HURLEY v. KIRK, 2017 OK 55

Background

In 2010 Dana Hurley consented to a total laparoscopic hysterectomy performed by Dr. Mary Kirk.
Dr. Kirk specifically requested Art Bowen, an independent contractor with limited credentials, to assist; Bowen had assisted Kirk in many prior hysterectomies but was not an employee and hospital approval of his privileges was unclear.
The written consent form authorized Dr. Kirk and "whomever he/she (they) may designate as his/her assistants" and had a blank section for naming persons performing "significant surgical task(s)."
During surgery Bowen performed the right-side work (using a harmonic scalpel) and Dr. Kirk the left; Hurley’s right ureter was perforated, requiring additional surgeons and corrective procedures.
Conflicting facts exist about whether Bowen or Dr. Kirk caused the injury and whether Bowen’s role constituted mere assistance or performance of significant surgical tasks.
The trial court granted summary judgment for defendants; the Supreme Court of Oklahoma reviewed whether nondisclosure of Bowen’s role and qualifications presented a triable informed-consent claim and whether summary judgment was appropriate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether physician must disclose use of non-physician to perform significant portions of surgery	Hurley: doctor must disclose who will perform significant surgical tasks and obtain informed consent	Kirk/Bowen: naming "assistants" on consent and general assistance language suffices; no duty to disclose assistants’ identities/qualifications	Court: Duty to disclose who will perform significant portions; full disclosure required; summary judgment improper
Whether nondisclosure of assistant’s involvement/qualifications is a material risk	Hurley: undisclosed delegation to an unqualified person raises material risk affecting decision to consent	Defendants: assistant acted as extension of surgeon’s hands; no material change in risk if procedure performed correctly	Court: Materiality is fact-specific; existence of triable issues on material risk precludes summary judgment
Whether physician is absolved of liability if delegate is unqualified even if procedure performed correctly	Hurley: physician may be liable for permitting unqualified person to perform critical parts, increasing injury likelihood	Defendants: no basis to impose automatic liability absent negligence or causation	Court: Mixed fact-law question; standards of care and qualifications are fact issues for jury; not resolved as matter of law
Whether summary judgment was appropriate given disputed facts	Hurley: factual disputes (who performed tasks, Bowen’s qualifications, proximate cause) preclude summary judgment	Defendants: evidence supports that no nondisclosure or causation warranting trial	Court: Summary judgment reversed; factual disputes must be decided by trier of fact

Key Cases Cited

Scott v. Bradford, 606 P.2d 554 (Okla. 1979) (establishes full disclosure/informed consent rule and material-risk standard)
Allen v. Harrison, 374 P.3d 812 (Okla. 2016) (reaffirms and clarifies physician duty to disclose treatment risks and information sufficiency)