Bivins v. State ex rel. Okl. Mem. Hosp.

Bivins v. State ex rel. Okl. Mem. Hosp.
1996 OK 5
917 P.2d 456
67 OBJ 206
Case Number: 81319
Decided: 01/16/1996
Supreme Court of Oklahoma

Rebecca M. BIVINS and Nancy J. Enox, Co-Administrators of the Estate of Rosemary Williams, Deceased, Plaintiffs-Appellants
, v.
STATE of Oklahoma ex rel. OKLAHOMA MEMORIAL HOSPITAL; Sherri Durica, M.D.; Donald Carter, M.D.; Randy Eichner, M.D.; Tim Hepner, M.D.; R. Parham, M.D.; Selby, M.D. (first name unknown); L. Brooks, M.D.; John Doe, M.D. (radiologist); J. Raunikar, M.D.; T. Ingmire, M.D.; R. Elwood, M.D.; Silvester, M.D., Defendants-Appellees.

On Appeal from the District Court, Oklahoma County, Carolyn J. Ricks, Judge.

¶0 In a medical malpractice action for harm sustained by a patient at Oklahoma Memorial Hospital (a state-owned facility), the district court (a) gave summary judgment (by two [917 P.2d 458] separate journal entries) to faculty physicians in attendance and to resident physicians and interns and (b) dismissed with prejudice the suit against the hospital as time-barred. The trial court's summary disposition was rested on the immunity conferred by the Governmental Tort Claims Act. The plaintiffs bring this appeal.

THE TRIAL COURT'S SUMMARY JUDGMENT ENTRIES AND ITS DISMISSAL ORDER ARE REVERSED; THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.

Jose Gonzalez, Suzanne Woodrow, Gonzalez & Woodrow, Purcell, and Richard L. Denney, Lydia J. Barrett, Denney & Barrett, Norman, for Appellants.

Inona J. Harness, Haven Tobias, Pierce Couch Hendrickson Baysinger & Green, Oklahoma City, for Appellee Physicians.

Charles L. Waters, General Counsel, Richard W. Freeman, Jr., Assistant General Counsel, Department of Human Services, Oklahoma City, for Appellee Oklahoma Memorial Hospital.

OPALA, Justice.

¶1 This public-law controversy presents three questions, the first two of which are dispositive of the appeal: (1) Does the Governmental Tort Claims Act [GTCA]

I

THE ANATOMY OF LITIGATION

¶2 Rosemary Williams [Williams] died on September 23, 1991 from complications of a bone marrow transplant procedure performed at OMH.

¶3 The medical treatment in question was administered by four resident physicians - Drs. Thomas Ingmire, Sherri Durica, Timothy Hepner and John Raunikar - and a resident intern, Dr. Robert Parham [collectively called students or student physicians]. These five individuals were participating in a graduate medical education program at [917 P.2d 459] the University of Oklahoma Health Sciences Center [OUHSC].

¶4 The next of kin and co-administrators of Williams' estate [collectively called claimants or plaintiffs] notified OMH of their wrongful death claim by letter that was received December 9, 1991. At some point later, claimants were contacted by the Risk Management Division [Division] of the Office of Public Affairs and requested to supplement their notice by submitting a "Claimant's Report" form. They completed the form and sent it to the Division on January 3, 1992. On September 17, 1992 the claimants commenced this wrongful death action against the five student physicians (Drs. Ingmire, Durica, Hepner, Raunikar, and Parham), the four faculty physicians (Drs. Selby, Elwood, Carter, and Eichner), OMH, and three other defendants.

¶5 The trial court's order (filed January 25, 1993) dismissed with prejudice the claim against OMH as time-barred.

II

THE GTCA DOES NOT CONFER IMMUNITY UPON A PHYSICIAN FOR NEGLIGENCE OCCURRING IN THE DELIVERY OF HEALTH-CARE SERVICES

¶6 This court's pronouncement in Anderson v. Eichner16 is dispositive of all the issues pressed by the defendant physicians for the summary rulings' affirmance.17 Anderson, which construes the 1986 and 1989 versions of the GTCA, holds that faculty physicians engaged in teaching or in administrative duties (and resident physicians as well as interns participating in a graduate medical education program) are employees of the state who, while on duty, are deemed acting within the scope of their employment except when they are practicing medicine.18 In short, the purview of protection from liability created by the GTCA19 does not encompass the practice of the healing art by providing medical or surgical services to patients.

¶7 Anderson applies with equal force to the statutory scheme in effect when the alleged injuries occurred in this case - September 23, 1991. We know of no post-1989 amendment of the GTCA, made effective [917 P.2d 461] before the critical date in 1991 - whose terms abrogate Anderson's teachings in whole or in part, and none has been urged in the briefs.

¶8 Under the authority and rationale of Anderson, summary judgment entries for all the defendant physicians must hence be reversed. We so hold. This part of today's opinion (Part II) disposes only of summary judgment for the faculty and student physicians. The remainder of our pronouncement will address itself to the dismissal of the plaintiffs' claim against OMH.

III

A CLAIMANT'S COMPLETED SUBMISSION OF THE EARLIER TIMELY CLAIM'S NOTICE, MADE AT THE GOVERNMENT'S REQUEST AND WITHIN A REASONABLE OR STATED TIME, OPERATES TO TRIGGER A NEW STATUTORY 90-DAY BAR FOR CONSIDERATION OF THE CLAIM UNDISTURBED BY SUIT

A.

¶9 OMH pressed below for its dismissal from the suit on the sole ground that the plaintiffs' malpractice action was time-barred when brought.

¶10 For the reasons to be stated we hold that a claimant - who, while pressing for statutory tort redress against a public agency, responds within a reasonable or stated time to (or gives the reason for not complying with) a government's post-notice request for more information about the claim - has in law a legitimate expectation to assume that (1) the agency request is made in good-faith pursuit of necessary information and not for the purpose of lulling the claimant into a sense of false security, (2) the perceived deficiency to be supplied in response to the request will be treated as submission of a completed claim's notice that is to be considered anew, and (3) the new submission's processing will take the full statutory time of 90 days during which the investigation and [917 P.2d 462] evaluation must stand undisturbed by litigation.

B.

¶11 In every public entity's post-notice request for more information dwells its implied declaration that the earlier notice is to be regarded as deficient (or otherwise unfit for consideration) and is hence, at best, to be treated as only an inchoate filing. The mere transmission of such request is patently consistent with the notion that the initial notice's content is viewed as legally clouded. A post notice request for more complete information can never logically be equated with the government's silence, i.e. with its lack of response which the statute requires to be taken as the claim's denial.

¶12 The time of the completed submission clearly must be viewed as triggering anew the 90-day bar. A government-declared deficiency in the first notice and the agency's expressed interest in being better informed about the claim erase the time that may have run and invite the transmission of a completed (or consummated) notice. Once a complete submission has been timely effected, both the government and the claimant may reasonably expect to benefit from a full 90-day period prescribed by law for investigation and processing to take place undisturbed by forensic combat. In short, the 90-day bar of suit should be regarded as running from the timely filing of a completed claim's notice made at the government's request, rather than from the earlier receipt of one found deficient or otherwise perceived as unsuitable for processing.

C.

¶13 The GTCA's text neither authorizes

¶14 We accordingly hold that when a public entity, after receiving timely notice of a claim, calls for more information, the claimant should cooperate within a reasonable or stated time by supplying the available data requested or by giving a satisfactory reason for not complying with the request. Prompt responses and more complete submissions must be encouraged to prevent premature forensic disputes over claims that, though initially perceived as legally deficient, later unfold themselves as meritorious. During the interval between the request for further information and its timely submission, the then-pending 90-day period - initially triggered by the earlier (perceived as deficient or flawed) notice - must be treated as legally arrested and erased. The time bar will not start running again until the critical information is supplied (within some reasonable or stated time) or the claimant timely explains satisfactorily why this cannot be done.29 Since the effect we ascribe to an agency's post-notice request for more data is drawn from the government's perceived need for more time to evaluate the completed information about a claim, today's rule will neither benefit nor apply to any claimant-initiated (voluntary) submission of additional data.

D.

¶15 Extant GTCA jurisprudence, Trent v. Board of County Commissioners,30 Sanchez v. City of Sand Springs,31 and Doe v. Independent School Dist. No. I-89,32 has dealt with some aspects of an agency's post-notice request for additional information. Although these cases appear to militate against today's result, we find them clearly distinguishable on the point sub judice when viewed in light of the record in this case. The Trent claimants utterly failed to respond to the government's request for further information; in Sanchez, the data was not tendered until some five months later; and in Doe, there is no indication in the opinion's text that the claimant ever responded to the request. In contrast to these cases, the claimants in the present case mailed to OMH the additional information on January 3, 1992, less than one month from the date of their initial notice of claim.

¶16 In support of the nisi prius dismissal OMH points out that the Attorney General, upon receiving a copy of the initial notice of claim, informed the claimants by letter that their "right to sue accrues on March 10, [917 P.2d 464] 1992." The effect to be given the government's post-notice request for more information and to the claimants' timely response presents a pure question of law. No act, omission or statement of either party may alter the legal consequences that attach and are to be declared.33 The statutory time trigger for the 90-day bar of suit against a public tortfeasor is a law-driven mechanism which is beyond the reach of human tinkering.

¶17 Lastly, we must observe that a public agency is not without means to protect itself from an open-ended effect which may flow from an initial notice (found deficient) that is to be supplemented at the agency's request. It may (a) direct that supplemental information must be received on or before a stated date and (b) make it clear that if neither submission nor satisfactory explanation is timely made, the deficient claim's notice will stand denied at the end of the initially triggered 90-day period or at some other date that follows the deadline for submission of supplemental data.

IV

OMH'S SUMMARY JUDGMENT QUEST

¶18 OMH urges that if the nisi prius order of dismissal were to be reversed, this court should direct that on remand summary judgment be entered in the hospital's favor because the plaintiffs' claim may not legally be rested on the negligence of the defendant physicians.

¶19 An appellate court will not make first-instance determinations of disputed law or fact issues. That is the trial court's function in every case - whether in law, equity or on appeal from an administrative body.

¶20 A direction from this court that summary judgment for OMH follow our remand would be procedurally inappropriate for yet another reason. OMH has lodged no counter-petition in error for relief from the [917 P.2d 465] claim's dismissal as time-barred. A successful party below who did not bring an appeal, counter- or cross-appeal may, as appellee, argue only those errors which, if rectified, would support the correctness of the trial court's judgment.

¶21 Even if OMH had, by counter-appeal, urged error in the trial court's failure to enter summary judgment, the record would still be deficient. It does not show that OMH had actually tendered below its summary judgment plea as an alternative to the dismissal quest (based on the statutory time bar) and that the former relief (by summary judgment based on immunity) was denied in the nisi prius exercise of judicial preference for the claim's dismissal as time-barred.

¶22 In sum, OMH is not asking that we affirm a favorable nisi prius disposition on some theory different from that invoked below.

V

SUMMARY

¶23 The purview of protection from liability affordable by the GTCA does not encompass the practice of the healing art by providing medical or surgical services to patients. The claim against the defendant physicians arose from their treatment of Williams during a bone marrow transplant procedure.

¶24 The procedures of the GTCA are not applicable to the claim against the defendant physicians because the plaintiffs' action was intended to redress a private tort - not to cast any obligation on the State. Plaintiffs look solely to the individual civil liability of the defendant physicians. The trial court clearly erred in giving summary relief rested on the physicians' perceived GTCA-conferred immunity.

¶25 When a public entity requests more information after receiving initial notice of a claim, the claimant should cooperate by responding within a reasonable or stated time or by giving a satisfactory reason for not complying with the request. Upon the complete submission of notice, the claim must be given a fresh consideration. During the period between the agency's post-notice request and the data's timely submission, the 90-day bar, triggered by the initial notice (perceived as deficient or flawed), must be [917 P.2d 466] treated as erased and arrested. It will not start running again until the materials sought are timely supplied or a satisfactory explanation is timely made for not complying with the request. Because we hold that the claimants' timely provision of the requested post notice information on January 3, 1992 marked the new beginning for the 90-day bar-of-suit period, the September 17, 1992 filing of this action was timely.

¶26 Appellate courts do not make initial determinations of disputed law or fact issues. One who did not timely appeal, counter-, or cross-appeal may not seek corrective relief from a nisi prius judgment or final order. A party who brings no petition in error stands on appeal in a posture restricted to the defense of the relief granted below, but nothing will prevent that party from arguing in support of the nisi prius decision's correctness.

¶27 The trial court's summary judgment entries and its dismissal order are reversed; the cause is remanded for further proceedings not inconsistent with this pronouncement.

¶28 WILSON, C.J., KAUGER, V.C.J., and LAVENDER and SUMMERS, JJ., concur.

¶29 SIMMS and HARGRAVE, JJ., concur in part and dissent in part.

¶30 HODGES and WATT, JJ., dissent.

Footnotes:

1 51 O.S. 1991 §§ 151 et seq.

2 For the statutory text which creates the time bar, see the provisions of 51 O.S. 1991 § 157 (A), infra note 22.

3 Oklahoma Memorial Hospital (abbreviated as OMH) operated under that name for only thirteen years. See 56 O.S.Supp. 1980 § 401 (changing the institution's name to Oklahoma Memorial Hospital effective July 1, 1980) and 63 O.S.Supp. 1993 § 3202 (1) (reinstating the earlier name of University Hospital effective July 1, 1993).

4 The first part of the medical procedure was to harvest malignant bone marrow from Williams' hip. The second was surgery to place a central line into her vena cava superior, which is the primary vein that drains the upper portion of the body and empties into the right atrium of the heart. TABER'S CYCLOPEDIC MEDICAL DICTIONARY 1981 (American Jurisprudence Proof of Facts, 3d Series, 16th ed. 1989). Williams was undergoing treatment for cancer after four failed efforts at chemotherapy.

5 A "Hickman catheter" is a tubular flexible instrument passed through the right atrium for long-term administration of antibiotics or chemotherapeutic agents. Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health 263-264 (5th ed. 1992).

6 For the definition of "vena cava superior", see supra note 4.

7 See 51 O.S. 1991 § 152 (5), infra note 18.

8 On May 26, 1993 the claimants dismissed without prejudice their suit against three other defendants - Drs. L. Brooks and John Doe (because their true identity and whereabouts could not be discovered) and "Silvester, M.D." (who, once identified as a nurse, was apparently viewed as not a necessary party to the cause).

9 The pertinent portions of the dismissal order, filed January 25, 1993, are:

"* * * In its Motion, Defendant OMH seeks dismissal of Plaintiff's action pursuant to 12 Okla.Stat. 1991 § 2012(B)(6) on the grounds that Plaintiffs failed to timely commence this action within the time limits prescribed by the Governmental Tort Claims Act, 51 Okla.Stat. 1991 §§ 151-172, and therefore Plaintiffs' action against Defendant OMH is barred by 51 Okla.Stat. 1991 § 157(B).

Upon consideration of Defendant OMH's Motion and supporting brief and the arguments of counsel, the Court determines that said Motion should be granted. Accordingly, Plaintiffs' action against Defendant OMH is hereby dismissed with prejudice. * * *"

10 The pertinent portions of the summary judgment's entry for the faculty physicians, filed on April 26, 1993, are:

"* * * This Court . . . finds that the defendants, George Selby, M.D., Robin Elwood, M.D., Donald Carter, M.D. and Randy Eichner, M.D., faculty attending physicians, at the time of the alleged occurrence, were employees of the State of Oklahoma, acting within the scope of their employment and are, pursuant to the Governmental Tort Claims Act, 51 O.S. § 151 , et seq., immune from suit.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment of Defendants . . . should be and the same is hereby granted, and that judgment be and is granted as a matter of law in favor of these defendants and against the plaintiffs. * * *"

11 The pertinent portions of the summary judgment's entry for the student physicians, filed on April 26, 1993, are:

"* * * This Court . . . finds that the defendants, Thomas Ingmire, M.D., Sherri Durica, M.D., Timothy Hepner, M.D., John Raunikar, M.D. and Robert Parham, M.D., resident intern phyicians [sic] and/or resident physicians at the time of the alleged occurrence, were employees of the State of Oklahoma, acting within the scope of their employment and are, pursuant to the Governmental Tort Claims Act 51 O.S. § 151 , et seq., immune from suit.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment of Defendants . . . should be and the same is hereby granted, and that judgment be and is granted as a matter of law in favor of these defendants and against the plaintiffs. * * *"

12 Supra note 1.

13 Oklahoma University Health Sciences Center. See 51 O.S. 1991 § 152 (5), infra note 18.

14 See supra note 8.

15 The plaintiffs' May 26, 1993 dismissal (without prejudice) of their claim against the remaining defendants (Silvester, Doe and Brooks) marks the final disposition date for all the claims and for the resolution of all the issues in the case. The date that dismissal was filed below constitutes the appealable event for this review. See 12 O.S. 1991 § 1006 , the statute in force at the critical time. Appealability in actions with multiple parties and claims was then governed by § 1006. Its standards required that, before an appeal could be prosecuted, every claim in the action had to be decided, unless there was the trial judge's express authorization for an earlier appeal from some legally severable disposition of less than all the claims in the case. The plaintiffs filed a petition in error on March 23, 1993, an amended petition on April 30, 1993 and a second amended petition on June 14, 1993. Their June 14 second amended petition in error - brought here within thirty days of the critical May 26 dismissal's filing - is hence to be treated as timely for review of both the trial court's January 25, 1993 dismissal of OMH and of the April 26, 1993 summary judgment entries giving victory to the defendant physicians. See Tinker Inv. & Mortg. v. Midwest City, Okl., 873 P.2d 1029, 1034 (1994).

16 Okl., 890 P.2d 1329 (1994).

17 The defendant physicians declined to respond to this court's order calling upon them to show cause why this appeal from summary judgment entries in their favor should not be treated as controlled by this court's teachings in Anderson.

18 The pertinent terms of 51 O.S. 1991 § 152 (5) (eff. Sept. 1, 1991), which were in force when the claim arose, provided:

"5. "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. Employee also includes:

a. 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,

* * * * * *

For the purpose of this act, the following are employees of this state, regardless of the place in this state where duties as employees are performed:

a. physicians acting in an administrative capacity,

b. resident physicians and resident interns participating in a graduate medical education program of the University of Oklahoma Health Sciences Center or the College of Osteopathic Medicine of Oklahoma State University,

c. faculty members and staff of the University of Oklahoma Health Sciences Center and the College of Osteopathic Medicine of Oklahoma State University, while engaged in teaching duties.

Physician faculty members and staff of the University of Oklahoma Health Sciences Center

The 1992, 1993 and 1994 amendments of § 152 have no effect on this litigation.

19 51 O.S. 1991 §§ 151 et seq.

20 Anderson, supra note 16 at 1340-1341.

21 Unlike the defendant physicians, OMH apparently opted below not to use summary process to invoke its GTCA-conferred immunity from tort liability.

22 The pertinent provisions of 51 O.S. 1991 § 157 (A) were:

"A. A claim is deemed denied if the state or political subdivision fails to approve the claim in its entirety within ninety (90) days, unless the interested parties have reached a settlement before the expiration of that period. A person may not initiate a suit against the state or a political subdivision unless the claim has been denied in whole or in part. * * *" (Emphasis added.)

The 1994 amendment of § 157 has no effect on this litigation.

23 The pertinent provisions of 51 O.S. 1991 § 157 (B) were:

"B. No action for any cause arising under this act . . . shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim as set forth in this section. Neither the claimant nor the state or political subdivision may extend the time to commence an action to continuing to attempt settlement of the claim."

The 1994 amendment of § 157 has no effect on this litigation.

24 See 51 O.S. 1991 § 157 (A), supra note 22.

25 See in this connection, N.Y.General Municipal Law § 50-e subd. 6 (1995), which permits a voluntary (unrequested) amendment of a claim's notice if the error or omission was not made in bad faith and the agency did not demonstrate any actual prejudice. Formanek v. New York City Housing Authority, 197 A.D.2d 664, 603 N.Y.S.2d 15(1993); Nouri v. City of New York, 90 A.D.2d 745, 456 N.Y.S.2d 1(1982); Worrell v. City of New York, 101 Misc.2d 270, 420 N.Y.S.2d 994 (1979)

26 The pertinent terms of 51 O.S. 1991 § 156 (E) are:

"E. The written notice of claim to the state or a political subdivision shall state the date, time, place and circumstances of the claim, the identity of the state agency or agencies involved, the amount of compensation or other relief demanded, the name, address and telephone number of the claimant, and the name, address and telephone number of any agent authorized to settle the claim. Failure to state either the date, time, place and circumstances and amount of compensation demanded shall not invalidate the notice unless the claimant declines or refused to furnish such information after demand by the state or political subdivision . . . ."

27 See, e.g., Harrison v. City of Albia, 144 Iowa 132, 122 N.W. 816, 818 (1909), where the court noted that while the statute governing claims against a city provided for no amendment of the notice, "it would be unjust to give to the statute so strict a construction as to exclude proof of all facts relating to the nature and cause of the injury and the defect or negligence complained of, which are not detailed in the notice." (Emphasis added.) The court concluded by observing that the statute should "have a liberal construction, to the end that parties having meritorious claims shall not be cut off by mere technicality as to the form of notice required." (Emphasis supplied.) Id. 122 N.W. at 818.

28 Reirdon v. Wilburton Bd. of Ed., Okl., 611 P.2d 239, 240 (1980); Conway v. Ohio Cas. Ins. Co., Okl., 669 P.2d 766, 767 (1983); Juvenal v. Okeene Public Schools, Okl., 878 P.2d 1026, 1029 (1994).

29 Dennis v. City of Chickasha, Okl.App., 898 P.2d 744, 747 (1995) (approved for publication by the Supreme Court June 22, 1995), teaches that an uncommunicated early denial of claim (before full lapse of the 90-day bar) will not accelerate the time to bring suit. This holding, we think, accords with today's announced rule that a communicated post-notice request for additional information, initiated by the government, should stop and erase the bar-of-suit time initially triggered by a timely claim's notice the government perceived to be deficient.

30 Okl., 755 P.2d 615, 617(1988).

31 Okl., 789 P.2d 240, 241(1990). In Sanchez, the court held that the city's request for additional information about the motorist's GTCA claim does not toll the 90-day period for denial of the claim. There, the city's insurance carrier requested information about the amount of the claim three days after the claimant's notice. It was not provided until more than five months later.

32 Okl., 780 P.2d 659, 661 (1988).

33 The letter from the Attorney General acknowledges receipt of the claimants' first notice and informs them that (a) the state has 90 days from receipt of the letter to review the claim; (b) at the end of that period the claimants would have 180 days to bring an action; and (c) their "right to sue accrues on March 10, 1992."

34 An appeal time's trigger - like the time to bring a public-law tort suit - is governed by statutory time limits. Once an appealable event has occurred, a trial judge is utterly without authority to extend appeal time by any means or in any manner, direct or oblique. See, e.g., Manning v. State ex rel. Dept. of Public Safety, Okl., 876 P.2d 667, 671 (1994); Grant Square Bank & Trust Co. v. Werner, Okl., 782 P.2d 109, 111 n. 4 (1989); Salyer v. National Trailer Convoy, Inc., Okl., 727 P.2d 1361, 1362 n. 2 (1986); Manos v. Leche, 205 Okl. 213, 236 P.2d 693, 695 (1951); Watchorn v. General Finance & Sales Co., 162 Okl. 203, 19 P.2d 566 (syl. 2) (1933); Starr v. Woods, 162 Okl. 242, 19 P.2d 561, 562 (1933); Sowers v. Archer 161 Okl. 148, 17 P.2d 422, 423 (1932); Philbrock v. Home Drilling Co., 117 Okl. 266, 246 P. 457 (syl. 2) (1926); Bellamy v. Washita Valley Telephone Co., 25 Okl. 792, 108 P. 389 (syl. 2) (1910); Herring v. Wiggins, 7 Okl. 312, 54 P. 483 (syl. 1) (1898).

35 It is unclear from the pleadings whether the plaintiffs' claim against OMH relies on the hospital's own negligence or solely on its vicarious liability for the substandard health care delivered by its staff physicians.

36 For the pertinent terms of 51 O.S. 1991 § 152 (5), see supra note 18.

37 When necessary findings are absent, the case must be remanded with directions that they be made by the trial court. Toxic Waste Impact Group, Inc. v. Leavitt, Okl., 890 P.2d 906, 913 (1995); Dyke v. St. Francis Hospital, Okl., 861 P.2d 295, 300 n. 13 (1993); Matter of Estate of Pope, Okl., 808 P.2d 640, 642 (1990); Robert L. Wheeler, Inc. v. Scott, Okl., 777 P.2d 394, 399 (1989); Teel v. Teel, Okl., 766 P.2d 994, 999 n. 19 (1988); American Ins. Ass'n v. Indus. Com'n Okl., 745 P.2d 737, 740 n. 15 (1987); Sandpiper North Apartments v. Am. Nat. Bank., Okl., 680 P.2d 983, 993 (1984); Matter of Estate of Bartlett Okl., 680 P.2d 369, 377 (1984); Davis v. Gwaltney, Okl., 291 P.2d 820, 824 (1955).

38 Price v. Reed, Okl., 725 P.2d 1254, 1261 n. 29 (1986); Oklahoma Water Resources Bd. v. Texas County, Okl., 711 P.2d 38, 43-44 (1984); Cleary Petroleum Corp. v. Harrison, Okl., 621 P.2d 528, 534 (1980); Nilsen v. Tenneco Oil Co., Okl., 614 P.2d 36, 39 (1980); Matter of Estate of Bradshaw Okl., 606 P.2d 578, 580 (1980); May v. May, Okl., 596 P.2d 536, 540 (1979); Woolfolk v. Semrod, Okl., 351 P.2d 742, 745 (1960).

39 May, supra note 38 at 540 n. 12; Woolfolk, supra note 38 at 745.

40 This court will affirm a correct judgment on any applicable theory. Matter of Estate of Maheras, Okl., 897 P.2d 268, 272 n. 5 (1995); Wright v. Grove Sun Newspaper Co., Inc., Okl., 873 P.2d 983, 993 (1994); Messenger v. Messenger, Okl. 827 P.2d 865, 874 (1992); Willis v. Nowata Land and Cattle Co., Okl., 789 P.2d 1282, 1286-87 (1990); Davidson v. Gregory, Okl., 780 P.2d 679, 685 n. 23 (1989); Benham v. Keller, Okl., 673 P.2d 152, 154 (1983); Utica Nat'l Bank and Trust v. Assoc. Prod, Okl., 622 P.2d 1061, 1066 (1981); Thompson v. Inman, Okl., 482 P.2d 927, 937 (1971); Holloway v. Ward, 84 Okl. 247, 203 P. 217, 219 (1922).

41 Summary judgment can be based only on the record that was before the trial court at the time the decision was made, and not on materials later sought to be considered as an afterthought. Allen v. Board of Trustees, Okl., 769 P.2d 13021313 1305 (1988); In re Estate of Whitlock, Okl., 754 P.2d 862, 863 (1988); Frey v. Independence Fire and Cas. Co., Okl., 698 P.2d 17, 20 (1985); RST Service Manufacturing, & Inc. v. Musselwhite, Okl., 628 P.2d 366, 368 (1981); Wabaunsee v. Harris, Okl., 610 P.2d 782, 784 (1980); Culpepper v. Lloyd, Okl., 583 P.2d 500, 502 (1978); Weeks v. Wedgewood Village Inc., Okl., 554 P.2d 780, 784 (1976); Northrip v. Montgomery Ward & Co., Okl., 529 P.2d 489, 494 (1974).

[917 P.2d 466] WATT, Justice, with whom HODGES, Justice, joins, dissenting.

I dissent to Part II of today's opinion for the reasons set out in my dissent in Anderson v. Eichner, 890 P.2d 1329 (Okla. 1994).

I dissent to Part III of the opinion because it is contrary to extant GTCA jurisprudence, Trent v. Board of County Commissioners, 756 P.2d 615 (Okla. 1988), and its progeny.