1

No. 120,345

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STORMONT-VAIL HEALTHCARE, INC. and

COTTON O'NEIL CLINIC,

Appellants,

v.

BOARD OF COUNTY COMMISSIONERS FOR SHAWNEE COUNTY, KANSAS,

and CITY OF TOPEKA, KANSAS,

Appellees.

SYLLABUS BY THE COURT

1.

Under K.S.A. 22-4612, "custody" includes both formal arrest and detention that is 

the functional equivalent of an arrest in the sense a person would not be free to leave or 

feel free to leave.

2.

In a coordinated police action involving multiple law enforcement agencies, the 

agency with "operational control" has the obligation under K.S.A. 22-4612 to pay for 

medical treatment requested during the action for an injured person taken into custody.

The determination of the agency with operational control should be based on the totality 

of the circumstances.

Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed December

11, 2020. Affirmed.

Jennifer Martin Smith, of Alderson, Alderson, Conklin, Crow & Slinkard, L.L.C., of Topeka, for 

appellants. 
2

James M. Crowl, county counselor, and Joni C. Thadani, assistant county counselor, for appellee

Board of Shawnee County Commissioners.

Shelly Starr, chief of litigation, city legal department, for appellee City of Topeka.

Before STANDRIDGE, P.J., ATCHESON, J., and BURGESS, S.J.

ATCHESON, J.: In a bench trial, the Shawnee County District Court found that the 

Kansas Highway Patrol exercised operational control over the coordinated efforts of three 

law enforcement agencies to apprehend a suspected felon and, therefore, was statutorily 

responsible for the cost of medical treatment provided to the suspect for injuries he 

suffered when he was taken into custody. The healthcare providers have appealed and 

argue the proper test is direct physical control of the suspect that would place the 

payment obligation on the City of Topeka, Shawnee County, or possibly both. The 

district court correctly applied K.S.A. 22-4612 to these circumstances involving the 

interlocking actions of multiple law enforcement agencies. We, therefore, affirm the 

district court's judgment imposing no liability on the City of Topeka and Shawnee 

County for the medical expenses. The Kansas Highway Patrol is not an active party to 

this litigation, so the healthcare providers cannot recover from a governmental entity 

under K.S.A. 22-4612.

FACTUAL AND PROCEDURAL HISTORY

We sketch the salient facts without the adornment of irrelevant, if otherwise 

colorful, details. Jesse Dimmick, the suspected felon, had taken flight from Colorado, 

where he was wanted in connection with a murder, and stole a minivan in Geary County 

the morning of September 12, 2009, prompting a hot pursuit involving several Highway 

Patrol Troopers and at least one Geary County Sheriff's deputy. Dimmick headed east on 

I-70 and left the highway in rural Shawnee County, near the unincorporated community 

of Dover. By then, the Geary County Sheriff's personnel had yielded the chase to the 
3

Highway Patrol. Aware of the chase, several Topeka Police officers and Shawnee County 

Sheriff's deputies deployed along Dimmick's anticipated eastbound route.

At some point, Dimmick drove the minivan over stop-sticks, heavily damaging the 

tires. Dimmick abandoned the vehicle and entered a house in the Dover vicinity. After

Dimmick holed-up in the house with the couple who lived there as his hostages, Highway 

Patrol Troopers, Shawnee County Sheriff's deputies, and City of Topeka police officers 

converged on the scene to form what has been described as a "response team." 

Shortly after 9 a.m., a Highway Patrol trooper was the first to arrive at the minivan 

Dimmick had abandoned in front of the house. He was followed in short order by two 

Shawnee County Sheriff's deputies. They began looking for Dimmick in the immediate 

area. Highway Patrol Lieutenant Dan McCollum requested K-9 teams from both the 

Shawnee County Sheriff and the Topeka Police Department to assist in the search. The 

officers quickly determined that Dimmick had gone into the house.

In its memorandum decision, the district court identified five Highway Patrol 

troopers, seven Shawnee County Sheriff's deputies, and three Topeka police officers all 

of whom arrived at the house within minutes. In response to a question from the ranking 

Topeka police officer, Lt. McCollum stated he was in charge of the scene. He identified 

himself at least several times as the scene commander. A short time later, Lt. McCollum 

requested an ambulance be dispatched as a precaution, since Dimmick was considered 

armed and dangerous and had two hostages. Members of a Topeka Police Department 

unit trained in handling hostage situations and extractions of armed suspects from 

buildings came to the scene. 

Kansas Highway Patrol Major Mark Goodloe arrived and set up a "command 

post" at a nearby church. Shortly afterward, at the Highway Patrol's request, the Shawnee 

County Sheriff's Department sent a SWAT team, similar to the Topeka Police 
4

Department unit, to the house. Major Goodloe then met with supervisors from both the 

Shawnee County Sheriff's Department and the Topeka Police Department to brief them 

on the operation. Ranking members of those departments also coordinated their 

intervention teams and other personnel. 

An exhausted Dimmick apparently dozed off about 11 a.m., and the couple 

escaped from the house. They informed a Topeka Police detective that Dimmick had a 

knife and had fallen asleep in one of the bedrooms. 

About 10 minutes later, Major Goodloe authorized an immediate entry of the 

house to capture Dimmick. He was concerned that Dimmick might find a shotgun the 

couple had stored in the house. Shawnee County Sheriff's deputies and Topeka Police 

Department officers conferred on a coordinated tactical plan to implement the directive. 

Members of the composite response team then went in and took Dimmick into custody.

As Dimmick was lying prone in a hallway adjacent to one of the bedrooms, a 

Shawnee County Sheriff's deputy prepared to handcuff him. A sergeant with the Topeka 

Police Department had a rifle trained on Dimmick. The sergeant perceived Dimmick to 

be moving as if to avoid being handcuffed, so he stepped on Dimmick's right arm and 

ordered him to stop. As the sergeant did so, his rifle accidently discharged. The shot 

struck Dimmick in the back. The sergeant then immediately requested medical 

assistance—the ambulance on standby responded within a minute or two. The ambulance 

crew, accompanied by a Shawnee County Sheriff's deputy, transported Dimmick to 

Stormont-Vail Hospital, where he had surgery and was treated through September 29.

After Dimmick's capture, Major Goodloe directed all of the law enforcement 

officers to report to a nearby fire station to document their presence and the times of their 

arrival. Agents with the Kansas Bureau of Investigation assumed control of the 

investigation going forward, including possible criminal charges against Dimmick and 
5

the precise circumstances surrounding his injury. Several Shawnee County Sheriff's 

deputies assisted in photographing the scene and otherwise documenting physical 

evidence. By 3:30 p.m., only KBI agents and Highway Patrol troopers remained at the 

scene. Lt. McCollum stayed until just after 5 p.m. and was the last officer to leave after 

the disabled minivan had been towed. 

A KBI agent, a Highway Patrol trooper, and at least a couple of Shawnee County

Sheriff's deputies initially were at the hospital and remained there while Dimmick 

underwent surgery. The KBI agent took custody of relevant physical evidence, such as 

Dimmick's clothing. At the hospital, Dimmick was physically restrained and under guard 

throughout his stay. He was charged with three serious felonies and several 

misdemeanors in Shawnee County District Court and was convicted of some of the 

felonies and misdemeanors in 2010.

Plaintiffs Stormont-Vail Healthcare, Inc. and Cotton-O'Neil Clinic filed this action 

in the district court in 2012 against the City of Topeka and Shawnee County to recover 

the cost of the medical care they provided to Dimmick. Throughout this case, the 

plaintiffs have been united in interest and have shared legal representation; we, therefore, 

have no need to distinguish between them and refer to them jointly as Stormont-Vail. 

They have sought just over $41,700 for the medical care and treatment between 

September 12 and September 28.[*]

[*]Stormont-Vail also sued for payment of about $844 for follow-up care provided 

Dimmick in late October and late November 2009 while he was being held in the 

Shawnee County jail awaiting trial on the criminal charges. Shawnee County has

conceded liability for that amount, and the district court entered judgment accordingly for 

Stormont-Vail. Given its concession, Shawnee County has not cross-appealed that ruling.

Before filing this action, Stormont-Vail submitted written requests and more 

formal administrative demands for payment to the State, Shawnee County, and the City 

of Topeka. In the materials seeking payment from the State, Stormont-Vail asserted the 

State was responsible under K.S.A. 22-4612 based on the Highway Patrol's actions in 
6

apprehending Dimmick. We attach no direct legal significance to those demands in 

deciding this appeal. They do not in some fashion preclude Stormont-Vail's arguments 

that the district court erred in finding the Highway Patrol responsible. 

Stormont-Vail, Shawnee County, and the City of Topeka all filed motions for 

summary judgment and submitted a stipulation of facts to the district court. The district 

court entered summary judgment for Stormont-Vail against Shawnee County. The 

County appealed. We reversed and remanded that decision in 2016 because the 

undisputed facts were insufficient to support summary judgment against Shawnee County 

and the district court impermissibly drew inferences to reach that result. Stormont-Vail 

Healthcare v. Board of Shawnee County Comm'rs (Stormont-Vail I), No. 112,811, 2016 

WL 2772859, at *1 (Kan. App. 2016) (unpublished opinion). We return to that decision 

in our discussion of the governing law.

After the remand, Stormont-Vail filed an amended petition adding the Highway 

Patrol as a defendant. The district court entered summary judgment for the Highway 

Patrol on a statute of limitations defense. Stormont-Vail has not appealed that ruling, so 

the Highway Patrol is no longer a party and has not participated in this appeal. The 

parties compiled a written record they provided to the district court with a request for a 

bench trial and judgment based on those materials. The record consists of stipulations to 

many facts, contemporaneous reports law enforcement officers prepared in the usual 

course of their duties about the capture of and injury to Dimmick, affidavits, some 

deposition testimony, and other discovery materials. The district court issued a lengthy 

memorandum decision and order in October 2018 finding the Highway Patrol to be the 

law enforcement agency liable under K.S.A. 22-4612 for the cost of the medical care 

Stormont-Vail provided to Dimmick. The district court found the Highway Patrol had 

operational control of the coordinated interagency exercise—a circumstance we 

suggested would be legally significant in Stormont-Vail I. See 2016 WL 2772859, at *2. 

Stormont-Vail has appealed the district court's ruling.
7

LEGAL ANALYSIS

On appeal, we review a district court's decision in a bench trial to determine if the 

factual findings are supported by substantial record evidence, and we then consider 

whether those facts warrant the ultimate legal conclusions without giving those 

conclusions any particular deference. See Kansas Healthcare Stabilization Fund v. St. 

Francis Hospital, 41 Kan. App. 2d 488, 503, 203 P.3d 33 (2009). That standard does not 

change simply because the trial record consists only of written materials and the district 

court did not hear any live testimony. See State v. Garcia, 297 Kan. 182, 186-88, 301 

P.3d 658 (2013).

As we recognized in Stormont-Vail I, K.S.A. 22-4612 governs the obligation of a 

governmental entity to pay for medical care provided to a person in its custody. In 

pertinent part, the statute states: 

"[A] county, a city, a county or city law enforcement agency, a county department of 

corrections or the Kansas highway patrol shall be liable to pay a health care provider for 

health care services rendered to persons in the custody of such agencies the lesser of the 

actual amount billed by such health care provider or the medicaid rate." K.S.A. 22-

4612(a).

Enacted in 2006, K.S.A. 22-4612 replaced a common-law rule that imposed liability on 

the County filing charges against a criminal defendant who required medical care while 

in custody. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301

Kan. 993, 997-98, 348 P.3d 602 (2015). The statute aimed to avoid protracted litigation 

over those obligations and to curtail financial incentives to decline charging an individual 

to avert significant medical expenses. To that end, the court has construed the statute to 

place the obligation to pay on "the entity having custody of the indigent offender at the 

time the decision is made to obtain medical treatment for the offender." 301 Kan. at 1006. 

The statute relieves the governmental entity of the obligation when the individual in 
8

custody has insurance or some similar contractual right to third-party payment for 

medical expenses. Everybody agrees Dimmick has no such resource. 

The statute does not explicitly address two points relevant here: (1) What 

constitutes "custody"; and (2) how liability should be assessed when more than one law 

enforcement agency participates in a coordinated operation that results in an individual 

both being injured and taken into custody. We considered those issues in Stormont-Vail I. 

First, we held that "custody" includes both formal arrest and detention that is the 

functional equivalent of an arrest in the sense a person would not be free to leave or feel 

free to leave. Stormont-Vail I, 2016 WL 2772859, at *4. In the University of Kansas

Hospital case, the court indicated that custody for purposes of K.S.A. 22-4612 could be 

broader than formal arrest. 301 Kan. at 1006. Because the detainee in that case had been 

formally arrested—he was handcuffed and told he was under arrest—the court declined 

to fix the "outer parameters of . . . custody" under K.S.A. 22-4612. 301 Kan. at 1006.

Here, Dimmick was unquestionably in custody before he was shot. He was 

facedown on the floor surrounded by law enforcement officers. One officer had a rifle 

pointed at him, and another officer was ready to handcuff him. Whether Dimmick had 

been told he was under arrest is really beside the point, since he was not free to leave and 

a reasonable person in his position would have understood as much. That obviously did 

not change when Dimmick was shot and the call was made for medical assistance. In its 

written decision, the district court made no factual findings on whether Dimmick had 

been formally arrested either before he was shot and the ambulance was summoned or 

afterward. 

The second issue requires determining what law enforcement agency had Dimmick 

in custody when the ambulance was summoned. Again, in Stormont-Vail I, the court 

suggested that in a law enforcement action involving multiple agencies, the agency with 
9

"operational control" would be the one with "custody" of the individual for purposes of 

K.S.A. 22-4612. 2016 WL 2772859, at *2. We indicated that conclusion should be based 

on the particular facts absent some sort of formal interagency agreement governing joint 

law enforcement operations. The stipulated facts presented to the district court in StormontVail I did not directly address operational control. As a result, the district court 

impermissibly drew inferences adverse to Shawnee County in granting summary judgment 

to Stormont-Vail, necessitating the reversal and remand. 2016 WL 2772859, at *1.

We now make explicit what we intimated in Stormont-Vail I: In a coordinated 

police action involving multiple law enforcement agencies, the agency with "operational 

control" has the obligation under K.S.A. 22-4612 to pay for medical treatment requested 

during the action for an injured person taken into custody. We see no reason for some 

intricate legal standard with a slew of factors in making that determination. Rather, we 

borrow from what we said in Stormont-Vail I. So if the response team acted in something 

other than "a willy-nilly exercise . . . in a mostly uncoordinated take down of Dimmick," 

then the test for operational control is simply this: Who was "the captain of the team?" 

See 2016 WL 2772859, at *2. In a multi-agency action, then, the duty to pay under 

K.S.A. 22-4612 rests with the agency in charge as determined from the totality of the 

circumstance. In short, operational control includes or encompasses custody (and, thus, 

the responsibility to pay) under K.S.A. 22-4612.

An operational control test does not conflict with the University of Kansas

Hospital decision, 301 Kan. 993, and our court's recent decision in University of Kan. 

Hosp. Auth. v. Board of Franklin County Comm'rs, 58 Kan. App. 2d 367, 468 P.3d 806 

(2020). Neither delved into responsibility under K.S.A. 22-4612 for a coordinated law 

enforcement action involving multiple agencies. Although the concept of operational 

control is and should be straightforward, we offer some further context, since it drives the 

statutory obligation to pay in coordinated multi-agency police actions. Custody of a 

suspect for purposes of K.S.A. 22-4612 rests with law enforcement agency in command, 
10

and the imposition of the resulting obligation should not be a bone of contention between 

the agency with operational control and the assisting or subordinate agencies or among 

the assisting agencies. 

For purposes of K.S.A. 22-4612, we see three broad levels of decision-making or 

action in a law enforcement exercise like the capture of Dimmick, especially after he 

entered the house and forcibly held the residents hostage. There is operational or 

command control involving the overall coordination of the law enforcement personnel 

and systemic decisions, such as whether to negotiate with the suspect or to launch a 

forcible extraction. Below that sort of command control lies what might be called 

strategic decision-making or professional judgment. For example, professional judgment 

would entail the specific manner in which a SWAT-like team might deploy in a given 

situation or carry out a forcible extraction once that order had been issued. Finally, there 

is field implementation covering how particular officers carry out their tasks in the 

coordinated operation through ground-level judgments. Again, as an example, the Topeka 

police sergeant's decision to step on Dimmick's arm while giving an oral order to comply 

reflects a field-level judgment about how best to halt physical resistance to being 

handcuffed. 

When a single law enforcement agency carries out a complex operation involving 

numerous officers, legal responsibility under K.S.A. 22-4612 remains clear. In a multiagency action, an operational control test typically ought to yield a readily discernible 

outcome on the assumption somebody was making the overarching decisions and giving 

directions to implement them. In turn, that kind of clear outcome serves the purposes of 

K.S.A. 22-4612 by quickly and easily identifying the government entity that should pay 

for the medical treatment of a person injured while being taken into custody. There is also 

something intrinsically equitable and satisfactory about placing that legal responsibility at 

the top.
11

We suppose in a multi-agency law enforcement endeavor the agency exercising 

operational control may not have the legal authority to give binding orders to officers 

from other agencies. But those officers willingly coordinate and subordinate their efforts 

to the overarching decision-making of the lead agency. There is no good reason, 

however, that liability under K.S.A. 22-4612 should somehow shift around simply 

because operational control relies on voluntary compliance rather than a rigid chain of 

command. Likewise, liability to pay should not migrate if the negligent conduct of an 

officer from one agency caused the injuries to the person taken into custody while 

another agency had operational control. The obligation to pay under K.S.A. 22-4612 does 

not have a fault-based component to it. Rather, the statute codifies the duty of 

government entities to attend to the basic needs of individuals they have detained. See 

University of Kan. Hosp. Auth., 58 Kan. App. 2d at 371-72. 

For that reason, we similarly see no reason to impose liability on the City of 

Topeka because its police sergeant made the immediate call for an ambulance after he 

shot Dimmick. The ranking Highway Patrol commanders at the scene had a duty to 

secure appropriate (and timely) treatment for Dimmick, since that agency headed the 

operation and, therefore, had custody of him. The Topeka police sergeant made a fieldlevel decision to call for medical assistance—a near compulsory course of conduct that 

did not transfer custody of Dimmick for purposes of K.S.A. 22-4612 from the Highway 

Patrol to the City of Topeka or, even less plausibly, Shawnee County.

The considerations we have outlined also go a long way in demonstrating why 

Stormont-Vail's proposed physical custody standard would be an undesirable one. At a 

systemic level, a physical custody test might discourage multi-agency operations, such as 

this one, because an agency assisting in a subordinate capacity could be liable under 

K.S.A. 22-4612 if its officers had physical custody of an injured suspect more by 

happenstance than anything else at the time the request for medical treatment was made. 

Similarly, agencies might be willing to participate only in limited ways that would 
12

preclude their being liable under K.S.A. 22-4612. As a practical matter, we doubt K.S.A. 

22-4612 would significantly dampen multi-agency law enforcement actions. But there is 

no sound reason to apply K.S.A. 22-4612 in a way that might even theoretically prop up 

the possibility. 

More tangibly, a physical custody test would spawn otherwise unnecessary 

litigation under K.S.A. 22-4612, as this case illustrates. It is hardly clear which law 

enforcement agency had custody of Dimmick at the instant the Topeka Police sergeant 

called for the ambulance. Did the debilitating, if unintentional, gunshot place Dimmick in 

the custody of that agency? Was he already in the continuing physical custody of the 

Shawnee County deputy who had him facedown on the floor? Did the officers' combined 

actions render Dimmick "in custody" before he was shot? In fluid law enforcement 

operations, trying to establish the physical custody of an individual at the moment an 

independent event—the call for medical assistance—takes place is fraught with 

uncertainty and inexactitude. 

In this and comparable situations, that proposition would be difficult to accurately

assess in litigation months or years afterward. The issue likely would require the 

reconstruction of seemingly minor circumstances and fine distinctions teased out of 

rapidly unfolding events based on the recollections of law enforcement officers focused 

on far more immediate and significant concerns. As we mentioned in Stormont-Vail I, the 

physical custody standard also could prompt legal arguments about whether an officer 

with one law enforcement agency should be treated as the borrowed servant of another 

agency and how liability under K.S.A. 22-4612 might be imputed as a result. 2016 WL

2772859, at *5 (mentioning doctrine and citing Bright v. Cargill, Inc., 251 Kan. 387, 

404-05, 837 P.2d 348 [1992], as outlining law on borrowed-servant liability). A 

subordinate agency that employed the officer with physical custody might well assert he 

or she functioned as the borrowed servant of the primary agency. In those cases,

healthcare providers would be plunged into extended litigation as potentially responsible 
13

government entities battled each other over which one had physical custody of the injured 

individual—fomenting the very delays and obstacles to payment the Legislature sought to 

avert with K.S.A. 22-4612. 

We are unpersuaded a physical custody standard is the better mousetrap, so we 

decline to build it in preference to an operational control test.

Based on the trial record, the district court found that the Highway Patrol had 

operational control of the assembled response team and thus coordinated the entry into 

the house and the capture of Dimmick, even though a Shawnee County deputy and a 

sergeant from the Topeka Police Department exercised immediate physical dominion 

over Dimmick as he was injured and the call for assistance was made. Without 

belaboring the facts we have already set out, substantial evidence supports that finding. 

The Highway Patrol endeavored to apprehend Dimmick as he drove eastward 

across Kansas on I-70, and that remained true after he abandoned the stolen minivan and 

entered the house in Dover. Lt. McCollum exercised control over the scene at the house 

and told officers from both the Shawnee County Sheriff's Department and the Topeka 

Police Department that he was in command. Later, Lt. McCollum ceded that role to 

Major Goodloe. Major Goodloe established a command post from which he briefed 

supervisors from the other law enforcement agencies about the coordinated operation. He 

authorized entry into the house to capture Dimmick. Lt. McCollum and Major Goodloe 

each requested assistance from other law enforcement agencies, but neither relinquished 

control or command in conjunction with those requests. All of those circumstances 

support the district court's finding. 

To be sure, officers from the Shawnee County Sheriff's Department and the 

Topeka Police Department coordinated their efforts. In particular, the tactical units 

worked out an integrated plan of entry and capture. But that is what we have referred to 
14

as strategic decision-making or professional judgment. Those efforts did not conflict with 

or usurp the Highway Patrol's operational command.

As we have explained, in a multi-agency law enforcement exercise, the agency 

with operational command or control will be responsible under K.S.A. 22-4612 for the 

payment of medical treatment requested for a person then in custody and injured during 

the operation. The test typically should be fairly easy to apply, as it is here, thereby 

advancing the purpose of K.S.A. 22-4612. Based on the district court's well supported 

factual findings, it correctly concluded that the Highway Patrol had operational control of 

the coordinated effort to capture Dimmick and was responsible for the cost of the medical 

care Stormont-Vail provided in treating his injuries. The district court, therefore, properly 

declined to enter judgment against either Shawnee County or the City of Topeka for the 

medical care Dimmick received between September 12 and September 29, 2009.

Throughout this opinion, we have endeavored to clearly state we are construing 

and applying only K.S.A. 22-4612 and the particularized legal responsibility it imposes 

for payment of medical expenses. Our discussion should not be taken as a more general 

accounting of potential liability among coordinating governmental agencies for any other 

purpose or even as analogous authority that might be borrowed as persuasive. More 

narrowly, of course, we have recognized operational control as the test of first resort to 

assign the duty to pay under K.S.A. 22-4612 in multi-agency police actions. And it works 

well here. We, therefore, have no need to consider (and offer no opinion on) situations 

where that cannot be said. Those would include multi-agency actions with shared 

operational control or co-captains of the team or those unfolding in a largely formless 

way without a recognizable captain. 

Affirmed.