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40-3401. Definitions. As used in this act:

(a) "Applicant" means any healthcare provider.

(b) "Basic coverage" means a policy of professional liability insurance required to be maintained by each healthcare provider pursuant to the provisions of K.S.A. 40-3402(a) or (b), and amendments thereto.

(c) "Commissioner" means the commissioner of insurance.

(d) "Fiscal year" means the year commencing on the effective date of this act and each year, commencing on the first day of July thereafter.

(e) "Fund" means the healthcare stabilization fund established pursuant to K.S.A. 40-3403(a), and amendments thereto.

(f) "Healthcare provider" means a person licensed to practice any branch of the healing arts by the state board of healing arts, a person who holds a temporary permit to practice any branch of the healing arts issued by the state board of healing arts, a person engaged in a postgraduate training program approved by the state board of healing arts, a medical care facility licensed by the state of Kansas, a podiatrist licensed by the state board of healing arts, a health maintenance organization issued a certificate of authority by the commissioner, an optometrist licensed by the board of examiners in optometry, a pharmacist licensed by the state board of pharmacy, a licensed professional nurse who is authorized to practice as a registered nurse anesthetist, a licensed professional nurse who has been granted a temporary authorization to practice nurse anesthesia under K.S.A. 65-1153, and amendments thereto, a professional corporation organized pursuant to the professional corporation law of Kansas by persons who are authorized by such law to form such a corporation and who are healthcare providers as defined by this subsection, a Kansas limited liability company organized for the purpose of rendering professional services by its members who are healthcare providers as defined by this subsection and who are legally authorized to render the professional services for which the limited liability company is organized, a partnership of persons who are healthcare providers under this subsection, a Kansas not-for-profit corporation organized for the purpose of rendering professional services by persons who are healthcare providers as defined by this subsection, a nonprofit corporation organized to administer the graduate medical education programs of community hospitals or medical care facilities affiliated with the university of Kansas school of medicine, a dentist certified by the state board of healing arts to administer anesthetics under K.S.A. 65-2899, and amendments thereto, a psychiatric hospital licensed prior to January 1, 1988, and continuously thereafter under K.S.A. 2015 Supp. 75-3307b, prior to its repeal, and K.S.A. 39-2001 et seq., and amendments thereto, or a mental health center or mental health clinic licensed by the state of Kansas. On and after January 1, 2015, "healthcare provider" also means a physician assistant licensed by the state board of healing arts, a licensed advanced practice registered nurse who is authorized by the board of nursing to practice as an advanced practice registered nurse in the classification of a nurse-midwife, a licensed advanced practice registered nurse who has been granted a temporary authorization by the board of nursing to practice as an advanced practice registered nurse in the classification of a nurse-midwife, a nursing facility licensed by the state of Kansas, an assisted living facility licensed by the state of Kansas or a residential healthcare facility licensed by the state of Kansas. "Healthcare provider" does not include: (1) Any state institution for people with intellectual disability; (2) any state psychiatric hospital; (3) any person holding an exempt license issued by the state board of healing arts or the board of nursing; (4) any person holding a visiting clinical professor license from the state board of healing arts; (5) any person holding an inactive license issued by the state board of healing arts; (6) any person holding a federally active license issued by the state board of healing arts; (7) an advanced practice registered nurse who is authorized by the board of nursing to practice as an advanced practice registered nurse in the classification of nurse-midwife or nurse anesthetist and who practices solely in the course of employment or active duty in the United States government or any of its departments, bureaus or agencies or who provides professional services as a charitable healthcare provider as defined under K.S.A. 75-6102, and amendments thereto; or (8) a physician assistant licensed by the state board of healing arts who practices solely in the course of employment or active duty in the United States government or any of its departments, bureaus or agencies or who provides professional services as a charitable healthcare provider as defined under K.S.A. 75-6102, and amendments thereto.

(g) "Inactive healthcare provider" means a person or other entity who purchased basic coverage or qualified as a self-insurer on or subsequent to the effective date of this act but who, at the time a claim is made for personal injury or death arising out of the rendering of or the failure to render professional services by such healthcare provider, does not have basic coverage or self-insurance in effect solely because such person is no longer engaged in rendering professional service as a healthcare provider.

(h) "Insurer" means any corporation, association, reciprocal exchange, inter-insurer and any other legal entity authorized to write bodily injury or property damage liability insurance in this state, including workers compensation and automobile liability insurance, pursuant to the provisions of the acts contained in article 9, 11, 12 or 16 of chapter 40 of the Kansas Statutes Annotated, and amendments thereto.

(i) "Plan" means the operating and administrative rules and procedures developed by insurers and rating organizations or the commissioner to make professional liability insurance available to healthcare providers.

(j) "Professional liability insurance" means insurance providing coverage for legal liability arising out of the performance of professional services rendered or that should have been rendered by a healthcare provider.

(k) "Rating organization" means a corporation, an unincorporated association, a partnership or an individual licensed pursuant to K.S.A. 40-956, and amendments thereto, to make rates for professional liability insurance.

(l) "Self-insurer" means a healthcare provider who qualifies as a self-insurer pursuant to K.S.A. 40-3414, and amendments thereto.

(m) "Medical care facility" means the same when used in the healthcare provider insurance availability act as defined in K.S.A. 65-425, and amendments thereto, except that as used in the healthcare provider insurance availability act such term, as it relates to insurance coverage under the healthcare provider insurance availability act, also includes any director, trustee, officer or administrator of a medical care facility.

(n) "Mental health center" means a mental health center licensed by the state of Kansas under K.S.A. 39-2001 et seq., and amendments thereto, except that as used in the healthcare provider insurance availability act such term, as it relates to insurance coverage under the healthcare provider insurance availability act, also includes any director, trustee, officer or administrator of a mental health center.

(o) "Mental health clinic" means a mental health clinic licensed by the state of Kansas under K.S.A. 39-2001 et seq., and amendments thereto, except that as used in the healthcare provider insurance availability act such term, as it relates to insurance coverage under the healthcare provider insurance availability act, also includes any director, trustee, officer or administrator of a mental health clinic.

(p) "State institution for people with intellectual disability" means Winfield state hospital and training center, Parsons state hospital and training center and the Kansas neurological institute.

(q) "State psychiatric hospital" means Larned state hospital, Osawatomie state hospital and Rainbow mental health facility.

(r) "Person engaged in residency training" means:

(1) A person engaged in a postgraduate training program approved by the state board of healing arts who is employed by and is studying at the university of Kansas medical center only when such person is engaged in medical activities that do not include extracurricular, extra-institutional medical service for which such person receives extra compensation and that have not been approved by the dean of the school of medicine and the executive vice-chancellor of the university of Kansas medical center. Persons engaged in residency training shall be considered resident healthcare providers for purposes of K.S.A. 40-3401 et seq., and amendments thereto; and

(2) a person engaged in a postgraduate training program approved by the state board of healing arts who is employed by a nonprofit corporation organized to administer the graduate medical education programs of community hospitals or medical care facilities affiliated with the university of Kansas school of medicine or who is employed by an affiliate of the university of Kansas school of medicine as defined in K.S.A. 76-367, and amendments thereto, only when such person is engaged in medical activities that do not include extracurricular, extra-institutional medical service for which such person receives extra compensation and that have not been approved by the chief operating officer of the nonprofit corporation or the chief operating officer of the affiliate and the executive vice-chancellor of the university of Kansas medical center.

(s) "Full-time physician faculty employed by the university of Kansas medical center" means a person licensed to practice medicine and surgery who holds a full-time appointment at the university of Kansas medical center when such person is providing healthcare. A person licensed to practice medicine and surgery who holds a full-time appointment at the university of Kansas medical center may also be employed part-time by the United States department of veterans affairs if such employment is approved by the executive vice-chancellor of the university of Kansas medical center.

(t) "Sexual act" or "sexual activity" means that sexual conduct that constitutes a criminal or tortious act under the laws of the state of Kansas.

(u) "Board" means the board of governors created by K.S.A. 40-3403, and amendments thereto.

(v) "Board of directors" means the governing board created by K.S.A. 40-3413, and amendments thereto.

(w) "Locum tenens contract" means a temporary agreement not exceeding 182 days per calendar year that employs a healthcare provider to actively render professional services in this state.

(x) "Professional services" means patient care or other services authorized under the act governing licensure of a healthcare provider.

(y) "Healthcare facility" means a nursing facility, an assisted living facility or a residential healthcare facility as all such terms are defined in K.S.A. 39-923, and amendments thereto.

(z) "Charitable healthcare provider" means the same as defined in K.S.A. 75-6102, and amendments thereto.

History: L. 1976, ch. 231, § 1; L. 1977, ch. 165, § 1; L. 1979, ch. 186, § 22; L. 1980, ch. 142, § 1; L. 1981, ch. 199, § 1; L. 1982, ch. 207, § 1; L. 1984, ch. 177, § 1; L. 1985, ch. 166, § 1; L. 1986, ch. 183, § 14; L. 1986, ch. 229, § 24; L. 1986, ch. 231, § 4; L. 1986, ch. 184, § 1; L. 1986, ch. 181, § 2; L. 1986, ch. 181, § 3; L. 1986, ch. 181, § 4; L. 1987, ch. 176, § 1; L. 1987, ch. 177, § 1; L. 1987, ch. 242, § 1; L. 1987, ch. 178, § 1; L. 1987, ch. 178, § 2; L. 1988, ch. 246, § 12; L. 1989, ch. 143, § 1; L. 1990, ch. 174, § 1; L. 1990, ch. 175, § 1; L. 1991, ch. 139, § 1; L. 1992, ch. 156, § 2; L. 1994, ch. 181, § 3; L. 2000, ch. 162, § 14; L. 2001, ch. 204, § 1; L. 2003, ch. 128, § 19; L. 2012, ch. 91, § 33; L. 2014, ch. 56, § 5; L. 2015, ch. 45, § 7; L. 2017, ch. 35, § 2; L. 2018, ch. 71, § 16; July 1.

Law Review and Bar Journal References:

"A Practitioner's Guide to the Kansas Tort Claims Act," Jerry R. Palmer, 48 J.B.A.K. 299, 304 (1979).

"Governmental Liability: The Kansas Tort Claims Act [or The King Can Do Wrong]," John A. Hageman and Lee A. Johnson, 19 W.L.J. 260, 280 (1980).

"Countersuit: A Viable Alternative for the Wrongfully Sued Physician?" Stephen W. Cavanaugh, 19 W.L.J. 450, 461 1980.

"Lessons of McGuire vs Sifers," Richard Cordry, Vol. VIII, No. 1, J.K.T.L.A. 21 (1984).

"Of Torts and Distortions: An Analysis of the Medical Malpractice Insurance Pricing Problem in Kansas," Timothy Alvarez, 12 J.K.T.L.A. No. 3, 7, 9 (1989).

"Dental Malpractice: A Description and Models of Negligence," Jack Peggs, J.K.T.L.A. Vol. XXIII, No. 2, 6 (1999).

"Ex Parte Contacts with Treating Physicians: A Look at the Law and Current Practice," John W. Johnson, 33 J.K.A.J., No. 5, 11 (2010).

"Kicking Em' While They're Down: The Alternative Case Against Caps on Non-Economic Damages in Kansas," Dylan P. Wheeler, 59 W.L.J. 557 (2020).

Attorney General's Opinions:

Kansas tort claims act; indemnification of employee acting within scope of employment; inapplicable to claims against health care providers; health care provider defined. 85-29.

Self-insurance for residents by university of Kansas medical center. 85-73.

Maintenance of insurance as condition to rendering services in state. 85-92.

HMO; professional liability insurance; professional services. 90-48.

Persons subject to legislative post audits; access to records; limitations; peer assistance program records. 92-101.

Persons engaged in residency training for services to indigent health care clinics are covered under Kansas tort claims act. 93-74.

Licensure exempt status for military physicians under Kansas healing arts act; continuing education; liability insurance; expiration. 94-91.

Limited liability company, consisting of licensed medical practitioners and licensed hospital, may contract with other medical practitioners for health care services. 96-34.

CASE ANNOTATIONS

1. Act does not violate due process or equal protection provisions of federal and state constitutions. State, ex rel. Schneider v. Liggett, 223 Kan. 610, 611, 613, 614, 616, 618, 620, 576 P.2d 221.

2. Act requires "claims made coverage"; "occurrence" from policy construed in light of act. Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 812, 676 P.2d 113 (1984).

3. Rule of respondent superior not changed by act; corporation responsible for negligent act of employee doctor. McGuire v. Sifers, 235 Kan. 368, 373, 379, 681 P.2d 1025 (1984).

4. Act cited in suit for injuries in shooting by state parolee at K.U. Medical Center. Beck v. Kansas University Psychiatry Foundation, 580 F. Supp. 527, 531 (D.C. Kan. 1984).

5. Provisions of act do not deprive a health care provider of a property right. Harrison v. Long, 241 Kan. 174, 175, 182, 734 P.2d 1155 (1987).

6. Cited; ambulance services as professional services and exempt from bidding requirements in home rule statute (K.S.A. 19-214) examined. Curtis Ambulance v. Shawnee Cty. Bd. of Cty. Com'rs, 811 F.2d 1371, 1381 (1987).

7. Cited; statutes (K.S.A. 60-3407, 60-3409, 60-3411) limiting recovery in medical malpractice actions as unconstitutional examined. Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 334, 757 P.2d 251 (1988).

8. Cited; effect of settlement and hold harmless agreement between plaintiff and doctor on doctor's employer examined. Atkinson v. Wichita Clinic, P.A., 243 Kan. 705, 714, 763 P.2d 1085 (1988).

9. Act not applicable to damages from pesticides. Uhock v. Sleitweiler, 13 Kan. App. 2d 621, 628, 778 P.2d 359 (1989).

10. Legislative limitation on recovery of noneconomic damages (K.S.A. 60-19a01, 60-19a02) as not violating any constitutional rights determined. Samuel v. Wheeler Transport Services, Inc., 246 Kan. 336, 338, 789 P.2d 541 (1990).

11. Effect of provider's failure to pay annual premium surcharge on funds liability examined. Bell v. Simon, 246 Kan. 473, 475, 790 P.2d 925 (1990).

12. Denial of insurer's indemnification from fund examined where Kansas health care provider employed by Missouri professional corporation. Obstetrics & Gynecology Ltd. v. Buckner, 247 Kan. 170, 795 P.2d 386 (1990).

13. On question certified (K.S.A. 60-3201 et seq.), K.S.A. 40-3403(h) abrogating certain common-law vicarious liability held constitutional. Bair v. Peck, 248 Kan. 824, 827, 811 P.2d 1176 (1991).

14. Cited in opinion holding that K.S.A. 17-2708 of professional corporation law does not authorize medical practice by general corporation. Early Detection Center, Inc. v. Wilson, 248 Kan. 869, 876, 811 P.2d 860 (1991).

15. Provisions in K.S.A. 40-3403(h) determined not in violation of sections 1 and 2 of the Kansas Bill of Rights. Sharples v. Roberts, 249 Kan. 286, 287, 290, 816 P.2d 390 (1991).

16. Contention that doctrine of respondeat superior not changed hereby without merit; defendant fell under no vicarious liability umbrella. Jones v. Neuroscience Assocs., Inc., 250 Kan. 477, 480, 827 P.2d 51 (1992).

17. Noted where statutory credit for workers compensation benefits (K.S.A. 40-3110) held applicable to maximum PIP benefits payable under policy terms. House v. American Fam. Mut. Ins. Co., 251 Kan. 419, 428, 837 P.2d 391 (1992).

18. Cited in holding commissioner not required to execute appeal bond in excess of fund's liability plus interest and costs. Todd v. Kelly, 251 Kan. 512, 526, 837 P.2d 381 (1992).

19. Cited; whether employment agreement's liquidated damages provision is unenforceable under K.S.A. 17-2708 examined. St. Francis Regional Med. Center v. Weiss, 254 Kan. 728, 735, 737, 869 P.2d 606 (1994).

20. Cited; whether employee was an agent of hospital or physician for vicarious liability purposes examined. Oberzan v. Smith, 254 Kan. 846, 847, 869 P.2d 682 (1994).

21. Whether hospital is immune from suit alleging corporate negligence in employing independent contractor physicians examined. McVay v. Rich, 255 Kan. 371, 373, 874 P.2d 641 (1994).

22. Whether expert witness in medical malpractice trial must be engaged in a clinical practice in same profession as defendant examined. Tompkins v. Bise, 20 Kan. App. 2d 837, 840, 893 P.2d 262 (1995).

23. Notice of cancellation of basic malpractice coverage may be sent to commissioner of insurance or commissioner's representative. Geiger-Schorr v. Todd, 21 Kan. App. 2d 1, 3, 5, 901 P.2d 515 (1995).

24. Under facts, dentist may testify as expert witness in medical malpractice action in which physician is defendant. Tompkins v. Bise, 259 Kan. 39, 44, 910 P.2d 185 (1996).

25. Statutory peer review privilege is outweighed by plaintiff's right to access to facts in negligence action. Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 158, 955 P.2d 1169 (1998).

26. Therapist is not a health care provider for statute of limitations purposes in tort claim. P.W.P. v. L.S., 266 Kan. 417, 423, 969 P.2d 896 (1998).

27. Agreement which circumvents the approval requirements of K.S.A. 40-3410 is ultra vires. Resolution Oversight Corp. v. Kansas Health Care Stabilization Fund, 38 Kan. App. 2d 899, 904, 906, 175 P.3d 268 (2008).


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