*1 ANDERSON, individually as Leon and rep-
special personal administratrix and Henry
resentative of the Estate of Lee
Richard, Deceased, Goodbear, Josephine
individually as mother and next Henry Richard, Jr., minor,
friend of
Stacy Richard, a minor and Brandon
Richard, minor, Michael Richard and Richard, Plaintiffs-Appel- L.
Steven
lants,
v. EICHNER, Randy Morgan,
Edward a/k/a Morgan, Serbousek,
R.R. Lee Edward
Kuekes, Greenfield, Ronald John P.
Kuebler, Hospital Oklahoma Memorial Teaching
and the State of Oklahoma
Hospitals, Defendants-Appellees. BHAT, totally incapaci
Uttara Karnik adult, Bhat,
tated and Chandrashekar A. person Husband Guardian of property Bhat, of Uttara Karnik
totally incapacitated adult; and Mar
tand R. Karnik Shashikala Mrs. Karnik,
Martand Parents of Uttara Kar Bhat, Plaintiffs-Appellants,
nik
STATE of ex rel. DEPART
MENT OF HUMAN SERVICES—
OKLAHOMA MEMORIAL HOSPITAL Regents rel. ex Board of
University Oklahoma; Ralph Laz M.D.;
zara, M.D.; Harvey, John Eliot
Schechter, M.D.; Randolph, M.D.; John Twidale, M.D., individually;
and Nick College Medicine Private Plan,
Practice Joint Venture Medical
Partnership, University a/k/a Plan, Medicine Professional Practice
Defendants-Appellees.
Nos.
Supreme Court of Oklahoma.
Dec. *4 Twardy, City, Oklahoma and Ed
Stan Abel, Sehroeder, Lynn B. Donald E. Musser, Assoc., Mares, Abel, Sokolosky & City, appellants for in 79507. Oklahoma No. L. Wiggins Cynthia Sparling, John Adler, Short, Barnes, Wiggins, Margo & in City, appellees for Oklahoma No. Hombeek, Richard E. Abowitz & Welch Vitali, Hornbeek, Krahl & Oklahoma City, appellants for in No. 79517. Driskill, City, appellee Kevin Oklahoma Eichner in No. 79517. Pierce, Hurt, Harness, Roger
J.
Inona J.
Couch, Hendrickson,
Baysinger
&
Johnston
Tobias, Pierce, Couch,
and Haven
Hendrick-
son,
Green,
City, Baysinger &
Oklahoma
appellees Morgan
in No.
and Serbousek
Frasier,
Hickman,
R.
Frasier &
Steven
Jr.,
Berry,
K.
Tulsa and Howard
Oklahoma
City, for
in Nos. 79517 and
amicus curiae
Lawyers
Trial
Ass’n.
Oklahoma
Kelsay,
City,
complications
for amicus cu- 1986 from
surgically
Ed
Oklahoma
at-
79517 and
riae
Nos.
tempted
placement2 procedure
central line
Medical Ass’n.
State
performed at
Hospital
Oklahoma Memorial
During
procedure,
[OMH].
Richard’s
OPALA, Justice.
lung
multiple
and subclavian vessel sustained
first-impression
dispositive
issue
.of punctures
intrapulmonary
resulted
appeals is
these two
whether the Governmen-
pleural hemorrhage.
faculty physi-
tal Tort
Act1 shields
Claims
When in the
rendering
course of
cians,
resident
and interns —who
Richard,
Randy
treatment
teaching
participating
Morgan,
either
in an
Dr.
program
intern,
educational
at Oklahoma Memorial
Serbousek,
resident
and Dr. Lee
Hospital
in medical mal-
physician,
participating
were both
—from
practice
brought against
suits
them then-
graduate
program
medical education
at the
employees.
status as state
We
answer
University of Oklahoma Health Sciences
(a)
negative.
today
We conclude
(OUHSC).
Eichner,
Center
Dr. Edward
specifically
Act
Governmental Tort Claims
professor of medicine and Chief of the Hema-
immunity purview
takes out of the state
Section,
tology
Department of Medicine at
those acts of
educators and stu- OUHSC,
faculty physician
was a
super-
who
dents which fall under the rubric of “medical
Morgan
vised and instructed Drs.
and Ser-
*5
(b)
practice”;
for all such acts the
regarding
bousek
Richard’s
All
treatment.
individually
are
teachers
students
liable
defendants,
three of these
either as teacher
according
principles
general
to the
or student in
pro-
the OUHSC’s educational
law, except
liability
that the total individual
gram,
making
were involved in
treatment
physicians
of resident
and interns stands lim-
administering
decisions and
medical care to
(e)
$100,000.00;
ited to
the district
Richard.
summary judgments
court’s
for the defen-
physicians
dant
must be reversed with the
representa-
Richard’s next of kin and the
causes
in
remanded
both actions.
brought wrongful
tive of his estate
death
malpractice against
action for medical
defen-
I
Eichner,
Morgan.
dants
Serbousek and
THE ANATOMY OF LITIGATION
plaintiffs also sued OMH and the
State
Teaching Hospitals.3
The trial
A.
gave summary
court
judgment to the three
79,517
Cause No.
Anderson Claim
—The
physicians.4
quests
summary
Their
for
relief
stood rested on
from tort
Henry
The Anderson claim arose when
by
Richard
died on November
conferred
Tort
[Richard]
Governmental
Claims
seq.
pertinent portions
April
§§
1. 51 O.S.1991
et
4.The
summary judgment in the Anderson action are:
chemotherapeutic
regi-
2. Some
and antibiotic
Defendants,
"This Court ...
finds that the
require
mens
extended vascular access. This is
Eichner,
(physician faculty
accomplished-with
Edward
M.D.
mem-
the catheterization and inser-
(CVL)
ber),
(resident
Randy Morgan,
tion of a central venous line
into the
M.D.
intern
subclavian,
patient’s cephalic,
Serbousek,
(resident
internal or exter-
physician), and Lee
M.D.
jugular
nal
vein. The Merck Manual of
Diagnosis
physician), are immune from suit under the
Berkow,
(Robert
eds.,
Therapy
M.D. et al.
pursuant
Governmental
Claims Act
to 51
Tori
1992).
being
16th ed.
Richard was
for
treated
seq.
§O.S.
et
receiving
leukemia and was
intravenous fluids
ORDERED,
"IT IS THEREFORE
AD-
through
and antibiotics
a central line catheter.
DECREED,
[physician]
JUDGED AND
that the
existing
When on November
began leaking, surgery
his
CVL
Summary Judg-
Defendants'
... Motions for
performed
replace
was
hereby
granted,
ment should be and
patient’s
it with a new catheterization line on the
judgment
granted
as a matter of law in
opposite side.
against
favor of these aforesaid Defendants and
the Plaintiffs.”
plaintiffs’
against
3. The
claims
OMH and the
Teaching Hospitals
State of Oklahoma
remain
pending in the trial court.
professor of
Randolph,
an assistant
because,
Dr. John
the medical services
Act5
when
rendered,
they
performed emergency sur
surgery,
were either
thoracic
question were
at
teaching
participating
two
engaged
gery
perforation
duties
while
correct
pro-
in an educational
operation.
physicians
OUHSC as students
observed
resident
functions,
gram.6
diminished heart
Because of her
oxygen-deprived
Bhat’s
became
brain
B.
period of time. She remained
a comatose
her
on De
vegetative condition until
death
79,507
Bhat Claim
No.
Cause
—The
19, 1992.7
cember
Bhat
on
claim arose
November
under-
Karnik Bhat [Bhat]
1989 when Uttara
brought
kin
mal-
Bhat’s
next
valvuloplasty
correct a
went
elective
against
practice action
the individual
mitral valve
narrowing of her heart’s
Department
cians and the State Oklahoma
laboratory. Rec-
catheterization
OMH heart
[DHS],
of Human
OMH and
Services
Lazzara,
proce-
Ralph
Dr.
ommended
College
Plan
of Medicine Private Practice
Harvey
by Drs. John
performed
dure was
sought
The defendant
[PPP].8
Schechter,
faculty physicians at
all
and Eliot
summary judgment, arguing
were
Twi-
Jatin Amin and Nicholas
OUHSC. Drs.
torts
immune from
committed
dale,
participated in
physicians, also
resident
teaching
engaged
duties or while
Lulla, another
performance.
its
Dr. Sunil
graduate
in a
participating
medical education
present and observed
physician,
was
program
gave
The trial
at OUHSC.9
court
Bhat’s heart catheterization.
summary
ruling
judgment
physicians,
(as
employees
their
Bhat’s heart
status
During
procedure
employment)
ren-
bleeding within the
perforated, causing pericardial
was
liability.10
immune from civil
her heart
functions.
dered them
which interfered with
*6
by
moving party
party,
Supra
the adverse
1.
5.
note
copy
attached
the material relied on shall be
of
152,
O.S.Supp.1986 §
21.
note
6. See 51
infra
[Emphasis
the
added.]
to
statement."
deposition
appeal
All
material to be reviewed on
79,507
claim)
(the
we have
Bhat
In Cause No.
must be
in the court
both
clerk's
filed
office
deposition
has
material that
received voluminous
by
to
the
shown
the record
have been tendered for
appellate
designated
in the
been
for inclusion
Hulsey, supra,
trial
consideration. See
court’s
appellate
of
cannot take notice
record. An
court
Only
excerpts
the
to review a certified order. II earlier direction the came this court’s cases THE GOVERNMENTAL TORT appeals to be recast as which are authorized CLAIMS § appellate O.S.1991 100611 review ACT DOES NOT EXTEND IMMUNITY adjudication multiple in advance of final of all TO THE DEFENDANT PHYSICIANS multiple parties. claims or The district FOR TORTS OCCURRING WHILE court’s certified orders12 were deemed the THEY WERE PRACTISING MEDICINE statements, equivalent judicial functional physicians’ individual 1006, (a) required by just “no reason” liability turns on our construction of the delaying appeal exists for immediate (b) Governmental Tort Claims Act.13 judgments physicians may for the The com be appeals entered at once. The sovereign immunity stand eonsoli- mon-law doctrine of was (he Okl., acting City, ees of the State of Oklahoma within Midwest 1034-1035 scope employment accordingly alleged pur- immune from for the torts 79,517 (the claim) In Cause No. Anderson Further, seq. suant to 51 O.S. 151 et order, interlocutory trial court's certified April filed on defendant, Twidale, Court finds that Nick 27, 1992, pertinent part: states in M.D., third-year was a resident or fellow in hereby pursuant "[T]his Court finds that cardiology University at of Oklahoma Appellate Rule 1.50 of the Oklahoma Rules of Health Sciences Center at the time of the cases, Procedures in Civil [the] that ... Order complained employee events of and was an granting Summary Judgment on behalf of Drs. the State of Oklahoma within Eichner, Morgan and Serbousek affects a sub- Defendant, Twidale, employment. of his Nick part controversy, stantial of the merits of this M.D., is also immune from for his and therefore should be certified for immediate alleged pursuant seq. torts to 51 O.S. et Order, appeal interlocutory as an in order to ORDERED, “IT IS THEREFORE AD- materially advance the ultimate termination of JUDGED AND DECREED that Motion for litigation. Summary Judgment filed [the on behalf of ORDERED, “IT IS THEREFORE AD- physician] hereby granted ... defendants JUDGED AND DECREED that this court's Or- granted judg- and that these defendants are granting summary judgment der ... [the ment as a matter of law.” physician] defendants ... should be certified order, interlocutory pursuant as an to Rule *7 1006, pertinent § 11.The terms of 12 O.S.1991 Appellate 1.50 of the Rules of Procedure in 1, 1991, effective June were: civil cases.” 79,507 (the claim) In Cause No. Bhat the trial “When more than one claim for relief is order, 24, 1992, April court's on filed states in presented multiple in an action ... or when pertinent part: involved, parties may the court direct the hereby pursuant “[T]his Court finds that to preparation filing judgment and aof final as to Appellate Rule 1.50 of the Oklahoma Rules of parties only upon one or more of an ex- cases, Procedures in civil ... [the] Order press just determination that there is no reason granting Summary Judgment on behalf of delay upon express and an direction for the Lazzara, M.D., M.D., Ralph Harvey, John Eliot filing judgment. of In the absence of such Schechter, M.D., M.D., Randolph, [sic] Johns direction, any determination and order or other Twidale, M.D., and Nick affects a substantial decision, designated, however form of part controversy, of the merits of this adjudicates all than the claims or the fewer ap- therefore should be certified for immediate rights parties and liabilities all the than of fewer Order, peal interlocutory in order to any shall not terminate the action as to of materially advance the ultimate termination of parties, claims or and the order or other form litigation. subject of is to decision revision at time ORDERED, "IT IS THEREFORE AD- judgment adjudicating before all the claims JUDGED AND DECREED that this court’s Or- rights parties and the and liabilities of all the is granting summary judgment der ... to [the [Emphasis added.] filed with the court clerk." physician] defendants ... should be certified (Okl.Sess.L. By amendments enacted in 1993 Interlocutory pursuant as an Order to Rule 1993, 351, 23, 30, 1, 1993) §§ Ch. eff. Oct. Appellate 1.50 of the Rules of Procedure in § 1006 was amended and recodified as 12 civil cases.” O.S.Supp.1993 § 994. For discussion of requirements, § Mortg. Supra see Tinker Inv. & v. 13. note 1. accountability to all torts for which pronouncement mental abrogated by our Vander- liable, of that in the absence person entity we held or would be sub- pool.14 private There conferring or total immuni- partial a statute only ject specific to the act’s “limitations subdivisions, state, political its ty, the exceptions.”18 scope of their acting within employees in tort in the employment stand liable employees acting State within private cor- as a individual or manner same employment of are relieved their to responded legislature The poration.15 152.1(A) liability § private of tortious cond codify Vanderpool’s Oklahoma’s invitation immunity grant public uct.19 This allows immunity by enacting the sovereign policies perform duties and make employees to their The Tort Claims Act. 1984 Governmental behalf of the state free from fear decisions on govern- the parameters of latter redefined determining task of suit.20 In the of whether liability.16 act provides, mental physicians are immune from the defendant 152.1(B), governmental § liability acts in for the suit because political and its subdivisions the state state, analy employment status with the our man- “only to the extent in the waived ” begin portion must with the definitional sis Tracking Van- provided in the act.17 ner 152(5)21 rationale, employ- § govern- § which state derpool’s 153 extends act — —in state, place politi- Okla- all other of the Vanderpool v. State Oklahoma ex rel. 14. 1153, Okl., employee Society, or at common law or P.2d cal subdivision homa Historical (1983). 1156-57 otherwise.” supra at See Vanderpool, note 14 1156-57. 152.1(A), § of 51 see 19. For the text O.S.1991 Rural Water & Sewer also Gunn v. Consolidated supra note 16. 1, Okl., (1992); District 839 P.2d No. State, (1990). Okl., Nguyen Donahue, Okl., P.2d 20. Neal v. effec- 16. The Tort Claims Act was Governmental terms its 152.1 tive October 1985. The O.S.Supp.1986 pertinent 21. The terms of 51 O.S.1991], not amended [51 which have been 152(5) (eff. 1986), July applica- which were since are: arose, provided: claim ble when the Anderson hereby State Oklahoma does "A. The immunity. adopt sovereign the' doctrine of any person "Employee” “5. means who state, subdivisions, political all of its political to act in behalf of subdi- authorized employees acting scope of their within the person is act- vision or the state whether performing govern- employment; whether basis, ing permanent temporary on a or with functions, proprietary be im- mental or shall being compensated or or without on a full-time mune from for torts. part-time Employee basis. also all includes state, only and in the B. The extent officers, gov- appointed elected or members of act, provided this waives its immu- manner erning persons designated bodies other nity political its In so and that of subdivisions. subdivision, agency political but act for an immunity, waiving it is not intent person legal the term does mean entity or other any rights state waive under the Eleventh capacity of an inde- to the States Constitution.” Amendment United pendent purpose contractor. For act, physicians acting ca- in an administrative 152.1(B), For see the text 51 O.S.1991 *8 pacity, physicians and resident interns resident supra note 16. graduate participating in a education medical provide: § College 18. The terms of 51 153 program University O.S.1991 the Oklahoma of of College or the Oklahoma Osteo- political Medicine state subdivision shall "A. The or a of of faculty pathic Surgery and and resulting Medicine mem- or the be liable for loss from its torts College acting scope University employees bers the Oklahoma torts its within the of of of of College employment subject the Osteo- of Medicine and Oklahoma their the limitations of specified only pathic Surgery, engaged exceptions this and while in in act and Medicine subdivision, teaching employees political duties state. state if are the where the or of University private entity, Physician faculty person or for members the be liable of of College money damages and the Okla- the laws of this state. Medicine under of political College Osteopathic not be homa Medicine and Sur- The state or a subdivision shall of any gery acting capacity provisions in an or the of this act for not administrative hable under teaching acting engaged employees not or employee outside duties are act omission of an or However, agents event shall scope employment. the the state. no of his of liability political or sub- the held liable the tortious conduct B. The of the state state be for physician, or intern this shall be division under act exclusive of
1337 significant compo- provision surgical or in the of or ees are described. Three medical 152(5) treatment, § be ex- though they the definition must may nents of even also be (a) faculty physicians amined. These are: acting agree. as teacher or student. We capacity or en- acting in an administrative gaged teaching duties and resident 152(5)’s language Section creates participating graduate in a cians and interns physicians dichotomous division two into of program employees medical education are (a) of categories: distinct teachers or students (b) state; faculty physicians acting in the (b) practitioners of medicine. For their capacity performing or administrative tortious conduct as teachers or students the employee teaching duties are denied status liable; state is for their like acts or omissions (c) immunity; state consideration of
for practitioners state not. the is The final physicians’ they torts these while for 152(5)23 § provision in clearly takes em the practising providing are medicine or medi- ployee/teaching-physicians employee/stu expressly abrogated. cal treatment is dent-physicians out of the of scope their em ployment practising when medi statutory The rule con cardinal of pur for or cine—whether educational other judicial struction calls for a search to ascer poses yet protection leaves them within the prob legislative tain intent.22 The obvious — 24liability respondeat superior of of physi lem of here that the activities these their duties that are disconnected from treat 152(5)’s § precisely cians not fit defi do into patients. ment of This nitional scheme. is so because the con scrutiny duct under includes both elements physicians argue The teaching defendant participating or in an education 152(5) § operates only to practising limit the program al and those medicine. Nonetheless, urge leg state’s and does not waive their indi plaintiffs the that the physicians responsibility.
islature vidual from civil intended these be reject employment interpreting the when We this notion. In outside statute, act, they engage practice legislative ever of medicine the which is to be practicing providing employer). premise medicine the rule on the This rests that, [Emphasis exercising patients.” delegated authority, added.] treatment to when the quoted language changed by complete employee The was not stands under control (the Texaco, Okl., Layton, employer. 1989 amendment 152 version in effect Inc. v. 395 1990, arose). 1991, 393, (1964). when the Bhat claim P.2d v. 396-397 See also Braden Okl., 1343, Hendricks, (1985); and 1993 no on this 1992 have amendments P.2d 1352 695 effect 1, litigation. July Co., Okl., 1986 amendment of Elias v. Midwest Marble and Tile 302 152(5) 126, (1956); added the fourth and fifth sentences and Pipe- P.2d 127-128 Mid-Continent Crauthers, Okl., 568, altered the third sentence which earlier read: P.2d 571 line Co. v. 267 act, physicians purpose Smith, 691, (1954); “For 195 World Pub. Co. v. OH. capacity, except 861, 152, in a nonadministrative for res- (1945). 161 P.2d 863 The terms of interns, practicing at the 21, ident provide supra shall note state Teaching Hospitals State Oklahoma are not malpractice, appear to not be liable for medical employees agents of the state.” attempt preserve legislative be for the general protective separation the same Petroleum, Company, 22. So-Lo Oil Inc. v. Total private hospitals afforded in similar situations. Inc., Okl., 14, (1992); Humphrey 832 P.2d 18 v. theory jurisdictions, respondeat In most Okl., (1988); Denney, P.2d Matter superior hospital is not extended to a if Co., Okl., Phillips 652 P.2d Petroleum private operat- doctor is considered contractor State, Okl., (1982); v. Lancaster 426 P.2d i.e., ing on own when a doctor- his/her behalf — Dinwiddie, (1967); State v. Okl. patient relationship pre-exists patient’s ad- P.2d hospital. See mission to Weldon Seminole OH., Municipal Hospital, 1059- *9 pertinent supra § 23. For the terms of see (1985). But, theory 1060 the of ostensible under note 21. agency, hospital vicariously be a can liable physician, notwithstanding negligence the of a status, respondeat superior physician's independent 24. the Under doctrine of a the contractor "solely principal employer generally patient or is held liable for when the looks treatment agent employee viewing facility hospital” as those acts of an or which fall the rather than its authority. per merely Qui within the alium "the situs where his would latter’s facit (the per employee problems.” se act of the is the act of treat him for his Id. facit 1338 employees in the entirety,25 con- state when involved must be sidered in its
considered process, as stand reasonable consistent educational nonetheless strued to be legislature kept in force the scope employment The the of their when- whole.26 outside liability by providing they engage practice state’s of medicine. ever thirty carefully ex- §in circumscribed go 15527 fur- attempt at construction need no Our intended emptions. legislature Had the suing employ- The state plaintiffs ther. liability for medical exempt sítate from the who, statutory law, by of were ees force physicians, malpractice faculty and student of scope employment. acting outside the that sec- explicitly done so in it have could plaintiffs These need not hence invoke approach not have been tion. This immunity to their of maintain claims. waiver organization and with the overall inconsistent design Tort of the Governmental institutional A review of other sections of the Claims Act. helpful Tort Claims Act is also Governmental legislative in in our effort to determine the Instead, legislature ad the 156(G) mandates that claims tent. Section proviso problem at hand with a dressed the against physicians or interns shall resident de § section 152—a definitional (civil made in with Titles 12 be accordance employees. impact The are state scribes who (torts) 76 of the Oklahoma procedure) and by is controlled the context proviso of this 16329 provides that resi Statutes.28 Section must be it found. It construed which is individually, physicians can be sued not § dent differently limits on operate from the 155 employees. withstanding their status as Sec liability. provision 152’s final Section 154(D) $100,OOO.30 liability It tion limits descriptive statement. intended as that, recognize special although the These sections the burdens clearly lays rule down the (financial others) amongst by eon- faced student physicians might otherwise be defendant Lancaster, 163(C), § at 716. The of 51 which supra 25. 29. terms O.S.1991 See note States, 1, 11, 1, 1986, July pro- 82 369 U.S. not amended In v. United have been since Richards 591-592, (1962), 492 S.Ct. 7 L.Ed.2d vide: explaining when a the factors to be considered pursuant provisions "C. to the Suits instituted interpreted, Court reasoned: statute is the name defendant of act shall as the state it that a section of "We believe fundamental political against the subdivision not be read in isolation from statute should sought In no to be established. instance Act, fulfilling of the whole context political employee shall an of the state or sub- interpreting legislation, responsibility in our employ- within of division his guided by single be sentence 'we must not exception ment be named defendant with sentence, to the [should] of a but look member provisions phy- on the that suits based conduct resident of law, object and to its whole against " interns be made sicians and shall policy.’ [Citations omitted.] provisions Ti- individual consistent with 716; Lancaster, [Emphasis supra tle 12 the Oklahoma Statutes.” 26. 426 P.2d at note Tulsa, Inc., Okl., added.] 708 LeFlore v. Reflections of by only change § made in 163 the 1986 P.2d 1075 The emphasized was the addition of the amendment exemptions forth in O.S.1991 The set provision. § the state ex- 155 address circumstances where sovereign immunity. pressly The retains its Liability are set limitations in the act out in politi- provide § 155 the state or a terms of (eff. 1, 1986). O.S.Supp.1986 July § Section cal if a loss or subdivision shall not be liable 154(D) provides: thirty specified claim results from one resident "D. The total sovereign agents. or its activities of graduate participating in a and interns while (eff. 156(G) O.S.Supp.1986 University program 28. The terms of 51 medical education 1, 1986) July Medicine, College are: its affiliated Oklahoma College and the Oklahoma of Oste- institutions opathic against "G. Claims and suits Surgery shall exceed Medicine or interns be made in accordance cians shall ($100,- Dollars One Hundred Thousand provisions 76 of the with the of Titles Statutes." 000.00).” only by change The made in the 1986 change by only The the 1986 made D. amendment was the addition of subsection G. was the addition subsection amendment changed quoted language by quoted language changed was not was not 1990 and 1991 amendments. and 1992 amendments.
1339 152(5). statutory clearly make text physicians and some so accommodations (a) upon to distinguish to them should be called treat- protect fails to between medical legisla- against a lawsuit. That the arising defend a physician’s role in the ment protect to this (b) felt a need residents ture process practice educational special underlying indicates in- manner arising from non-educational activities. subject faculty physicians and student tent to questions practical No one that to for torts committed individual experience widely “hands-on” utilized as a practising while medicine.31 Nonetheless, component training. of medical immunity statutory grant A 152(5), legislature, enacting § declined explicit immunity not be di be will must — provide immunity physicians to absolute to silent, legislative from a text that vined rendering patients. medical care to state ambiguous.32 According to the doubtful Nothing in the dicho- statute calls on us to interpretation, act would af defendants’ malpractice patients on their tomize based immunity sovereign to both the state ford physician’s or to assess economic wealth physicians individual for medical and the in extending motivation for which the service setting in an malpractice educational sought. recovery is deny plaintiffs all avenues of re unsupportable. course. This construction is provisions specifically 152 remove Ill immunity governmental from the OF STATUTORY CLASSIFICATION physician and stu those acts educators AS ARE PERSONS WHO PHYSICIANS dents which fall under the rubric of medical INDIVIDUALLY LIABLE FOR TORTS
practice. For these acts the edu COMMITTED WHILE PRACTISING subject students are individual cators and to MEDICINE DOES NOT VIOLATE liability. EQUAL PROTECTION response analysis re- The dissent’s to physicians argue allow- The defendant “pri- lies on an artificial distinction between treating physicians individually lia- ing to be patients” patients” urges and “state vate “arbitrary legisla- ble would be an exercise of governmental immunity shields They placement tive discretion”. assert liability arising only cians from from treat- em- into a class different from other state language plain ment of the latter.33 The exposed personal ployees, who does not dissent’s support the statute conduct, liability for tortious constitutes arbi- interpretation. legislature Had the intended similarly trary disparate treatment of to differentiate between medical treatment individuals, pass mus- patient” given to a “state’s situated which will not rendered Equal private patient, easily it have done could ter under Protection Clause. State, 77, (1990); Okl., legislature Ingram will not v. 786 80 31.This court assume that P.2d Gunn, 15, 1349; act; interpret supra note P.2d at v. has done a vain or useless it must 839 Huff State, Okl., 183, (1988); legislation give every 764 P.2d 185 Jarvis v. so as to word and effect Stillwater, 1108, Okl., City rendering provisions P.2d 1111 than 669 sentence rather some (both (1983) abrogated nugatory. Jarvis were Strelecki v. Tax Commis- Huff State, Okl., 910, grounds, sion, (1994); v. Rodg- statute on other see Bolin Okl. 872 P.2d n. 69 920 29, (1992)). Old., App., (1994); 838 P.2d 30 Higgins, ers v. 871 P.2d In Etc., Okl., Adjudication, Supreme re Court (1979); Okl., McKinley, P.2d TWAv. proposes 33. The dissent a definition medical (1988); O'Dono- 749 P.2d Anderson v. practice vary patient’s eco- that would with the Okl., (1983); ghue, Thompson (the 677 P.2d Treating nonpaying patients status. nomic Okl., (1980); Ekberg, 613 P.2d AMF patients) within the state's would be included Hatchel, Okl., medicine, Tubescope “teaching” caring Co. v. concept (the private Were we to extend absolute paying patients faculty physician’s physicians, provisions "practising" patients) the defendant would be medicine. Un- 163(C), supra dichotomy paying patients Tort [§ Governmental Claims Act could invoke der this brought against negligence, nonpaying 29] note which allow suits to be but unlimited literally kept statutory patients recov- and interns would be would be within the ery limits. nullified. *11 1340 policy by Supreme legislature public creat- States to advance
The United jurisprudence ing dichotomy teaches a duties these defendants of Court’s constitutional protection analysis requires excluding “equal upon perform are called that an legislative scrutiny a classification of activities which fall un- strict only impermissibly classification practising when the the medicine der rubric of while of fundamental the exercise a including purely teaching. interferes with classroom those of vote, right right right the the of as [such physicians argue The defendant travel, guaranteed by the rights interstate 154(D) liability pertains limitation to the Amendment, right procreate] or First statutory that a state’s total disadvantage peculiar of operates or to the interpretation affording immunity to absolute race, a class suspect class based on [such faculty burdening physicians while ancestry].”34 are alienage Because we or $100,000.00 physicians per- and intern with suspect dealing neither a classification with sonal unconstitutional. Be- would be infringement upon a nor an fundamental today cause we hold that both resident right, standard of review the rational-basis faculty individually physicians cians and governs Applying the here.35 rational-basis question malpractice, this liable test, that the dichotomous divi we conclude parties is moot. The have tendered the private public into sion tortfeasors 154(D)’s liability cap issue whether the legitimate interest categories rests on state $100,000.00 fraught in- is with constitutional constitutional restric does not offend firmity only protects it resident and because legislative use classification tions on the faculty physicians intern doctors stand legitimate purpose criteria.36 Where subject liability. personal to unlimited We by statutory means that does not achieved express concerning question. opinion no relatively relaxed standard of violate the rationality, the minimal classification scheme IV may pass constitutional muster.37 CONCLUSION torts constitutes a new
Public
dependent
body
by
language
of the Governmental Tort
of law created
on
faculty
legislature.38
power
of the Claims Act
It is within
en-
clear —
Murgia,
gitimacy
heightened
Bd.
Retirement v.
call for the
standard of re-
Massachusetts
2562, 2566,
307, 312,
substantially
96 S.Ct.
49
view.
must be
427 U.S.
Under this test a law
(1976), citing
governmental
San
School
important
L.Ed.2d 520
Antonio
related to an
interest.
1, 16,
190, 197,
451,
Rodriguez,
Boren,
U.S.
S.Ct.
v.
411
93
Craig
457,
District
v.
429 U.S.
97 S.Ct.
1278, 1287,
(1973).
Cleburne,
(1976);
L.Ed.2d 16
The Court
36
supra,
from the Governmental ing patients.” medical treatment Section encompass Act does Tort Claims not 152(5) provides faculty physicians also practising providing activities of medicine “engaged teaching in their duties” and resi- patients.39 treatment gradu- “participating interns in a dents and TRIAL THE COURT’S SUMMARY employ- program” education are ate medical 79,- 79,507 IN NO. AND NO. JUDGMENTS notes, majority state. As ees of the THE 517 ARE REVERSED AND CAUSES doctors include activities defendant PRO- REMANDED FOR FURTHER practicing elements medicine and both NOT WITH CEEDINGS INCONSISTENT in an teaching participating educational PRONOUNCEMENT. THIS con- program. To determine which element cases, we must trols the outcome these V.C.J., SIMMS, LAVENDER, ALMA underlying principle purpose examine the SUMMERS, JJ., WILSON, KAUGER and acting in the first doctors’ motivation for concur. place. HODGES, C.J., WATT, J., dissent. employs faculty physicians HARGRAVE, J., young and train doctors those participating. not instruct (1) 79,517 (the claim) raise Did plaintiffs also other issues: Cause No. Bhat claim) immunity raise a of additional by Anderson number physicians waive their defendant support their that the trial issues to assertion negli- grossly engaging in willful and wanton or giving summary judgment to the court erred in (2) immunity gent these acts? Is the defen- (1) physicians. Were defendant These include: professional waived to the extent of mal- dants raising physicians estopped from the defendant purchased practice coverage for them insurance immunity liability, or did the defense of they from (3) immunity extend state? and Does immunity, they did not waive because are acts of these not (2) pleading? their initial Is the raise it in policy our governmental Because de- decisions? immunity cians' from unconstitutional today physicians, these cision establishes that plaintiffs access to the because it denies teaching practising institu- medicine in the (3) remedy wrong? and a to redress a courts state, enjoy do tions not physicians’ immunity the state Does the violate liability, not of these ten- we need address special by creating constitutions and federal 79,507 (the plaintiffs in No. dered issues. class? The Cause necessity, seeking specialists. By terns not to become conduct such acts were portion pro- employed by of that educational an essential the state to do so. Accord- place setting ingly, treating cess must take a clinical their actions in the state’s Teaching, patients patients part are treated. train- should be deemed a where go process ing practice and treatment hand-in-hand and all and not the educational 152(5). integral components of the medical edu- medicine under process. cational The State of Oklahoma is conclusion, In I believe that the lower *13 expects, well aware of this fact and it even properly granted summary judgment courts faculty physicians requires, employee its to the defendant doctors in these two cases. perform faculty all of these duties. When a Although engaged the doctors were in both students, engaged instructing is practicing teaching/participat- medicine and rounds, making performance of sur- ing program, they in an educational would gery treating pa- or otherwise of the state’s paid not have so acted were not to do so tients does not alter the doctor’s status as part employees. as of their duties as state certainly that of a These tasks teacher. 152(5), O.S.Supp.1986 Pursuant to 51 pays faculty what the state member to do doctors should be shielded from suit. something doctor do but salary. Consequently, for his state “practicing
actions should not be deemed providing
medicine or medical treatment 152(5).
patients” under
A different conclusion reached is when
faculty physician private patients. If treats physician, happens faculty who to be a OKLAHOMA, TRUST COMPANY OF teaching hospital, provides member at a care guardian of the estate of Ellen Lea private patient, or treatment to a he or she Barker, child, Appellee, a minor generally payment does so in return for patient. perform The doctor does not Oklahoma,
such STATE of ex rel. duties return for renumeration case, faculty DEPARTMENT state. In such a OF HUMAN member SERVICES, Appellant. relationship patient has the same with the as private patient. other doctor has with a No. 82290. state, Despite faculty his affiliation with the physician’s private patients Supreme work with Court of Oklahoma. clearly “practicing providing medicine Feb. patients” meaning treatment to within the 152(5). faculty physician may And while a provide training treating pri- clinical patient, having
vate his reason for undertak- place
en the treatment the first was that him, patient retained not that he is a
teacher for the state. applicable faculty physi-
The rationale engaged teaching applies
cians duties participating and interns graduate
in a program. medical education
Again, the state understands that the treat- patients indispensable compo-
ment of process.
nent of the medical education similarly requires that residents and patients part
interns treat state responsibilities.
scholastic in- Residents and