Spencer v. Nelson

2024 OK 63

JIMMY WAYNE SPENCER, as Special Administrator and Representative of the Estate of MARK GLEN SPENCER, and as Representative of the Beneficiaries Or Heirs of the Estate of MARK GLEN SPENCER, Plaintiff/Appellant, v. LANA NELSON, D.O. and NORMAN REGIONAL MEDICAL AUTHORITY, Defendant/Appellee.

No. 120210

Supreme Court of Oklahoma

September 17, 2024

THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

ON WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION I

S Randall Sullivan, Oklahoma City, Oklahoma, for Appellant.

Hunter Hillin, Dallas, Texas, for Appellant.

Robert D. Hoisington, Oklahoma City, Oklahoma, for Appellee.

Edmondson, J.

¶0 Administrator sought certiorari review from the Court of Civil Appeals' decision affirming the trial court's order sustaining Defendants' Motion to Dismiss. Administrator brought a wrongful death action against the defendants for damages arising from physician's alleged negligent and grossly negligent treatment of Decedent by failing to make a surgical repair which allegedly was the proximate cause of Decedent's sepsis and death. Administrator urged that the Court of Civil Appeals erred by deciding questions of substance in a way that was not in accord with applicable decisions of this Court. We agree and hold: (1) for claims arising under the Oklahoma Governmental Tort Claims Act (GTCA), the discovery rule applies to wrongful death actions arising from medical negligence; and (2) a governmental employee has no immunity under the GTCA for claims arising from gross negligence, acts outside the scope of employment, and the GTCA notice requirements do not apply to such tort claims. The opinion of the Court of Civil Appeals is vacated, the judgment of the trial court is reversed, and the matter remanded for further proceedings.

¶1 Mark Glen Spencer (Decedent), a patient in defendant Norman Regional Medical Authority hospital (Hospital), died from sepsis two days after a surgical procedure performed by Lana Nelson, D.O., an alleged employee of Hospital. Decedent's brother brought this action against Hospital for the alleged negligent acts of Nelson pursuant to the Oklahoma Governmental Tort Claims Act, 51 O.S. 2011, § 151 et seq., and individually against Nelson for the alleged grossly negligent acts which would fall outside the scope of employment if it is determined that Nelson is an employee of Hospital.

FACTS AND PROCEDURAL HISTORY

¶ 2 Dr. Nelson performed a duodenal switch surgery on Mark Spencer in Norman Regional Hospital. Two days later, on July 14, 2019, Nelson died of sepsis from a bowel perforation allegedly caused by Nelson's failure to address Decedent's ventral hernia during surgery. In October 2019, Decedent's brother, Jimmy Wayne Spencer, plaintiff was appointed as Special Administrator (Administrator), of Decedent's estate "to look into the feasibility of filing a wrongful death action on behalf of Mark Glen Spencer's estate." ^[1] Administrator requested medical records from Hospital in October 2019. Hospital produced only 100 of the 662 pages of medical records. On April 2, 2020, Administrator made a second request for the entire medical record. Ten months after the initial request, and Hospital had still failed to produce the full medical chart as requested, Administrator sent a third request to Hospital on July 31, 2020. The complete medical chart was not provided until September 4 2020, three hundred eighteen (318) days after Administrator's initial request, and more than one year after Decedent's death. Hospital offered no explanation for its almost one-year delay in producing requested medical records. Hospital argued that this delay was not "pertinent to the Personal Representative's knowledge of his tort claim." ^[2] Hospital also urged that the failure to provide "the full copy of the records is an issue faced in virtually every lawsuit." ^[3]

¶ 3 On December 23, 2020, Administrator sent a letter via certified mail to Hospital to provide "notice under the Oklahoma Governmental Tort Claims Act" of the claim for damages by Decedent's estate arising out of the alleged negligent and grossly negligent medical care provided by Nelson ^[4] resulting in the foreseeable consequence of the perforation of Decedent's bowel sepsis and ultimate death. ^[5] This GTCA Notice letter was sent more than one year after Decedent's death, but within 110 days following receipt of the Decedent's full medical records. Plaintiff's GTCA claim was deemed denied by operation of law, 90 days after Hospital received Notice. On June 4, 2021, Plaintiff filed a Petition against Nelson for damages including punitive damages alleging Nelson was grossly negligent in her care and treatment of Decedent which caused his bowel perforation, sepsis and death. On June 21, 2021, Plaintiff filed an Amended Petition against Nelson and added Hospital as a defendant. Both the Petition and Amended Petition were filed less than 180 days after the deemed denial of Plaintiff's GTCA claim. ^[6]

¶4 Hospital filed a motion to dismiss the Amended Petition on August 4, 2021, arguing that Administrator did not timely file his medical malpractice lawsuit because he submitted the notice of tort claim "many months after the one-year deadline outlined in the GTCA, despite his having actual knowledge that he had a potential medical malpractice claim shortly after his brother's death on July 14, 2019." ^[7] Hospital asserted that Administrator's statement in the probate petition that he sought appointment "to look into the feasibility of filing a wrongful death action on behalf of Mark Glen Spencer's estate" ^[8] was evidence of his "actual knowledge" of a claim. Hospital next urged to the trial court that once the probate court entered an Order appointing Administrator, these allegations then became a "judicially determined fact that Special Administrator had actual knowledge of the potential medical malpractice claim well before the one-year deadline for his Notice of Tort Claim." ^[9] Hospital also asserted that Administrator's request for medical records also established his "knowledge" of a claim. The Order appointing Administrator only recites that "all allegations contained in the petition filed herein are true and correct." ^[10]

¶5 Administrator responded that the discovery rule applied, and that he could not have known whether there was a basis for a medical malpractice claim until he received the medical records providing documentation of Decedent's care and treatment by Hospital and Nelson. Administrator also argued that estoppel may be applied to extend the time limitation imposed under the GTCA where a principle of public policy or interest is fostered, or a fact issue exists regarding acts of concealing relevant information to the claim. Administrator also noted that Hospital's failure to provide medical records within thirty (30) days of receipt of request violated federal law. 45 CFR 164.524(b)(2).

¶6 The trial court granted Hospital's Motion to Dismiss and included the following rulings:

- Based on the evidence submitted by Movant, the Court finds that Plaintiff was aware of the existence of his wrongful death claim prior to the expiration of the deadline for his notice of tort claim.

- Plaintiff did not submit timely notice of tort claim as required by the Governmental Tort Claims Act based upon such knowledge.

- If employees of political subdivisions are acting within the course and scope of employment, they are not to be named individually in lawsuits concerning their employment, 51 O.S. § 163 (C). Such employees have individual immunity for any act or omission within the scope of employment.

- Lana Nelson, D.O., was an employee of Norman Regional Hospital Authority and the Court finds that she was acting within the course and scope of her employment with regard to the events at issue notwithstanding the Plaintiff's allegations of gross negligence and punitive damages against her.

- Lana Nelson, D.O., has immunity for the claims asserted and is entitled to be dismissed from this action. ^[11]

The trial court dismissed the action against Hospital and Nelson.

¶7 Administrator appealed the decision of the trial court raising several points of error summarized as: (1) whether the district court erred by failing to accept as true all well pleaded facts; and (2) whether the district court erred in making a factual determination that he was aware of the existence of his wrongful death claim before receiving the complete medical record. The Court of Civil Appeals affirmed the district court and held that the holding in Crawford on Behalf of CCC v. OSU Medical Trust, 2022 OK 25, 510 P.3d 824, did not apply to the medical negligence claims in the instant matter because Crawford "was not a wrongful death action based on negligence." ^[12] The Court of Civil Appeals also reasoned that: (1) Section 156 (F) of the GTCA specifically barred a wrongful death claim unless it was brought within one year after the death occurs; and (2) Nelson was an employee of Hospital, a political subdivision, and as such she could not be individually sued for actions arising within the scope of her employment, citing Anderson v. Morgan, 2016 OK CIV APP 40, 376 P.3d 913, Division III. The Court of Civil Appeals did not address issues raised by Administrator in the Petition in Error regarding individual liability for an employee's acts which are outside the scope of employment and not subject to the GTCA.

¶8 Administrator sought certiorari review asserting that (1) the decision of the Court of Civil Appeals conflicts with and misapplied this Court's holding in Crawford supra., holding the discovery rule applies to the one-year notice period for medical negligence claims...