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