McCarroll v. Doctors General Hosp.
| Decision Date | 10 May 1983 |
| Docket Number | No. 55893,55893 |
| Citation | 664 P.2d 382,1983 OK 54 |
| Parties | Nona McCARROLL and Vernis McCarroll, Appellants, v. DOCTORS GENERAL HOSPITAL, a corporation, Appellee. |
| Court | Oklahoma Supreme Court |
Appeal from District Court of Oklahoma County; Stewart Hunter, Trial judge.
Appeal from an order of the trial court granting summary judgment in favor of Appellee Doctors General Hospital by reason of the bar of 76 O.S.1981, § 18.
REVERSED AND REMANDED WITH DIRECTIONS.
James B. Browne, Oklahoma City, for appellants.
Stephen Peterson, Bana B. Blasdel, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for appellee.
This is an appeal from an order of the trial court which granted summary judgment in favor of Appellee, Doctors General Hospital, by reason of the bar of 76 O.S.1981, § 18.
Plaintiffs below brought suit in the district court against Dr. H., Lincoln Medical Center, Inc., neither of whom are parties to this appeal, and Doctors General Hospital for medical malpractice.
The suit was commenced on December 27, 1977. The petition alleges that on July 28, 1975, plaintiff, Nona McCarroll, underwent surgery for the repair of a hernia at Doctors General Hospital. In the course of the surgery performed by Dr. H., it is alleged that he negligently severed a femoral artery under the mistaken impression that it was the saphenous vein. On the day of the operation, Nona was transferred to the care of another physician who transferred her to Presbyterian Hospital to correct and repair her condition, and there she underwent surgeries, including successive amputations of her leg.
The allegations of malpractice directed against Doctors General Hospital are that it, through its agents:
1. Improperly draped Nona, thereby allowing Dr. H. to undertake improper surgical procedure;
2. Secured an admission form and consent to operate from Nona, but wholly and totally failed to warn her of the dangers inherent in the surgical procedure and thereby failed to secure proper informed consent to the surgical procedure; and
3. Engaged in improper follow up care, failed to secure adequate care and treatment for Nona by not watching her properly in the recovery area, failed to learn of her condition and her injury from the surgery within a reasonable time, and failed to notify a physician that Nona was having additional medical problems, in that she was in great pain and her leg was turning cold, within a reasonable time.
It is only the constitutionality and applicability of 76 O.S.1981, § 18 to the case at bar which is here presented on appeal.
This appeal involves only the hospital for its alleged negligent acts it is said to have committed separate and apart from the negligent act of Dr. H. in severing plaintiff's femoral artery. Under the circumstances in this case, the act of Dr. H. in allegedly concealing from the plaintiff his Dr. H.'s, negligence would not be imputable to the hospital absent proof of agency (of which there was none). See 51 Am.Jur.2d Limitations of Actions, § 150. However, as we view 76 O.S.1981, § 18, the question here is not whether the hospital concealed from the plaintiff its acts of alleged negligence so as to extend the limitations period, but whether, under the record, there remains a question of fact as to when the plaintiff "knew or should have known, through the exercise of reasonable diligence, of the existence of the ... injury or condition complained of," within the terms of § 18. Thus, the concealment by Dr. H. of his alleged negligence in severing plaintiff's femoral artery would be admissible only to explain why plaintiff did not learn of her injury or should not have learned of it until much later. Was the plaintiff excused by such concealment from making reasonable efforts to ascertain whether she had been injured by the failure of the hospital to render to her adequate follow-up care? We deem this question to be for the jury. 1 Our discussion follows.
The rule on review of a trial court's ruling on a motion for summary judgment is as expressed in Weaver v. Pryor Jeffersonian, Okl., 569 P.2d 967 (1977): "[A]ll inferences and conclusions to be drawn from underlying facts contained in such materials as affidavits, admissions, depositions, pleadings, exhibits and the like, must be viewed in light most favorable to party opposing the motion." With that rule in mind, we have reviewed such materials as appear in the record before us and are unable to agree with the trial court that the only reasonable inference to be drawn therefrom is that plaintiff either learned or should have learned of the hospital's negligence more than two years before she filed her action.
The record discloses that Nona entered defendant hospital for hernia surgery to be performed by Dr. H. Upon regaining consciousness, she discovered that she was in Presbyterian Hospital. Upon inquiring why she was there, she was told to ask Dr. H. After she was released from Presbyterian Hospital, and approximately three or four months following the hernia surgery, Nona went to see Dr. H. because she was having difficulties with her left foot and leg. Her foot was dropped, her toes were curled, and her heel was abnormal. Dr. H. told her that her condition was due to old age and hardening of the arteries. Nona did not seek to confirm Dr. H.'s expressed opinion because, as she stated, he was her doctor and she had confidence in him. Around October 1975, Nona consulted with Ed Smith, an attorney, regarding a dispute which she had with her medical insurance company over payment of medical bills, and on October 31, 1975, she signed a medical release to enable him to secure her medical records and secured her permission to engage the services of James B. Browne, another attorney, to assist him. Upon examination of the medical records, Browne advised Smith of the possibility of a medical negligence claim and recommended that the records be submitted to qualified medical personnel to determine whether a medical negligence claim existed. On February 6, 1976, Browne advised Smith that in his opinion a claim for medical negligence existed, and within two years thereafter, this suit was filed.
A part of the hospital medical records pertaining to Nona is an Operation Record dated July 28, 1975, signed by Dr. H. which states in part:
The foregoing summation demonstrates that, at the time the court below sustained defendant's motion for summary judgment, there was an unresolved question of fact to be determined by the jury as to whether Nona knew or should have known, through the exercise of reasonable diligence, of the existence of the injury or condition complained of within two years prior to December 27, 1977, the date this action was commenced.
We next consider when, under the provisions of 76 O.S.1981, § 18, the limitations therein set forth begins to run. Reduced to its essence for the purpose of resolving this issue, § 18 provides:
"An action for damages for injury or death ... shall be brought within two (2) years of the date the plaintiff knew, or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; ...."
Section 18 does not purport to create a new cause of action. It operates as a limitation upon existing rights of action. There is not, nor can there be, a cause of action for death, injury or condition unless the death, injury or condition is wrongful. Thus, the element of wrongfulness by necessary implication is an integral and inseparable part of the "action" referred to. Likewise, it is the wrongful "death, injury or condition complained of," the existence of which the plaintiff "knew, or should have known, through the exercise of reasonable diligence" which triggers the running of the limitations in § 18. Therefore, the statute begins to run from the date when the plaintiff knew, or should have known, through the exercise of reasonable diligence of the wrongful injury complained of.
The plaintiffs attack the constitutionality of 76 O.S.1981, § 18 on three grounds: (a) it denies similarly situated persons equal protection of the law in violation of Amendment XIV § 1 of the United States Constitution; (b) it is a special statute of limitations, in violation of the Oklahoma Constitution, Art. V § 46; and (c) it confers special immunities upon members of the medical profession, in violation of the Oklahoma Constitution, Art. V § 51. Plaintiffs further assert that even if the statute withstands the constitutional assault, its application to the case at bar requires that it bear prospectively and runs beginning with the effective date of the statute and that the action is therefore timely brought.
Title 76 O.S.1981, § 18 provides:
"An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state, whether based in tort, breach of contract or otherwise, arising out of patient care, shall be brought within two (2) years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; provided any action brought more than three (3) years from the date of the injury shall be limited to actual medical and surgical expenses incurred or to be incurred as a direct result of said injury, provided, however, the minority or incompetency when the cause of action arises will extend said period of limitation." (Emphasis added.)
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