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Brown v. Jimerson9/28/1993
The opinion of the court was delivered by: HANSEN, Chief Judge.
This appeal involves an action for medical malpractice arising out of injuries allegedly sustained by Christine Brown at her birth in October of 1980. Her father filed this action on August 22, 1989, against Defendant Jimerson, the physician who delivered Christine. Her father sought damages on behalf of Christine as well as individual damages for past, present, and future medical expenses.
Jimerson filed a motion for summary judgment, claiming both Christine's action and her father's actions were barred by the statutes of limitations of 12 O.S. 1991 § 96 , and 76 O.S. 1991 § 18 . The trial court agreed and sustained Jimerson's motion. We reverse summary judgment against Christine but affirm judgment on her father's individual cause of action.
The Court of Appeals has previously addressed the initial question in Mowles v. Hillcrest Health Center, 832 P.2d 24 (Okla. App. 1991) cert. denied. That decision states:
Art. 5, Section 46 of the Oklahoma Constitution provides that the Legislature may not pass special laws affecting certain subjects. The enumerated subjects include laws affecting the estates of minors, or persons under disability or for limitation of civil actions. Effective November of 1987, the Legislature amended § 96 to limit the time in which a minor could file a medical malpractice action to seven years from the infliction of the injury. That statute in its entirety states:
If a person entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, be, at the time the cause of action accrued, under any legal disability, every such person shall be entitled to bring such action within one (1) year after such disability shall be removed, except that, after the effective date of this section, an action for personal injury to a minor under the age of twelve (12) years of age and older must bring such action within one (1) year after attaining majority, but in no event less than two (2) years from the date of infliction of the injury, and an action for personal injury arising from medical malpractice to a person adjudged incompetent must be brought by the incompetent person's guardian within seven (7) years of infliction of the injury, provided an incompetent who has been adjudged competent must bring such action within one (1) year after the adjudication of such competency, but in no event less than two (2) years from the date of infliction of the injury.
Citing Reynolds v. Porter, 760 P.2d 816 (Okla. 1988), that Court held § 96 to be violative of the Oklahoma Constitution in that it clearly isolated minors with malpractice claims from other minors injured by any type of negligence other than medical malpractice. Mowles, is dispositive of Christine's claim. Her action is not time barred.
More troubling is Father's argument the trial court erred in finding his action for damages for medical expenses was barred by 76 O.S. 1991 § 18 . That statute applies specifically to medical malpractice actions. The Supreme Court in Reynolds held § 18 to be unconstitutional in that a limitation of three years from the date of injury without regard to discovery of the injury violates the Oklahoma Constitution, more particularly Art. 5 § 46, and Art. 5 § 59. However, the trial court apparently applied the two year limitation period from the date of discovery of the injury to bar Mr. Brown's separate claim for damages. Consequently, to sustain Father's allegation the trial court's ruling was error, we would have to hold the tolling provisions applicable to Christine'
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