Wing v. Lorton

• Decision Date: 10 October 2011
• Docket Number: No. 107,930.,107,930.
• Parties: Patricia Hawk WING and Bernard Hawk Wing, Appellants,v.Jay D. LORTON, M.D., and Eastern Oklahoma Orthopedic Center, Inc., Appellees.
• Court: Oklahoma Supreme Court

261 P.3d 1122

2011 OK 42

Patricia Hawk WING and Bernard Hawk Wing, Appellants,

v.Jay D. LORTON, M.D., and Eastern Oklahoma Orthopedic Center, Inc., Appellees.

No. 107,930.

Supreme Court of Oklahoma.

May 17, 2011.Rehearing Denied Oct. 10, 2011.

CERTIORARI TO THE COURT OF CIVIL APPEALS; Division 4¶ 0 This action for medical malpractice was brought against a physician and an orthopedic clinic for failure to diagnose and properly treat fractures in the patient's left foot resulting in disability. The trial court, Honorable Deborah C. Shallcross, granted summary judgment to the medical providers holding that the claim was untimely as a matter of law. The Court of Civil Appeals affirmed.CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED.Benjamin J. Butts, Butts & Marrs, P.L.L.C., Oklahoma City, for Appellants.Matthew B. Free, Best & Sharp, Tulsa, for Appellees.COLBERT, V.C.J.

¶ 1 The issue in this matter is whether the claim for medical malpractice is timely. Proper application of the discovery rule discloses that reasonable minds could differ as to when the plaintiff knew or should have known of the injury or condition resulting from the defendants' alleged failure to diagnose and provide proper treatment. Therefore, it was error for the lower courts to hold the claim was time-barred as a matter of law and the matter must be remanded for a determination by the trier of fact.

¶ 2 On February 10, 2006, Patricia Hawk Wing's car collided head on with a vehicle that veered into her lane. She was removed from her car with the “jaws of life” complaining of pain in her left leg and foot. Mrs. Hawk Wing was transported to Fairfax Hospital and on to St. Francis Hospital in Tulsa where she was treated by Dr. Jay D. Lorton, M.D., an orthopedic surgeon. Dr. Lorton performed surgery on Mrs. Hawk Wing's left leg on February 11th and 13th, but failed to order x-rays of her left foot. Mrs. Hawk Wing was discharged from the hospital on February 17, 2006.

¶ 3 By the time Mrs. Hawk Wing saw Dr. Lorton for a follow-up office visit on March 2, 2006, she believed that the pain and swelling in her left foot was caused by the impact of the accident and that her left foot must have been broken. Dr. Lorton advised that an x-ray was not necessary and that the foot was swollen from the accident and should improve. He told her to try to walk on her left foot. Mrs. Hawk Wing continued to complain of pain and swelling in her left foot during visits to Dr. Lorton between March 14 and April 13, 2006, when Dr. Lorton finally performed an x-ray at her insistence and discovered the fractures in her left foot. In April or May of 2006, Mrs. Hawk Wing requested that Dr. Lorton refer her to an orthopedic foot specialist because she believed she required surgery for her fractured toes. She claims that Dr. Lorton refused that request. Despite Mrs. Hawk Wing's diminished confidence in Dr. Lorton, she continued to receive treatment from him on several occasions until her last visit on August 10, 2006.

¶ 4 During this time, Dr. Lorton reassured Mrs. Hawk Wing repeatedly that she would not know the permanent condition of her foot for six to twelve months and that with the passage of time she might be able to walk without assistance, without severe pain, and without the need to use a wheelchair. He told her that her foot fractures were healing, the alignment in her foot was satisfactory, and that he detected no gross instability of her foot. He continued to advise her, during this time, to try to walk on her left foot.

¶ 5 On October 19, 2006, Mrs. Hawk Wing saw another physician for the first time. He told her that, contrary to Dr. Lorton's reassurances since April of 2006, she would not walk again, that he could not imagine a doctor having her walk on her foot, and that he would testify that she should not have been walking on her foot. Two subsequent treating physicians confirmed that she would not walk again.

¶ 6 This action was brought on August 8, 2008, by Mrs. Hawk Wing and her husband. The petition alleged that Dr. Lorton and Eastern Orthopedic Medical Center, Inc. (Defendants) treated Mrs. Hawk Wing for injuries caused by the February 10, 2006, automobile accident. It further alleged that “[d]uring the course of this treatment, defendants negligently failed to properly diagnose and treat fractures in plaintiff's left foot, proximately causing Patricia Hawk Wing to suffer physical and emotional pain and suffering, physical injury, physical impairment, disability, loss of function, lost income and medical expenses.” In addition to seeking damages for these injuries, the petition asserted a claim for loss of consortium on behalf of Mr. Hawk Wing.

¶ 7 Defendants moved for summary judgment arguing that the claims were barred by the two-year medical malpractice statute of limitations which 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, however, the minority or incompetency when the cause of action arises will extend said period of limitation.

Okla. Stat. tit. 76, § 18 (Supp.2002). Defendants urged that “[b]y April, 2006, and before, Mrs. Hawk Wing had sufficient information (left foot pain, diagnosis of left foot fractures on April 13, 2006) regarding her left foot to start the running of the statute of limitations.” They further urged that Plaintiffs “failed to bring their cause of action within two (2) years from the date Mrs. Hawk Wing knew or should have known through the exercise of reasonable diligence, of the existence of her injury (fractured left toes).”

¶ 8 Plaintiffs responded to the motion for summary judgment stating:

Plaintiff's broken foot is not the wrongful injury or condition that she seeks compensation for. She does not hold Dr. Lorton responsible for her broken foot. It was broken in the car accident. Rather, she claims that the delay in the diagnosis of her broken foot caused her to have permanent, severe, disabling pain which prevents her from walking and requires the use of a wheelchair. Accordingly, the statute of limitations did not begin to run until Patricia Hawk Wing knew, or should have known, that the delay in diagnosis and treatment would cause her condition.

The trial court granted summary judgment holding that the action was time barred as a matter of law and a divided Court of Civil Appeals affirmed.

STANDARD OF REVIEW

¶ 9 The appellate standard of review of a summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. The evidentiary materials will be examined to determine what facts are material and whether there is a substantial controversy as to any material fact. See 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 nonmoving party. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. Even when the facts are not controverted, if reasonable persons may draw different conclusions from the facts summary judgment must be denied. Bird v. Coleman, 1997 OK 44, ¶ 20, 939 P.2d 1123, 1127. 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, Inc., 1996 OK CIV APP 92, ¶ 8, 929 P.2d 288, 292. 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. Okla. State Bank & Trust Co., 1993 OK 117, ¶ 7, 860 P.2d 230, 233. Because the trial court has the limited role of determining whether there are 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.

¶ 10 “To prevail as the moving party on a motion for summary adjudication, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff's theory of recovery or (b) prove each essential element of an affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action.” Akin v. Mo. Pac. R.R. Co., 1998 OK 102, ¶ 9, 977 P.2d 1040, 1044. The statute of limitations is an affirmative defense. Okla. Stat. tit. 12, § 2008(C)(18) (Supp.2009). Therefore, Defendants as movants were required to demonstrate that the record reveals no substantial controversy as to any material fact regarding the statute of limitations and that the uncontroverted facts are in their favor.

ANALYSIS

¶ 11 “The underlying purpose of statutes of limitations is to prevent the unexpected effort at enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution for a long time.” Seitz v. Jones, 1961 OK 283, ¶ 11, 370 P.2d 300, 302. They are “intended to run against those who are neglectful of their rights, and who fail to use reasonable and proper diligence in the enforcement thereof.” Id. “[A] reasonably prudent person is required to pursue his claim with diligence. Statutes of limitation were not designed to help those who negligently refrain from prosecuting inquiries plainly suggested by the facts.” Daugherty v. Farmers Coop., 1984 OK 72, ¶ 12, 689 P.2d 947, 950–951.

¶ 12 “The statute of limitations begins to run when the cause of action accrues. A cause of action...