BENTLEY v. KIRK

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BENTLEY v. KIRK

2015 OK CIV APP 43

348 P.3d 1112

Case Number: 113127

Decided: 04/08/2015

Mandate Issued: 05/07/2015

DIVISION IV

THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IV

Cite as: 2015 OK CIV APP 43 , 348 P.3d 1112

TED BENTLEY and RITA BENTLEY,

Plaintiffs/Appellants,

v.

CLINT KIRK, D.O. and COMANCHE, COUNTY MEMORIAL

HOSPITAL AUTHORITY, d/b/a COMANCHE COUNTY MEMORIAL HOSPITAL,

Defendants/Appellees,

and

SMITH & NEPHEW, INC., Defendant.

APPEAL FROM THE DISTRICT COURT OF

COMANCHE COUNTY,

OKLAHOMA

HONORABLE GERALD F. NEUWIRTH, TRIAL JUDGE

VACATED

Micky Walsh, Jerry Fraley, Derek Franseen, BEELER, WALSH & WALSH, PLLC,

Oklahoma City, Oklahoma, for Plaintiffs/Appellants

Glen D. Huff, Robert D.

Hoisington, Lindsey D. Parke, FOLIART, HUFF, OTTAWAY & BOTTOM, Oklahoma

City, Oklahoma, for Defendants/Appellees Clint Kirk, D.O. and Comanche County

Memorial Hospital

P. THOMAS THORNBRUGH, JUDGE:

¶1 Plaintiffs Ted Bentley and Rita Bentley appeal the summary judgment of the

district court holding that Defendants Dr. Clint Kirk and Comanche County

Memorial Hospital (Hospital) cannot be sued for medical malpractice. We vacate

both grants of summary judgment.

BACKGROUND

¶2 Plaintiffs allege that Dr. Kirk was negligent in the insertion of a

prosthetic knee device. In November 2010, Dr. Kirk implanted a metal knee device

in Ted Bentley. On May 2, 2011, this device was removed by Dr. Kirk because Mr.

Bentley had an allergic reaction to the metal. Dr. Kirk replaced the metal

device with a knee made by Defendant Smith & Nephew, Inc. 1 On May 24, 2011, Dr. Kirk

performed a third surgery to replace part of the new Smith & Nephew knee

implant. Mr. Bentley, however, continued to experience problems with the knee

implant, and consulted another physician, Dr. Stephen Wilson. On August 8, 2011,

Dr. Wilson performed another surgical revision of the Smith & Nephew knee

implant.

¶3 On July 13, 2012, Plaintiffs sent notice of a medical negligence claim to

Hospital pursuant to the Governmental Tort Claims Act (GTCA), 51 O.S.2011 § 156(B). Dr. Kirk and

Hospital replied with a joint motion to dismiss. Dr. Kirk argued he was an

employee of Hospital acting within the scope of his employment, and hence

personally immune from suit. He attached a personal affidavit stating that he

was an employee of Hospital. Hospital argued that the last surgery performed by

Dr. Kirk occurred on May 2, 2011, but Plaintiffs had not sent GTCA notice until

July 13, 2012, and hence Plaintiffs had failed to give notice within the

one-year period specified by § 156(B).

¶4 The trial court chose to treat the motion to dismiss as a motion for

summary judgment. Plaintiffs filed a motion for continuance pursuant to District

Court Rule 13(d), seeking time for discovery regarding Dr. Kirk's employment

status, which the court tacitly denied by its failure to rule on the motion. On

September 18, 2013, the court granted summary judgment to Dr. Kirk on the

grounds that he was an employee of Hospital, and to Hospital on the grounds that

Plaintiffs had given notice outside the one-year period specified by § 156(B).

Plaintiffs filed a motion for new trial, which the court denied. Plaintiffs now

appeal.

STANDARD OF REVIEW

¶5 Summary judgment settles only questions of law. See Pickens v. Tulsa

Metropolitan Ministry , 1997 OK

152, ¶ 7 , 951 P.2d 1079 . The

standard of review of questions of law is de novo . Id. Plaintiff

filed a motion for new trial in this case. However, the exercise of the district

court's discretion in deciding this motion is decided by our de novo

review of the underlying summary judgment. Reeds v. Walker , 2006 OK 43, ¶ 9 , 157 P.3d 100

¶6 Summary judgment will be affirmed only if the appellate court determines

that there is no dispute as to any material fact and that the moving party is

entitled to judgment as a matter of law. Pickens , n.1 . Summary judgment

will be reversed if the appellate court determines that reasonable men might

reach different conclusions from the undisputed material facts. Edwards v.

City of Sallisaw , 2014 OK

86, ¶ 7 , 339 P.3d 870 .

ANALYSIS

I. LIABILITY OF HOSPITAL

¶7 This appeal concerns the interaction of the statutory GTCA notice period

and the "discovery rule." Hospital argues that GTCA notice pursuant to 51 O.S.2011 § 156(B) must be made

within one year of an act of negligence, and this time is not tolled unless the

plaintiff can show "active concealment" of the negligence by the GTCA entity.

Hospital argued that there was no allegation of active concealment in this case,

and hence Plaintiffs did not give the required GTCA notice within the statutory

one-year period.

¶8 This area of law is one that has not been definitively addressed by the

Oklahoma Supreme Court. The question arises from subsection B of § 156, which

states:

B. Except as provided in subsection H of this section, and not-

withstanding any other provision of law, claims against the state or a

political subdivision are to be presented within one (1) year of the date

the loss occurs. A claim against the state or a political subdivision shall

be forever barred unless notice thereof is presented within one (1) year

after the loss occurs.

Subsection H deal with claims based on wrongful felony conviction resulting

in imprisonment, and is therefore not significant in this case.

¶9 The § 156(B) requirement that a claim be presented within one year of the

date the loss occurs has been examined in a limited number of malpractice

cases. In Tice v. Pennington , 2001 OK CIV APP 95 , ¶¶ 23-26 , 30 P.3d 1164 , Division II of this

Court found a form of tolling applicable to this time bar, noting that the

application of § 156(B) to medical malpractice occurring at a state-operated

hospital presented a particular public policy question.

¶10 In Tice , plaintiff Tice underwent a kidney transplant. The

transplant failed immediately, while Tice was still on the operating table,

because the donor kidney was incompatible due to erroneous blood typing. Tice's

mother, Linda Welch, provided a kidney on an emergency basis. Tice's physician

did not inform Tice or Welch of the reason for the donor kidney transplant

failure for almost seven years. Id. , ¶¶ 4-5. Tice also indicates

that Welch was induced to give up the kidney on an emergency basis because of a

misrepresentation to both of them that the rejection of the donor kidney had

been occasioned by a rare blood disorder, with the implication that Tice might

otherwise never qualify for a donor kidney. Id ., ¶26. When Tice and Welch

sued, the hospital interposed the § 156(B) time bar.

¶11 The Tice opinion examined several estoppel and tolling theories

regarding the § 156(B) time bar, and stated:

Hence, the prevailing public interests, which except this case from the

general estoppel rule, are the public's interest in speedy investigation of

claims without cover-up by state employees and the public's interest in

proficient medical care unimpeded by a prevarication, concealment, and/or

misrepresentation. These prevailing interests outweigh any reasonable

premise to protect the public's interest fostered by the time-bar in Section

156(B) of the Governmental Tort Claims Act. This conclusion is bolstered, as

stated before, by the fact that the governmental conduct in this case served

in large measure to thwart the very interests served by the

Act.

Id ., ¶ 27. Hospital petitioned for certiorari in Tice , but the

docket sheet indicates the case was settled, and the petition withdrawn. Hence,

the Supreme Court did not have the opportunity to take or deny certiorari of the

opinion.

¶12 Some twelve years after Tice , Division II again examined § 156(B)

in Lavender v. Craig Gen. Hosp ., 2013 OK CIV APP 80 , 308 P.3d 1071 . In Lavender ,

plaintiff "underwent a diagnostic laparoscopic procedure at Craig General

Hospital." According to the petition, plaintiff was "sterilized by tubal

ligation" without her consent during this procedure. After the operation, the

involved physician informed plaintiff that the sterilization was medically

necessary. Three years later, plaintiff was informed by another physician that

the tubal ligation was not medically necessary and was not reversible. Plaintiff

sued the physician some five years after the procedure. During discovery,

plaintiff deposed a staff nurse from the Hospital's operating room who testified

that Hospital "[s]taff failed to follow [its] protocol and obtain two

witnesses['] initials to the change in operative procedure" and that it "was

hospital protocol to take a 'time out' before a tubal ligation was performed. .

. . to give the patient notice and to determine medical necessity." Id .,

¶ 7. Plaintiff then added the hospital as a defendant, and the hospital

interposed the § 156(B) time bar.

¶13 The Lavender opinion stated a more or less conventional discovery

rule pursuant to the facts of that case.

The question of when [a plaintiff] possessed sufficient information to

trigger the running of the statute of limitations is one of fact. Hawk

Wing v. Lorton , 2011 OK

42, ¶ 18 , 261 P.3d 1122,

1127 (quoting Gallagher v. Enid Reg'l Hosp ., 1995 OK 137, ¶ 11 , 910 P.2d 984, 986 ). [W]hether

plaintiffs have used diligence in discovery, or should, as reasonably

prudent persons have been put on inquiry and investigation from what they

heard, or knew, was a question to be determined in the trial court, on the

basis of the facts and circumstances of the particular case. Id .

(quoting Flowers v. Stanley , 1957 OK 237, ¶ 15 , 316 P.2d 840,

847 ).

Id. , ¶ 24 (internal quotation marks omitted).

¶14 Lavender vacated summary judgment to the hospital, even though the

hospital was not notified within one year after surgery, stating that "a

substantial controversy exists as to whether [plaintiff] knew, or was able to

discover with reasonable diligence, that a cause of action existed against

Hospital stemming from the July 19, 2005, surgery any earlier than Nurse

Winfrey's August 25, 2011, deposition." Id ., ¶ 26. No party, however,

sought certiorari of the Lavender opinion. As a result, neither of the

two published opinions dealing with this issue were challenged by a certiorari

proceeding. It now falls to this panel to make a third ruling on this issue.

II. SECTION 156(B)

¶15 The debate centers on what the Legislature intended by its command that

"claims against the state or a political subdivision are to be presented within

one (1) year of the date the loss occurs." Did the Legislature essentially

intend a statute of repose, i.e., to restrict liability "by limiting the time

during which a cause can arise" and thus "serve to bar a cause of action before

it accrues?" 2

In the alternative, did it intend a statute of limitations which affects the

remedy but not the right, and is traditionally subject to a discovery rule?

¶16 By its nature, a statute of repose may start a limitation period running

before an injury or loss comes into being by using an event other than the date

of accrued harm to start the limitation period. 3 The term "loss" is defined in the Act.

"Loss" means death or injury to the body or rights of a person or damage to real

or personal property or rights therein. 51 O.S.2011 § 152(6). The

Legislature's use of the phrase "within one (1) year of the date the loss

occurs" is thus not consistent with the language it normally uses to create a

statute of repose. The date of an act of negligence and the date of an

actual resulting loss are not necessarily the same. Had the

Legislature wished to start the one-year period on the date of the negligence or

other tortious act, it could have stated so.

¶17 Examining the history of § 156(B), the original 1978 version of the

statute barred claims after 180 days . We must therefore conclude either:

1) that the 1978 Legislature intended to limit malpractice claims against GTCA

entities to claims that accrue within 180 days. i.e. , one quarter of the

time that private sector doctors and hospitals must bear the risk of suit; or 2)

that the phrase "the date the loss occurs" implied some form of tolling by

discovery.

¶18 The purpose of the 180-day/one-year notice period is explained in

Pellegrino v. State ex rel. Cameron Univ. ex rel. Bd. of Regents of

State , 2003 OK 2 , 63 P.3d 535 , as follows:

The notice provisions contained in the Act are intended to further

protect municipal interests by promoting prompt investigation, providing the

opportunity to repair any dangerous condition and for speedy and amicable

settlement of meritorious claims, and to prepare to meet possible fiscal

liabilities.

Id ., ¶ 17, citing Duncan v. City of Nichols Hills , 1996 OK 16 , 913 P.2d 1303 .

¶19 We find it clear that § 156(B) is designed to ensure that a GTCA entity

receives prompt notice of claims to further the above-stated public purposes.

However, none of these public purposes are apparently served by denying a

meritorious claim that has not yet accrued.

¶20 If a claim has not yet accrued, it cannot be "promptly investigated." Nor

can a dangerous condition be recognized and repaired, nor can a potential claim

be "amicably settled" if injury has not yet accrued or been reasonably

discovered. 4

We are not of the opinion that § 156(B) shows a legislative intent to create a

strict statute of repose that destroys a medical malpractice claim if the

resulting harm did not accrue for more than a year after the negligence. 5

III. THE CASE LAW

¶21 Hospital argues that, pursuant to Tice , Plaintiff must show

"active concealment" by Hospital to toll the § 156(B) limitation period, i.e.,

that Tice limited any tolling to that specific situation. We find no such

limitation in Tice . At various points, Tice states that: "whenever

the government acts to conceal from a prospective plaintiff the knowledge of the

injury . . . then the obligation to present a claim does not accrue . . ."

Tice , ¶ 30 . At no time, however, does Tice state that tolling is

available exclusively because of active concealment.

¶22 Examining Lavender , it is quite clear that the opinion allowed the

hospital to be added as a defendant outside the § 156(B) notice period because

"a substantial controversy exists as to whether [plaintiff] knew, or was able to

discover with reasonable diligence, that a cause of action existed against

Hospital stemming from the July 19, 2005, surgery any earlier than Nurse

Winfrey's August 25, 2011, deposition." 2013 OK CIV APP 80, ¶ 26 .

Lavender thus states the conventional discovery rule of Hawk Wing v.

Lorton , 2011 OK 42, ¶ 18 , 261 P.3d 1122 , and does not rely

entirely on active concealment by the hospital.

¶23 We find the structure of § 156(B) and the accompanying case law indicate

that a conventional discovery rule applies to medical malpractice cases brought

against state entities. The record does not indicate that summary judgment was

appropriate pursuant to such a rule. We therefore reverse the grant of summary

judgment to Hospital.

IV. THE LIABILITY OF DR. KIRK.

¶24 The court also granted summary judgment to Dr. Kirk on the grounds that

he was an employee of Hospital. Plaintiff requested a continuance pursuant to

District Court Rule 13(d), seeking discovery on this question. The court did not

mention this request in its judgment, and we find no record that it considered

the Rule 13(d) request at all. The court apparently found the statement of

employment made by affidavit in Dr. Kirk's motion to dismiss to be undisputed

evidence, and that further discovery could not, as a matter of law, support any

other conclusion.

¶25 Dr. Kirk's affidavit seeks to relieve him of personal liability in this

matter, and is thus inherently self-interested. Its credibility should therefore

be tested by a jury unless it is supported by other evidence. See Poafpybitty

v. Skelly Oil Co. , 1973 OK

110 , ¶ 17 517 P.2d 432 . No

other evidence was provided. 6 Although proper inquiry may eventually prove that

Dr. Kirk is indeed an employee of Hospital, the established standards and

procedures of summary judgment may not be circumvented by "converting" a motion

to dismiss into a motion for summary judgment. If a court treats a motion to

dismiss as a motion for summary judgment, it must apply the full forensic

inquiry required by the summary judgment standards and procedure. We therefore

vacate the grant of summary judgment to Dr. Kirk.

CONCLUSION

¶26 We find that the one-year period which § 156(B) provides to raise this

claim of medical malpractice is tolled by the discovery rule, as stated in

Hawk Wing v. Lorton , 2011 OK

42 , 261 P.3d 1122 . The court

did not consider this rule in granting summary judgment. The employment status

of Dr. Kirk was demonstrated only by a self-interested affidavit that could not

act as a basis for summary judgment. We therefore vacate both grants of summary

judgment by the district court.

¶27 VACATED .

RAPP, P.J., and BARNES, J., concur.

FOOTNOTES

1 The

allegations of negligence do not encompass this first knee

replacement.

2 See

Smith v. Westinghouse Elec. Corp. , 1987 OK 3, n. 11 , 732 P.2d 466 .

3 For

example, in the following statutes of repose, the Legislature did not use the

occurrence of loss or the date of injury as the triggering event: Title 46 O.S.2011 § 301 (foreclosure

remedies limited to "seven (7) years from the date of the last maturing

obligation secured by such mortgage"); 12 O.S.2011 §109 (tort action for

deficiency in the design, planning, supervision or construction of an

improvement to real property, "shall not be brought more than ten (10) years

after substantial completion of such an improvement "); 71 O.S.2011 § 1-509 (civil suit

pursuant to section 10 of Oklahoma Uniform Securities Act must be "commenced

within one year after the violation occurred "); 60 O.S.2011 § 837 (action for

failing to disclose real property defect shall be commenced "within two (2)

years after the date of transfer of real property subject to this act")

(emphasis added in all cases).

4 We

further note that government health care providers compete directly with

private enterprises in this field . We find no public purpose in allowing

state health-care providers to avoid legitimate but unaccrued claims while the

private providers with whom they compete are subject to this

liability.

5 As a

simple example, consider a GTCA health provider that negligently implants a

heart valve so it will last only 14 months instead of the expected 20 years. The

problem is not discovered until the valve fails. Did the Legislature intend to

completely immunize such acts? We find no apparent service of a public purpose

in such a restriction.

6

Plaintiffs' petition alleged that Dr. Kirk may or may not be an employee. The

affidavit alleges only that Dr. Kirk was "employed" by Hospital, but not that he

was acting within the scope of his employment.

Citationizer © Summary of Documents Citing This Document

Cite

Name

Level

None Found.

Citationizer: Table of Authority

Cite

Name

Level

Oklahoma Court of Civil Appeals Cases

Cite Name Level

2001 OK CIV APP 95 , 30 P.3d 1164 , 72 OBJ 2225, TICE v. PENNINGTON Discussed

2013 OK CIV APP 80 , 308 P.3d 1071 , LAVENDER v. CRAIG GENERAL HOSPITAL Discussed at Length

Oklahoma Supreme Court Cases

Cite Name Level

1987 OK 3 , 732 P.2d 466 , 58 OBJ 68, Smith v. Westinghouse Elec. Corp. Discussed

1957 OK 237 , 316 P.2d 840 , FLOWERS v. STANLEY Discussed

1995 OK 137 , 910 P.2d 984 , 66 OBJ 3904, Gallagher v. Enid Regional Hospital Discussed

1973 OK 110 , 517 P.2d 432 , POAFPYBITTY v. SKELLY OIL COMPANY Discussed

2003 OK 2 , 63 P.3d 535 , PELLEGRINO v. STATE EX REL. CAMERON UNIVERSITY Discussed

1996 OK 16 , 913 P.2d 1303 , 67 OBJ 536, Duncan v. City of Nichols Hills Discussed

2006 OK 43 , 157 P.3d 100 , REEDS v. WALKER Discussed

2011 OK 42 , 261 P.3d 1122 , HAWK WING v. LORTON Discussed at Length

2014 OK 86 , 339 P.3d 870 , EDWARDS v. CITY OF SALLISAW Cited

1997 OK 152 , 951 P.2d 1079 , 68 OBJ 4087, PICKENS v. TULSA METROPOLITAN MINISTRY Discussed

Title 12. Civil Procedure

Cite Name Level

12 O.S. 109 , Limitation of Action to Recover Damages Arising from Design, Planning or Construction of Improvement to Real Property Cited

Title 46. Mortgages

Cite Name Level

46 O.S. 301 , Foreclosure and Mortgage Remedies - Limitations - Cessation of Lien - Extension Agreements - Notice Cited

Title 51. Officers

Cite Name Level

51 O.S. 156 , Claims - Petition - Limitation of Actions - Notice - Wrongful Death Discussed

51 O.S. 152 , Definitions Cited

Title 60. Property

Cite Name Level

60 O.S. 837 , Remedies - Recovery by Purchaser Cited

Title 71. Securities

Cite Name Level

71 O.S. 1 -509, Civil Liability Cited