WHITAKER v. HILL NURSING HOME, INC.

WHITAKER v. HILL NURSING HOME, INC.
2009 OK CIV APP 41
210 P.3d 877
Case Number: 106350
Decided: 03/20/2009
Mandate Issued: 04/23/2009
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

CHRISTINE WHITAKER, AS PERSONAL REPRESENTATIVE OF THE ESTATE AND AS REPRESENTATIVE OF ALL WRONGFUL DEATH BENEFICIARIES OF JAMES C. RICHARD, JR., DECEASED, Plaintiff/Appellant,
v.
HILL NURSING HOME, INC., Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF McCURTAIN COUNTY, OKLAHOMA

HONORABLE WILLARD DRIESEL, JUDGE

AFFIRMED

Benjamin L. Barnes, Micky Walsh, BEELER, WALSH & WALSH, P.L.L.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant,
W. Michael Hill, Timothy S. Harmon, Don W. Danz, SECREST, HILL & BUTLER, Tulsa, Oklahoma, and Douglas M. Borochoff, Charles A. McSoud, GIBBS ARMSTRONG BOROCHOFF MULLICAN & HART, Tulsa, Oklahoma, for Defendant/Appellee.

BAY MITCHELL, CHIEF JUDGE:

¶1 Christine Whitaker, as Personal Representative of the Estate and as Representative of all wrongful death beneficiaries of James C. Richard, Jr., Deceased, Plaintiff/Appellant ("Whitaker"), seeks review of an order granting Defendant/Appellee ("Nursing Home") Hill Nursing Home, Inc.'s Motion for Summary Judgment on the basis that the wrongful death action was barred by the two-year statute of limitations pursuant to 76 O.S. 2001 §18.1

¶2 This case arises out of the care and treatment of James C. Richard, Jr., who was an elderly resident of the Nursing Home from January 2003 through May 12, 2004. On that date, Mr. Richard was transferred to McCurtain Memorial Hospital, where he died on May 19, 2004. Whitaker, who is Mr. Richard's granddaughter, filed her Petition on March 29, 2007, alleging Nursing Home "engaged in a pattern and practice of ongoing neglect" and that Nursing Home's "continuing course of repeated negligence" including its "failure to take the precautions necessary to ensure the [decedent's] health and safety, failure to provide proper and timely services" resulted in mental and physical injury, pain and suffering, medical expenses, and ultimately his death. Additionally, the Petition asserts claims for breach of contract and negligence per se on the basis that Nursing Home violated the Oklahoma Nursing Home Care Act,

¶3 Whitaker filed her Petition on March 29, 2007, more than two years and ten months after the death of Mr. Richard on May 19, 2004. Nursing Home asserts, and Whitaker does not dispute, that Whitaker had knowledge of her grandfather's death on or about the date of its occurrence.

¶4 The trial court determined that Nursing Home is a health care provider subject to application of the two-year statute of limitations set forth in

¶5 The primary issue on appeal is whether the two-year statute of limitations set forth in

An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state, whether based in tort, breach of contract or otherwise, arising out of patient care, shall be brought within two (2) years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of . . . .

Whitaker contends this case is not a traditional medical liability action, but rather one for breach of contract, and that Nursing Home is not a "health care provider" subject to the two-year statute of limitations set forth in

¶6 Nursing Home cites to statutory provisions and definitions indicative of legislative intent to include nursing homes within the category of "health care provider."

¶7 Our highest court has labeled a personal injury action brought against a nursing home arising out of alleged negligent care as "health-care litigation." See Harder v. Clinton,

¶8 Whitaker also contends this case is governed by the five-year statute of limitations generally applicable to breach of contract actions as set forth in

¶9 We note, however, that the five-year statute of limitations in

¶10 Whitaker raised additional arguments in her briefs in opposition to Nursing Home's Motion for Summary Judgment,

¶11 Based on this Court's de novo review of the record, the trial court's order granting Nursing Home's Motion for Summary Judgment is affirmed.

¶12 AFFIRMED.

HANSEN, P.J., and JOPLIN, J., concur.

FOOTNOTES

1 The appellate standard of review of a trial court's grant of summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, 920 P.2d 122. This Court will examine the pleadings and evidentiary materials submitted by the parties to determine if there is a genuine issue of material fact. Ross v. City of Shawnee, 1984 OK 43, ¶7, 683 P.2d 535, 536. All inferences and conclusions to be drawn from the evidentiary materials must be viewed in the light most favorable to the non-moving party. Id.

2 Exhibit 1 to Plaintiff's Response to Defendant's Motion for Summary Judgment Regarding Statute of Limitations is the "expert report" of Betty Lou Hurford, R.N.

3 Nursing Home does not argue the application of the two-year wrongful death statute of limitations, which begins to run on the date of Decedent's death. See 12 O.S. 2001 §1053; Kimberly v. DeWitt, 1980 OK CIV APP 2, 606 P.2d 612. This statute has been applied in a wrongful death action against a nursing home in which allegations of resident neglect and abuse were raised, in addition to a breach of contract claim. See Broadway v. Peak Medical Oklahoma No. 5, 2005 OK CIV APP 63, 120 P.3d 872.

4 The Oklahoma Health Care Information System Act defines "health care providers" as "a hospital or related institution licensed pursuant to Section 1-702 of this title, nursing facilities licensed pursuant to [The Nursing Home Care Act, which is] Section 1-1903 of this title. . . ." 63 O.S. 2001 §1-116 (emphasis added). Additionally, Nursing Home cites to the Affordable Access to Health Care Act, 63 O.S. Supp. 2003 §1-1708.1C(1), which defines "health care provider" as follows: "any person or other entity who is licensed pursuant to the provisions of Title 59 or Title 63 of the Oklahoma Statutes . . . to render health care services in the practice of a profession or in the ordinary course of business." Id. (emphasis added). Title 63 O.S. §1-1903 mandates licensure prior to the establishment, operation or maintenance of any nursing facility.

5 Despite Whitaker's assertion this case is not a traditional medical liability action, her response brief nevertheless includes the following specific allegations of negligence: failure to obtain and provide timely and appropriate medical treatment and nursing intervention; failure to notify the physician of significant conditions and changes in condition; failure to follow physician's orders; failure to observe and comply with infection control precautions; failure to adequately monitor hydration; and failure to provide basic care planning for known medical problems.

6 In Harder, the Court noted that "[i]n other jurisdictions the standard of patient care owed by the hospital has been applied in favor of nursing home residents. Nursing homes, like private hospitals, are under a duty of exercising reasonable care to avoid injury to residents. The reasonableness of care is to be assessed in the light of the patient's physical and mental condition." Harder v. Clinton, 1997 OK 137, n.22, 948 P.2d 298, 304 (citing numerous cases from other jurisdictions in support.).

7 12 O.S. §95. Limitations of other actions

A. Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

1. Within five (5) years: An action upon any contract, agreement or promise in writing;

2. Within three (3) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty; and an action on a foreign judgment.

8 Nursing Home attached as Exhibit C to its Motion for Summary Judgment the "Admission Contract and Authorizations," which was executed on January 17, 2003 by decedent's sister, Perzefinee Bailey and a witness upon admission of Mr. Richard into Nursing Home. The contract includes the following provision: "As further consideration of such admission, it is mutually agreed that said Home shall no [sic] be held liable for accident or injury to resident during residence."

9 Whitaker alternatively argued that this case is governed by the three-year statute of limitations for negligence per se causes of action pursuant to 12 O.S. § 95(A)(2). See statute cited supra, note 7. Whitaker additionally argued the statute of limitations was tolled in accordance with 12 O.S. 2001 §96 until one year after Mr. Richard's death due to his mental incapacity prior to his death. Section 96 provides:

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 parent 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.

The trial court's Order includes a determination that "any potential extension of the statute of limitations due to his incompetency did not extend the applicable two year statute of limitations."