Estate of Doty v. Dorsch

1
NOT DESIGNATED FOR PUBLICATION

No. 119,216

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

THE ESTATE OF JORDYN DOTY,
by and Through Its Duly Appointed Special Administrator Kimberly Doty,
and KIMBERLY DOTY, Heir at Law of Jordyn Doty,
Appellants,

v.

MICHAEL A. DORSCH, P.A., RODNEY S. DILL, M.D.,
GREAT PLAINS HEALTH ALLIANCE, INC.,
and RAWLINS COUNTY HEALTH CENTER,
Appellees.


MEMORANDUM OPINION

Appeal from Rawlins District Court; KEVIN BERENS, judge. Opinion filed October 11, 2019.
Affirmed.

Melinda G. Young, of Bretz & Young, L.L.C., of Hutchinson, for appellants.

Peter S. Johnston and Jacob E. Peterson, of Clark, Mize & Linville, Chartered, of Salina, for
appellee Rawlins County Health Center.

Nathan D. Leadstrom, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, for
appellee/cross-appellant Great Plains Health Alliance, Inc.

Randall H. Elam, of Law Offices of Randall H. Elam, of Wichita, for appellee Rodney S. Dill,
M.D.

No appearance by appellee Michael A. Dorsch, P.A.

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Before POWELL, P.J., GARDNER, J., and LAHEY, S.J.

POWELL, J.: Jordyn Doty died on June 9, 2013, following a tragic one-car accident
that occurred the day before. Nearly two years after Jordyn's death, her mother, Kimberly
Krebs (formerly Doty), received a call from the Kansas Board of Healing Arts informing
her the Board had received information that Michael A. Dorsch, a physician's assistant at
the Rawlins County Health Center (RCHC), had had sexual contact with Jordyn. Dorsch
had treated Jordyn for various ailments for several years prior to her death.

This report and other information prompted Jordyn's estate and Kimberly to file
suit against Dorsch; Dr. Rodney Dill, Dorsch's supervising physician; RCHC, the hospital
which employed both Dorsch and Dr. Dill; and Great Plains Health Alliance, Inc. (Great
Plains). The Estate alleged: (1) Dorsch had overmedicated and sexually assaulted
Jordyn; (2) all of the defendants had been negligent in the medical care they had provided
to Jordyn both before and after the accident; (3) Dr. Dill, RCHC, and Great Plains had
been negligent in the hiring, supervision, and retention of Dorsch; and (4) RCHC and
Great Plains were vicariously liable for the negligence of their two employees, Dorsch
and Dr. Dill. Jordyn's estate sought damages for pain and suffering, mental anguish and
severe emotional distress, and physical distress and death suffered by Jordyn. Kimberly
sought all damages allowed under the wrongful death statutes.

The district court granted the defendants summary judgment on all claims, holding
that all causes of action arising out of any acts or omissions occurring prior to June 8,
2013, were time barred. As for the causes of action arising out of acts occurring on June 8
and 9, 2013—the dates Jordyn was treated for her injuries from the car accident and the
date she died—the district court held there was no evidence Jordyn had been sexually
assaulted on those days and the plaintiffs had not presented any expert testimony
establishing a breach of the standard of care for the medical treatment Jordyn received.

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The plaintiffs now appeal the district court's adverse summary judgment ruling.
For reasons more fully explained below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Before delving into the facts of this case an introduction of the various parties
involved is helpful. Kimberly brought this action both as the administrator of Jordyn's
estate and as Jordyn's heir at law (collectively referred to as the Estate).

RCHC is a critical access county hospital in Atwood, Kansas, that is organized
and operated under K.S.A. 19-4601 et seq., by the Board of Trustees. RCHC directly
employs the hospital's administrator and all the staff serving the hospital. RCHC
employed Dorsch as a physician's assistant, and Dr. Dill supervised him.

Great Plains provides services as an independent contractor to RCHC under the
terms of a Management Agreement. Great Plains does not own, lease, or operate RCHC.
Great Plains has never done business under the name of "Rawlins County Health Center."
Under the terms of this Management Agreement, Great Plains assisted RCHC with
contracts and purchases, preparing cost reports, and providing a "Central Office [of]
shared core services," which is essentially software to help RCHC manage and operate
the hospital. Great Plains' Regional Vice President attended each monthly RCHC Board
meeting, attended meetings of the RCHC's medical staff, and provided advice when
specifically requested by the Board or hospital administrator.

Both Great Plains and RCHC's Board were responsible for the oversight,
supervision, and direction of RCHC's Administrator, who was directly hired by RCHC
and was RCHC's employee. RCHC's Administrator was directly responsible for the day-
to-day supervision of RCHC's premises, medical staff, and employees, including Dorsch
and Dr. Dill. Great Plains had no authority to make or overrule any decisions of RCHC
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on employment issues including, without limitation, the hiring, discipline, or termination
of any employees of RCHC. Great Plains has never employed or paid any wages,
benefits, employment taxes, or other authorized withholdings for any of the employees of
RCHC at any time for the period in dispute in this case. According to Dorsch, RCHC and
Great Plains were responsible for hiring, supervising, disciplining, and retaining Dorsch
during his employment at RCHC. Yet according to the Management Agreement, Great
Plains never had authority or exercised any oversight, supervision, or control over any
employee of RCHC at any time during the period in dispute in this case. In November
2013, five months after Jordyn's death, Great Plains' Regional Vice President, Les Lacy,
was appointed by the RCHC Board to act as the interim Administrator of RCHC while
the Board conducted a search for a new administrator. He held this position for three
months, leaving in February 2014.

The pertinent facts of the case are that Dorsch provided care to Jordyn from 2011
through June 9, 2013. Jordyn turned 18 years old on April 25, 2011. The Estate alleged in
its first amended petition that during the time Jordyn was under Dorsch's care, Dorsch
had a sexual relationship with her and that he repeatedly overmedicated her to the point
of incapacity. However, there were no alleged periods of incapacity after May 2012.

Jordyn was diagnosed with rheumatoid arthritis at age seven and later diagnosed
with Hashimoto's Disease. In 2011, she was treated for three sexually transmitted
infections which appear to have caused reactive arthritis that began in October 2011.
Jordyn received health care at RCHC for a myriad of other issues. "She had a flurry of
relapsing pain complaints which led to almost daily medical visits and frequent short
hospital stays." Of note, Jordyn attempted suicide in March of 2012. The interactions
between Jordyn and Dorsch waned when Jordyn began dating Matt Hafer in July 2012.
The last time Jordyn received care at RCHC prior to her death was March 27, 2013. It is
unclear who treated Jordyn at that appointment as the medical record simply states
"physical therapy for massage."
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On June 8, 2013, Jordyn was the passenger in the vehicle Hafer, her then-fiancé,
was driving; Hafer was legally intoxicated with a blood alcohol level of .11. Jordyn was
not wearing her seatbelt at the time of the accident, and she was partially ejected from the
vehicle.

Shortly after the accident, Jordyn was transported from the scene to RCHC. She
was totally nonresponsive in the ambulance and was placed on life support after arriving
at RCHC. When Jordyn arrived at RCHC at 11:29 p.m., her score on the Glasgow Coma
Scale was a 3—the lowest possible for this neurological test. In accordance with
Kimberly's request, Jordyn was transferred to a trauma hospital in Denver, Colorado,
shortly after midnight, where she died on June 9, 2013. The autopsy found that Jordyn
died from severe craniocerebral injuries due to blunt force head trauma caused by the
accident.

In the first part of April 2015, Kimberly received a call from "Laura" at the Kansas
Board of Healing Arts who told Kimberly that it had been brought to the Board's
knowledge that there had been sexual contact between Jordyn and Dorsch. Kimberly had
no prior knowledge of this alleged sexual contact.

Following this phone call, on June 8, 2015, the Estate sent a written notice—
purporting to be notice pursuant to K.S.A. 2014 Supp. 12-105b—to a variety of officials
with Rawlins County, RCHC, and Great Plains. On the same day the Estate filed a
petition in the Rawlins County District Court against Dorsch, Dr. Dill, and Great Plains
for: (1) personal injury; (2) medical malpractice and/or professional services by a health
care provider; (3) negligent hiring, supervision, and retention; (4) vicarious liability; (5)
outrageous and abusive conduct or intentional infliction of emotional distress; and (6)
wrongful death. The Estate stated that although the 120 days had not passed—in fact no
days had passed—since the notice to RCHC of a pending suit required by K.S.A. 2014
Supp. 12-105b, it anticipated seeking leave of the district court to amend its petition and
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adding RCHC as a party defendant after the required statutory time period had passed.
On December 16, 2015, the Estate filed its first amended petition adding RCHC as a
defendant.

The Estate alleged Jordyn had been "incapacitated by her medical conditions
and/or during periods in which she was overly medicated by Defendant Dorsch."
However, Kimberly testified in her deposition that there had been no periods in which
Jordyn had been overmedicated or incapacitated after April or May of 2012. Kimberly
also admitted she had no personal knowledge or information that Dorsch had any sexual
interaction or contact with Jordyn at any time, including on June 8 or 9, 2013. Although
the Estate's first amended petition alleged that Dorsch had sexually assaulted Jordyn on
the night of the fatal accident, Kimberly testified that she had no knowledge of where that
information had come from other than possibly the call she received from the Kansas
Board of Healing Arts. Jordyn's autopsy did not indicate any signs of sexual assault. In
her deposition, Kimberly testified that she was not aware of any injury caused by
Dorsch's actions at any time from October 2011 through June 8, 2013.

While Lacy was acting as the interim Hospital Administrator for RCHC, in either
November or December of 2013, he became aware for the first time of a complaint
against Dorsch based upon a call he received about a Kansas Board of Healing Arts
investigation. Lacy understood from the call that the complaint was of alleged sexual
misconduct on the part of Dorsch with a patient other than Jordyn. No complaints or
disciplinary actions against Dorsch had been brought to the attention of any employee,
agent, or representative of Great Plains prior to Jordyn's death. In fact, the first time Great
Plains learned of Dorsch's alleged sexual misconduct with Jordyn was in 2015 upon
receipt of the presuit notice and petition in connection with the allegations made by the
Estate.

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During discovery, the Estate designated Dr. Norman V. Kohn, a psychiatrist and
neurologist in Chicago, Illinois, as an expert witness on the issues of the standard of care,
breach of the standard of care, causation, and damages. Dr. Kohn provided an expert
report on Dorsch's care of Jordyn and "focused on the relationship between Jordyn Doty
and Mr. Michael Dorsch, as reflected in her medical care." Dr. Kohn identified numerous
events with reference to care recorded in Jordyn's medical records in 2011 and the first
part of 2012 that, in his opinion, showed Dorsch's failure to maintain appropriate
professional boundaries.

Dr. Kohn acknowledged that the interaction between Jordyn and Dorsch waned in
2012 after Jordyn became engaged to Hafer. He also acknowledged that Jordyn was
ejected from a car on June 8, 2013, and suffered fatal injuries after she and Hafer had
been drinking. Significantly, Dr. Kohn states: "Whether the relationship was physically
consummated is neither clear from the records nor essential for this consideration to
apply." Dr. Kohn opined on causation as follows:

"Mr. Dorsch's inability to observe the boundaries of his professional roles, and his
blurring of personal and professional relationships with his patients, compromised Jordyn
Doty's medical care and exercised improper influence over her, contributing to impulsive
and self-injurious actions by [Jordyn]."

He continued:

"Mr. Dorsch failed to maintain proper sexual boundaries with his patient, Jordyn Doty.
This failure led to multiple compromises in his thinking, actions, and judgement in the
care of Jordyn, compromising her medical care and influencing her behavior.

"Mr. Dorsch's boundary-related professional failures involved more than just his
interactions with Jordyn Doty, and some of them affected her indirectly. Mr. Dorsch
deviated from the requirements of his professional role in his resistance to authority and
working within the hierarchies of the medical profession. These deviations reflect a
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pattern of disdain for rules, limits, and the contribution of other professionals. They
include the failure to recognize his relationship to physician colleagues within his
medical center and consultants at other centers: he treated himself as their equal or
superior, as reflected in his notes and in the extraordinary behavioral deviations that led
to a physician's comment in a hospital discharge summary. There was polypharmacy
which produced serious medical consequences, including very likely extra
hospitalizations, one or more seizures, three spinal taps, medical procedures including the
placement of a PICC line, dangerous weight gain, medication-induced diabetes mellitus,
and the associated loss of self-image and confidence. This polypharmacy arose in
distorted perception of Ms. Doty's distress. The fraught personal relationship between her
and Mr. Dorsch was likely a contributing factor. Jordyn Doty's suicide attempt can be
understood in this context, as acting out her despair and loss of confidence. The failure to
communicate relevant information to colleagues and treating professionals, and failure to
seek appropriate psychiatric and psychological consultation, were other deviations
reflecting Mr. Dorsch's distorted concept of his relationship to his patient.

. . . .

"Finally, the behaviors and actions that led directly to Ms. Doty 's death involved
excesses that should have been a concern, in the primary care setting, long before they
led her to her death. That they were not noticed or commented on in the record reflects a
deviation, suggesting that Mr. Dorsch experienced himself as a participant rather than a
guiding authority in relation to Ms. Doty's social involvements and development."

Dr. Kohn concluded that the relationship between Dorsch and Jordyn had a
negative influence on Jordyn's behavior. "The influence here includes a negative one, a
lack of influence: the failure to address depression, and impulsive self-destructive
behavior, in a patient." Moreover, he acknowledged that a "question arises around abuse
of alcohol, and the judgment that led Jordyn to be in a vehicle with an intoxicated driver
on the night when she died" and that these "behaviors and actions that led directly to
[Jordyn's] death involved excesses that should have been a concern, in the primary care
setting, long before they led to her death."
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Dr. Kohn's report does not contain any explicit opinion that any act or omission by
Dorsch, Dr. Dill, Great Plains, or RCHC deviated from any standard of care as to
Jordyn's care and treatment at RCHC following the car accident on June 8, 2013. In
particular, Dr. Kohn gave no opinions concerning Great Plains; in fact, Great Plains is
never mentioned in his report.

The defendants' expert witness, Dr. Doug Gruenbacher, provided the following
conclusions:

"In summary, Jordyn Doty was a victim of a severe head injury [for] which she
received excellent care from the health care team at Rawlins County Health Center. I see
no evidence of sub-standard care and see no evidence that the care provided at Rawlins
County Health Center contributed to cause Jordyn Doty's death.

"It has been alleged that Jordyn Doty was sexually assaulted by Michael Dorsch,
P.A. I did not find any evidence of sexual assault or sexual misconduct in my review."

Dana Gayle Jewell-Broughman, a physician assistant, worked with Dorsch at
RCHC from 2011 through October 2013. According to her testimony, both RCHC
patients and staff complained to her about Dorsch's inappropriate behavior. Jewell-
Broughman asked RCHC administration to take the complaints seriously and evaluate
them even though she had not personally witnessed any of the incidents for which people
complained. In response, RCHC told Jewell-Broughman that if she had not personally
witnessed the conduct, "If you didn't see it, it didn't happen." RCHC claims it only
received one complaint regarding Dorsch during Jordyn's lifetime. This complaint
involved Dorsch sitting beside Jordyn on her hospital bedside with one or both of his legs
on the bed as if to lie beside her. A second complaint unrelated to Jordyn was lodged
against Dorsch to RCHC after Jordyn's death. That complaint was received from a patient
when Dorsch allegedly sought sexual interactions from a patient in exchange for refilling
the patient's prescription medications.
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Given the above facts, Great Plains, RCHC, and Dr. Dill all moved for summary
judgment. Dorsch did not file a motion for summary judgment, and it appears that—with
the exception of one letter sent to the Estate's attorney at the beginning of the litigation—
he did not participate in the litigation. He also did not submit a brief to this court.

The district court ultimately granted summary judgment in favor of all defendants
on all claims. The district court made four essential rulings supporting its order of
summary judgment. The district court granted summary judgment on: (1) all claims
arising on or before June 7, 2013, due to them being barred by the statute of limitations;
(2) all claims arising after June 7, 2013, due to the lack of expert testimony as to the
deviation of care by the defendants and any causation for the injuries resulting from such
a deviation of care; (3) all claims relating to negligent hiring, supervision, and retention
due to the lack of expert testimony establishing a causal effect between the alleged acts of
negligence and the injuries allegedly sustained by Jordyn; and (4) the claims of outrage or
intentional infliction of emotional distress because the Estate failed to meet the threshold
requirements to bring such an action.

The Estate now timely appeals the district court's entry of summary judgment for
the defendants. Great Plains cross-appeals the district court's holding that there was a
genuine issue of material fact on the Estate's negligent supervision claim.

ANALYSIS

On appeal, the Estate claims the district court erred by: (1) holding all claims
arising out of acts occurring on or before June 7, 2013, were time barred; (2) granting
summary judgment in favor of the defendants on the Estate's medical malpractice and
wrongful death claims for acts or omissions on June 8 and 9, 2013; (3) dismissing its
claims of negligent hiring, supervision, and retention; (4) granting summary judgment
against its claim of intentional infliction of emotional distress; (5) granting summary
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judgment in favor of Great Plains; and (6) granting summary judgment in favor of all
defendants when not all the defendants moved for summary judgment.

Great Plains cross-appeals the district court's holding that there was a genuine
issue of material fact on the Estate's negligent supervision claim regarding knowledge
Great Plains had or should have had about Dorsch's misconduct. According to Great
Plains, its cross-appeal is intended to preserve this argument on appeal should we
disagree with the district court's granting of summary judgment in favor of the
defendants.

DID THE DISTRICT COURT ERR IN GRANTING SUMMARY JUDGMENT?

Our standard of review on the granting of a motion for summary judgment is well
established:

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and when we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan. 616,
621, 413 P.3d 432 (2018).

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A. Do the statutes of limitations bar the Estate's survivorship claims?

The Estate first argues the district court erred in granting summary judgment
against its causes of action occurring before June 8 and 9, 2013. The petition is not
exactly clear which precise claims the Estate brings for which alleged acts, and the
district court grouped the Estate's claims as arising from acts before June 8, 2013, and
those arising on or after June 8, 2013. Because the Estate's suit was filed on June 8, 2015,
and given the question of the applicability of the statute of limitations, we agree with the
district court's grouping of the claims by date.

The Kansas Wrongful Death Act, K.S.A. 60-1901 et seq., authorizes survivorship
actions and wrongful death actions. They are separate and distinct causes of action. See
Martin v. Naik, 297 Kan. 241, 249-50, 300 P.3d 625 (2013). A survivorship action is
essentially one which seeks to compensate the decedent for damages the decedent would
have recovered had the decedent survived. It allows the personal representative of the
decedent's estate to recover damages accrued by the decedent between the date of injury
and the date of death. See K.S.A. 60-1901(a); 297 Kan. at 249-50. To us, it appears
Jordyn's estate brought a survivorship action against the defendants on Jordyn's behalf,
seeking damages for personal injuries and wrongful death, medical malpractice, and
intentional infliction of emotional distress she incurred between the date of injury and the
date of her death.

A wrongful death action is brought by a decedent's heirs at law, allowing them to
recover damages due to the wrongful death of the decedent for such things as loss of
support, companionship, and mental anguish accruing after death. See K.S.A. 60-1902;
297 Kan. at 249-50. Kimberly asserted a wrongful death action as a result of Jordyn's
untimely death. These claims are alleged to arise from acts occurring both before and on
and after June 8, 2013, the date of the accident.

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The following actions must be brought within two years: "[a]n action for injury to
the rights of another, not arising on contract, and not herein enumerated, . . . [a]n action
for wrongful death, [and a]n action arising out of the rendering of or failure to render
professional services by a health care provider, not arising on contract." K.S.A. 60-
513(a)(4), (5), and (7). Thus, the statute of limitations applicable to all of the Estate's
survivorship negligence claims is two years. However, the question at issue on appeal is
when that two-year time period began to run.

The Estate argues that the statute of limitations did not accrue on the survivorship
claims until the fact of injury first became reasonably ascertainable in April 2015—when
Kimberly received a call from the Kansas Board of Healing Arts informing her there had
been sexual contact between Jordyn and Dorsch; therefore, any negligence actions had to
be brought by April 15, 2017. To the extent resolution of this argument requires
interpretation of a statute, our review is de novo. Neighbor v. Westar Energy, Inc., 301
Kan. 916, 918, 349 P.3d 469 (2015).

K.S.A. 60-513(b) provides:

"Except as provided in subsections (c) and (d), the causes of action listed in
subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of
action first causes substantial injury, or, if the fact of injury is not reasonably
ascertainable 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 an action be commenced more than 10 years beyond the time of the
act giving rise to the cause of action."

Here, only K.S.A. 60-513(c) is applicable, and it reads as follows:

"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
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time of the occurrence of the act giving rise to the cause of action, unless the fact of
injury is not reasonably ascertainable 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 years beyond the time of the act giving rise to the cause of action."

Because there are different points in time at which a cause of action could accrue
under these subsections, "there are different points in time at which the statute of
limitations could begin to run. It is equally clear that one of those points in time is the
'occurrence of the act giving rise to the cause of action.'" Martin, 297 Kan. at 247.
Depending on the cause of action, a cause of action shall accrue either when "the act
giving rise to the cause of action first causes substantial injury," or "at the time of the
occurrence of the act giving rise to the cause of action." K.S.A. 60-513(b), (c). However,
the two-year time period is extended if "the fact of injury is not reasonably ascertainable
until sometime after the initial act." (Emphasis added.) K.S.A. 60-513(b), (c).

Once the facts establish that an action is time-barred, "the burden of proving facts
sufficient to toll the limitations is upon the plaintiff." Slayden v. Sixta, 250 Kan. 23, 26,
825 P.2d 119 (1992). Incapacity is one condition which may serve to toll the statute of
limitations. K.S.A. 60-515.

The district court determined that the date of Jordyn's attempted suicide—March
23, 2012—was the date the fact of injury to Jordyn by Dorsch was reasonably
ascertainable. But even if the district court was incorrect in imputing this date, "'its
decision will be upheld even though [it] relied upon the wrong ground or assigned
erroneous reasons for its decision.'" See Gannon v. State, 302 Kan. 739, 744, 357 P.3d
873 (2015).

First, Kimberly testified that she believed Jordyn was incapacitated by
overmedication from September 2011 through April or May 2012 but was not
15
incapacitated after May 2012. Thus, any survivorship claims arising during or before
May 2012 were time-barred in May 2014, to the extent incapacity remained a factor. See
K.S.A. 60-515. Second, any relationship between Jordyn and Dorsch admittedly waned in
2012; therefore, the Estate's claim of intentional infliction of emotional distress was
barred by the end of 2014. See K.S.A. 60-513. Third, based on a review of the record on
appeal, the latest possible date that Dorsch could be considered to have treated Jordyn
prior to the accident was March 27, 2013. Any negligence action would have been barred
on March 27, 2015—over three months before the Estate filed suit or submitted a K.S.A.
12-105b notice. See K.S.A. 60-513. Thus, all of the Estate's survivorship claims arising
from acts prior to June 8, 2013, are time barred.

To avoid this result, the Estate argues there are genuine issues of fact as to when
Jordyn's injuries became reasonably ascertainable: (1) Kimberly's actual knowledge of
the alleged sexual contact between Dorsch and Jordyn occurred on April 15, 2015, when
the Kansas Board of Healing Arts contacted her regarding Dorsch's conduct; (2)
according to Dr. Kohn, Jordyn was suffering from "transference" and, thus, was
incapacitated for significant periods of time; and (3) Dorsch's continued medical care of
Jordyn existed until June 8, 2013.

First, when an injury has become reasonably ascertainable for survivorship actions
does not turn upon the knowledge of the fiduciaries of the decedent's estate. Rather,
survivorship actions accrue at the same time a decedent's personal cause of action
accrues. See Martin, 297 Kan. at 257. Even a decedent's own subjective knowledge fails
to affect whether an injury is reasonably ascertainable; it is an objective injury. "[T]he
legislature stated an objective standard when it provided that a cause of action accrues at
the time of the occurrence of the act giving rise to the cause of action 'unless the fact of
injury is not reasonably ascertainable.' Consequently, the fact a particular patient is
incapacitated, which would be a subjective factor, does not affect whether the fact of
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injury was reasonably ascertainable." 297 Kan. at 242. This objective standard applies to
both K.S.A. 60-513(b) and (c). 297 Kan. at 261.

Jordyn was of the age of majority and the patient; Jordyn's knowledge is imputed
to her estate, which is pursuing the survivorship causes of action as a substitute for
Jordyn, not for Kimberly. See K.S.A. 2018 Supp. 60-1901; K.S.A. 60-1902; Brubaker v.
Cavanaugh, 542 F. Supp. 944, 947 (D. Kan. 1982) (reaffirming that wrongful death
action cannot be brought if decedent's medical malpractice action was barred at time of
his or her death); Martin, 297 Kan. at 257; see also 22A Am. Jur. 2d, Death § 124 ("[T]he
right to maintain such actions is entirely derivative of the decedent's right to have sued
for his or her own injuries immediately prior to death."). Applying this standard, the
statute of limitations would have begun to run as soon as the sexual contact was known to
Jordyn. Kimberly's knowledge about any contact is irrelevant to questions regarding the
statute of limitations and the Estate's survival actions.

Second, the Estate argues that transference affects whether an injury is reasonably
ascertainable. Our Supreme Court has said:

"The transference phenomenon is a psychiatric doctrine which basically states
that a patient will transfer or shift her affections or hostile emotions to the patient's
therapist. It was recognized in Kansas in Seymour v. Lofgreen, 209 Kan. 72, 75, 495 P.2d
969 (1972).

"This phenomenon is discussed in Simmons v. United States, 805 F.2d 1363,
1364-66 (9th Cir. 1986), where it was recognized that failure by a therapist to recognize
and deal appropriately with the phenomenon may be the basis for a malpractice action."
P.W.P. v. L.S., 266 Kan. 417, 426-27, 969 P.2d 896 (1998).

Standing in the way of our consideration of this issue is the fact that the Estate
never raised this issue before the district court, and issues not raised below typically
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cannot be raised for the first time on appeal. See Wolfe Electric, Inc. v. Duckworth, 293
Kan. 375, 403, 266 P.3d 516 (2011).

"'[T]here are several exceptions to the general rule that a new legal theory may not be
asserted for the first time on appeal, including: (1) the newly asserted theory involves
only a question of law arising on proved or admitted facts and is finally determinative of
the case; (2) consideration of the theory is necessary to serve the ends of justice or to
prevent denial of fundamental rights; and (3) the judgment of the trial court may be
upheld on appeal despite its reliance on the wrong ground or having assigned a wrong
reason for its decision. [Citation omitted.]'" In re Estate of Broderick, 286 Kan. 1071,
1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1178 (2009).

But Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34) requires an appellant
to explain why an issue not raised below should be considered for the first time on
appeal, which the Estate did not do here, and our Supreme Court has held that Rule
6.02(a)(5) will be strictly enforced. See State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d
1068 (2015).

While the transference theory was mentioned in Dr. Kohn's report, the Estate did
not argue this theory in any of its briefs before the district court as a basis for extending
the statute of limitations, nor does it assert any reason in its briefing to us why we should
consider this issue for the first time on appeal. Accordingly, we must deem the issue
waived or abandoned. See Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34).

Even if we could consider the Estate's transference claim, it still lacks merit. Our
Supreme Court has explicitly rejected application of the transference theory as a means to
toll the statute of limitations without evidence that transference prevented an injury from
being ascertained. P.W.P., 266 Kan. at 427. While Dr. Kohn criticized Dorsch for
improperly caring for Jordyn while she was allegedly suffering from transference, he
failed to indicate that transference prevented Jordyn from ascertaining her injury.
18
Also instructive is Seymour v. Lofgreen, 209 Kan. 72, 495 P.2d 969 (1972),
superseded on other grounds by statute as stated in Martin, 297 Kan. 241. In that case,
the plaintiff claimed her physician took advantage of her by manipulating the
transference phenomenon and sexually assaulting her on many occasions. Interpreting an
older version of K.S.A. 60-513, our Supreme Court determined that in addition to the tort
of sexual assault having a one-year statute of limitations, any alleged negligence claim
arising out of such conduct would have accrued when the relationship and alleged sexual
assault ended and, therefore, was barred by the two-year statute of limitations. 209 Kan.
at 76. Our Supreme Court held the injuries alleged—being sexually assaulted during a
period of incapacitation—"were by their nature acute and easily ascertainable. The
allegations in the petition merely show that the plaintiff was unable to ascertain them
because of mental illness." 209 Kan. at 79. Such a holding is consistent with that of other
jurisdictions. See State ex rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809, 811
(Mo. 2008) (holding that even though plaintiff did not remember sexual details of abuse,
conduct he always remembered was sufficient to "'place a reasonably prudent person on
notice of a potentially actionable injury'"); Haggart v. Cho, 703 A.2d 522, 526 (Pa.
Super. Ct. 1997) (holding patient had salient facts to be on duty of inquiry at time of
sexual misconduct during course of treatment, not when she later found out about
transference phenomenon). Here, the district court found any relationship between
Dorsch and Jordyn ended in 2012; thus, the statute of limitations would have run in 2014,
well before the Estate filed its petition.

Finally, regarding the Estate's third attempt to avoid the statute of limitations, the
continuing interaction between a medical provider and a patient does not toll the statute
of limitations. See P.W.P., 266 Kan. at 429. Therefore, the fact that Dorsch may have
treated Jordyn periodically up until the date of her death does not affect the statute of
limitations.

19
The Estate provides us three cases which purportedly support its argument: Jones
v. Neuroscience Assocs., Inc., 250 Kan. 477, 827 P.2d 51 (1992), Hecht v. First National
Bank & Trust Co., 208 Kan. 84, 490 P.2d 649 (1971), and Cleveland v. Wong, 237 Kan.
410, 701 P.2d 1301 (1985). We are unpersuaded by them because in each case there were
facts to justify the delay in filing suit. See Jones, 250 Kan. at 478-79; Hecht, 208 Kan. at
85-92; Cleveland, 237 Kan. at 412-13.

The Estate also cites Hall v. Miller, 29 Kan. App. 2d 1066, 36 P.3d 328 (2001),
but this decision, again, is not instructive. There, Hall alleged that her psychologist/social
worker and physician implanted false memories of satanic ritual abuse. A panel of our
court reversed the district court's granting of summary judgment in favor of the
defendants and held that a genuine issue of material fact existed regarding at what point
Hall knew or could have reasonably ascertained that she had suffered substantial injury
caused by the alleged negligence of the defendants. 29 Kan. App. 2d at 1074. The panel
found it significant that the defendants had

"successfully convinced Hall that she was a survivor of abuse suffered at the hands of her
parents and friends, effectively eliminating her outside support system. Also, unlike
Seymour, as soon as Hall discovered through evaluation by independent clinicians that
[the psychologist] had caused her illness, not merely misdiagnosed it, she filed suit." 29
Kan. App. 2d at 1072.

The case before us clearly does not involve memory implantation, and there are no
allegations that Dorsch cut off Jordyn from her family support system. Further, there is
no evidence about Jordyn's awareness—or lack of awareness—that would justify the
tolling of the statute of limitations. The district court's decision to grant summary
judgment for all survivorship claims arising from acts or omissions prior to June 8, 2013,
was not error.

20
In order for a survivorship claim to be viable, the decedent must have had a viable
cause of action, assuming the decedent lived. See K.S.A. 2018 Supp. 60-1901. "[I]n
construing our wrongful death statute, . . . where the injured party could not have brought
an action for his personal injuries because the statute of limitations had run against his
claim prior to his death, a wrongful death action cannot be maintained." Mason v. Gerin
Corp., 231 Kan. 718, 725, 647 P.2d 1340 (1982). Jordyn could not have maintained an
action for any acts or omissions before June 8, 2013. Because Jordyn was time-barred
from bringing such an action at the time of her death, the Estate cannot now do so.
Therefore, we affirm the district court's grant of summary judgment for all survivorship
claims arising from acts or omissions prior to June 8, 2013.

B. Did the district court properly grant summary judgment on the Estate's medical
malpractice and wrongful death claims?

1. Claims arising from acts of omissions on June 8 and 9, 2013

The Estate also argues the district court improperly granted summary judgment on
the Estate's medical malpractice and wrongful death claims for acts or omissions on June
8 and 9, 2013. These arguments are intertwined because, as we will discuss, the success
of a wrongful death claim relies on the success of an underlying action.

K.S.A. 2018 Supp. 60-1901(a) requires:

"If the death of a person is caused by the wrongful act or omission of another, an
action may be maintained for the damages resulting therefrom if the former might have
maintained the action had such person lived, in accordance with the provisions of this
article, against the wrongdoer, or such wrongdoer's personal representative if such
wrongdoer is deceased."

21
"Under K.S.A. 60-1901, an action for wrongful death must be premised upon an
underlying cause of action the decedent would have been able to bring if he or she had
survived. Therefore, a variety of theories may support a wrongful death action." Bonura
v. Sifers, 39 Kan. App. 2d 617, Syl. ¶ 3, 181 P.3d 1277, rev. denied 286 Kan. 1176
(2008). Here, the Estate seems to premise its wrongful death claim on a claim of medical
malpractice.

In Kansas, a claim of medical malpractice requires the plaintiff to show:

"(1) the health care provider owed the patient a duty of care, which required that the
provider meet or exceed a certain standard of care to protect the patient from injury; (2)
the provider breached that duty or deviated from the standard of care; (3) the patient was
injured; and (4) the injury proximately resulted from the health care provider's breach of
the standard of care. [Citation omitted.]" Foster v. Klaumann, 296 Kan. 295, 302, 294
P.3d 223 (2013).

The Estate argues that it satisfied the last element of this test. But this argument
fails to recognize that the district court granted summary judgment on the medical
malpractice claim for acts or omissions on June 8 and 9, 2013. While Dr. Kohn's report
made numerous conclusions about the breach of standard of care for events occurring in
2011 and 2012, there were no conclusions that any standard of care was breached on the
night of the accident and the day of Jordyn's death. And as previously discussed, any acts
or omissions supporting a cause of action prior to the accident are time barred. Because
the Estate has failed to brief this first ground for the granting of summary judgment on
this issue, we deem the issue abandoned. See In re Marriage of Williams, 307 Kan. 960,
977, 417 P.3d 1033 (2018). The district court properly granted summary judgment on the
Estate's claim of medical malpractice and wrongful death on June 8 and 9, 2013.

22
2. Claims arising from acts or omissions before June 8, 2013

Before we turn to the Estate's remaining claims, we must address a claim that falls
outside of our analysis discussed above: Kimberly's wrongful death claim concerning
acts or omissions occurring prior to June 8, 2013. As we have already explained, that
particular claim differs from the Estate's survivorship claims because it is a claim which
seeks damages for the impact of Jordyn's death on Kimberly. Kimberly's specific claim
alleges that Dorsch's abuse and medical malpractice of Jordyn led Jordyn to make bad
decisions which in turn caused or contributed to her death. Because this claim is a
wrongful death claim made by Kimberly and is not a survivorship claim being made by
Jordyn's estate, this claim, unlike like the other claims arising out of acts or omissions
occurring before June 8, 2013, is not barred by the statute of limitations as the two-year
statute of limitation for wrongful death claims begins to run on the date of the decedent's
death. See Martin, 297 Kan. at 256 (limitation period for wrongful death action begins on
date of decedent's death).

Nevertheless, the district court properly granted summary judgment on Kimberly's
medical malpractice and wrongful death claims because even if we assume that the
Estate's expert properly established a breach of the standard of care, the Estate failed to
establish the causation element. In both civil and criminal contexts, causation requires
"that one thing [be] the proximate cause of another. To establish that one thing
proximately caused another, a party must prove two elements: cause-in-fact and legal
causation. Together, these elements limit a defendant's liability to '"those consequences
that are probable according to ordinary and usual experience."' Puckett, 290 Kan. at 420."
State v. Arnett, 307 Kan. 648, 654, 413 P.3d 787 (2018).

In a nutshell, cause-in-fact is premised on cause and effect; legal causation is
premised on foreseeability. See Puckett v. Mt. Carmel Regional Med. Center, 290 Kan.
406, 420-21, 228 P.3d 1048 (2010). Here, the fourth element of medical malpractice—the
23
injury proximately resulted from the health care provider's breach of the standard of
care—is the element founded on proximate causation.

Ordinarily, proximate cause "is . . . a factual question to be resolved by the trier of
fact." Burnette v. Eubanks, 308 Kan. 838, 846, 425 P.3d 343 (2018); Cullip v. Domann,
266 Kan. 550, Syl. ¶ 6, 972 P.2d 776 (1999). However, "when all the evidence on which
a party relies is undisputed and susceptible of only one inference, the question of
proximate cause becomes a question of law." Hale v. Brown, 287 Kan. 320, 324, 197
P.3d 438 (2008).

a. Cause-in-Fact

To prove cause-in-fact, "a plaintiff must prove a cause-and-effect relationship
between a defendant's conduct and the plaintiff's loss by presenting sufficient evidence
from which a jury could conclude that more likely than not, but for the defendant's
conduct, the plaintiff's injuries would not have occurred." Puckett, 290 Kan. at 420. The
Supreme Court has explained the evidence necessary to meet this standard as follows:

"'The plaintiff must introduce evidence which affords a reasonable basis for the
conclusion that it is more likely than not that the conduct of the defendant was a cause in
fact of the result. A mere possibility of such causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for the defendant. Where the
conclusion is not one within common knowledge, expert testimony may provide a
sufficient basis for it, but in the absence of such testimony it may not be drawn. . . .

"'The plaintiff is not, however, required to prove the case beyond a reasonable
doubt. The plaintiff need not negative entirely the possibility that the defendant's conduct
was not a cause, and it is enough to introduce evidence from which reasonable persons
may conclude that it is more probable that the event was caused by the defendant than
that it was not. The fact of causation is incapable of mathematical proof, since no one can
24
say with absolute certainty what would have occurred if the defendant had acted
otherwise. Proof of what we call the relation of cause and effect, that of necessary
antecedent and inevitable consequence, can be nothing more than "the projection of our
habit of expecting certain consequents to follow certain antecedents merely because we
had observed these sequences on previous occasions." If as a matter of ordinary
experience a particular act or omission might be expected, under the circumstances, to
produce a particular result, and that result in fact has followed, the conclusion may be
permissible that the causal relation exists.'" Baker v. City of Garden City, 240 Kan. 554,
559, 731 P.2d 278 (1987) (quoting Prosser and Keeton on Torts § 41, pp. 269-70 [5th ed.
1984]).

"The plaintiff in a medical malpractice case bears the burden of showing not only
the doctor's negligence, but that the negligence caused the injury." Bacon v. Mercy Hosp.
of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988). "Except where the lack of
reasonable care or the existence of proximate cause is apparent to the average layman
from common knowledge or experience, expert testimony is required in medical
malpractice cases to establish the accepted standard of care and to prove causation." 243
Kan. at 307. This expert testimony should be confined to matters which are certain or
probable, rather than merely possible. See Sharples v. Roberts, 249 Kan. 286, 292, 816
P.2d 390 (1991).

The district court found that there was no evidence or expert testimony directly
linking any of the alleged acts of negligence in Dr. Kohn's report to Jordyn's death. The
Estate completely ignores this element of proximate cause, and it does not cite to any
authority to show the alleged negligence not only "influenced" Jordyn's decision-making,
but also was the cause-in-fact of Jordyn's death, without which her death would not have
occurred. The only evidence on the cause of death is the autopsy report with which Dr.
Kohn agrees and admits in his report: Jordyn died from fatal injuries in a car crash.

25
Nowhere in Dr. Kohn's expert report does he address the issue of causation of
death or state any opinions to a reasonable degree of medical probability that any
defendant in this case was the cause-in-fact of Jordyn's death. While Dr. Kohn uses
boilerplate language at the very end of his report that "[a]ll the opinions in this report are
held to a reasonable degree of medical (neurological, psychiatric, neuropsychiatric)
certainty," there are no opinions on causation of death. All of Dr. Kohn's opinions are
instead directed only to proving causation for injury suffered by Jordyn during her
lifetime (striking to the heart of the survivorship claims), which are barred by the statute
of limitations, as previously discussed.

No defendant was involved in any way with the accident. Hafer was the driver and
pled guilty to vehicular homicide for Jordyn's death. Likewise, there was no evidence of
any substandard care following the accident whatsoever that may have contributed to
Jordyn's death. Thus, tacitly, there was no evidence or opinions attempting to link any
substandard care following the accident to the cause of death. It is undisputed that Jordyn
suffered fatal injuries from the motor vehicle accident on June 8, 2013, and those injuries
caused her death.

Therefore, the only possible causal link for Jordyn's death would be if there was a
claim that the defendants were negligent in failing to protect Jordyn by preventing her
from getting into the car with another intoxicated person and requiring her to buckle her
seatbelt. The Estate fails to demonstrate this causal link.

There was no evidence that Dorsch's alleged failure to maintain appropriate
boundaries and implement appropriate interventions was a substantial factor in bringing
about the harm that Jordyn would make poor decisions to drink and then ride in a vehicle
driven by her legally intoxicated fiancé over a year after her last documented contact with
Dorsch. Where the evidence is undisputed and shows another source to be the cause of
the claimed damage in the case—for example, Jordyn's car accident—then summary
26
judgment for lack of proof concerning causation is appropriate. See Cullip, 266 Kan. at
556 (holding defendant's violation of statute requiring hunter safety certificate was not
proximate cause of plaintiff's injury when undisputed facts show plaintiff was shot by
accidental discharge of shotgun carried by another member of hunting party).

Thus, the district court correctly dismissed the Estate's medical malpractice and
wrongful death claims based on acts or omissions both before and after June 8, 2013,
because there was no evidence of cause-in-fact.

b. Legal Causation

"To prove legal causation, the plaintiff must show that it was foreseeable that the
defendant's conduct might create a risk of harm to the victim and that the result of that
conduct and contributing causes were foreseeable. The concept of 'intervening cause'
relates to legal causation and 'does not come into play until after causation in fact has
been established.' Waste Management, 15 S.W.3d at 432; see also Prosser and Keeton,
The Law of Torts § 44, p. 301 (5th ed. 1984) (recognizing the issue of intervening cause
'does not arise until cause in fact is established').

"An intervening cause is 'one which actively operates in producing harm to
another after the actor's negligent act or omission has been committed.' Restatement
(Second) of Torts 441 (1964). An intervening cause absolves a defendant of liability only
if it supersedes the defendant's negligence. In other words, the superseding and
intervening cause 'component breaks the connection between the initial negligent act and
the harm caused.' Hale, 287 Kan. at 324. But, one more factor—foreseeability—must be
considered. 'If the intervening cause is foreseen or might reasonably have been foreseen
by the first actor, his negligence may be considered the proximate cause, notwithstanding
the intervening cause. [Citation omitted.]' Miller v. Zep Mfg. Co., 249 Kan. 34, 51, 815
P.2d 506 (1991)." Puckett, 290 Kan. at 421.

If the chain of events leading from a defendant's negligent act to a plaintiff's harm
is so remote as to appear "extraordinary" that the conduct could have brought about the
27
harm, then the act did not proximately cause the harm as a matter of law. See 290 Kan. at
423. Additionally, there is no obligation under Kansas law to anticipate another's
negligence. Mid-Century Ins. Co. v. Latimer, 211 Kan. 810, 812, 508 P.2d 935 (1973).

"An injury is foreseeable so as to give rise to a duty of care where a defendant
knows or reasonably should know that an action or the failure to act will likely result in
harm." Gragg v. Wichita State Univ., 261 Kan. 1037, Syl. ¶ 8, 934 P.2d 121 (1997). The
acts of a third person not intended or foreseen break the causal chain between prior
negligence and injury. Sly v. Board of Education, 213 Kan. 415, Syl. ¶ 9, 516 P.2d 895
(1973).

Here, there is no evidence that Dorsch or any of the other defendants should have
realized that there was a likelihood that Jordyn would be killed in a drunk driving
accident at the hands of her fiancé over a year after she was last seen by Dorsch. The lack
of proximity to the time of these events or relationally to the natural effects of the
treatment are simply too remote and disconnected from any of the events of the drunk
driving accident which was in no way related to the care and treatment provided to
Jordyn in 2011 or 2012. Further, Dr. Kohn fails to fill this gap with any explanation for
how the treatment could be causally related to the accident or Jordyn's death.

The causation of Jordyn's death was the independent and intervening actions of
Hafer engaging in conduct that resulted in his vehicular homicide conviction, which even
Dr. Kohn agrees led directly to Jordyn's death and, without which, she would not have
died on June 9, 2013. Even if defendants negatively influenced a condition in which
Jordyn continued to engage in risk-taking behavior, that behavior did not kill her—
Hafer's intervening negligence in operating his motor vehicle while impaired caused her
death.

28
The Estate fails to show any facts to establish proximate cause, and the facts
alleged clearly show there was not proximate cause for Jordyn's death on behalf of the
defendants. The district court did not err in granting summary judgment for the
defendants on the medical malpractice and wrongful death claims.

C. Did the district court properly dismiss the claims of negligent hiring, supervising,
and retention?

Next, the Estate argues the district court improperly dismissed its claim of
negligent hiring, supervision, and retention. The district court held that summary
judgment was proper on this claim because the statute of limitations barred the
survivorship claims and the remaining portions of the medical malpractice and wrongful
death claims lacked the essential element of establishing a breach of the standard of care
and causation.

The Estate's claims of negligent hiring, supervision, and retention really constitute
two separate and distinct torts. Kansas has long recognized the tort of negligent hiring
and retention, wherein an employer may be held liable for injuries to a third party
resulting from an employee's unfitness or incompetence of which the employer knew or
should have known. Prugue v. Monley, 29 Kan. App. 2d 635, 639, 28 P.3d 1046 (2001).
The separate and distinct tort of negligent supervision is also recognized in Kansas and
encompasses an employer's failure to supervise the employee. Hauptman v. WMC, Inc.,
43 Kan. App. 2d 276, 294, 224 P.3d 1175 (2010). But these torts are separate negligence
claims from those of the alleged negligence of the employee, and thus the underlying
negligence of the employee must be established along with the negligence of the
employer. See Marquis v. State Farm Fire & Cas. Co., 265 Kan. 317, 329, 961 P.2d 1213
(1998); 25 Causes of Action 2d 99 § 3 (July 2019) (in cause of action for negligent
hiring, supervision, or retention of employee, plaintiff must establish injurious act of
29
employee was tort). Thus, for the Estate to prevail on this issue, it first must have a valid
negligence claim against Dorsch.

The parties get sidetracked and spend most of their arguments focusing on whether
expert testimony is required under the facts of this case to establish the Estate's negligent
hiring, supervision, and retention claims because, according to the Estate, they "are not
medical negligence claims." Whether expert testimony is necessary to establish the
applicable standard of care does not depend upon the classification of a claim as ordinary
negligence rather than medical malpractice or another cause of action. Tudor v.
Wheatland Nursing, 42 Kan. App. 2d 624, 628, 214 P.3d 1217 (2009), rev. denied 290
Kan. 1105 (2010). Rather, "the well-established test for determining whether expert
testimony is required is whether the subject matter is too complex to fall within the
common knowledge of the jury and is 'beyond the capability of a lay person to decide.'"
Williamson v. Amrani, 283 Kan. 227, 245, 152 P.3d 60 (2007), superseded by statute on
other grounds as stated in Kelly v. VinZant, 287 Kan. 509, 197 P.3d 803 (2008).

The Estate's negligent hiring, supervision, and retention claims involving acts or
omissions that occurred prior to June 8, 2013, cannot succeed because the underlying
negligence claims against Dorsch for those acts are either time barred or are lacking
essential elements. As to the claims involving acts or omissions occurring on June 8 and
9, 2013, the Estate's allegations of negligence against Dorsch arise under medical
malpractice. Because the Estate presented no evidence establishing a standard of care, a
breach of that standard, or causation, the Estate cannot succeed in its negligent hiring,
supervision, and retention claims based upon these acts. Accordingly, the district court
did not err in granting the defendants summary judgment.

30
D. Did the district court err in granting summary judgment for the claim of
intentional infliction of emotional distress?

Next, the Estate argues that the district court erred in granting summary judgment
on its claim of outrage or intentional infliction of emotional distress. Specifically, the
Estate argues the district court erred in dismissing this claim because no proof of actual
sexual contact was required to support the claim and discovery had not yet been
completed.

"In Kansas, the tort of outrage is the same as the tort of intentional infliction of
emotional distress." Valadez v. Emmis Communications, 290 Kan. 472, 476, 229 P.3d
389 (2010). A claim of intentional infliction of emotional distress requires proof "(1)
[t]he conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2)
the conduct was extreme and outrageous; (3) there was a causal connection between the
defendant's conduct and the plaintiff's mental distress; and (4) the plaintiff's mental
distress was extreme and severe." 290 Kan. at 476.

Important to the district court's holding:

"Liability for extreme emotional distress has two threshold requirements which
must be met and which the court must, in the first instance, determine: (1) Whether the
defendant's conduct may reasonably be regarded as so extreme and outrageous as to
permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such
extreme degree the law must intervene because the distress inflicted is so severe that no
reasonable person should be expected to endure it. [Citation omitted.]" 290 Kan. at 477.

The district court granted summary judgment on this issue as follows:

"The Defendants['] uncontroverted facts state that Plaintiffs do not have any
personal knowledge of any sexual conduct between Mr. Dorsch and Jordyn Doty.
31
Further, the Defendant[s'] uncontroverted facts state that the Plaintiffs have no admissible
evidence to show that any sexual conduct occurred on June 8 or 9, 2013, between Mr.
Dorsch and Jordyn Doty. . . . [N]either of the documents [submitted by Plaintiffs]
provides any evidence as to Mr. Dorsch engaging in sexual conduct with Jordyn Doty
during any of the time he treated her. Therefore, the Court finds that the Plaintiff cannot
meet the two threshold requirements set forth in Valadez."

The Estate first argues that no proof of actual sexual contact was required to
sustain this claim. In a vacuum, the Estate is correct: Sexual conduct is not necessary to
prove a claim of intentional infliction of emotional distress. However, under the facts and
allegations of this case, there is nothing else that could carry the heavy burden of
sustaining such a cause of action, and that is simply how the Estate pled this claim before
the district court. In its first amended petition, the Estate premised its entire claim of
intentional infliction of emotional distress on Dorsch's alleged sexual assault of Doty:
"Defendant Dorsch's sexual assault of Miss Doty is extreme and outrageous conduct [and
Dorsch] intended to cause Jordyn Doty severe emotional distress, or acted with reckless
disregard of the probability of causing emotional distress." There are no other assertions
directly relating to this cause of action. Because of how the Estate pled the cause of
action, evidence of sexual assault was required. Kimberly conceded that she had no
personal knowledge or evidence of any sexual assault of Jordyn by Dorsch at any time
during Jordyn's lifetime or on the night of the fatal accident, nor is Jordyn's knowledge of
any assault available.

Further, even though the Estate complains on appeal that conduct other than
sexual conduct can serve as a basis for intentional infliction of emotional distress, it
makes no proffer of evidence—before us or below—that would possibly serve as the
basis for such a claim. See Dawson v. Prager, 276 Kan. 373, 388-89, 76 P.3d 1036
(2003) (holding that claims defendant "'failed to keep appropriate boundaries, failed to
protect plaintiff from her own self-destructiveness, abruptly abandoned her relationship
32
with Plaintiff and was negligent in handling the therapeutic process'" were insufficient to
state claim for intentional infliction of emotional distress).

Additionally, sexual assault has a one-year statute of limitation. K.S.A. 60-514.
Plaintiffs are not permitted to couch their claims in different terms in order to evade a
statute of limitations. See Martinmaas v. Engelmann, 612 N.W.2d 600, 614 (S.D. 2000)
(Konenkamp, J., concurring); see also Dawson, 276 Kan. at 388. But that is precisely
what the Estate is attempting to do here. Although the district court did not dismiss the
Estate's intentional infliction of emotion distress claim on statute of limitations grounds,
we find it would have been proper to do so. See Gannon, 302 Kan. at 744 (holding
district court's correct result will be upheld even if it "'relied upon wrong ground or
assigned erroneous reasons for decision.'").

Finally, the Estate argues that the district court erred in granting summary
judgment on its claim for intentional infliction of emotional distress because no party
moved for summary judgment on the issue. However,

"a trial court has inherent power to dispose summarily of litigation where no genuine
issue exists as to any material fact and where, giving effect to every reasonable inference
which can be drawn from the evidence, judgment must be for one party or the other, as a
matter of law. Such authority may be exercised by a trial court even though no motion
has been filed or prior notice given, provided neither party is placed at a disadvantage
because thereof." Collins v. Meeker, 198 Kan. 390, 393, 424 P.2d 488 (1967).

The Estate has not shown that it lacked notice or was prejudiced because of a lack
of notice. If the Estate had needed more time to conduct discovery on the issue of sexual
assault, it should have moved for additional time supported by an affidavit for those
reasons pursuant to K.S.A. 2018 Supp. 60-256(f). Instead, in its response to the motion to
stay discovery, the Estate focused on the relationship between RCHC and Great Plains.
33
The Estate cannot now complain that additional time was needed to explore Dorsch's
conduct on June 8, 2013, when it appears not to have done so below.

E. Did the district court err in granting summary judgment when there were alleged
disputed facts?

Fifth, the Estate argues that the district court erred in granting summary judgment
in favor of Great Plains on the issue of vicarious liability given the presence of disputed
facts concerning Great Plains' control over RCHC, Dorsch, and Dr. Dill.

The district court held:

"The facts of this case indicate that [Great Plains] was an independent contractor,
who provided administrative services to RCHC. However, the facts do not establish that
this relationship created an employer and employee relationship or principal and agent
relationship between [Great Plains] and RCHC or its employees. The facts establish that
Dr. Dill and Mr. Dorsch were employees of the RCHC. Therefore, the Court finds that
the Plaintiffs cannot establish the necessary relationship between [Great Plains] and the
other Defendants to impute any negligence of RCHC, Dr. Dill, and Mr. Dorsch to [Great
Plains]. Thus, the Defendant [Great Plains] is entitled to summary judgment on this
issue."

We quote the Estate's argument before us in its entirety:

"First, the district court was presented with evidence that Defendant [Great
Plains] was to some extent responsible for hiring, supervising and retaining Defendant
Dorsch. Furthermore, as set forth above, the district court stayed discovery upon the
filing of Defendants' Motions for Summary Judgment and Joint Motion to Stay
Discovery. See supra. Accordingly, the district court erred in precluding the Plaintiffs
from completing discovery on the very issues before the court and then granting
summary judgment for failure to provide sufficient evidence."
34
The evidence that the Estate references as a material dispute of fact regarding
Great Plains' responsibility for the other defendants was ruled as inadmissible hearsay by
the district court. The Estate fails to be candid with us about that fact and does not
challenge the district court's hearsay ruling below. Because the Estate does not challenge
the district court's exclusion of evidence, we find the Estate has failed to properly raise
and brief this issue; therefore, the issue has been waived or abandoned. See In re
Marriage of Williams, 307 Kan. at 977. As such, there was no error in the granting of
summary judgment on this cause of action.

F. Did the district court err in granting summary judgment in favor of all defendants
when not all defendants moved for summary judgment?

Last, the Estate argues that the district court erred in granting summary judgment
in favor of all defendants on all claims when not all defendants moved for summary
judgment and not all claims were addressed in the defendants' motions for summary
judgment or the ruling of the district court.

While at first blush this argument appears to have merit, a careful examination of
the Estate's argument in its brief leaves us unpersuaded. As we have already explained,
the granting of summary judgment without motion is an inherent power of the district
court. See Collins, 198 Kan. at 393. Additionally, the Estate's assertion of error on this
point strikes us as a "catch-all" allegation in which the Estate fails to pinpoint any
particular error or claim other than making a passing reference to an alleged wrongful
disclosure. No such claim was ever pled or made below. The district court did not err in
granting summary judgment in favor of all defendants and dismissing the case.

Because all of the Estate's claims on appeal are without merit and because the
district court properly granted summary judgment on all claims for all defendants, Great
Plains' cross-appeal is moot.
35

Affirmed.