DIVISION FOURTEEN
Plaintiffs have filed a Motion for an Order Designating Choice of Law. Defendant filed a response and plaintiffs followed with a reply. Subsequently, plaintiffs filed a Motion to Convert Motion Regarding Designating Choice of Law to a Request for Declaratory Judgment and Request to Stay Discovery Pending the Court's Decision on the Motion. Defendant also has filed a response to the subsequent motion regarding request for declaratory judgment and for a stay. Oral argument was held on March 25, 2002 and the court now deems both motions ready for ruling. The court will address the latter motion first.
Motion to Convert Motion for an Order Designating Choice of Law to Request for Declaratory Judgment and Request to Stay Discovery Pending the Court's Decision on such Motion
Plaintiffs filed a motion to convert their motion designating choice of law to a motion for declaratory judgment on the same issue. Defendants argue in their response that plaintiffs cite no authority that would allow a motion to be deemed a declaratory judgment action under K.S.A. 60-1701 et seq. (emphasis added). This court concurs.
In addition, pursuant to K.S.A. 60-1708, the decision to grant declaratory judgment is discretionary with the court if the judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding. The Kansas Court of Appeals in Wichita Computer & Supply, Inc. v. Mulvane State Bank, 15 Kan. App. 2d 258, 805 P.2d 1255 (1991) reviewed the circumstances upon which the district court should entertain a declaratory judgment action and when a declaratory judgment action is not appropriate. "Declaratory judgments 'should not be accorded... to try a controversy by piecemeal, or to try particular issues without settling the entire controversy.' Aetna Casualty & Surety Co. v. Quarles, 92 F. 2d 324, 325 (4th Cir. 1937)." The controversy that gave rise to this proceeding will not be resolved by a final determination on the choice of law issue. Therefore, this court denies plaintiffs' motion to convert their motion for an order designating choice of law to a declaratory judgment action.
Plaintiffs also requested in their motion a stay of discovery pending this court's decision. Since this court is rendering a decision on the choice of law issue in this order, this court deems plaintiffs' motion for a stay to be unnecessary and therefore moot.
Motion for an Order Designating Choice of Law
The plaintiffs have filed a motion requesting that the court enter an order designating Illinois tort law as the choice of law in this case.
In the latter part of 1999, Becky Heller sought treatment for her minor son, Brandon Heller, at the Menninger Clinic, Inc. in Topeka, Kansas. Plaintiffs allege that upon the admission of Brandon, the Hellers refused to sign medical releases and that they "unambiguously indicate[d] to Menninger personnel that Brandon's records were not to be released until after the Hellers had an opportunity to review said records." Plaintiffs' complaint [sic] p. 2. Plaintiffs further allege that on December 6, 1999 Menninger personnel faxed confidential medical records to a third-party in Illinois without their parental consent or authorization. In addition, the plaintiffs allege that due to the unauthorized release of the medical records, they have suffered and continue to suffer severe emotional distress and other symptoms including but not limited to intense anger and distrust towards mental health professionals, loss of sleep, headaches, physical tremors, aggravation of pre-existing anxiety, depression, and stress-related diverticulitis.
First the court must determine if there is a conflict in substantive law between Kansas and Illinois. "There can be no injury in applying Kansas law if it is not in conflict with that of any other jurisdiction connected to this suit." Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 816, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985). In Kansas, plaintiffs are not entitled to recovery for emotional distress unless there are also physical injuries or physical manifestations of their emotional injuries. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 795, Syl. 8, 897 P.2d 123 (1995). There is an exception to the rule, however, where the injurious conduct was willful or wanton. Id. In contrast to Kansas law, Illinois law does not require physical injury in order for a plaintiff to recover for emotional distress. Plaintiffs cite the case Corgan v. Muehling, 143 Ill. 2d 296, 307, 311-12, 158 Ill. Dec. 489, 574 N.E. 2d 602 (1991) for the proposition, "the nature of the doctor-patient relationship gives rise to a special duty on behalf of the doctor to refrain from activity that carries with it a foreseeable and unreasonable risk of causing emotional or mental harm to the patient." While defendant concedes that in Illinois "no physical impact is necessary," defendant argues that plaintiff must demonstrate that the emotional distress is severe by expert testimony. Hiscott v. Peters, 324 Ill. App. 3d 114 (2001).
Due to the difference between the law of Kansas and Illinois regarding the recovery for emotional distress, this court finds that there is a conflict of law between Kansas and Illinois.
Kansas follows the doctrine of lex loci delicti in conflicts of law in multi-state tort cases. Defendant, however, argues that if Illinois law is to be applied, the entire law should be applied including Illinois' choice of law provisions. This suggestion, if followed, would provide a boomerang approach of first applying Kansas's choice of law provision under the doctrine of lex loci delicti in which the analysis would indicate that the court should apply the law of Illinois. Defendants then argue that the court should apply Illinois' choice of law provisions under the doctrine of renvoi which would refer the court back to the law of the forum (ie. Kansas). Plaintiff correctly argues that Kansas follows the Restatement First of Conflict of Laws. Novak v. Mutual of Omaha Ins. Co. Kan. App. 2d , 28 P. 3d 1033, 1039 (Aug. 2001). Under the First Restatement, the court should apply only its choice of law except when dealing with two limited issues which are not applicable to the present case. Therefore, only Kansas's choice of law provision should be used to determine which state's substantive law should be used.
The rule in Kansas is that the substantive law of the state in which the tort occurred (ie. the lex loci delicti doctrine) should apply. Ling v. Jan's Liquors, 237 Kan. 629, 634, 703 P.2d 731 (1985).
In Ling, the Kansas Supreme Court addressed the situation where a negligent act originates in one state but the resultant injury occurs in another state. The court held that in "an action for recovery of damages for injuries sustained in Kansas which were the result of a negligent act in another state, the liability of the defendant is to be determined by the laws of this state." Ling, 237 Kan. at 634-35.
In the present case, the alleged negligent act (sending the facsimile without a medical release) occurred in Kansas but the alleged injuries to the plaintiffs were sustained in Illinois. Therefore, under the lex loci delicti doctrine the liability of the defendant would be determined by the laws of Illinois. Defendants argue that in Brown v. Kleenkut Manufacturing Co., 238 Kan. 642, 714 P.2d 942 (1986) the Kansas Supreme Court did not utilize Ling even though the accident and injury occurred in Kansas. However, this court concurs with the plaintiffs that Brown does not support defendant's position. While the Kansas Supreme Court held that the law of Ohio would govern the liability of a dissolved predecessor corporation and its successor corporation for injuries arising from the use of a product manufactured by the dissolved predecessor corporation, the Court held that Kansas tort law would govern the nature of the cause of action available to the injured party where the injury occurs in Kansas. Brown, 238 Kan. at 642, Syl. 1.
Defendant correctly states that there is an exception to the general rule of lex loci delicti when it is contrary to Kansas public policy. Hartford Accident & Indemn. Co. v. American Red Ball Transit Co., 262 Kan. 570, 574, 938 P.2d 1281 (1997); St. Paul Surplus Lines Co. v. International Playtex, Inc., 245 Kan. 258, 270, 777 P.2d 1259 (1990).
Defendant argues that it would be contrary to the public policy of Kansas to apply another state's law to govern the obligations and liabilities of a Kansas health care provider. Defendant specifically points to K.S.A. 40-3404 which provides that Menninger's cannot be vicariously liable for another defined provider, K.S.A. 60-19a01 (sic) which sets out the specific limitation for non-economic damages, and K.S.A. 60-3701 et seq. which provides punitive damage limitations. The vicarious liability issue does not appear to be pertinent to the facts of this case so the court need not address that provision of Kansas statute.
With regard to the specific limitations for non-economic damages under K.S.A. 60-19a02, in their statement of monetary damages plaintiffs have not claimed any amount that would exceed the limitation on non-economic damages set out in K.S.A. 60-19a02. With regard to punitive damages, the plaintiff did not object to defendant's motion to strike punitive damages and the court orally granted that motion on March 25, 2002. Therefore, there is no claim for punitive damages in this case currently.
Furthermore, if the public policy exception encompassed the Kansas limitation on non-economic damages, Kansas law would be applied to all personal injury cases with conflict of law issues regardless of where the tort occurred. It seems to this court that if the conflict of law rules were applied that broadly, conflict of law rules applied to personal injury cases would be meaningless.
The Kansas Supreme Court many years ago in McDaniel v. Sinn, 194 Kan. 625, 626, 400 P.2d 1018 (1965) held that the substantive law of the state where the injury occurred should be followed including limitations on damages:
'The great weight of judicial authority is inclined to the view that questions as to the measure and amount of damages recoverable or a limitation on that amount are just as much questions of substantive law and therefore governed by the law of the place where the fatal injury was inflicted, as the right generally to recover for the wrongful death.' [quoting 15 A.L.R. 2d 762, at page 765]
As discussed earlier, there is a conflict of law between Kansas and Illinois law regarding the recovery for emotional distress. However, the defendants do not argue and this court does not find that applying Illinois law regarding this issue would be contrary to public policy in Kansas.
Plaintiffs' petition alleges that defendants violated fiduciary and ethical duties to preserve the confidentiality of the patient, etc. pursuant to K.S.A. 65-5602. In their reply to defendant's response on the choice of law issue, plaintiffs argue that K.S.A. 65-5602 is very similar to Illinois law (ie. the Illinois Mental Health and Development Disabilities Confidentiality Act, 740 ILCS 110/2) and that the application of Illinois law would not subject defendants to obligations that they could not have contemplated.
Defendants at the oral argument on this issue point to the exceptions to the privilege which are set out in K.S.A. 65-5603 and which would not be available to defendants if Illinois law is applied. However, 740 ILCS 110/9 and 740 ILCS 11010 set out the situations where a therapist may disclose information without consent. These exceptions do not appear to be substantially different from those provided under Kansas law.
Finally, the 10th Circuit in Tucker v. R.A. Hanson Co., 956 F. 2d 215, 218 (10th Cir. 1992) reviewed the original purpose of the public policy exception and held that since "every law is an expression of public policy of the state, some higher threshold is needed to prevent the forum's law from being applied in every case."
The original conception of the public policy exception was that some causes of action were so repugnant to the values of the forum state that the state courts would feel compelled to close their doors to them. State proscriptions against usury, prostitution, and gambling were examples of the kind of public policies that for a state court to countenance such activities would in Justice Cardozo's words, "violate some fundamental principle of justice, some prevalent conception of morals, some deep-seated tradition of the commonweal." Loucks v. Standard Oil Co. of New York, 224 N.Y. 99, 120 N.E. 198, 202 (N.Y. 1918). Since every law is an expression of the public policy of the state, some higher threshold is needed to prevent the forum's law from being applied in every case. A strict construction of the public policy exception was felt necessary to prevent the whole field of conflicts of law from collapsing in on itself.
Tucker, 956 F. 2d at 218.
In Prince Alexander v. Beech Aircraft Corp., 952 F. 2d 1215 (10th Cir. 1991), the plaintiff's cause of action arose in Indiana and Kansas's conflict of law rule referred to Indiana law for the substantive basis for the rights of the parties. The 10th Circuit held that Kansas public policy did not require the rejection of the Indiana statute of repose which was part of Indiana's substantive law even though Indiana's statute of repose differed from Kansas's statute of repose.
The 10th Circuit cited the Restatement (Second) of Conflict of Laws § 90 comment regarding the narrow application to be applied to the public policy exception:
The Restatement's comment stresses that this rule has a "narrow scope of application"; that "[a] mere difference between the local law rules of the two states will not render the enforcement of a claim created in one state contrary to the public policy of the other"; and that "actions should rarely be dismissed because of the rule of this section". [citation omitted.]
Prince Alexander, 952 F. 2d at 1223.
While Kansas follows the Restatement (First) of Conflict of Laws, the Restatement (Second) comment regarding the application of the public policy exception is equally applicable to the Restatement (First). While the 10th Circuit does not set precedent directly for this court, its reasoning regarding the application of the public policy exception is sound and therefore will be adopted by this court. Furthermore, this court is not persuaded that any of the conflicts of law argued by the defendants violate a strong public policy of Kansas.
Therefore, this court finds that under the lex loci delicti doctrine as applied to this case, Illinois law governs the substantive law in this case and the court grants the plaintiffs' motion regarding designating choice of law.
The above constitutes the court's ruling on the plaintiffs' motion for order designating choice of law, the plaintiffs' motion to convert the above motion to a declaratory judgment and plaintiffs' motion for a stay of discovery. No further journal entry is required.
IT IS SO ORDERED.
Dated this day of April, 2002.
____________________
Nancy Parrish
District Judge, Third Judicial District
Division Fourteen
Darla J. Lilley
P.O. 442405
Lawrence, Kansas 66044
Virginia A. Girard-Brady
Barbara Scott Girard
719 Massachusetts, Suite C
Lawrence, Kansas 66044
Marta Fisher Linenberger
Dave O'Neal
515 S. Kansas Avenue
Topeka, Kansas 66603
______________________
Norma J. Dunnaway
Administrative Assistant