BENTLEY v. KIRK
348 P.3d 1112
| Okla. Civ. App. | 2015Background
- Ted and Rita Bentley sued Dr. Clint Kirk and Comanche County Memorial Hospital for malpractice after multiple knee implant surgeries (initial metal implant, removal for allergy, replacement with Smith & Nephew device, subsequent revisions and continued problems).
- Plaintiffs served GTCA notice to the Hospital on July 13, 2012; the last surgery by Dr. Kirk relevant to the Hospital's defense occurred May 2, 2011.
- Hospital moved to dismiss arguing the GTCA one-year notice requirement (51 O.S. §156(B)) was not met; Dr. Kirk moved to dismiss asserting he was a Hospital employee and thus immune from personal suit.
- The trial court converted the motions to summary judgment, granted judgment for Dr. Kirk (employee status) and for Hospital (notice untimely).
- Plaintiffs sought discovery on Kirk’s employment status (Rule 13(d)); the court tacitly denied the continuance and entered judgment.
- The Court of Civil Appeals vacated both grants of summary judgment, holding (1) §156(B)’s one-year notice is subject to the discovery rule and (2) Kirk’s self-serving affidavit did not suffice to resolve employment status on summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §156(B)’s one-year presentation requirement is a strict repose or subject to discovery tolling | Bentley: §156(B) is tolled by the discovery rule; notice must be given within one year of discovered loss | Hospital: §156(B) is a strict one-year bar unless active concealment by the governmental entity tolled it | Court: §156(B) is subject to the conventional discovery rule; reversed Hospital's summary judgment |
| Whether tolling requires active concealment by the GTCA entity | Bentley: discovery rule/diligence controls; active concealment not required | Hospital: tolling available only for active concealment per Tice | Court: Tice did not limit tolling to active concealment; Lavender and Hawk Wing support discovery rule application |
| Whether Dr. Kirk was immune as a Hospital employee and thus shielded from suit | Bentley: employment status disputed; needed discovery; affidavit alone insufficient | Kirk: affidavit asserts he was an employee acting within scope; thus immune | Court: Kirk’s self-interested affidavit insufficient to resolve factual dispute on summary judgment; vacated judgment and allowed discovery |
| Whether trial court abused process by converting motion to dismiss into summary judgment without allowing discovery | Bentley: Rule 13(d) continuance was requested and tacitly denied; appellate review warranted | Defs: treated as proper summary judgment | Court: reversal required because the court failed to apply summary-judgment standards and denied requested discovery |
Key Cases Cited
- Tice v. Pennington, 30 P.3d 1164 (Okla. Civ. App. 2001) (tolling discussion where governmental conduct concealed injury; public policy may excuse strict application of §156(B))
- Lavender v. Craig Gen. Hosp., 308 P.3d 1071 (Okla. Civ. App. 2013) (applied conventional discovery rule to GTCA notice issue; vacated summary judgment)
- Hawk Wing v. Lorton, 261 P.3d 1122 (Okla. 2011) (articulates discovery-rule principles for when statute of limitations begins to run)
- Pellegrino v. State ex rel. Cameron Univ., 63 P.3d 535 (Okla. 2003) (explains GTCA notice provisions and public purposes: prompt investigation and settlement)
- Poafpybitty v. Skelly Oil Co., 517 P.2d 432 (Okla. 1973) (self-interested affidavits require credibility testing and cannot alone resolve factual disputes for summary judgment)
- Smith v. Westinghouse Elec. Corp., 732 P.2d 466 (Okla. 1987) (discusses statutes of repose vs. limitations)