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Kluver v. Weatherford Hosp. Authority6/22/1993
Rehearing Denied October 12, 1993.
PERRY KLUVER AND LINDA KLUVER, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF BRANDON KLUVER, APPELLANTS,
v.
WEATHERFORD HOSPITAL AUTHORITY DBA SOUTHWESTERN MEMORIAL HOSPITAL, APPELLEE.
Appeal from the District Court of Custer County; Charley W. Barton, Judge.
Linn & Helms by William J. Skepnek, Libby Hougland, James W. Morris III, William R. Burkett, Oklahoma City, for appellants.
Foliart, Huff, Ottaway & Caldwell by G. Scott Ray, Oklahoma City, for appellee.
JUDGMENT REVERSED AND CAUSE REMANDED WITH INSTRUCTIONS.
The opinion of the court was delivered by: HODGES, Chief Justice.
The dispositive issue in this appeal of a medical malpractice action is whether the trial court erred in granting summary judgment to the defendant, Weatherford Hospital Authority doing business as Southwestern Memorial Hospital (the hospital). Summary judgment was based on the plaintiffs' failure to comply with the Political Subdivision Tort Claims Act (Act). Okla. Stat. tit. 51, §§ 151-170 (1981) (now the Governmental Tort Claims Act, Okla. Stat. tit. 51, §§ 151-172 (1991)). Evidence of whether the hospital was a true political subdivision entitled to the protection of the Act's notice provision was not presented to the trial court. The judgment must therefore be reversed and the cause remanded for such a determination.
This action was brought by Perry and Linda Kluver (the Kluvers), appellants. On October 19, 1981, the Kluvers' son Brandon, was born at the hospital in Weatherford, Oklahoma. Shortly after his birth, Brandon began experiencing difficulty in breathing. The following morning he was transferred to Childrens' Hospital in Oklahoma City where doctors determined he might have brain damage resulting from a lack of oxygen during the delivery.
According to Mrs. Kluver's deposition testimony, the physicians at Childrens' Hospital informed the Kluvers of the child's injury "within the first week" of his stay there. They also told Mrs. Kluver that Brandon "had gone without oxygen" for some time and that "it had occurred sometime during birth or after birth." Mr. Kluver testified on deposition that the physicians met with him and his wife "within just a few days of" Brandon being taken to Childrens' Hospital to view CAT scan results which showed damage to Brandon's brain.
Due to the brain damage, the physicians were concerned that Brandon might experience seizures. Consequently, he was placed on seizure medication for the first year of his life. Brandon experienced no seizures until June of 1983, when he was found in a catatonic state. This occurred approximately eight months after Brandon's doctors at Childrens' Hospital took him off the seizure medication. The Kluvers again took Brandon to Childrens' Hospital where physicians were of the opinion his condition was the result of the initial birth trauma.
Two months after Brandon's seizure, the Kluvers sent a letter to the hospital's president concerning Brandon's condition and a malpractice action was filed one month later. After extensive discovery, the hospital moved for summary judgment arguing that (1) it qualified as a political subdivision as that term was defined in section 152(6)(d) of the Act, (2) the Act's notice provisions therefore applied to the case, (3) the Kluvers failed to comply with the notice provisions of the Act, and (4) this non-compliance barred the Kluvers' right to bring an action against the hospital. The trial court agreed an
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