Attorney General Opinion No. ( 1994 )

Robert W. Fairchild Douglas County Counselor 808 Massachusetts St. P.O. Box B Lawrence, Kansas 66044-8996

Dear Mr. Fairchild:

As Douglas county counselor, you have requested our opinion regarding whether the employees of the Lawrence-Douglas county health department are covered by the tort claims fund created pursuant to the Kansas tort claims act, K.S.A. 75-6101 et. seq.

In 1993, the legislature amended the tort claims act to provide the following:

"(a) The Kansas tort claims act shall not be applicable to claims arising from the rendering of or failure to render professional services by a health care provider other than:

"(1) A charitable health care provider;

"(2) a hospital owned by a municipality and the employees thereof;

"(3) a local health department and the employees thereof;

"(4) an indigent health care clinic and the employees thereof; or

"(5) a district coroner or deputy district coroner appointed pursuant to K.S.A. 22a-226 and amendments thereto.

. . . .

"(c) As used in this section:

. . . .

"(5) 'Local health department' shall have the meaning ascribed to such term under K.S.A. 65-241 and amendments thereto." K.S.A. 1993 Supp. 75-6115. (Emphasis added).

K.S.A. 65-241 defines local health department as:

"any county, city-county or multicounty department of health."

It has been established that the tort claims fund shall be used for the purpose of paying:

"a compromise settlement or final judgment for claims against the state or an employee of the state in any actions or proceedings arising from rendering or failure to render professional services by . . . (ii) a local health department as defined by K.S.A. 65-241 and amendments thereto or an employee thereof." K.S.A. 1993 Supp. 75-6117(b). (Emphasis added).

It is not clear from this statute whether the legislature intended local health departments to be employees of the state covered by the tort claims fund. The statute can be interpreted to mean all local health departments' employees come under the act. However, the statute can also be interpreted to mean the fund only covers claims of local health department employees who are actually under state control.

Since the statute itself is unclear, it is appropriate to check the legislative history of the statute. State v. Underwood,10 Kan. App. 2d 116 (1985). Moreover, legislative intent can be derived from the historical background and the purpose intended to be accomplished. West v. Collins, 251 Kan. 657 (1992). Additionally, it is presumed that the legislature intends to make a change when it revises a law. Lamb v. Kansas Parole Bd., 15 Kan. App. 2d 606 (1991).

When 1993 senate bill no. 14 was first presented to the house committee on public health and welfare, the purpose for the tort claims fund was stated to be ". . . that [it] would pay the claims against the state or employees of the state. . . ." Minutes, Committee on Public Health and Welfare, March 8, 1993. The joint committee on health care decisions for the 1990s further recommended amending the act so that

". . . health care providers employed in local health departments . . . be considered employees of the state. . . ." Minutes, Committee on Public Health and Welfare, March 8, 1993. (Emphasis added). The legislative intent is thus made apparent in the amendments to K.S.A. 75-6117(b) in L. 1993, ch. 29, sec. 4.

However, access to the fund is limited for claims which are covered by insurance. The fund will cover claims arising from acts which occur prior to July 1, 1995, even if insurance exists therefor. K.S.A. 1993 Supp. 75-6117 (b)(2). If the act from which the claim arose occurred after July 1, 1995, the fund will not pay for claims which are covered by insurance. Id.

Based on the specific language of these statutes and their legislative history, we opine that employees of the Lawrence-Douglas county health department are covered by the tort claims fund, at least for claims which arise from acts occurring prior to July 1, 1995.

Very truly yours,

ROBERT T. STEPHAN Attorney General of Kansas

Lawrence J. Logback Assistant Attorney General

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