BENTLEY v. KIRK
2015 OK CIV APP 43
| Okla. Civ. App. | 2015Background
- Ted and Rita Bentley allege Dr. Clint Kirk negligently implanted and revised a knee prosthesis; multiple surgeries occurred between Nov 2010 and Aug 2011, with complications and a later revision by another surgeon.
- Plaintiffs served GTCA notice on Comanche County Memorial Hospital on July 13, 2012.
- Hospital moved to dismiss, arguing Plaintiffs’ notice came more than one year after the loss under 51 O.S. §156(B).
- Dr. Kirk moved to dismiss on the ground he was a hospital employee and thus immune; he supported that claim with a personal affidavit.
- The trial court treated the motions as summary judgment, granted judgment for Dr. Kirk (employment) and for Hospital (§156(B) time bar); Plaintiffs sought a new trial and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §156(B)’s one‑year presentation requirement is tolled by the discovery rule in medical‑malpractice claims against GTCA entities | Bentley: §156(B) should be tolled by a conventional discovery rule; plaintiffs should have one year after discovering the loss to notify | Hospital: §156(B) is a strict one‑year bar (absent active concealment by the state) and time runs from the date of the loss | Court: §156(B) is tolled by the discovery rule (as in Hawk Wing); summary judgment for Hospital vacated |
| Whether Dr. Kirk is immune as a hospital employee such that he cannot be sued personally | Bentley: Kirk’s employment and scope are disputed; affidavit is self‑interested and requires testing via discovery/jury | Kirk: Affidavit establishes he was a hospital employee acting within scope, warranting dismissal | Court: Self‑interested affidavit alone insufficient on summary judgment; grant of summary judgment to Kirk vacated and discovery/jury issues remain |
Key Cases Cited
- Tice v. Pennington, 30 P.3d 1164 (Okla. Civ. App. 2001) (addressed tolling/estoppel where government conduct concealed injury)
- Lavender v. Craig Gen. Hosp., 308 P.3d 1071 (Okla. Civ. App. 2013) (applied discovery rule to permit adding hospital defendant after §156(B) period)
- Hawk Wing v. Lorton, 261 P.3d 1122 (Okla. 2011) (articulates conventional discovery rule for accrual)
- Pellegrino v. State ex rel. Cameron Univ., 63 P.3d 535 (Okla. 2003) (explains public purposes of GTCA notice provisions)
- Poafpybitty v. Skelly Oil Co., 517 P.2d 432 (Okla. 1973) (self‑interested affidavit credibility should be tested rather than resolved on summary judgment)