OPINION
In this аction for personal injury, Appellant Angela Rosson (Rosson) seeks review of judgment in favor of Appellee Dr. Tom Co-burn (Coburn).
Rosson filed her Petition in the trial court on December 4, 1991, and in her First Amended Petition set forth two causes of actiоn. The first cause of action alleges a battery, asserting that on November 7, 1990, Coburn unnecessarily ligated Rosson’s right fallopian tube without her consent. The ligation rendered Rosson sterile in that her left fallopian tube was removed during the samе emergency exploratory procedure for treatment of an ectopic pregnancy. 1
The second cause of action alleges professional negligence arising from the same procedure as the аlleged battery. Rosson contends in the petition that Coburn breached his duty as a physician by failing to exercise reasonable care in advising and informing her before performing the unauthorized and unnecessary ligation.
Coburn’s Answer to the Amendеd Petition included, among other things, the affirmative defense of statute of limitations to the battery cause of action. Subsequently, Coburn filed a motion to dismiss, again asserting the battery claim was barred by
Just prior to the jury trial, the trial court, with another judge on the bench
3
, dismissed Rosson’s battery claim. The trial court found the battery claim was barred by
After presentation of Rosson’s evidence, the trial court sustained Coburn’s demurrer. From the bench, the trial court stated its finding, as a matter of law, that Rosson’s only remaining claim was in fact one in battery, which was also barred by the one year statute of limitation. Rosson brings this appeal from judgment for Coburn based on the trial court’s findings.
Rosson first contends the trial court erred when it dismissed her battery claim. She alleges prоcedural error, but because we reverse on substantive grounds we need not consider Rosson’s procedural arguments.
Rosson asserts that rather than the one year limitation period found in
*734 An action for damages for injury or death against any physician, ..., whether based in tort, breach of contract or otherwise, arising out of patient care, shall be brought within two (2) years of the date the plaintiff knew or shоuld have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; provided any action brought more than three (3) years from the date of the injury shall be limited to actual medical and surgical expenses incurred or to be incurred ...,
This state has long recognized that an unnecessary operation performed upon a patient without his or her consent constitutes a technical battery.
6
Rolater v. Strain,
If a stаtute is plain and unambiguous, and its meaning clear, it will be accorded the meaning expressed by the language used.
Berry v. Public Employees Retirement System,
Rosson’s battery claim also comes within the language of
Here, § 18, which provides a limitation period for only those battery claims arising out of patient care, is more specific than § 95 (Fourth), which limits battery claims among claims for other tortious conduct. Therefore, § 18 would be the applicable statute under the rule in
Independent School District
#
1.
Additionally, as the later legislative expression, § 18 wоuld ordinarily be given effect over § 95, and any other prior enactments of contrary import
7
.
Brown v. Marker,
Coburn asserts that including battery claims within the limiting provisions of § 18 renders that section an unconstitutional special statute under Article 5, Section 46 of the Oklahoma Constitution 8 . He argues that the effect of such inclusion is that physicians are singled out from the entire class of battery litigants for different treatment.
The Supreme Court has disposed of this issue in
McCarroll v. Doctors General Hospital,
The
McCarroll
Court found the constitutional challenge was to the “legislative grouping of health care providers into a class for special legislative treatment”, which is what Coburn argues here. The Court adopted the reasoning that “[IJegislation affecting alike all persons pursuing the same business under the same conditions is not class legislation”
9
.
McCarroll,
... the classification of health care providers for thе purpose of legislatively limiting the. time within which an action against them may be brought, as set forth in 76 O.S.1981 § 18, has not been shown to be such an arbitrary exercise of legislative *735 discretion or without any show of good cause as would impel this Court to declаre it unconstitutional....
McCarroll, at 387.
As her second appellate proposition, Ros-son contends the trial court erred as a matter of law when it sustained Coburn’s demurrer at the close of Rosson’s evidence. We agree.
In addition to the preservation of her battery claim under the two year limitation period in 76 O.S.1981 § 18, Rosson has an alternative claim for malpractice under the second cause of action in her First Amended Petition. That cause of action alleged рrofessional negligence. In granting Coburn’s demurrer, the trial court found, as a matter of law, that “there was no evidence that the Court heard from the plaintiff which indicated that the surgery in question was done negligently other than the battery claim”.
Rossоn testified that Coburn failed to advise her concerning the right fallopian tube ligation, and failed to get her consent for the procedure. The facts here are similar to those in
White v. Hirshfield,
In
White v. Hirshfield,
... where a patient is under the care, treatment, and- control of а physician, and an unnecessary operation is performed without the consent of such patient, that the elements of technical assault and battery include malpractice and a violated duty upon the part of the physiсian to his patient, and where an injury results to the patient, that such patient may waive 10 the action for technical assault and battery and rely for their right to recover damages by reason of the wrongful and unskillful acts of the physician, which сonstitute a violated duty upon his part.
The physician’s duty discussed in
White v. Hirshfield
is the core of the later developed medical malpractice cause of action based on lack of “informed consent”. In adopting the doctrine of informed consent, the Supreme Court noted the duty to disclose is the first element of the cause of action.
Scott v. Bradford,
In reviewing a demurrer to the evidence, we must examine the evidence in the light most favorable to the plaintiff.
Middlebrook v. Imler, Tenny & Kugler, M.D.’s, Inc.,
In addition to Rosson’s testimony that Co-burn failed to advise her and obtain her consent to the procedure which rendered her sterile, she also testified as to damages, including that she wanted to have more children. The record also reveals testimony of a medical expert that Coburn’s performance at the time in controversy was a departure from the standard of care and that it was the proximate cause of Rosson’s condition of sterility. This evidence, taken in the light most favorable to Rosson, was sufficient to establish a cause of action for medical malpractice.
With regard to the question of standard of care, we are unpersuaded by Rosson’s assertion that her claim is one of negligence per se because federal regulations were violated by Coburn’s performance of the procedure which rendered her sterilе. In support of this assertion, Rosson relies on Title XIX of the federal Social Security Act, 42 U.S.C. § 1396 et seq, as amended, and its implementing regulations.
Title XIX is entitled Grants to States for Medical Assistance Programs. The grants are under what is commonly known as the Medicaid Program. The record reflects Co-burn had been paid for his care of Rosson with Medicaid funds.
Within Title XIX, § 1396 authorizes appropriations for the purpose of enabling each *736 State, as far as practicable under the conditions in such State, to furnish medical assistance and rehabilitation to certain specified categories of persons. Section 1396 also limits sums made available to only those States with approved State plans for medical assistance.
Regulatory implementation of Title XIX as to sterilizations is found at 42 CFR 441.250 et seq. Section 441.252 requires that State plans for medical assistance provide for payment of sterilization procedures only if requirements of the Medicare regulations are met.
One of those Medicaid rеquirements is that the individual sterilized be at least 21 years old at the time consent is obtained. Rosson argues Coburn’s performance of the sterilization procedure on her was negligence per se because she was only 20 years old at the time.
Among other things, to establish negligence
per se
by violation of a statute or regulation, the injured рarty must be one of a class intended to be protected by the statute or regulation.
Ohio Casualty Insurance Co. v. Todd,
The Medicaid Act is an administrative scheme providing medical assistance benefits to qualified recipients through states, implying no private right of action.
Chalfin v. Beverly Enterprises, Inc.,
The Medicaid regulations themselves reveal that their purpose is not to impose a national policy prohibiting sterilization of those under the age of 21 years, but to ensure that federal funding is not used to do so. 42 CFR 441.253 provides:
FFP 11 is available in expenditures for the sterilization of an individual only if—
(a) The individual is at least 21 years old . at the time consent is obtained; ... (emphasis added).
Whether Coburn violated Medicaid statutes or regulations by receiving Medicaid funded compensation for the sterilization procedure on Rosson appears to be in controversy, but even presuming he did receive such compensation, it would not establish negligence per se. It follows that the trial court did not err in denying Rosson’s motion to take judicial notice of Medicaid statutes because the statutes were not in issue.
We find the trial court did err, however, in dismissing Rosson’s first cause of аction alleging battery, and in sustaining Coburn’s demurrer to Rosson’s evidence on her second cause of action alleging professional negligence.
Accordingly, the judgment of the trial court is REVERSED, and this matter is REMANDED to the trial court for further procеedings consistent with this opinion.
Notes
. Rosson did sign a consent form for an "exploratory laparotomy”.
. 12 O.S.1981 § 95(Fourth) provides:
Civil actions other than for the recovery of real property can only be brought within the following periods ...:
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(Fourth) Within one (1) year: An action fоr libel, slander, assault, battery . (emphasis added)
. The presiding judge acted sua sponte "to dispose of the pending motions", and apparently was unaware the motion had been ruled on previously.
. Supra, footnote 2.
. Supra, footnote 2.
. A "technical battery” occurs when a physician, in the course of treatment, exceeds the consеnt given by the patient. Black's Law Dictionary at 153 (6th ed. 1990).
. 76 O.S.1981 § 18 was enacted effective April 8, 1976 and 12 O.S.1981 § 95 was enacted in 1910.
. Art. 5, § 46, Okla. Const., provides:
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:
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For limitation of civil or criminal actions ..
.See 16A Am.Jur.2d Constitutional Law § 775.
. A plaintiff is no longer required to "waive” or elect a cause of action, but may now ask for relief in the alternative. See, 12 O.S.1991 § 2008(A).
. Federal Financial Participation.