Tice v. Pennington, 94,171.

• Decision Date: 30 May 2001
• Docket Number: No. 94,171.,94,171.
• Citation: 30 P.3d 1164,2001 OK CIV APP 95
• Parties: Mikal Shon TICE and Linda Welch, Plaintiffs/Appellants, v. Larry PENNINGTON, M.D. and State of Oklahoma (Oklahoma Memorial Hospital), Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

30 P.3d 1164

2001 OK CIV APP 95

Mikal Shon TICE and Linda Welch, Plaintiffs/Appellants, v. Larry PENNINGTON, M.D. and State of Oklahoma (Oklahoma Memorial Hospital), Defendants/Appellees.

No. 94,171.

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

May 30, 2001.

David W. Edmonds, Ellen A. Tallant, El Reno, Edmonds, Cole, Hargrave, Givens & Witzke, Oklahoma City, OK, for Plaintiffs/Appellants.

J. William Conger, Ryan F. Wilson, Hartzong, Conger & Cason, Oklahoma City, OK, for Defendants/Appellees.

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

MEMORANDUM OPINION

RAPP, P.J.

¶ 1 The trial court plaintiffs, Mikal Shon Tice ("Shon") and Linda Welch ("Linda") appeal the trial court decision granting summary judgment to the trial court defendant, State of Oklahoma, Oklahoma Memorial Hospital ("Hospital"). The plaintiffs have settled with the remaining trial court defendant, Larry Pennington, M.D. ("Pennington") and the trial court's judgment presented for review is a final, appealable order.

I. Background

¶ 2 Hospital is a State institution and claims against it are subject to the Oklahoma Tort Claims Act. Pennington was a teacher at the Hospital and a practicing surgeon.

¶ 3 Shon underwent a kidney transplant in 1991. Pennington was the surgeon. This transplant failed immediately while he was still on the operating table because the donor kidney was incompatible due to conflicting blood types. He received a Type "A" kidney but he is Type "O." This necessitated that Linda, Shon's mother, provide a kidney.

¶ 4 Neither Shon nor his mother, Linda, were informed about the mistakes resulting in the donor kidney failure. The facts and inferences, taken favorably for Shon and Linda 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 Shon and Linda. 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 Shon's kidney rejection in 1991 and through ensuing years and came close to replicating the mismatch of kidneys in others. ¶ 5 Another teaching physician, in at least March 1996, became aware of the Hospital's inadequacies and the fact that Shon and Linda had not been informed of the reason for the donor transplant failure and need for Linda to donate a kidney. That physician wrote a series of letters and memoranda to Hospital authorities about the problems, but apparently without achieving any reforms. Then, subsequent to February 1998, he contacted Shon's current physician. In May 1998, Shon's physician informed both him and Linda of the reason for the 1991 operating room donor kidney transplant failure. This, according to the summary judgment record, would be the first time they learned of the reason for the donor kidney transplant failure.

¶ 6 In August 1998, a tort claim was filed and thereafter rejected. This litigation was instituted and Hospital moved for summary judgment. The Hospital defense is that the claim is time-barred and that the date of discovery does not apply. The trial court granted summary judgment. Shon and Linda appeal.

II. Standard of Review

¶ 7 The appellate standard of review in summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. This means without deference. Hulett v. First National Bank & Trust Company In Clinton, 1998 OK 21, 956 P.2d 879; see Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). The pleadings and evidentiary materials will be examined to determine what facts are material and whether there is a substantial controversy as to one material fact. Sperling v. Marler, 1998 OK 81, 963 P.2d 577; Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940. All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the non-moving party. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051. Even though the facts may be uncontroverted, if reasonable persons may draw different conclusions from these facts summary judgment must be denied. Bird v. Coleman, 1997 OK 44, 939 P.2d 1123. Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the nonmoving party. N.C. Corff Partnership, Ltd. v. OXY, USA, 1996 OK CIV APP 92, 929 P.2d 288. When genuine issues of material fact exist summary judgment should be denied and the question becomes one for determination by the trier of fact. Brown v. Oklahoma State Bank & Trust Co. of Vinita, 1993 OK 117, 860 P.2d 230; Flowers v. Stanley, 1957 OK 237, 316 P.2d 840. Because the trial court has the limited role of determining whether there are any such issues of fact, it may not determine fact issues on a motion for summary judgment nor may it weigh the evidence. Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.

¶ 8 One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiff's claims or theories in order to prevail on motion for summary judgment. When a defendant moves for summary judgment without relying upon an affirmative defense, the defendant must show: 1) that no substantial factual controversy exists as to at least one fact essential to plaintiff's theory of the cause of action; and, 2) that the fact is in defendant's favor. Once a defendant has introduced evidentiary materials to establish these points, the plaintiff then has the burden of showing that evidence is available which justifies a trial of the issue. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 8, 977 P.2d 1040, 1044; Stephens v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441; Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946.

¶ 9 The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100, fn. 1. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991); Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.

III. Analysis and Review

¶ 10 The gist of the State's argument, in its motion for summary judgment, was that Shon's and Linda's claims are barred because they were not presented within one year from the date of the surgery that resulted in a rejected donor kidney or the use of Linda's kidney as a replacement. The Oklahoma Tort Claims Act, Section 156(B), requires presentment of the claim within one year of the date the loss occurs.¹

¶ 11 Shon and Linda argued for application of the Rule of Discovery. This Rule tolls the Statute of Limitations when a party is unaware of the existence of a claim. The Statute of Limitations, as a general rule, functions to extinguish the remedy for a cause of action. It does not extinguish the cause of action itself. Samuel Roberts Noble Foundation, Inc. v. Vick, 1992 OK 140, 840 P.2d 619; In re John Deere 4030 Tractor, 1991 OK 79, 816 P.2d 1126. The commencement of the action stops the running of the statute of limitations so that the party may seek the remedy for the cause of action. In re John Deere 4030 Tractor, 1991 OK 79, ¶ 7, 816 P.2d 1126, 1129 fn. 1. According to the Rule of Discovery, the Statute of Limitations in tort actions does not preclude vindication of a right until such time as the person knows, or in the exercise of due diligence, should have known that the right existed. In re John Deere 4030 Tractor, 1991 OK 79, 816 P.2d 1126. When applicable, the Rule merely tolls the running of the Statute but the Rule does not change the date on which the Statute of Limitations commences. McVay v. Rollings Construction Inc., 1991 OK 102, 820 P.2d 1331; In re John Deere 4030 Tractor, 1991 OK 79, 816 P.2d 1126. An action for medical malpractice must be brought within two years of the date of discovery. 76 O.S.1991, § 18.

¶ 12 The alternative rule, which is the one here urged by Hospital, makes the time limit of Section 156(B) of the Oklahoma Tort Claims Act operate as a statute which affects the cause of action so that the Rule of Discovery does not toll the time limitation of the Act. Under the alternative rule, time limitation becomes a substantive element of the claim, that is, one condition to the exercise of a right. The Oklahoma Supreme Court has characterized the Act's time limitation as constituting a condition upon the right to pursue a claim.² Cruse v. Atoka County Board of Commissioners, 1995 OK 143, ¶ 16, 910 P.2d 998, 1004.

¶ 13 Thus, the definitive question to be answered here is whether the failure to file a claim against the State within the statute's stated time limits results in the claim being barred under 51 O.S.1991, § 156(B) when the claim, which is being asserted, is not known because the State employees have actively prevented a claimant from discovery of the facts supporting a claim within the statute's stated time limits.³ This Court, for reasons herein set out, answers in the negative.

¶ 14 The answer to the question does not follow from a simple, mechanical application of the rule in Cruse. First, Cruse, as the claimant, did file a timely notice of claim and a timely lawsuit after the claim was denied. Cruse was fully aware of his "loss" and the need to present a claim. However, the claim was dismissed other than on it merits and then refiled. Hence, the ultimate holding in Cruse is that the savings provision of 12 O.S.1991, § 100 applies. Second, the case did not involve active concealment of the claim by...