HURLEY v. KIRK
2017 OK 55
| Okla. | 2017Background
- Dana Hurley underwent a total laparoscopic hysterectomy performed by Dr. Mary Kirk on July 10, 2010; surgical assistant Art Bowen, an independent contractor (not a hospital/physician employee), also participated.
- Bowen had prior operative experience assisting Dr. Kirk but his exact hospital privileges were unclear.
- Hurley signed a written consent authorizing Dr. Kirk and any assistants, and a form section for naming persons performing "significant surgical task(s)" was left blank.
- During surgery Bowen performed and cauterized multiple right‑side structures with a harmonic scalpel; Hurley’s right ureter was perforated, requiring further surgery and prolonged anesthesia.
- Disputed facts: whether Bowen or Dr. Kirk caused the ureter injury, whether Bowen performed significant portions of the operation (versus merely assisting), and Bowen’s qualifications.
- Procedurally, the trial court granted summary judgment for defendants; the Supreme Court of Oklahoma granted certiorari and reversed, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether physician must disclose identity/role of non‑doctor performing significant portions of surgery | Hurley: physician must inform patient who will perform significant parts and obtain consent; nondisclosure supports lack of informed consent claim | Kirk/Bowen: assistant merely "extended physician's hands"; broad consent to assistants was sufficient | Court: Physician must disclose and obtain informed consent when non‑doctor will perform significant portions; nondisclosure raises triable issues |
| Whether undisclosed delegation to an inexperienced/unqualified person absolves physician of liability if procedure performed "correctly" | Hurley: permitting unqualified person to perform critical parts increases risk and physician remains liable even if act was technically correct | Defendants: delegation/assistance does not necessarily create liability absent proof of negligence | Court: Question involves mixed facts (qualifications, involvement, standard of care) for trier of fact; summary judgment inappropriate |
| Whether written consent form (blank designation of significant tasks) satisfied disclosure duty | Hurley: a blank ‘‘significant task(s)’’ section did not inform patient who would perform critical parts | Defendants: the consent authorized assistants generally, so no further disclosure necessary | Court: Form’s blank section is distinguishable and does not absolve duty to disclose who will perform significant portions |
| Whether proximate causation of injury from undisclosed risk exists | Hurley: undisclosed heightened risk (ureter perforation) proximately caused injury | Defendants: causation disputed; injury may not be attributable to nondisclosure | Court: Material fact exists as to proximate cause; issue for jury, precluding summary judgment |
Key Cases Cited
- Scott v. Bradford, 606 P.2d 554 (Okla. 1979) (establishes full‑disclosure rule and elements of informed consent)
- Allen v. Harrison, 374 P.3d 812 (Okla. 2016) (reaffirms duty to disclose what physician intends and whether he should do it; defines scope of treatment disclosure)