Farmer v. Stafford County Hospital et al

Filing 59

MEMORANDUM AND ORDER granting 51 Motion to Dismiss. All defendants remain in the case. Claims I, II, III, and VII remain fully intact. See M&O for specific details. Signed by District Judge Eric F. Melgren on 2/20/2019. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

FREDRICK J. FARMER, D.O.,
Plaintiff,

vs.

Case No. 17-1284-EFM-JPO

STAFFORD COUNTY HOSPITAL;
RICHARD S. CARTER, M.D.; CARTER
PROFESSIONAL CARE STAFFORD, LLC;
and TODD TAYLOR,
Defendants.

MEMORANDUM AND ORDER
Plaintiff Fredrick J. Farmer, D.O. filed suit against Defendants Stafford County Hospital
(“Hospital”); Richard S. Carter, M.D.; Carter Professional Care Stafford, LLC (“the Management
Company”); and Todd Taylor. Plaintiff claims that Defendants violated the Hospital’s Bylaws,
Rules, and Regulations of the Professional Staff (“Bylaws”) when they forwarded adverse standard
of care findings to the Kansas Board of Healing Arts (“KBOHA”) prior to giving him a hearing to
challenge the adverse findings. Plaintiff brings seven claims relating to Defendants’ conduct.
Defendants Hospital and Taylor filed a Motion to Dismiss (Doc. 51) arguing that Plaintiff did not
comply with K.S.A. § 12-105b(d) prior to filing several tort claims against them. Thus, they
contend that this Court lacks subject matter jurisdiction over these claims and request dismissal.

Because the Court finds that Plaintiff failed to comply with K.S.A. § 12-105b(d), the Court grants
Defendants’ motion.
I.

Factual and Procedural Background

Plaintiff has been a licensed physician in Kansas since 1980. Many years ago, he applied
for and received medical privileges to practice at Defendant Hospital, a hospital owned and
operated by the government of Stafford County, Kansas. Defendant Taylor is the administrator
of Defendant Hospital. Toward the end of 2016, Defendant Hospital entered into a contract with
Defendant Management Company which gave the Management Company managerial control of
the Hospital. Defendant Management Company’s sole owner is Defendant Dr. Richard Carter.
In July 2017, Plaintiff received a letter from Defendant Taylor stating that an independent
peer review firm had found adverse standard of care findings with regard to two of Plaintiff’s
charts. The letter informed Plaintiff that these findings had already been reviewed, accepted, and
forwarded on to the KBOHA. Plaintiff contacted counsel, and his counsel then demanded that the
Hospital afford Plaintiff due process rights. In addition, Plaintiff’s counsel stated that there were
defamatory statements in Defendant Taylor’s letter.
Unable to reach an understanding or agreement, Plaintiff filed a lawsuit in state court on
October 16, 2017, asserting seven claims based on Defendants’ alleged improper forwarding of
false findings to the KBOHA and refusal to provide documents to Plaintiff to challenge the
findings. These include: (1) breach of contract, (2) tortious interference with contract, (3)
promissory estoppel and detrimental reliance, (4) defamation and injury to privacy interests, (5)
retaliation, (6) violation of free speech, and (7) violation of procedural due process rights. On
October 20, Plaintiff also filed an application for a temporary injunction because it appeared that

-2-

Defendants intended to take adverse action against Plaintiff’s credentials or Hospital privileges at
an upcoming meeting on November 14.
Defendants removed the case to federal court on November 10. Plaintiff then filed a
Motion for Temporary Restraining Order. A hearing was held on November 14. The Court
granted Plaintiff’s motion to enjoin Defendants from taking any further adverse action against
Plaintiff’s privileges at the Hospital or his medical license until he was given notice and an
opportunity to be heard and present evidence before the Hospital. In April, the parties filed a Joint
Motion to Dissolve the Temporary Restraining Order stating that the parties had reached an
agreement resolving the issues to be decided by the preliminary injunction hearing.
Two Defendants, Hospital and Taylor, have now filed a Motion to Dismiss. They seek
dismissal of any state-law tort claims asserted against them on the basis that Plaintiff failed to
comply with K.S.A. § 12-105b(d), which requires written notice prior to commencing a tort claim
against a municipality or an employee of a municipality. These two Defendants contend that the
Court lacks subject matter jurisdiction over the tort claims asserted against them.
II.

Legal Standard

Defendants bring their motion to dismiss for lack of subject matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1). Motions to dismiss for lack of subject matter jurisdiction generally take
one of two forms: (1) facial attacks, which question the sufficiency of the allegations in the
complaint; or (2) factual attacks, which challenge the content of the allegations regarding subject
matter jurisdiction.1 In a factual attack under Rule 12(b)(1), the court has “wide discretion to allow
affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional

1

Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995).

-3-

facts.”2 Consequently, referencing materials submitted outside of the pleadings by the parties does
not automatically classify the motion as one for summary judgment. Here, the parties included
documents outside of the pleadings, but the Court will address the parties’ arguments as part of a
motion to dismiss.
III.

Analysis

Defendants Hospital and Taylor assert that the Court lacks subject matter jurisdiction over
any state-law tort claims brought against them because Plaintiff failed to provide written notice
before asserting his claims. Pursuant to K.S.A. § 12-105b(d), “[a]ny person having a claim against
a municipality or against an employee of a municipality which could give rise to an action brought
under the Kansas [T]ort ]C]laims [A]ct [(“KTCA”)] shall file a written notice as provided in this
subsection before commencing such action.”

A person cannot initiate an action against a

municipality or an employee of a municipality unless the claim has been denied, or deemed denied,
in full or part.3
It is undisputed in this case that Plaintiff did not provide written notice of his Kansas tort
claims to Defendants. Plaintiff argues, however, that the statute should not apply in this case. His
arguments are not persuasive.
First, he contends that several other courts have determined that the requirement to file
prior written notice of a claim to the city does not apply when the primary relief sought is equitable
or injunctive relief. These cases are not binding or persuasive as they are from outside this
jurisdiction. Plaintiff does not direct the Court to any case law from Kansas that has ruled in a

2

Id. at 1003.

3

K.S.A. § 12-105b(d).

-4-

similar manner. Indeed, Plaintiff states that Kansas courts have not addressed the issue. As will
be noted below, Kansas cases that have addressed K.S.A. § 12-105b(d) have found prior written
notice to be a mandatory condition.
Plaintiff next asserts that the requirement to give notice of state-law tort claims to “K.S.A.
12-105b defendants” prior to asserting such claims along with “non-K.S.A. 12-105b defendants”
could potentially raise claim preclusion problems. The Court finds this argument speculative.
Furthermore, this matter would better be taken up with the legislature—not the Court that is
required to apply the statute as written.
The statute in this case states that any person who has a tort claim against a municipality
or against an employee of a municipality shall file a written notice prior to filing suit.4 The use of
the word “shall” in the statute means that it is a mandatory requirement. Numerous Kansas cases
have so decided. “The notice requirements in K.S.A. 12-105b(d) are mandatory and a condition
precedent to bringing a tort claim against a municipality.”5 “Failure to substantially comply with
the statute precludes a plaintiff from obtaining relief in district court.”6 Furthermore, “[t]he statute
plainly provides that no person may initiate a lawsuit until the claim is denied or statutorily deemed
denied.”7 Until the statutory condition precedent is met, a district court is without subject matter
jurisdiction over a claim against a municipality.8 Accordingly, Plaintiff can only assert claims

4

K.S.A. § 12-105b(d).

5
Coffman v. City of Leavenworth, Kan., 303 F. Supp. 3d 1101, 1132 (D. Kan. 2018) (quoting Miller v.
Brungardt, 916 F. Supp. 1096, 1099 (D. Kan. 1996)); see also Sleeth v. Sedan City Hosp., 298 Kan. 853, 317 P.3d
782, 789-90 (2014) (noting that notice is a prerequisite to filing suit against a municipality).
6

Sleeth, 317 P.3d at 789-90 (citation omitted).

7

Id. at 794.

8

Id. at 793.

-5-

covered under the KTCA against Defendants Hospital and Taylor if he provided them written
notice pursuant to K.S.A. § 12-105b(d). Because he did not do so, the Court lacks subject matter
jurisdiction over these tort claims.
The only remaining question is what claims are covered under the KTCA in this case. The
parties agree that Claims I, II, and III are not covered because they are not tort-based claims or are
asserted against different Defendants. As to Plaintiff’s defamation claim, Claim IV, and Plaintiff’s
retaliation claim, Claim V, they are asserted against all Defendants. The Court dismisses these
claims as it relates to Defendants Hospital and Taylor. These two claims remain as it relates to
Defendants Management Company and Carter.9 As to Claim VI, Plaintiff brings a claim for
violation of free speech and relies on both a state-law theory and a federal-law theory. To the
extent it relies upon a state-law theory, it is dismissed. Finally, Plaintiff’s Claim VII is a procedural
due process claim. Defendants state that it is unclear whether Plaintiff relies exclusively on federal
law or asserts a state-law theory in this claim. Plaintiff clarifies in his briefing that he only asserts
a federal claim. Thus, Claim VII is unaffected by this Court’s ruling. In sum, to the extent that
state-law tort claims are included in Claims IV, V, and VI against Defendants Hospital and Taylor,
the Court lacks subject matter jurisdiction and dismisses those claims.
IT IS THEREFORE ORDERED that Defendants Motion to Dismiss (Doc. 51) is
GRANTED. All Defendants remain in this case. Claims I, II, III, and VII remain fully intact.
The state-law tort claims against Defendants Hospital and Taylor contained in Claims IV, V, and

9
These Defendants did not move for dismissal, and they do not appear to be a municipality or a municipality’s
employee.

-6-

VI are dismissed for lack of subject matter jurisdiction. They remain intact, however, against
Defendants Management Company and Carter.
IT IS SO ORDERED.
Dated this 20th day of February, 2019.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

-7-