Jackson v. Oklahoma Memorial Hosp.

Decision Date17 October 1995
Docket NumberNo. 83924,83924
Citation1995 OK 112,909 P.2d 765
Parties106 Ed. Law Rep. 364, 1995 OK 112 Martha JACKSON, Plaintiff-Appellant, v. OKLAHOMA MEMORIAL HOSPITAL, Defendant, Ivar K. Rossavik, M.D., Defendant-Appellee.
CourtOklahoma Supreme Court

On Appeal from the District Court, Oklahoma County; James B. Blevins, Judge.

Mark L. Weimer, Stipe Law Firm, Oklahoma City, for Appellant.

John M. Perry III, Hilton H. Walters, Robert D. Hoisington, Perry, Rife, Walters & Sullivan, Oklahoma City, for Appellee.

OPALA, Justice.

Two issues are dispositive of this controversy: (1) Does the Governmental Tort Claims Act [GTCA] 1 shield faculty physicians--who are teaching at Oklahoma Memorial Hospital [OMH]--from tort liability in medical malpractice suits brought against them in their status as state employees? and (2) Did the trial court err in giving summary judgment to the defendant faculty physician? We answer the first question in the negative and the second in the affirmative.

I THE ANATOMY OF LITIGATION

Martha Jackson [Jackson] received a cautery burn to her lower abdomen during a hysterectomy 2 performed at Jackson brought this medical malpractice action against Rossavik and OMH. Because she was anesthetized during the procedure, her lawsuit tenders for judicial consideration the res ipsa loquitur 4 pattern of proof. Summary judgment went to the physician on some but not all of the theories pressed. 5 The nisi prius judgment was grounded on the ruling that, as a matter of law, (1) GTCA-conferred immunity protects the physician from tort liability, (2) the physician was not negligent and (3) his conduct did not cause the injury. Jackson appealed from summary judgment, first urging as error only the last two grounds. By her first amended petition in error she added the first ground as a third basis for summary judgment's reversal.

OMH 3 on September 9, 1991. Dr. Ivar K. Rossavik [Rossavik or physician] was the attending and supervising faculty physician for Jackson's treatment. The surgery itself was allegedly performed by resident physicians who are not parties to this action.

Rossavik moved to strike Jackson's first amended petition, urging that because the appeal had been placed on the accelerated docket Jackson should not be able to add a new and different issue to those which were tendered earlier. 6

The unavailability of immunity to shield the physician from liability for the tort in suit is a plainly preserved issue for our review in this case. A party may amend the petition in error at any time before the brief in chief is filed "to include any error or any issue presented to and resolved by the trial court which is supported by the record." 7 Moreover, Jackson's petition in error stands amended by her brief in chief. 8 Both at nisi prius and now (in her amended petition in error and brief) Jackson's position has been that the GTCA does not confer immunity upon a physician for negligence occurring in the delivery of health-care services. The trial court's ruling on immunity could also be reached sua sponte. It is a point of public law raised at nisi prius, which, if critical to our consideration or disposition of a timely-filed appeal and supported by the record, is reviewable in an appellate court even if not explicitly invoked. 9 Whenever urgent interest demands an immediate resolution of some vital public-law issue, no impediment arising from infirmity in the procedural posture of the case--however well recognized in purely private litigation--will bar our exercise of reviewing powers. 10

II

THE GTCA DOES NOT CONFER IMMUNITY UPON A PHYSICIAN FOR

NEGLIGENCE OCCURRING IN THE DELIVERY OF
HEALTH-CARE SERVICES

This court's pronouncement in Anderson v. Eichner 11 is dispositive of the issue pressed by the defendant physician for the summary judgment's affirmance on the basis of GTCA-conferred immunity. 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 acting within the scope of their employment except when they are practising medicine. 12 In short, the purview of protection from liability created by the GTCA 13 does not encompass the practice of the healing art by providing medical or surgical services to patients. 14

Under the authority and rationale of Anderson, that portion of the summary judgment for the defendant physician, which was grounded on GTCA-conferred immunity, must hence be reversed. We so hold.

III

SUMMARY PROCESS OF ADJUDICATION ANALYZED IN THE CONTEXT OF

THE INVOKED RES IPSA LOQUITUR PATTERN OF PROOF

Jackson urges the trial court erred by giving summary judgment to Rossavik based on its ruling, as a matter of law, that the physician was not negligent and his conduct did not cause the injury. According to Jackson, summary relief was inappropriate because she had established the foundation facts for invoking the res ipsa loquitur pattern of proof. She submits that whether the physician had exclusive control or management of the cautery during surgery presents a question of fact for jury resolution. According to Rossavik, Jackson's claim must fail because the uncontradicted evidentiary material in the record shows that no negligence was involved in the inflicted burn and that his actions were consistent with the hospital-prescribed standard of care. The physician argues that Jackson is not entitled to the benefit of res ipsa loquitur because she failed to establish two critical foundation facts--that the cautery was in his exclusive possession and that her injury is one which does not ordinarily occur absent negligence.

A. Res Ipsa Loquitur Pattern Of Proof Was Properly Invoked

Res ipsa loquitur 15 is a pattern of proof which may be applied when an injury is alleged to have been negligently inflicted and the harm is shown not to occur in the usual course of everyday conduct unless a person who controls the instrumentality likely to have produced that harm fails to exercise due care to prevent its occurrence. 16 Once the foundation facts for res ipsa loquitur 17 are established, negligence may be inferred from the injurious occurrence without the aid of circumstances pointing to the responsible cause. The burden of producing evidence (but not the ultimate burden of persuasion) 18 is then shifted to the defendant. 19 Whether res ipsa loquitur may be applied to a cause It is unnecessary to analyze this cause in terms of our legislation, 76 O.S.1991 § 21, 23 which raises "a presumption of negligence." Jackson brought herself clearly within the common-law parameters of the doctrine. No more is required by statute than by the common law to bring a case within the purview of res ipsa loquitur. 24 The statutory law's constitutional infirmity, if indeed present, need not be tested in this appeal. Constitutional questions are not decided in advance of strict necessity. 25 When measured by the applicable standards of the common and statutory law, Jackson clearly is entitled to rely on the evidentiary pattern she invoked for application to this action.

                presents a question of law.   It is for the court to determine whether a given set of circumstances will allow an inference of negligence. 20  In the context of health-care litigation, res ipsa loquitur may be applied in suits against physicians and hospitals 21 upon proof of the foundation elements, but negligence can never be presumed from showing no more than unsuccessful treatment of a patient. 22
                

Jackson's evidentiary material establishes a physician-patient relationship. She directs us to (a) the June 8, 1991 memorandum from the Department of Obstetrics and Gynecology to the Resident and Faculty Staff, which identifies the responsibilities of an attending physician, 26 (b) the OMH Operating Room Log and Nursing Notes, on which Rossavik's name has been handwritten after the word "attending," and (c) the typed "Operative Record" that was dictated by the chief resident physician and signed by Rossavik, which lists Rossavik as the attending surgeon. Rossavik's evidentiary material is not inconsistent with a physician-patient status. His affidavit states that on the day of surgery he was the "attending professor of medicine." He explains that his teaching responsibilities include supervision, where necessary A licensed attending faculty physician--who, as a member of a state medical school faculty, is charged with delivery of medical care to patients--performs much the same function as an attending physician at a private health-care facility. 28 When the attending faculty physician agrees to treat a patient, the created legal relationship is regarded as personal and confidential--one of doctor and patient. The physician becomes bound to exercise ordinary care in the delivery of health services. 29 The law's ordinary care comprises the physician's use of best judgment in the exercise of the employed skills. The patient may expect from the faculty physician the same attention and care that would be legally due from a private health-care facility and from a physician in private practice. 30 An attending physician's legal relationship and obligation to the patient cannot be altered by hospital guidelines. 31

                of the residents and interns in the planning and carrying out of any surgery.  He gave Jackson a pre-surgery examination and was present during the initial stages of the procedure.   Rossavik's brief in support of summary process states that "as the attending physician" he was aware Jackson was scheduled for surgery and he consulted with the resident physicians assigned to perform the procedure.  According to Rossavik, he did not himself perform the surgery and he denies that the hospital rules 27 (then in force) impose on him a duty personally to perform or oversee the procedure in contest
                

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