Marlene CARMICHAEL, Personal Representative of the Estate of Monette Morgan, deceased, Appellant,
v.
Jack J. BELLER, M.D., and Norman Orthopaedic Clinic, Inc., Appellees.

Certiorari to the Court of Appeals, Division 3, Appeal from the District Court of Cleveland County, State of Oklahoma; Honorable William C. Hetherington, Jr., Trial Judge.

¶0 A doctor and clinic, were sued for the doctor's alleged malpractice in treating patient's right leg, ankle and/or foot. Initial injury to patient was apparently suffered in the stands at a high school football stadium. Summary judgment was granted in favor of doctor and clinic based on a written release signed by patient and given to the local board of education and school district in exchange for twenty-five thousand dollars ($25,000.00), even though neither doctor or clinic was a party to the release, they were not named or otherwise specifically identified in it, nor had either contributed to the twenty-five thousand dollars ($25,000.00). The Court of Appeals affirmed. HELD: Summary judgment was improper. To the extent doctor and clinic are liable with the original tortfeasor(s) for the same injury, i.e. they and the local school entities are liable for some common liability, 12 O.S. 1991 § 832 (H)(1) applies, and the release, failing to name or otherwise specifically identify doctor and clinic as tortfeasors to be discharged, is insufficient to release them from potential liability under the teaching of Moss v. City of Oklahoma City, 897 P.2d 280 (Okla. 1995). If, instead, the doctor and clinic are alone liable for some or all of the harm caused by the doctor's acts or omissions, a separate and independent cause of action would exist as to such harm, and to the extent such a separate cause of action does exist, under no theory would the release discharge doctor and clinic because no language in it could be construed to have such an intent.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; TRIAL COURT JUDGMENT REVERSED AND MATTER REMANDED.

[914 P.2d 1053] Howard K. Berry, Jr., Oklahoma City, and Bill Wilson, Pauls Valley, for Appellant.

Russell L. Hendrickson, Haven Tobias, Pierce Couch Hendrickson Baysinger & Green, Oklahoma City, for Appellees.

LAVENDER, Justice.

¶1 We hold that a malpractice suit against a doctor and clinic for harm alleged to have occurred during treatment of a patient's right leg is not barred by a general release given to original tortfeasor(s) allegedly responsible for initially injuring the leg. Under the teachings of Moss v. City of Oklahoma City, 897 P.2d 280 (Okla. 1995), to the extent the original tortfeasor(s), the doctor and clinic share a common liability for patient's injuries, 12 O.S. 1991 § 832 (H)(1), a part of the Uniform Contribution Among Tortfeasors Act (UCATA) applies, and because the involved release fails to name or otherwise specifically identify either doctor or clinic as a tortfeasor to be discharged, it is insufficient as a matter of law to discharge them from potential liability. Further, to the extent there is no common liability and the doctor and clinic are alone responsible for the harm (or some part thereof) caused by the negligent treatment, although the UCATA would not apply because of the lack of common liability, the same result would obtain. In such event, an independent and separate cause of action would exist against the doctor and clinic for the harm caused by the independent and intervening acts or omissions of the doctor and under no theory would the release at issue be considered a discharge of doctor or clinic. In view of our determinations, we reverse the decision of the trial court granting summary judgment to the doctor and clinic and vacate the memorandum opinion of the Court of Appeals affirming that decision.

¶2 Although a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the ultimate decision turns on purely legal determinations, i.e. whether one party is entitled to judgment as a matter of law because there are no material disputed factual questions. Therefore, as the decision involves purely legal determinations, the appellate standard of review of a trial court's grant of summary judgment is de novo. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir. 1991). We, like the trial 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, 683 P.2d 535, 536 (Okla. 1984). Further, 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.

¶4 Prior to amputation Morgan sued the Pauls Valley Board of Education and Pauls Valley School District I-18, alleged owners and operators of the stadium, to recover damages for her injuries in a case filed in the Garvin County District Court. After amputation she sued appellees in Cleveland County. In August 1989, Morgan dismissed without prejudice the Cleveland County case. In October 1989, she settled with the school entities in exchange for twenty-five thousand dollars ($25,000.00). She signed a release which specifically named both school entities. Neither appellee contributed any part of the twenty-five thousand dollars ($25,000.00), nor was either named or otherwise specifically identified in the release. However, immediately subsequent to the naming of the school entities (and their agents, servants and employees) as the discharged parties, the release did contain the following broad language purportedly also discharging:

¶5 After signing the release Morgan again filed suit against appellees in Cleveland County alleging Beller was negligent in his treatment of the leg. Appellees moved for summary judgment setting up the release as a discharge of all potential tortfeasors that might be liable for damages associated with or resulting from the accident at the football stadium. Appellees relied not only on the broad, seemingly all-inclusive language of the release, but on the doctrine the release or discharge of an original tortfeasor from liability will also discharge a physician who allegedly negligently aggravates the initial injuries. Appellees contended such was the law in Oklahoma both prior and subsequent to adoption of the UCATA, and also that the record, assuming Beller was negligent in his treatment, conclusively shows the school entities are liable for harm resulting from the treatment, i.e. a common liability exists among the school entities, Beller and the clinic. Included with the materials supporting the motion for summary judgment was an affidavit of Beller where he stated that all of his treatment of Morgan's leg was in an attempt to repair the initial fractures or, in the case of the amputation, to deal with the fractures which never healed and prevented Morgan from walking - the amputation allowing her to procure a prosthetic device so that she could bear weight on her right leg.

¶6 Morgan opposed summary judgment arguing in part that under § 832(H)(1) the release was not sufficient to discharge appellees. Affidavits were submitted from Morgan, one of her attorneys and the attorney for the school entities, all essentially stating there was no intention to release appellees, but only the school entities and their employees. It was also argued the release could not be considered to discharge appellees because two distinct injuries were involved and, therefore, two separate causes of action, one against the school entities and one against the appellees, and each were responsible independently. Morgan submitted an affidavit from another physician, Charles E. Workman, M.D. who opined, after examining Morgan and reviewing the medical records, that the numerous subsequent surgeries by Beller created "new, separate, additional and distinct injuries which caused the amputation and [Beller's acts or omissions] w[ere] not simply the treatment offered to deal with the [914 P.2d 1055] fractures in [Morgan's] right lower leg which had never healed." The trial court granted summary judgment in favor of appellees based on the release.

¶7 The Court of Appeals affirmed, concluding the UCATA did not apply because appellees and the school entities were not "joint" tortfeasors. Instead, they applied the pre-UCATA case of Farrar v. Wolfe, 357 P.2d 1005 (Okla. 1960), which held there cannot be recovery in a malpractice suit by one who has sustained personal injuries in consequence of a third person's negligence, against a physician for negligent aggravation of such injuries by improper treatment, after settlement with full release of the tortfeasor who caused the injuries. We previously granted certiorari.

¶9 Prior to adoption of the UCATA we held in Farrar v. Wolfe, supra, there could be no recovery in a malpractice suit by one who has sustained personal injuries in consequence of a third person's negligence, against a physician for aggravation of such injuries by improper treatment after a settlement with full release of the tortfeasor who caused the injuries. 357 P.2d at 1006, First Syllabus. Of course, the reasoning behind the rule was that the original tortfeasor was liable for additional bodily harm resulting from efforts of third persons to render aid to the injured party and, therefore, to allow recovery from both original tortfeasor and physician would permit double recovery. Birmingham v. Berryhill, 557 P.2d 910, 911 (Okla. 1976). The Farrar rule was consistent with and a special application of the general common law principle that the release of one tortfeasor liable to a plaintiff ordinarily releases other tortfeasors jointly liable [Summey v. Lacy, 588 P.2d at 893], which we held in Moss v. City of Oklahoma City, supra, the UCATA was intended to abrogate. 897 P.2d at 283-287.

¶10 In 1980 the Oklahoma Legislature amended the UCATA by adding subsection (H)(1) and (2) to § 832. As pertinent here subsection (H)(1) concerns when a release or [914 P.2d 1056] similar document will discharge from liability tortfeasors who are not parties to the release. Subsection 832(H)(1) and (2) provide in toto as follows:

¶11 The United States Court of Appeals for the Tenth Circuit recognized in In re Jones, 804 F.2d 1133, 1142-1143 (10th Cir. 1986), that § 832(H) did not require that parties act in concert to be applicable, but merely that multiple tortfeasors cause or contribute to the same injury sustained by the plaintiff The applicability of § 832(H), thus, turns on whether there is a common liability to the plaintiff among the tortfeasors [See Price v. Southwestern Bell Telephone Co., 812 P.2d 1355, 1358-1359 (Okla. 1991)], i.e. in the words of § 832(H), "two or more persons [are] liable in tort for the same injury or the same wrongful death". Thus, if the original tortfeasors here (i.e. the school entities) were liable to Morgan for some or all of the aggravated or additional injuries (assuming as true there were some) allegedly caused by the negligence of appellees in treating her leg, foot and/or ankle under the doctrine espoused in Atherton v. Devine, supra and Smith v. Missouri K. & T. Ry. Co., supra, that an original tortfeasor, negligently causing injury to a third person, is liable for the negligence of a physician who treats the injured person where negligent treatment results in aggravation of or increasing the injuries, to that extent the UCATA would apply because a common liability would exist among the tortfeasors - the school entities, Beller and clinic.

¶14 The recognition that Moss controls in a situation involving common liability among original tortfeasor(s) and treating physician(s) would normally end the matter and lead to a reversal of the trial court's grant of summary judgment in favor of appellees. However, although the summary judgment must be reversed, we believe it is incumbent upon us to discuss an alternate reason for reversal because under the record as currently constituted it may be that the original tortfeasor(s) are not liable for some or all of the harm allegedly caused by the acts or omissions of Beller in treating Morgan's leg. We must, therefore, determine the effect of the release in such a situation because § 832(H)(1) of the UCATA would not apply to the extent no common liability exists between the original tortfeasor(s) and appellees.

¶15 First off, we must note that appellees' position on appeal is that the instant record points to only one answer to the question of whether the school entities are liable for all of the harm resulting from Beller's treatment of Morgan, to wit: they are and, thus, a common liability exists between original tortfeasor(s), doctor and clinic. If this record was actually conclusive on this point our discussion in PART III would be dispositive - § 832(H)(1) and Moss would control, and the release deemed insufficient to discharge any tortfeasors other than the school entities. However, at least some further discussion is in order because we believe appellees are incorrect in their assertion that this record indisputably leads to the conclusion the school entities would be liable for all harm resulting from the treatment afforded to Morgan by Beller, an assertion contested below and on appeal by Morgan.

¶16 Our law that an original tortfeasor causing initial injury is liable for harm suffered at the hands of a physician providing treatment for the injury is consistent with the RESTATEMENT (SECOND) OF TORTS § 457 (1965). Atherton v. Devine, supra, 602 P.2d at 636 n. 1, in fact, quoted § 457 which provides:

¶17 As noted in PART III the rule as to a physician is merely a particular application of the rule that a tortfeasor whose negligence [914 P.2d 1058] causes injury is also liable for any subsequent injury or reinjury that is the proximate result of the original wrongdoing, except where the subsequent injury or reinjury is caused by either the negligence of the injured person, or the independent or intervening act of a third person. Atherton, supra, 602 P.2d at 636-637.

¶18 Comments d and e to § 457 and the examples thereto make clear that the original tortfeasor is liable only for the risks normally inherent in submitting to medical, surgical or hospital treatment, not harm caused by extraordinary misconduct of health care providers or harm outside the risks which are incidental to treatment made necessary by the original tortfeasors' wrongdoing. Thus, the original wrongdoer would not be liable for the subsequent mistreatment where a nurse, unable to bear the sight of the victim's intense suffering, gives an injection of morphine in disobedience of the surgeon's instructions and so excessive she knows it might be lethal. § 457, Comment d, Illustration 4. Nor would the original tortfeasor be liable should the victim take advantage of a hospital stay to have an unrelated procedure performed, e.g. victim's initial injury is a broken leg, but examination reveals an unrelated hernia for which surgery is negligently performed. § 457, Comment e, Illustration 6.

¶19 Atherton, supra, 602 P.2d at 637, in discussing proximate cause and reasonable foreseeability in the context of whether an original tortfeasor is liable for subsequent harm brought on by those coming to the aid of an injured person, recognized the issue will many times involve questions of fact for the jury's consideration. This is so because:

Id.

¶20 In the present case Morgan presented an affidavit from another physician who opined that "the numerous subsequent surgeries created new, separate, additional and distinct injuries which caused the amputation and [Beller's acts or omissions] w[ere] not simply the treatment offered to deal with the fractures in [Morgan's] right lower leg which had never healed." As seen by the above discussion, under our decision in Atherton, supra and § 457 of the RESTATEMENT (SECOND) OF TORTS, there may be situations where the original tortfeasor is not liable for the malpractice of the health care provider because the misconduct of the latter is so extraordinary that it could no longer be said that the original wrongdoing which caused an initial injury is the proximate cause of the harm resulting from the subsequent malpractice. Instead, the factual circumstances may support the view that the health care provider(s) acts or omissions are independent and intervening ones which have caused harm not reasonably foreseeable by the original tortfeasor.

¶21 In our opinion, viewing the record in the light most favorable to Morgan, leads to the conclusion that this record is simply not sufficient to tell where Beller's treatment of Morgan falls. Although Beller contends in his affidavit all treatment was in an effort to either repair the initial fractures or deal with them by amputation because they had not properly healed (thus allowing Morgan to obtain a prosthetic device so she could bear weight on her right leg), given the conflicting affidavit of another doctor (Charles E. Workman, M.D.), no decision can presently be made as to whether Beller's treatment was such that the general rule favoring original tortfeasor liability would apply. On this record, a factual question exists in such regard because the reasonable inference from the affidavit of Workman is that Beller's treatment may have in some way been extraordinary, something which may not have been within a normal effort to render aid to [914 P.2d 1059] Morgan for the injuries suffered at the football stadium, notwithstanding appellees' protests otherwise.

¶22 Thus, if eventually it turns out that Beller (and the clinic) are alone liable for some or all of Morgan's injuries resulting from Beller's treatment, although the UCATA and Moss would not apply because of the lack of common liability for the same injuries, the release in any event would not discharge appellees. In such event, an independent and separate cause of action would exist against the doctor and clinic for the harm caused by the independent and intervening acts or omissions of the doctor and under no theory would the release at issue be considered a discharge of doctor or clinic. Such injuries or harm could no longer be viewed as proximately caused by the wrongdoing of the school entities and no longer could be said to result from the accident occurring at the football stadium where Morgan originally injured her leg. In that appellees do not argue, and we do not believe, any language in the release could be construed to have as its intent the discharge of appellees in such a situation, the potential that common liability does not exist as to all harm caused by Beller's treatment, accordingly, provides another basis to reverse the trial court's grant of summary judgment in favor of appellees, even assuming § 832(H)(1) of the UCATA does not apply.

¶23 To the extent a doctor and clinic are liable with an original tortfeasor(s) for the same injuries, i.e. the health care providers and original tortfeasor(s) share some common liability for injuries suffered during medical treatment necessitated by original tortfeasor wrongdoing, § 832(H)(1) of the UCATA applies to the question of whether a release given to the original tortfeasor(s) will also discharge the doctor and clinic from potential liability. A release given to the original tortfeasor(s) which fails to name or otherwise specifically identify the health care providers as tortfeasors to be discharged, but instead names only the original tortfeasor(s) followed by broad boilerplate language seemingly releasing the entire world from any and all claims associated with the initial accident-producing injury, is insufficient to discharge the health care providers from potential liability under the teaching of Moss v. City of Oklahoma City, supra. Farrar v. Wolfe, supra, a decision holding otherwise, predated § 832(H) by approximately twenty (20) years and it has been overruled by that statutory provision. Thus, to the extent a common liability to Morgan exists among the school entities and appellees, § 832(H)(1) applies and the release is insufficient to discharge doctor and clinic.

¶24 Further, if no common liability exists among the original tortfeasor(s) and health care providers for some or all of the injuries or harm caused by the negligent treatment by virtue of some exception to the rule that an original tortfeasor is liable for all reasonably foreseeable injuries caused by negligent medical treatment, and the health care providers are alone liable for some or all of the injured person's injuries, although the UCATA would not apply to such extent because of the lack of common liability, the same result would obtain under the release at issue in this case. In such event, an independent and separate cause of action would exist against the health care providers for the harm caused by their independent and intervening acts or omissions and under no theory would the release at issue be considered a discharge of the health care providers. Under this latter scenario the release here would not discharge Beller and the clinic because the harm they would have caused could not then be said to result from the original accident at the football stadium which necessitated medical treatment.

¶25 Accordingly, the opinion of the Court of Appeals is VACATED and the judgment of the trial court granting summary judgment to appellees is REVERSED and this matter is REMANDED to the trial court for further proceedings.

¶26 KAUGER, V.C.J., and HODGES, SIMMS, HARGRAVE, OPALA and SUMMERS, JJ., concur.

¶27 ALMA WILSON, C.J., and WATT, J., disqualified.