The Kansas Supreme Court released the following published decisions today:
Appeal No. 109,272: State of Kansas v. Rayburn Tappendick Jr.
The Supreme Court affirmed a Saline County District Court judge's order that Tappendick be required to register as a sex offender under the Kansas Offender Registration Act. Tappendick pleaded no contest in 2011 to two counts of aggravated indecent liberties with a child for offenses committed in 2008. At the time of his plea, the Kansas Offender Registration Act required lifetime registration.
On appeal, Tappendick claimed the lifetime registration requirement violated the ex post facto clause of the U.S. Constitution, which prohibits legislatures from retroactively punishing previously committed crimes, because at the time he committed the crimes, the Kansas Offender Registration Act required only a 10-year registration period. A Court of Appeals panel declined to consider Tappendick's claim based on the general rule that a new legal theory may not be asserted for the first time on appeal. The panel noted Tappendick failed to show his claim invoked any of the exceptions to the general rule.
In his petition for review, Tappendick asked the Supreme Court to review the Court of Appeals decision, asserting that the panel incorrectly ruled that he could not raise the ex post facto claim for the first time on appeal.
The Supreme Court opinion, written by Justice Dan Biles, noted Tappendick merely mentioned the exceptions to the general rule and argued without any explanation or authority that the new issue invoked the exceptions but made no effort to challenge the panel's rationale for declining to address his claim. The court held Tappendick's petition for review failed to challenge the panel's decision not to consider his claim raised for the first time on appeal.
Appeal No. 111,671, Staci Russell v. Lisa May, M.D., Victoria Kindel, M.D., and Tana Goering, M.D.Kansas Court of Appeals decisions released today
In an opinion written by Justice Marla J. Luckert, the Supreme Court considered claims brought by Russell against three health-care providers in Sedgwick County. Russell alleged three doctors' professional negligence delayed diagnosing her breast cancer, lessening her chance for recovery and long-term survival.
The Supreme Court overturned a grant of judgment as a matter of law in favor of Russell's primary care provider, Dr. Goering. The court determined the district court erred in concluding there was no legally sufficient evidence from which a reasonable jury could find the doctor owed or breached a duty of care, and the Court of Appeals erred when it found that there was no legally sufficient evidence to support a reasonable jury finding causation when the patient was later provided follow-up care by another doctor. The court rejected Dr. Goering's argument that harmless error could preserve the judgment because it could not determine the basis for the jury's finding of no fault on the part of the other doctors.
The court also rejected Russell's request that the case be remanded for trial against all three health-care providers. Instead, the court remanded for retrial only against Dr. Goering, the doctor who was prematurely granted judgment as a matter of law.