Opinion
Case No. 114,713
04-25-2019
Verda Jean Keys SANDERS, Plaintiff/Appellant, v. Michael COLE, D.O., an individual; Jack Mocnik, Jr., M.D., an individual; John Fitter, M.D., an individual; St. John Medical Center, Inc., a company doing business in the State of Oklahoma, Defendants/Appellees, and Justin Thankachan, M.D., an individual; Thomas Nunn, D.O., an individual; South Tulsa Ear, Nose and Throat, PC, a company doing business in the State of Oklahoma; Max Swenson, PA-C, an individual; Timothy McCay, D.O., an individual; Hillcrest Healthcare Systems, Inc., formerly known as Southcrest Hospital, companies doing business in the State of Oklahoma; Gaurangi Anklesaria, M.D., an individual; and Crest Care Family Medicine, PLLC, a company doing business in the State of Oklahoma, Defendants.
Iris A. Philbeck, Sapulpa, Oklahoma, for Plaintiff/Appellant Charles H. Moody, Leslie C. Weeks, RODOLF & TODD, Tulsa, Oklahoma. for Defendant/Appellee St. John Medical Center Thomas A. LeBlanc, Matthew B. Free, Dan W. Ernst, BEST & SHARP, Tulsa, Oklahoma, for Defendants/Appellees Michael Cole, D.O., Jack Mocnik, Jr., M.D., & John Fitter, M.D.
Iris A. Philbeck, Sapulpa, Oklahoma, for Plaintiff/Appellant
Charles H. Moody, Leslie C. Weeks, RODOLF & TODD, Tulsa, Oklahoma. for Defendant/Appellee St. John Medical Center
Thomas A. LeBlanc, Matthew B. Free, Dan W. Ernst, BEST & SHARP, Tulsa, Oklahoma, for Defendants/Appellees Michael Cole, D.O., Jack Mocnik, Jr., M.D., & John Fitter, M.D.
SUBSTITUTE OPINION AFTER REHEARING THE COURT'S PRIOR OPINION HAVING BEEN WITHDRAWN
OPINION ON REHEARING BY JOHN F. FISCHER, PRESIDING JUDGE:
¶1 Verda Jean Keys Sanders appeals a judgment in this medical negligence case in favor of doctors Michael Cole, Jack Mocnik, Jr., John Fitter (the defendant radiologists) and St. John Medical Center, Inc. Because the district court erred in excluding expert testimony offered by Sanders and erred in granting a motion for directed verdict in favor of St. John, we vacate the judgment entered in favor of the defendants and remand this case for further proceedings.
Our original Opinion in this case was issued on March 9, 2018. The defendant radiologists and St. John filed motions for rehearing, which we granted. Oral argument was held on November 15, 2018. In response to arguments made by the defendants during the oral argument, we ordered that the record be supplemented. We withdraw our original Opinion and issue this Opinion to incorporate our resolution of the issues raised during the oral argument.
BACKGROUND
¶2 Sanders filed this suit alleging that various physicians misdiagnosed and failed to properly treat the cholesterol granuloma near the base of her skull. As a result, Sanders claimed that she suffered severe and permanent injuries, including loss of hearing, loss of sight and facial paralysis that would not have occurred but for the physicians' negligence. She sued St. John, alleging it was responsible for the actions of the physicians who failed to correctly diagnose and properly treat her condition. The relevant facts are not disputed. The legal consequences of those facts and the district court's rulings in regard thereto are dispositive of this appeal.
A cholesterol granuloma is a benign cyst containing an expanding mass. For simplicity, we will, as the parties and the witnesses often did, refer to Sanders' cholesterol granuloma as a tumor. The tumor was located near the petrous bone at the base of Sanders' skull near her inner ear and was compressing the seventh and eighth nerves in that area which control facial muscles, hearing and balance.
¶3 On December 26, 2009, Sanders called an ambulance and told the driver she wanted to be taken to the St. John emergency room. She complained of dizziness, weakness, a headache, severe pain in her left ear, blurred vision and slurred speech. Sanders was evaluated by an emergency room physician, who ordered a CT scan of her head and a CT angiogram of her head and neck. A neurologist at St. John also ordered an MRI of her brain. Although it appears that physicians at St. John initially reviewed these studies, eventually they were referred to the defendant radiologists for interpretation. As a result, Dr. Fitter interpreted the CT scan, Dr. Mocnik interpreted the CT angiogram, and Dr. Cole interpreted the MRI. At some point, Sanders was admitted to St. John under the care of Dr. Thankachan, a hospitalist employed at St. John. Sanders was diagnosed as having Bell's palsy. Dr. Thankachan prescribed antibiotics for a sinus infection. He discharged Sanders on December 29, 2009.
¶4 Sanders returned to St. John on January 20, 2010, complaining of the same symptoms. Again, an emergency room physician employed by St. John ordered a CT scan of Sanders' head. Dr. Fitter interpreted the January 20 study. Sanders was not admitted. She was again diagnosed with Bell's palsy and advised that the symptoms would subside over time.
¶5 Sanders returned to St. John on February 18, 2010, complaining of the same symptoms. She was again seen in the emergency room, where another CT scan of her head was ordered. Dr. Cole interpreted the February 18 study. Sanders was prescribed steroids for Bell's palsy and sent home.
¶6 Sanders returned a fourth time to St. John on March 6, 2010. In addition to her previous symptoms, Sanders complained of partial facial paralysis, speech impairment and loss of hearing. She was again prescribed steroids for Bell's palsy and sent home.
¶7 Thereafter, Sanders was seen at other facilities by several other physicians who are no longer involved in this case. On December 21, 2010, Sanders saw Dr. Connor, a neurologist. He reviewed the radiologic studies performed at St. John and diagnosed Sanders as having a tumor at the base of her skull near her ear canal. Dr. Connor referred Sanders to a surgeon for further treatment. That treatment was unsuccessful and Sanders was left with permanent facial paralysis and hearing loss.
¶8 Sanders' case was tried to a jury. After the close of evidence, the district court granted St. John's motion for a directed verdict. The jury then returned a unanimous verdict in favor of the defendant radiologists, which the district court accepted and on which it entered the judgment that is the subject of this appeal. Sanders filed a motion for new trial, which the district court denied. This appeal followed.
STANDARD OF REVIEW
¶9 Sanders could have appealed both the judgment and the denial of her motion for new trial. "[I]f the decision on the motion [for new trial] was against the moving party, the moving party may appeal from the judgment ... from the ruling on the motion, or from both." 12 O.S.2011 § 990.2(A). However, she did not appeal the ruling on her motion for new trial. Her appeal is confined to four errors of law she contends the district court made during the trial that warrant reversal of the judgment. Issues of law are reviewed by an appellate court pursuant to the de novo standard. Christian v. Gray , 2003 OK 10, ¶ 41, 65 P.3d 591. De novo review is plenary, independent and non-deferential. Neil Acquisition L.L.C. v. Wingrod Inv. Corp ., 1996 OK 125, n.1, 932 P.2d 1100.
ANALYSIS
¶10 Of the four assignments of error raised by Sanders, we find that two are dispositive: (1) the district court erred in refusing to permit Sanders' treating physician to testify as an expert witness; and (2) the district court erred in granting St. John's motion for directed verdict.
I. The Expert Witness Issue
¶11 Dr. Connor was the first physician to discover Sanders' tumor. He was offered as a fact witness to testify as one of Sanders' treating physicians. However, he was also listed as an expert witness. As evident from his pretrial deposition, Dr. Connor intended to testify that Sanders' tumor was apparent from the radiologic studies performed at St. John, including the first studies performed on December 26, 2009. It was Dr. Connor's opinion that the failure to correctly diagnose Sanders' condition when she was being treated at St. John caused her subsequent and permanent injuries.
¶12 The defendants filed a motion in limine arguing that (1) Dr. Connor was not a radiologist and, therefore, could not render an expert opinion regarding the standard of care applicable to radiologists; and (2) as a fact witness, Dr. Connor could not testify as an expert regarding causation. The defendants supported their motion in limine with the affidavit of their own expert witness, a board certified radiologist. She stated that the defendant radiologists had not breached the standard of care for radiologists when they failed to detect the tumor in Sanders' head. The district court granted the motion in limine.
¶13 At trial, Dr. Connor was asked if, in his opinion, "missing this diagnosis of her tumor in her head caused her damages." The defendants renewed their objection based on the ruling on their motion in limine. The district court conducted a lengthy discussion out of the presence of the jury. At the conclusion of the discussion and argument, the court ruled that Dr. Connor was testifying as a fact witness and as Sanders' treating physician; therefore, he could not testify as an expert witness. The district court also ruled that, because Dr. Connor was not a radiologist, he could not give an opinion regarding the standard of care for radiologists. The court limited the scope of Dr. Connor's testimony as follows:
Dr. Connor is here to testify about from the time he saw Ms. Sanders, what he saw, what he diagnosed, what his treatment of her is. He can talk about what he saw when he looked at the images, but he can't testify as to a standard of care because he's not a radiologist.
That was error.
¶14 "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." 12 O.S.2011 § 2703 (emphasis added). The test for competency of a fact witness is whether the witness has "personal knowledge" of the matter. 12 O.S.2011 § 2602. As the district court recognized, a treating physician has personal knowledge of certain facts regarding a patient's condition. But that does not preclude a treating physician from also rendering an opinion as an expert regarding those facts. The defendants have not cited any authority to support the proposition that a fact witness cannot also testify as an expert witness under appropriate circumstances, and we find none. Even a lay witness is permitted to give opinion testimony in certain circumstances. 12 O.S.2011 § 2701. The defendants did not challenge Dr. Connor's qualifications as a neurologist. Therefore, it was error to exclude his expert opinion based on the facts he perceived as Sanders' treating physician. "In Oklahoma a physician treating a patient may use a medical history provided by the patient when making an opinion on causation of the patient's injury." Christian v. Gray , 2003 OK 10, ¶ 29, 65 P.3d 591.
¶15 Further, the defendants' argument that Dr. Connor cannot testify as an expert because he is a neurologist and the defendants are radiologists was specifically rejected in Smith v. Hines , 2011 OK 51, 261 P.3d 1129. In that case, the doctor defendant argued that because the plaintiff's expert was a neurologist, not an orthopedic surgeon, he was not qualified as an expert to evaluate any damage that occurred during orthopedic surgery. The Court found the defendant's argument "unconvincing." Id. n.12. That finding was confirmed in the second Smith case. Smith v. Hines , 2013 OK 65, ¶ 1, 362 P.3d 646 ("We found that argument unconvincing in [ Smith I ] and we do so here as well.").
¶16 The defendants argue that Smith is distinguishable because it involved a summary judgment ruling, and they raise an evidentiary objection to Dr. Connor's testimony. They contend that Smith stands only for the proposition that a neurologist's opinion regarding the causation of nerve damage after knee surgery is sufficient to establish a question of fact precluding summary judgment, not that such opinion would be admissible at trial regarding the standard of care. The purported distinction is unclear. "A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated." 12 O.S.2011 § 2056(E). If the Supreme Court found the neurologist's opinion in Smith sufficient for summary judgment purposes, it "would be admissible in evidence." Id . The defendants' attempt to distinguish Smith is unpersuasive.
¶17 Consequently, the fact that Dr. Connor is not certified in the same specialty as the defendant radiologists does not preclude him from being qualified as an expert witness in this case.
In Oklahoma the testimony of an expert is controlled by the applicable statutes found in the Oklahoma Evidence Code, 12 O.S.[2011] § 2702 (Testimony by Experts); § 2703 (Bases of Opinion Testimony by Expert); § 2704 (Opinion on Ultimate Issue); and § 2705 (Disclosure of Facts or Data Underlying Expert Opinion).
Christian v. Gray , 2003 OK 10, ¶ 5, 65 P.3d 591 (footnotes omitted). Section 2702 establishes a two-pronged test for determining the admissibility of expert witness testimony: "whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert v. Merrell Dow Pharm., Inc ., 509 U.S. 579, 592, 113 S. Ct. 2786, 2796, 125 L.Ed.2d 469 (1993) (adopted by the Oklahoma Supreme Court in Christian v. Gray , 2003 OK 10, ¶¶ 9, 14, 65 P.3d 591 ).
¶18 The defendants did not file a " Daubert motion" to challenge Dr. Connor's qualifications as a neurologist. Consequently, we are only concerned with the second, "assist the trier of fact" prong of the Daubert test: "This requirement ‘goes primarily to relevance.’ " Christian v. Gray , 2003 OK 10, ¶ 9, 65 P.3d 591 (quoting Daubert , 509 U.S. at 591, 113 S.Ct. 2786 ). The defendants' argument is a simple one; only physicians trained as radiologists can testify regarding whether a radiologist made a mistake by not finding Sanders' tumor. We agree with the concurring Opinion in Gaines v. Comanche County Medical Hospital , 2006 OK 39, 143 P.3d 203. "No profession will be permitted to monopolize the expertise in any field of scientific knowledge if another is shown to possess like or equal insight into the matter that lies under judicial inquiry. " Id . ¶ 12 (Opala, J., with whom Watt, C.J., and Colbert, J., join concurring) (emphasis in original) (footnote omitted).
¶19 Fundamentally, the defendants' argument misconstrues the purpose of the standard of care.
A medical malpractice claim, like all negligence claims, contains three elements: (1) a duty owed by the defendant to protect the plaintiff from injury, (2) a failure to properly exercise or perform that duty, and (3) plaintiff's injuries proximately caused by the defendant's failure to exercise the required duty of care.
Nelson v. Enid Med. Assocs., Inc. , 2016 OK 69, ¶ 8, 376 P.3d 212 (footnote omitted). The standard of care is directed at the second element. See also Okla. Uniform Jury Instructions - Civil No. 14.2: "In [ (diagnosing the condition of)/treating/(operating upon) ] a patient, a specialist must use [his/her] best judgment and apply with ordinary care and diligence the knowledge and skill that is possessed and used by other specialists in good standing engaged in the same special field of practice at that time."
¶20 The defendants contort the standard of care element into an argument that only a radiologist can determine if another radiologist made a mistake. Clearly there are areas of specific knowledge primarily within the expertise of radiologists, but they are not involved here. The ability to identify Sanders' tumor was, according to Dr. Connor, within the basic knowledge acquired by all medical students. The defendant radiologists may disagree, but this record does not establish that only a radiologist would be qualified by "knowledge and skill" to testify whether the radiologic studies done at St. John showed that Sanders had a tumor. Id.
¶21 The standard of care describes the quality of care the defendant radiologists were required to provide to Sanders. It does not limit the evidence admissible to prove that the defendant radiologists did or did not discharge their duty to provide that care, except in the most general sense. And, as the Smith cases make clear, "the same special field of practice" does not necessarily mean the same discrete and previously recognized medical specialty. It includes those whose training and experience qualify them to render an opinion regarding the "ordinary care and diligence" required to treat a patient in any particular situation.
¶22 For that reason, the defendants' argument ignores the evidentiary analysis required by the second prong of the Daubert test. That analysis "is a flexible one, and focuses on the evidentiary relevance and reliability underlying the proposed submission, and not on the conclusions they generate." Christian v. Gray , 2003 OK 10, ¶ 8, 65 P.3d 591 (citation omitted). " ‘[W]itnesses may be competent to testify as experts even though they may not, in the court's eyes, be the "best" qualified. Who is "best" qualified is a matter of weight upon which reasonable jurors may disagree.’ " Nelson v. Enid Med. Assocs., Inc. , 2016 OK 69, ¶ 36, 376 P.3d 212 (quoting Feliciano-Hill v. Principi , 439 F.3d 18, 25 (1st Cir. 2006) ). See also Gaines v. Comanche Cnty. Med. Hosp. , 2006 OK 39, n.11, 143 P.3d 203 (Opala, J., with whom Watt, C.J., and Colbert, J., join concurring) (noting that the value of expert witnesses' testimony is for the trier of fact to determine). The defendants may argue that a radiologist is "best" qualified to determine whether Sanders' tumor should have been discovered by the defendant radiologists who first reviewed the radiologic studies done at St. John. That does not mean, however, that any other doctor would be unqualified to provide relevant evidence on that issue. And that is the real issue raised by the defendants' motion in limine.
¶23 In his deposition, Dr. Connor testified that "all doctors look at x-rays ... not all knowledge is confined to a radiologist." He testified that all medical students take radiology as one of the "basics that one learns." Dr. Connor testified that in addition to this basic training, he was a board certified neurologist with years of experience interpreting radiologic studies like those performed on Sanders at St. John. Dr. Connor testified that he discovered an abnormality on the December 26, 2009 studies within fifteen minutes, during the first time he looked at them. He testified that he did not think it required a radiologist to see Sanders' tumor, that it was a large tumor, and: "It takes two seconds to see the thing, you know." Dr. Connor testified in his deposition that as a result of the delay in appropriate treatment, Sanders suffered hearing loss and permanent paralysis of her face. Finally, although Dr. Connor refused to testify that any of the radiologists breached the standard of care applicable to radiologists, he did testify that they made a "gross error," a "pretty blatant mistake" that "had huge consequences."
At trial, the defendants argued that this was a "new opinion" that should not be permitted because it was not previously disclosed. It was not new and was clearly disclosed from Dr. Connor's responses during his deposition. Any details regarding that opinion that had not been previously discussed resulted from the defendants' failure to ask the appropriate questions because they focused, instead, on the fact that Dr. Connor was not a radiologist.
¶24 Ultimately, the defendants' argument that Dr. Connor is not qualified to testify as an expert relies on the fact that Dr. Connor would not testify whether the defendant radiologists breached the standard of care for a radiologist. That is not the evidentiary issue relevant to Daubert 's second prong. Whether the defendant radiologists breached the applicable standard of care is for the jury to determine. Nelson , 2016 OK 69, ¶ 9, 376 P.3d 212. The Daubert issue is whether Dr. Connor's testimony will "assist" the jury in deciding that issue. "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion ...." 12 O.S. Supp. 2013 § 2702. The Supreme Court held in Smith v. Hines , 2011 OK 51, 261 P.3d 1129, that a neurologist was qualified to render an opinion regarding the causation of injuries suffered after an orthopedic surgery. Id . ¶ 20. In Nelson v. Enid Medical Associates, Inc. , 2016 OK 69, 376 P.3d 212, the Court held that a hospitalist is qualified to render an opinion regarding whether a surgeon's four-hour delay in reviewing a CT scan and starting a patient on antibiotics contributed to the patient's death. Id . ¶¶ 54, 61. We find no difference between a neurologist's or hospitalist's opinion testimony regarding a surgeon's negligence and a neurologist's testimony regarding any negligence by these radiologists. The district court erred as a matter of law when it excluded the expert opinion testimony of Dr. Connor. Id. ¶ 11 (citing Christian v. Gray , 2003 OK 10, ¶ 43, 65 P.3d 591 ).
Many of the questions that elicited this testimony were premised on defense counsel's suggestion that the standard of care applicable to radiologists allowed them to have an acceptable rate of "misses." Dr. Connor testified that he was not aware of any such allowance, but if it was acceptable, "I think that's farce." If there is such a requirement, it can be presented to the jury on remand as a factor relevant to determining whether the defendant radiologists were negligent.
¶25 In their petition for rehearing, the defendant radiologists argued that this Court could not reverse a jury verdict without reviewing Dr. Connor's trial testimony. During the oral argument, they argued that the exclusion of Dr. Connor's expert testimony was harmless because Dr. Connor testified about causation despite the district court's ruling. We now have the trial testimony of Dr. Connor and do not find any testimony by him to the effect that, in his opinion, the failure of the radiologists to correctly diagnose Sanders' tumor caused her permanent injuries. In fact, counsel for the defendant radiologists renewed his motion in limine objection on several occasions after the district court's initial ruling to prevent Dr. Connor from testifying regarding the role of the radiologists in causing Sanders' injuries. The district court's error of law in excluding Dr. Connor's expert testimony was not cured by Dr. Connor's trial testimony. II. The Directed Verdict Issue
The defendant radiologists also argue that this Court used the wrong standard of review. Rather than the de novo standard used by this Court regarding the district court's legal ruling that Dr. Connor could not testify as an expert, the defendant radiologists contend we should have used the clear abuse of discretion standard, citing this Court's Opinion in C-P Integrated Services, Inc. v. Muskogee City-County Port Authority , 2009 OK CIV APP 57, 215 P.3d 835. The defendant radiologists suggest that the issue was one of trial management "in the context of days of testimony from numerous witnesses, including Dr. Connor." First, C-P Integrated involved a ruling limiting the scope of an expert's testimony. Here the district court ruled Dr. Connor could not provide any testimony as an expert. Second, the defendant radiologists' argument misrepresents the scope of the abuse of discretion standard. The "clear abuse of discretion standard includes appellate review of both fact and law issues." Christian v. Gray , 2003 OK 10, ¶ 43, 65 P.3d 591. The defendant radiologists' argument focuses only on the factual aspect of the standard and fails to appreciate that the district court's error was a legal one requiring de novo review. "A de novo standard applies when the error is one of law." Id . (citation omitted) (stating the standard of appellate review required when reviewing a district court's ruling on expert witness testimony).
¶26 In the pretrial order, Sanders listed the following grounds for recovery that she generally asserted against all of the defendants, "medical negligence/negligence" and "respondeat superior." At the close of the evidence, St. John moved for a directed verdict, arguing that Sanders had failed to prove her respondeat superior theory of liability against the hospital. St. John's motion did not address its own potential negligence. Counsel for St. John argued that no evidence had been introduced to show that St. John employed the defendant radiologists or controlled the manner in which they practiced. Counsel quoted from Sanders' trial testimony to establish that no one told Sanders when she arrived at the emergency room on December 26, 2009, that the radiologists were not employed by St. John; no one asked her which radiologist she wanted to use; no one discussed the defendant radiologists' employment status with her; and, had she known that the radiologists were not St. John employees, she would not have insisted on going to another hospital. Based on this evidence, St. John argued that Sanders had failed to prove that the hospital was vicariously liable for any negligence resulting in her injury because (1) there was no evidence of an employment or agency relationship between St. John and the defendant radiologists; (2) no one at St. John made any representation to her about the radiologists; and (3) Sanders did not change her position to her detriment because the employment status of the radiologists did not matter to her.
¶27 The district court took a different approach, finding that Dr. Thankachan was the only physician who provided treatment to Sanders at the hospital, "at least initially." The court found that, although Dr. Thankachan "relied on diagnostic images or reports from the radiologists," he, not the radiologists, was Sanders' "treating physician." The district court relied on Weldon v. Seminole Municipal Hospital , 1985 OK 94, 709 P.2d 1058, in which the Supreme Court refused to hold a hospital liable for the negligence of the plaintiff's physician who merely used the hospital as the "situs" for his treatment. Id . ¶ 8. The district court reasoned that ostensible agency would only extend liability to St. John for a physician who provided treatment at the hospital, and Dr. Thankachan had been dismissed from the case. The court commented that Sanders probably would not have changed her position had she known the defendant radiologists were not employed by St. John, "but that's a question of fact I can't answer ...." Nonetheless, because, according to the district court, Sanders had failed to prove that anyone other than Dr. Thankachan provided treatment to her at St. John, it granted St. John's motion for a directed verdict. This was error.
¶28 Oklahoma recognizes three circumstances in which a hospital may be held liable for negligent medical care provided at its facility: (1) violation of the hospital's duty to exercise ordinary care regarding its patients, (2) negligent care provided by one with apparent authority to provide patient care at the hospital, and (3) where the hospital is estopped to deny that the provider of negligent care is its agent. The first can result from the negligence of hospital employees, such as employed physicians and nurses, or those who are agents controlled by the hospital. Johnson v. Hillcrest Health Ctr., Inc. , 2003 OK 16, 70 P.3d 811 (doctor employee); Smith v. St. Francis Hosp ., 1983 OK CIV APP 58, 676 P.2d 279 (controlled agent doctor); Skidmore v. Oklahoma Hosp. , 1929 OK 117, 137 Okla. 133, 278 P. 334 (nurses). However, a hospital may also be held directly liable for the negligence of an independent contractor if hospital personnel are negligent in granting or continuing staff privileges to an independent contractor that the hospital knows or should know is incompetent. Strubhart v. Perry Mem'l Hosp. Trust Auth. , 1995 OK 10, ¶ 42, 903 P.2d 263 ; Okla. Uniform Jury Instructions - Civil No. 14.15. In addition to a hospital's direct liability, two theories of vicarious liability have also been recognized, liability based on the doctrine of apparent authority, and liability based on estoppel. Smith , 1983 OK CIV APP 58, ¶ 13, 676 P.2d 279 (cited with approval in Weldon v. Seminole Mun. Hosp. , 1985 OK 94, 709 P.2d 1058 ). St. John failed to establish that it was entitled to a directed verdict regarding any of these theories of liability.
A hospital must exercise ordinary care and attention for its patients. Ordinary care means that care and attention required under all the circumstances that is appropriate to the physical and mental condition of each patient. A hospital has a duty to [ (supervise care rendered to a patient by hospital employees)/(use reasonable care when providing the patient with a nurse/physician/(other health care provider))/(ensure that staff privileges are granted only to competent physicians)/(protect patients from staff physicians that it knows or reasonably should know are incompetent) ].
A. St. John's Potential Negligence
¶29 St. John argues that it is not liable because Dr. Thankachan was Sanders' only treating physician and he was dismissed from the case. In its summary judgment briefing, St. John cited Sisk v. J.B. Hunt Transport, Inc. , 2003 OK 69, 81 P.3d 55, for the proposition that dismissal with prejudice of an employee releases the employer from any liability based on the respondeat superior doctrine. Sisk is not cited in St. John's appellate briefing, but we assume it is making the same argument here. This argument not only misses the point, but also it is not supported by the evidence.
¶30 First, it does not appear from this record that Dr. Thankachan was Sanders' only "treating physician." When Sanders returned to St. John on January 20 and February 18, 2010, the emergency room physicians on duty ordered additional radiologic studies and referred those studies to one or more of the defendant radiologists for interpretation. Based on those interpretations, it does not appear that Sanders was referred to Dr. Thankachan. Regardless, she was not admitted to the hospital. And, she continued to be diagnosed with Bell's palsy rather than a brain tumor. Consequently, the fact that Dr. Thankachan was dismissed from this case does not resolve St. John's potential respondeat superior liability for the acts of its personnel responsible for Sanders' treatment subsequent to December 26, 2009.
¶31 Second, St. John's argument misses the point. To determine St. John's liability for any breach of its duty to Sanders, the jury must decide whether the defendant radiologists were negligent, and, if so, whether St. John employees knew or should have known that the radiologists were incompetent when they granted staff privileges to the defendant radiologists and referred Sanders' radiologic studies to them for interpretation. Strubhart v. Perry Mem'l Hosp. Trust Auth. , 1995 OK 10, ¶ 42, 903 P.2d 263. Even after the dismissal of Dr. Thankachan, the same question must be answered as to any such knowledge possessed by the St. John emergency room physicians who referred the January 20 and February 18 radiologic studies to the defendant radiologists for interpretation. In addition, as Sanders correctly argues, any evidence of prior lawsuits against the defendant radiologists based on their professional competence, although apparently excluded by the district court, is relevant to this issue.
In its appellate briefing, St. John argues that Sanders did not raise a negligent credentialing claim. However, no citation to the record is provided to support this contention. And, in her appellate briefing, Sanders relies on Strubhart v. Perry Memorial Hospital Trust Authority , 1995 OK 10, 903 P.2d 263, for that proposition. Further, during the oral argument counsel for Sanders stated that she had tried to make a credentialing claim but that the district court would not allow it. More importantly, "negligent credentialing" is not a separate tort, it is one way in which a defendant can be found negligent and negligence is a claim clearly asserted by Sanders in the pretrial order. This Opinion does not preclude either party from raising that issue on remand for disposition by the district court.
¶32 Third, it is undisputed that, on December 26, 2009, the only decision Sanders made regarding her medical treatment was to tell the ambulance driver that she wanted to go to St. John. The emergency room physician on duty at St. John who ordered the CT scans, and the St. John neurologist who ordered the MRI, selected the defendant radiologists to interpret those studies. Further, it does not appear that the decision to admit Sanders was made until after the defendant radiologists' interpretations had been provided to Dr. Thankachan. Therefore, it is reasonable to infer, as the district court did, that Dr. Thankachan relied on the defendant radiologists' reports when he was deciding that Sanders needed to be admitted to the hospital, diagnosing her condition and determining what treatment she should receive. The defendant radiologists' interpretation of Sanders' radiologic studies provided not only the basis for the initial Bell's palsy diagnosis, but also the basis for that misdiagnosis by all of Sanders' "treating physicians" at St. John.
These facts are either admitted by the defendants, disclosed in the supplemented record or apparent from the deposition of Dr. Connor, whose trial testimony was limited by a ruling we have reversed.
¶33 Finally, Weldon v. Seminole Municipal Hospital , 1985 OK 94, 709 P.2d 1058, does not, as St. John argues, limit a hospital's potential liability for malpractice only to that committed by a "treating physician." See , e.g. , Johnson v. Hillcrest Health Ctr., Inc. , 2003 OK 16, 70 P.3d 811 (hospital potentially liable for failure of hospital clerk to put lab results in patient's medical chart that were critical to diagnosis and treatment). We also find Roth v. Mercy Health Center, Inc. , 2011 OK 2, 246 P.3d 1079, instructive in determining who is considered a treating physician for purposes of deciding a hospital's liability. In Roth , the Supreme Court reversed summary judgment in favor of a hospital where the orders and medical opinions of two private practice cardiologists consulted by the hospital's physician "were used in treating" a patient and allegedly contributed to the patient's death. Id. ¶ 10. Therefore, it does not matter whether the defendant radiologists met with, spoke to or had any direct contact with Sanders during her treatment. Their interpretation of the radiologic studies provided the basis for the misdiagnosis and inappropriate treatment provided to Sanders at St. John regardless of whether they were her "treating physicians."
From the oral argument and the additional materials added to the record it appears that St. John physicians and/or personnel instructed the defendant radiologists to confirm or rule out that Sanders' symptoms were caused by a stroke, which caused the radiologists to focus on a different area of the radiologic studies from where the tumor was located. This Opinion does not preclude or limit the scope of any defense or claim by any party on remand.
¶34 The directed verdict cannot be sustained as to St. John's potential negligence based on the erroneous conclusion that Dr. Thankachan was Sanders' only "treating physician." St. John is liable if the defendant radiologists were incompetent and St. John employees knew or should have known that fact but took no action to prevent them from treating Sanders.
B. St. John's Vicarious Liability
¶35 St. John also argues that Sanders failed to prove her respondeat superior theory of liability because the defendant radiologists were not employees of St. John or agents who were subject to the control of St. John regarding the manner in which they provided medical care. "[R]espondeat superior holds the master liable for injury proximately resulting from the negligent act of a servant done while in the course and scope of the servant's employment with the master." Fox v. Mize , 2018 OK 75, ¶ 8, 428 P.3d 314 (citation omitted). The fact that the defendant radiologists were not St. John employees appears to be undisputed.
The exact relationship between the defendant radiologists and the hospital cannot be determined from the appellate record. However, it was clear from the oral argument that the defendant radiologists were not "strangers," but radiologists who had been granted staff privileges by St. John and St. John physicians were authorized to refer radiologic studies of St. John patients to the defendant radiologists for interpretation. In ruling on a motion for directed verdict, the court considers as true all inferences favorable to the non-movant. Gillham v. Lake Country Raceway , 2001 OK 41, ¶ 7, 24 P.3d 858.
¶36 However, this case was tried and St. John's motion for directed verdict argued on the basis of apparent authority and agency by estoppel. "When issues not raised by the ... pretrial conference order ... are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the ... pretrial conference order." 12 O.S.2011 § 2015(B). One fundamental purpose of the apparent authority doctrine is to hold a defendant liable for the acts of those who are not its employees or controlled agents. "The existence of actual authority between principal and agent is not a pre-requisite to establishing apparent authority." Stephens v. Yamaha Motor Co., Ltd ., 1981 OK 42, ¶ 8, 627 P.2d 439. Therefore, the fact that the defendant radiologists were not St. John employees does not resolve all of the issues raised by St. John's motion for a directed verdict.
1. Apparent Authority
¶37 Generally, "the theory of respondeat superior is not extended to a hospital if the doctor is considered a private contractor operating on his/her own behalf ...." Anderson v. Eichner , 1994 OK 136, n.24, 890 P.2d 1329 (citing Weldon v. Seminole Mun. Hosp. , 1985 OK 94, ¶ 4, 709 P.2d 1058 ). "But, under the theory of ostensible agency a hospital can be vicariously liable for the negligence of a physician, notwithstanding the physician's independent contractor status ...." Anderson , 1994 OK 136, n.24, 890 P.2d 1329. According to the Restatement, "[o]stensible agency is merely a synonym for apparent authority and is so used by many courts." Restatement (Second) of Agency § 8 cmt. e (1958).
Apparent authority results from a manifestation by the principal to a third person that another is his agent. The manifestation may be made directly to a third person or to the community by signs or by advertising. Restatement 2d, Agency, § 8, 27, 49. But, "apparent authority exists only to the extent that it is reasonable for the third person dealing with the agent to believe that the agent is authorized."
Stephens v. Yamaha Motor Co., Ltd ., 1981 OK 42, ¶ 8, 627 P.2d 439 (quoting Restatement (Second) of Agency § 8 cmt. e). In order to establish liability based on apparent authority, therefore, a plaintiff must prove: (1) a manifestation by the defendant that the tortfeasor is the defendant's agent; (2) a belief by the plaintiff that the tortfeasor is the defendant's agent; and (3) a reasonable basis for the plaintiff's belief. Id.
¶38 In Oklahoma, this exception to the general rule regarding the vicarious liability of a hospital was first recognized in Smith v. St. Francis Hospital, Inc. , 1983 OK CIV APP 58, 676 P.2d 279. In Smith , this Court held that a hospital could be held liable for the negligence of a physician providing medical care at the hospital even though the physician was an independent contractor, if there was no pre-existing patient-physician relationship and the patient "looked solely to and relied upon Hospital for his treatment and was treated by medical personnel regulated and authorized by Hospital to render medical services in its emergency room ...." Id . ¶ 13.
¶39 In Weldon v. Seminole Municipal Hospital , 1985 OK 94, 709 P.2d 1058, the Oklahoma Supreme Court recognized that Oklahoma "has joined those jurisdictions which have made an exception to the general rule that a doctor is an independent contractor and a hospital is exempt from invocation of respondeat superior." Id. ¶ 4. The Weldon Court applied the test articulated in Smith :
In order to invoke respondeat superior or agency by estoppel the test as adopted by the Oklahoma Court of Appeals is:
"[W]hether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems."
Id. ¶ 7 (quoting Smith , 1983 OK CIV APP 58, ¶ 12, 676 P.2d 279 ). "The Court may also consider whether there was a pre-existing relationship between the plaintiff and the treating physicians.... [and] whether the hospital pays the doctor a salary or bills for the doctor's services." Roth v. Mercy Health Ctr., Inc. , 2011 OK 2, ¶ 32, 246 P.3d 1079 (citations omitted).
¶40 St. John cites Sparks Bros. Drilling Co. v. Texas Moran Exploration Co. , 1991 OK 129, 829 P.2d 951, for the proposition that a defendant cannot be held vicariously liable unless the plaintiff changed her position to her detriment. Id . ¶ 17. Sparks relied on Rosser-Moon Furniture Co. v. Oklahoma State Bank , 1943 OK 89, ¶ 6, 192 Okla. 169, 135 P.2d 336, which in turn relied on the works Corpus Juris Secundum and American Jurisprudence. However, the analysis of apparent authority in those treatises differs from that expressed in the Restatement (Second) of Agency. The Restatement view of apparent authority was adopted in Stephens v. Yamaha Motor Co., Ltd ., 1981 OK 42, ¶ 8, 627 P.2d 439, after the Court noted that a different articulation of the rule had been used in Rosser-Moon Furniture. Detrimental reliance is not an element a plaintiff must prove to establish apparent authority. Id. ; see also Restatement (Second) of Agency § 8 (1958).
St. John's petition for rehearing points out the confusion in Oklahoma jurisprudence on this issue and argues for a different view of the law that would combine the elements of apparent authority and agency by estoppel, in essence requiring proof of detrimental reliance for all claims where the defendant cannot be held vicariously liable. We decline to adopt that view.
¶41 Consequently, to establish her apparent authority claim, Sanders must prove that: (1) St. John manifested an intent that the defendant radiologists were authorized to provide medical services at its hospital; (2) Sanders believed that the defendant radiologists were authorized to provide medical care on behalf of St. John; and (3) Sanders' belief that the defendant radiologists were authorized to provide medical care at St. John was reasonable. Stephens , 1981 OK 42, ¶ 8, 627 P.2d 439. To be entitled to a directed verdict, St. John must establish the absence of any evidence supporting at least one of those elements. Cf ., Cook v. Bishop , 1988 OK 120, ¶ 9, 764 P.2d 189 (a motion for directed verdict is "somewhat like a delayed motion for summary judgment"), and Runyon v. Reid , 1973 OK 25, ¶ 13, 510 P.2d 943 (summary judgment for the defendant is proper where there is no controversy as to one fact material to the plaintiff's case and that fact is in the defendant's favor). St. John failed to do so in the district court, and it has failed to do so here.
¶42 St. John held itself out to the public as a place where people like Sanders could come and receive medical treatment on an emergency basis from physicians authorized to provide that care at the hospital. "It is entirely reasonable that patients entering [St. John] through its emergency room properly relied upon [St. John's] representation that the treating doctors and staff of [St. John's] emergency room were acting on behalf of [St. John], and not as individuals." Smith v. St. Francis Hosp ., 1983 OK CIV APP 58, ¶ 12, 676 P.2d 279.
In its petition for rehearing, St. John argued there is no evidence in the record that it made any affirmative representation to Sanders that the defendant radiologists or even the emergency room physicians who treated Sanders were its agents. St. John's point is unclear. For example, there is no testimony in this record that there was a sign above the entrance to the hospital that stated "St. John Emergency Room." But it is undisputed that Sanders wanted to go to St. John and that she was treated at St. John's emergency room before being admitted to St. John's hospital. There is no testimony in this record that anyone at St. John told Sanders that the physicians in the emergency room were St. John's agents. But the fact that they were there and provided treatment to Sanders is undisputed. We do not understand St. John to be arguing that the emergency room physicians, for example, were not authorized to be there, were not authorized to provide Sanders treatment or that they just wandered in off the street and happened to be there when Sanders arrived. It certainly did not do so during the oral argument. Quite obviously, that position would raise additional exposure for St. John, as previously discussed.
¶43 Further, Sanders testified that she believed that St. John personnel in charge of her medical care would decide which radiologists to use. Based on this record, that belief was reasonable. As the defendants clearly established, Sanders did not know the defendant radiologists. No one at St. John asked her which radiologist she wanted to use, and she relied solely on St. John personnel to select a radiologist. Consequently, this case is distinguishable from Weldon , where the negligent physician was the plaintiff's own family physician and instructed her to meet him at the hospital, where he would treat her condition, and the plaintiff looked solely to him, not the hospital, to provide that treatment. Weldon v. Seminole Mun. Hosp. , 1985 OK 94, ¶ 1, 709 P.2d 1058. This Court's decision in Smith has been cited with approval by the Supreme Court in Weldon , 1985 OK 94, ¶ 4, 709 P.2d 1058, and Roth v. Mercy Health Center, Inc. , 2011 OK 2, ¶ 32, 246 P.3d 1079, for its recognition of a hospital's potential liability for any physician cloaked with the hospital's apparent authority. In contrast to the facts in Weldon , the facts in Smith are indistinguishable from those here.
[M]embers of the public [like Sanders] who avail themselves of a hospital's emergency room services under these circumstances have a right to expect competent medical treatment from the medical personnel cloaked with ostensible authority by the hospital's conduct which reasonably leads the public to believe that medical treatment will be afforded by physicians acting on behalf of the hospital, and not on their respective individual responsibility.
Smith , 1983 OK CIV APP 58, ¶ 13, 676 P.2d 279. St. John did not argue otherwise. St. John's vicarious liability argument failed to distinguish between apparent authority and agency by estoppel and focused solely on the estoppel doctrine.
¶44 Consequently, for purposes of its motion for directed verdict, St. John has conceded that it may be liable based on the doctrine of apparent authority. This record supports that conclusion. The emergency room physicians employed by St. John, who treated Sanders on each of her first three visits to the hospital, sent the electronic studies they had ordered to the defendant radiologists for interpretation. Again, if the defendant radiologists were not competent and the emergency room physicians knew or should have known that fact, St. John may be liable. In addition, as Sanders' condition continued to deteriorate over a period of three months, it does not appear that any of the emergency room physicians she saw after December 2009 questioned the misdiagnosis or reported Sanders' failure to respond to the treatment that was prescribed. In addition, according to Sanders, the doctors and nurses she encountered at St. John after December 2009 expressed frustration when she continued to return to the hospital and embarrassed her for continuing to seek treatment. If any of this conduct failed to meet the standard of care, St. John may be liable.
St. John argues in its petition for rehearing that there is no "trial testimony" to support this statement. Sanders' trial testimony was not included in the original record. This fact is disclosed from the argument made by counsel for St. John in support of its motion in limine representing what Sanders had said during her deposition. (ROA 831, p. 16). Although we gave all parties the opportunity to supplement the record, St. John chose not to add Sanders' trial testimony to confirm its claim that Sanders changed her deposition testimony. Further, St. John argues that this Court created "a cause of action for embarrassment." St. John's argument misses the point. It is not that Sanders was embarrassed as she continued to be seen by St. John physicians and nurses; the point is that on those subsequent visits St. John personnel continued to misdiagnose Sanders' tumor as Bell's palsy. It is clear from the oral argument that Sanders is asserting that claim directly against St. John.
2. Agency by Estoppel
¶45 St. John did argue that Sanders failed to prove that the hospital could be held vicariously liable because she did not change her position based on the employment status of the defendant radiologists. Although the elements necessary to prove apparent authority and agency by estoppel are "usually present" in a particular case, apparent authority and estoppel are distinguishable. Restatement (Second) of Agency § 8 cmt. d (1958). Apparent authority is a contract-based theory holding a party liable for its actual statements and representations. Id . Estoppel is a tort theory used to prevent loss to an innocent person. Id . Although the Supreme Court generally adopted section 8 of the Restatement (Second) of Agency regarding apparent authority in Stephens v. Yamaha Motor Company, Limited , 1981 OK 42, ¶ 8, 627 P.2d 439, no Oklahoma decision has specifically addressed all of the elements of estoppel. However, the decisions that have addressed the issue are consistent with section 8 of the Restatement. To estop the defendant from denying that the tortfeasor is its agent, a plaintiff must prove that: (1) the defendant misrepresented that the tortfeasor was its agent or was silent when the defendant had a duty to state that the tortfeasor was not its agent; (2) the plaintiff relied on the defendant's misrepresentation or silence and believed that the tortfeasor was the defendant's agent; and (3) the plaintiff changed positions and suffered a loss based on this belief. Restatement (Second) of Agency § 8B (1958). St. John's argument that Sanders failed to prove detrimental reliance, because she had no knowledge of or concerns regarding the defendant radiologists' employment status, is without merit.
¶46 First, this argument concedes the first two elements of estoppel. St. John failed to disclose that the defendant radiologists were not its agents, and Sanders believed that they were St. John agents. Those elements are also supported by the record.
¶47 Second, even assuming that the relevant inquiry is whether Sanders would have insisted on a different hospital had she known that the defendant radiologists were not employed by St. John, her testimony was that she told the ambulance driver that she wanted to go to St. John and she "thought the hospital made those decisions" about which radiologist to use. Therefore, the evidence on the change-in-position element is at least contested. See Messler v. Simmons Gun Specialties, Inc. , 1984 OK 35, ¶ 28, 687 P.2d 121 (noting that the court disregards evidence favorable to the movant which is disputed when ruling on a motion for a directed verdict). But that is not the relevant inquiry. What is relevant is whether Sanders "has suffered a loss." Restatement (Second) of Agency § 8B cmt. e (1958). Evidence that she did is sufficient to establish the change in position required for estoppel. Id. For purposes of St. John's motion for directed verdict, Sanders has satisfied that element. By choosing to go to St. John, her brain tumor was misdiagnosed, resulting in permanent injury.
¶48 Third, as the district court correctly noted, whether Sanders would have insisted on going to another hospital, if she had known the defendant radiologists were not St. John employees, is a question of fact for a jury to determine. Roth v. Mercy Health Ctr., Inc. , 2011 OK 2, ¶ 32, 246 P.3d 1079 (citing Reed v. Anderson , 1927 OK 334, ¶ 4, 127 Okla. 64, 259 P. 855 ).
3. The Limits of St. John's Vicarious Liability
¶49 In its final argument, St. John asserts that a hospital's vicarious liability is limited to emergency room physicians employed by the hospital: "[T]he Supreme Court has affirmatively refused to hold a hospital responsible for non-emergency room physicians since the Smith case." We find this argument disingenuous. First, there were at least two physicians for which the hospital in Smith could be held liable, the emergency room physician the court found was the controlled agent of the hospital, and a surgeon with privileges at the hospital and to whom the plaintiff was referred by the emergency room physician for treatment. As previously noted, this Court's decision in Smith was cited with approval in Roth , 2011 OK 2, ¶ 32, 246 P.3d 1079. Roth is particularly dispositive of St. John's argument because it reversed summary judgment in favor of a hospital, finding a material issue of fact as to whether the patient looked to the hospital to provide the medical care rendered by two private practice cardiologists whom the hospital's physician consulted regarding the patient's care. Id. ¶ 34.
In Roth , the Supreme Court reserved for future determination whether a hospital can be held liable under the doctrine of apparent authority or estoppel for the negligence of a physician who is consulted by a hospital physician or to whom the hospital's patient is referred for treatment. We do not decide that issue in this case because the state of the record is insufficient. Cf. Restatement (Second) of Agency § 255 (1958), regarding the liability of a principal for the acts of subagents.
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¶50 A hospital's liability is not determined by a physician's specialty or area of practice, but by the hospital's conduct in manifesting its intent to authorize the physician to provide medical services on behalf of the hospital or by its failure to inform patients that physicians appearing to provide services on behalf of the hospital are not authorized to do so. Restatement (Second) of Agency §§ 8 and 8B (1958).
CONCLUSION
¶51 The central issue in this case is whether the defendant radiologists' failure to identify Sanders' tumor was the proximate cause of her subsequent injuries. The issue raised by St. John's motion for directed verdict is whether it can be held liable for any negligence by those radiologists. St. John had a duty to provide "that care and attention required under all the circumstances that is appropriate to the physical and mental condition of [Sanders]." Okla. Uniform Jury Instructions - Civil No. 14.15. As relevant to this case, that included the duty to determine whether the radiologists were competent before they were selected to interpret the radiologic studies of Sanders' head and neck. See Strubhart v. Perry Mem'l Hosp. Trust Auth. , 1995 OK 10, 903 P.2d 263. Likewise, St. John may be liable even if the defendant radiologists were non-agent, independent contractors but appeared to be providing care on behalf of the hospital or under circumstances where St. John would be estopped to deny that fact. Smith v. St. Francis Hosp ., 1983 OK CIV APP 58, 676 P.2d 279.
¶52 A motion for directed verdict requires the determination "of whether there is any evidence to support a judgment for the party against whom the motion is made, and the trial court must consider as true all the evidence and inferences reasonably drawn therefrom favorable to the non-movant, and disregard any evidence which favors the movant." Gillham v. Lake Country Raceway , 2001 OK 41, ¶ 7, 24 P.3d 858. "A motion for directed verdict ... should not be sustained unless there is an entire absence of proof tending to show a right to recover ...." Downing v. First Bank in Claremore , 1988 OK 67, ¶ 8, 756 P.2d 1227. Considering as true all of the evidence favorable to Sanders, together with all of the inferences that reasonably may be drawn therefrom, and disregarding all the evidence favorable to St. John that is disputed, we cannot conclude that there is an entire absence of proof "tending to show that Sanders does not have a right to recover." Id.
¶53 The district court erred in granting St. John's motion for directed verdict. Likewise, and for the reasons previously discussed, it was error to limit the testimony of Dr. Connor to "what he saw, what he diagnosed, what his treatment of [Sanders was]" from the first time he saw her and thereafter. Dr. Connor should have been permitted to testify as an expert witness regarding his opinion of the defendant radiologists' responsibility for the injuries suffered by Sanders. The judgment appealed is vacated, and this case is remanded for further proceedings consistent with this Opinion.
¶54 VACATED AND REMANDED FOR FURTHER PROCEEDINGS .
THORNBRUGH, C.J. (sitting by designation), and GOODMAN, J., concur.