Reynolds v. Porter

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Reynolds v. Porter
1988 OK 88
760 P.2d 816
59 OBJ 1987
Case Number: 60253
Decided: 07/19/1988
Supreme Court of Oklahoma


Certiorari to the District Court; Jack Parr, Judge.

¶0 In a medical malpractice action the trial court rendered partial summary judgment for the defendant pursuant to 76 O.S. 1981 § 18 , finding that the action could be maintained as timely brought within two years of discovery of the injury but that because the action was brought more than three years from the date of the injury it is limited to recovery of actual medical and surgical expenses. The trial court certified for review the question of the constitutionality of § 18's three-year proviso.


James B. Browne, Thomas Wakely, Oklahoma City, for petitioner-plaintiff.

John Wiggins, George W. Paull, Jr., Cynthia L. Sparling, Short, Barnes, Wiggins Margo & Adler, Oklahoma City, for respondent-defendant.

Carolyn S. Thompson, Howard K. Berry, Jr., Gary L. Brooks, Oklahoma City, for amicus curiae Oklahoma Trial Lawyers Ass'n.

OPALA, Justice.

[760 P.2d 818]

¶1 The petitioner, a plaintiff in a medical malpractice action, challenges the constitutionality of the three-year proviso in 76 O.S. 1981 § 18 which limits the scope of recoverable damages when an action is brought more than three years from the date of the injury. She asserts that § 18 violates [1] the Equal Protection Clause of the U.S. Constitution by penalizing only victims of health care providers' malpractice without a corresponding penalty for victims of other tortfeasors; [2] Oklahoma's constitutional prohibition against special laws limiting civil actions, Art. 5, § 46 , by creating a limitation period which protects a special class of tortfeasors; [3] Oklahoma's constitutional prohibition against granting exclusive rights, privileges or immunities, Art. 5, § 51 , by granting immunity from suit to the health care profession for certain types of damages; and [4] Oklahoma's constitutional prohibition against the limitation of amounts recoverable for injuries resulting in death, Art. 23 § 7.

¶2 We rest our holding on adequate and independent state grounds

[760 P.2d 819]


¶3 The respondent doctor performed on the petitioner the alleged negligent hemorrhoidectomy on May 16, 1976. She claims she did not learn that she had been injured by the doctor's negligence until May 22, 1980. She filed a medical malpractice action April 27, 1982. The trial court gave the defendant a partial summary adjudication, ruling that although under 76 O.S. 1981 § 18 the action was timely brought within two years of the injury's discovery, because it was filed more than three years from the date of the injury, the petitioner is limited to recovering actual medical and surgical expenses incurred or to be incurred. This ruling barred the petitioner's remedy for past and future loss of income, pain and suffering, humiliation and embarrassment, and permanent disability. The trial court certified for our review in advance of judgment petitioner's attack on the constitutionality of the three-year proviso in 76 O.S. 1981 § 18 as it operates to limit damages. We grant the review sought to settle the first-impression question.


¶4 The statute under inquiry, 76 O.S. 1981 § 18 , provides:

"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; provided any action brought more than three (3) years from the date of the injury shall be limited to actual medical and surgical expenses incurred or to be incurred as a direct result of said injury, provided, however, the minority or incompetency when the cause of action arises will extend said period of limitation." [Emphasis supplied.]

¶5 This court addressed the constitutionality of the two-year limitation in McCarroll v. Doctors General Hospital.



¶6 Because there is a strong policy in Oklahoma against unwarranted modification of statutory limitations,

¶7 The time prescribed by a statute of repose runs from a specific negligent act or event regardless of when the harm or damage occurs. A limitation period runs from the time the elements of a cause of action arise. It may or may not allow for the plaintiff's discovery of the injurious event.

¶8 Were we to settle instead on the third option, the three-year provision would become an extended duplicate of the two-year restriction - a three-year statutory limitation with the benefit of a discovery rule. That could not have been the intent of the legislature. Under the second option, the statute would act as one of repose in cases where harm from the negligent omission or commission occurs more than three years later. In such a case, the three-year provision would extinguish the right to bring an action for all damages except actual medical and surgical expenses before the right to bring the action can arise.

¶9 In the majority of malpractice cases, as in the case before us, the injury occurs [760 P.2d 821] contemporaneously with the negligent act.

¶10 In Kenyon v. Hammer

¶11 In Hammer, the negligent act was a nurse's mistake in recording plaintiff's blood type as RH positive instead of RH negative. The court held that for limitation purposes the plaintiff's bodily injury occurred seventy-two hours after the delivery of plaintiff's RH positive child - several months after the negligent act. At that time plaintiff developed an immune response which affected her ability to bear additional children. A drug which suppresses such a response was not administered because of the incorrect information on plaintiff's chart. The court specifically refused to interpret the statute as a statute of repose running from the negligent act. It held that the proviso was a statute of limitation without the benefit of a discovery rule.

¶12 The text of § 18 neither impliedly nor expressly abolishes any claims or causes of action before they can arise. Rather, the section limits recovery for a class of actionable medical malpractice claims whose commencement is delayed by want of discovery within three years of the injury. We hold that Oklahoma's three-year restriction is hence a statute of limitation without the benefit of a discovery rule. It began to run when the plaintiff suffered actual harm. Her right to bring an action arose at that time even though she was then unaware of the harm she suffered. The plaintiff's remedy is limited to the recovery of actual medical and surgical expenses because she failed to bring her action within three years of the harmful event.



¶13 We now consider whether the three-year restriction is a special statute of [760 P.2d 822] limitation in violation of Art. 5, § 46 of the Oklahoma Constitution. The constitutional mandate is couched in unmistakably imperative terms and provides in pertinent part:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * * * * *

For limitation of civil or criminal actions. . . ." [Emphasis supplied.]

Art. 5, § 59 , Okl.Const., further enlightens us on the breadth of the § 46 prohibition against special laws. Its terms provide:

"Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted."

Section 59 generally allows the legislature to pass special laws when a general law is not applicable.

¶14 Under the first prong, we must identify the class. A statute relating to all persons or things of a class is a general law; one relating to particular persons or things of a class is a special law.

¶15 Under the second prong, we must determine if the subject of the legislation is reasonably susceptible of general treatment or if, on the other hand, there is a special situation possessing characteristics impossible of treatment by general law. Here the court will consider both the nature and objective of the legislation as well as the conditions and circumstances under which the statute was enacted.

¶16 Under the third prong, the court must determine if the special legislation is reasonably and substantially related to a valid legislative objective.

¶17 Under § 46 our constitutional review of a statute stops with the first prong: Is the statute a special or general law? If the statute is special, § 46 absolutely and unequivocally prohibits its passage by the [760 P.2d 823] legislature.

¶18 The § 46 subject dealt with in the three-year restriction under inquiry here is the limitation of a civil action. In determining whether the statute operates on an entire class of actionable claims that are similarly situated, we identify the class by reference to the general legislative scheme of limitations patterned after the English legal tradition that includes the commonlaw gloss. The common-law class implicated by the three-year provision in § 18 comprises all actionable tort claims tollable by the discovery rule. Actionable tort claims favorably affected by Oklahoma's discovery rule include not only medical malpractice claims,

¶19 The manifest intent of our Constitution's framers was that all persons under the same conditions and in the same circumstances be treated alike and that the legislature be prohibited from tampering with limitations by fashioning special acts. The vice of special acts is that they create preferences and establish inequality.

¶20 Section 46 also prohibits local or special laws regulating the affairs of school districts. In Maule v. Independent School Dist. No. 9

¶21 The three-year restriction in the medical malpractice statute has no counterpart in the general law of limitations applicable to other claims that benefit from the discovery rule.



¶22 Even if we were to assume the attack launched here were under § 59 and were to gauge the validity of the statute by the reasonableness standard, we could not approve the legislation as reasonably and substantially related to a valid legislative objective. The respondent cites the rapid increase in medical malpractice litigation in Oklahoma and the resulting escalation of malpractice insurance costs as threats to the availability of affordable health care to the Oklahoma public as the basis for the constitutional classification. The respondent favors us with no statistics to support his theory. He cites the reasons other states have assigned as a basis for medical malpractice legislation and speculates that the same reasons might also apply in Oklahoma.

¶23 The three-year proviso was enacted in 1976 after an escalation in the cost of medical malpractice insurance had created what was perceived as a nationwide crisis.

¶24 Considering the right of health care providers to be free from the burden of defending stale claims, we see no correlation between the three-year proviso and this possible objective. Unlike the two-year proviso approved in McCarroll, the three-year limit does not absolutely bar the claim. The health care providers must still appear in court to defend their professional actions. They are still required to elicit evidence which will show that their conduct conforms to due care. The three-year limit affects the litigation only when a health care provider's negligence has been established. At that point the time limit acts to shield the negligent health care provider from liability for some of the resulting damage. It does not eliminate the burden of defending a stale claim.

¶25 We next consider whether the three-year limit is reasonably and substantially related to the high cost of medical malpractice insurance. There is no legislative declaration supported by documented findings that the narrow class carved out in § 18 is so affected by an excessively high incidence of losses that it calls for special statutory treatment. In short, not even the less restrictive standard of reasonableness under § 59 would save the challenged three-year limit from failing constitutional muster.


¶26 Because the critical provision in 76 O.S. 1981 § 18 , which limits the scope of recoverable damages after a three-year time lapse, is a special statute of limitation absolutely proscribed by Art. 5, § 46 , Okl. Const., we reverse today that part of the trial court's order which found that because the action was brought more than three years from the date of injury, the plaintiff's recovery must be limited to actual medical and surgical expenses incurred or to be incurred.

¶27 HARGRAVE, V.C.J., HODGES, KAUGER and SUMMERS, JJ., and MEANS, S.J. (who sat by designation in lieu of DOOLIN, C.J., upon the latter's disqualification), concur.

¶28 LAVENDER, SIMMS and ALMA WILSON, JJ., concur in result.


1 See Michigan v. Long, 463 U.S. 1032, 1038-1042, 103 S. Ct. 3469, 3475-3477, 77 L. Ed. 2d 1201 [1983].

2 The terms of Art. 5, § 46 , Okl. Const., provide:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * * * * *

For limitation of civil or criminal actions. . . ."

For the pertinent text of § 46, see also Part II, infra.

3 Okl., 664 P.2d 382, 385-386 [1983].

4 Black v. Ball Janitorial Service, Inc., Okl., 730 P.2d 510, 512 [1986]; Reherman v. Oklahoma Water Resources Bd., Okl., 679 P.2d 1296, 1300 [1984] and Earnest, Inc. v. LeGrand, Okl., 621 P.2d 1148, 1152 [1981].

5 See infra note 8 for the definition of the term "discovery rule."

6 Statutory limitations may not be abridged or waived by contract. Art. 23, § 9 , Okl. Const.; Uptegraft v. Home Ins. Co., Okl., 662 P.2d 681, 686 [1983]. Limitations may not be fashioned by courts. This is so because limitations are traditionally recognized as springing from statutory sources. Lake v. Lietch, Okl., 550 P.2d 935, 937 [1976]. The only limitation developed by the common law was the so-called "immemorial prescription." It was not until the 17th Century that Parliament passed legislation providing fixed time limits within which an action must be brought. See Opala, Praesacriptio Temporis and its Relation to Prescriptive Easements in the Anglo-American Law, 7 Tulsa L.Rev. 107, 111-113, 124 [1971]. By the terms of Art. 5, § 46 , Okl. Const., the legislature is also prohibited from tampering with limitations by passage of local or special acts. City of Tulsa v. McIntosh, 141 Okl. 220, 284 P. 875, 877 [1930].

7 See McGovern, infra note 11 at 583 and Pillow v. Roberts, 54 U.S. (13 How.) 472, 476, 14 L. Ed. 228, 231 [1851].

8 The "discovery rule" allows limitations in tort cases to be tolled until the injured party knows or, in the exercise of reasonable diligence, should have known of the injury. Its appearance in our decisions is a fairly recent development in Oklahoma's common law. See Continental Oil Co. v. Williams, 207 Okl. 501, 250 P.2d 439, 441 [1952]; Seitz v. Jones, Okl., 370 P.2d 300, 302 [1962] and Gouin v. Continental Oil Co., Okl.App., 590 P.2d 704, 707 [1979].

9 See Matter of Estate of Speake, Okl., 743 P.2d 648, 652-653 [1987]; Smith v. Westinghouse Elec. Corp., Okl., 732 P.2d 466, 468, n. 11 [1987]; Baccus v. Banks, 199 Okl. 647, 192 P.2d 683, 691 [1948], appeal dismissed Reeder v. Banks, 333 U.S. 858, 68 S. Ct. 743, 92 L. Ed. 1138, reh. den. 333 U.S. 883, 68 S. Ct. 911, 92 L. Ed. 1158 [1948] and Turner Const. Co., Inc. v. Scales, 752 P.2d 467, 469, n. 2 [Alaska 1988]. In Westinghouse, supra at 468, note 11, the court stated:

". . . [A] statute of limitation serves to place a limit on the plaintiff's time to bring an action. After the prescribed time period has lapsed, a statute of limitation serves to extinguish the remedy for the redress of an accrued cause of action. A statute of repose, by way of contrast, restricts potential liability by limiting the time during which a cause of action can arise. It thus serves to bar a cause of action before it accrues. In a practical sense, a statute of limitation implicitly seeks to punish those who sleep on their rights, while the statute of repose operates to bar some plaintiffs' recovery, no matter how diligent they may have been in asserting their claims. . . ." [Emphasis in the opinion.]

10 See Loyal Order of Moose, Lodge 1785 v. Cavaness, Okl., 563 P.2d 143, 146 [1977], where we held that it is within the legislature's power to enact a statute of repose modifying or abolishing a common-law cause of action as long as no vested right is disturbed.

11 See generally McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579 [1981] and Developments in the Law, Statutes of Limitations, 63 Harv.L.Rev. 1177 [1950].

12 Kenyon v. Hammer, infra note 20 at 967 and Garrett v. Raytheon Co., Inc., 368 So. 2d 516, 521 [Ala. 1979].

13 Bernath v. LeFever, 325 Pa. 43, 189 A. 342, 343 [1937].

14 Catz v. Rubenstein, 201 Conn. 39, 513 A.2d 98, 101-103 [1986].

15 In product liability cases, on the other hand, the injury rarely occurs at the same time as the negligent act or omission.

16 Riffe Petroleum Co. v. Great Nat. Corp., Inc., Okl., 614 P.2d 576, 579 [1980].

17 Rath v. LaFon, Okl., 431 P.2d 312, 314 [1967].

18 Black's Law Dictionary [5th ed. 1979] at 706 and Webster's Third New International Dictionary at 1164 [1961].

19 This court in a nuisance case construed "injury" as "the result of the nuisance" and not as "the nuisance itself". Briscoe v. Harper Oil Co., Okl., 702 P.2d 33, 36 [1985]. In White v. Kitty Clover Company, Okl., 409 P.2d 637, 639 [1965], this court construed "injury" as "the harm resulting from an accident," not as "the accident itself".

20 142 Ariz. 69, 688 P.2d 961, 966-967 [1984].

21 In Hammer, supra note 20 688 P.2d at 979, the Arizona Supreme Court concluded that the statute violated the state's equal protection provision. Kenyon v. Hammer, supra note 20 688 P.2d at 968.

22 The legislature must, of course, comply with publication requirements prescribed by Art. 5, § 32 , Okl. Const.

23 Jack v. State, 183 Okl. 375, 82 P.2d 1033, 1035 [1938] and Guthrie Daily Leader v. Cameron, 3 Okl. 677, 41 P. 635, 639 [1895].

24 Grable v. Childers, 176 Okl. 360, 56 P.2d 357 [1936] (syllabus 1).

25 See Jack v. State, supra note 23 82 P.2d at 1036; State v. Hodgson, 183 Kan. 272, 326 P.2d 752, 758 [1958] and State Board of Regents v. Lindquist, 188 N.W.2d 320, 324 [Iowa 1971].

26 Black v. Ball Janitorial Service, Inc., supra note 4 at p. 514.

27 Oklahoma City v. Excise Board of Oklahoma County, 193 Okl. 189, 141 P.2d 805, 808-809 [1943] and Wilkinson v. Hale, 184 Okl. 165, 86 P.2d 305, 307 [1939].

28 See Elias v. City of Tulsa, Okl., 408 P.2d 517, 520 [1965].

29 Maule v. Independent School Dist. No. 9, infra note 39 at 204; City of Tulsa v. McIntosh, supra note 6 284 P. at 877; Union School Dist. No. 1 v. Foster Lumber Co., 142 Okl. 260, 286 P. 774, 775 [1930] and Bradford v. Cole, 95 Okl. 35, 217 P. 470, 472 [1923].

30 Art. 5, § 51 , Okl. Const., defines another subject area where general law must always be applied: granting to corporations or individuals special or exclusive privileges, immunities or franchise.

31 Seitz v. Jones, supra note 8 at 302.

32 Continental Oil Co. v. Williams, supra note 8 250 P.2d at 441; North v. Evans, 199 Okl. 284, 185 P.2d 901, 904 [1947] and Skelly Oil Co. v. Humphrey, 195 Okl. 384, 158 P.2d 175, 176-177 [1945].

33 Harper-Turner Oil Company v. Bridge, 311 P.2d 947, 950 [1957]; Cities Service Gas Co. v. Eggers, 186 Okl. 466, 98 P.2d 1114, 1118 [1940]; Commercial Drilling Co. v. Kennedy, 172 Okl. 475, 45 P.2d 534, 536 [1935] and Gouin v. Continental Oil Co., supra note 8 at 707.

34 Sloan v. Canadian Valley Animal Clinic, Inc., Okl.App., 719 P.2d 474 [1985].

35 Had the abolition of the discovery rule not been limited to a single subclass of actionable tort claims, the § 46 prohibition would not be violated.

36 We do not express an opinion as to the proper test to be applied in identifying a class for other subjects enumerated in Art. 5, § 46 , Okl. Const. The test we adopt for identifying the class in measuring the validity of a civil action's limitation by the strictures in § 46 is not necessarily applicable to other subjects enumerated in that section.

37 Jack v. State, supra note 23 at 1035.

38 186 Okl. 674, 100 P.2d 269, 271 [1940]. See also Sherwood Forest No. 2 Corp. v. City of Norman, Okl., 632 P.2d 368, 370 [1980] and City of Tulsa v. McIntosh, supra note 6 284 P. at 877.

39 Okl., 714 P.2d 198, 203-204 [1986].

40 See text accompanying supra notes 31-34.

41 Amicus curiae asserts that the three-year provision acts as a zero cap on certain types of damages and discriminates against the most severely injured victims of medical malpractice. Amicus further asserts that because there is no rational basis for this discrimination, the three-year provision offends the equal protection notions of both the U.S. and Oklahoma Constitutions. The zero cap on damages is effected only after the statute of limitation has run. Because we hold the statute's subclass comprising a few malpractice cases which cannot be discovered in three years is a special act violative of Art. 5, § 46 , Okl. Const., we save for another day the equal protection argument against caps on medical malpractice claims.

42 There is considerable authority questioning the reality of a nationwide medical malpractice crisis. See Arneson v. Olson, 270 N.W.2d 125, 136 [N.D. 1978]. See also Sepler, Professional Malpractice Litigation Crises: Danger or Distortion?, 15 Forum 493 [1980] and Kindregan and Swartz, The Assault on the Captive Consumer Emasculating the Common Law of Torts in the Name of Reform, 18 St. Mary's L.J. 673 [1987].

43 See Arneson v. Olson, supra note 42 and law review articles in note 42 supra.


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