Keeler v. Peh ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,311
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JERRY KEELER,
Appellant,
v.
KELLIE PEH,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; FAITH A.J. MAUGHAN, judge. Opinion filed January 29,
2021. Affirmed.
Jerry Keeler, appellant pro se.
Dawn M. Parsons, Gregory P. Forney, and Rachael D. Longhofer, of Shaffer Lombardo Shurin,
of Kansas City, Missouri, for appellee.
Before ARNOLD-BURGER, C.J., POWELL and GARDNER, JJ.
PER CURIAM: Jerry Keeler, acting pro se, appeals the district court's order that
dismissed his petition for failing to state a claim on which relief could be granted. Keeler
sued Kellie Peh, a nurse who had helped provide dialysis care to Keeler. Keeler's petition
alleged that Peh's unwarranted social conduct forced his absence from dialysis care,
which eventually led to his hospitalization. But the district court granted Peh's motion to
dismiss under K.S.A. 2019 Supp. 60-212(b)(6). On appeal, Keeler complains that the
district court acted unfairly and should have found in his favor. But Keeler has failed to
preserve his issues or to adequately brief them, so we affirm the district court.
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Factual and Procedural History
Keeler' s petition stated seven claims against Peh:
I. "Invasion of Privacy: Public Disclosure of Private Facts,"
II. "Breach of Confidentiality,"
III. "Failure to Perform Nursing Duties,"
IV. "Failure to Properly Address, Document, and Follow-up on a Patient Concern,"
V. "Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional
Distress" from November and December 2018 for failing to perform nursing
duties,
VI. "Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional
Distress" from November and December 2018 for yelling at Keeler, and
VII. "Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional
Distress" for failing to perform nursing duties.
Keeler's factual allegations
As a stage five kidney failure patient, Keeler received dialysis treatment three days
a week at DaVita Dialysis. Peh was one of the nurses that provided Keeler care. Keeler
initially found Peh to be excellent, friendly, and considerate.
But, in November 2018, Peh "mysteriously started to change," which concerned
Keeler and his wife. They asked Peh if they had upset her, but Peh denied anything was
wrong. Other employees would chat with Keeler and care for him, but Peh began to "cut
back" on her contact with Keeler and eventually stopped working with him altogether.
Peh's withdrawal worried Keeler so much that his blood pressure rose to 200/100. Keeler
alleges that Peh knew he "was vulnerable to a stroke or heartattack [sic]" because of his
high blood pressure. Eventually Keeler started to have small chest pains and headaches.
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In late November, Keeler asked Peh to discuss his blood pressure and to tell him
why she was no longer helping him. But Peh delayed the conversation for a few weeks
and would not talk to Keeler and his wife in private. When they did talk, she only
pretended to listen and did not document their conversation. At some point, Peh told
Keeler, "'I'M NOT YOUR NURSE' 'YOUR [sic] NOT NOT MY PATIENT' 'YOUR [sic]
NOT MY FRIEND' 'I DON'T HAVE TO TALK TO YOU.'"
Keeler's issues with Peh had not resolved by late December 2018. Peh had stopped
speaking to Keeler and his wife, did not wish them a merry Christmas, and ignored them.
In contrast, everyone else at the clinic smiled and spoke to Keeler and his wife like they
were family. Because Peh's conduct discouraged him from attending, Keeler stopped
attending dialysis. As a result, Keeler built up excess fluid, suffered nosebleeds, struggled
walking, and became temporarily blind. Eventually he had to be hospitalized and nearly
died.
Keeler later wrote a 60-page letter of complaint which his wife personally
delivered to Peh. It detailed Peh's actions and how she had "emotionally abused Keeler
and made him feel uncomfortable in coming to dialysis." Eventually, Peh's supervisor
made her apologize, but Keeler found her apology insincere.
Keeler filed suit, but the district court dismissed it under K.S.A. 2019 Supp. 60-
212(b)(6).
Keeler then sued Peh. He requested a jury trial, compensatory and punitive
damages, and injunctive relief:
• to order Peh to stop her hostility towards Keeler,
• to temporarily ban Peh from nursing duties and any healthcare
employment, and
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• to order Peh to accompany Keeler to the District Attorney's office to see if
she was liable for any criminal charges.
In response, Peh moved to dismiss the petition under K.S.A. 2019 Supp. 60-
212(b)(6) for failing to state a claim upon which relief may be granted. Keeler responded,
elaborating on his claims.
The district court held a hearing on the motion, but the record does not contain the
hearing transcript. The district court granted Peh's motion to dismiss for multiple reasons.
The district court dismissed claims III and IV—failure to perform nursing duties and
failure to address patient concerns—because Keeler failed to articulate a valid cause of
action for negligence. As to claim III, medical malpractice, the district court held:
"Here, Claim III fails to meet the notice pleading standard and does not present a
cause of action in a concise and understandable manner. Although Plaintiff concludes
Defendant Pe[y] owed him a duty, it is entirely unclear what duty she breached. Plaintiff
provides no description of the standard of care of a nurse or how Defendant Pe[y]
breached that standard of care. Plaintiff alleges that 'Kellie has stopped doing any form of
nursing on plaintiff Keeler.' (Petition, page 7 at ¶ 34.) Nonetheless, Plaintiff also alleges
that Defendant Pe[y] 'would leave, the Nursing duties on Keeler. For another R.N. to
worry about.' Id.
"There is no valid cause of action sounding in negligence that entitled Plaintiff to
exclusively have his care at the dialysis clinic performed by Defendant Pe[y] when in fact
other nurses were on staff and available to attend to his medical needs. In fact, by
Plaintiff's own admission, he was attended to by other nurses on staff. Based on the facts
articulated in the Petition, it is evident that care in the dialysis clinic is a team effort and
the fact another nurse had to care for Plaintiff as opposed to Defendant Pe[y] fails to state
a cause of action for medical malpractice. Relatedly, Plaintiff fails to articulate any
cognizable injury that can be causally connected to the fact Defendant Pe[y] did not treat
him as opposed to one of the other nurses on staff. Plaintiff does not allege that he was
neglected by the rest of the nursing staff or was not provided the dialysis services he was
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entitled to as a patient of the clinic. Accordingly, this cause of action fails to state a valid
claim for medical malpractice and is dismissed."
As to claim IV, the district court held:
"Likewise, Claim IV, titled as a 'negligence' claim, also fails to state a valid claim
for relief in a concise and understandable manner. Plaintiff alleges that Defendant Pe[y]
failed to properly address, document, and follow-up on a patient concern. (Petition, page
8 at ¶ 37.) Plaintiff alleges that he and his wife asked to speak with Defendant Pe[y] in
private about 'private health issues and patient account business.' (Petition, page 8 at
¶ 39.) Plaintiff alleges that talk was not taken seriously, not documented, and was not
held in private. (Petition, page 8.) No law exists that supports a valid claim for negligence
against a nursing professional for failure to document a patient complaint. Further, even
if such a duty exists under the law, Plaintiff's Petition makes clear that he was able to 'file
a 60-page complaint to upper management cause Kellie, was not at satisfactory to Keeler
and his wife at addressing a concern.' (Petition, page 8 at ¶ 42.) In other words, Plaintiff
was fully able to record his complaint and voice it to Defendant Pe[y]'s employer. Any
breach by Defendant Pe[y] caused no damages, as Plaintiff was not precluded from
voicing his concerns to the Davita East Wichita Dialysis Center. Simply because it was
more of a hassle for him to make that complaint to 'upper management' does not state a
valid cause of action for negligence. Thus, Count IV is dismissed for failure to state a
claim upon which relief may be granted."
The district court also held that claim III, as a medical malpractice claim, barred
Keeler's other claims. Following Kernke v. Menninger Clinic, Inc., 172 F. Supp. 2d 1347,
1354 (D. Kan. 2001), and Noel v. Proud, 189 Kan. 6, 9, 367 P.2d 61 (1961), the district
court dismissed claims I, II, IV, V, VI, and VII because they merely reclassified the
medical malpractice claim in claim III.
As an additional reason, the district court dismissed claims V, VI, and VIII, the
intentional infliction of emotional distress and negligent infliction of emotional distress
claims. It held that Keeler's alleged injury did not meet the high standard to maintain a
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negligent infliction of emotional distress action, and Peh's actions were not extreme or
outrageous, as is necessary to maintain an intentional infliction of emotional distress
action:
"In this case, it is evident that Plaintiff is attempting to recover for mere hurt
feelings as opposed to intentional conduct that rises to the level of extreme or outrageous
conduct. Telling a patient that she does not have to talk to him or be his friend may be
seen as unkind, but it is not so extreme or outrageous as to permit recovery under the law
of IIED. Likewise, [Defendant's] 'failure to perform nursing duties,' is not intentional
conduct that can be deemed so extreme or outrageous as warranting an IIED claim when
considering Plaintiff received his care from other nurses on the staff. The conduct alleged
by Plaintiff falls far short of this exacting standard required by Kansas law."
The district court also found that Keeler failed to allege extreme emotional distress.
Finally, the district court also held that claims I and II (breach of privacy/
confidentiality) failed to state valid claims under Kansas Law. These claims failed
because Keeler voluntarily chose to share private information in a public setting and no
caselaw supports a claim for inducing a patient to voluntarily share private information in
a clinical setting or for breaching confidentiality.
Keeler timely appeals.
Analysis
Civil actions in a district court have a certain order which we call civil procedure.
And appellate court have rules of procedure as well—appellate procedure. Keeler's
claims reveal a misunderstanding of civil procedure and appellate procedure, which are
designed to provide fundamental fairness to the parties and a means of achieving reliable
results in the courts. While we liberally construe pro se pleadings, giving effect to the
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pleading's content rather than the labels and forms used to articulate the defendant's
arguments, State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010), we also require pro se
litigants to follow the same rules and procedures as attorneys and we cannot give them
either an advantage or disadvantage solely because they are proceeding pro se.
Mangiaracina v. Guiterrez, 11 Kan. App. 2d 594, 595-96, 730 P.2d 1109 (1986).
Keeler failed to preserve many issues for appeal.
First, we address appellate procedure. Generally, the role of the Kansas Court of
Appeals is to determine whether any error occurred in the district court or in certain
administrative decisions. Our analysis typically follows a three-step process:
"(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2)
considering the merits of the claim to determine whether error occurred below; and (3)
assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless." State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).
We address the first step—determining whether we can or should review the
issues Keeler raises on appeal. Under Kansas Supreme Court Rule 6.02(a)(5) (2020 Kan.
S. Ct. R. 34), an appellant must point to the specific location in the record where he
raised the same issue to the district court that he raises on appeal and where the court
ruled on that issue. If an issue was not raised in the trial court, it cannot be raised on
appeal. Ruhland v. Elliot, 302 Kan. 405, 417, 353 P.3d 1124 (2015). In other words, an
appellant generally cannot raise an issue for the first time on appeal. The rationale behind
this issue preservation rule is simple: a trial court cannot wrongly decide an issue never
before it. See State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Failure to
preserve an issue may be the end of the road.
Yet we recognize several exceptions to this general preservation rule:
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"'(1) the newly asserted theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3)
the judgment of the trial court may be upheld on appeal despite its reliance on the wrong
ground or having assigned a wrong reason for its decision.'" In re Estate of Broderick,
286 Kan. 1071, 1082, 191 P.3d 284 (2008).
But even when an exception permits us to review an unpreserved issue, we may choose
not to do so. State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017).
The party asserting an issue for the first time on appeal must invoke an exception
and explain why the issue is properly before the court. State v. Godfrey, 301 Kan. 1041,
1043, 350 P.3d 1068 (2015); Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 35) ("If
the issue was not raised below, there must be an explanation why the issue is properly
before the court."). Our Supreme Court "has continued to reiterate that Rule 6.02(a)(5)
means what it says and is ignored at a litigant's own peril." In re Adoption of Baby Girl
G., 311 Kan. 798, 803, 466 P.3d 1207 (2020). This peril is the dismissal of the appeal.
Keeler raises many of his issues for the first time on appeal—those issues not
dealing specifically with what the district court decided in its order of dismissal. Keeler
fails to make a pinpoint reference to the location in the record where he raised the issue in
the district court and where the district court ruled on it. See Rule 6.02(a)(5). And the
burden falls on Keeler to designate a record sufficient to present his points and establish
his claims. See Friedman v. Kansas State Board of Healing Arts, 296 Kan. 636, 644, 294
P.3d 287 (2013).
The record does not show that Keeler raised certain issues in the district court.
Because Keeler does not explain why the following issues are properly before this court
or argue for an applicable exception, these issues are not properly preserved:
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• The district court should have allowed discovery;
• the district court should have allowed Keeler to file a motion for summary
judgment;
• the district court should not have held a motion to dismiss hearing because the
hearing was not a part of the scheduling order;
• the district court did not allow Keeler to cross-examine Peh at the motion to
dismiss hearing;
• the district court should have denied Peh's motion to dismiss because Peh did not
personally attend the hearing;
• the district court failed to swear Peh in at the motion to dismiss hearing; and
• the district court did not advise Keeler he had a right to counsel under K.S.A. 2019
Supp. 60-31a05(a).
Keeler could have and should have raised these issues first in the district court,
either at the hearing on the motion to dismiss, or through a later motion to alter or amend
the judgment. See K.S.A. 2019 Supp. 60-259(f). This motion allows a district court an
opportunity to correct prior errors. See Antrim, Piper, Wenger, Inc. v. Lowe, 37 Kan.
App. 2d 932, 939, 159 P.3d 215 (2007). Yet Keeler did not make any such motion in the
district court or otherwise give the district court a chance to rule on most these procedural
issues, so we decline to reach them.
We note, however, that a motion to dismiss under K.S.A. 2019 Supp. 60-212(b)(6)
asserts that even if all the facts the plaintiff alleges in the petition are true, no violation of
law has been stated. And because it is an early motion in lieu of an answer, no conclusion
of discovery, filing of summary judgment motions, scheduling orders, cross-examination,
personal attendance, or swearing-in are required or are appropriate at that stage of
litigation. And Keeler had no right to counsel under K.S.A. 2019 Supp. 60-31a05(a),
which recognizes "the importance of advising parties of their right to assistance of
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counsel in the context of proceedings for protection from stalking"—Keeler's case is
civil, not criminal, and is not a proceeding for protection from stalking. See Walker v.
Brizendine, No. 114,776, 2016 WL 5012505, at *3 (Kan. App. 2016) (unpublished
opinion).
Keeler also raises an issue of judicial bias and unfair action, contending the district
court did not review his brief. He alleges that during the hearing the judge took a recess
to look over the case, but Keeler saw the judge in the hall, so he knows the judge did not
have time to sufficiently consider his case.
Yet we decline to reach this issue as well. First, Keeler's observation of a judge is
a factual finding that we cannot make on appeal. See State v. Estrada-Vital, 302 Kan.
549, 557, 356 P.3d 1058 (2015) ("[A]ppellate courts do not make factual findings in the
first instance; we only review district court findings."). Second, Keeler's attached
declaration that all his statements in the brief "are real and true events that occurred at the
motion to dismiss hearing" is not a factual finding. See Haddock v. State, 282 Kan. 475,
524, 146 P.3d 187 (2006) ("[A]n appendix to an appellate brief is not a substitute for the
record on appeal, and material so attached will not be considered by this court."). And
third, although we have sometimes reviewed allegations of judicial misconduct even
without an objection in the district court when the defendant has claimed a violation of
his constitutional rights, see State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010),
Keeler does not claim a violation of a constitutional right. Thus Keeler fails to preserve
this issue for appeal.
Keeler fails to properly brief any substantive issue.
Keeler's failure to raise the issues stated above does not prevent us from
considering Keeler's argument that the district court erred in granting Peh's motion to
dismiss. That issue is properly raised on appeal.
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Still, Keeler has failed to adequately brief this issue. Even if properly preserved,
an issue not adequately briefed is considered waived or abandoned. In re Marriage of
Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018). A point raised incidentally in a brief
but not argued is also considered abandoned. Russell v. May, 306 Kan. 1058, 1089, 400
P.3d 647 (2017).
For example, under a section titled, "Plaintiff could have died and had injury,"
Keeler states:
"[Peh] was given notice, that her actions caused Plaintiff Keeler to be
hospitalized, also to miss 30 days of Dialysis. To miss 30 days Keeler could have been
dead. [Peh] still did the same exact Conduct that could have Killed Plaintiff Keeler to
cause severe emotional distress. Court of appeals must reverse district courts [sic]
dismissal of claim."
But this is insufficient briefing. Keeler fails to support his point with pertinent authority,
such as citing a statute or caselaw, or to show why it is sound despite a lack of supporting
authority or in the face of contrary authority. That is like failing to brief the issue. See In
re Adoption of T.M.M.H., 307 Kan. 902, 912, 416 P.3d 999 (2018).
Still, for clarity's sake, we will explain why the district court properly granted the
motion to dismiss.
The district court did not err in dismissing Keeler's medical malpractice claims.
We review the district court's dismissal of a claim or petition de novo, meaning we
analyze it anew, independently. We view the well-pleaded facts in a light most favorable
to the plaintiff and assume as true those facts and any inferences reasonably drawn from
them. If those facts and inferences state any claim upon which relief can be granted, then
dismissal was improper. Cohen v. Battaglia, 296 Kan. 542, 545-46, 293 P.3d 752 (2013).
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But the district court does not have to accept one's legal conclusions. See Williams v. C-
U-Out Bail Bonds, 310 Kan. 775, 785, 450 P.3d 330 (2019) ("[A] pleading's bare legal
conclusions need not be credited absolutely in the same way that the plaintiffs' factual
allegations must be when a judge rules on a motion to dismiss.").
We first address the district court's dismissal of count III, Keeler's medical
malpractice claim. In his petition, Keeler argues that Peh failed to perform nursing duties
on him, and that as a registered nurse at DaVita she had a duty to perform nursing duties
on any and all patients if needed. Keeler says Peh breached this duty because she stopped
providing him care. And "as a result of [Peh's] failure to perform [n]ursing duties,"
Keeler "suffered high blood pressure numbers of 200/100," missed treatment, and had to
be hospitalized.
Keeler's brief cites no legal authority but refers us to his response to the motion to
dismiss where he elaborates on Peh's alleged duty. In that response, Keeler submitted
DaVita's mission statement and code of conduct as proof of Peh's duty of care and breach
of that duty. Under DaVita's core value "Team," DaVita's mission statement stated, "One
for All, and All for One! We work together, sharing a common purpose, a common
culture and common goals." And, under "Accountability," it stated, "We don't say, 'It's
not my fault,' or 'It's not my job.'" So, Keeler concluded, "under Davita's [sic] policy
Defendant [Peh] cannot, and should not den[y] to perform nursing duties on plaintiff
Keeler."
To establish a medical malpractice claim, a plaintiff must show:
"'(1) the health care provider owed the patient a duty of care, which required that the
provider meet or exceed a certain standard of care to protect the patient from injury; (2)
the provider breached that duty or deviated from the standard of care; (3) the patient was
injured; and (4) the injury proximately resulted from the health care provider's breach of
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the standard of care.' [Citations omitted.]" Castleberry v. DeBrot, 308 Kan. 791, 802, 424
P.3d 495 (2018).
Keeler fails to allege Peh breached her duty of care.
Under Kansas law, a health care professional has
"a duty to use the learning and skill ordinarily used by other members of that same field
of medicine in the same or similar communities and circumstances. In using this learning
and skill, the [health care provider] must also use ordinary care and diligence. A violation
of this duty is negligence." PIK Civ. 4th 123.01 (2014 Supp.).
See Foster ex rel. Foster v. Klaumann, 296 Kan. 295, 302, 294 P.3d 223 (2013).
One way a plaintiff may prove a breach of a health care professional's duty is by
an abandonment theory:
"'It is the settled rule that one who engages a physician or surgeon (the terms
"physician" and "surgeon" are here used interchangeably) to treat his case impliedly
engages him to attend throughout the illness or until his services are dispensed with. In
other words, once initiated, the relationship of physician and patient continues until it is
ended by the consent of the parties, revoked by the dismissal of the physician, or until his
services are no longer needed. A physician has a right to withdraw from a case, but if he
discontinues his services before the need for them is at an end, he is bound first to give
due notice to the patient and afford the latter ample opportunity to secure other medical
attendance of his own choice. If a physician abandons a case without giving his patient
such notice and opportunity to procure the services of another physician, his conduct may
subject him to the consequences and liability resulting from abandonment of the case.'"
Collins v. Meeker, 198 Kan. 390, 402, 424 P.2d 488 (1967).
Keeler's allegations are consistent with an abandonment theory. But Keeler has not
shown that this theory, which applies to physicians, may extend to nurses. Yet even if we
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assume that it may, Keeler's factual allegations, viewed in the light most favorable to
him, fail to establish that Peh may have breached this duty. In other words, Keeler fails to
show that Peh improperly withdrew her care. Keeler does not show that his dialysis
stopped because Peh withdrew. Instead, Keeler admits that other DaVita staff provided
his nursing care when Peh did not. So Peh did not abandon Keeler's case without giving
him the services of another nurse for his dialysis care. And Keeler does not allege or raise
any legal argument that he had a right to exclusive nursing care from Peh, instead of from
other nurses. Thus Keeler failed to allege that Peh breached her duty of care. Although
Keeler's medical malpractice claim also suffers other fatal pleading errors, such as failing
to plead that a breach of duty proximately caused the injuries he alleges, we need not
detail those failings here.
The district court did not err in dismissing Keeler's other claims.
We also need not individually address the district court's dismissal of claims I, II,
IV, V, VI, and VII, although the district court did so correctly and compellingly. In
addition to analyzing those claims individually, the district court held that these claims
were each included within Keeler's medical malpractice claim.
Under the analysis that the district court relied on, a plaintiff who sues for medical
malpractice cannot maintain other claims against the same defendant when those claims
arise from the same series of events as the malpractice claim:
"Under Kansas law, a plaintiff who brings a claim against a doctor or hospital for
failure to perform the legal duty to exercise reasonable care, skill and diligence in the
treatment of a patient may not also maintain other claims against the doctor or hospital
for actions that arise from the same series of events as the underlying malpractice claim.
See Noel v. Proud, 189 Kan. 6, 367 P.2d 61, 65-66 (1961) (quoting Calabrese v. Bickley,
208 Misc. 407, 143 N.Y.S. 2d 846 [N.Y. Supp. 1955]). For instance, although a medical
malpractice plaintiff may satisfy all of the essential elements for a claim of fraud against
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a doctor, the court will dismiss the fraud claim unless the claim extends 'beyond a breach
of the legal duty which every doctor has the obligation to uphold.' Bonin v. Vannaman,
261 Kan. 199, 929 P.2d 754 (1996) (citing Noel, 367 P.2d at 64, 66). In other words,
Kansas courts will not permit a plaintiff to 'creatively classify' a claim as something other
than one for medical malpractice if the substance of the claim concerns the physician-
patient relationship. See Christensen v. Gleason, No. 98-1329-JTM, 2000 WL 133815, at
*4 (D. Kan. 2000) (citing Bonin, 929 P.2d at 763)." Kernke v. Menninger Clinic, Inc.,
172 F. Supp. 2d 1347, 1354 (D. Kan. 2001).
The district court found that Keeler's claims for invasion of privacy, breach of
confidentiality, failure to properly handle a patient concern, and negligent and intentional
infliction of emotional distress all turned on the same core set of facts as his medical
malpractice claims. Each of those additional claims involved Peh's care and treatment of
Keeler while he was a patient at the dialysis clinic. The essence of the claims does not
extend beyond allegations that Peh breached her duty of care to him while he received
dialysis at the clinic. Instead, they simply reclassified his medical malpractice claims as
something else. Kansas law does not permit that.
Keeler does not address this analysis in his brief on appeal. Because Keeler fails to
brief this issue, we do not revisit it. The district court's analysis is sufficient to warrant
dismissal of all claims but Keeler's medical malpractice claim, which we have separately
addressed above.
Affirmed.
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