-1969 to mid-1973 and then to $158,-

000 per year from mid-1973 to mid-1974. Mr. House also

noted that Wesley’s coverage had been canceled as of

January 1, 1975, and that Wesley was able to obtain insur-

ance only at a premium of $652,000 per year, a 300 percent

increase that necessitated a $2 increase in the daily service

charge. (Minutes, July 22/23, 1975, pp. 9-10). Mr. House

told the committee that the malpractice problem was jeop-

ardizing long-term hospital financing, posed a threat to

emergency care, jeopardized high-risk services, threatened

19

medical education in Kansas, and posed problems in the

development of out-patient programs. (Minutes, July

22/23, 1975, p. 10.) Mr. House told the committee that

if the private sector could not make malpractice insurance

available, the state should go into the insurance business

because the problem was public in nature. (Minutes, July

22/23, 1975, pp. 11-12.)

19. Mr. Jim Clark, of the Kansas Optometric Associa-

tion, noted that his group was facing substantial problems

in availability of coverage. (Minutes, July 22/23, 1975,

p. 15.)

20. Dr. John Travis, president of the Kansas Medical

Society, told the committee that the malpractice problem

had led to the practice of defensive medicine, had caused

a deterioration in the climate between the doctor and

the patient that adversely effected the quality of care,

and could limit the availability of service. (Minutes, July

22/23, 1975, p. 15.)

21. Dr. Steven Brunner, a young family practitioner

who opened his practice in Pittsburg in July, 1975, told

the committee of the problems that he had had in obtain-

ing coverage. He noted that the problems he had faced

in Kansas had caused him to consider other states and

that the insurance problem in Kansas could cause young

family doctors to go elsewhere. (Minutes, July 22/23,

1975, pp. 15-16.)

22. Dr. Tony Mahaffee, of Baxter Springs, told the

committee that the malpractice problem could cause him

to leave Baxter Springs. (Minutes, July 22/23, 1975, p.

16.)

23. Dr. Dan Caliendo, of Wichita Emergency Care,

explained the problems that his group had faced in obtain-

ing the necessary coverage. He noted that they had ob-

20

tained coverage only after the direct intervention of the

Insurance Commissioner’s office and then at an increase

of 2,000 percent. (Minutes, July 22/23, 1975, pp. 16-17.)

24. Dr. John Morgan, of Emporia, told the committee

that when his company withdrew from the market, his

group received repeated refusals from seven companies

and was considering abandoning its practice when a local

agent secured a policy for it. (Minutes, July 22/23, 1975,

p. 17.)

25. Dr. Jim Leffler, of Wichita, told the committee

that the problem was statewide and could be expected

to increase in severity. He noted that one ophthalmolo-

gist’s premium had risen from $1,000 to $9,000. (Minutes,

July 22/23, 1975, p. 17.)

26. Dr. Bill VonRuden, of Hutchinson, explained the

problems of his group. He noted that one part-time anes-

thesiologist was quoted a premium of $20,000 which was

probably more than she made. He also noted that premi-

ums for his group were $1,900 in 1974 and $41,000 in

1975. (Minutes, July 22/23, 1975, pp. 17-18.)

27. A Kansas Medical Society physician paper was

distributed to committee members. The paper noted that

health care practices were being adversely affected by

the malpractice insurance problem and recommended a

number of steps including a state-managed patients’ com-

pensation fund. (Minutes, July 22/23, 1975, Attachment

K.)

28. The committee also heard extensive testimony

from a number of groups during its meeting on August

27 and 28, 1975.

29. Lloyd Hall, executive secretary and general coun-

sel of the Kansas Association of Osteopathic Medicine,

21

told the committee that the insurance problem was acute

for new doctors. He indicated that his association sup-

ported the recommendations of the Kansas Medical Society.

(Minutes of August 27/28, 1975, p. 2.)

30. Representatives of the podiatrists, chiropractors,

and nurses also appeared. (Minutes, August 27/28, 1975,

pp. 3-4.)

31. Representatives of the Kansas Bar Association,

the Kansas Trial Lawyers Association, and the Kansas

Association of Defense Counsel appeared to present position

papers. (Minutes, August 27/28, 1975, pp. 5-8.)

32. Mr. Frederick J. Knox, vice president and chief

actuary for the St. Paul Fire and Marine Insurance Com-

pany, explained the procedures followed by his company

in establishing rates. Exhibits submitted by him to the

committee members showed that St. Paul would incur

a loss for the year 1969, the most recent year in which

its complete cost was then known. (Minutes, August 27/28,

1975, p. 8, Attachment K.)

33. Mr. David W. Wilson, assistant vice president

of the Medical Protective Company, explained his com-

pany’s experience and submitted statistics showing that

the company projected a loss on every dollar in premiums

collected in 1974. (Minutes, August 27/28, 1975, Attach-

ment L.) Mr. Wilson stated that a catastrophic fund to

pay large judgments would encourage companies to come

back into the malpractice insurance field. (Minutes, August

27/28, 1975, p. 10.)

34. Commissioner Bell once again appeared before

the committee and presented a written report supplement-

ing his previous reports. The report contained a number

of recommendations that Bell said should be considered

as a package. (Minutes, August 27/28, 1975, p. 10.)

22

35. The report noted that coverage was no longer

available for new anesthesiologists and that anesthesiol-

ogists in general were facing substantial problems. (Min-

utes, August 27/28, 1975, Attachment O.)

36. The report also contained a detailed outline of

reports of committees made up of insurance, medical, legal,

and general public representatives, under the direction

of the Commissioner, all of which studied specific aspects

of the problem.

37. The report summarized the Kansas situation as

follows:

“Widespread availability in cost problems related to

professional liability insurance for Kansas physicians,

surgeons and hospitals were first encountered in the

fall of 1974 when several of the major professional

liability insurers requested significant rate increases.

Although the percentage of the requested rate in-

creases did not vary significantly from prior rate pro-

posals (the average annual rate increase for the cal-

endar years 1968 through 1973 is approximately 50

percent per year), the companies proposing these latest

ir.creases indicated that approval of the new rates

would permit their companies to renew only existing

policies; that is, even if the higher rates were approved,

no new policies would be written by these companies

in the state of Kansas. In order to prevent a major

crisis from developing, this Department sought and

received informal commitments from the major insur-

ance companies, which have traditionally provided a

majority of the Kansas physicians, surgeons and hos-

pitals’ professional liability insurance market, to renew

all existing policies whenever possible and also provide

additional coverage for any new physician or surgeon

23

establishing or joining an existing medical practice

in the state of Kansas. * Furthermore, the assistance

and cooperation of other admitted insurance companies

were solicited, and informal agreements were made

to the effect that all insurance companies would at-

tempt to remain in the Kansas physicians, surgeons

and hospitals’ professional liability insurance market.

Until late June of 1975, these informal commitments

appeared to be providing a somewhat stabilized mar-

ket for the health care providers insured by the ad-

mitted (regulated) insurance market. At this time,

the first information of an impending withdrawal of

the Lloyds of London underwriters, (a non-admitted

or unregulated insurance facility) from the United

States medical malpractice insurance market became

available, and by July 1, 1975, the Lloyds had finally

withdrawn from this essential market. As pointed

out earlier in this report, this department is not able

to provide a detailed evaluation of the impact of

Lloyds’ withdrawal. Other situations occurring in

June, such as the reduction of policy limits by one

major insurance company, adversely affected the Kan-

sas malpractice insurance market; and just recently,

two insurance companies have notified this department

regarding the elimination of new and renewal primary

and/or excess coverages for anesthesiologists.”

The Commissioner closed the report with the warning

that the problems faced in the state with continued avail-

ability of insurance “are most serious, and they must be

dealt with and resolved as quickly as possible” and that

if delays are encountered “the availability and cost prob-

lems encountered with medical professional liability insur-

ance will become more serious than ever before.” (Minutes,

August 22/23, 1975, Attachment O.)

24

38. The next meeting of the interim committee was

September 23/24, 1975. At that meeting Mr. L. M. Cor-

nish, speaking for Kansas domestic insurance industry,

told the committee that his group would accept a patient’s

compensation fund in which the first $100,000 of an award

was paid by a private insurance carrier and the remainder

from the fund. He told the committee that such a fund

would be helpful in alleviating the problem and that his

group would support it so long as it did not involve direct

taxpayer support. He also noted that some states required

insurance as a condition of licensure. (Minutes, September

23/24, 1975, pp. 2, 11.) Mr. Cornish distributed a com-

parison chart showing that the Kansas Medical Society,

the Kansas Bar Association, and the Kansas insurance

industry all supported a patient’s compensation fund based

upon an assessment on health care providers. (Minutes,

September 23/24, 1975, Attachment L.)

39. The St. Paul Insurance Companies presented sta-

tistical data showing projections for a substantial loss for

1973 and 1974. (Minutes, September 23/24, 1975, Attach-

ment C.)

40. The committee also discussed whether a patient’s

compensation fund should be mandatory to insure a large

enough financial base for the fund to function or whether

it should be optional. (Minutes, September 23/24, 1975,

p. 6.)

41. At the next meeting of the interim committee,

October 14, 1975, the chairman, Senator Wesley H. Sowers,

recommended to the committee that it consider legislation

establishing a patient’s compensation fund financed by

health care providers through a surcharge based on their

premiums for $100,000 of private coverage. (Minutes, Oc-

tober 14, 1976, p. 7.)

25

42. The committee thereafter directed its staff to pre-

pare a draft of a bill creating such a fund. (Minutes,

October 14, 1975, p. 8.)

43. At its next meeting, October 28, 1975, the com-

mittee discussed the proposed bill that had been prepared

by its staff in detail. (Minutes, October 28, 1975, pp.

6-8.)

44. At its last meeting, on November 13 and 14, 1975,

the interim committee studied the details of the bill at

length, made certain small amendments, and then approved

it for introduction in the 1976 legislation. (Minutes, No-

vember 13/14, 1975.)

45. Thereafter, a report was prepared and filed with

the Legislative Coordinating Counsel in January, 1976. The

report contained 12 bills recommended by the committee

for passage by the Legislature and the following conclu-

sion:

“The Committee found that the changes in the mal-

practice insurance market threaten health care in Kan-

sas since some physicians believe they will not be

able to continue in practice under such conditions.

An adverse effect also arises from additional patient

charges which result from passing on the increased

cost of insurance through patient charges or daily

room charges.”

Report on Kansas Legislature Interim Studies to the 1976

Legislature Part II, p. 1155.

46. The bill in question, designated Senate Bill 646,

was introduced in the Senate and referred to the Senate

Committee on Public Health and Welfare. At its initial

meeting, note was taken that various medical groups were

recommending that the bill be amended to make partici-

pation mandatory. (Minutes, Senate Public Health and

Welfare, January 20, 1976.)

47. At its meeting on January 26, 1976, the Senate

Committee heard from David Fisher, who, on behalf of

the Kansas Bar Association, stated that the bar association

supported the health care stabilization fund to be created

by Senate Bill No. 646. Mr. L. M. Cornish, on behalf

of the Kansas domestic insurance industry, advised the

committee that compliance with the act by purchasing

insurance should be required of all health care providers

and that the fund should be authorized to make installment

payments. (Minutes, Senate Public Health and Welfare,

January 26, 1976, pp. 1-2, Attachments A, D.)

48. Douglas Johnson, executive director of the Kansas

Pharmaceutical Association, told the committee that phar-

macists would like to be included within the definition

of health care provider in all proposed bills. He recom-

mended that insurance coverage be made compulsory for

all health care providers and termed the patient's compen-

sation fund concept “one of the major areas that will

determine the success or failure of a solution to the prob-

lem.” He also stated that “we feel that as professionals

we owe it to other health care providers to contribute

to that fund.” (Minutes, Senate Public Health and Wel-

fare, January 26, 1976, p. 2, Attachment E. )

49. Additional testimony was taken by the Senate

committee on January 27, 1976.

50. Mr. Frank Gentry, executive director of the Kan-

sas Hospital Association, distributed copies of material sub-

mitted to the interim committee on behalf of the Hospital

Association. He also noted that mandatory participation

would be recommended and that the Hospital Association

would support that recommendation. He noted that “it

27

would be impractical to allow health care providers within

any given category to cop out, thereby allowing the fund

to be responsible for only the greater risk.” He also indi-

cated that the Hospital Association would support annual

installment payments for large awards, a recommendation

that would be forthcoming from the insurance department.

(Minutes, Senate Public Health and Welfare, January 27,

1976, p. 1, Attachment A.)

51. Carl C. Schmitthenner, Jr., executive director of

the Kansas State Dental Association, also appeared and

noted that his group might have some objection to man-

datory coverage. (Minutes, Senate Public Health and Wel-

fare, January 27, 1976, p. 2.)

52. Judy Runnels, on behalf of the Kansas State

Nurses Association, suggested to the committee that man-

datory insurance for nurses could cause a number to simply

stop working. (Minutes, Senate Public Health and Welfare,

January 27, 1976, p. 2, Attachment D.)

53. Dr. Greg Snyder, on behalf of the Kansas Medical

Society, told the committee that the society supported the

proposed legislation. He also noted that one young doctor

had elected to go to Oklahoma and another to Nebraska

because of the more favorable malpractice insurance situa-

tion in those states. (Minutes, Senate Public Health and

Welfare, January 27, 1976, p. 2.)

54. At its next meeting, on January 28, 1976, the

committee heard from Commissioner Bell. He told the

committee that the malpractice insurance market was in

an extremely precarious condition and that if his office

had not been able to assist health care providers who

could not obtain insurance Kansas would have faced slow-

downs, strikes, or other disruptions of medical services

similar to those occurring in other states. (Minutes, Senate

Public Health and Welfare, January 28, 1976, Attachment

A.)

55. Commissioner Bell also reported on a meeting

held January 8, 1976, in his office with representatives

of the Kansas Medical Society, Kansas Hospital Association,

Kansas Bar Association, Kansas Trial Lawyers Association,

Western Insurance Companies, Farmers Alliance Insurance

Companies, Kansas State Nurses Association, Kansas State

Dental Association, American Insurance Association, and

Kansas Association of Property and Casualty Companies.

He noted that all of those groups, with the exception

of the nurses and dentists, had agreed that Senate Bill

646 should be amended to make the purchase of basic

insurance coverage and participation in the health care

stabilization fund mandatory for all health care providers

as defined in the act.

56. Commissioner Bell then presented a series of

amendments prepared by his office, one of which excluded

nurses and dentists from coverage. He noted that manda-

tory participation in the fund was necessary to insure

its success but that an exclusion for nurses and dentists,

whe had not been confronted with the serious malpractice

problems, would not harm the solvency of the fund. (Min-

utes, Senate Public Health and Welfare, January 28, 1976,

p. 2, Attachment A.) ©

57. Commissioner Bell also proposed that the act pro-

vide for payment of settlements or judgments in install-

ments of $150,000 whenever the amount due from the

fund was greater tian that figure. He told the committee

that such an amendment was necessary to insure that

the fund would be adequate to meet the needs of all

claimants by avoiding total dissipation by one or two extra-

ordinarily large judgments or settlements. (Minutes, Sen-

ate Public Health and Welfare, January 28, 1976, Attach-

ment A.)

58. On February 4, 1976, Commissioner Bell again

appeared before the committee and told the members that

in the 10 months immediately preceding the date of his

appearance, his office had intervened in 87 cases involving

health care providers in 45 different communities who

were unable to obtain adequate professional liability insur-

ance. He also addressed himself to whether compliance

with the act should be mandatory, telling the committee

that such a requirement would give the fund its best

possible chance of success. He went on to say:

“I realize that some of those expressing concern over

the mandatory requirement are quite probably physi-

cians who either don’t purchase professional liability

coverage at the present time or—more likely—have

not yet encountered a problem with respect to its

cost or availability. As I said earlier, I can under-

stand and appreciate their feeling but in all sincerity,

I believe their good fortune has blinded them to the

realities of the situation. First—while they mav have

not yet been confronted with the problem of a cancella-

tion or non-renewal notice or a call from their insur-

ance agent informing them that their application for

coverage has been declined—the chances are that they

will experience this kind of situation if this session

of the legislature fails to take meaningful and respon-

sive action. Secondly, I believe they are ignoring

the fact that the problem is not isolated to one particu-

lar medical specialty but even if it was I have to

wonder if they have considered what would happen

if suddenly there is no surgeon in the community

to which they can refer a patient for a necessary

operation because the surgeon was unable to obtain

30

or afford what he or she believed was adequate pro-

fessional liability protection—or, if the surgeon is still

there what happens if there is no anesthesiologist avail-

able. To put it another way—I know we have all

considered the specialization of medical technology as

one of the factors contributing to the medical mal-

practice problem, but I believe that some health care

providers have apparently failed to recognize the fact

that they too must now depend on specialists to an

ever increasing extent. In other words, we have

reached the point where a surgeon's problems are

also a problem for the general practitioner—the anes-

thesiologists’ problems are also a problem for the sur-

geon—and so on. As a result, the suggested amend-

ment to Senate Bill No. 646 which incorporates the

mandatory element is simply a continuation of this

mechanism. All it does in a sense is suggest that

just as the very specialties support and complement

each other in their rendering of medical care they

must also support and complement each othe: with

respect to professional liability protection.”

(Minutes, Senate Public Health and Welfare, February 4,

1976, Attachment A. )

59. Bell also told the committee, once again, that

dentists and nurses could be excluded from coverage be-

cause they had not encountered problems and that the

committee also might wish to consider adding pharmacists

and optometrists. He warned, however, that removal of

medical care facilities or persons licensed from the Healing

Arts Act would in essence destroy the act. (Minutes, Sen-

ate Public Health and Welfare, February 4, 1976, Attach-

ment A.)

31

60. On February 13, 1976, the bill was reported by

the committee favorably for passage, with various amend-

ments including mandatory coverage, exclusion of nurses

and dentists, and provision for installment payments. Note

was made in the minutes that the installment provision

was to protect the fund. (Minutes, Senate Public Health

and Welfare, February 13, 1976.)

61. The bill then went to the House and was assigned

to the House Committee on Insurance. On March 2, 1976,

the committee heard a detailed explanation of the bill

and the rationale underlying its provisions. (Minutes,

House Committee on Insurance, March 2, 1976.) The com-

mittee had previously considered a variety of other mal-

practice bills and had heard detailed explanations of the

problem. (Minutes, House Committee on Insurance, Janu-

ary 28, 29, 30; February 4, 5, 6, and 11, 1976.) Also

on March 2, a representative of the Kansas Association

of Nurse Anesthetists requested inclusion for his group

in Senate Bill 646. (Minutes, House Committee on Insur-

ance, March 2, 1976, p. 2.)

62. The committee thereafter heard testimony from

a number of groups, all of whom except the nurses and

dentists supported the bill and its mandatory coverage

provision. (Minutes, House Committee on Insurance, March

3, 4, and 5, 1976.)

63. Thereafter, the committee considered technical

amendments to the bill, and on March 12 reported it favor-

ably for passage. (Minutes, House Committee on Insurance,

March 9, 10, 11, and 12, 1976.)