SANDERS v. TURN KEY HEALTH CLINICS, 566 P.3d 591

See case details

PHILIP SANDERS, an Individual and Husband and Next of Kin of BRENDA JEAN SANDERS and Personal Representative of the Estate of BRENDA JEAN SANDERS, Deceased v. TURN KEY HEALTH CLINICS, a limited liability company

Case Number: 121589

THE SUPREME COURT OF THE STATE OF OKLAHOMA

Decided: 03/11/2025

2025 OK 19

EDMONDSON, J.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III

Cite as: 2025 OK 19, __ P.3d __

---

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

---

¶0 Plaintiff filed a petition in the District Court for Creek County and alleged a wrongful death caused by defendant. Defendant filed a motion to dismiss the petition and the Honorable Douglas W. Golden, District Judge, granted defendant‘s motion to dismiss and also granted leave for plaintiff to amend the petition. Plaintiff did not amend and appealed the trial court‘s order granting dismissal and leave to amend. The Court of Civil Appeals reversed the District Court, released its opinion for publication, and defendant filed a petition for certiorari to review the appellate court. We granted certiorari. We hold: Plaintiff appealed an interlocutory order, created a premature appeal, and appellate jurisdiction is absent; The Court vacates the opinion by the Court of Civil Appeals and withdraws it from publication; The Court recasts plaintiff‘s petition in error to an application to assume original jurisdiction and petition for prohibition; The Governmental Tort Claims Act makes licensed medical professionals to be employees of this state, regardless of the place in this state where duties as employees are performed, when the licensed medical professionals are under contract, including when under contract as an independent contractor, with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies; The Court assumes original jurisdiction and denies the petition for writ of prohibition.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED AND WITHDRAWN FROM PUBLICATION; APPEAL RECAST; ORIGINAL JURISDICTION ASSUMED; PETITION FOR WRIT OF PROHIBITION DENIED

Charles L. Richardson, Colton L. Richardson, Richardson Richardson Boudreaux, Tulsa, Oklahoma, for Plaintiffs/Appellants.

Sean P. Snider, Anthony C. Winter, Johnson Hanan Vosler Hawthorne & Snider, Oklahoma City, Oklahoma, for Defendant/Appellee.

EDMONDSON, J.

¶1 We conclude The Governmental Tort Claims Act makes licensed medical professionals to be “employees” of this state, regardless of the place in this state where duties as employees are performed, when the licensed medical professionals are under contract, including when under contract as an independent contractor, with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies.

I. Trial Court Proceedings

¶2 Plaintiff Sanders, filed a petition in the District Court and alleged the defendant, Turn Key Health Clinics, LLC, (Turn Key) caused the wrongful death of Sanders’ wife as a result of her confinement in the Creek County Jail. He alleged Brenda Jean Sanders was booked into the Creek County Justice Center on October 17, 2016, at 10:33 p.m., and her health deteriorated during her four weeks of custody. Brenda Sanders was transported from the jail to a hospital on November 20, 2016, where she was diagnosed with “severe sepsis with shock, acute hypoxic respiratory failure, acute kidney injury, hepatopathy, coagulopathy, anemia, and thrombocytopenia.” She died on November 21, 2016.

¶3 Turn Key filed a motion to dismiss Sanders’ petition. Turn Key argued Sanders “failed to state a claim upon relief can be granted,” because Turn Key was “immune from liability under the Oklahoma Governmental Tort Claims Act.” The District Court granted the motion to dismiss and the court‘s order also stated plaintiff was granted thirty days to file an amended petition.

¶4 Sanders appealed the trial court‘s order. The Court of Civil Appeals reversed the order of the trial court, with one judge dissenting, and released its opinion for publication. Turn Key petitioned this Court for certiorari to review the opinion by the Court of Civil Appeals. This Court previously granted certiorari.

II. Appellant‘s Petition in Error Challenging an Interlocutory Order

¶5 This Court inquires into its own jurisdiction in every proceeding before the Court.¹

¶6 Turn Key‘s motion to dismiss the petition cited 12 O.S. § 2012² which provides in part:

G. FINAL DISMISSAL ON FAILURE TO AMEND. On granting a motion to dismiss a claim for relief, the court shall grant leave to amend if the defect can be remedied and shall specify the time within which an amended pleading shall be filed. If the amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered on motion except in cases of excusable neglect. In such cases amendment shall be made by the party in default within a time specified by the court for filing an amended pleading. Within the time allowed by the court for filing an amended pleading, a plaintiff may voluntarily dismiss the action without prejudice.

12 O.S. § 2012(G).³

¶7 In Brown v. Founders Bank and Trust Co., 1994 OK 130, 890 P.2d 855, we analyzed 12 O.S. § 2012(G). We explained the procedure for dismissal and leave to amend in 12 O.S. § 2012(G) was designed to make certain the time when the district court proceeding was terminated for the purpose of a plaintiff‘s appeal.⁴ In Brown the plaintiff filed an amended petition after the time the trial court had allowed. The trial court later memorialized its decision granting the motion to dismiss. The controversy on appeal included an appellate adjudication to determine when the plaintiff could appeal the trial court‘s dismissal.

¶8 We explained in Brown the order granting dismissal with leave to amend was an interlocutory order and not immediately appealable.

When the trial court granted Founders’ initial motion to dismiss with leave to amend, Brown could not have appealed on the merits of his claim. Such an order is interlocutory; it is not a final judgment. The order may ripen into a final judgment upon the motion of an adverse party if the pleading is not amended within the time set by the trial court. A motion to dismiss for failure to state a claim upon which relief can be granted may not be sustained unless it appears without doubt that the plaintiff can prove no set of facts in support of the claim entitling relief.

Brown, 1994 OK 130, ¶ 5 (notes omitted).⁵

¶9 We applied this principle in Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, 775 P.2d 281. In Frazier and in the context of the former Political Subdivision Tort Claims Act, we noted an “ORDER DISMISSING FOR FAILURE TO STATE A CAUSE OF ACTION IS INTERLOCUTORY” when leave to amend is given.⁶ We explained the legislative mandate in 12 O.S. § 2012(G) “leaves no room for judicial discretion.”⁷ Frazier, 775 P.2d at 284 (section title in original).⁸ Brown states an order granting dismissal and leave to amend “may ripen” into a final judgment “upon motion by an adverse party.” Brown, 1994 OK 130, ¶ 5.

¶10 Our appellate jurisdiction is usually based upon constitutional or statutory authority, or a combination of these two, with the authority stating a judicial act in a particular type of matter or a particular type of judicial act, e.g., final order, judgment, etc., may be reviewed by an appeal when brought pursuant to constitutional and legislative requirements.^{9 10 11}

¶11 The appellate record before the Court lacks a memorial of an appealable trial court judgment entered and filed in the trial court after Sanders failed to amend his petition. The truncated appellate record¹² shows the trial court‘s order specified “Plaintiff is granted 30 days to amend his petition.” This interlocutory order is the order Sanders designated in his petition in error as the order being appealed. Our case law, such as 12 O.S. § 2012(G) and Brown, ¹³ classifies the appealed order as an interlocutory order which is not appealable.

¶12 A premature appeal from a District Court may continue if appellant files a timely supplemental petition in error.¹⁴ Id. No supplemental petition has been filed by Sanders.

¶13 Nothing in the record suggests a judgment actually filed in the trial court. A filed judgment is missing from the appellate record. Such error has been remedied by appellant filing the judgment after direction by the appellate court. If appellant “neglected to make the record so show, after the court‘s order so directing, the appellate court may then justifiably dismiss the appeal.”¹⁵ We have historically treated the omission of a memorial of a judgment in an appellate record as a “sine qua non of appellate review” rather than a jurisdictional prerequisite to the commencement of an appeal.¹⁶ However, the legislature has provided: “The filing with the court clerk of a written judgment, decree or appealable order, prepared in conformance with Section 696.3 of this title and signed by the court, shall be a jurisdictional prerequisite to the commencement of an appeal.” 12 O.S. 2021, § 696.2 (C) (emphasis added). Further, the “time for filing an appeal shall run from the date a judgment, decree or appealable order prepared in conformance with Section 696.3 of this title is filed with the clerk of the trial court.”^{17 18} A judgment or order prepared in conformance with 12 O.S. § 696.3 and filed in the trial court as required by 12 O.S. § 990A is missing from the appellate record.¹⁹

¶14 The trial court granted Sanders thirty days to amend the petition. No amendment was filed within the thirty-day period. Sanders’ appellate record presents the Court with the jurisdictional issue whether an interlocutory nonappealable order could ripen into an appealable order by the mere expiration of the time to amend a petition as specified in a trial court‘s dismissal order.

¶15 Sanders’ request for the exercise of appellate jurisdiction on the record before us would require the Court to create an exception for the § 2012(G) procedure not found in that statute, or redefining what constitutes a judgment, or holding an “interlocutory order” may ripen into a judgment during an appeal. The statute, 12 O.S. § 2012(G), states if an amendment is not filed “final judgment of dismissal with prejudice shall be entered on motion.” No such final judgment was entered in the trial court upon a party‘s motion.

¶16 When the legislature has spoken and addressed an issue using plain, clear, unambiguous language within the sphere of the legislature‘s authority, then this Court applies the language without needing to apply rules of statutory construction.²⁰ Oglesby v. Liberty Mutual Insurance Company, 1992 OK 61, 832 P.2d 834.²¹ We cannot redefine a “judgment” to omit the legislative requirement in 12 O.S. § 2012(G) for a final judgment of dismissal when leave to amend is granted but not used by a plaintiff.

¶17 Of course, the mere passage of time after a dismissal may prevent an effective amendment in a particular circumstance, such as when an applicable statute of limitations is raised and its application makes an amendment untimely.^{22 23}

III. No Briefing on Recasting Procedure and Lack of Prejudice

¶18 During our certiorari review we have not required Sanders to return to the trial court to obtain a “final judgment of dismissal” as described in 12 O.S. § 2012(G). We have not required the parties to brief the issue of our jurisdiction and a recasting procedure. An appellate court‘s review of a controversy may include an issue it has raised sua sponte the parties are given a reasonable opportunity to present facts and law on the issue prior to the court‘s decision adjudicating the sua sponte issue, and one example is a court‘s sua sponte inquiry into its jurisdiction.²⁴

¶19 In summary, reasonable expectations by appellate parties before this Court include this Court‘s use of recasting requests for relief with the Court‘s typical analysis. For example, these expectations include, but are not limited to: (1) The Court‘s history of recasting a petition in error to a petition for extraordinary relief in proper circumstances, i.e., changing a request for appellate jurisdiction to one for original jurisdiction; and (2) The Court making an assessment whether recasting has a potential for prejudicing the parties’ legal claims and defenses, the necessity for notice to parties and an opportunity to brief issues, and the necessity of an additional record conforming to an exercise of either appellate or supervisory writ jurisdiction.

¶20 More than thirty years ago we explained: “This court on occasion, and when justice so requires, will treat a petition in error as an original action for a writ, or vice versa.”^{25 26 27}

¶21 Our analysis of a judicial procedure includes issues relating to notice, a party‘s opportunity to be heard, and whether a party suffers legally cognizable prejudice as a result of the procedure used.^{28 29}

¶22 Our analysis whether prejudice could be present by recasting without notice also includes consideration of the Court‘s writ review upon recasting compared to the Court‘s review by appellate jurisdiction. An appellate adjudication of a 12 O.S. § 2012(B)(6) motion is reviewed de novo without deference to the trial court.^{30 31 32 33} Our review of an extraordinary supervisory writ also uses a de novo standard when the issue is one of law, such as a trial court‘s application of 12 O.S. § 2012(B)(6).

¶23 These identical de novo standards of review create no prejudice when applied in a recast supervisory writ proceeding because the same standards of review are applied in an appellate proceeding reviewing the sufficiency of Sanders’ trial court petition. We also note that enforcement of our opinion by a supervisory writ in the trial court is conceptually similar, although not identical, to enforcement of an appellate opinion.

¶24 Sanders’ appeal was brought pursuant to Rule 1.36, Okla.Sup.Ct.R. which provides for the trial court filings to serve as the appellate briefs. The parties had an opportunity to brief the issues raised by the § 2012(B)(6) motion and these issues are also raised by the petition for certiorari.

¶25 We conclude Sanders’ petition in error may be recast to a supervisory writ proceeding without notice to the parties if Sanders’ appellate assignments of error and the issues on certiorari are proper for assuming supervisory original jurisdiction with an associated petition for a supervisory writ.

IV. Appellant‘s Petition in Error Recast as an Application to Assume Original Jurisdiction and Petition for Writ of Prohibition

¶26 Final and interlocutory trial court orders in a cause of action as well as administrative orders by an administrative body or a trial court may be subject to review by the Court‘s extraordinary supervisory writs and superintending writs in proper circumstances. Sanders’ dismissal order is not “final” because it is not a “final judgment of dismissal with prejudice.” Extraordinary review of an order lacking finality due to the absence of a dismissal order is rare, but within this Court‘s authority. For example, the Court has assumed original jurisdiction and adjudicated an issue of law, e.g., a constitutional question, “in the instance where a ruling upon a demurrer was not final for lack of a dismissal order.”³⁴

¶27 Further, the Court may grant affirmative relief in the nature of extraordinary supervisory relief when appellate jurisdiction is absent. The Court may recast a petition in error as a request for original jurisdiction relief in certain circumstances including, but not limited to, when the specific legal issue to be adjudicated is one of first impression, the legal issue may be characterized as within a class of issues or claims historically recognized by this Court as proper for extraordinary relief, and the remedial scope of extraordinary writs issued by the Court includes the specific claim or issue before the Court.³⁵

¶28 The Court examines whether circumstances in support of assuming original jurisdiction are present as part of the controversy, for example, clarifying a new statute or a new legal procedure,^{36 37} publici juris issue is presented.³⁸

¶29 Turn Key‘s motion to dismiss included seventeen attached exhibits. The exhibits include several orders from the United States District Courts for both the Eastern and Western Districts of Oklahoma, as well as orders from the District Court of Oklahoma County and District Court of Creek County. The federal courts state reasoning based upon their predictions how the Oklahoma Supreme Court would rule on an issue of Oklahoma law. These courts cite language in Barrios v. Haskell County Public Facilities Authority, 2018 OK 90, 432 P.3d 233 as support for the health clinic being an “employee” of the State for purposes of the GTCA and immune from liability. Clarifying our previous language in a controversy involving many litigants is a publici juris issue.^{39 40 41 42}

¶30 The Governmental Tort Claims Act on the subject of a legal immunity and immunity in other particular circumstances has been adjudicated by this Court in supervisory writ proceedings where first impression issues of law are presented with an urgent need for adjudication.⁴³ The record before us shows a public need for a prompt resolution of the GTCA immunity issue in this controversy.

¶31 Public policy in support of enforcing a 12 O.S. § 2012(G) finality requirement for an appeal is high, but not so absolute that a petition in error may not be recast to an application to assume original jurisdiction for the purpose of granting a superintending writ when we conclude a publici juris issue is presented.⁴⁴ A superintending writ may properly prevent a trial court‘s abuse of power, e.g., a trial court order which is an abuse of discretion or one which is contrary to law.⁴⁵ Our analysis of a trial court order includes whether it is based upon an error of law or an error of fact.⁴⁶ In 12 O.S. § 2012(G) controversies an appellate court usually has an opportunity to correct an error of law by a trial court in an appeal after the district court proceeding has concluded.

¶32 Our analysis includes considering adequacy of remedies alternative to supervisory writs, because a public interest is not sufficient, by itself, to make an alternative remedy inadequate for the purpose of recasting a petition in error.⁴⁷

¶33 Not every statute is an expression of a fundamental public policy concern,⁴⁸ but we have recently noted “this Court has an interest in ensuring that cases are decided on their merits” and “we would rather decide a case on its merits than through a technicality.”^{49 50 51} We conclude the importance of a first impression issue of law on a publici juris immunity issue outweighs the 12 O.S. § 2012(G) finality requirement in this instance for the purpose of our sua sponte recasting of this controversy.

¶34 We recast Sanders’ petition in error to an application to assume original jurisdiction and a petition to issue a writ of prohibition to prevent enforcement of the trial court‘s dismissal order. The scope of our original jurisdiction review includes all filings in the appellate controversy and the specific claims made and preserved by the parties. We assume original jurisdiction and deny the petition for a writ of prohibition.

V. The Oklahoma Governmental Tort Claims Act and Issue Raised by Parties

¶35 Turn Key, LLC, was a healthcare contractor with its employees providing healthcare to inmates in the Creek County Detention Center. Plaintiff argues that Turn Key is liable for its own negligence and that of its employees relating to the healthcare Turn Key provides to inmates. Turn Key argues it is immune from liability based upon 51 O.S.Supp.2014, § 152 (7)(b)(7).⁵²

¶36 In Sullins v. American Medical Response of Oklahoma, Inc., 2001 OK 20, 23 P.3d 259, we analyzed whether a private corporation (AMR) was immune from liability for negligent conduct. In Sullins, AMR, was a private corporation that contracted with a public trust, Emergency Medical Services (EMS), with AMR providing dispatching and field operations for EMS. We were required to construe statutory language and adjudicate whether AMR was an “entity designated to act in behalf of the state or a political subdivision.” Id. at ¶ 17, 23 P.3d at 263.

¶37 We observed that an “agency” in 51 O.S. § 152 referred to the “traditional agencies of government,” i.e. “entities through which the state or a political subdivision acts in the administration of government.” Id. at ¶ 19, 23 P.3d at 263-64. We stated: “A private entity such as AMR is not an ‘entity designated to act in behalf of the state or a political subdivision’ merely because it contracts with a public trust to provide services which the public trust is authorized to provide.” Id. at ¶ 20, 23 P.3d at 264. We noted factors supporting this conclusion, and also noted the GTCA “expressly excludes ‘independent contractors’ or ‘an employee of independent contractors’ from the definition of ‘employee,’ indicating that the Legislature intended to exclude public contractors from the immunity provisions of the GTCA.” Id. at ¶¶ 20-22, 23 P.3d at 264. We observed: ”51 O.S.Supp.2000, § 152(7) defines ‘employee’ and expressly excludes an ‘independent contractor.‘” Id. at n. 29, 23 P.3d at 264.

¶38 Beginning in 2007 section 152 of the GTCA stated an “employee” includes licensed medical professionals under contract with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies.⁵³ Sanders’ petition alleged injury caused by Turn Key occurred between October 17, 2016, and November 20, 2016. The 2014 version of 51 O.S. § 152 was in effect and stated in part as follows.

Section 152. As used in The Governmental Tort Claims Act:
...7. “Employee” means any person who is authorized to act in behalf of a political subdivision or the state whether that person is acting on a permanent or temporary basis, with or without being compensated or on a full-time or part-time basis.

a. Employee also includes:
(1) all elected or appointed officers, members of governing bodies and other persons designated to act for an agency or political subdivision, but the term does not mean a person or other legal entity while acting in the capacity of an independent contractor or an employee of an independent contractor, . . .
b. For the purpose of The Governmental Tort Claims Act, the following are employees of this state, regardless of the place in this state where duties as employees are performed: . . .

(7) licensed medical professionals under contract with city, county, or state entities who provide medical care to inmates or detainees in the custody or control of law enforcement agencies, and

51 O.S.Supp.2014, § 152 (7)(a)(1) & (7)(b)(7) (emphasis added).⁵⁴ The current version of 51 O.S. § 152 contains the same language in 51 O.S. § 152(7)(a)(1) & (7)(b)(7) as found in the 2014 version of 51 O.S. § 152.⁵⁵

¶39 In Barrios v. Haskell County Public Facilities Authority, 2018 OK 90, 432 P.3d 233, we answered a certified question from the United States District Court for the Eastern District of Oklahoma. Id. 2018 OK 90, ¶ 1, 432 P.3d at 235.⁵⁶ We assumed Turn Key‘s staff were “employees” for purposes of answering the certified question.

Generally speaking, the staff of a healthcare contractor at a jail are “employees” who are entitled to tort immunity under the GTCA by virtue of sections 152(7)(b), 153(A), and 155(25). See 51 O.S.Supp.2015 § 152(7)(b)(7); id. §§ 153(A), 155(25). We have not been asked whether Turn Key Health, LLC or its staff are “employees” under section 152(7)(b), but have assumed they are for purposes of answering the questions certified to us.

Barrios, 2018 OK 90, n. 5, 432 P.3d at 236. We now address the meaning of “employees” in 51 O.S. § 152(7)(b)(7).

VI. The Oklahoma Governmental Tort Claims Act

¶40 Governmental sovereign tort immunity of a political subdivision is waived only to the extent and in the manner provided in the GTCA.⁵⁷ Tort liability is imposed and sovereign immunity retained based upon various criteria in the Act. One general criterion is the actor‘s status as an “employee” of the public entity.⁵⁸ This criterion is often combined with other criteria focusing on the alleged wrongful act being within the scope of the employee‘s employment and distinguishing causes of action for the purposes of the Act based upon a degree of tort culpability. The nature of the alleged wrongful act is also used in 51 O.S.Supp.2022, § 155 to state certain types of conduct for which a public entity‘s immunity is retained.⁵⁹

¶41 The present controversy involves the nature of the alleged wrongful conduct as well as the status criterion of who is an “employee” for the purposes of the GTCA. In Barrios, supra, we stated “Generally, speaking the staff of a healthcare contractor at a jail are “employees” who are entitled to tort immunity under the GTCA by virtue of sections 152(7)(b), 153(A), and 155(25).⁶⁰ Section 152 provides in part as follows.

7. b. For the purpose of The Governmental Tort Claims Act, the following are employees of this state, regardless of the place in this state where duties as employees are performed

. . . (7) licensed medical professionals under contract with city, county, or state entities who provide medical care to inmates or detainees in the custody or control of law enforcement agencies,

This language unequivocally states the status of an “employee” occurs when the nature of the act is a (1) licensed medical professional, (2) under contract with a city county or state entity, (3) providing medical care, (4) to inmates or detainees in the custody or law enforcement agencies.

¶42 Sanders’ petition states that: “Turn Key employees were contracted by Creek County as agents working in the Creek County Jail to provide medical care to inmates.”^{61 62}

¶43 Sanders states a limited liability company is not a licensed medical professional. Sanders argues he has brought an action against a limited liability company and not employees or agents of the limited liability company.

¶44 We agree with Sanders’ assertion that the GTCA states an independent contractor is not an “employee” for the purpose of the GTCA, a principle described by the parties as “the independent contractor rule.” Section 152(7)(a)(1) expressly states the term “employee” “does not mean a person or other legal entity while acting in the capacity of an independent contractor or an employee of an independent contractor.” Additionally, versions of 51 O.S. § 155 provide immunity to a political subdivision for “any act or omission of an independent contractor or employee of an independent contractor.”⁶³ Teeter v. City of Edmond, 2004 OK 5, 85 P.3d 817. Id. 2005 OK 5, ¶ 24, 85 P.3d at 824.

¶45 However, the Legislature created an exception to “the independent contractor rule” for licensed medical professionals when they are under contract with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies.

¶46 Historically, licensed professionals such as accountants, architects, dentists, lawyers, and physicians were prohibited in some states from practicing their professions as a corporation.⁶⁴ The Professional Entity Act,⁶⁵ provides that one or more persons may form a professional corporation, a professional limited partnership, or a professional limited liability company.⁶⁶ The Act provides that “one or more individuals may form a professional entity.”⁶⁷ The Act identifies “Physicians, Surgeons and Doctors of Medicine” as being licensed for the purpose of the Act.⁶⁸

¶47 Language in 51 O.S. § 152(7)(b)(7) states “licensed medical professionals under contract” are “employees of this state” for the purpose of the GTCA. An “independent contractor” is also a “person or other legal entity” under contract.⁶⁹ We have long recognized a “licensed professional” may also be an “independent contractor.”

¶48 This observation is confirmed by application of 51 O.S.Supp.2013, § 155(25). The state or a political subdivision shall not be liable if a loss or claim results from: “Any claim or action based on the provision of healthcare services by employees of the state or political subdivision who are licensed healthcare professionals.” One goal of the GTCA is to prevent the expenditure of public funds for tort liability unless a waiver of immunity occurs in the GTCA.⁷⁰ In Barrios we cited 51 O.S. § 155(25) and 51 O.S. § 152(7)(b)(7) as granting immunity to “healthcare professionals.”⁷¹

¶49 Another reason for our construction of 51 O.S. § 152(7)(b)(7) is that a contrary construction would result in the State or a political subdivision being liable for any tort committed by an independent contractor who is a licensed medical professional while providing healthcare to jail inmates.^{72 73 74} In other words, if Sanders’ construction were followed, the State or Creek County would be liable for the torts of Turn Key‘s medical staff because the medical staff would be agents of the State or Creek County but not “employees” for purposes of the GTCA immunity.⁷⁵

¶50 Treating licensed medical professionals as “employees” “of this state” for the purposes of the GTCA when the licensed medical professionals are within the scope of employment and “under contract,” including when under contract as an independent contractor, with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies is the legislative intent expressed in 51 O.S. § 152(7)(b)(7). This intent is clearly expressed because 51 O.S. § 152(7)(b) begins with the phrase “For the purpose of The Governmental Tort Claims Act, the following are employees of this state” and it is then followed by 51 O.S. § 152(7)(b)(7).⁷⁶

¶51 Sanders’ petition alleges “employees” of Turn Key were “contracted to provide medical care to inmates.” The petition identifies these employees as “medical personnel.” The petition alleges that defendant failed “to provide access to medical and mental health personnel.” During the trial court hearing plaintiff argued as follows.

One thing that Turn Key has never been able to prove or show is that they are a licensed medical professional. . . . the first part of it [provisions of the GTCA] [is that] [a]gain, Turn Key has never shown how they qualify as a person. Further, the Legislature still even excluded contractors and independent contractors . . . We have attached the contract that Turn Key has in Creek County that shows they are an independent contractor. . .

Attached to Plaintiff‘s Response to Turn Key Health Clinic, LLC‘s Motion to Dismiss is “Creek County, Oklahoma Contract For Medical Staffing and Administration for Creek County Criminal Justice Center.” Plaintiff‘s Exhibit 6. The contract provides for pharmaceutical services “by a licensed qualified pharmacist.” Contract, at § 1.6. Turn Key must provide “proof of licenses and/or certificates for all professional staff.” Id. at § 1.12. The contract provides for a “Licensed Nurse on-site coverage,” a “provider” (“Physician, ARNP, or PA“), a “mental health professional,” and that “nursing protocols shall be devised and approved by a physician licensed in the State of Oklahoma.” Contract at §§ 1.17, 1.22.

¶52 The contract does contain language stating Turn Key is an independent contractor. Id. at § 5.1. Further, that Turn Key may “engage certain physicians as independent contractors rather than employees.” Contract at § 5.2. The contract does contain language to indemnify Creek County for medical malpractice tort liability. Id. at § 1.6. The contract also states the laws of the State of Oklahoma govern the contract. Contract at § 6.8.

¶53 We have explained that “every contract or agreement also has applicable law incorporated into the contract or agreement,” including an indemnity agreement, with a result that parties could not create an indemnity agreement in order to “create a common-law negligence liability” for an injury which had an exclusive remedy by a public law statutory scheme, i.e., workers’ compensation law.^{77 78}

¶54 Sanders’ response to the motion to dismiss and his argument during the trial court hearing did not raise any issue as an issue of fact that was not proper for consideration upon a 12 O.S. § 2012(B)(6) motion.^{79 80} For example, Sanders did not argue that some specific tortious conduct occurred by a specific person who was not within the scope of providing medical care to jail inmates and who were also not licensed as medical professionals. In other words, Sanders’ petition and the Creek County Contract filed with Sanders’ response to Turn Key‘s motion to dismiss collectively made a short and plain statement of Sanders’ claim (or cause of action) consisting of simple, concise, and direct averments showing that statutory GTCA “employees” “of this state” caused the alleged wrongful acts alleged by Sanders.⁸¹

¶55 The trial court understood, and we agree, that Sanders’ argument was based upon Turn Key‘s status as an independent contractor employing (or contracting with) licensed medical professionals for the jail, and as such the trial court ruled the alleged cause of action was subject to sovereign immunity. The trial court provided Sanders with an opportunity to amend the petition. The trial court‘s order was not an abuse of discretion or contrary to law.

VII. Conclusion

¶56 We conclude the interlocutory order appealed by Sanders could not be used to invoke appellate jurisdiction, and the appellate opinion by the Court of Civil Appeals must be vacated and withdrawn from publication. We conclude the petition in error may be recast into an application to assume original jurisdiction and petition for a supervisory writ of prohibition. We conclude we need not provide the parties with an opportunity to brief on the jurisdictional and recasting issues, and our recasting is proper for this controversy.

¶57 We conclude The Governmental Tort Claims Act makes licensed medical professionals to be “employees” of this state, regardless of the place in this state where duties as employees are performed, when the licensed medical professionals are under contract, including when under contract as an independent contractor, with city, county, or state entities and providing medical care to inmates or detainees in the custody or control of law enforcement agencies.

¶58 A petition for certiorari to the Court of Civil Appeals was previously granted. The opinion of the Court of Civil Appeals is vacated and withdrawn from publication. We assume original jurisdiction. Sanders’ petition for a writ of prohibition is denied.

¶59 CONCUR: ROWE, C.J.; KUEHN, V.C.J.; WINCHESTER, EDMONDSON, COMBS, GURICH, DARBY, and KANE, JJ.

Notes

1

In re S.J.W., 2023 OK 49, 535 P.3d 1235; Johnson v. Snow, 2022 OK 86, 521 P.3d 1272; Hall v. The GEO Group, Inc., 2014 OK 22, 324 P.3d 399.

2

See, e.g., Stites v. DUIT Constr. Co., 1995 OK 69, 903 P.2d 293. Our appellate jurisdiction was invoked by a petition for certiorari previously granted herein and we address a jurisdictional issue not previously addressed by the Court of Civil Appeals. Beyrer v. The Mule, LLC, 2021 OK 45, 496 P.3d 983.

3

See, e.g., A-Plus Janitorial & Carpet Cleaning v. Employers’ Workers’ Comp. Ass‘n, 1997 OK 37, 936 P.2d 916.

4

51 O.S.1981, §§ 151 et seq.; 51 O.S.Supp.1984, § 151 et seq.; Frazier v. Bryan Mem‘l Hosp. Auth., 1989 OK 73.

5

Frazier, 1989 OK 73 and Brown is consistent with Kelly v. Abbott, 1989 OK 124, 781 P.2d 1188. In Kelly we noted “in Merchants Delivery Service v. Joe Esco Tire Co., 1972 OK 82, 497 P.2d 766, this Court determined that an order sustaining a demurrer to a petition which also granted leave to amend was not a final order.” Kelly, ¶ 9, 781 P.2d at 1190-91.

6

Dutton v. City of Midwest City, 2015 OK 51, 353 P.3d 532; Wells v. Shriver, 1921 OK 122, 197 P. 460.

7

Meadows v. Pittsburg County Bd. of County Comr‘s, 1995 OK 65, 898 P.2d 741; 12 O.S.Supp.1993 § 696.3; Rodgers v. Higgins, 1993 OK 45, 871 P.2d 398; 12 O.S. § 696.1.

8

See, e.g., Long v. McMahan, 1952 OK 35, 241 P.2d 185.

9

OKLA. CONST. Art. 7 § 4.

10

OKLA. CONST. Art. 7 § 6.

11

State ex rel. Okla. Bd. of Med. Licensure & Supervision v. Pinaroc, 2002 OK 20, 46 P.3d 114; 12 O.S.Supp.2000, § 990A.

12

Willitt v. ASG Industries, 1978 OK 1, 572 P.2d 1296.

13

Johnson v. Johnson, 1983 OK 117, 674 P.2d 539.

14

12 O.S. § 696.2; 12 O.S. § 696.3. Sanders’ reliance upon the dismissal order for appellate jurisdiction presents an issue whether the “jurisdictional prerequisite” language in 12 O.S. § 696.2 and Section 696.3 must be followed in every instance.

15

See, e.g., McMillian v. Holcomb, 1995 OK 117, 907 P.2d 1034; State ex rel. Okla. Bd. of Med. Licensure and Supervision v. Pinaroc, 2002 OK 20, 46 P.3d 114.

16

Assessments for Tax Year 2012 of Certain Properties Owned by Throneberry v. Wright, 2021 OK 7, 481 P.3d 883.

17

Oglesby v. Liberty Mutual Insurance Company, 1992 OK 61, 832 P.2d 834.

18

Stockbridge Energy, LLC v. Taylor, 2015 OK 61, 359 P.3d 181.

19

Evers v. FSF Overlake Assocs., 2003 OK 53, 77 P.3d 581.

20

Indep. Sch. Dist. No. 52 of Okla. Cty. v. Hofmeister, 2020 OK 56, 473 P.3d 475.

21

FDIC v. Tidwell, 1991 OK 119, 820 P.2d 1338; In re B.C., 1988 OK 4, 749 P.2d 542; Prock v. Dist. Crt. of Pittsburg Cty, 1981 OK 41, 630 P.2d 772; cf. Smith v. Moore, 2002 OK 49, 50 P.3d 215.

22

See, e.g., Miami Business Services, LLC. v. Davis, 2013 OK 20, 299 P.3d 477.

23

See, e.g., Christian v. Gray, 2003 OK 10, 65 P.3d 591 (Upon recasting, (1) the trial court‘s order was an interlocutory order on an issue of scientific evidence, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in trial courts, (2) the parties presented an issue of law reviewed de novo and on an issue of first impression, and (3) recast was procedurally proper.).

24

Shawareb v. SSM Health Care of Okla., Inc., 2020 OK 92, 480 P.3d 894.

25

In re Guardianship of Berry, 2014 OK 56, 335 P.3d 779; Liberty Bank and Trust Co. v. Rogalin, 1996 OK 10, 912 P.2d 836.

26

Knox v. O. G. & E. Co., 2024 OK 37, 549 P.3d 1260 (legal issue reviewed de novo in an appellate proceeding).

27

State ex rel. Dept. of Public Welfare v. Martin, 1977 OK 186, 570 P.2d 623, overruled on other grounds in Hershel v. Univ. Hosp. Found., 1980 OK 60, 610 P.2d 237; White v. Wint, 1981 OK 154, 638 P.2d 1109.

28

See, e.g., Powers, v. Dist. Crt. of Tulsa Cty., 2009 OK 91, 227 P.3d 1060. Another example of similar standards of review occurs when reviewing discovery orders. See, e.g., Farmers Ins. Co., Inc. v. Peterson, 2003 OK 99, 81 P.3d 659; Royal Hot Shot Investments, Inc., v. Keeton, 2024 OK 70.

29

See, e.g., James v. Rogers, 1987 OK 20, 734 P.2d 1298; Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, 87 P.3d 598.

30

Progressive Direct Ins. Co. v. Pope, 2022 OK 4, 507 P.3d 688 (legal issue “is reviewed de novo in an appeal from the judgment.“); Heffron v. Dist. Crt. Okla. Cty, 2003 OK 75, 77 P.3d 1069 (Standard of review is de novo. A legal question involving statutory interpretation is subject to de novo review... i.e., a non-deferential, plenary and independent review of the trial court‘s legal ruling) (citation omitted).

31

51 O.S.2021, § 151.

32

State ex rel. Okla. Depart. of Public Safety v. Gurich, 2010 OK 56, 238 P.3d 1.

33

Daniel v. Daniel, 2001 OK 117, 42 P.3d 863; Cathey v. Bd. of Cty. Com‘rs for McCurtain Cty., 2023 OK 108.

34

Galbraith v. Galbraith, 2024 OK 43, 550 P.3d 942; Farley v. City of Claremore, 2020 OK 30, 465 P.3d 1213.

35

See, e.g., State ex rel. Bd. of Regents of Univ. of Okla. v. Lucas, 2013 OK 14, 297 P.3d 378; Gaylord Entertainment Co. v. Thompson, 1998 OK 30, 958 P.2d 128; Stewart v. Judge of the Fifteenth Jud. Dist., 1975 OK 156, 542 P.2d 945.

36

Russell v. Henderson, 1979 OK 164, 603 P.2d 1132.

37

Commissioners of the Land Office of Oklahoma v. Brunson, 1935 OK 737, 51 P.2d 500 (A proceeding to determine whether a judge had the legal power to hear a matter was a publici juris matter and Court granted relief with the “same result” that could issue by prohibition).

38

Federal Deposit Ins. Corp. v. Tidwell, 1991 OK 119, 820 P.2d 1338.

39

BS&B Safety Systems, LLC v. Edgerton, 2023 OK 89; Moncrieff--Yeates v. Kane, 2013 OK 86, 323 P.3d 215; Scruggs v. Edwards, 2007 OK 6, 154 P.3d 1257.

40

Hines v. Clendenning, 1970 OK 28, 465 P.2d 460; Orthopedic Clinic v. Jennings, 1971 OK 16, 481 P.2d 139.

41

Sanders v. Followell, 1977 OK 143, 567 P.2d 84 (legal issue was publici juris issue with a potential for repeated recurrence); Scruggs v. Edwards, 2007 OK 6, 154 P.3d 1257.

42

Rocket Properties, LLC v. LaFortune, 2022 OK 5, 502 P.3d 1112 (original jurisdiction is assumed in a ”publici juris controversy where there is an urgency and need for a judicial determination“).

43

See, e.g., Jackson Cnty. Emergency Med. Serv. Dist. v. Kirkland, 2024 OK 4, 543 P.3d 1219; Rocket Properties, LLC v. LaFortune, 2022 OK 5, 502 P.3d 1112 (original jurisdiction is assumed in a ”publici juris controversy where there is an urgency and need for a judicial determination“); State ex rel. Okla. Depart. of Public Safety v. Gurich, supra, at note 32 construing 51 O.S. § 155; State ex rel., Okla. Depart. of Corrections v. Burris, 1995 OK 42, 894 P.2d 1122, 51 O.S. § 155; State ex rel. Dept. of Public Welfare v. Martin, supra note 27; Hampton v. Clendinning, 1966 OK 51, 416 P.2d 617.

44

See, e.g., Okla. Pub. Emps, Ass‘n v. Okla. Military Dep‘t, 2014 OK 48, 330 P.3d 497; cf. Assessments for Tax Year 2012 of Certain Properties Owned by Throneberry v. Wright, 2021 OK 7, 481 P.3d 883.

45

Watchorn Basin Ass‘n v. Oklahoma Gas & Elec. Co., 1974 OK 27, 525 P.2d 1357; Maree v. Neuwirth, 2016 OK 62, 374 P.3d 750.

46

Dutton v. City of Midwest City, 2015 OK 51, 353 P.3d 532 (mandamus is not usually available to correct an error of fact or law except in a case that is publici juris when an alternative adequate remedy exists).

47

Cf., Westinghouse Electric Corp. v. Grand River Dam Auth., 1986 OK 20, 720 P.2d 713.

48

See, e.g., Boston v. Buchanan, 2003 OK 114, 89 P.3d 1034; Landis v. North American Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (a court has power to stay proceedings and docket control to create economy of time and effort for the court, for counsel, and for litigants by an exercise of judgment weighing competing interests)).

49

Young v. Station 27, Inc., 2017 OK 68, 404 P.3d 829.

50

Hamilton v. Northfield Ins. Co., 2020 OK 28, 473 P.3d 22.

51

In re S.J.W., 2023 OK 49, 535 P.3d 1235.

52

Joiner v. Brown, 1996 OK 112, 925 P.2d 888.

53

Inhofe v. Wiseman, 1989 OK 41, 772 P.2d 389; In re Guardianship of Berry, 2014 OK 56, 335 P.3d 779; See Scruggs v. Edwards, 2007 OK 6, 154 P.3d 1257; Kincannon v. Pugh, 1926 OK 125, 243 P. 945.

54

51 O.S.Supp.2007, § 152(7)(b)(7); 51 O.S.Supp.2024, § 152(7)(b)(7).

55

Teeter v. City of Edmond, 2004 OK 5, 85 P.3d 817; Moran v. City of Del City, 2003 OK 57, 77 P.3d 588.

56

See Rocket Properties, LLC v. LaFortune, 2022 OK 5, 502 P.3d 1112, noting Barrios and stating the Legislature amended the GTCA in 2014 to specify that the Act applied to tort suits alleging violations of constitutional rights).

57

Moran v. City of Del City, 2003 OK 57, 77 P.3d 588; 51 O.S.2021, § 152.1.

58

Moran supra at note 57; Tuffy‘s Inc. v. City of Oklahoma City, 2009 OK 4, 212 P.3d 1158; Farley v. City of Claremore, supra note 34, at 2020 OK 30. 51 O.S.2021, § 153.

59

51 O.S.Supp.2022, § 155.

60

Barrios, 2018 OK 90.

61

Petition, at ¶ 4.

62

Petition, at ¶¶ 10, 11, 13, 14, 15, 17, 18.

63

51 O.S.2021, § 155(18); 51 O.S.Supp.1984, § 155(17).

64

See, e.g., Megan E. Mowrey, L. Stephen Cash, & Thomas L. Dickens, An Examination of the Business Form Decision for Professional Service Firms, 28 Seton Hall Legis. J. 355, 356-57 (2004) (“For example, certain professionals, such as accountants, architects, dentists, lawyers, and physicians, are prohibited under state law from doing business as a corporation.“) (citing M. Shaun McGaughey, Limited Liability Partnerships: Need Only Professionals Apply?, 30 Creighton L. Rev. 105, 108 (1996)).

65

18 O.S.2021, § 802.

66

18 O.S.2021, §§ 801 et seq.

67

18 O.S.Supp.2024, § 804.

68

18 O.S.2021, § 803(6)(p).

69

See, e.g., Carbajal v. Precision Builders, Inc., 2014 OK 62, 333 P.3d 258; Page v. Hardy, 1958 OK 283, 334 P.2d 782.

70

Moran, 2003 OK 57; In re Baby Girl L., 2002 OK 9, 51 P.3d 544; Pellegrino v. State ex rel. Cameron Univ. ex rel. Bd. of Regents of State, 2003 OK 2, 63 P.3d 535.

71

Barrios, 2018 OK 90.

72

Speight v. Presley, 2008 OK 99, 203 P.3d 173; DeCorte v. Robinson, 1998 OK 87, 969 P.2d 358.

73

Speight v. Presley, 2008 OK 99; Nelson v. Pollay, 1996 OK 142, 916 P.2d 1369.

74

Tuffy‘s Inc. v. City of Oklahoma City, supra at note 58, 2009 OK 4.

75

Cf., Nelson v. Pollay, 1996 OK 142, 916 P.2d 1369, 51 O.S. § 155.

76

Assessments for Tax Year 2012 of Certain Props. Owned by Throneberry v. Wright, 2021 OK 7, 481 P.3d 883; Smicklas v. Spitz, 1992 OK 145, 846 P.2d 362; Matter of Phillips Petroleum Co., 1982 OK 112, 652 P.2d 283.

77

Knox v. O. G. & E. Co., 2024 OK 37.

78

Moran v. City of Del City, supra at note 57, quoting 51 O.S.2021, § 152.1(B).

79

Spencer v. Nelson, 2024 OK 63, 557 P.3d 144.

80

12 O.S. § 2012(B)(6); Miller v. Miller, 1998 OK 24, 956 P.2d 887 (The court “must determine whether the petition alleges facts upon which relief may be available.” A--Plus Janitorial & Carpet Cleaning v. The Employers’ Workers’ Comp. Ass‘n, 1997 OK 37, 936 P.2d 916; Tulsa Indus. Auth. v. City of Tulsa, 2011 OK 57, 270 P.3d 113; Chandler U.S.A., Inc. v. Tyree, 2004 OK 16, 87 P.3d 598.

81

Colton v. Huntleigh USA Corp., 2005 OK 46, 121 P.3d 1070; 12 O.S. § 2012(B)(6); Brown v. Founders Bank and Trust Co., 1994 OK 130, 890 P.2d 855.

Case Details

Case Name: SANDERS v. TURN KEY HEALTH CLINICS

Court Name: Supreme Court of Oklahoma

Date Published: Mar 11, 2025

Citations: 566 P.3d 591; 2025 OK 19; 121589

Docket Number: 121589

Court Abbreviation: Okla.