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Mowles v. Hillcrest Health Center11/12/1991
Rehearing Denied January 14, 1992.
Certiorari Denied June 16, 1992.
ROY MOWLES, A MINOR, BY AND THROUGH HIS PARENTS, LINDA MOWLES AND WESLEY MOWLES, APPELLANT,
v.
HILLCREST HEALTH CENTER, CONTINENTAL MEDICAL, INC., d/b/a MOORE MUNICIPAL HOSPITAL, APPELLEES.
Appeal from the District Court of Oklahoma County; James B. Blevins, Trial Judge.
Gary L. Brooks, Oklahoma City, for appellant.
A. Scott Johnson and Mary Hanan, Oklahoma City, for appellees.
REVERSED AND REMANDED.
MEMORANDUM OPINION
The opinion of the court was delivered by: HANSEN, Presiding Judge.
This appeal involves an action for medical malpractice arising out of injuries sustained by Roy Mowles at his birth on May 14, 1978. His parents filed this action on October 3, 1988 against Appellees (Hospitals).
Hospitals moved to dismiss the action, or in the alternative for summary judgment, on two grounds. They first argue the action was barred by the statute of limitations in 12 O.S. 1988 Supp. § 96 [88-96]. This section, amended in 1987, now provides for a special reduced limitation period applying solely to minors in medical malpractice actions. Hospitals also contended the action was barred because Mowles did not file any notice of claim as required by the Oklahoma Political Subdivision Tort Claims Act, 51 O.S. 1981 § 151 et seq. (Act).
The trial court sustained Hospitals' motions, finding § 96 barred Mowles claim against Hillcrest Health Center, and the Act and § 96 operated to bar Mowles claim against Moore Hospital. Mowles appeals.
Article 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 entirely 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) arising from medical malpractice must be brought by the minor's parents or guardian within seven (7) years of infliction of the injury, provided a minor 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.
Mowles contends this statute violates Art. 5 § 46 in that it is a special law affecting only minors with medical malpractice claims. We agree. Although Mowles also directs our attention to other frailties of the trial court's applica
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