Kluver v. Weatherford Hosp. Authority, No. 64458

• Court: Supreme Court of Oklahoma
• Writing for the Court: HODGES; SUMMERS; OPALA; SIMMS
• Citation: 1993 OK 85,859 P.2d 1081
• Parties: Perry KLUVER and Linda Kluver, individually and as parents and next friends of Brandon Kluver, Appellants, v. WEATHERFORD HOSPITAL AUTHORITY dba Southwestern Memorial Hospital, Appellee.
• Decision Date: 22 June 1993
• Docket Number: No. 64458

Page 1081

859 P.2d 1081 1993 OK 85 Perry KLUVER and Linda Kluver, individually and as parents
and next friends of Brandon Kluver, Appellants,
v.
WEATHERFORD HOSPITAL AUTHORITY dba Southwestern Memorial
Hospital, Appellee. No. 64458. Supreme Court of Oklahoma. June 22, 1993.
Rehearing Denied Oct. 12, 1993.

Page 1082

Appeal from the District Court of Custer County; Charley W. Barton, Judge.

Appeal from summary judgment for defendant hospital on grounds that appellants failed to comply with Oklahoma's Political Subdivision Tort Claims Act, Okla.Stat. tit. 51, §§ 151-170 (1981). Appellants argue that hospital was not political subdivision entitled to protection of Act's notice provision.

JUDGMENT REVERSED AND CAUSE REMANDED WITH INSTRUCTIONS.

Linn & Helms by William J. Skepnek, Libby Hougland, James W. Morris III, William R. Burkett, Oklahoma City, for appellants.

Foliart, Huff, Ottaway & Caldwell by G. Scott Ray, Oklahoma City, for appellee.

HODGES, Chief Justice.

The dispositive issue in this appeal of a medical malpractice action is whether the trial court erred in granting summary judgment to the defendant, Weatherford Hospital Authority doing business as Southwestern Memorial Hospital (the hospital). Summary judgment was based on the plaintiffs' failure to comply with the Political Subdivision Tort Claims Act (Act), Okla.Stat. tit. 51, §§ 151-170 (1981) (now the Governmental Tort Claims Act, Okla.Stat. tit. 51, §§ 151-172 (1991)). Evidence of whether the hospital was a true political subdivision entitled to the protection of the Act's notice provision was not presented to the trial court. The judgment must therefore be reversed and the cause remanded for such a determination.

This action was brought by Perry and Linda Kluver (the Kluvers), appellants. On October 19, 1981, the Kluvers' son Brandon, was born at the hospital in Weatherford, Oklahoma. Shortly after his birth, Brandon began experiencing difficulty in breathing. The following morning he was transferred to Childrens' Hospital in Oklahoma City where doctors determined he might have brain damage resulting from a lack of oxygen during the delivery.

According to Mrs. Kluver's deposition testimony, the physicians at Childrens' Hospital informed the Kluvers of the child's injury "within the first week" of his stay there. They also told Mrs. Kluver that Brandon "had gone without oxygen" for some time and that "it had occurred sometime during birth or after birth." Mr. Kluver testified on deposition that the physicians met with him and his wife "within just a few days of" Brandon being taken to Childrens' Hospital to view CAT scan results which showed damage to Brandon's brain.

Due to the brain damage, the physicians were concerned that Brandon might experience seizures. Consequently, he was placed on seizure medication for the first year of his life. Brandon experienced no seizures until June of 1983, when he was found in a catatonic state. This occurred approximately eight months after Brandon's

Page 1083

doctors at Childrens' Hospital took him off the seizure medication. The Kluvers again took Brandon to Childrens' Hospital where physicians were of the opinion his condition was the result of the initial birth trauma.

Two months after Brandon's seizure, the Kluvers sent a letter to the hospital's president concerning Brandon's condition and a malpractice action was filed one month later. After extensive discovery, the hospital moved for summary judgment arguing that (1) it qualified as a political subdivision as that term was defined in section 152(6)(d) of the Act, (2) the Act's notice provisions therefore applied to the case, (3) the Kluvers failed to comply with the notice provisions of the Act, and (4) this non-compliance barred the Kluvers' right to bring an action against the hospital. The trial court agreed and granted summary judgment to the hospital. From this judgment, the Kluvers have appealed.

The Kluvers argue that the Act does not apply in this case because the hospital does not qualify as a political subdivision. They point to a 1984 amendment to section 152(6)(d) which changed the definition of "political subdivision" so that it now exempts hospitals operating under a public trust from the Act's coverage. They seek retroactive application of the amendment to this case. However, the amendment became effective on October 1, 1985, long after this action was filed. See 1984 Okla.Sess. Laws 826.

Statutes are generally presumed to operate prospectively. Wickham v. Gulf Oil Corp., 623 P.2d 613, 615 (Okl.1981). This presumption is rebutted only where "the purposes and intention of the Legislature to give a retrospective effect are expressly declared or are necessarily implied from the language used." Id. See also: Hammons v. Muskogee Medical Center Authority, 697 P.2d 539, 542 (Okl.1985). No language in the amendment declares or implies an intent for retroactive application. But this does not necessarily mean that the hospital was a public trust. Two cases from this Court were decided after the trial court's decision and after the briefs of the parties were filed in this appeal. Both cases directly impact the issue of whether the hospital was a political subdivision in 1981.

In Roberts v. South Oklahoma City Hospital Trust, 742 P.2d 1077 (Okl.1986), and Fowler v. Norman Municipal Hospital, 810 P.2d 822 (Okl.1991), this Court determined whether certain hospitals were public trusts making them political subdivisions. In both cases, the injury occurred before the 1984 amendment to the Act which excluded "any hospital operating under a trust authority" from the definition of "political subdivision." Okla.Stat. tit. 51, § 152(8)(d) (Supp.1984). Each case found that the defendant hospital's trust agreement was illusory and merely provided a method of financing the construction of a health care facility. Therefore, the hospital was not a true political subdivision. Roberts, 742 P.2d at 1082; Fowler, 810 P.2d at 824-25.

Roberts articulated a list of factors which lead to the conclusion that the hospital was not a political subdivision for purposes of the Act. These factors were recited and applied in Fowler. They include the following:

(1) the hospital was managed by South Oklahoma City Hospital Management Corporation; (2) the bank account used by the management corporation was in the name of South Community Hospital; (3) business was conducted in the name of South Community Hospital; (4) the city did not approve hospital rules and regulations, staffing decisions, or day-to-day operations; (5) the hospital promoted a private image in its day-to-day operations; (6) fund drives were held in the hospital's name; (7) the hospital chose its own insurance carrier; (8) there was no direct benefit to the city; (9) the hospital did not receive money from the city; (10) the hospital did not deposit any money into the city treasury; and (11) the hospital operated as a private business without interference by or accountability to the city. The trust agreement was merely a "method of financing the construction

Page 1084

of the hospital." The hospital simply did not put patients on notice that it purported to be a political subdivision.

Fowler, 810 P.2d at 824. These factors were not considered in the present case because the trial court was not afforded an opportunity to consider these factors from Roberts and Fowler which were articulated after this case was pending before this Court.

This case was fully briefed and at issue before this Court prior to the decision in Roberts. It was one of several medical malpractice cases brought against South Community and other hospitals. See Chapman v. Pawnee Mun. Hosp., No. 66,182 (Apr. 18, 1989); Cox v. South Community Hosp., No. 65,729 (Feb. 21, 1989); Gibbs v. South Community Hosp., No. 65,061 (Feb. 21, 1989); Gurley v. Memorial Hosp., 770 P.2d 573 (Okl.1989); Williams v. Stout, No. 63,888 (Feb. 21, 1989). Roberts was the only case that decided the "true public trust" issue in published form. The other cases applied Roberts but were not published.

All these cases were filed while Roberts was awaiting this Court's decision. In the four cases brought against South Community Hospital, summary judgment in favor of the hospital was reversed and the plaintiffs prevailed on that issue. In the two cases brought against other hospitals, the matters were remanded to the trial court for the introduction of evidence on the issue.

None of these cases specifically raised the "true public trust" argument raised...