Trousdale v. City of Faith Hosp., Inc.

• Decision Date: 28 February 1995
• Docket Number: No. 3,No. 82426,82426,3
• Parties: 1995 OK CIV APP 37 John Ervin TROUSDALE, Appellant v. CITY OF FAITH HOSPITAL, INC., and City of Faith Medical & Research Center, Inc., Appellees. Court of Appeals of Oklahoma, Division
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 678

892 P.2d 678

1995 OK CIV APP 37

John Ervin TROUSDALE, Appellant v. CITY OF FAITH HOSPITAL, INC., and City of Faith Medical &amp Research Center, Inc., Appellees.

No. 82426.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.

Court of Appeals of Oklahoma Division No. 3.

Feb. 28, 1995.

Appeal from the District Court of Tulsa County; Gail W. Harris, Judge.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

Donald G. Hopkins, Tulsa, for appellant.

Scott D. Cannon and Richard D. Wagner, Wagner, Stuart & Cannon, Tulsa, for appellees.

OPINION

GARRETT, Chief Judge:

John Ervin Trousdale (Appellant) sought medical treatment at City of Faith Medical & Research Center, Inc. (Clinic). In connection with the medical treatment, Appellant was scheduled to enter City of Faith Hospital, Inc. (Hospital) and be operated on by Dr. Michael Meistrell. After the operation, Appellant sued Hospital and Clinic ¹ (collectively, Appellees) for damages. He alleged medical malpractice.

Each Appellee filed a motion for summary judgment. Both motions were sustained. However, Appellant was allowed to amend his petition to include a cause of action alleging Appellees were negligent because they failed to obtain Appellant's informed consent. ² Each Appellee filed a motion for summary judgment on the cause of action based on a lack of informed consent. Appellant responded. The court sustained the motions.

Appellant now contends he presented evidence sufficient to establish a prima facie case of failure to warn, and the court erred in sustaining Clinic's motion for summary judgment because it had a duty to warn Appellant of complications from the surgery and a duty to obtain his informed consent. Appellant now concedes Hospital had no such duty and recites the holding of Van Cleave v. Irby, 204 Okla. 689, 233 P.2d 963 (1951). The Van Cleave Court held that where a patient employed a physician of his or her own choice and enters a hospital operated by a lessee, and the physician was not a servant, agent or employee of the lessee nor acting under the lessee's direction, but was acting on his own account as a physician and exercising an independent employment in giving the treatment, the lessee of the hospital was not liable for injuries sustained by the patient because of alleged negligence of the physician in administering the treatment.

However, Appellant contends Clinic is liable because it is composed of physicians that act as owners and operators. He contends the Clinic and the doctor were so closely linked, Clinic should be held liable for Dr. Meistrell's failure to warn.

The elements of informed consent are nondisclosure, causation and injury. Through evidentiary materials, Appellant has established a prima facie case of a lack of informed consent. While there was no duty on the part of the hospital to disclose to Appellant the possibility of complications arising from a medical procedure, this does not extend to Clinic. Vicarious liability of Clinic under the doctrine of respondeat superior may exist if Appellant can show that Dr....