261 Kan. 199
(929 P2d 754)
No. 75,014
AMANDA KAY BONIN, Appellant, v. DONALD D. VANNAMAN, M.D.; MARCILE BONIN; and ARTHUR T. BONIN, JR., Appellees.
SYLLABUS BY THE COURT
1. In considering a motion to dismiss for failure of the petition to state a claim, the court must view the facts in the light most favorable to the plaintiff and, with all doubt resolved in the plaintiff's favor, determine if the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate the plaintiff does not have a claim. However, this court is not required to accept conclusory allegations argued by the plaintiff regarding the legal effect of the presumed facts if the allegations do not reasonably follow from the facts.
2. A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive.
3. The 8-year statute of repose under K.S.A. 60-515(a) applies to all tortious acts committed while the plaintiff is a minor, regardless of how old the plaintiff is (a minor or an adult) when the action actually accrues.
4. The nature of a claim--whether it sounds in tort or contract--is determined from the pleadings and from the real nature and substance of the facts therein alleged.
5. Certain duties and obligations are imposed upon physicians and hospitals by law. Breach of such duty by a physician is malpractice, and an action for damages for malpractice is one in tort, even though there may have been an express or implied contract for proper care.
6. The general rule is that a plaintiff will not be permitted to characterize a tort action as one in contract in order to avoid the bar of the statute of limitations or governmental immunity.
7. Determining whether a statute violates the constitution is a question of law. When determining a question of law, this court may exercise an unlimited de novo standard of review.
8. A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.
9. K.S.A. 60-515(a) qualifies as malpractice legislation, and the rational basis test is the appropriate standard to apply in evaluating the equal protection concerns of the statute.
10. The rational basis test, also known as the reasonable basis test, is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State's legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.
11. If a remedy protected by due process is abrogated or restricted by the legislature, such change is constitutional if the change is reasonably necessary in the public interest to promote the general welfare of the people of the state, and the legislature provides an adequate substitute remedy to replace the remedy which has been restricted.
12. The test in determining the constitutionality of a statute under due process or equal protection weighs identical factors.
13. In order to insure due process, the legislature is required to provide an adequate, substitute remedy when a common-law remedy, such as a minor's cause of action for personal injury, is modified or restricted.
14. K.S.A. 60-515(a) restricts a minor's common-law right to recover damages for personal injury by imposing an 8-year statute of repose on minors' causes of actions. The quid pro quo for this restriction is the continued availability of health care in Kansas. Health care is readily available in Kansas because medical malpractice insurance is available to physicians at a reasonable rate, in part due to the passage of K.S.A. 60-515(a) and its 8-year statute of repose.
15. Kansas does not recognize a separate right to an open court independent from the recognized right to due process.
16. Whether the doctrine of continuous treatment should be recognized in Kansas within the context of a medical malpractice action is a question of law. Thus, this court may exercise an unlimited, de novo standard of review.
17. The statute of repose for a malpractice cause of action begins to run from the time the malpractice occurs, regardless of the negligent doctor's continued treatment of the patient.
18. A parent's decision regarding whether a child's medical condition should be investigated for signs of malpractice or whether a malpractice action should be pursued is an exercise of parental discretion regarding a child's medical condition and financial well-being, in which a court should not interfere.
Appeal from Johnson district court; JAMES FRANKLIN DAVIS, judge. Opinion filed December 20, 1996. Affirmed.
Bryson R. Cloon, of Cloon, Bennett & Ronan, of Overland Park, argued the cause, and was on the brief for appellant.
Roger W. Warren, of Blackwell Sanders Matheny Weary & Lombardi, L.C., of Overland Park, argued the cause, and Todd A. Scharnhorst, of the same firm, was with him on the brief for appellee Donald D. Vannaman, M.D.
Theodore A. Corless, of Armstrong, Teasdale, Schlafly & Davis, of Kansas City, Missouri, argued the cause, and Lynn W. Hursh and Thomas H. Mills, of the same firm, were on the brief for appellees Marcile Bonin and Arthur R. Bonin, Jr.
Wayne T. Stratton and Jeffrey A. Houston, of Goodell, Stratton, Edmonds & Palmer, L.L.P., of Topeka, were on the brief for amicus Curiae Kansas Medical Society.
The opinion of the court was delivered by
ABBOTT, J.: The plaintiff, Amanda Kay Bonin, brought this action against her medical doctor for malpractice and fraud and against her parents for negligence in not bringing an action against her doctor before her cause of action became barred by the applicable statute of repose. The trial court held against her on all issues. This appeal involves the constitutionality of K.S.A. 60-515(a) (statute of repose); a claim of fraud for failure of plaintiff's doctor to disclose her condition; a claim that the doctrine of continuous treatment is an exception to the statute of repose; and a claim that the doctrine of parental immunity does not shield plaintiff's parents from liability.
Amanda Kay Bonin was born on February 22, 1976. Defendant Dr. Donald D. Vannaman became her pediatrician shortly after birth. In January 1980, when Amanda was 3 years old, Dr. Vannaman evaluated her for possible chest pneumonia. As a part of this evaluation, Dr. Vannaman referred Amanda to a radiologist who performed a chest x-ray. In summarizing Amanda's chest x-ray, the radiology report stated in part: "There is mild scoliosis of the thoraco-lumbar spine but this could be positional." Dr. Vannaman made handwritten notes on the radiology report concerning Amanda's pneumonia. Thus, it appears that Dr. Vannaman reviewed the radiology report. Dr. Vannaman never communicated to Amanda or her parents any concern raised by the radiology report that Amanda might have scoliosis. While Dr. Vannaman provided all of Amanda's care, including her physical exams, he took no steps to further evaluate her possible scoliosis condition. Dr. Vannaman did not diagnose Amanda with scoliosis at this time. According to Amanda, scoliosis in the "mild" stage is correctable with proper treatment. Prompt and proper treatment of scoliosis at an early stage prevents progression into the "moderate" stage, which may require invasive surgery and cause lifelong problems.
In May 1987, when Amanda was 11 years old, she participated in a routine scoliosis exam performed by the school nurse at her elementary school. From this exam, Amanda received a report of spine deformity. The report recommended that Amanda see a physician for a scoliosis evaluation. Amanda underwent a series of x-rays and was diagnosed with moderately severe scoliosis. As a result, Amanda underwent several spinal surgeries. The surgeries were minimally successful, and Amanda presently suffers severe disability, preventing her from participating in many activities. Amanda may require future invasive surgery throughout her life.
Defendants Marcile and Arthur T. Bonin, Jr., are Amanda's parents. When Amanda was diagnosed with moderately severe scoliosis, her parents did not investigate to determine if Dr. Vannaman had failed to promptly diagnose Amanda's scoliosis, nor did they bring a timely malpractice action against Dr. Vannaman.
In the fall of 1994, when Amanda was 18 years old, Amanda and her mother began to gather Amanda's medical records, including those from Dr. Vannaman, in order to assist Amanda in formulating a lifetime spine management plan. In reviewing these records, Amanda discovered the 1980 x-ray report possibly identifying her mild scoliosis at age 3. On February 21, 1995, Amanda brought this action against Dr. Vannaman for fraud by silence and for malpractice in failing to promptly diagnose her scoliosis at age 3.
Dr. Vannaman filed a motion to dismiss the action. Dr. Vannaman claimed that both the malpractice and fraud claims were barred by K.S.A. 60-515(a). K.S.A. 60-515(a) is both a statute of limitations and a statute of repose. If a tortious act occurs while a person is a minor, then the minor is entitled to bring the action 1 year after reaching the age of majority (18), but "no such action shall be commenced by or on behalf of any [minor] more than eight years after the time of the act giving rise to the cause of action." K.S.A. 60-515(a). Dr. Vannaman contended that more than 8 years from his alleged failure to diagnose Amanda's scoliosis in 1980 had passed before Amanda filed the suit. Thus, the action was barred by the statute of repose under 60-515(a). Further, Dr. Vannaman argued that the separate fraud claim could not apply to him because it was, in actuality, identical to the malpractice action. In response, Amanda argued that 60-515(a) was unconstitutional and should not bar her claims, that the continuous treatment doctrine created an exception to the statute of repose, and that Dr. Vannaman was liable for a separate fraud cause of action.
On July 5, 1995, the Johnson County District Court granted Dr. Vannaman's motion and dismissed the claims against him. The court ruled that 60-515(a) was constitutional and barred the malpractice claim. The court also found that the plaintiff's fraud claim could not be brought as a separate claim against Dr. Vannaman because it was actually a malpractice action grounded in negligence. Further, the court held that even if the fraud action was proper, it was barred by 60-515(b). Finally, the court refused to recognize the doctrine of continuous treatment as an exception to the statute of limitations or repose.
In this same action, Amanda also sued her parents for failing to bring a timely malpractice action against Dr. Vannaman before the 8-year statute of repose under 60-515(a) had expired. Amanda's parents filed a motion to dismiss. They alleged that Amanda's claim against them was barred by the statute of repose and by the doctrine of parental immunity. The court granted the Bonins' motion and filed an order dismissing the action against them, with prejudice.
Amanda filed an appeal, and the case was transferred to this court for review and determination pursuant to K.S.A. 20-3018(c).
FRAUD CAUSE OF ACTION
The trial court held that Amanda's fraud claim against Dr. Vannaman was actually a medical malpractice claim, grounded in negligence, and could not be filed as a separate claim against Dr. Vannaman. As such, the trial court dismissed the claim, and Amanda appeals.
In considering a motion to dismiss for failure of the petition to state a claim, the court must view the facts in the light most favorable to plaintiff, and with all doubt resolved in the plaintiff's favor, determine if the petition states any valid claim for relief. "'"Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim."'" Blevins v. Board of Douglas County Comm'rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992) (quoting Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 [1986]). However, this court is not required to accept conclusory allegations argued by the plaintiff regarding the legal effect of the presumed facts if the allegations do not reasonably follow from the facts. Blevins, 251 Kan. at 381. See Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 481, 620 P.2d 837 (1980).
K.S.A. 60-515(a) governs the time in which Amanda must file her action. See Ripley v. Tolbert, 260 Kan. 491, 497, 921 P.2d 1210 (1996) ("[T]he 8-year statute of repose under 60-515(a) applies to all tortious acts committed while the plaintiff is a minor, regardless of how old the plaintiff is (a minor or an adult) when the action actually accrues.").
K.S.A. 60-515(a) includes both a statute of limitations and a statute of repose.
"A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though the cause of action may not have yet accrued. It is substantive." Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992).
Acting as a statute of limitations, K.S.A. 60-515(a) allows a plaintiff to bring a cause of action, based on a tortious act which occurred during minority, within 1 year after reaching the age of majority. Amanda turned 18 on February 22, 1994. She filed this action on February 21, 1995, which was within 1 year of her 18th birthday. Thus, Amanda filed this action within the statute of limitations found in 60-515(a). However, acting as a statute of repose, 60-515(a) does not allow an action to be commenced more than 8 years after the time of the act giving rise to the cause of action. Both parties agree that the act giving rise to the cause of action occurred in January 1980, when Dr. Vannaman allegedly failed to diagnose Amanda's scoliosis at the early stage. Thus, the 8-year statute of repose under 60-515(a) would have expired in 1988, 7 years prior to Amanda's filing this action.
Amanda tried to avoid this 8-year statute of repose in 60-515(a) by alleging two separate causes of action against Dr. Vannaman, one in fraud and one in medical negligence/malpractice. Amanda contends that her fraud action is timely under K.S.A. 60-513. K.S.A. 60-513 provides in pertinent part:
"(a) The following actions shall be brought within two years:
. . . .
"(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.
. . . .
"(b) Except as provided in subsection (c), 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 limitations 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." (Emphasis added.)
Amanda alleges that Dr. Vannaman's fraud was not "discovered" until 1994 when she requested her medical records from him. At this time, Amanda discovered that Dr. Vannaman had failed to inform her of her scoliosis in 1980 and continued not to inform her of her scoliosis until 1987 when she was finally diagnosed with it. At the time of this discovery, Amanda was 18 years old. As such, she contends that 60-515(a) does not apply to this claim. Instead, Amanda contends that 60-513 governs her fraud claim. Thus, according to Amanda, her fraud claim against Dr. Vannaman accrued in 1994 when the fraud was discovered. Amanda asserts that she had 2 years from 1994 to timely file her fraud claim under 60-513(a)(3). Amanda filed her fraud claim against Dr. Vannaman on February 21, 1995. Thus, Amanda argues that her fraud claim was timely filed within the 2-year statute of limitations period from the discovery of the fraud in 1994. See K.S.A. 60-513(a)(3).
However, Dr. Vannaman points out that 60-513(b) contains a statute of repose which does not allow any action to be commenced more than 10 years beyond the time of the act giving rise to the cause of action. Both parties agree that the act giving rise to the alleged fraud occurred in January 1980, when Dr. Vannaman allegedly failed to diagnose Amanda's scoliosis in its mild stage. Ten years from this date would be January 30, 1990. Amanda did not file her claim for fraud until February 21, 1995. Thus, her fraud claim, if it is valid, is barred by the 10-year statute of repose under 60-513(b).
In order to bring her fraud claim, Amanda asks this court to expand the expired 10-year statute of repose in 60-513(b), based on the doctrine of fraudulent concealment. Under the doctrine of fraudulent concealment, the statute of limitations for a fraud cause of action does not start to run until the plaintiff discovers the fraud or until the plaintiff learns such facts as would lead a reasonable person to investigate. See Dalton v. Lawrence National Bank, 169 Kan. 401, Syl. ¶ 6, 219 P.2d 719 (1950). There are two problems with this argument. One, it is not clear that the fraudulent concealment doctrine applies to a statute of repose in the same manner that it applies to a statute of limitations. See Harding, 250 Kan. at 668. We need not decide this question because even if the fraudulent concealment doctrine does apply to statutes of repose, the doctrine only tolls the time in which a fraud action may be filed if the plaintiff's claim for relief is validly grounded in fraud on its face. McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 331 362 P.2d 841 (1961) ("The [fraudulent concealment] rule applies only when the party against whom the bar of the statute is interposed is required to allege fraud in pleading his cause of action, or to prove fraud to entitle him to relief."). Addressing this second concern, Dr. Vannaman contends that Amanda has not pled a valid claim for fraud.
In support of her fraud claim, Amanda points to PIK Civ. 2d 14.42. This instruction outlines the elements of "fraud by silence." Amanda claims that these elements of "fraud by silence" are satisfied by Dr. Vannaman's conduct. She argues that Dr. Vannaman had knowledge of material facts--that Amanda's chest x-ray indicated possible mild scoliosis at age 3--which Amanda or her parents did not have. She further argues that her parents were justified in relying on Dr. Vannaman's evaluation of the x-ray without investigation because they had no reason to know of facts which would make their reliance unreasonable. According to Amanda, Dr. Vannaman, as her primary physician, was under an obligation to communicate to Amanda or her parents all material facts concerning her chest x-ray and her back condition. Amanda contends that, looking at the facts in the light most favorable to her as the plaintiff, Dr. Vannaman intentionally failed to communicate to her or her parents the material fact that Amanda's chest x-ray indicated she might have scoliosis. Amanda argues that she and her parents justifiably relied upon Dr. Vannaman to communicate the material fact about Amanda's scoliosis to them. Finally, Amanda points out that she sustained damages as a result of Dr. Vannaman's failure to communicate information about Amanda's chest x-ray to Amanda or her parents. Based on this analysis, Amanda contends that the elements of fraud by silence are met, as defined by PIK Civ. 2d 14.42, and that she validly pleads a claim of fraud against Dr. Vannaman.
Dr. Vannaman alleges that his conduct did not constitute fraud. According to Dr. Vannaman, this claim is simply Amanda's attempt to circumvent the statute of repose in 60-515(a) by creatively classifying a malpractice action as fraud. In support of this position, the defendant cites to Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), and Travis v. Bishoff, 143 Kan. 283, 54 P.2d 955 (1936).
In Malone, one of the plaintiffs, Rose Malone, visited the K.U. Medical Center (Med Center) for treatment. A physician diagnosed an infection, gave her a prescription, and ordered her home. The next day Rose's uterus ruptured, killing the fetus she was carrying. She returned to the Med Center by ambulance and a total hysterectomy was performed without her consent.
Rose and her husband filed an action against the Med Center, alleging that the Med Center breached two express contracts. According to Rose, when she originally visited the hospital for treatment, she entered into an express contract with the Med Center in which the Med Center agreed to provide complete, competent, and necessary medical treatment for her. Rose alleged that the Med Center breached this contract by sending her home with an improper diagnosis. Rose and her husband also alleged that when Rose returned to the hospital the next day, they entered into an express agreement in which the Med Center agreed to provide "only necessary, competent, and authorized medical treatment." 220 Kan. at 372. Rose and her husband contend that the Med Center breached this contract by failing to provide competent doctors and by performing a hysterectomy on Rose without her informed consent.
The Med Center filed a motion to dismiss, alleging that this was not a contract action but was a tort action, from which it was immune as a governmental entity. The trial court granted the motion, and the plaintiffs appealed. The pertinent issue in the case was whether the plaintiffs' petition validly stated a contract claim or only alleged a tort action. 220 Kan. at 373.
In answering the question, this court stated:
"The nature of a claim--whether it sounds in tort or contracts--is determined from the pleadings [citations omitted] and from the real nature and substance of the facts therein alleged. 1 C.J.S. Actions, § 35, p. 1076. . . .
. . . .
"Certain duties and obligations are imposed upon physicians and hospitals by law. Breach of such duty by a physician is malpractice, and an action for damages for malpractice is one in tort, even though there was a contract, express or implied, for employment. [Citation omitted.] Similarly an action for damages against a hospital for negligence, i.e., for breach of duties imposed by law, sounds in tort. This is true though there may be a contract between the parties.
. . . .
"In Tefft v. Wilcox, 6 Kan. 46, 61 [1870], this court held that a physician is obligated to his patient under the law to use reasonable and ordinary care and diligence in the treatment of cases he undertakes, to use his best judgment, and to exercise that reasonable degree of learning, skill, and experience which is ordinarily possessed by other physicians in the same or similar locations. We have continued to impose those duties upon physicians. See PIK Civil 15.01 and cases there cited. A physician also has the duty to make a reasonable disclosure to the patient of pertinent facts within his knowledge relating to proposed treatment, in order that the patient may intelligently consent or refuse the treatment. [Citation omitted.]
. . . .
" . . . What plaintiffs are complaining about is that the treatment provided was negligent--all of the needed treatment was not furnished, and that which was furnished was incomplete, incompetent, and unauthorized. In other words, the hospital and the physicians failed to exercise that reasonable care, skill, and diligence which the law requires of hospitals and physicians--regardless of any express contract therefor between the parties.
"Clearly the action sounds in tort, and under that theory the defendants are immune from liability. The general rule is that a plaintiff will not be permitted to characterize a tort action as one in contract in order to avoid the bar of the statute of limitations or governmental immunity. Travis v. Bishoff, 143 Kan. 283, 54 P.2d 955 [1936]; Talbot v. Waterbury Hospital Corp., 20 Conn. Sup. 149, 164, A.2d 162 (1960); Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 [1964]; Mamunes v. Williamsburgh Gen. Hosp., 28 App. Div. 2d 998, 283 N.Y.S.2d 457[, aff'd 23 N.Y.2d 757, 296 N.Y.S.2d 954, 244 N.E.2d 468 (1968)]; and, see, Yeager v. [Dunnavan], [26 Wash. 2d 559, 174 P.2d 755 (1946)]." 220 Kan. at 374-76.
Thus, this court affirmed the district court's dismissal of the action.
In Travis, 143 Kan. at 285, this court said: "The law of this state is realistic. Substance prevails over form. It is perfectly manifest that, notwithstanding the form given to the petition, the gravamen of the action was malpractice, which is a tort, and the action was barred by the two-year statute of limitations."
Based on the above cases, Dr. Vannaman alleges that he has a duty, in treating or diagnosing patients, to use ordinary care and diligence and the degree of learning ordinarily possessed by members of his profession in the same community under like circumstances. The failure to uphold such standard is a form of negligent treatment called malpractice. PIK Civ. 2d 15.01 and Comment. According to Dr. Vannaman, Amanda is alleging that he did not use ordinary care and diligence, as other doctors would have used, when he failed to disclose the information on her chest x-ray and when he failed to diagnose her scoliosis in its mild stage. As such, Dr. Vannaman asserts that this is a cause of action for malpractice, not fraud.
We agree. It is true that Dr. Vannaman's alleged conduct fulfills all of the elements of fraud by silence under PIK Civ. 2d 14.42, just as the Med Center's actions in Malone fulfilled all of the elements of a breach of contract. However, Dr. Vannaman's alleged conduct was also proscribed by a legal duty which he had an obligation to uphold. When it is alleged that such legal duty is violated, the law has classified the cause of action created by this breach as a form of negligence called malpractice, not as fraud or breach of contract, even if the violation of such duty also technically fulfills the elements of fraud or breach of contract. Amanda does not allege a valid claim of fraud against Dr. Vannaman.
This does not mean that a doctor can never be liable for fraud or breach of contract. Instead, this simply means that a fraud or breach of contract cause of action can only be based upon a physician's misconduct if that misconduct is beyond a breach of the legal duty which every doctor has the obligation to uphold. See Noel v. Proud, 189 Kan. 6, 8, 11, 367 P.2d 61 (1961) ("As early as 1870 the Kansas court recognized the general rule that a physician may contract specifically for a particular result. . . . It is generally recognized that a physician or a surgeon may bind himself by express contract to perform a cure or obtain specific results by treatment or an operation.").
As this court stated in Noel, 189 Kan. at 10 (quoting Calebrese v. Bickley, 208 Misc. 407, 408-09, 143 N.Y.S.2d 846 [1955], aff'd as modified 1 App. Div. 2d 874, 150 N.Y.S.2d 542 [1956]):
"'As malpractice covers every way in which a patient is injured through the dereliction of a doctor in his professional capacity, the approach, depending on the facts, can be through any of several familiar forms of action. But no matter what the approach, it remains an action for malpractice, not one for deceit, contract or anything else. A well recognized ground for recovery is where a physician represents that he has the skill to perform a certain operation when in fact he does not. This form of action requires the same elements of proof that an action in fraud requires, yet it could not be successfully disputed that as between the two it is an action for malpractice.'" (Emphasis added.)
Since Amanda's claim for fraud is not valid, the doctrine of fraudulent concealment cannot exist in this case. The doctrine may not be utilized to extend the time for Amanda to file either her malpractice claim or her invalid fraud claim. Thus, the only claim Amanda has against Dr. Vannaman is a malpractice claim grounded in negligence. This action is barred by the 8-year statute of repose under K.S.A. 60-515(a).
CONSTITUTIONALITY OF K.S.A. 60-515(a)
Amanda contends that the 8-year statute of repose in K.S.A. 60-515(a), which bars her malpractice claim against Dr. Vannaman, is unconstitutional as a violation of equal protection, due process, and the open courts provision. Further, Amanda claims that K.S.A. 60-515(a) is unconstitutional in light of K.S.A. 60-523, which establishes different time limitations for minors who bring sexual abuse causes of actions.
Determining whether a statute violates the constitution is a question of law. When determining a question of law, this court may exercise an unlimited de novo standard of review. Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 844, 863 P.2d 364 (1993); see State v. Nelson, 249 Kan. 689, 692, 822 P.2d 53 (1991).
A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. State v. Scherzer, 254 Kan. 926, Syl. ¶ 6, 869 P.2d 729 (1994); Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done wi