Day v. Memorial Hosp. of Guymon

• Decision Date: 14 April 1988
• Docket Number: No. 85-1890,85-1890
• Citation: 844 F.2d 728
• Parties: Marion F. DAY and Joann J. Day, Plaintiffs-Appellants, v. The MEMORIAL HOSPITAL OF GUYMON; L.L. Lowery, M.D., individually; L.L. Lowery, M.D., a professional corporation; R.H. Cox, Jr., M.D., individually; and R.H. Cox, Jr., a professional corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 728

844 F.2d 728

Marion F. DAY and Joann J. Day, Plaintiffs-Appellants, v. The MEMORIAL HOSPITAL OF GUYMON; L.L. Lowery, M.D. individually; L.L. Lowery, M.D., a professional corporation; R.H. Cox, Jr., M.D., individually; and R.H Cox, Jr., a professional corporation, Defendants-Appellees.

No. 85-1890.

United States Court of Appeals Tenth Circuit.

April 14, 1988.

Robert Behlen of Lampkin, McCaffrey & Tawwater, Oklahoma City, Okl. (Larry A. Tawwater, with him on the brief), for plaintiffs-appellants.

G. Scott Ray of Foliart, Huff, Ottaway & Caldwell, Oklahoma City, Okl. (Glen D. Huff, with him on the brief), for defendants-appellees.

Before HOLLOWAY, Chief Judge, ANDERSON, Circuit Judge, and WESLEY E. BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

This case arises out of a medical malpractice action against Memorial Hospital of Guymon, Oklahoma. Plaintiff was injured on January 18, 1981, and sought treatment on that day at Memorial Hospital. Approximately two years later, on January 14, 1983, plaintiff brought an action for negligence against the hospital and other defendants.

The district court granted Memorial Hospital's motion for summary judgment against the plaintiff. Summary judgment was based on plaintiff's failure to comply with the notice provision of the Oklahoma Political Subdivision Tort Claims Act, 51 Okla.Stat.Ann. Sec. 156(B) (West 1979). That section provided: "A claim against a subdivision shall be forever barred unless notice thereof is filed with the clerk of the governing body of the political subdivision within one hundred twenty (120) days after a loss occurs." ¹ The district court found that the hospital was a political subdivision under Oklahoma law, and was therefore entitled to notice under the Tort Claims Act. It is undisputed that the plaintiff did not comply with Sec. 156(B).

Plaintiff-appellant now raises four arguments challenging the district court's application of 51 Okla.Stat.Sec. 156(B) to bar his claim. First, appellant contends that Sec. 156(B) is unconstitutional because it violates the equal protection guarantees of both the Oklahoma Constitution and the United States Constitution. Second, appellant argues that the statute violates Article 5, Section 57 of the Oklahoma Constitution because the effect of the notice provision was not clearly expressed in the title of the statute. Third, appellant argues that the Oklahoma Political Subdivision Tort Claims Act was not intended to apply to hospitals such as Memorial Hospital. Fourth, appellant argues that Memorial Hospital waived any right to statutory protection under the Act by purchasing liability insurance.

Plaintiff's first argument is that Sec. 156(B) violates the equal protection guarantees of the Oklahoma Constitution and the Fourteenth Amendment of the U.S. Constitution. Plaintiff points out that Sec. 156(B) does not treat tort victims equally, since victims of government negligence must give notice of their tort claim. There is no such requirement for victims of "private" negligence. Plaintiff argues that this treatment is unconstitutional because there is no rational basis for treating government tort victims differently than other tort victims.

"Notice of claim" provisions similar to Sec. 156(B) have been challenged extensively in state courts. There is a split of authority as to whether or not these provisions violate equal protection, but a majority of states hold that such statutes are valid. See Annotation at 59 A.L.R.3d 93, 109, Notice of Tort Claim Against Municipality.

Plaintiff's argument that Sec. 156(B) violates the Oklahoma Constitution is foreclosed by Reirdon v. Wilburton Board of Education, 611 P.2d 239 (Okla.1980), in which the Oklahoma Supreme Court stated that Sec. 156(B) did not violate the constitutional guarantee of equal protection. Id. at 240. In discussing Sec. 156(B), the court stated:

[A]bsent a suspect classification, or an infringement upon a fundamental right, both of which are absent here, the statute must be measured on the basis of whether it rationally furthers a legitimate state interest. We find that it does. The notice provision furthers legitimate state interests by fostering a prompt investigation while the evidence is still fresh; the opportunity to repair any dangerous condition, quick and amicable settlement of meritorious claims; and preparation of fiscal planning to meet any possible liability.

Id. (footnotes omitted). See also Black v. Ball Janitorial Service, Inc., 730 P.2d 510 (Okla.1986). Plaintiff attempts to distinguish Reirdon by pointing out that the Reirdon case involved a claim against a school board, while the present case involves a county-owned hospital. This distinction is immaterial, however, since both entities are political subdivisions under Oklahoma law. Accordingly, we must reject plaintiff's argument that Sec. 156 violates the equal protection guarantee of the Oklahoma Constitution.

We also find that the notice provision does not violate the equal protection guarantee of the Fourteenth Amendment. In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1960), the Supreme Court stated:

[T]he Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. States legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.

Id. at 425-26, 81 S.Ct. at 1105. See also McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973) (Legislative distinctions must be respected if the distinctions drawn have some basis in practical experience or if some legitimate state interest is advanced); Artez v. Mulcrone, 673 F.2d 1169, 1171 (10th Cir.1982) (A legislative classification that does not involve a fundamental right or an inherently suspect class is permissible if it has some rational basis or advances a legitimate state interest). Because the present case involves neither a suspect class nor a fundamental right, we examine the statute only to see if it rationally furthers a legitimate state interest. See e.g., Lacey v. Bekaert Steel Wire Corporation, 799 F.2d 434, 436 (8th Cir.1986) (Because legislative classification of tort victims was not based upon a suspect classification and the right to bring a tort suit against the government is not fundamental, the statutory scheme need only have an underlying rational basis).

Notice of claim provisions have been found to serve several legitimate state interests. Most commonly the statutes are said to allow: a prompt investigation while the evidence is still fresh; the opportunity to repair or remedy dangerous conditions; quick and amicable settlement of meritorious claims; and preparation of fiscal planning to meet any possible liability. Reirdon, supra. Other purposes include the discouragement of unfounded claims, minimizing the amount of damages and litigation costs, and allowing continued provision of local services and the maintenance of fiscal stability. Faucher v. City of Auburn, 465 A.2d 1120, 1125 (Me.1983); Sadler v. New Castle County, 524 A.2d 18 (Del.Sup.Ct.1987). These are legitimate government interests which conceivably promote the general welfare by ensuring the stability of government entities. Tort claims against the government have the potential to affect the orderly provision of necessary services to the general public. Given these factors, it cannot be said that the enactment of the notice requirement was an irrational means of pursuing legitimate state objectives. Oquendo v. Insurance Company of Puerto Rico, 388 F.Supp. 1030, 1033-36 (D.P.R.1974) (Ninety-day notice provision did not violate the Equal Protection Clause of the U.S. Constitution). The requirement that tort victims give notice to the government within one hundred and twenty days of their injury may serve to reduce spurious claims and to allow the government to prepare its defense. Such a provision may further ensure that the proper officials are notified of dangerous conditions and are aware of their duty to act.

Our conclusion is further supported by the Supreme Court's ruling in Agost v. Idaho, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975), in which the Court summarily dismissed an appeal "for want of a substantial federal question." The appeal was from the decision in Newlan v. State, 96 Idaho 711, 535 P.2d 1348 (1975), and the Newlan case shows that the same equal protection raised in that case is now being raised by the plaintiff Day. As such, the Supreme Court's dismissal of the case for want of a substantial federal question is a decision that is binding in the lower courts until such time as the Supreme Court informs us otherwise. Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 2289, 45 L.Ed.2d 223, 236 (1975).

Plaintiff argues that it is impermissible to make a distinction between government entities and private parties. Such a distinction may be made, however, without violating the Equal Protection Clause. Shoemaker v. Aldmor Management, Inc., 249 Ga. 430, 291 S.E.2d 549 (1982) (Sufficient differences exist between governmental and private tortfeasors to justify the legislature in requiring that notice be given to one and not the other). See also Nored v. Blehm, 743 F.2d 1386, 1387 (9th Cir.1984) (Equal Protection not violated by differentiating between government and private parties in a statute of limitations).

The cases that have held notice provisions unconstitutional have done so by concluding that a legislative waiver of immunity signified an intent by the legislature to treat...