Bivins v. State ex rel. Oklahoma Memorial Hosp.
| Decision Date | 16 January 1996 |
| Docket Number | No. 81319,81319 |
| Citation | 917 P.2d 456,1996 OK 5 |
| Parties | Rebecca M. BIVINS and Nancy J. Enox, Co-Administrators of the Estate of Rosemary Williams, Deceased, Plaintiffs-Appellants, v. STATE of Oklahoma ex rel. OKLAHOMA MEMORIAL HOSPITAL; Sherri Durica, M.D.; Donald Carter, M.D.; Randy Eichner, M.D.; Tim Hepner, M.D.; R. Parham, M.D.; Selby, M.D. (first name unknown); L. Brooks, M.D.; John Doe, M.D. (radiologist); J. Raunikar, M.D.; T. Ingmire, M.D.; R. Elwood, M.D.; Silvester, M.D., Defendants-Appellees. |
| Court | Oklahoma Supreme Court |
On Appeal from the District Court, Oklahoma County, Carolyn J. Ricks, Judge.
Jose Gonzalez, Suzanne Woodrow, Gonzalez & Woodrow, Purcell, and Richard L. Denney, Lydia J. Barrett, Denney & Barrett, Norman, for Appellants.
Inona J. Harness, Haven Tobias, Pierce Couch Hendrickson Baysinger & Green, Oklahoma City, for Appellee Physicians.
Charles L. Waters, General Counsel, Richard W. Freeman, Jr., Assistant General Counsel, Department of Human Services, Oklahoma City, for Appellee Oklahoma Memorial Hospital.
This public-law controversy presents three questions, the first two of which are dispositive of the appeal: (1) Does the Governmental Tort Claims Act [GTCA] 1 shield faculty physicians, student physicians and medical-school interns--who are either teaching or participating in a graduate medical education program at Oklahoma Memorial Hospital [OMH]--from tort liability to a patient for negligence in providing medical or surgical services? (2) Did the agency's post-notice request for additional information to be supplied about the claim, followed by the claimants' timely submission of supplemental data, extend the statutorily-prescribed time for the government's undisturbed consideration of the tort claim--the 90-day bar during which no suit may be filed? 2 and (3) Did the trial court err in giving summary judgment to the defendant physicians and in dismissing the suit against OMH? We answer the first question in the negative, both the second and third in the affirmative, and remand the cause for further proceedings not inconsistent with this opinion.
Rosemary Williams [Williams] died on September 23, 1991 from complications of a bone marrow transplant procedure performed at OMH. 3 In the course of a two-step procedure administered to her, 4 the tip of a central venous "Hickman catheter" 5 lacerated Williams' vena cava superior, 6 producing death-dealing hemorrhage.
The medical treatment in question was administered by four resident physicians--Drs. Thomas Ingmire, Sherri Durica, Timothy Hepner and John Raunikar--and a resident intern, Dr. Robert Parham [collectively called students or student physicians]. These five individuals were participating in a graduate medical education program at The next of kin and co-administrators of Williams' estate [collectively called claimants or plaintiffs] notified OMH of their wrongful death claim by letter that was received December 9, 1991. At some point later, claimants were contacted by the Risk Management Division [Division] of the Office of Public Affairs and requested to supplement their notice by submitting a "Claimant's Report" form. They completed the form and sent it to the Division on January 3, 1992. On September 17, 1992 the claimants commenced this wrongful death action against the five student physicians (Drs. Ingmire, Durica, Hepner, Raunikar, and Parham), the four faculty physicians (Drs. Selby, Elwood, Carter, and Eichner), OMH, and three other defendants. 8
the University of Oklahoma Health Sciences Center [OUHSC]. 7 Drs. George Selby, Robin Elwood, Donald Carter and Randy Eichner [faculty physicians] supervised and instructed the five student physicians regarding Williams' treatment
The trial court's order (filed January 25, 1993) dismissed with prejudice the claim against OMH as time-barred. 9 On April 26 of that year the trial court gave summary judgment to the faculty 10 and student 11 physicians by two journal entries. The trial court's summary relief was grounded on GTCA-conferred immunity from tort liability. 12 The trial court concluded that all these defendants, when rendering medical services to Williams, were either engaged in teaching and performing administrative duties or were participating as students in an education program at OUHSC. 13 The plaintiffs, who voluntarily dismissed below their suit against the remaining defendants in the case, 14 timely appeal for review of (a) their OMH claim's dismissal and of (b) the two summary judgment
entries giving victory to the nine (student and faculty) physicians. 15
THE GTCA DOES NOT CONFER IMMUNITY UPON A PHYSICIAN FOR
This court's pronouncement in Anderson v. Eichner 16 is dispositive of all the issues pressed by the defendant physicians for the summary rulings' affirmance. 17 Anderson, which construes the 1986 and 1989 versions of the GTCA, holds that faculty physicians engaged in teaching or in administrative duties (and resident physicians as well as interns participating in a graduate medical education program) are employees of the state who, while on duty, are deemed acting within the scope of their employment except when they are practicing medicine. 18 In short, the purview of protection from liability created by the GTCA 19 does not encompass the practice of the healing art by providing medical or surgical services to patients. 20
Anderson applies with equal force to the statutory scheme in effect when the alleged injuries occurred in this case--September 23, 1991. We know of no post-1989 amendment of the GTCA--made effective before Under the authority and rationale of Anderson, summary judgment entries for all the defendant physicians must hence be reversed. We so hold. This part of today's opinion (Part II) disposes only of summary judgment for the faculty and student physicians. The remainder of our pronouncement will address itself to the dismissal of the plaintiffs' claim against OMH.
the critical date in 1991--whose terms abrogate Anderson's teachings in whole or in part, and none has been urged in the briefs.
A CLAIMANT'S COMPLETED SUBMISSION OF THE EARLIER TIMELY
A REASONABLE OR STATED TIME, OPERATES TO TRIGGER A NEW
UNDISTURBED BY SUIT
OMH pressed below for its dismissal from the suit on the sole ground that the plaintiffs' malpractice action was time-barred when brought. 21 According to OMH, (a) its request for more information had absolutely no legal effect upon the length of the 90-day bar prescribed by 51 O.S.1991 § 157(A) 22 for consideration of the claim undisturbed by litigation, (b) the statutory bar of suit, which started to run when OMH received the claimants' initial notice (December 9, 1991), expired on March 9, 1992, and (c) the terminal date for commencing an action on the claim--180 days following March 9--fell on September 8, 1992, several days before this suit was brought on September 17, 1992. The plaintiffs, on the other hand, take the position that when the government sought more information the time stopped running until the desired data was timely supplied. While OMH wants the 90-day period counted from December 9, 1991 (the day it received the first notice of the tort claim), the plaintiffs insist that January 3, 1992 (the day they supplied the requested supplemental information) should be deemed to have started the 90-day interval. According to the plaintiffs, the action (filed September 17, 1992 ) was timely because if the 90-day time bar is counted from January 3, the 180-day period for filing a claim did not run out until September 29, 1992. 23
For the reasons to be stated we hold that a claimant--who, while pressing for statutory tort redress against a public agency, responds within a reasonable or stated time to (or gives the reason for not complying with) a government's post-notice request for more information about the claim--has in law a legitimate expectation to assume that (1) the agency request is made in good-faith pursuit of necessary information and not for the purpose of lulling the claimant into a sense of false security, (2) the perceived deficiency to be supplied in response to the request will be treated as submission of a completed claim's notice that is to be considered anew, and (3) the new submission's processing will take the full statutory time of 90 days during which the investigation and
evaluation must stand undisturbed by litigation.
In every public entity's post-notice request for more information dwells its implied declaration that the earlier notice is to be regarded as deficient (or otherwise unfit for consideration) and is hence, at best, to be treated as only an inchoate filing. The mere transmission of such request is patently consistent with the notion that the initial notice's content is viewed as legally clouded. A post-notice request for more complete information can never logically be equated with the government's silence, i.e. with its lack of response which the statute requires to be taken as the claim's denial. 24 Rather, it must be regarded as clearly incompatible not only with the notion of denial--this so because no rational agency official would press to know more about a patently unmeritorious claim--but also with the initial submission's continued consideration. No prudent person would believe that risk managers will continue to process notice they deem deficient or one they view as having no semblance of validity. In short, an agency's post-notice request to be better informed about the claim at hand negates the efficacy of the earlier notice and eloquently signals an end of the initially triggered cycle of consideration undisturbed by litigation.
The time of the completed submission clearly...
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