IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 78,905
JEROME ALAN GLASSMAN, as Administrator of the Estate of
Cathleen Lyn Glassman, Deceased, and JEROME ALAN GLASSMAN,
Individually, for and on behalf of JEROME ALAN GLASSMAN,
Surviving Spouse of Cathleen Lyn Glassman, and SHAYLYN JANAE GLASSMAN, a Minor, and Surviving Child of Cathleen Lyn Glassman,
Appellants/Cross-Appellees,
v.
J. WILLIAM COSTELLO, M.D.,
Appellee/Cross-Appellant.
SYLLABUS BY THE COURT
1. The admissibility of the testimony of an expert witness in a medical malpractice action is primarily governed by K.S.A. 60-3412, although the general statute relating to expert testimony, K.S.A. 60-456, is collaterally involved.
2. Interpretation of a statute is a question of law. An appellate court's review of questions of law is unlimited.
3. K.S.A. 60-3412 prevents the use of "professional witnesses" in medical malpractice actions. The statute was not intended to require that only a physician practicing in a particular specialized area could qualify as an expert witness as to the standard of care of a physician practicing in the same specialized area.
4. The legislative history shows K.S.A. 60-3412 was never intended to require that a medical doctor in a medical malpractice action could only give standard of care opinions where both the testifying physician and the defendant physician practiced the same medical specialty.
5. Under the facts of this case, it was reversible error for the trial court to refuse to allow two qualified pathologists to testify as to their opinion of the standard of care of an obstetrician in a medical malpractice action.
6. Under the provisions of K.S.A. 65-1158(b), a registered nurse anesthetist shall perform duties and functions in an interdependent role as a member of a physician or dentist directed health care team.
7. Under the provisions of the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq., a health care provider who is qualified for coverage under the Health Care Stabilization Fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the Fund. The provisions of this subsection shall apply to all claims filed on or after July 1, 1986. K.S.A. 40-3403(h).
8. In a medical malpractice action against an obstetrician, where anesthesia had been administered by a nurse anesthetist, the trial court may allow the nature and extent of an obstetrician's duty of direction under K.S.A. 65-1158 to be a factual issue as part of the jury's determination whether the obstetrician negligently breached his or her duty.
9. Under the facts of this case, while an obstetrician is not vicariously liable for the actions of a nurse anesthetist where both are covered by the Health Care Stabilization Fund, the obstetrician's contention of no possible liability as the result of the provisions of K.S.A. 40-3403(h) was properly rejected by the trial court.
10. Under the facts of this case, the instructions considered together as a whole fairly instructed the jury on the law governing the case and were substantially correct such that the jury could not reasonably have been misled by them.
11. Based on our rule that the qualifications of expert witnesses and the admission of expert testimony are matters entrusted to the broad discretion of the trial court, an expert witness under the facts of this case was properly excluded from testifying about specifics of legislative and regulatory changes and not unduly restricted in his testimony.
Appeal from Ellis district court; EDWARD E. BOUKER, judge. Opinion filed July 9, 1999. Reversed and remanded with directions.
Fred E. Stoops, Sr., of Stoops & Clancy, P.C., of Tulsa, Oklahoma, argued the cause, and Thomas C. Boone, of Hays, was with him on the briefs for appellants/cross-appellees.
Michael R. O'Neal, of Gilliland & Hayes, P.A., of Hutchinson, argued the cause, and Tara L. Bragg, of the same firm, was with him on the briefs for appellee/cross-appellant.
The opinion of the court was delivered by
LARSON, J.: This appeal arises from an anesthesia-related death of a mother during the course of a cesarean section delivery of a healthy child. The mother's survivors sued the anesthetist and the obstetrician. After a settlement was reached with the anesthetist, the claim against the obstetrician was tried to a jury. The jury found the anesthetist 99% at fault and the obstetrician 1% at fault, and awarded damages of $2,007,385.47.
The mother's survivors appeal, contending the trial court erred in refusing to allow testimony as to the standard of medical care by two pathologists. The obstetrician cross-appeals, raising issues of the instructions given as to the duties of surgeons, the questioning of expert witnesses, and the damage award.
Facts:
The sad facts of this case reveal the death of Cathleen (Cathy) Glassman on September 11, 1994, during the course of a cesarean section delivery of a healthy baby girl (Shaylyn Glassman).
Cathy had experienced an uneventful pregnancy when labor commenced on September 10, 1994, and she was taken to Hays Medical Center about 8 p.m. Her obstetrician, Dr. Doss, and his backup, Dr. Bauer, were both unavailable, and she was assigned to the obstetrician on call, Dr. J. William Costello.
Dr. Costello checked on Cathy until around 2 a.m., when he determined the labor had not progressed satisfactorily and it was necessary to prepare Cathy for surgery so he could perform a cesarean delivery.
Dr. Costello ordered anesthesia services and Certified Registered Nurse Anesthetist (CRNA) Greg Mahoney was assigned to administer the anesthesia to Cathy. Mahoney discussed the options available with Cathy and her husband, Jerome Glassman. Dr. Costello was not a part of this discussion. A spinal rather than a general anesthetic was chosen and administered by Mahoney.
As the surgery began, the testimony of what happened became inconsistent. Dr. Costello claimed he only nicked the skin with the first incision. Jerome testified the first incision was 4 to 6 inches in length and Cathy said: "I can feel that, you'll have to stop, its not deadened." Jerome stated a mask was placed over Cathy's face, CRNA Mahoney said "go ahead," and Dr. Costello deepened the original incision. At this point, Jerome was excluded from the operating room.
There was also testimony that Dr. Costello immediately discontinued the surgery. Because the spinal was "spotty," Mahoney determined that additional anesthesia was necessary. A general anesthesia was chosen. Mahoney placed an oxygen mask over Cathy's mouth for 3 to 4 minutes in order to increase the oxygen (oxygenation) to her lungs. Oxygenation raises the content of oxygen in the blood and increases the patient's safety during surgery. Mahoney then administered Curare (a muscle relaxant), Sodium Pentothal (sleeping agent and respiration depressant which makes it impossible for the patient to breath on her own), and Anectine (paralyzes the muscles completely).
According to Dr. Costello, he continued with the surgery and performed a second incision only after Mahoney had administered the general anesthesia and after he asked of Mahoney, "May I start?" and Mahoney told him to proceed. Mahoney said Dr. Costello asked him if the oxygen tube was in place. Mahoney responded, "I said no, it's not. You can go ahead and take the baby." Dr. Costello then continued the surgery.
With the help of nurse Barb King, Mahoney attempted to intubate (place a tube down the trachea) in order to supply Cathy with oxygen during the procedure. A pulse oximeter measuring the oxygen content was attached. The oximeter tones continuously. The tone changes as the level of oxygen in the patient increases or decreases. Mahoney placed the tube. Dr. Costello made a third incision into the abdomen to remove the infant and encountered dark, red blood (an indicator that the patient is not receiving an adequate supply of oxygen). Dr. Costello testified he was unaware the patient had not been properly intubated until he encountered dark, red blood in the patient's abdomen. Furthermore, at that time the tone from the oximeter indicated a sharp decrease in Cathy's oxygen level.
According to nurse King, Mahoney pulled the tube, masked the patient in order to supply her with oxygen, and placed a second tube. Nurse King was reading the oximeter and testified that Cathy's oxygen level rose and fell several more times. Mahoney testified he tried to maintain Cathy's airway with a bag (squeezing the bag forcing air into her lungs) and an oxygen mask until the baby was delivered at 5:37 a.m.
After the baby was delivered, there were continued efforts to oxygenate Cathy. Mahoney administered additional Anectine and attempted another intubation. Mahoney had difficulty because he encountered airway resistance. Additional assistance from other hospital staff was provided in an attempt to resuscitate Cathy. Their efforts failed and Cathy died due to hypoxia brought about by inadequate anesthetic induction and a failure to intubate prior to initiation of the cesarean section.
This medical malpractice action for the wrongful death of Cathy was brought by Jerome Glassman and on behalf of Shaylyn against Mahoney, Dr. Costello, and others. After settlement or dismissal of all parties except Dr. Costello, the case preceded to a jury trial against him only. The Glassmans contended Dr. Costello was guilty of negligence in (1) failing to direct and monitor nurse Mahoney in the administration of anesthesia, (2) beginning surgery after the failure of a spinal anesthesia administered under his direction, (3) ignoring the oral representation of Mahoney that Cathy was not intubated, and (4) continuing with surgery when he knew, or should have known, that Cathy was inappropriately intubated.
Prior to trial, Dr. Costello moved in limine to prohibit Drs. Noordhoek and Sperry, both pathologists, from testifying as to the standard of care applicable to him, an obstetrician. This motion argued that K.S.A. 60-3412, as interpreted by our court in Tompkins v. Bise, 259 Kan. 39, 910 P.2d 185 (1996), disqualified the pathologists because they did not practice in a field similar or related to that of Dr. Costello. Dr. Costello contended our holding in Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988), that a physician is allowed to testify about issues outside his or her area of specialization with such testimony subject to cross-examination and arguments as to weight and credibility was limited by the language of Tompkins.
The Glassmans argued that both pathologists fully complied with the requirements of K.S.A. 60-3412 in that 50% of their professional time within the 2-year period preceding the incident was devoted to actual clinical practice of the same medical profession in which Dr. Costello is licensed. Both were licensed to practice medicine in Kansas by the Board of Healing Arts, as was Dr. Costello. Their involvement in the case was in their official capacities as Deputy District Coroners under K.S.A. 22a-226(a). The Glassmans stated both doctors had sufficient experience and expertise to render an opinion as to the standard of care of Dr. Costello and the jury was entitled to hear those opinions. They further contended Tompkins did not limit the holding of Wisker, but rather expanded it to allow a dentist who performed the same procedures and had comparable training as the medical doctor who performed oral and maxillofacial surgery to testify as an expert witness notwithstanding the difference in their profession and the fact they were licensed by different boards.
The trial court granted the motion to prohibit Drs. Sperry and Noordhoek from testifying as to the standard of care applicable to Dr. Costello. The written decision referred to K.S.A. 60-3412, and recognized that in Wisker, it was held to be error to prohibit a medical doctor surgeon from testifying as to the standard of care applicable to a medical doctor general practitioner and vice-versa. The trial court did not read Tompkins to expand the Wisker test as the Glassmans argued but rather focused on whether the witness was engaged in a "similar or related area of practice" as that of the defendant.
The trial court admitted the legislative history of K.S.A. 60-3412 referred to in Tompkins revealed that a provision requiring the witness to practice the same specialty as the defendant had been rejected in the final version of the statute. However, the trial court looked to specific Tompkins wording and reasoned:
"It is convincing to note two of the emphasized portions of the quotations above, which are clear and unequivocal: 'The definition of "profession" must be related to whether the expert is qualified to perform the procedure at issue and is not limited to the particular licensure of the defendant or the expert' 259 Kan. at 49, and 'The statute requires that an expert witness in a medical malpractice action be engaged in a similar or related area of practice as the defendant health care provider' 259 Kan. at 50. This plain language is entirely contrary to the position advocated by the plaintiffs."
The trial court further supported its decision that Tompkins restricted the holding of Wisker, by pointing to the wording of Justice Six's dissent in Tompkins, which stated: "By adopting the 'performing a similar medical procedure test' the majority has rewritten K.S.A. 60-3412." 259 Kan. at 50.
Finally, the trial court ruled "before Dr. Sperry and Dr. Noordhoek are allowed to testify concerning the standard of care applicable to Dr. Costello in this case, it must be shown that they have spent at least 50 percent of their professional time in the last two years in a 'similar or related' field as that in which Dr. Costello practiced."
The Glassmans moved at trial to reconsider the earlier ruling on the motion in limine. They argued (1) both physicians clearly spend more than 50% of their time in clinical practice, (2) forensic pathology is related to surgery, (3) the pathologist's opinions were formed as a part of their official duties as District Deputy Coroners, and (4) an anesthesiologist expert of Dr. Costello was expected to give standard of care testimony as to Dr. Costello and this had been mentioned in Dr. Costello's opening statement.
After a full and complete argument, the trial court reaffirmed its previous decision that Drs. Sperry and Noordhoek would not be allowed to offer a standard of care opinion as to the actions of Dr. Costello.
The Glassmans then presented proffers. Dr. Noordhoek would say there was a major miscommunication or noncommunication between Dr. Costello and Mahoney. He would opine Dr. Costello had the duty to know what was going on with the patient before he proceeded with the surgery, and his failure to do so was a deviation from the standard of care of a surgeon.
In the proffer of Dr. Sperry, it was revealed he had written and lectured extensively on the standard of care of physicians, he had lectured on and had a special interest in maternal deaths and specifically the anesthesia and surgical procedures relating thereto, he had probably done more autopsies in this area than 98% of pathologists, and he was a licensed Kansas doctor who had given opinions in Kansas as a forensic pathologist 10 or 12 times. It was his opinion that Dr. Costello's actions in this case fell below the standard of care by failing to ensure that Cathy was adequately anesthetized and being ventilated and oxygenated to the extent necessary before initiating the surgical procedure.
In addition to the proffer there was evidence in the record that Dr. Sperry had served as an intern in a hospital for 3 years, had delivered over 200 babies as a family doctor, and giving standard of care opinions was a part and parcel of his job as a forensic pathologist as Deputy Chief Medical Examiner for Fulton County in Atlanta, Georgia. In this case he had been employed as a consultant to Dr. Noordhoek. His hiring was authorized by K.S.A. 22a-233, and his report was contended to be admissible as competent evidence under the wording of K.S.A. 22a-235.
It was also shown that Dr. Noordhoek is a pathologist and coroner licensed to practice medicine and surgery in Kansas. He investigated the death of Cathy in his official capacity as Deputy District Coroner.
After a week-long trial, the jury apportioned 1% of the fault to Dr. Costello and assessed the remaining 99% of the fault against Nurse Mahoney. The $2,007,385.47 damage award was the entire amount requested by the Glassmans. The Glassmans appeal. Dr. Costello cross-appeals.
GLASSMANS' ISSUE ON APPEAL
Did the trial court err in refusing to allow Drs. Noordhoek and Sperry, both pathologists, to testify as to the standard of care of Dr. Costello, an obstetrician, in performing a surgical procedure?
The admissibility of the testimony of an expert witness in a medical malpractice action is primarily governed by K.S.A. 60-3412, although the general statute relating to expert testimony, K.S.A. 60-456, is collaterally involved.
Dr. Costello suggests an abuse of discretion standard of review, relying on Sterba v. Jay, 249 Kan. 270, 283, 816 P.2d 379 (1991). The Glassmans argue that interpretation of K.S.A. 60-3412 involves an issue of law with unlimited appellate review. We held in Tompkins:
"Interpretation of a statute is a question of law. An appellate court's review of questions of law is unlimited. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). . . . It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993)." 259 Kan. at 43.
The result we reach in this case is based on our interpretation of K.S.A. 60-3412 and the application of the two Kansas cases we have referred to previously, Wisker and Tompkins.
K.S.A. 60-3412 provides:
"In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person's professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed."
Wisker is directly on point with our facts and held:
"K.S.A. 1987 Supp. 60-3412 prevents the use of 'professional witnesses' in medical malpractice actions, all as is more fully discussed in the opinion. The statute was not intended to require that only a physician practicing in a particular specialized area could qualify as an expert witness as to the standard of care of a physician practicing in the same specialized area." 244 Kan. 36, Syl. ¶ 3.
The trial court in Wisker construed K.S.A. 1987 Supp. 60-3412 as precluding a surgeon from testifying as to the standard of care applicable to a general practitioner and a general practitioner from testifying as the standard of care applicable to a surgeon. The plaintiff there, as the plaintiffs do here, contended this was an erroneous construction of 60-3412. We unanimously agreed. In reaching the decision set forth above in Syllabus ¶ 3, we pointed out the intent of 60-3412 was to require that a practitioner of the healing arts must spend 50% or more of his or her time in clinical practice (a requirement met by both Drs. Noordhoek and Sperry) to keep from being considered a "professional witness." Critical to the issue we face here, we said:
"The statute was not intended to require that only a surgeon could testify as to the standard of care of another surgeon, etc. The weight afforded the testimony of physicians testifying outside their area of professional specialization is a matter to be determined by the jury." 244 Kan. at 44.
We did not reverse the trial court in Wisker, despite an erroneous instruction, because we found the testimony to be cumulative to properly admitted evidence as to the standard of care of both the general practitioners and the surgeon. It should be clear from what we have previously said herein that unless the clear holding of Wisker has been materially narrowed by our later decision of Tompkins, reversal of the trial court is required and a new trial must be ordered with instructions to allow both pathologists to give their opinions as to the standard of care of Dr. Costello.
The precise issue in Tompkins was whether it was erroneous for the trial court to allow a licensed dentist with an additional 3 years of training in oral and maxillofacial surgery to testify as an expert witness in a trial where the defendant was a medical doctor with specialized training in oral and maxillofacial surgery. The trial court reasoned that since both parties were qualified to perform the same procedure, the dentist was qualified as an expert witness.
The Court of Appeals in Tompkins v. Bise, 20 Kan. App. 2d 837, 893 P.2d 262 (1995), focused on the wording in K.S.A. 60-3412 relating to the 50% of clinical practice required to be in the same "profession" and held in a 2 to 1 decision that since the dentist and the medical doctor were licensed by separate boards they did not fall under the same "profession." Therefore, the opinion should not have been allowed. The dissent reasoned this construction of the word "profession" was entirely too limited because the dentist spent more than 50% of his actual clinical practice performing the identical surgery that the defendant doctor had performed in the case in issue. 20 Kan. App. 2d at 843-44 (Gernon, J., dissenting).
We granted a petition for review, reversed the Court of Appeals, and affirmed the trial court's admission of the dentist testimony. In doing so, we first held the wording concerning the witness being in the same "profession" should not be limited as to licensure and was related to whether the expert is qualified to perform the procedure at issue. While there is wording in the Tompkins opinion that speaks of the witness being engaged in a similar or related area of practice or performing the procedure at issue, it must be read to explain our approval of testimony by a dentist against a medical doctor because he was qualified based on the circumstances stated. It was never intended to limit admissibility of opinions by experts who are within the same profession or who hold the same basic licensure.
The result of our opinion in Tompkins is an expansion, not a limitation, of the individuals who qualify as medical experts. When we refused to construe the "same profession" wording literally, we tied the admissibility of the opinion of the witness outside the defendant's profession to the requirement of expertise in a similar or related area of practice or the witness' qualifications to perform the procedure at issue.
The language of Tompkins that the trial court relied on here was necessary to justify the result reached in that case because of the licensure difference. But, it is not to be applied to restrict testimony of experts holding the same licenses. Nor does it limit or alter our holding in Wisker that one medical doctor may testify as to the standard of care applicable to another, irrespective of the area of specialization of either.
We noted in Tompkins that "the language requiring that the witness practice the same specialty as the defendant was not included in the final version of the statute." 259 Kan. at 49. The result the trial court reached here directly contradicts the teaching of this statement and what our legislative history shows was the intent of K.S.A. 60-3412. The 50% of clinical practice requirement was intended to prohibit the testimony of "professional witnesses." But, the legislative history shows K.S.A. 60-3412 was never intended to require that a medical doctor could only give standard of care opinions where both physicians practiced the same medical specialty.
The trial court committed reversible error in its ruling on the motion in limine and on its reconsideration at trial. The Glassmans were deprived of compelling testimony by Kansas licensed physicians that went to the heart of their case. The trial court is reversed and a new trial is ordered.
DR. COSTELLO'S ISSUES ON CROSS-APPEAL
Dr. Costello contends the trial court erred in (1) imposing a duty on him to direct the administration of anesthesia by a nurse anesthetist based on the provisions of a nursing statute and in refusing Dr. Costello's requested instruction on vicarious liability, (2) allowing one of the Glassmans' expert medical witnesses to give allegedly new opinions at trial that were not previously disclosed, (3) limiting the testimony of defense expert Steve Preston regarding the changes in the CRNA rules and regulations, and (4) allowing an award of pecuniary damages contrary to the evidence.
In light of our decision to reverse and remand for a new trial, we will not reach or discuss cross-appeal issue (2) because the medical expert's allegedly new opinions should pose no surprise during the retrial and discovery can be supplemented if such is required.
Nor do we consider cross-appeal issue (4) because the amount of damages to be awarded, if any, will be subject to consideration by a new jury, with new evidence presented. The admissibility and sufficiency of the evidence will remain within the control of the trial court.
When a new trial has been ordered, we hesitate to consider issues unless our doing so is likely to assist the trial court and the parties. We also recognize that testimony may vary and the chemistry in the courtroom may be altered, rendering our statements of limited value. With this disclaimer in mind we do, however, believe that cross-appeal issues (1) and (3) are likely to be crucial questions on retrial.
Did the trial court err in imposing a duty on Dr. Costello to direct the administration of anesthesia by CRNA Mahoney based on the provisions of a nursing statute, and if such duty exists, should his requested instruction on vicarious liability have been given?
Dr. Costello's first issue in reality encompasses two contentions: First, he argues the trial court erred in concluding an obstetrician performing surgery which requires anesthesia has any duty to direct the administration of anesthesia by a nurse anesthetist. Second, he argues that if such a duty exists, the trial court should have given his requested instruction on the absence of vicarious liability under K.S.A. 40-3403(h).
We first consider the existence of a duty to direct as it relates to the Glassmans' claim of negligence against Dr. Costello.
The existence of a legal duty, McGee v. Chalfant, 248 Kan. 434, Syl. ¶ 3, 806 P.2d 980 (1991), and the interpretation of a statute, Tompkins v. Bise, 259 Kan. at 43, are both questions of law over which this court exercises unlimited review.
This case was submitted to the jury on four claims of asserted liability, all as stated in jury instruction No. 2. That instruction, in applicable part, states:
"Plaintiff's contend that the defendant, J. William Costello, M.D., is guilty of the following specific acts of negligence, which plaintiffs contend constituted malpractice:
"a. In failing to direct and monitor nurse Mahoney in the administration of the anesthesia; and
"b. In beginning surgery after the failure of a spinal anesthesia administered under his direction; and
"c. In ignoring the oral representation of Greg Mahoney, CRNA, that decedent was not intubated; and
"d. In continuing with surgery when he knew, or should have known, that Cathleen Lyn Glassman was inappropriately intubated."
The Glassmans' contentions that Dr. Costello owed a duty which he violated center on K.S.A. 65-1158 as it read at the time applicable to this case. The terms of that statute were given to the jury by the trial court as instruction No. 10. That instruction reads:
"(a) Each registered nurse anesthetist shall:
(1) Conduct a pre- and post-anesthesia visit and assessment with appropriate documentation;
(2) develop an anesthesia care plan with the physician or dentist which includes procedures for administration of medications and anesthetic agents;
(3) induce and maintain anesthesia at the required levels;
(4) support life functions during the perioperative period;
(5) recognize and take appropriate action with respect to patient responses during anesthesia;
(6) provide professional observation and management of the patient's emergence from anesthesia;
(7) participate in the life support of the patient;
(8) participate in periodic and joint evaluation of services rendered, including, but not limited to, chart reviews, case reviews, patient evaluation, and outcome of cases statistics; and
(9) participate in the joint reviews and revision of adopted protocols or guidelines.
"(b) A registered nurse anesthetist shall perform duties and functions in an interdependent role as a member of a physician or dentist directed health care team."
Critical to the Glassmans' claims is the wording in subparagraph (b) that the duties and functions of a registered nurse anesthetist are to be performed "in an interdependent role as a member of a physician . . . directed health care team." (Emphasis added.)
Dr. Costello's argument that he had no responsibility for the acts of CRNA Mahoney are based on the change in the wording of an administrative regulation and on the 1986 enactment of the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq.
K.S.A. 40-3403 pertains to the Health Care Stabilization Fund established for the purpose of paying damages for personal injury or death arising from the negligent rendering or failure to render professional services by health care providers. K.S.A. 40-3403(h) provides:
"A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this