Bentley v. Kirk
| Decision Date | 08 April 2015 |
| Docket Number | Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4. ,113,127. |
| Citation | 2015 OK CIV APP 43,348 P.3d 1112 |
| Parties | Ted BENTLEY and Rita Bentley, Plaintiffs/Appellants, v. Clint KIRK, D.O. and Comanche, County Memorial Hospital Authority, d/b/a Comanche County Memorial Hospital, Defendants/Appellees, and Smith & Nephew, Inc., Defendant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Micky Walsh, Jerry Fraley, Derek Franseen, Beeler, Walsh & Walsh, PLLC, Oklahoma City, OK, for Plaintiffs/Appellants.
Glen D. Huff, Robert D. Hoisington, Lindsey D. Parke, Foliart, Huff, Ottaway & Bottom, Oklahoma City, OK, for Defendants/Appellees Clint Kirk, D.O. and Comanche County Memorial Hospital.
¶ 1 Plaintiffs Ted Bentley and Rita Bentley appeal the summary judgment of the district court holding that Defendants Dr. Clint Kirk and Comanche County Memorial Hospital (Hospital) cannot be sued for medical malpractice. We vacate both grants of summary judgment.
¶ 2 Plaintiffs allege that Dr. Kirk was negligent in the insertion of a prosthetic knee device. In November 2010, Dr. Kirk implanted a metal knee device in Ted Bentley. On May 2, 2011, this device was removed by Dr. Kirk because Mr. Bentley had an allergic reaction
to the metal. Dr. Kirk replaced the metal device with a knee made by Defendant Smith & Nephew, Inc.1 On May 24, 2011, Dr. Kirk performed a third surgery to replace part of the new Smith & Nephew knee implant. Mr. Bentley, however, continued to experience problems with the knee implant, and consulted another physician, Dr. Stephen Wilson. On August 8, 2011, Dr. Wilson performed another surgical revision of the Smith & Nephew knee implant.
¶ 3 On July 13, 2012, Plaintiffs sent notice of a medical negligence claim to Hospital pursuant to the Governmental Tort Claims Act (GTCA), 51 O.S.2011 § 156(B). Dr. Kirk and Hospital replied with a joint motion to dismiss. Dr. Kirk argued he was an employee of Hospital acting within the scope of his employment, and hence personally immune from suit. He attached a personal affidavit stating that he was an employee of Hospital. Hospital argued that the last surgery performed by Dr. Kirk occurred on May 2, 2011, but Plaintiffs had not sent GTCA notice until July 13, 2012, and hence Plaintiffs had failed to give notice within the one-year period specified by § 156(B).
¶ 4 The trial court chose to treat the motion to dismiss as a motion for summary judgment. Plaintiffs filed a motion for continuance pursuant to District Court Rule 13(d), seeking time for discovery regarding Dr. Kirk's employment status, which the court tacitly denied by its failure to rule on the motion. On September 18, 2013, the court granted summary judgment to Dr. Kirk on the grounds that he was an employee of Hospital, and to Hospital on the grounds that Plaintiffs had given notice outside the one-year period specified by § 156(B). Plaintiffs filed a motion for new trial, which the court denied. Plaintiffs now appeal.
¶ 5 Summary judgment settles only questions of law. See Pickens v. Tulsa Metropolitan Ministry, 1997 OK 152, ¶ 7, 951 P.2d 1079. The standard of review of questions of law is de novo. Id. Plaintiff filed a motion for new trial in this case. However, the exercise of the district court's discretion in deciding this motion is decided by our de novo review of the underlying summary judgment. Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100¶ 6 Summary judgment will be affirmed only if the appellate court determines that there is no dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Pickens, n. 1. Summary judgment will be reversed if the appellate court determines that reasonable men might reach different conclusions from the undisputed material facts. Edwards v. City of Sallisaw, 2014 OK 86, ¶ 7, 339 P.3d 870.
¶ 7 This appeal concerns the interaction of the statutory GTCA notice period and the “discovery rule.” Hospital argues that GTCA notice pursuant to 51 O.S.2011 § 156(B) must be made within one year of an act of negligence, and this time is not tolled unless the plaintiff can show “active concealment” of the negligence by the GTCA entity. Hospital argued that there was no allegation of active concealment in this case, and hence Plaintiffs did not give the required GTCA notice within the statutory one-year period.
¶ 8 This area of law is one that has not been definitively addressed by the Oklahoma Supreme Court. The question arises from subsection B of § 156, which states:
B. Except as provided in subsection H of this section, and notwithstanding any other provision of law, claims against the state or a political subdivision are to be presented within one (1) year of the date the loss occurs. A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.
Subsection H deal with claims based on wrongful felony conviction resulting in imprisonment, and is therefore not significant in this case.
¶ 9 The § 156(B) requirement that a claim be presented within one year of the date the loss occurs has been examined in a limited number of malpractice cases. In Tice v. Pennington, 2001 OK CIV APP 95, ¶¶ 23–26, 30 P.3d 1164, Division II of this Court found a form of tolling applicable to this time bar, noting that the application of § 156(B) to medical malpractice occurring at a state-operated hospital presented a particular public policy question.
¶ 10 In Tice, plaintiff Tice underwent a kidney transplant
. The transplant failed immediately, while Tice was still on the operating table, because the donor kidney was incompatible due to erroneous blood typing. Tice's mother, Linda Welch, provided a kidney on an emergency basis. Tice's physician did not inform Tice or Welch of the reason for the donor kidney transplant failure for almost seven years. Id., ¶¶ 4–5. Tice also indicates that Welch was induced to give up the kidney on an emergency basis because of a misrepresentation to both of them that the rejection of the donor kidney had been occasioned by a rare blood disorder, with the implication that Tice might otherwise never qualify for a donor kidney. Id., ¶ 26. When Tice and Welch sued, the hospital interposed the § 156(B) time bar.
¶ 11 The Tice opinion examined several estoppel and tolling theories regarding the § 156(B) time bar, and stated:
Hence, the prevailing public interests, which except this case from the general estoppel rule, are the public's interest in speedy investigation of claims without cover-up by state employees and the public's interest in proficient medical care unimpeded by a prevarication, concealment, and/or misrepresentation. These prevailing interests outweigh any reasonable premise to protect the public's interest fostered by the time-bar in Section 156(B) of the Governmental Tort Claims Act. This conclusion is bolstered, as stated before, by the fact that the governmental conduct in this case served in large measure to thwart the very interests served by the Act.
Id., ¶ 27. Hospital petitioned for certiorari in Tice, but the docket sheet indicates the case was settled, and the petition withdrawn. Hence, the Supreme Court did not have the opportunity to take or deny certiorari of the opinion.
¶ 12 Some twelve years after Tice, Division II again examined § 156(B) in Lavender v. Craig Gen. Hosp., 2013 OK CIV APP 80, 308 P.3d 1071. In Lavender, plaintiff “underwent a diagnostic laparoscopic procedure
at Craig General Hospital.” According to the petition, plaintiff was “sterilized by tubal ligation
” without her consent during this procedure. After the operation, the involved physician informed plaintiff that the sterilization was medically necessary. Three years later, plaintiff was informed by another physician that the tubal ligation was not medically necessary and was not reversible. Plaintiff sued the physician some five years after the procedure. During discovery, plaintiff deposed a staff nurse from the Hospital's operating room who testified that Hospital “[s]taff failed to follow [its] protocol and obtain two witnesses[‘] initials to the change in operative procedure” and that it “was hospital protocol to take a ‘time out’ before a tubal ligation was performed.... to give the patient notice and to determine medical necessity.” Id., ¶ 7. Plaintiff then added the hospital as a defendant, and the hospital interposed the § 156(B) time bar.
¶ 13 The Lavender opinion stated a more or less conventional discovery rule pursuant to the facts of that case.
The question of when [a plaintiff] possessed sufficient information to trigger the running of the statute of limitations is one of fact. Hawk Wing v. Lorton, 2011 OK 42, ¶ 18, 261 P.3d 1122, 1127 (quoting Gallagher v. Enid Reg'l Hosp., 1995 OK 137, ¶ 11, 910 P.2d 984, 986 ). [W]hether plaintiffs have used diligence in discovery, or should, as reasonably prudent persons have been put on inquiry and investigation from what they heard, or knew, was a question to be determined in the trial court, on the basis of the facts and circumstances of the particular case. Id. (quoting Flowers v. Stanley, 1957 OK 237, ¶ 15, 316 P.2d 840, 847 ).
Id., ¶ 24 (internal quotation marks omitted).
¶ 14 Lavender vacated summary judgment to the hospital, even though the hospital was not notified within one year after surgery, stating that “a substantial controversy exists as to whether [plaintiff] knew, or was able to discover with reasonable diligence, that a cause of action existed against Hospital stemming from the July 19, 2005, surgery any earlier than Nurse Winfrey's August 25, 2011, deposition.”Id., ¶ 26. No party, however, sought certiorari of the Lavender opinion. As a result, neither of the two published opinions dealing with this issue were challenged by a certiorari proceeding. It now falls to this...
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