This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata, and collateral estoppel. It may be

c ited, howeve r, for its pe rsua sive va lue consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

September 18, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT O F APPEALS

TEN TH C I RC U I T

FREDERIC K BERNDT,

Plaintiff - Appe llan t,

and

EM PLOYER S M U TUAL

INS UR A NC E COM P ANIES;

STANTON COUNTY ;

Plaintiffs - Interven ors,

v.

GARY KRAM ER, M .D.,

Defendant - Appellee.

No. 06-3096

(D. Ct. No. 03-CV-1283-JTM )

(D . Kan.)

ORDER AND JUDGM E NT

*

Before TA CH A , Chie f Circuit Judge , B AL DOCK, and TYM KOVIC H,

Circuit Judg es.

Plaintiff-Appellan t Frederick Berndt app ea ls the District Court’s

order granting Defendant-Appellee Gary Kramer partial summary judgment
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on M r. Be rndt’s c laim of negligenc e . We exe rc ise jurisdiction pursu ant to

28 U.S.C. § 1291 and AFFIRM .

I. BACKGROUND

On Jun e 9, 2000 , while working at the Stanton Cou nty, Kansas,

Landfill, M r. Berndt sustained a calcaneous fracture to his right heel. That

day, Dr. Kramer examined an d trea ted M r. Berndt. The following day, Dr.

Kramer ordered additional x-rays and CAT s cans, but he did not

immediately perform surgery on the fracture because he wanted to allow

time for the swelling to decrease and the wound to stabilize. On June 14,

Dr. K rame r o pe ra ted on M r. Be rn dt’s foot in ord e r to repa ir the fra c ture . 

M r. Berndt was released from the hospital on June 19.

M r. Be rndt saw Dr. Krame r aga in on Ju ly 6. From the time of his

surgery until his follow-up visit on July 6, clear fluid drained from the

wound in his foot. Even though he believed his foot was infected, he

thought the dra inage wa s a norm a l consequenc e of the surge ry. Som e tim e

a fte r July 6, howeve r, the fluid appe a red ye llow and s e emed to conta in pus. 

When Mr. Berndt saw Dr. Kramer again on July 18, the doctor told him that

his wound was infected.

A couple days later, on July 20, Dr. Kramer examined Mr. Berndt

again. When Dr. Kramer manipulated his foot, black material, as well as

pus, was released from the wound. Dr. Kramer s ent M r. Berndt to the
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hospital that same d ay to rec eive a sh ot for the inf ec tion. At this time, Mr.

Berndt was very concerned about his wound, which he continued to think

was infected. On July 28, M r. Berndt was aware that the wound was

draining constantly and that the infection remained. The fluid draining from

the wound never again appeared clear, but instead turned red and

pus-colored. In his deposition, M r. Berndt acknowledged that he was

worried about Dr. Kramer’s care during this time, but that Dr. Kramer

always reassured him and explained to M r. Berndt’s satisfaction that he

knew what he was doing.

On August 4, Dr. Krame r ope ra ted aga in on M r. Be rndt’s foot to

irrigate and aerate the wound. A culture done that day revealed the presence

of p seu domonas, the b ac teria c au sing the infe ction. According to M r.

Berndt, Dr. Kramer told him that this bacteria was just a “foot bug,” and he

should not worry about it. 

Becaus e Dr. Kramer would not say how bad the infection was, Stanton

County’s w orke rs’ compensa tion c a rrie r sent Mr. Be rndt to se e Dr. Gilbe rt,

another orthopedic surgeon, on September 1. In his deposition, M r. Berndt

testified that Dr. Gilbert told him he had a “very bad infection,” which he

would “take to the grave with” him. M r. Berndt explained that he

understood this to mean that, although treatment may “put it to sleep,” the

inf e c tion wa s “going to a lways b e the re ” and “ even a bad cold could wake it
- 4 -

up.” He also testified that Dr. Gilbert said that he might have just “left the

foot” and not pe rformed the su rge ry, but he indica ted tha t whe the r to

opera te is a “doctor’s dec ision.” In ad dition, M r. Berndt testified that Dr.

Gilbert did not criticize Dr. Kramer’s care, indicating instead that the

antibiotic s Dr. K rame r h ad pre s c ribed “ should do the trick.”

On Oc tobe r 1 7, Dr. K rame r r e f e rr ed M r. Be rn dt to Dr. Pe te rie , a

physician spec ializing in inf ec tious disease . During his examination of M r.

Berndt on October 24, Dr. Peterie told M r. Berndt that he had permanent

tinnitus (i.e., ringing in his ears) and possible kidney damage as a result of

an antibiotic, Tobramycin, administered by Dr. Kramer to treat the infection

from August 15 to Septembe r 12. Ac cording to M r. Be rndt, Dr. Pe terie

recommended that his foot be amputated because it was broken so badly that

it wa s not “worth a da rn ,” even if the inf e c tion could be tre a ted. 

M r. Berndt continued to see Dr. Kramer for treatment through

February 2001. That s ame month, he was examined by Dr. Shields, who

concluded that M r. Berndt had fluid within the bone surrounding the

calcaneous fracture consistent with an infection. She presented Mr. Berndt

with three treatment option s, including ampu tation . M r. Berndt cho se

amputation, rather than continuing to fight the infection, and on March 7,

2001, his leg wa s amputa ted right be low the kne e . 
- 5 -

On October 24, 2002, M r. Berndt filed a petition requesting the

convening of a medica l ma lpra c tice sc re ening pane l pursu ant to Kan. Stat.

Ann. § 65-4901. The following July, the parties agreed to dismiss the

screening panel. And on August 5, 2003, M r. Berndt filed suit in federal

district court, asserting diversity jurisdiction and seeking damages resulting

from Dr. Kramer’s alleg ed neg ligen ce . The District Court granted D r.

Krame r’s motion for pa rtial summa ry judgment, finding M r. Be rndt’s c laim

for damages resulting from his infection barred by a two-year statute of

limita tions unde r K ansa s law. See Kan. Stat. Ann. § 60-513(a)(7). The

court su bsequently denied M r. Be rndt’s motion for re conside ra tion, but it

granted Mr. Berndt leave to file an interlocutory appeal pursuant to 28

U.S.C. § 1292(b), which this Court denied. After the parties supplemented

the re co rd w ith ad ditional fa cts, the D istrict Court granted D r. Kramer’s

motion for partial summary judgment on the issue of whether any

subsequent, intervening negligent actions occurred on or after October 24,

2000, which led to the amputa tion of M r. Be rn dt’s lowe r right extremity. 

After the court entered summary judgment on this issue, the only remaining

issue was M r. Berndt’s claim for damages based on the tinnitus injury. The

parties reached a settlement on this issue in February 2006, leaving no

further issues for trial. M r. Berndt now appeals the District Court’s grant of

summary judgment in Dr. Kramer’s favor with respect to his claim for
In October 2006, the District Court denied Mr. Berndt’s Rule 59(e) 1

motion to alter or amend the court’s entry of summary judgment on the issue

of inte rv ening negligent a c ts le ading to the amputa tion. See F ed . R. Civ . P.

59(e). M r. Berndt appeals all four district court orders: the first order

granting Dr. Kramer partial summary judgmen t, the o rde r denying M r.

Berndt’s subseq uen t motion to reconside r this order, the o rde r granting Dr.

Kramer summary judgment on the issue of intervening negligent acts, and

the subsequent order denying M r. Berndt’s Rule 59 motion. Although he

ap pea ls all four orders, he only argues o ne issue o n ap pea l. In h is brief, Mr.

Berndt does not argue that subs equent, intervening acts occurring on or after

October 24, 2000, led to the amputation. In addition, he acknowledges that

the injury giving rise to damages is the infection that led to the amputation,

not the amputation itself. The o nly issue on ap pea l is the refore whethe r Mr.

Berndt’s claim for damages resulting from the infection is barred by the

Kansas statute of limitation s.

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damage s re su lting from the ba c terial inf e c tion. The so le issu e on appe a l is

whether M r. Berndt’s claim is barred b y the Kansas statute of limitation s. 1

II. DISC USSIO N

We review a district court’s grant of summary judgment de novo.

Bradley v. Val-M ejias, 379 F.3d 892, 896 (10th Cir. 2004). A moving pa rty

is entitled to summary judgment if the record “show[s] that there is no

genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). In reviewing

the record, “we view the evidence and draw reasonable inferences therefrom

in the light most favorable to the nonmoving party.” Bradley , 379 F.3d at

897 (quotation omitted). We also review a district court’s interpretation of

sta te law de novo. Id.

A. Kansas Statute of Limitations
- 7 -

Generally, under Kansas law, a plaintiff must file a medical

ma lpra c tic e a c tion within two ye a rs of the a c t a llegedly causing the injury. 

Kan. Stat. Ann. § 60-513(a)(7). But if the plaintiff’s injury is not

“reasonably ascertainable” at the time of the alleged negligence, the

limitations period does not begin to run until “the fact of injury becomes

reasonably ascertainable”:

A c ause of a c tion a rising out of the rende ring of or the f a ilure to

render professional s ervices by a health care provider shall be

deemed to have accrued at the time of the occurrence of the act

giving rise to the caus e of action, unless the fact of injury is not

re a so nably a sc e rta inable u ntil some time a fter the initia l ac t,

then the period of limitation shall not commence until the fact of

the injury be come s re a sonably a sc e rta inable to the injured pa rty,

but in no event shall such an action be commenced more than

four years beyond the time of the act giving rise to the caus e of

action.

Id . § 6 0-513 (c). The Kansas Su preme Cou rt has stated that the p hrase

“‘reasonably ascertainable’ does not mean ‘actual knowledge.’” Davidson

v. Denning, 914 P.2d 936, 948 (Kan. 1996). Rather, whether the injury was

rea sonab ly asc ertainable requires the applica tion of “ an objective standard

based upon an examination of the surrounding circumstances.” P.W.P. v.

L.S. & John son Cou nty M ental Health Ctr., 969 P.2d 896, 902 (K an. 1998). 

Typically, under Kansas law, “objective knowledge of the injury, not

the extent of the injury, trig ge rs the sta tute ” in medic a l ma lpra c tic e c a se s. 

Id. But when a medic a l proc edure or tre a tment c ause s the pla intiff’s injury,
- 8 -

the Kansas courts have asked when the plaintiff should have known that the

injury wa s substantia l or p e rmanent. See Jone s v . Neurosc ienc e Assoc s.,

Inc ., 827 P.2d 51, 59 (Kan. 1992) (holding tha t a f a c t issu e rema ined a s to

when the plaintiff knew he r condition c aused by su rge ry wa s “pe rmanent,

i.e., substantial” ); Hecht v. First Nat’l Bank & Trust Co., 490 P.2d 649, 655

(Kan. 1971) (holding that plaintiff’s “knowledge of her condition from her

own o bservation , and that acquired from her physicians” did not show as a

ma tter o f law tha t he r post-tre a tment injury wa s substantial and re a so nably

a sc e rta inable ). As the se c a se s dem onstra te , when an injury re sults from a

medical procedure that requires a recovery period, the fact of injury is not

re a so nably a sc e rta inable u ntil the plaintiff sh ould know tha t the condition is

not pa rt of a norma l re cove ry. Pe rmanency indica tes tha t the condition will

pe rsist beyond the re cove ry pe riod a s a sepa ra te injury. See Cleveland v.

Wong, 701 P.2d 1301, 1306 (Kan. 1985) (noting that, without any indication

tha t the condition wa s pe rm anent, “ [t]he sym ptom s of the injury we re know n

to the plain tiff, but the f a c t of injury wa s n ot re a so nably or immediate ly

ascertainable”). In short, when the injury is a result of a medical procedure,

the injury is re a so nably a sc e rta inable e ithe r when the plaintiff ha s re a so n to

know the injury is permanent or when the plaintiff has reason to suspect

negligenc e . See id. (holding tha t the plaintiff’s injury wa s n ot re a so nably
- 9 -

ascertainable when he had no reason to suspect that his conditions following

surge ry were perman en t or the re sult of n eg ligen ce ).

Furthe rmore , when the plaintiff ha s re a so n to know the injury is

permanent, the caus e of action accrues even if the plaintiff does not know

tha t a negligent a c t c aused the injury. Se e Ke lley v . Barn e tt, 932 P.2d 471,

477 (Kan. Ct. App. 1997) (“If plaintiffs were allowed to wait to commence

suit until directly confronted with evidence of negligence, the statute of

limitations would a lmost neve r begin to run.”). In applying the same sta tute

of limitations to a wron gfu l dea th ac tion, the K an sas Supreme Court

exp lained why knowledg e of n egligen ce is not requ ired: “The p hrase

‘re a so nably a sc e rta inable’ [in Kan. Stat. Ann. § 60-513(c )] me ans tha t a

plaintiff has the obligation to reasonably investigate available sources that

conta in the f a c ts of the de a th and its wro ngful c ausa tion.” Davidson, 914

P.2d at 948. Unless “information from which the fact of death or negligence

can be determined was either concealed, altered, falsified, inaccurate, or

misrepresented,” the plaintiff “is charged with constructive knowledge of

information that is available through a reasonable investigation.” Id. a t 947. 

In other words, once the injury is reasonably ascertainable, the plaintiff has

a duty to investigate whether negligence caused the injury. The Kansas

Supr eme Court’s interpretation of the statute of limitations in Davidson

applies not only to wrongful death actions, but to medical malpractice
B ec ause M r. Berndt reque sted the s c re ening pane l more than tw o 2

ye a rs a fter he could re a so nably a sc e rta in the injury, the Distric t Court did

not decide whether the limitations period was tolled for part or all of the

period between this request, on October 24, 2002, and August 5, 2003, when

he filed his f ede ra l suit. Using e ithe r da te , the a c tion is untime ly.

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a c tions a s we ll. P.W .P ., 969 P.2d at 901. The q uestion in the instant case

is, there fo re, when M r. Berndt knew or sho uld hav e k nown that his injury

(i.e., the inf e c tion) wa s p e rmanent, the reby trigge ring his duty to inve stiga te

whe the r negligenc e c aused the injury.

B. When M r. Be rndt’s In jury Be c ame Re a so nably Asc e rta inable

Based on our review of the re co rd, we agree with the D istrict Court’s

determination that M r. Berndt’s injury was reasonably ascertainable on

September 1, 2000, when Dr. Gilbert examined him and informed him the

infection was s erious and permanent. In his deposition, M r. Berndt

a cknowled ged tha t Dr. Gilbe rt told him the inf e c tion wa s p e rmanent at this

point in time; even if treatment could “put it to sleep,” Dr. Gilbert explained

that it would still be present and could become symptomatic again in the

future. Becaus e he did not file suit within two years of September 1, 2000,

his claim for damages based on this injury is barred by the statute of

limitation s. 2

M r. Berndt contends, however, that the limitations period did not

begin to run until, at the e a rliest, his examina tion by Dr. Pe terie, who told

him that amputation was a possibility an d suggested that Dr. Kramer’s ca re
Spec ifica lly, M r. Berndt argu es that kn owledg e o f a co ndition’s 3

permanence is not the “decisive factor” under Kansas law, particularly when

the condition is a foreseeable consequence of a medical procedure. But the

logical implication of this argument is that a plaintiff must have objective

knowledge of negligence before the limitations period begins to run. That

is, if the permanence of Mr. Berndt’s infection did not make the fact of

injury reasonably ascertainable, the implication is that his injury was

reasonably ascertainable only when he had reason to suspect a negligent

cause. But as we explain above, in Kansas, a caus e of action accrues when

the injury is reasonably ascertainable, even if the plaintiff does not suspect

a negligent cause. When the injury is reasonably ascertainable, the plaintiff

“is charged with constructive knowledge of information” regarding

potentia l negligent c ause s. See Davidson, 914 P.2d a t 947. 

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may have be en damaging. Mr. Be rndt argue s tha t Kansa s law require s tha t a

plaintiff have some indication that negligence caused the injury before the

limitations period begins to run. Hence, becaus e Dr. Gilbert did not 3

question Dr. Kramer’s care, he claims that the negligent cause was not

reasonably ascertainable on September 1, 2000. But as our previous

discussion of Kansas law demonstrates, knowledge of a negligent act is not

required for the limitations p e riod to run. When the injury is re a so nably

ascertainab le, a plaintiff has a duty to investigate possible negligen ce un less

the information necessary to determine n egligen ce is conce aled o r otherwise

unre liable . P .W .P ., 969 P.2d a t 901. Mr. Be rndt doe s n ot argue tha t he did

not have a c c e ss to ne c e ssa ry informa tion conc e rn ing potentia l negligenc e . 

He therefore had a duty to investigate once he was aware that his infection

was p erman en t (i.e., once his injury was re aso nab ly asc ertainable).
- 12 -

N eve rthe le ss, to support his a rgum ent tha t Kansa s law require s som e

knowledge of negligence before a cause of action accrues, M r. Berndt cites

our decision in Bradley v. Val-M ejias, 379 F.3d 892 (10th Cir. 2004). He

notes that, in interpreting the same Kansas statute in Bradley , we held that

the limitations p e riod sta rted to run when the plaintiff wa s awa re of his

doc tor’s negligent diagnosis. Id. a t 898. But Mr. Be rndt’s re lianc e on this

case is misplaced becaus e, as we clearly stated in Bradley , the misdiag nosis

was the injury. Se e id. at 899 (describing the plaintiff’s injury as the fact

tha t the doc tor “wa s n ot prope rly tre a ting his condition” ); see also Brock v.

Gatz, 2007 WL 1589412, at *5 (10th Cir. 2007) (unpublished) (stating tha t,

in a misdiagnosis case, the legal injury is the improper treatment and

delayed diagnosis). Unlike the present case, a medical procedure did not

cause the plaintiff’s symptoms in Bradley ; instead, the defendant physician

failed to treat an existing condition. In cases such as this, the injury—the

absence of adequate treatment—is reasonably ascertainable when the

pla intiff ha s re a son to know of the misdiagnosis. See Bradley , 379 F.3d at

899 (noting that the plaintiff was aware he had been injured, even though he

wa s u nawa re of the “sc ien tific na ture ” of his injurie s, when he had re a so n to

question his doctor’s diagnosis (quotation omitted)). Indeed, the plaintiff

c annot dis cove r the injury without some indic a tion of possible negligenc e . 

Conversely, in the case before us, the injury (i.e., the infection resulting
- 13 -

from the surgery) was reasonably ascertainable without any knowledge of

possible neg ligen ce . In K an sas, ob jective k nowledg e o f the injury triggers

the duty to inve stiga te a potentia lly negligent c ause . Davidson, 914 P.2d at

947–48; s e e also P.W .P ., 969 P.2d at 902 (citing F riends Univ . v . W.R .

Grace & Co., 608 P.2d 936, 940 (K an. 1980), in which the Kansa s Suprem e

Court held “that the statute began to run when a new roof was found to be

leaking, not when the expe rt late r discove red the c ause ” ); Kelley , 932 P.2d

at 476–77 (rejecting the argument that “the caus al connection between the

injury and the negligenc e of the de f endants must have be en identifiable

before the statute of limitations began to run”). M r. Berndt therefore had an

obligation to investigate possible negligence when the fact of his injury was

reasonably ascertainable on September 1, 2000.

M r. Be rndt also a rgue s tha t his injury wa s n ot re a so nably

ascertainable on September 1, 2000, becaus e Dr. Kramer continued to treat

him until Februa ry 2001. Although he a cknowled ge s tha t Kansa s courts

have re je c ted the continuous tre a tment doc trine , se e P.W .P ., 969 P.2d at

903–04, he contends that evidence of an ongoing relationship between the

patient and the defendant physician is relevant in determining when an

injury is re a sonably as c e rta inable , see Jones, 827 P.2d at 59. In support of

this con tention , he cites Jones v. Neuros cience Associates, Inc., in which the

Kansa s Supreme Court he ld tha t an ongoing pa tient-physic ian re lationsh ip
- 14 -

“is relevant upon the issue of when it was reasonably apparent to [the

plaintiff] tha t he r injury wa s p e rmanent, i.e., substantial.” Id. In Jones,

however, none of the plaintiff’s physicians told her that her condition,

which wa s a re sult of surg e ry, wa s pe rmanent until a fte r she filed suit. Id. at

54. He r re lationsh ip with the de f endant physic ian s wa s the re fore re lev ant to

de te rmining when she should have known he r injury wa s pe rmanent. See id.

at 59 (noting the evidence regarding the injury’s permanence was

“inconclusive” and therefore created a question of fact for the jury). Here,

howeve r, the evidenc e a s to when the injury’s p e rmanenc e wa s re a so nably

asc ertainable is not in dispute; M r. Berndt acknowledges that Dr. Gilbert

told him the infection was permanent on September 1, 2000. His ongoing

re lationsh ip with Dr. Krame r is the re fore irre lev ant with re sp e c t to this

issue.

In addition to Jones, Mr. Be rndt argue s tha t his c a se is ana logous to

Cleveland v. Wong, 701 P.2d 1301 (Kan. 1985), and Hecht v. First National

Bank & Trust Co., 490 P.2d 649 (Kan. 1971). In both these cases, the

Kansas Supreme Court noted that the evidence presented a question of fact

a s to when the injury wa s re a sonably as c e rta inable . Cleveland, 701 P.2d at

1306; Hecht, 490 P.2d a t 655–56. But in both cases, the plaintiffs had no

rea son to suspec t that conditions resulting from med ical trea tmen t were

pe rmanent; none of the plaintiffs’ p hysic ian s h ad indica ted tha t the ir
- 15 -

conditio ns we re pe rmanent or a re sult of negligenc e . Cleveland, 701 P.2d at

1306; Hecht, 490 P.2d at 65 5. Converse ly, M r. Berndt testified that Dr.

Gilbe rt told him tha t he would take his inf e c tion “ to the grave ” with him. 

Ac cording to M r. Be rndt, Dr. Gilbe rt indica ted tha t trea tment might “p ut it

to sleep,” but the infection would “always be there.” Becaus e Mr. Berndt

clea rly had rea son to know that his infe ction was p erman en t after see ing Dr.

Gilbert, no gen uine issue o f material fa ct remains as to when M r. Berndt’s

injury wa s re a so nably a sc e rta inable. Consequently, we find tha t the sta tute

of limitations b egan to run on Septembe r 1, 2000, an d the instant ac tion is

the re fore untime ly.

III. CON CLU SIO N

Becaus e Mr. Berndt’s cause of action is barred by the statute of

limitations, we AFFIRM the Distric t Court’s g rant of summa ry judgment in

favor of Dr. Kramer on M r. Berndt’s claim for damages resulting from the

infection.

ENTERED FOR THE COU RT ,

Deanell Reece Tacha

Chief Circuit Judge