Brisco v. Gerard
| Decision Date | 12 April 2022 |
| Docket Number | 119331 |
| Citation | 2023 OK CIV APP 19 |
| Parties | ROCHELLE BRISCO, as Special Administrator of the Estate of Christopher Jesse Curtis Cooper, Deceased, Plaintiff/Appellant, v. TERRY R. GERARD, II, D.O.; DURANT H.M.A., LLC d/b/a AllianceHealth Durant, an Oklahoma Limited Liability Company; MENTAL HEALTH SERVICES OF SOUTHERN OKLAHOMA, INC. d/b/a Mental Health Services of Southern Oklahoma, an Oklahoma Not For Profit Corporation, Additional Defendants. THE OKLAHOMA MENTAL HEALTH COUNCIL d/b/a Red Rock Behavioral Health Services, an Oklahoma Not For Profit Corporation; and RACHEL J. DALTHORP, M.D., Defendants/Appellees, |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Mandate Issued: 05/18/2023
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DON ANDREWS, TRIAL JUDGE
Joseph T. Acquaviva, Jr., WILSON, CAIN & ACQUAVIVA, Oklahoma City, Oklahoma, David Bernstein, BERNSTEIN LAW FIRM, Oklahoma City, Oklahoma, and John E. Vitali, Brice W. Bisel, HORNBEEK VITALI & BRAUN, P.L.L.C., Oklahoma City, Oklahoma for Plaintiff/Appellant
D Todd Riddles, Tyler J. Coble, CHEEK LAW FIRM, P.L.L.C. Oklahoma City, Oklahoma, for Defendant/Appellee Mental Health Services of Southern Oklahoma
Russell L. Hendrickson, Hailey M. Hopper, PIERCE, COUCH, HENDRICKSON, BAYSINGER AND GREEN, L.L.P., Oklahoma City, Oklahoma, for Defendant/Appellee Rachel J. Dalthorp, M.D.
Eddie L. Carr, HOLDEN LITIGATION, HOLDEN, P.C., Tulsa, Oklahoma, for Defendant The Oklahoma Mental Health Council d/b/a Red Rock Behavioral Health Services
¶1 Rochelle Brisco (Brisco), as Special Administrator of the Estate of Christopher Jesse Curtis Cooper (Cooper), appeals the district court's February 12, 2020 Amended Journal Entry of Judgment, granting summary judgment in favor of Dr Rachel J. Dalthorp (Dr. Dalthorp) and the August 24, 2020 Journal Entry of Judgment granting summary judgment in favor of Red Rock Behavioral Health Services (Red Rock). [1] The primary issue is whether the undisputed material facts show there was no physician-patient relationship between Dr. Dalthorp and Cooper, and therefore, she owed no duty to him and was not negligent as a matter of law. Based on our review of the record and applicable law, we find the undisputed facts showed no physician-patient relationship was established, and we affirm both orders granting summary judgment in favor of Dr. Dalthorp and Red Rock.
¶2 Cooper, who was a truck driver, and Jessica Rupe, his significant other, were stopped at a Love's Travel Stop in Colbert, Oklahoma on July 2, 2015. At around 12:45 p.m., Rupe called 911 and stated that Cooper was suicidal, not making sense, and having a Post-Traumatic Stress Disorder episode. Jeffrey Goerke, Chief of Police of the Colbert Police Department, responded to the call and eventually took Cooper to the hospital (AllianceHealth). [2]
¶3 At the hospital, Cooper was initially examined by a Physician's Assistant, Ashley Thomann, though he was uncooperative and would not talk or answer questions. A urine analysis was also conducted, and Cooper tested positive for amphetamines. Mija Stowe, a case manager for MHSSO, performed an in-person screening of Cooper, after which she was required by policy to contact a mental health professional. Accordingly, Stowe contacted Kelli Simpson, a licensed mental health professional, to perform an assessment of Cooper via a video teleconferencing system. After the assessment, Stowe called Simpson to discuss the patient and decide on a plan of action. It was Stowe's understanding that Cooper was going to be placed under an emergency order of detention. Accordingly, she attempted to locate a bed for Cooper in a mental health facility by calling Red Rock.
¶4 Dr. Dalthorp was a contract physician with Red Rock, taking calls from her home to evaluate whether individuals should be admitted into the facility. Eventually, Dr. Dalthorp, spoke over the telephone with P.A. Thomann. Dr. Dalthorp declined the transfer from the hospital to Red Rock because Cooper's symptoms were typical of methamphetamine-induced psychosis, and she was unable to differentiate between methamphetamine intoxication and schizophrenia at that time based on the information given to her. Dr. Dalthorp then advised Red Rock triage that she would not be accepting Cooper for transfer to the facility at that time. It was undisputed that Dr. Dalthorp did not advise P.A. Thomann to discharge Cooper from the hospital.
¶5 Subsequently, Cooper was released from the hospital. P.A. Thomann admitted she was free to exercise her own medical judgment in determining how Cooper was treated, and she made the final determination to discharge him from the hospital. After his release from the hospital, Cooper was returned to his truck at Love's. In the parking lot, an incident occurred between Cooper and another truck driver, Ricky Morris, and his wife, Sharon Morris. The Morrises left the parking lot. Then, Cooper stole a semi-truck at knife point and chased the Morrises. After forcing the Morrises to pull over, Cooper attempted to stab Mr. Morris. Ultimately, Ms. Morris retrieved a handgun from the back of the truck and shot Cooper, resulting in his death.
¶6 Brisco filed suit on November 29, 2018 against multiple defendants. As relevant to the present appeal, she alleged Dr. Dalthorp was negligent in her care of Cooper and that Red Rock was vicariously liable for Dr. Dalthorp's alleged negligence. Dr. Dalthorp later filed a motion for summary judgment, to which Brisco responded, alleging there was no physician-patient relationship between her and Cooper that would give rise to a duty to support a negligence cause of action. The district court held a hearing and found no said relationship existed as a matter of law and granted Dr. Dalthorp's motion. The order was filed on February 12, 2020. Red Rock subsequently filed a motion for summary judgment, to which Brisco responded by incorporating its previous briefing, arguing that because the court found Dr. Dalthorp was not negligent as a matter of law, Red Rock could not be found vicariously liable. The district court then granted Red Rock's motion and filed its order of August 24, 2020.
¶7 Brisco appeals from these two orders.
¶8 Whether summary judgment was properly entered is a question of law, reviewable de novo. Payne v. Kerns, 2020 OK 31, ¶ 10, 467 P.3d 659. Under de novo review, we have "plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law and whether there is any genuine issue of material fact." Id.
¶9 Summary judgment will be affirmed only if the 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. Lind v. Barnes Tag Agency, 2018 OK 35, ¶ 9, 418 P.3d 698. All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the non-moving party. Id.
¶10 Brisco alleges the trial court erred by granting Dr Dalthorp's motion for summary judgment. As with other negligence actions, the elements of a medical malpractice action are: (1) a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty, (3) an injury, and (4) causation. Jennings v. Badgett, 2010 OK 7, ¶ 12, 230 P.3d 861. In other words, the plaintiff must show that the defendant breached a duty owed to the plaintiff that caused the injuries. Id. The issue of the existence of duty is a question of law for the court. Id. If the defendant did not owe a duty of care to the plaintiff, there can be no liability for negligence as a matter of law. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶ 12, 160 P.3d 959.
¶11 Moreover, an action for malpractice is based on an employment contract between the patient and the physician. Jennings, 2010 OK 7, at ¶ 13. In Oklahoma, a physician is not under a general duty to provide professional services to others; rather, the physician must consent to provide the services. Id. (citing Jackson v. Mercy Health Center, Inc., 1993 OK 155, ¶ 5, 864 P.2d 839). Accordingly, the Oklahoma Supreme Court has found that in a medical malpractice action, the plaintiff must prove a physician-patient relationship to establish the defendant owed a duty. Id. at ¶ 27. Unlike the question of duty, the question of the formation of a physician-patient relationship is one of fact, turning on a determination of whether the patient entrusted his treatment to the physician and whether the physician accepted the case. Id. at ¶ 18. However, on a motion for summary judgment when the material facts are undisputed and the evidentiary materials and facts show one party is entitled to judgment, the court may decide the issue as a matter of law. Id.
¶12 In Jennings, the plaintiffs sued multiple defendants, including Dr. Schlinke, for the alleged negligent delivery and treatment of their daughter at the time of her birth. Id. at ¶ 2. The undisputed facts showed that the treating physician merely called Dr. Schlinke seeking his opinion, which the physician then incorporated into his decision on how to care for the mother. Id. at ¶ 9. The undisputed facts further showed Dr. Schlinke did not render medical advice to the plaintiffs; did not provide services to the treating physician on behalf of the baby or her mother; took no affirmative action to treat the baby or her mother; spoke only with the treating physician and not to either of the parents; did not examine the baby or her mother; did not receive a referral for treatment or consultation; was not employed by the treating physician and had not been asked or contracted by such physician to provide medical treatment to the child or her mother; and...
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