JONES v. INTEGRIS BAPTIST MEDICAL CENTER

JONES v. INTEGRIS BAPTIST MEDICAL CENTER
2008 OK CIV APP 14
178 P.3d 191
Case Number: 103640
Decided: 01/10/2008
Mandate Issued: 02/07/2008
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

LISA K. JONES, as Administratrix of the Estate of MICHAEL W. JONES, Deceased; LISA K. JONES, individually; LISA K. JONES, as parent and next friend to STEVEN JONES, a minor, AMANDA JONES, a minor, and MICHELLE JONES, a minor, Plaintiffs/Appellants,
v.
INTEGRIS BAPTIST MEDICAL CENTER, an Oklahoma Not For Profit Corporation; JAY P. CANNON, M.D., individually; JAY P. CANNON, M.D., P.C., an Oklahoma For Profit Corporation, Defendants/Appellees.
John Does 1-5, individuals; and Jane Does 1-5, individuals, Defendants.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE BARBARA G. SWINTON, JUDGE

REVERSED AND REMANDED

Richard D. Marrs, E. Diane Hinkle, The Richardson Law Firm, Tulsa, Oklahoma, for Appellants,
Glen D. Huff, Susan A. Short, Oklahoma City, Oklahoma, for Appellee Integris Baptist Medical Center,
Russell L. Hendrickson, Amy Steele, Andrea D.W. Moates, Pierce, Couch, Hendrickson, Baysinger & Green, L.L.P., Oklahoma City, Oklahoma, for Appellees Jay P. Cannon, M.D., individually, and Jay P. Cannon, M.D., P.C.

Larry Joplin, Presiding Judge:

¶1 Plaintiff/Appellant Lisa K. Jones, individually, as Administratrix of the Estate of Michael W. Jones, Deceased, and as parent and next friend to the minor children, Steven Jones, Amanda Jones, and Michelle Jones (individually, by name, or collectively, Plaintiffs) seeks review of the trial court's order granting the motions to dismiss of Defendants/Appellees Integris Baptist Medical Center, an Oklahoma Not For Profit Corporation, Jay P. Cannon, M.D., individually, and Jay P. Cannon, M.D., P.C., an Oklahoma For Profit Corporation (individually, by name, or collectively, Defendants), on Plaintiffs' claims to recover damages for the wrongful death of her husband and the children's father, Michael W. Jones. In this appeal, Plaintiffs complain the trial court erred as a matter of law (1) in its application of 12 O.S. Supp. 2003 §150, an unconstitutional special law barring access to the courts and denying them equal protection and due process, and (2) in its misapplication of the Oklahoma savings statute, 12 O.S. §100.

¶2 Decedent died December 13, 2002. Plaintiffs commenced an action against Defendants in the District Court of Oklahoma County on August 21, 2003, seeking damages for negligence and the wrongful death of Decedent. On March 28, 2005, the trial court filed its order dismissing the action without prejudice for failure "to issue summons or file a waiver within ninety (90) days of the date of filing of the petition or alias summons was not issued within thirty (30) days after the return of the summons not served as required by Rule 9(a)," Rules for District Courts of Oklahoma, 12 O.S., Ch. 2, App.1

¶3 On November 17, 2005, Plaintiffs (now represented by different counsel) commenced the instant action. On December 13, 2005, Defendants filed their answers.

¶4 On January 9, 2006, Defendants Cannon filed a motion to dismiss. In support, Cannon asserted that, because Plaintiffs failed to serve summons within one hundred eighty days (180) after filing of the initial suit on August 21, 2003, Plaintiffs' initial suit was then "deemed dismissed without prejudice" by operation of

¶5 Plaintiffs responded, arguing that the mandatory "deemed dismissed" language of §150 irreconcilably conflicted with the permissive dismissal provisions of

¶6 On consideration of the parties' arguments, the trial court agreed with Defendants, and dismissed Plaintiffs' action with prejudice. Plaintiffs appeal.

¶7 In their first proposition, Plaintiffs assert the trial court erred as a matter of law in holding their first lawsuit was dismissed in February 2004 by operation of §150, and that the instant suit was not timely commenced within one year as required by §100. In their second proposition, Plaintiffs challenge the validity of §150 as an unconstitutional and impermissible special law, denying them access to the courts, equal protection and due process of law. U.S. Const., Am. I, XIV; Okl. Const., art. II, §6, art. V, §46; Zeier v. Zimmer, Inc.,

¶8 Defendants object to consideration of Plaintiffs' constitutional challenges because they failed to raise the constitutional challenges in the trial court. Indeed, the failure to raise a constitutional issue in the trial court is ordinarily fatal to consideration of the issue on appeal. See, e.g., Jernigan v. Jernigan,

¶9 However, there are exceptions to this rule. For instance, "a question relating to the constitutionality of a statute may, when the public interest and welfare requires, be considered for the first time on appeal." First Nat. Bank of Alex v. Southland Production Co.,

¶10 The parties agree neither Plaintiffs nor Defendants raised any issue challenging the constitutionality of §150 as an impermissible special law in the trial court. However, Plaintiffs did in fact complain that §150 infringed upon their right of due process, and the same analysis applies on review of special law, equal protection and due process complaints. See, e.g., Texas Oklahoma Exp. v. Sorenson,

¶11 In Zeier, the defendant doctor in plaintiff's medical negligence action alleged plaintiff's failure to obtain and provide an expert's affidavit of merit as required by

¶12 On plaintiff's appeal, the Supreme Court first observed:

The terms of art. 5, §46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things. In a special laws attack under art. 5, §46, the only issue to be resolved is whether a statute upon a subject enumerated in the constitutional provision targets for different treatment less than an entire class of similarly situated persons or things. The test is whether the provision fits into the structured regime of established procedure as part of a symmetrical whole. If an enactment injects asymmetry, the §46 interdiction of special law has been offended.

Zeier

The affidavit of merit requirement immediately divides tort victims alleging negligence into two classes - those who pursue a cause of action in negligence generally and those who name medical professionals as defendants. . . . Plaintiffs alleging anything other than medical negligence need only file a petition giving fair notice of the plaintiff's claim and the grounds upon which it rests. These claimants have no affidavit requirement and may commence a cause of action with the filing of a petition, while those alleging medical malpractice must obtain a professional opinion that their cause is meritorious as a prerequisite to pursuing suit or be subject to dismissal.

Not only does

The nature of a res ipsa loquitor claim often negates the necessity of expert testimony to prove the cause. Therefore, if

Zeier

A statute is a "special law" where a part of an entire class of similarly affected persons is separated for different treatment. . . . [Section] 1-1708.lE . . . sets aside a subset of negligence plaintiffs for different procedural and evidentiary treatment based on the type of action they pursue. The professional affidavit requirement of

By mandating uniformity of procedure, the terms of art. 5, §46 command that all citizens of the state shall have equal access to legal institutions for application of the general ordinary forensic process. Medical malpractice plaintiffs constitute nothing more than a subset of parties pursuing a cause under negligence standards. Because

Zeier

¶13 First, and like §1-1708.1E, it is clear that §150 "sets aside a subset of negligence plaintiffs for different procedural . . . treatment based on the type of action they pursue." Zeier,

If service of process is not made upon a defendant within one hundred eighty (180) days after the filing of the petition and the plaintiff cannot show good cause why such service was not made within that period, the action may be dismissed as to that defendant without prejudice upon the court's own initiative with notice to the plaintiff or upon motion. . . . This subsection shall not apply with respect to a defendant who has been outside of this state for one hundred eighty (180) days following the filing of the petition.

(Emphasis added.) The unequivocal language of §2004(I) thus permits dismissal of an action if an ordinary plaintiff fails to obtain service of summons within one-hundred-eighty (180) days of issuance, but requires notice to an ordinary plaintiff of such impending doom, either by the court or by the movant on a motion to dismiss. See also,

¶14 Second, upon failure to obtain service within 180 days, §2004(I) affords an ordinary plaintiff an opportunity to avoid the trial court's discretionary power to dismiss by showing "good cause why such service was not made within that period." Section 150, however, affords a medical negligence plaintiff no such opportunity to explain the failure of service.

¶15 Third, dismissal of an ordinary plaintiff's claim is not mandated by the plain language of §2004(I) unless or until three conditions are met: (1) the trial "court quashes a summons or its service," and (2) "a new summons [is permitted to] be served on the defendant within a time specified by the" trial court, and (3) "the new summons is not served within the specified time," in which case, an ordinary plaintiff's "action shall be deemed to have been dismissed without prejudice as to that defendant" not served. (Emphasis added.) Again, however, §150 does not afford a medical negligence plaintiff the same opportunities, upon failure to obtain service of summons within 180 days, either to explain the failure of service within that period, or to obtain service of a new summons "within a time specified by the" trial court before facing mandatory dismissal.

¶16 Finally, and by its own specific terms, an ordinary plaintiff's action may not be dismissed for failure of service of process under §2004(I) because "this subsection shall not apply with respect to a defendant who has been outside of this state for one hundred eighty (180) days following the filing of the petition." On the other hand, the action of a medical negligence plaintiff is "deemed dismissed" under §150 without respect to the defendant's presence or absence from the state during the 180-day period after filing of the petition.

¶17 Section 150 holds medical negligence plaintiffs to different and stricter standards than any other plaintiffs, and denies to medical negligence plaintiffs prior notice of proceedings potentially affecting their rights, a violation of fundamental due process. The 180-day "deemed dismissed" provision of §150 may not therefore be invoked to trigger running of the §100 one year period for refiling of Plaintiffs' action. Plaintiffs commenced this action within one year of the March 2005 filing of the trial court's order of dismissal, timely under §100.

¶18 The order of the trial court is therefore REVERSED and the cause REMANDED for further proceedings.

MITCHELL, V.C.J., concurs; and ADAMS, J., concurs by reason of stare decisis.

FOOTNOTES

1 "In any case in which summons is not issued or waiver filed within ninety (90) days after the filing of the petition, or alias summons is not issued within thirty (30) days after return of the summons not served, the action may be dismissed by the court without notice to the plaintiff."

2 "In any medical liability action, a summons shall be served on the defendant, or defendants, within one hundred eighty (180) days of the filing of the lawsuit or the case shall be deemed dismissed without prejudice."

3 In so holding, the Oklahoma Supreme Court observed:

. . . The wisdom of this exemption is, we think, self-evident, for the rule itself is one of practice and designed to limit the scope of inquiry on appeal strictly to the controversy as it was presented to the lower tribunal. It is fair to the parties, however, when the question is of such a nature that the present welfare of the people at large, or a substantial portion thereof, is involved that the consideration of their rights merits a departure from the general rule and authorizes the court in its discretion to direct its attention to the general welfare, rather than the interests of the parties to the immediate cause.

First Nat. Bank of Alex