Medical Malpractice

Medical Malpractice Lawsuits in Kansas

By David Goguen, J.D., University of San Francisco School of Law
If you're filing a medical malpractice lawsuit in Kansas, understand the "medical malpractice screening panel" process and other state laws that could impact your case.

When it comes to filing a medical malpractice lawsuit in the state's civil courts, Kansas (like many states) has passed a number of laws that could make the process a little more complicated, especially as compared with procedural requirements for other injury-related lawsuits.

Laws like these have been passed as part of wider tort reform efforts, to discourage the filing of claims that have no merit. Kansas lawmakers have also declared that "substantial increases" in the cost of professional liability insurance have triggered a "crisis of availability and affordability," posing a threat to the availability and the quality of health care in the state. So, a number of state laws have been passed to:

  • assure that professional liability insurance is available and affordable to Kansas health care providers
  • assure that injured patients get adequate compensation for injuries caused by a health care provider's error, and
  • "to maintain the quality of health care in Kansas."

That's all according to Kansas Statutes section 60-3405.

Let's take a closer look at a few of these laws, and how they could affect a Kansas medical malpractice lawsuit.

Medical Malpractice Screening Panels in Kansas

If a medical malpractice lawsuit has been filed in Kansas, any party to the lawsuit, including any health care provider being sued, may file a memorandum with the court asking that a "medical malpractice screening panel" be convened, to assess the merits of the claim. This procedure is spelled out at Kansas Statutes section 65-4901.

The same goes if an injured patient's intention to file a medical malpractice lawsuit has been made known, but the lawsuit itself hasn't been filed yet. In that situation, section 65-4901 says that "any party affected by such a claim" (including a health care provider likely to be sued) may file a memorandum requesting that a screening panel be convened.

So, as the plaintiff (the person filing the medical malpractice lawsuit), you really have no say over whether or not one of these screening panels is convened. If the health care provider you've filed the lawsuit against files a memorandum asking that a panel be put together, and the request is approved (or if the judge in your case independently requests that a panel be convened) that's all it takes for this extra proceeding to take place.

These Kansas medical malpractice screening panels are typically comprised of four individuals:

  • one health care provider selected by the defendant
  • one provider selected by the plaintiff
  • one provider selected by both parties, and
  • one attorney selected by the court.

Once the panel is selected, it will hear and consider all evidence relevant to the injured patient's claims, including:

  • the patient's medical records (including test results)
  • medical care facility records, and
  • claims and defenses of the parties.

The panel will then decide and issue a written recommendation as to:

  • whether there was a "departure from the standard practice" of health care providers who are trained and practice in the specialty involved, and
  • whether there is a causal relationship between the harm suffered by the claimant, and any such departure. (Kansas Statutes section 65-4903)
This written recommendation will be admissible in any medical malpractice lawsuit, and the members of the panel will usually be able to testify at trial (and be subject to cross-examination).

Filing a Request for a Screening Panel Pauses the Statute of Limitations "Clock"

The Kansas statute of limitations for medical malpractice lawsuits sets a time limit on an injured patient's right to file this kind of case in court. The running of the "clock" on this time limit will be "tolled" (which means "paused" in legalese) until 30 days after the screening panel has issued its written recommendations over the matter, according to Kansas Statutes section 65-4908.

Expert Witness Requirements for Kansas Medical Malpractice Lawsuits

In order for a medical expert to testify as to the appropriate "standard of care" in a medical malpractice lawsuit (which is a required element of proof in almost all such cases), Kansas Statutes section 60-3412 requires the witness to have at least 50% of his or her professional time devoted to "actual clinical practice in the same profession in which the defendant is licensed," within the two years prior to the defendant's alleged medical error.

Mandatory Settlement Conference for Medical Malpractice Lawsuits

If a Kansas medical malpractice lawsuit appears headed for trial, Kansas Statutes section 60-3413 requires the court to schedule a settlement conference at least 30 days before the trial date, in an effort to resolve the case. This conference must be attended by all parties, the attorneys who are set to try the case, and anyone with "authority to settle the claim," unless good cause can be shown for their absence.

More Information on Kansas Medical Malpractice Law

A Kansas medical malpractice plaintiff also needs to be aware of -- and be in compliance with -- the Kansas medical malpractice lawsuit filing deadline set by state law.

For more details on anything related to the filing of a Kansas medical malpractice case -- and of course, for legal advice that's tailored to your specific situation, it may be time to talk with an experienced medical malpractice lawyer.

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