Wing v. Lorton
2011 OK 42
| Okla. | 2011Background
- Patricia Hawk Wing was injured in a February 10, 2006 car collision and treated by Dr. Lorton for a left leg/foot injury.
- Dr. Lorton performed left-leg surgery but did not order x-rays of the left foot during initial treatment.
- By March–April 2006, Wing believed her foot was injured and sought care; Lorton advised swelling and pain would improve and did not require an x-ray at that time.
- An x-ray in April 2006 finally revealed fractures, and Wing later sought orthopedic foot specialist care, claiming inadequate options and referrals were declined.
- Wing filed suit on August 8, 2008 alleging medical negligence for failure to diagnose and treat the foot fractures, and loss of consortium by the husband.
- Defendants moved for summary judgment arguing the two-year statute of limitations for medical malpractice began in April 2006 when the fracture was diagnosed; the trial court granted summary judgment, which the Court of Civil Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When does the discovery rule start the statute? | Wing argues the injury/delay in diagnosis caused ongoing harm and the discovery rule governs when she knew of the wrongful treatment. | Lorton/Eastern argue the claim accrued when the fracture was diagnosed in April 2006, commence the two-year period. | Issue reserved for fact-finder; not time-barred as a matter of law |
| Whether the trial court properly granted summary judgment on statute-of-limitations grounds | Wing contends genuine issues exist about due diligence and discovery timing. | Defendants contend no genuine issues exist and the claim is time-barred. | Remanded for factual determination; summary judgment reversed |
| Whether the claim should be decided by a jury on reasonable diligence | Reasonableness of Wing's discovery efforts is a jury question. | Duty to exercise diligence was clear once diagnosis occurred; no jury questions. | Jury should decide whether Wing exercised reasonable diligence |
Key Cases Cited
- Redwine v. Baptist Med. Ctr., 679 P.2d 1293 (Okla. 1983) (wrongfulness and discovery rules trigger limitations determination by jury)
- Lancaster v. Hale, 152 P.3d 890 (Okla. Civ. App. 2007) (post-surgical pain and late discovery of malpractice; similar to facts here)
- Gallagher v. Enid Regional Hosp., 910 P.2d 984 (Okla. 1995) (discovery rule applicability in medical negligence accrual)
- Flowers v. Stanley, 316 P.2d 840 (Okla. 1957) (diligence standard in discovery as a matter for trial court)
- Daugherty v. Farmers Coop., 689 P.2d 947 (Okla. 1984) (discovery rule and diligence in medical malpractice contexts)
- Reynolds v. Porter, 760 P.2d 816 (Okla. 1988) (recognizes discovery rule as governing accrual in malpractice)
- Grayson v. State ex rel. Children's Hosp., 838 P.2d 546 (Okla. Civ. App. 1992) (accrual principles in medical negligence context)