Oklahoma Medical Malpractice Summary

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Statutes of Limitations

Under Oklahoma law, a medical malpractice action must be brought within two years from the date upon which the claimant knew or should have known of the alleged injury. Okla. Stat. Ann. tit. 76, § 18 (West 1995). This statute provides that an action brought more than three years from the date of injury shall be limited to past and future actual medical and surgical expenses resulting from the injury. Id. This latter limitation, however, was declared unconstitutional in Wofford v. Davis, 764 P.2d 161 (Okla. 1988).

Claimants under the age of twelve must bring a medical malpractice action within seven years from the date the injury was inflicted. Okla. Stat. Ann. tit. 12, § 96 (West 1988). Further, claimants twelve years of age and older must bring a medical malpractice action within one year from obtaining the age of majority, but in no event less than two years from the date of injury. Id. Persons adjudged incompetent must bring their medical malpractice action within seven years from the date upon which the injury was incurred. Id. Additionally, incompetents who are subsequently adjudged mentally competent must bring their medical malpractice action within one year after the adjudication of competency, but in no event less than two years from the date of injury. Id.

Wrongful death actions must be brought within two years from the time of death. Okla. Stat. Ann. tit. 12, § 1053 (West 1988). It governs wrongful death actions based on medical malpractice. Hammons v. Muskogee Medical Center Authority, 697 P.2d 539 (Okla. 1985).

Contributory or Comparative Negligence

Oklahoma has adopted the doctrine of modified comparative negligence. Under this doctrine, a claimant’s action is not barred unless his negligence exceeds the combined negligence of all defendants. Okla. Stat. Ann. tit. 23, § 13 (West 1987). However, his recovery is diminished in proportion to his negligence. Okla. Stat. Ann. tit. 23, § 14 (West 1987). See Smith v. Jenkins, 873 P.2d 1044 (Okla. 1994) (plaintiff and counterclaimant each entitled to 50 percent of his damages from the other when the jury found each equally liable for a single accident).

Joint and Several Liability

Joint tortfeasors are jointly and severally liable when the recovering claimant is without fault. Boyles v. Oklahoma Natural Gas Co., 619 P.2d 613 (Okla. 1980); Anderson v. Donoghue, 677 P.2d 648 (Okla. 1983). In a case under the contributory negligence statute, however, when the jury has found the claimant to be responsible for a share of negligence, joint tortfeasors are severally liable only. Laubach v. Morgan, 588 P.2d 1071 (Okla. 1978).

Contribution

When two or more persons become jointly or severally liable in tort for the same injury, a right of contribution exists in favor of the tortfeasor who has paid more than his pro rata share. A settling tortfeasor is not entitled to contribution from another tortfeasor whose liability is not extinguished by the settlement or to contribution toward payment of an excessive settlement. Okla. Stat. Ann. tit. 12, § 832 (West Supp. 1998). Although the statute uses the term “pro rata share,” the Oklahoma Supreme Court holds that this “will be interpreted to mean proportionate, as based on one’s degree of fault.” National Union Fire Insurance Co. v. A.A.R. Western Skyways, 784 P.2d 52, 57 (Okla. 1989).

Vicarious Liability

An Oklahoma hospital has been held liable for the errors of physicians working under contract in the emergency department under two theories: (a) actual agency, because the degree of control exercised by the hospital made defendants who were independent contractors in form employees in fact; and (b) ostensible agency, because there was no pre-exiting relationship between the physicians and the patient, who was looking to the hospital for emergency treatment and was entitled to regard the physicians furnished by the hospital as its agents. Smith v. St. Francis Hospital, 676 P.2d 279 (Okla. Ct. App. 1983).

Expert Testimony

Medical malpractice claimants must prove the applicable standard of care through the use of expert medical testimony, unless the alleged negligence is grossly apparent to a layman. Turney v. Anspaugh, 581 P.2d 1301 (Okla. 1978) (expert not needed for sponge left in surgical wound).

Damage Caps

In cases of reckless disregard of the rights of others, punitive damages are limited to $100,000. In cases of intentional and malicious acts, they are limited to the greater of $500,000, twice compensatory damages, or the benefit derived by defendant from his conduct. If the judge finds beyond a reasonable doubt that the intentional and malicious act threatened human life, the cap does not apply. The court will reduce punitive damages if it finds that the defendant has already paid punitive damages in Oklahoma for the same misconduct. Okla. Stat. Ann. tit. 23, § 9.1 (West Supp. 1998).

Statutory Cap on Attorneys’ Fees

Under Okla. Stat. Ann. tit. 5, § 7 (West 1996), attorneys may lawfully contract for a percentage of the recovery, but such percentage may not exceed 50 percent.

Periodic Payments

Oklahoma does not require the periodic payment of any portion of a claimant’s damages in a medical malpractice action.

Collateral Source Rule

Payments received by a claimant from collateral sources may be deducted from the claimant’s damages. This deduction may be made by the court acting on a post-trial motion. Overturff v. Hart, 531 P.2d 1035 (Okla. 1975).

Pre-Judgment Interest

Oklahoma affords successful claimants a right to pre-judgment interest, which accrues from the date upon which the action is filed. The rate of interest, which was 9.15 percent in 1997, is based on the one-year United States Treasury bill rate plus four percent. Okla. Stat. Ann. tit. 12, § 727 (West 1998). The award of pre-judgment interest on punitive damages has been held to be improper. Casto v. Arkansas-Louisiana Gas Co., 562 F.2d 622 (10th Cir. 1977).

Patient Compensation Funds and Physician Insurance

Oklahoma does not have a patient compensation fund, and it does not require its licensed physicians to carry professional liability insurance.

Immunities

Under Okla. Stat. Ann. tit. 51, § 152.1 (West 1988), the doctrine of sovereign immunity was adopted by the State of Oklahoma. However, the state and all its political subdivisions, including counties and municipal corporations, are liable in tort to the same extent an individual would be subject to liability therefor. Okla. Stat. Ann. tit. 51, § 154 (West Supp. 1998). Such liability is limited to $100,000 to any claimant for personal injury, except the limit of liability is increased to $200,000 with respect to the Oklahoma Medical Center and state mental health hospitals operated by the Department of Mental Health. Id. Liability is capped at $1,000,000 for claims arising out of one accident or occurrence. Id. Also, the liability of resident physicians and interns participating in a graduate medical education program of the University of Oklahoma College of Medicine, its affiliated institutions, and the Oklahoma College of Osteopathic Medicine and Surgery, may not exceed $100,000. Id. Notably, a state and its political subdivisions are only severally liable for a claimant’s damages. Id.

No claim may be brought against the state or any of its political subdivisions after one year from the date of the injury. Okla. Stat. Ann. tit. 51, § 156(b) (West Supp. 1998). Further, if a claim is not brought within 90 days following the occurrence of the injury, the claimant’s damages must be reduced by ten percent. Id. The state, or a political subdivision, does not waive the act’s notice requirement by purchasing liability insurance. Gurley v. Memorial Hospital of Guymon, 770 P.2d 573 (Okla. 1989).

Arbitration

Oklahoma does not require arbitration of medical malpractice actions.

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Revision Date: February 6, 1998