Lavender v. Craig General Hospital
2013 OK CIV APP 80
| Okla. Civ. App. | 2013Background
- In July 2005 Lavender underwent a diagnostic laparoscopic procedure by Dr. Thomas Byrne at Craig General Hospital; Byrne performed a tubal ligation which Lavender alleges was done without her informed consent.
- Lavender learned in March 2008 from another physician that the tubal ligation was not medically necessary and irreversible.
- Lavender sued Dr. Byrne in March 2010 asserting negligence, battery, intentional infliction of emotional distress, concealment, and seeking punitive damages; those claims remain pending.
- During discovery, a nurse’s deposition on August 25, 2011 (Betty Winfrey) revealed possible hospital protocol violations (missing "time out" form, failure to obtain required witness initials) giving Lavender reason to assert a claim against Craig General Hospital.
- Lavender served a Notice of Governmental Tort Claim on Hospital on November 2, 2011; Hospital moved to dismiss under the GTCA as untimely (notice must be within one year of the date of loss).
- The trial court dismissed Hospital with prejudice for failure to state a claim; the Court of Civil Appeals reversed and remanded, treating the motion as a converted summary-judgment practice and finding genuine factual questions about application of the discovery rule and tolling/estoppel under the GTCA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lavender’s notice to Hospital was timely under the GTCA (51 O.S. § 156(B)) | Lavender argues discovery of hospital-related facts occurred during the Aug. 25, 2011 deposition, so her Nov. 2, 2011 notice was within one year of discovery and thus timely | Hospital contends notice was untimely because the operative date of loss is July 19, 2005 and notice was served more than one year later, barring the claim | Reversed dismissal: factual issues exist about when claim accrued; discovery rule and possible equitable tolling/estoppel apply and preclude ruling as a matter of law |
| Whether the court properly dismissed without allowing amendment under 12 O.S. § 2012(G) | Lavender would be entitled to leave to amend if dismissal premised on pleading defects | Hospital relied on procedural dismissal under GTCA; court treated motion as sufficient to dispose of claims | Court noted § 2012(G) normally requires leave to amend but concluded dismissal motion had been converted to a summary-judgment context, so § 2012(G) did not apply; remanded for further proceedings |
| Whether the discovery rule applies to toll the GTCA one-year notice period | Lavender invokes the discovery rule (and Tice estoppel/diligence-discovery principles) because Hospital’s conduct and missing records prevented earlier discovery | Hospital maintains the statutory one-year notice is absolute and runs from date of loss | Court held the discovery rule can apply under these facts; when accrual occurred is a question of fact for the trier of fact |
| Whether estoppel or equitable tolling precludes Hospital from relying on GTCA time bars | Lavender argues that concealment or misinformation by medical actors prevented timely discovery and raises estoppel/diligence-discovery issues | Hospital denies concealment sufficient to estop enforcement of GTCA deadlines | Court found evidence sufficient to raise fact questions on estoppel/tolling and reversed dismissal; those defenses to be addressed at trial or on summary judgment with full record |
Key Cases Cited
- Tice v. Pennington, 30 P.3d 1164 (Okla. Civ. App. 2001) (applies estoppel and diligence-discovery principles where hospital employees concealed facts, precluding summary judgment under GTCA time limits)
- Woods v. Prestwick House, Inc., 247 P.3d 1183 (Okla. 2011) (explains and applies the discovery rule tolling limitations until plaintiff knows or reasonably should know of injury and its cause)
- Fanning v. Brown, 85 P.3d 841 (Okla. 2004) (requires courts to allow amendment of pleadings when a defect can be remedied rather than dismissing without leave)
- Glasco v. State ex rel. Oklahoma Dep't of Corr., 188 P.3d 177 (Okla. 2008) (summarizes de novo appellate review of summary judgment)
- Hawk Wing v. Lorton, 261 P.3d 1122 (Okla. 2011) (identifies that accrual/discovery timing is a question of fact for the trier of fact)