Sparks v. Hicks

• Decision Date: 20 February 1996
• Docket Number: No. 82203,82203
• Citation: 912 P.2d 331
• Parties: Betty J. SPARKS, Appellant, v. David HICKS, M.D., and Orthopedic Specialists of Tulsa, Inc., an Oklahoma Corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 331

912 P.2d 331

1996 OK 20

Betty J. SPARKS, Appellant, v. David HICKS, M.D., and Orthopedic Specialists of Tulsa Inc., an Oklahoma Corporation, Appellees.

No. 82203.

Supreme Court of Oklahoma.

Feb. 20, 1996.

Certiorari to the Court of Appeals, Division I Appeal From the District Court of Tulsa County; Donald C. Lane, Trial Judge.

Gerald D. Swanson, Robert T. Rode, Tulsa, for Appellant.

John H.T. Sheridan, Catherine L. Campbell, Best, Sharp, Holden, Sheridan, Best & Sullivan, Tulsa, for Appellees.

SIMMS, Justice.

Betty J. Sparks, plaintiff below, appeals the summary judgment granted in favor of Defendants/Appellees, David Hicks, M.D., and Orthopedic Specialist of Tulsa, Inc. (OST), on her action for negligence and abandonment by Dr. Hicks. The Court of Appeals reversed the trial court's judgment on the grounds that the evidentiary materials were insufficient to warrant summary judgment.

Certiorari was granted to consider whether summary judgment was proper in this case. Because we find the undisputed facts show that Dr. Hicks did not abandon his patient, Sparks, the opinion of the Court of Appeals is vacated, and the judgment of the district court is affirmed.

Pursuant to complaints of pain in her hip and leg, Sparks was examined by Dr. Hicks who ordered diagnostic tests including magnetic resonance imaging (MRI). The MRI suggested a herniated disk and Dr. Hicks felt that surgery would probably be the next course of action. However, before performing surgery, he wanted to have a myelogram done to confirm the diagnosis and to have a medical consultation done with an internist to see if surgery would be safe for Sparks due to other medical concerns. These other medical concerns included high blood pressure atherosclerotic coronary artery disease, angina pectoris and chronic obstructive pulmonary disease resulting from years of smoking.

Dr. Hicks' records on Sparks reveal the following notation:

"I discussed with the patient and her son my feelings regarding her medical care. I would like to obtain a myelogram and perhaps a post-myelogram computerized axial tomographic scan, if it seems appropriate. I would like to obtain medical consultation, prior to proceeding with surgical intervention to insure that it is as safe as possible, prior to proceeding with surgery, if in fact it seems surgery is most appropriate. I have asked Dr. James Bailey to see Ms. Sparks in medical consultation and he will see her after the myelogram and proceed with those studies felt to be consistent with good medical care."

On August 5th, Sparks was admitted to the hospital for the myelogram which confirmed the herniated disk diagnosis and the appropriateness of elective surgery. Sparks requested a second opinion, and Harry E. Livingston, M.D., a partner with Dr. Hicks at OST, also concluded surgery would be appropriate. Dr. Hicks scheduled Sparks' surgery for August 7th, and Sparks remained in the hospital until that date. Dr. Bailey, the internist performing the medical consultation to see if surgery was safe, examined Sparks the following day, August 6th. Dr. Bailey's tests confirmed Dr. Hick's concerns about the safety of surgery as he found significant blockage of blood flow in Sparks' heart. This blockage was seen in a total occlusion of the right internal carotid artery and a fifty percent obstruction of the left internal carotid artery. He noted that he would call Dr. Hicks with the results of his examination the next morning, August 7th.

On August 7th, when it came time for surgery, Dr. Hicks had not yet received Dr. Bailey's report. Without Dr. Bailey's opinion that surgery was safe for Sparks, Dr. Hicks canceled the surgery and began arranging for Sparks to be dismissed from the hospital to have surgery the following week. When Sparks' son was informed that Dr. Hicks was not going to perform the surgery that day, he became angry and confronted one of Dr. Hicks' nurses, threatening to call Sparks' attorney. Feeling that the mutual trust necessary for him and his patient to proceed was destroyed by Sparks' sons actions, Dr. Hicks refused to treat Sparks further.

In an addendum to Sparks' clinical chart, Dr. Hicks notes the situation as follows:

"... The myelogram was performed which basically confirmed the findings on the MRI and I asked James Bailey, an internist to see her. It was Dr. Bailey's opinion that a more detailed medical evaluation was in order and he did in fact complete this medical evaluation, however he was unable to make his final ascertainment that he felt surgery was safe until this morning, 8-7-92. I had talked with the patient about this. Unfortunately, her son became quite irate at # 1, the fact that we were not able to operate when we had originally planned and that # 2, since it was going to be next week before I could operate that we would consider sending her home over the weekend and he threatened when he was talking to my nurse, Kim Norton over the telephone that if we sent her home over the weekend he was going to call her attorney. In my opinion, this sequence of events has resulted in a basic destruction of the mutual trust necessary for me and the patient to proceed with a operative intervention. I have given her the name of Dr. Ben Benner, Dr. Anthony Billings, Dr. John Coates and Dr. Harry Livingston. I have spoken with Dr. Benner and Dr. Billings already and they have agreed that she could come in to see them in their office next week if she so desires. I will speak to Dr. Coates."

Although this addendum is dated August 7th, it was not signed by Dr. Hicks until August 10. The hospital's "Progress Record" on Sparks shows that on August 7th, Dr. Hicks noted that he would talk with Sparks about other physicians from whom she might receive treatment. Additionally, in the August 7th hospital records, the attending nurse noted the following in the patient data area "Pt. requested Dr. John Coate's office phone number. States she was...