Brubaker v. Cavanaugh (741 F.2d 318, 1984)

BREITENSTEIN, Circuit Judge.

Plaintiff-appellant in this diversity action appeals from an order of the district court 542 F.Supp. 944 granting summary judgment for the defendant on the ground that the action is barred by the applicable Kansas statute of limitation. We affirm.

The facts as alleged by the plaintiff are taken as true for the purposes of this appeal. In this medical malpractice action, plaintiff Donal Brubaker, as administrator of the estate of his wife, Shirley Brubaker, and as father of their son, Brian, seeks damages for personal injury, wrongful death, wrongful birth, and wrongful life. Plaintiff alleges that defendant, Dr. John Cavanaugh, treated Paul Studebaker and his family, including Paul Studebaker’s daughter, Shirley, the plaintiffs wife.

Dr. Cavanaugh treated Paul Studebaker beginning June 22, 1959, and continuing to his death in 1960 from cancer of the colon. In December, 1959, Cavanaugh diagnosed Studebaker as having multiple polyposis, a disease which passes to the next generation at a known rate of 50 percent and which can lead to cancer of the colon if not treated. Cavanaugh failed to advise the Studebaker family of the hereditary nature of the disease or the fact that timely diagnosis and treatment could eliminate the risk of cancer.

Although Shirley Studebaker Brubaker saw Dr. Cavanaugh several times over a period of years after her father died and complained of problems symptomatic of the disease, plaintiff alleges that the doctor never warned her or anyone in the family. Shirley Brubaker was last seen by the defendant as a patient on December 18, 1968. In October, 1979, Shirley was diagnosed by another doctor as having multiple familial polyposis.

Plaintiff further alleges that due to the doctor’s failure to warn her, Shirley Brubaker had children, including a son, Brian, who was born in 1971. He was diagnosed in 1980 as having multiple familial polypoS1S-

This action was brought November 20, 1980. Shirley Brubaker died in 1981. Her husband, Donal Brubaker, was appointed administrator of her estate and filed the amended complaint. In 1982 the district court granted defendant’s motion for summary judgment, finding that all causes of action were barred by the statute of limitations applicable to health care professionals

The portions of the statute of limitations, Kan.Stat.Ann. 60-513, which apply to medical malpractice read:

‘60-513. Actions limited to two years. (a) The following actions shall be brought within two (2) years.

(7) An action arising out of the rendering of or failure to render professional services by a health care provider, not arising on contract.

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(e) A cause of action arising out of the rendering of or the failure to render professional services by a health care provider shall be deemed to have accrued at the time of the occurrence of the act giving rise to the cause of action, unless the fact of injury is not reasonably ascer-tamable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall such an action be commenced more than four (4) years beyond the time of the act giving rise to the cause of action.” (Emphasis supplied.)

The statute establishes a “discovery rule.” In cases such as this where the injury is not discovered until sometime after the alleged negligent act, the plaintiff has two years from the date of discovery to bring suit. The “discovery rule” is limited in that no action maY be commenced more than four years after the act or omission alleged to have caused the injury,

As the trial court noted, the duty to inform paul Studebaker and his family of the nature of the disease arose at the time it was diagnosed, and it was breached during the time of treatment. The latest possible date on which any negligent act could have occurred was December 18, 1968, the date on which the defendant last examined Shirley Brubaker. The statute would thus bar an action brought later than December 18, 1972.

rr . . . . . , , , The Kansas statute was interpreted and applied by the Kansas Supreme Court in Stephens v. Snyder Clinic Ass’n, 230 Kan. 115> 681 P.2d 222, 226, which said:

, , . „ .. ., The effect of the statute of limitations requires an unfortunate result in the present case, especially since plaintiff’s injury was not ascertainable before the statute extinguished her right to bring the action, and her suit would have been timely had the amended statute not intervened. It is clear, however, that the legislature has the authority to set statutes of limitation, that the classification of