Carmichael v. Beller

Decision Date02 April 1996
Docket NumberNo. 81964,81964
Citation1996 OK 48,914 P.2d 1051
PartiesMarlene CARMICHAEL, Personal Representative of the Estate of Monette Morgan, deceased, Appellant, v. Jack J. BELLER, M.D., and Norman Orthopaedic Clinic, Inc., Appellees.
CourtOklahoma Supreme Court

Howard K. Berry, Jr., Oklahoma City, and Bill Wilson, Pauls Valley, for Appellant.

Russell L. Hendrickson, Haven Tobias, Pierce Couch Hendrickson Baysinger & Green, Oklahoma City, for Appellees.

LAVENDER, Justice.

We hold that a malpractice suit against a doctor and clinic for harm alleged to have occurred during treatment of a patient's right leg is not barred by a general release given to original tortfeasor(s) allegedly responsible for initially injuring the leg. Under the teachings of Moss v. City of Oklahoma City, 897 P.2d 280 (Okla.1995), to the extent the original tortfeasor(s), the doctor and clinic share a common liability for patient's injuries, 12 O.S.1991, § 832(H)(1), a part of the Uniform Contribution Among Tortfeasors Act (UCATA) applies, and because the involved release fails to name or otherwise specifically identify either doctor or clinic as a tortfeasor to be discharged, it is insufficient as a matter of law to discharge them from potential liability. Further, to the extent there is no common liability and the doctor and clinic are alone responsible for the harm (or some part thereof) caused by the negligent treatment, although the UCATA would not apply because of the lack of common liability, the same result would obtain. In such event, an independent and separate cause of action would exist against the doctor and clinic for the harm caused by the independent and intervening acts or omissions of the doctor and under no theory would the release at issue be considered a discharge of doctor or clinic. In view of our determinations, we reverse the decision of the trial court granting summary judgment to the doctor and clinic and vacate the memorandum opinion of the Court of Appeals affirming that decision.


Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e. whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Therefore, as the decision involves purely legal determinations, the appellate standard of review of a trial court's grant of summary judgment is de novo. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991). We, like the trial court, will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Ross v. City of Shawnee, 683 P.2d 535, 536 (Okla.1984). Further, all inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party. Id.


Appellant, Monette Morgan 1 somehow broke bones in her right leg, foot and/or ankle while in the stands of the Pauls Valley High School football stadium. 2 Initially, Morgan was transported to a local hospital emergency room. Thereafter, she was sent to Norman, Oklahoma where on the next day appellee, Jack J. Beller, M.D., who is alleged to be an employee or officer of appellee, Norman Orthopaedic Clinic, Inc., performed surgery on the leg. Beller performed additional surgeries on the leg and provided other treatment to it for about the next twenty-one (21) months, when in August 1988, he Prior to amputation Morgan sued the Pauls Valley Board of Education and Pauls Valley School District I-18, alleged owners and operators of the stadium, to recover damages for her injuries in a case filed in the Garvin County District Court. After amputation she sued appellees in Cleveland County. In August 1989, Morgan dismissed without prejudice the Cleveland County case. In October 1989, she settled with the school entities in exchange for twenty-five thousand dollars ($25,000.00). She signed a release which specifically named both school entities. Neither appellee contributed any part of the twenty-five thousand dollars ($25,000.00), nor was either named or otherwise specifically identified in the release. However, immediately subsequent to the naming of the school entities (and their agents, servants and employees) as the discharged parties, the release did contain the following broad language purportedly also discharging:

performed a below the knee amputation of the right leg. The petition in this case alleges that Beller was negligent in performance of the surgeries and post-operative care, allowing osteomyelitis and staph infection to develop which resulted in the ultimate amputation. 3

any and all others of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation on account of, or in any way growing out of, any and all known and unknown personal injuries, including claims for loss of consortium and claims for any other injuries or damages resulting or to result from an accident that occurred on or about the 31st day of October, 1986 at the football stadium at the Pauls Valley High School, in Pauls Valley, Oklahoma, as specifically alleged in, but not limited to, the allegations contained in a Petition filed in Garvin County, Case No. C-87-153.

After signing the release Morgan again filed suit against appellees in Cleveland County alleging Beller was negligent in his treatment of the leg. Appellees moved for summary judgment setting up the release as a discharge of all potential tortfeasors that might be liable for damages associated with or resulting from the accident at the football stadium. Appellees relied not only on the broad, seemingly all-inclusive language of the release, but on the doctrine the release or discharge of an original tortfeasor from liability will also discharge a physician who allegedly negligently aggravates the initial injuries. Appellees contended such was the law in Oklahoma both prior and subsequent to adoption of the UCATA, and also that the record, assuming Beller was negligent in his treatment, conclusively shows the school entities are liable for harm resulting from the treatment, i.e. a common liability exists among the school entities, Beller and the clinic. Included with the materials supporting the motion for summary judgment was an affidavit of Beller where he stated that all of his treatment of Morgan's leg was in an attempt to repair the initial fractures or, in the case of the amputation, to deal with the fractures which never healed and prevented Morgan from walking--the amputation allowing her to procure a prosthetic device so that she could bear weight on her right leg.

Morgan opposed summary judgment arguing in part that under § 832(H)(1) the release was not sufficient to discharge appellees. Affidavits were submitted from Morgan, one of her attorneys and the attorney for the school entities, all essentially stating there was no intention to release appellees, but only the school entities and their employees. It was also argued the release could not be considered to discharge appellees because two distinct injuries were involved and, therefore, two separate causes of action, one against the school entities and one against the appellees, and each were responsible independently. Morgan submitted an affidavit from another physician, Charles E. Workman, M.D. who opined, after examining Morgan and reviewing the medical records, that the numerous subsequent surgeries by Beller created "new, separate, additional and distinct injuries which caused the amputation and [Beller's acts or omissions] w[ere] not simply the treatment offered to deal with the The Court of Appeals affirmed, concluding the UCATA did not apply because appellees and the school entities were not "joint" tortfeasors. Instead, they applied the pre-UCATA case of Farrar v. Wolfe, 357 P.2d 1005 (Okla.1960), which held there cannot be recovery in a malpractice suit by one who has sustained personal injuries in consequence of a third person's negligence, against a physician for negligent aggravation of such injuries by improper treatment, after settlement with full release of the tortfeasor who caused the injuries. We previously granted certiorari.

                fractures in [Morgan's] right lower leg which had never healed."   The trial court granted summary judgment in favor of appellees based on the release

Under our law the general rule is that an original tortfeasor, negligently causing injury to a third person, is liable for the negligence of a physician who treats the injured person where negligent treatment results in aggravation of or increasing the injuries, so long as the injured person exercises good faith in the choice of physicians. Atherton v. Devine, 602 P.2d 634, 636 (Okla.1979); Smith v. Missouri, K. & T. Ry. Co., 76 Okla. 303, 185 P. 70, 73-74 (1918). This rule is founded on sound reasons of public policy and is merely a particular application of the rule that a tortfeasor whose negligence causes injury is also liable for any subsequent injury or reinjury that is the proximate result of the original wrongdoing, except where the subsequent injury or reinjury is caused by either the negligence of the injured person, or the independent or intervening act of a third person. Atherton, supra, 602 P.2d at 636-637. 4 In that injuries suffered as a result of the medical treatment were considered to have been proximately caused by the original tort, in this sense, the physician and original wrongdoer caused a "single" injury, and were, therefore, jointly liable to the victim. Summey v. Lacy, 42 Colo.App. 1, 588 P.2d 892, 893 (1978). This is so even though the physician can be said to be a successive...

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