Lavender v. Craig Gen. Hosp.

• Decision Date: 06 August 2013
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.,No. 111138.,111138.
• Citation: Lavender v. Craig Gen. Hosp., 308 P.3d 1071 (Okla. Civ. App. 2013)
• Parties: Kalen LAVENDER, Plaintiff/Appellant, v. CRAIG GENERAL HOSPITAL, Defendant/Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

308 P.3d 1071

Kalen LAVENDER, Plaintiff/Appellant,

v.CRAIG GENERAL HOSPITAL, Defendant/Appellee.

No. 111138.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

Aug. 6, 2013.

Appeal from the District Court of Craig County, Oklahoma; Honorable Terry H. McBride, Trial Judge.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

George Mullican, Christopher D. Wolek, Diane M. Black, Gibbs, Armstrong, Borochoff, Mullican, & Hart, P.C., Tulsa, Oklahoma, for Plaintiff/Appellant.

W. Michael Hill, Michael D. Goss, Don W. Danz, Secrest, Hill, Butler & Secrest, Tulsa, Oklahoma, for Defendant/Appellee.

JANE P. WISEMAN, Judge.

¶ 1 Plaintiff Kalen Lavender appeals from a trial court order granting Defendant Craig General Hospital's motion to dismiss. This appeal proceeds according to Supreme Court Rule 1.36, 12 O.S.2011, ch. 15, app. 1 ¹, without appellate briefing. After review of the record on appeal, we reverse the trial court's order and remand this case for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 On July 19, 2005, Plaintiff “underwent a diagnostic laparoscopic procedure, performed by Dr. Thomas J. Byrne at Craig General Hospital.” According to the amended petition, Dr. Byrne “sterilized Plaintiff by tubal ligation” without her consent. She was 21 years-old at the time of the surgery. After the operation, Dr. Byrne informed Plaintiff the sterilization was medically necessary. Plaintiff states she believed his representations.

¶ 3 On March 27, 2008, Plaintiff sought reversal of the tubal ligation and was informed by another physician that the tubal ligation was not medically necessary and was not reversible.

¶ 4 On March 25, 2010, Plaintiff initiated a medical negligence action against Dr. Byrne for performing unnecessary medical treatment without her consent and for failing to provide Plaintiff with appropriate medical care. She states Dr. Byrne also “actively concealed the facts relating to the sterilization procedure, his background, credentialing and competency to practice medicine.” Plaintiff further asserted claims for intentional infliction of emotional distress and battery against Dr. Byrne and requested punitive damages for Dr. Byrne's wanton and reckless disregard for Plaintiff's rights and for his intentional, malicious conduct.

¶ 5 On March 22, 2012, Plaintiff filed a motion to amend her petition to add Hospital to the lawsuit. Plaintiff states in the motion that after taking the deposition of Nurse Betty Winfrey on August 25, 2011, she determined that Hospital was also medically negligent and should be added as a party to the lawsuit. Dr. Byrne objected to Plaintiff's request to amend the petition to add Hospital. The trial court granted Plaintiff's motion and she filed her amended petition on May 18, 2012. In the amended petition, Plaintiff states that she “has complied with all conditions precedent under the [Governmental Tort Claims Act] GTCA regarding notice to Craig General Hospital.”

¶ 6 In response to the amended petition, Hospital filed a special entry of appearance and motion to dismiss alleging that Plaintiff failed to state a claim against it because she did not timely file a notice of tort claim as required by the GTCA. On November 2, 2011, Plaintiff issued her “Notice of Governmental Tort Claim” to Hospital. Hospital asserts the “[n]otice was more than six (6) years after her date of loss which is more than five (5) years after the exclusive one (1) year statute of limitations contained in the [GTCA],” thus barring her claims.

¶ 7 Plaintiff counters that she had no notice of Hospital's negligence until August 25, 2011, the date of Betty Winfrey's deposition. According to Plaintiff, Nurse Winfrey testified that Hospital “[s]taff failed to follow [its] protocol and obtain two witnesses['] initials to the change in operative procedure” and that it “was hospital protocol to take a ‘time out’ before a tubal ligation was performed.... to give the patient notice and to determine medical necessity.” Winfrey testified she could not find the form documenting the “time out” in Plaintiff's case. Plaintiff states that the day after Winfrey's deposition, she submitted a notice of tort claim against Hospital to the “Department of Central Services, Risk Management Division.” On September 2, 2011, she was informed by the Department that it did not handle such claims against Hospital. On November 2, 2011, Plaintiff submitted her notice of tort claim directly to Hospital. Plaintiff claims Hospital did not respond to the Notice and it was deemed denied 90 days later.

¶ 8 The trial court granted Hospital's motion to dismiss and dismissed all claims against Hospital with prejudice.²

¶ 9 Plaintiff appeals.

PROCEDURAL ISSUES

¶ 10 The trial court failed to comply with 12 O.S.2011 § 2012(G) after it granted Hospital's motion to dismiss for failure to state a claim. Section 2012(G) provides in relevant part: “On granting a motion to dismiss a claim for relief, the court shall grant leave to amend if the defect can be remedied and shall specify the time within which an amended pleading shall be filed.” 12 O.S.2011 § 2012(G). “In order for the courts to dismiss a claim for failure to state a cause of action without giving the plaintiff the opportunity to amend, it must appear that the claim does not exist rather than the claim has been defectively stated.” Fanning v. Brown, 2004 OK 7, ¶ 23, 85 P.3d 841, 848. The trial court dismissed the case without affording Plaintiff an opportunity to amend to plead additional facts sufficient to state a claim under a recognized legal theory or to argue for an extension of existing law to support the claims. However, because we conclude this motion to dismiss must be treated as a motion for summary judgment as discussed below, the “opportunity to amend” provision of § 2012(G) is not applicable. ³

¶ 11 Title 12 O.S.2011 § 2012(B) provides:

If, on a motion asserting the defense numbered 6 of this subsection to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment....

Correspondence to Hospital providing it with notice of a governmental tort claim is attached as an exhibit to Hospital's motion to dismiss for failure to state a claim. In her response to Hospital's motion to dismiss, Plaintiff attaches deposition testimony and additional correspondence regarding the notice of tort claim and she argues the effect of these materials extensively in her response.

¶ 12 Matters outside the pleadings were presented to, and not excluded by, the trial court, and we thus treat Hospital's motion to dismiss as one for summary judgment. Davis v. Progressive N. Ins. Co., 2012 OK CIV APP 98, ¶ 7, 288 P.3d 270, 271 (citing State ex rel. Wright v. Oklahoma Corp. Comm'n, 2007 OK 73, ¶ 48, 170 P.3d 1024, 1039)(converting a motion to one for summary judgment because matters outside the pleadings were attached as exhibits including correspondence and affidavits).

STANDARD OF REVIEW

¶ 13 Because summary judgment resolves issues of law, we review such a judgment de novo “pursuant to the plenary power of the appellate courts and without deference to the trial court.” Glasco v. State ex rel. Oklahoma Dep't of Corr., 2008 OK 65, ¶ 8, 188 P.3d 177, 181. We will not reverse a grant of summary judgment when the record on appeal establishes no substantial controversy of material fact and that one party is entitled to judgment as a matter of law. Brown v. Alliance Real Estate Grp., 1999 OK 7, ¶ 7, 976 P.2d 1043, 1045. “The court should not grant summary judgment where reasonable minds could draw different inferences or conclusions from the facts.” Id.

ANALYSIS

¶ 14 The question we confront is whether Plaintiff's claims against Hospital are barred as a matter of law pursuant to the provisions of the Oklahoma Governmental Tort Claims Act, 51 O.S. §§ 151–200. The GTCA controls lawsuits brought against the State of Oklahoma and political subdivisions. To file a lawsuit against the State or a political subdivision, a plaintiff must first provide written notice of the claim within one year of the date of loss. 51 O.S. Supp.2005 § 156(B). Pursuant to 51 O.S.2011 § 157(A)⁴, if the state or political subdivision does not approve the claim within 90 days, it is deemed denied. Section 157(B) then requires plaintiff to file suit within 180 days after denial of the claim.

¶ 15 Plaintiff relies heavily on Tice v. Pennington, 2001 OK CIV APP 95, 30 P.3d 1164, in which a child underwent a kidney transplant which failed immediately during the surgery “because the donor kidney was incompatible due to conflicting blood types,” thereby making it necessary for his mother to donate a kidney. Id. at ¶ 3, 30 P.3d at 1166. According to subsequent facts:

Neither [child] nor his mother ... were informed about the mistakes resulting in the donor kidney failure. The facts and inferences, taken favorably for [child and mother] for purposes of summary judgment, reveal that Pennington and another Hospital employee withheld the facts relative to conflicting blood types and actively concealed those facts from [child and mother]. In addition, the Hospital failed to have adequate procedures, or failed to follow existing procedures, which would prevent the implant of a wrong kidney in a patient. A pattern of errors was documented from sometime prior to [child's] kidney rejection in 1991 and through ensuing years and came close to replicating the mismatch of kidneys in others.

Id. at ¶ 4, 30 P.3d at 1166. Around March 1996, another physician became aware of the hospital's inadequacies as well as the fact that mother and child had not been informed of the reason for the transplant failure and for mother's need to donate her kidney. Id. at ¶ 5, 30 P.3d at 1167. After February 1998,...