McFeely v. Tredway

1990 OK CIV APP 71, 816 P.2d 575, 62 O.B.A.J. 3028, 1990 Okla. Civ. App. LEXIS 131
CourtCourt of Civil Appeals of Oklahoma
DecidedAugust 14, 1990
DocketNo. 71302
StatusPublished
Cited by3 cases

This text of 1990 OK CIV APP 71 (McFeely v. Tredway) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McFeely v. Tredway, 1990 OK CIV APP 71, 816 P.2d 575, 62 O.B.A.J. 3028, 1990 Okla. Civ. App. LEXIS 131 (Okla. Ct. App. 1990).

Opinions

MEANS, Judge.

Plaintiffs appeal various orders of the trial court dismissing defendant attorneys, disqualifying Plaintiffs’ attorney and his firm, and imposing sanctions on Plaintiffs’ [577]*577attorney. Having reviewed the record and applicable law, we affirm in part, reverse in part, and remand.

This action arose as satellite litigation emanating from Plaintiffs’ original lawsuit against defendants Hillcrest Medical Center, Hillcrest Fertility Center, Donald R. Tredway, M.D., John C. Goldthorpe, and Mark Ambrosius. (See companion case No. 71,174). Before summons was served on these defendants, Plaintiffs, through their counsel, furnished to Hillcrest Medical Center, Hillcrest Fertility Center and Dr. Tred-way written authorizations and requests for release of their medical records. Dispute over the release of these records formed the eventual basis for the suit now before us.

Plaintiffs’ petition alleged that, although the health care defendants and their attorneys represented to Plaintiffs’ counsel that all medical records had been produced, the records furnished to Plaintiffs’ counsel were incomplete in violation of the duty imposed by 76 O.S.Supp.1985 § 19(A) to produce all medical records upon patient request.

The trial court found “that attorneys have no duty to see that their clients provide medical records under Title 76 O.S. Section 19 [sic. ],” sustained a motion to dismiss as to defendant Hill, and dismissed the remaining defendant attorneys on its own motion. The court also sustained Defendants’ joint motion to disqualify Plaintiffs’ counsel based on DR 5-101(B), 5 O.S.1981, ch. 1, app. 3. Finally, the court granted a motion to strike the Plaintiffs’ prayer for $10,000,000 in damages, as violating 12 O.S.Supp.1987 §§ 2008(A)(2) and 2009(G), and sanctioned Plaintiffs’ counsel. From these rulings, Plaintiffs appeal.

Plaintiffs contend that sustaining defendant attorneys’ motions to dismiss was improper because, under the notice pleading provisions of Oklahoma’s Rules of Civil Procedure, 12 O.S.Supp.1987 §§ 2001-2027, the petition stated sufficient facts to put defendants on notice as to Plaintiffs’ claims. The court’s ruling, however, was not based on insufficiency of notice but rather on a finding that the facts pleaded demonstrated no basis for imposing a duty on the attorneys under section 19. The court thus concluded that the petitions failed to state a claim against the attorney defendants upon which relief could be granted to Plaintiffs.

76 O.S.Supp.1985 § 19(A), provided:

Any person who is or has been a patient of a doctor, hospital or other medical institution shall be entitled to obtain access to the information contained in all his medical records upon request, and shall be furnished copies of all records pertaining to his or her case upon the tender of the expense of such copy or copies.

We initially note that the asserted duty on the part of defendant attorneys was not grounded in any provision of our Discovery Code, 12 O.S.Supp.1987 §§ 3201-3215, which is designed to expedite the resolution of litigation that has been fully initiated. Here, the purported duty violation occurred after the filing of the petition but before summonses were served on the primary defendants. At that point in time, the primary defendants had not been notified that they had been sued, nor had counsel entered appearances. The course of events had not yet reached the point where counsel would be required or expected to participate in the formal, statutory trial discovery process.

Examining section 19, we find no mention or implication of any duty imposed on attorneys to see that their clients provide medical records. Nor do we find any private right of action against attorneys implied in the statute. See Holbert v. Echeverria, 744 P.2d 960 (Okla.1987). To the contrary, the legislature provided for a penal remedy in 76 O.S.Supp.1986 § 20, categorizing the violation of section 19 as a misdemeanor and negating the implication of some private right of action.

Plaintiffs cite Cressman, The Prima Facie Tort Doctrine in Oklahoma, 56 Okla. B.J. 1759 (1985), as justification for their cause of action. However, they offer no explanation for the doctrine’s applicability [578]*578to the specific facts of this case. We therefore find their argument without merit.

We do find, however, that the trial court did not give full consideration to Plaintiffs’ contention that their petition alleged causes of action in fraud and conspiracy sufficient to withstand Defendants’ motions to dismiss. A review of the amended petition leads us to find that the court failed to “take the allegations of the [petition] at face value and [to] construe them most favorably to the pleader.” Huxall v. First State Bank, 842 F.2d 249 (10th Cir. 1988). Title 12 O.S.Supp.1987 § 2008(A), under “General Rules of Pleading,” requires:'

A. CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain:
1. A short and plain statement of the claim showing that the pleader is entitled to relief; and
2. A demand for judgment for the relief to which he deems himself entitled.

The Committee Comment, 12 Okla.Stat. Ann. § 2008 (West Supp.1989) observes:

Adopted with almost no changes from Federal Rule of Civil Procedure 8, this section is the essence of a simplified pleading code. By substituting the requirement of “a short and plain statement of the claim showing that the pleader is entitled to relief” for a recitation of “facts constituting a cause of action,” the rule narrows the function of pleadings to that of giving “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 [78 S.Ct. 99, 103, 2 L.Ed.2d 80] (1957). This acknowledges that modern devices such as discovery, pretrial conferences, and summary judgments are more effective methods of performing the functions of disclosing the factual and legal issues in dispute, pretrial planning, and disposing of frivolous or unfounded claims and defenses which historically were performed by the pleadings. See generally C. Wright, Law of Federal Courts 438-40 (4th ed. 1983). By omitting any reference to facts, the Oklahoma Pleading Code, like the Federal Rules of Civil Procedure, avoids the confusion and controversy as to distinctions between evidence and conclusions of law, which were improper matters to be pleaded under the former scheme, and ultimate facts, which were proper items to be pleaded. Section 2008 does not prohibit the pleading of facts or conclusions of law as long as the pleading gives fair notice of the nature of the claim asserted. See Davis v. Passman, 442 U.S. 228 [99 S.Ct. 2264, 60 L.Ed.2d 846] (1979); United States v. Employing Plasterers Ass’n, 347 U.S. 186, 188-89 [74 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fischer v. City of Colorado Springs
260 P.3d 331 (Colorado Court of Appeals, 2010)
Fuchs v. Fleetwood Homes of Texas
2006 OK CIV APP 148 (Court of Civil Appeals of Oklahoma, 2006)
Opinion No. (1996)
Oklahoma Attorney General Reports, 1996

Cite This Page — Counsel Stack

Bluebook (online)
1990 OK CIV APP 71, 816 P.2d 575, 62 O.B.A.J. 3028, 1990 Okla. Civ. App. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcfeely-v-tredway-oklacivapp-1990.