Redwine v. Baptist Medical Center of Oklahoma, Inc.

• Decision Date: 10 May 1983
• Docket Number: No. 53388,53388
• Citation: 1983 OK 55,679 P.2d 1293
• Parties: Greathel REDWINE, surviving spouse of Earl Forrest Redwine, Deceased, Appellant, v. BAPTIST MEDICAL CENTER OF OKLAHOMA, INC., an Oklahoma corporation; Cardiovascular Clinic, Inc., an Oklahoma corporation; Baptist General Convention of the State of Oklahoma, an Oklahoma corporation; and Greer, Carey, Zuhdi, Hawley, and Hartsuck, Inc., an Oklahoma corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 1293

679 P.2d 1293

1983 OK 55

Greathel REDWINE, surviving spouse of Earl Forrest Redwine Deceased, Appellant, v. BAPTIST MEDICAL CENTER OF OKLAHOMA, INC., an Oklahoma corporation; Cardiovascular Clinic, Inc., an Oklahoma corporation; Baptist General Convention of the State of Oklahoma, an Oklahoma corporation; and Greer, Carey, Zuhdi Hawley, and Hartsuck, Inc., an Oklahoma corporation, Appellees.

No. 53388.

Supreme Court of Oklahoma.

May 10, 1983.

Rehearings Denied May 8, 1984.

Certiorari to the Court of Appeals, Division 2.

Action brought by surviving spouse for wrongful death of decedent against surgeons and hospital for alleged medical malpractice. District Court of Oklahoma County, Honorable Charles C. Owens, sustained special demurrer of defendant, Greer, Carey, Zuhdi, Hawley and Hartsuck, Inc., to petition and demurrer of Baptist General Convention of the State of Oklahoma to the petition. Plaintiff appealed to the Supreme Court which assigned the cause to Court of Appeals, Division 2, for opinion. The Court of Appeals reversed the ruling of the trial court. Defendants applied for certiorari.

CERTIORARI PREVIOUSLY GRANTED; DECISION OF COURT OF APPEALS WITHDRAWN; JUDGMENT OF TRIAL COURT REVERSED; CAUSE REMANDED.

John W. Norman Inc. by Ronald W. Horgan, Oklahoma City, for appellant.

James D. Foliart, Glen D. Huff, John M. Perry III, Foliart, Mills & Niemeyer, Oklahoma City, for appellees, Baptist Medical Center of Oklahoma, Inc. and Baptist General Convention of the State of Okl.

Robert C. Margo, Oklahoma City, for appellees, Cardiovascular Clinic, Inc., Greer, Carey, Zuhdi, Hawley, and Hartsuck, Inc.

LAVENDER, Justice.

Plaintiff below, as surviving spouse of Earl Forrest Redwine, brought suit in the district court against Baptist Medical Center of Oklahoma, Inc., and Cardiovascular Clinic, Inc., alleging decedent expired while undergoing an open-heart surgery on March 9, 1976, at Baptist Medical Center of Oklahoma, Inc., when air appeared in the aortic line and entered the aorta, causing decedent's death. Plaintiff alleged that defects in equipment sold and utilized by both defendants and the negligence of the agents of both defendants were the proximate cause of the death. The suit was filed on March 8, 1978.

On May 22, 1978, plaintiff filed an amended petition in which plaintiff alleged that decedent was a patient at defendant Baptist Medical Center of Oklahoma, Inc., and the Baptist General Convention of the State of Oklahoma, an Oklahoma corporation, and that decedent was under the care of these corporations and Cardiovascular Clinic, Inc. and Greer, Carey, Zuhdi, Hawley, and Hartsuck, Inc., an Oklahoma corporation. Plaintiff further alleged that upon inquiry as to the cause of decedent's death, the agents of defendants falsely advised that the surgery had been completed and further advised that the death was simply "one of those things." Upon making inquiry of the Chief Medical Examiner of the State of Oklahoma, she received a letter from the Examiner dated February 16, 1978, setting forth the true cause of the death, the letter being her first knowledge of the circumstances of her husband's death.

On February 6, 1979, the trial court sustained the Motion for Summary Judgment of the defendant, Cardiovascular Clinic, Inc. for the reason that pertinent exhibits show that said defendant did not participate in the surgery; sustained the Special Demurrer of defendant Greer, Carey, Zuhdi, Hawley and Hartsuck, Inc. for the reason that plaintiff's action was not timely filed.

On February 6, 1979, the trial court also sustained the Motion for Summary Judgment of defendant Baptist Medical Center of Oklahoma, Inc., on the ground that the pleadings, affidavits, exhibits and briefs on file show that Baptist Medical Center of Oklahoma, Inc. was not in existence at the time of the operation and that none of its agents participated in the actions complained of. The trial court further sustained the demurrer of defendant Baptist General Convention of the State of Oklahoma on the ground that the action against it was not timely filed.

I.

Plaintiff appeals on various grounds which will be considered in turn.

Plaintiff's cause of action accrued on the date of the death of her husband. ¹ The applicable statute of limitations at that time was 12 O.S.1981, § 1053. ² After the action had accrued, but before the statute of limitations had run, the Legislature enacted 76 O.S.1981, § 18, ³ effective April 8, 1976, thirty days after the death.

In Magnolia Petroleum Co. v. Watkins, ⁴ we said (625):

"The principle is well established in this jurisdiction, that a statute of limitations, in so far as it affects rights of action in existence, when the statute is passed, be held, in the absence of a contrary provision, to begin when the cause of action was first subjected to its operation."

Therefore, the intercession of 76 O.S.1981, § 18 gave plaintiff two years from April 8, 1976, or two years from the date plaintiff knew or should have known, through the exercise of reasonable diligence of the existence of the death, injury or condition complained of in which to bring her action.

Plaintiff alleged in her amended petition that she first became aware of the equipment malfunction shortly after February 16, 1978, when she obtained information from the Chief Medical Examiner of the State of Oklahoma after being told that her husband's death was simply "one of those things." Greer, Carey, Zuhdi, Hawley and Hartsuck, Inc. was made a party to the suit on May 30, 1978, and entered its appearance in the case, a time well within two years from February 16, 1978. Whether plaintiff exercised "reasonable diligence" in ascertaining the cause of her husband's death is a question of fact to be determined by the jury, and this is so whether we regard Greer, Carey, Zuhdi, Hawley and Hartsuck, Inc.'s pleading described as a "special demurrer" as a demurrer, or as a motion for summary judgment as we did in Green v. Huff. ⁵

II.

In Flowers v. Stanley, ⁶ we held that where the period of limitations starts when the claimant knew, or, in the exercise of reasonable diligence would have discovered the act which gives rise to the claim, the beginning of the running of the statute of limitations is usually to be determined from the facts and circumstances of the particular case; and, where these are such that reasonable men might reach conflicting opinions thereon, the issue is a question for determination by the trier of the facts. ⁷ In so determining, we need not address the question of whether Dr. Hartsuck's statement to plaintiff that her husband's death was simply "one of those things" constitutes a fraudulent representation which tolls the statute of limitations. Whether or not the statement constituted fraudulent concealment, it was at least a circumstance which tends to explain her failure to make an earlier determination of the cause of death, and its weight is for the jury to determine.

The rule on review of a trial court's ruling on a motion for summary judgment is as expressed in Weaver v. Pryor Jeffersonian: ⁸

"[A]ll inferences and conclusions to be drawn from the underlying facts contained in such materials as affidavits, admissions, depositions, pleadings, exhibits and the like, must be viewed in light most favorable to the party opposing the motion."

We therefore hold that the trial court committed error in sustaining the special demurrer of Greer, Carey, Zuhdi, Hawley and Hartsuck, Inc.

What we have heretofore said applies equally to the demurrer of defendant Baptist General Convention of the State of Oklahoma on the issue of the running of the statute of limitations, and we likewise hold that the trial court erred in sustaining its demurrer to plaintiff's petition. Baptist General Convention of the State of Oklahoma was named as a defendant in plaintiff's second amended petition. Summons was served upon it on May 23, 1978.

III.

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...