Kansas Clarifies Accrual of Action for Wrongful Death and Survival In Case on Administering Insulin Incorrectly to Diabetic

A diabetic man was admitted to a hospital. The man was unable to participate in his care because of his medical condition. A week after his admission to the hospital, a nurse administered insulin to the man incorrectly. The next day his condition significantly worsened. The man’s family had him transferred from the hospital to a medical center. The man’s diabetic coma was stabilized at the medical center. However, before the man died, he spent the remaining six months of his life incapacitated and unable to participate in his care.


On the two year anniversary of his death, the man’s wife sued the hospital and his doctor for wrongful death and medical malpractice. The medical malpractice claim was a survival action, a type of claim which allows the personal representative to recover damages accrued by the injured party between the date of injury and death for the benefit of the decedent's estate. The defendants filed motions for summary judgment arguing that both claims accrued at the time the nurse incorrectly administered insulin and, thus, were barred by the two-year statute of limitations. The trial court dismissed both claims. The court of appeals reversed both claims.


The Supreme Court of Kansas held that the wrongful death claim was not time barred while the survival action for medical malpractice was time barred. First, the court held that a cause of action for wrongful death accrues on the date of death unless information regarding the fact of death or the wrongful act that causes the death was concealed, altered, falsified, inaccurate, or misrepresented. Therefore, the wife’s wrongful death claim, filed within two years from the date of death, was not time barred. In so doing, the court overruled Crockett v. Medicalodges, Inc., 247 Kan. 433, 799 P.2d 1022 (1990) that held a wrongful death action accrues at the time of the wrongful act that causes the death, and disapproved of any language in that opinion and its progeny, including Kelley v. Barnett, 23 Kan.App.2d 564, 932 P.2d 471, rev. denied, 262 Kan. 961 (1997) and Yadon v. Dennett, 2008 WL 5401419 (Kan.App.2008) (not designated for publication).


Second, in construing the statute that controls when the statute of limitations period begins to run in a medical malpractice action, the court held that the 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 injury was reasonably ascertainable. The fact that the patient in this case was incapacitated did not affect whether his injury by the insulin injection was reasonably ascertainable. Therefore, the survival action for medical malpractice, filed over two years from the date the man’s wife had him transferred from the hospital to the medical center, regardless of the fact that the man himself was incapacitated on the date of injury, was time barred.


See: Martin v. Naik, 2013 WL 1850661 (Kan., May 3, 2013) (not designated for publication).