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No. 114,285

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

T.H., and C.C., Individually, and R.N.C., by and through Her Next Friend and Natural 

Mother, T.H.,

Appellants,

v.

UNIVERSITY OF KANSAS HOSPITAL AUTHORITY d/b/a UNIVERSITY OF KANSAS HOSPITAL 

and FRANCESCA PEREZ-MARQUES, M.D.,

Appellees.

SYLLABUS BY THE COURT

1.

K.S.A. 2015 Supp. 38-2223(f) provides immunity to doctors who negligently 

misdiagnose child abuse.

2.

Malice is the intent to do harm without any reasonable justification or excuse. To 

prove actual malice a plaintiff must show that the defendant acted with actual evilmindedness or specific intent to injure.

3.

When the cause of action depends on a showing that the defendant acted with 

malice, to withstand a motion to dismiss for failure to state a claim, the petition must 

sufficiently allege a specific intent to injure.

4.

Notice pleading did not do away with the traditional causes of action or the need 

to at least present the bare bones of the cause of action in the petition in a concise and 
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understandable manner; the claim is to be provided by the petitioner and not by the

supposition of the court.

Appeal from Wyandotte District Court; DANIEL A. DUNCAN, judge. Opinion filed January 6, 

2017. Affirmed.

James M. Crabtree, of Crabtree Law Office, of Lenexa, for appellants. 

Janet M. Simpson and Casey L. Walker, of Simpson, Logback, Lynch, Norris, P.A., of Overland 

Park, for appellee University of Kansas Hospital Authority.

M. Bradley Watson, Scott K. Logan, Jeff K. Brown, Christopher H. Logan, and David M. Tyrrell, 

of Logan, Logan & Watson, L.C., of Prairie Village, for appellee Francesca Perez-Marques, M.D.

Before STANDRIDGE, P.J., ARNOLD-BURGER and BRUNS, JJ.

ARNOLD-BURGER, J.: T.H. and C.C., individually, and R.N.C., by and through her 

next friend and natural mother, T.H., (Parents) brought suit against Dr. Francesca PerezMarques and the University of Kansas Hospital Authority (KU) alleging that PerezMarques committed malpractice when she misdiagnosed that 9-month-old R.N.C. had 

been sexually abused. The district court dismissed the action, finding that both parties 

were immune from suit under K.S.A. 2015 Supp. 38-2223(f) which protects certain 

individuals from civil liability for reporting suspected child abuse. Parents appeal the 

dismissal of their suit. Because we find that K.S.A. 2015 Supp. 38-2223(f) provides 

immunity to doctors who negligently misdiagnose child abuse and there were no facts 

alleged in the pleadings that could lead us to infer that the doctor's actions were taken 

with a specific intent to injure the parents and their child, we affirm the district court's 

dismissal of this action. 
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FACTUAL AND PROCEDURAL HISTORY

T.H. and C.C. took their 9-month-old daughter R.N.C. to Dr. Perez-Marques at 

KU for a respiratory infection. After examining R.N.C., Perez-Marques suspected that 

R.N.C. had been the victim of severe, chronic sexual abuse. She alerted the police and, 

with the aid of nurses at KU, conducted HIV and STD testing on the child. 

Parents filed suit against Perez-Marques and KU (Perez-Marques) seeking relief 

for the pain, suffering, mental anguish, medical intrusion, humiliation, outrage, medical 

expense, and economic loss they suffered as a result of Perez-Marques' report. In their

petition, Parents allege: that Perez-Marques misdiagnosed sexual abuse; that there was 

no medical or factual basis for Perez-Marques' belief that R.N.C. had been abused; that 

Parents were told of the abuse in a way that was extreme and outrageous; and, that PerezMarques' actions intentionally and/or recklessly inflicted emotional distress on Parents.

In response to the petition, KU filed a motion to dismiss for failure to state a claim 

upon which relief can be granted and Perez-Marques raised the same issue as an 

affirmative defense in her answer. Parents made no attempts to amend their pleading but 

instead argued that it contained sufficient facts from which the court could infer malice. 

After a hearing on the matter, the district court dismissed Parents' suit, finding that 

Parents failed to sufficiently allege that Perez-Marques acted with malice and accordingly 

statutory immunity should be extended to both defendants.

Parents now appeal.

ANALYSIS

Parents appeal the district court's grant of Perez-Marques' K.S.A. 2015 Supp. 

60-212(b)(6) motions to dismiss for "failure to state a claim upon which relief can be 
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granted." A description of this court's standard of review on appeal must start by 

recounting the way a district court evaluates a K.S.A. 2015 Supp. 60-212(b)(6) motion:

"When entertaining a motion to dismiss for failure to state a claim, the district 

court is required to assume that the facts alleged by the plaintiff are true. It is then 

required to draw any reasonable inferences from those facts and determine whether the 

facts and inferences state a claim, not only on the theory espoused by the plaintiffs, but 

on any possible theory the court can divine. There are sound reasons for a certain degree 

of judicial skepticism toward such motions. Under Kansas' notice pleading, a petition is 

not intended to govern the entire course of the case. Rather, the ultimate legal issues and 

theories on which the case will be decided are reduced to writing in the pretrial order, 

typically entered at the close of discovery." Nungesser v. Bryant, 283 Kan. 550, 559, 153 

P.3d 1277 (2007).

On appeal, this court provides similar review, upholding the district court's decision to 

grant a motion if the "allegations contained in [the petition] were not legally cognizable." 

283 Kan. at 559. Additionally, to the extent that this appeal requires this court to interpret 

K.S.A. 2015 Supp. 38-2223, review is unlimited. Neighbor v. Westar Energy, Inc., 301 

Kan. 916, 918, 349 P.3d 469 (2015).

In this appeal, Parents argue that the district court either misinterpreted or 

misapplied K.S.A. 2015 Supp. 38-2223 to grant Perez-Marques' motion to dismiss. 

K.S.A. 2015 Supp. 38-2223 makes various groups of people, including physicians and 

nurses, mandatory reporters in the event that they have "reason to suspect that a child has 

been harmed as a result of physical, mental or emotional abuse or neglect or sexual 

abuse." K.S.A. 2015 Supp. 38-2223(a)(1)(A). The statute makes it a misdemeanor to 

willfully and knowingly fail to make a report when abuse is suspected. K.S.A. 2015

Supp. 38-2223(e). At the same time, it provides civil immunity to "[a]nyone who, without 

malice, participates in the making of a report to the secretary or a law enforcement 
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agency relating to a suspicion a child may be a child in need of care or who participates 

in any activity or investigation relating to the report." K.S.A. 2015 Supp. 38-2223(f).

Parents make two specific allegations of error based on K.S.A. 2015 Supp. 

38-2223, each of which will be discussed below.

K.S.A. 2015 Supp. 38-2223(f) grants immunity to medical professionals who report 

suspected sexual abuse even in situations in which the abuse was misdiagnosed.

First, Parents argue that the district court improperly interpreted K.S.A. 2015

Supp. 38-2223(f) as providing immunity for malpractice. This argument is premised on 

Parents' belief that the doctor's report of suspected sexual abuse constituted malpractice 

because it equated to a misdiagnosis of abuse. While Kansas appellate courts have not 

previously addressed such an argument, the Missouri Court of Appeals, applying Kansas 

law, held that K.S.A. 38-1526's (now K.S.A. 2015 Supp. 38-2223) grant of immunity 

covers medical malpractice claims based on allegations that a doctor misdiagnosed abuse. 

D.L.C. v. Walsh, 908 S.W.2d 791, 798-99 (Mo. App. 1995).

In reaching its holding, the Missouri court first considered that the Kansas 

Legislature clearly articulated the policy goal behind K.S.A. 2015 Supp. 38-2223. The 

stated goal is to "'provide for the protection of children who have been subject to 

physical, mental or emotional abuse or neglect or sexual abuse by encouraging the 

reporting of suspected child abuse and neglect.'" 908 S.W.2d at 798; see also K.S.A. 2015

Supp. 38-2201 (current location of the language cited by the D.L.C. court). The D.L.C.

court concluded that "[t]he goal of encouraging the reporting of suspected child abuse is 

better met when those attempting to comply with the statute are confident that no civil 

liability will result therefrom." 908 S.W.2d at 798.
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The D.L.C. court next considered the fact that failure to report suspected abuse is a 

misdemeanor offense. 908 S.W.2d at 799. The court reasoned that "[i]f immunity did not 

apply to the negligent misdiagnosis of child abuse, health care providers would face a 

dilemma. By reporting suspected abuse, they would open themselves up to malpractice 

actions, but by declining to make a report, they could be guilty of a misdemeanor." 908 

S.W.2d at 799. The court concluded that the Kansas Legislature could not possibly have 

intended to put doctors in such a perilous position.

Finally, the Missouri court considered cases from other jurisdictions with similar 

reporting statutes. It found that courts from other jurisdictions have concluded that 

immunity applies both to the diagnosis and reporting of suspected child abuse. 908 S.W. 

2d at 799 (citing Watterson v. Page, 987 F.2d 1, 10 [1st Cir. 1993]; Awkerman v. 

Orthopedic Group, 143 Mich. App. 722, 726, 373 N.W.2d 204 [1985]; May v. S.E. 

Wyoming Mental Health Ctr., 866 P.2d 732, 738 [Wyo. 1993]). In addition to the cases 

cited by the D.L.C. court, courts in numerous other jurisdictions have interpreted similar 

immunity statutes to include claims alleging misdiagnosis of child abuse. See, e.g.,

Anonymous Hosp. v. A.K., 920 N.E.2d 704, 709 (Ind. App. 2010) (noting that Kentucky 

and West Virginia have similar statutes that have been interpreted to provide immunity 

for misdiagnosis as well as reporting); Maples v. Siddiqui, 450 N.W.2d 529, 531 (Iowa 

1990) (citing to cases out of Louisiana, Montana, and North Carolina granting broad 

immunity).

Parents summarily contend that the D.L.C. court misapplied Kansas law and 

ignored the plain meaning of the statute in reaching its result. Contrary to Parents'

contention, we find that the Missouri court properly interpreted Kansas law. The Kansas 

Supreme Court has instructed that the most fundamental rule of statutory construction is 

that the intent of the legislature governs if that intent can be ascertained. Neighbor, 301 

Kan. at 918. When attempting to ascertain legislative intent, an appellate court must first 

look to the language of the statute itself, giving common words their ordinary meaning. 
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Cady v. Schroll, 298 Kan. 731, 738, 317 P.3d 90 (2014). The court should refrain from 

reading something into a statute that is not readily found in its words. 298 Kan. at 738-39.

Our legislature, as recognized by the Missouri court, has clearly explained its 

intent in enacting the revised Kansas Code for Care of Children which includes K.S.A. 

2015 Supp. 38-2223. See K.S.A. 2015 Supp. 38-2201. The legislature intended for the 

code to be "liberally construed to carry out the policies of the state," among which are to 

"encourage the reporting of suspected child abuse and neglect." K.S.A. 2015 Supp. 

38-2201(b)(5). One of the ways in which the legislature has attempted to encourage 

reporting is by providing immunity from suit for those who make reports. See K.S.A. 

2015 Supp. 38-2223(f). The immunity provided by the statute is broad and applies to all 

who participate in "the making of a report" as well as to anyone "who participates in any 

activity or investigation relating to the report." K.S.A. 2015 Supp. 38-2223(f).

Parents' contention that K.S.A. 2015 Supp. 38-2223(f) does not cover the initial 

diagnosis or misdiagnosis of abuse contravenes the plain language of the statute and 

reads into it something that is not readily found on its face. Clearly, an initial diagnosis is 

covered by the statute as "any activity" related to the making or investigation of a report. 

K.S.A. 2015 Supp. 38-2223(f) does not qualify or limit the grant of immunity to 

situations in which reports of abuse are substantiated.

Additionally, Parents' interpretation contravenes the legislature's goal of

encouraging reports of suspected abuse in order to "provide for the protection of 

children." K.S.A. 2015 Supp. 38-2201(b)(5) and (7). Allowing a suit in the event that a 

doctor incorrectly diagnoses abuse would have a chilling effect on reporting—doctors 

would be hesitant to report suspected abuse, absent absolute certainty that abuse was 

taking place, for fear of liability. Episodes of suspected abuse would go unreported, and 

children would remain in potentially dangerous situations subject to additional harm.
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In sum, we find that K.S.A. 2015 Supp. 38-2223(f) provides immunity to doctors 

who negligently misdiagnose child abuse.

Parents did not sufficiently plead facts indicating malice.

Second, Parents contend that their petition contained sufficient allegations that the 

doctor acted maliciously when she diagnosed and reported that R.N.C. had been sexually 

abused to remove Perez-Marques from the protection of K.S.A. 2015 Supp. 38-2223(f). 

Perez-Marquez contends that the district court was correct to dismiss Parents' suit for 

failure to state a claim because they failed to plead malice as would have been necessary 

based on K.S.A. 2015 Supp. 38-2223(f). Parents respond that they allege sufficient facts 

from which malice can be inferred, which is all that was needed at the initial pleading 

stage of the litigation. 

Parents are correct that Kansas is a state that only requires notice pleading, 

meaning that plaintiffs need only include in their initial petition a "'short and plain 

statement of the claim showing that the pleader is entitled to relief.'" Montoy v. State, 275 

Kan. 145, 148, 62 P.3d 228 (2003); see also K.S.A. 2015 Supp. 60-208(a)(1). The 

petition is to be liberally construed by the district court which is "required to draw any 

reasonable inferences from [the facts pled] and determine whether the facts and 

inferences state a claim . . . on any possible theory the court can divine." Nungesser, 283 

Kan. at 559. Liberal construction of the pleading is meant to allow "a pleader to shift the 

theory of his case as the facts develop, as long as he has fairly informed his opponent of 

the transaction or the aggregate of the operative facts involved in the litigation." Montoy, 

275 Kan. at 149. Thus, the petition does not "govern the entire course of the case. Rather, 

the ultimate legal issues and theories on which the case will be decided are reduced to 

writing . . . [after] the close of discovery" when the parties have had an opportunity to 

fully develop their cases. Nungesser, 283 Kan. at 559.
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But here, the one exception to immunity that is clearly found in K.S.A. 2015 Supp. 

38-2223(f) is when a report of abuse is made maliciously. Black's Law Dictionary 1100

(10th ed. 2014) has defined malice in part as: "The intent, without justification or excuse, 

to commit a wrongful act." Our Supreme Court has added that to prove actual malice a 

plaintiff must show that the defendant acted with "'actual evil-mindedness or specific 

intent to injure.'" Turner v. Haliburton Co., 240 Kan. 1, 8, 722 P.2d 1106 (1986). 

Because malice requires a specific state of mind, conduct that is merely negligent or 

reckless will not be found to be malicious. See State v. McCown, 264 Kan. 655, 657, 957 

P.2d 401 (1998). Likewise, PIK Civ. 4th 103.05 states that "[m]alice is the intent to do 

harm without any reasonable justification or excuse."

As it relates to Perez-Marques, the question here is whether Parents allege 

sufficient facts from which the court could infer that the doctor acted with malice so that 

the immunity provided by K.S.A. 2015 Supp. 38-2223(f) would not apply to the doctor

thereby providing Parents with a viable claim against Perez-Marques. Parents have failed 

to meet this low, initial bar. Among other things, Parents alleged in their petition that:

 "There was no medical basis for the statements that [R.N.C.] had been 

sexually abused in any manner."

 "The graphic descriptions of the sexual abuse were . . . without any basis in 

fact."

 "The parents were told of the allegations in a manner that was not 

reasonable and caused unnecessary emotional distress and mental anguish."

 "The above contact intentionally . . . inflicted emotional distress on 

[Parents]."

Although Parents have sufficiently pled that the doctor suspected (or diagnosed) 

sexual abuse without any reasonable justification or excuse, even accepting these facts as 

true, there are no facts set forth in the petition from which we can infer that the doctor
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intended to do harm or acted with "actual evil-mindedness or specific intent to injure." 

Turner, 240 Kan. at 8.

It is easy to imagine how persons in the position of the Parents in this case could 

perceive even a well-meaning, good-faith report detailing the kind of abuse involved here 

as outrageous and malicious. And, there is no explanation for why a doctor would 

fabricate a horrific story about a child, report the story to the police, and share the story 

with the child's parents all for the purpose of inflicting emotional distress. But the district 

court cannot infer malice without some allegation of fact to support such a claim. Parents'

pleading certainly speaks to the effect of doctor's action, but not her intent. For example, 

Parents allege that the doctor's contact with them resulted in the intentional infliction of 

emotional distress. "To withstand a demurrer, the plaintiff must allege the ultimate facts 

constituting actual malice." Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 67, 

340 P.2d 396 (1959). 

"Notice pleading did not do away with the traditional causes of action or the need to at 

least present the bare bones of the cause of action in the petition in a concise and 

understandable manner. The claim is to be provided by the petitioner and not by the 

supposition of the court." McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 

627, Syl. ¶ 11, 35 P.3d 815 (2001).

In order to overcome Perez-Marques' immunity from suit under K.S.A. 2015

Supp. 38-2223(f) and maintain a cause of action, Parents must sufficiently allege that the 

doctor acted with actual malice—a specific intent to injure. There are no facts alleged 

that would elevate the doctor's conduct here beyond mere negligence or recklessness. 

Furthermore, neither the word malice nor any of its synonyms appear anywhere in the 

petition. See Kennedy v. Mid-Continent Telecasting, Inc., 193 Kan. 544, 552, 394 P.2d 

400 (1964) (mere use of word maliciously may not be sufficient, but as long as the 

allegations charge an express and willful intent to injure, the pleading will be sufficient). 
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Accordingly, we find that the district court did not err in dismissing Parents' claim on the 

basis that it was not legally cognizable. 

Affirmed.