OK: negligence & breach of contract alleged: courts applied 2 year limitations for negligence.(Hospital Law Case of the Month)(C

CASE FACTS: The case arises out of the care and treatment of James Richard, Jr., who was an elderly resident of Hill Nursing Home from January 2003 through May 12, 2004. On that day the patient was transferred to McCurtain Memorial Hospital, where he died on May 19, 2004. Christine Whittaker, the decedent's granddaughter, as personal representative of the decedent's estate and as Representative of all wrongful death beneficiaries brought suit against the nursing home. The nursing home filed a motion for summary judgment on the grounds that the two year statute of limitations, which applied in Oklahoma had run, and that Christine had brought suit after the right to sue had been extinguished by the running of the statute of limitations. The trial court granted the nursing home's motion for summary judgment. Christine appealed.

COURT'S OPINION: The Court of Civil Appeals of Oklahoma affirmed the judgment of the lower court. The court held, inter alia, that suit had been brought alleging that the nursing home had "engaged in a pattern and practice of ongoing neglect" and that the nursing home's "continuing course of repeated negligence" including its "failure to take the precautions necessary to ensure the [decedent's] health and safety, and failure to provide proper and timely services" resulted in mental and physical injury, pain and suffering, medical expenses, and ultimately his death. Additionally, the suit alleged claims for breach of contract and negligence per se on the basis that the nursing home violated the Oklahoma Nursing Home Care Act. The suit asserted a claim for punitive damages against the nursing home for wrongful conduct characterized as wilful, wanton and gross disregard of the decedent's rights and gross negligence and/or reckless disregard for the decedent's well-being. The court noted that a five-year statute of limitations is generally applicable to breach of contract actions, whereas a two-year statute of limitations applies suits for negligence. The court observed that where there are two statutes of limitations which apply to the same subject matter, one specific and one general, the specific statute controls. The court observed that Christine failed to raise the argument that the five year statute should apply when she argued her motion for reconsideration, after the trial court had granted the nursing home's motion for summary judgment. Based on the court's de novo review of the record, the court found that the trial court's order granting the nursing home's motion for summary judgment should have been affirmed. What if, ab initio, Christine had sued the nursing home for breach of contract? Would the five year period of limitations have applied? What if Christine relied totally on the breach of contract claim? Whittaker v.Hill Nursing Home, Inc., OK-0612.453 (4/23/2009)-OK

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island finn of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who Who in American Law, Who's Who in America and Who's Who in the World.

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