Justia Medical Malpractice Opinion SummariesArticles Posted in Oklahoma Supreme Court
State ex rel. Okla. St. Bd. of Medical Licensure & Supervision v. Rivero
A physician's professional conduct was examined by the Oklahoma Board of Medical Licensure and Supervision. During the disciplinary proceeding a stipulated protective order was entered by the Board. The professional complaint against the physician was dismissed, and approximately two years later the physician requested the Board modify its protective order to allow the physician to use three documents in a different legal proceeding. The Board refused, and the physician appealed. After review, the Oklahoma Supreme Court held: (1) the stipulated blanket protective order making all documents in the administrative proceeding subject to the order and prohibiting their use in any other legal proceeding was contrary to the public policy expressed by the Oklahoma Open Records Act and the Oklahoma Discovery Code; and (2) the physician's claim seeking access to the initial report of misconduct was not properly before the Court. View "State ex rel. Okla. St. Bd. of Medical Licensure & Supervision v. Rivero" on Justia Law
John v. St. Francis Hospital
In 2012, petitioners Saint Francis Hospital, Inc., Neurological Surgery, Inc., and Douglas Koontz, M.D. performed decompressive laminectomies of respondent Johnson John’s spine at the C2-3, C3-4, C4-5, C5-6 and C6-7 regions. After the operation, respondent allegedly became partially paralyzed, suffered constant pain, was hospitalized for four months and submitted to additional medical treatment. Respondent filed suit against petitioners in 2016, alleging negligence, gross negligence, medical malpractice and sought punitive damages for petitioners’ failure to render reasonable medical care, breach of the duty of care owed and respondent’s resulting injuries. In commencing the action, respondent failed to attach an affidavit of merit to the Petition or otherwise comply with Okla. Stat. tit. 12, section 19.1. In lieu of answer, petitioners filed their respective motions to dismiss and asserted, among other things, respondent’s failure to include the statutorily required affidavit of merit or, in the alternative, obtain a statutorily recognized exception. Respondent averred that the statutory directive unconstitutionally restrained a litigant's right to access the courts and was an unconstitutional special law. The district court provided notice to the Attorney General's office concerning the challenged statute. As intervenor, the Attorney General essentially urged the district court to enforce the affidavit requirements. The district court ultimately overruled petitioners’ motions to dismiss, and rejected respondent’s special law challenge. The court determined that section 19.1 unconstitutionally imposed a substantial and impermissible impediment to access to the courts, and this barrier was unconstitutional regardless of the financial worth of a litigant and was not cured by exercising the indigent from this burden. The Oklahoma Supreme Court agreed with the district court’s ruling, and found section 19.1 was an impermissible barrier to court access and an unconstitutional special law. Section 19.1 was therefore stricken. View "John v. St. Francis Hospital" on Justia Law
Hurley v. Kirk
The main issue on certiorari review was whether the doctrine of informed consent required a physician to obtain the patient's consent before using a non-doctor to perform significant portions of a surgery for which the physician was engaged to perform thereby subjecting the patient to a heightened risk of injury. Dr. Mary Kirk, Dana Hurley's gynecologist, recommended Hurley undergo a total laparoscopic hysterectomy. Hurley agreed and Dr. Kirk scheduled the operation. In coordinating the surgery, Dr. Kirk specifically requested Art Bowen to assist with the operation. At the time of Dr. Kirk's request, Bowen had previously assisted Dr. Kirk in approximately 40 to 50 cases of which 90 percent were hysterectomies. Bowen, however, was neither Dr. Kirk's nor the hospital's employee. Bowen worked completely under the supervision and guidance of the employing surgeon. There was conflicting evidence as to whom, Dr. Kirk or Bowen, caused Hurley's injury. Dr. Kirk denied Bowen injured Hurley's right ureter despite her concession that Bowen performed the right side of the hysterectomy with the harmonic scalpel. Yet, Bowen's initial discovery response indicated Bowen's admission that he caused the injury. Both Dr. Kirk and Bowen conceded, however, that Bowen used the harmonic scalpel to cauterize and cut the round ligament, utero ovarian pedicle, broad ligament, and uterine artery. After reviewing the record in this case, the Oklahoma Supreme Court found that under Oklahoma's full disclosure rule, a physician must disclose and obtain the patient's informed consent. The Court reemphasized that full disclosure of all material risks incident to treatment must be made. "As such, no physician has carte blanche to delegate any or all tasks to a non-doctor. To hold otherwise, would obliterate a patient's freedom of choice and reinstate the paternalistic approach to medicine this Court rejected." The scope of the duty to inform is broad enough to include a physician's duty to inform the patient "who" will be performing significant portions of the procedure or surgical tasks. The Court of the Civil Appeals' opinion was vacated and the district court's summary judgment order was reversed as to all issues. This matter was remanded for further proceedings. View "Hurley v. Kirk" on Justia Law
Andrew v. Depani-Sparkes
Parents sued medical providers for injuries sustained during their child's birth, alleging negligence. The trial court granted summary judgment to defendant Mercy Health Center. Plaintiffs appealed, arguing the trial court did not apply a correct standard for causation and failed to recognize the testimony from their expert witnesses. Mercy argued the trial court correctly sustained a motion for summary judgment which relied in part on a “Daubert” motion filed by Mercy. Mercy also argued plaintiffs failed to show causation, as required in a negligence action by an expert opinion. After review, the Oklahoma Supreme Court reversed the summary judgment because plaintiffs' materials used to object to summary judgment showed expert opinions on causation sufficient to create a question of fact. The Court also explained a Daubert adjudication may not be applied retroactively to support a prior judgment. View "Andrew v. Depani-Sparkes" on Justia Law
Nelson v. Enid Medical Associates, Inc.
The issue this medical malpractice action presented for the Supreme Court's review centered on orders excluding testimony from plaintiffs' two expert witnesses and a summary judgment granted to defendants based upon the excluded testimony. Mrs. Nelson went to the Emergency Department of St. Mary's Regional Medical Center seeking medical assistance on the evening of July 21, 2006. The emergency room physician, Dr. Vaughan, ordered diagnostic tests, diagnosed an incarcerated hernia with possible bowel obstruction, and attempted to reduce the hernia. Dr. Vaughan telephoned Dr. Shepherd, Mrs. Nelson's internist and primary care provider. Dr. Shepherd instructed Dr. Vaughan to telephone Dr. Shreck, a surgeon. Dr. Shreck came to the hospital, reduced Mrs. Nelson's hernia, and she was admitted to the hospital. The medical record indicated Dr. Shreck reduced Mrs. Nelson's incarcerated hernia by manipulation. Mrs. Nelson became septic, went into septic shock during the morning of July 22nd, and she had a cardiac arrest while being prepared for surgery to address a perforated or dead bowel. She was resuscitated. After the surgery, Mrs. Nelson was given medicines to raise and control her blood pressure. Dr. Shepherd then switched Mrs. Nelson's medication to vasopressin. At approximately 11:00 p.m., Mrs. Nelson's blood pressure started to fall, her pulse became unstable and she died. A medical malpractice action was brought against Mrs. Nelson's medical providers for her last illness. Dr. Shepherd and Enid Medical Associates moved to exclude the proposed testimony of plaintiffs' two expert witnesses. They argued each witness had not provided legally proper testimony on the issue of the cause of Mrs. Nelson's demise because the testimony did not satisfy the requirements of "Daubert v. Merrell Dow Pharmaceuticals, Inc.," (509 U.S. 579 (1993)). The two defendants also sought summary judgment because the causation element of the malpractice claim action was missing from plaintiffs' claim. After review, the Supreme Court held that the opinions of the two witnesses on the issue of causation satisfied the requirements of 12 O.S. 2702, and reversed the summary judgment granted by the District Court. View "Nelson v. Enid Medical Associates, Inc." on Justia Law
Allen v. Harrison
This was a medical malpractice case premised in part on the doctrine of informed consent. Appellant Teresa Allen swallowed a small nail. She went to Duncan Regional Hospital's emergency room. Appellee John Harrison, D.O., emergency room physician (Physician), examined Allen. An X-ray confirmed the presence of a foreign body in Allen's stomach, just below the diaphragm. Based on Physician's assessment and clinical judgment, Physician discharged Allen prescribing: (1) "a high-fiber diet to let the nail pass;" (2) return to the hospital if she had any problems; and (3) follow up with her family doctor in three days. A few days later following severe vomiting, Allen went to the emergency room at Southwestern Hospital in Lawton. That same day, the hospital performed emergency surgery to remove the ingested nail from Allen's intestines. At that time, Allen was treated for a perforated and infected bowel. In addition, Allen endured two additional surgeries to treat the complications that arose from the initial surgery. Allen sued Duncan Regional Hospital and Physician for the defendants' alleged medical negligence and failure to obtain Allen's informed consent. Specifically, Allen contended that Physician failed to disclose the potential risk in letting the nail pass through her digestive system as well as the alternatives to his recommended course of treatment. Had Physician effectively discharged his duty to disclose, Allen would have "chosen the option of no treatment or a different course of treatment." The issue presented on certiorari review was whether the doctrine of informed consent required a physician to obtain the patient's consent before implementing a nonsurgical or noninvasive course of treatment. "Inherent in the question presented, is whether a physician-in addition to discussing with the patient treatment alternatives that the physician recommends-should discuss medically reasonable alternatives that the physician does not recommend." After review of the trial court record, the Oklahoma Supreme Court answered both of those questions in the affirmative. View "Allen v. Harrison" on Justia Law
Wall v. Marouk
Appellant Timothy Wall (Patient) filed a petition for medical negligence against Dr. John S. Marouk, D.O. (Physician). Wall alleged that the physician negligently cut the median nerve in his right arm during a carpal tunnel surgery, resulting in loss of feeling in his right fingers. The patient did not attach an affidavit of merit as required by 12 O.S. 2011 sec. 19. The physician filed a motion to dismiss on the grounds that the patient failed to include the affidavit of merit. In response to the physician's motion to dismiss, the patient argued that 12 O.S 2011 sec.19 was unconstitutional based on this court's holding in "Zeier v. Zimmer." The trial court entered a certified interlocutory order denying the physician's motion to dismiss, and giving the patient twenty days from the date of the order to file an affidavit of merit or face dismissal of the cause. The trial court subsequently entered an amended certified interlocutory order stating that 12 O.S. 2011 sec. 19 required an affidavit of merit finding the patient's arguments unpersuasive. The Supreme Court granted the patient's Petition for Certiorari to consider the constitutionality of 12 O.S. 2011 sec. 19. Upon review, the Supreme Court found that Title 12 O.S. 2011 sec. 19 created a monetary barrier to access the court system, and then applied that barrier only to a specific subclass of potential tort victims, those who are the victims of professional negligence. The result was a law that was unconstitutional both as a special law, and as an undue financial barrier on access to the courts. "Although we express no opinion on the viability of the patient's claim, because we hold 12 O.S. 2011 sec. 19 to be unconstitutional, an affidavit of merit is not required." The district court's order requiring submission of an affidavit of merit was overruled, and the case was remanded for further proceedings. View "Wall v. Marouk" on Justia Law
Douglas v. Cox Retirement Properties, Inc.
Plaintiff filed a wrongful death action against Defendant Cox Retirement Properties, alleging Richard Douglas died as a result of the facility's negligent care and treatment. Defendant moved to dismiss the case for Plaintiff's failure to comply with 12 O.S. Supp. 2009 19. Section 19 was enacted in 2009 as part of H.B. 1603, known as the Comprehensive Lawsuit Reform Act of 2009. Plaintiff responded to the motion to dismiss, arguing the CLRA of 2009 was unconstitutional logrolling in violation of the single-subject rule of Article 5, section 57 of the Oklahoma Constitution. The trial court granted the Defendant's Motion to Dismiss and certified the dismissal order for immediate review. The Supreme Court granted Plaintiff's Petition for Certiorari and held that hold that H.B. 1603 violated the single-subject rule of Article 5, section 57 of the Oklahoma Constitution and was unconstitutional and void in its entirety. View "Douglas v. Cox Retirement Properties, Inc." on Justia Law
Howard v. Zimmer, Inc.
Plaintiff-Appellant Brian C. Howard, M.D. received a knee replacement manufactured by Defendant Sulzer Orthopedics, Inc. The implant failed and had to be removed allegedly because it did not bond to Howard's bone. Howard asserted that the implant was unsuccessful because Sulzer left oily residue on the implant in violation of federal regulations. The United States Court of Appeals for the Tenth Circuit certified a single question to the Oklahoma Supreme Court. The Court in turn reformulated the question as one of first impression: "[w]hether 21 U.S.C. 337 of the Federal Food, Drug, and Cosmetic Act (FDCA), [which provides] that all violations of the Act shall be prosecuted in the name of the United States, prohibits Oklahoma from recognizing a claim for negligence per se based on violation of a federal regulation under the Medical Device Amendments (MDA) to the FDCA?" Howard asserted that Oklahoma law would allow a claim for negligence per se to proceed based on the violation of a federal regulation, and that such a position was supported by a recent opinion promulgated by the Oklahoma Court. Sulzer argued that federal regulations are not the type of law which should give rise to negligence per se claims. The manufacturer also insisted that recognizing such a claim would contravene legislative intent where no clear standard of conduct is outlined. The Oklahoma Supreme Court was not persuaded by Sulzer's arguments and answered the single reformulated first impression question, "no." View "Howard v. Zimmer, Inc." on Justia Law
Ledbetter v. Howard
Plaintiffs-Appellees Guy and Midge Ledbetter sued Defendant-Appellant Derek Howard and his employer Radiology Services of Ardmore, Inc. for malpractice. Plaintiffs alleged that the doctor misread an x-ray which caused delayed treatment of his rapidly deteriorating left foot. A jury found in favor of Defendant. Plaintiffs moved for judgment notwithstanding the verdict and for a new trial. The trial court denied the judgment but granted a new trial when evidence of juror misconduct surfaced. Defendants appealed, and the Court of Appeals reversed and remanded the case. The foreperson assured the trial court in voir dire that she would not allow her expertise and experience to override the evidence presented at trial. Nevertheless, she not only did so on a personal level, but went further by communicating her alleged professional knowledge and experiences to her fellow jurors with the apparent intent to sway their votes in favor of Defendants. Upon review, the Supreme Court concluded that: (1) the juror's affidavit was admissible under the "extraneous prejudicial information" exception to 12 O.S. 2011 sec. 2606(B); and (2) the trial court did not abuse its discretion in ordering a new trial for juror misconduct during deliberations. View "Ledbetter v. Howard" on Justia Law