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West v. Jane Phillips Memorial Medical Center

Court of Appeals of Oklahoma, Division III

August 17, 2017

LORI LYNN WEST, individually and LORI LYNN WEST, as next friend of D.J.W., a minor child, Plaintiff/Appellant,
v.
JANE PHILLIPS MEMORIAL MEDICAL CENTER and JAN REYNOLDS, Defendants/Appellees.

          Mandate Issued: 10/18/2017

         APPEAL FROM THE DISTRICT COURT OF WASHINGTON COUNTY, OKLAHOMA HONORABLE RUSSELL VACLAW, JUDGE

          Brendan M. McHugh, Claremore, Oklahoma, for Plaintiff/Appellant,

          Jason C. Rush, David A. Russell, Tulsa, Oklahoma, for Defendants/Appellees.

          Bay Mitchell, Presiding Judge

         ¶1 Plaintiff/Appellant Lori Lynn West, in her individual capacity and on behalf of minor child D.J.W. ("West"), appeals the trial court's dismissal of a lawsuit brought against Defendants/Appellees Jane Phillips Memorial Medical Center ("JPMC") and Jan Reynolds ("Reynolds") (collectively, "Defendants") for invasion of privacy, breach of confidentiality, unfair and deceptive trade practices, slander, malicious prosecution, and civil conspiracy. The lawsuit arose out of West receiving a false positive result on a drug test for methamphetamine ("meth") use after her scheduled caesarean section ("c-section") which resulted in a report being made to the Department of Human Services ("DHS") for suspected child abuse. West also appeals the trial court's grant of summary judgment in Defendants' favor on the claims of negligence and intentional infliction of emotional distress ("IIED") set forth in West's First Amended Petition and the denial of her request to include in her amended petition claims based on 42 U.S.C. §1983. Based upon our review of the record and applicable law, the decisions of the trial court are AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

         ¶2 West was admitted to JPMC on September 1, 2011 for a scheduled c-section. At some point during her stay, West signed a form titled "Drug Screening Consent and Waiver of Liability" ("Drug Test Waiver") which gave West's consent for JPMC to perform a drug screening test using either blood or urine. The urine sample was actually tested by Regional Medical Laboratory, Inc. ("RML") after the surgery. West tested positive for meth use. West alleged one or more of the Defendants wrongfully notified DHS and other unauthorized third parties of the positive drug test. As a result, DHS placed all three of West's minor children, including the newborn, D.J.W., into protective custody and initiated a deprived proceeding against West and her husband. West also alleged that Reynolds, a social worker employed by JPMC, attempted to harass a confession from West that she used meth and threatened that if West did not admit to using meth the treating physician would not give her the blood transfusion she needed. Later testing showed the initial positive test for meth was a false positive, and DHS returned West's children to her approximately ten days after they were first placed in DHS custody.

         ¶3 West alleged she was given medication while admitted to JPMC which caused the false positive meth result but that the treating physician, Dr. Robert D. Oliver ("Dr. Oliver") failed to note the prescription of such medication appropriately for the urine test or to perform follow up tests until West demanded such be performed. West's Petition also stated that she had an earlier negative meth test which Defendants failed to disclose to DHS and that D.J.W. never tested positive for meth. West also asserted the report Reynolds made to DHS was false in that she reported West refused to give her address to DHS, when West actually did so in the presence of Reynolds. Further, Reynolds falsely reported that West and her husband were separated, that all of West's children had different fathers, that the father of D.J.W. was unknown, and that West admitted to using meth thirteen years prior. Reynolds also included in her report notes stating that West was delusional and hallucinating during labor and attributed her symptoms to being "drug related."

         ¶4 West filed suit against Defendants in Nowata County on November 13, 2014, and the matter was transferred on April 13, 2015 to Washington County. [1] In their Motion to Dismiss filed May 18, 2015, Defendants argued that 10A O.S. §1-2-104 provided them with immunity as to all of West's claims. Alternatively, Defendants adopted the argument set forth in Dr. Oliver's Motion to Dismiss filed April 13, 2015 that at least some of West's claims were barred by the applicable statute of limitations. See note 1, supra. West filed an initial suit in Washington County on August 30, 2013, voluntarily dismissed it without prejudice on February 10, 2014, and then filed the original Petition in the present case on November 13, 2014 (in Nowata County). Dr. Oliver argued that West's claims for breach of confidentiality, unfair and deceptive trade practices, slander, malicious prosecution, and civil conspiracy were not included in the 2013 lawsuit. Accordingly, he argued, Oklahoma's savings statute, 12 O.S. §100, did not "save" these causes of action by the refiling of the action in Nowata County on November 13, 2014 and that they were barred by the applicable statutes of limitations. The trial court agreed in part and dismissed all of West's claims except for negligence and IIED. [2] The trial court instructed West to file an amended petition removing the dismissed claims and including an expert affidavit as required by 12 O.S.Supp. 2013 §19.1 within 90 days of July 9, 2015. [3]

         ¶5 Instead of filing an amended petition as ordered, West filed a Motion for Leave to File First Amended Petition on September 12, 2015 and requested leave to include claims based upon Defendants' alleged violation of 42 U.S.C. §1983. [4] Defendants responded by requesting dismissal of West's remaining claims (negligence and IIED) for her failure to comply with the trial court's order. Defendants also requested that the trial court deny West's motion for leave to include claims based upon §1983 because they were barred by the statute of limitations which the trial court granted. West then filed her First Amended Petition January 4, 2016 which reasserted her claims against Defendants for negligence and IIED and included the required affidavit. Defendants filed their Answer and later filed a Joint Motion for Summary Judgment arguing judgment must be entered in their favor because (1) neither one of them performed the test which created the false positive meth result; (2) West signed a valid release exculpating Defendants from any liability; and (3) 10A O.S. §1-2-104 provided them with immunity and West could provide no evidence of bad faith. The trial court granted the Joint Motion for Summary Judgment. On appeal, West challenges (1) the trial court's dismissal of her claims for invasion of privacy, breach of confidentiality, unfair and deceptive trade practices, slander, malicious prosecution, and civil conspiracy; (2) the trial court's refusal to allow her to file an amended petition to include §1983 claims; and (3) the trial court's grant of summary judgment in Defendants' favor.

         STANDARD OF REVIEW

         ¶6 We review the trial court's dismissal of West's claims de novo. E.g. Miller v. Miller, 1998 OK 24 ¶15, 956 P.2d 887. A motion to dismiss should not be sustained unless it appears without doubt that the plaintiff can prove no set of facts that would entitle her to relief. Niemeyer v. U.S.F.& G., 1990 OK 32, ¶5, 789 P.2d 1318, 1321. Similarly, appellate courts also review orders of summary judgment de novo, giving no deference to the trial court. Lowery v. Echostar Satellite Corp., 2007 OK 38, ¶11, 160 P.3d 959, 963. Summary judgment is only appropriate when there is no substantial controversy as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. The trial court's denial of West's request to file an amended petition to include claims for violation of 42 U.S.C. §1983 is reviewed for an abuse of discretion. Roth v. Mercy Health Center, Inc. 2011 OK 2, ¶12, 246 P.3d 1079.

         IMMUNITY PURSUANT TO 10A 0.S. 2011 §1-2-104

         ¶7 Defendants argued at both the motion to dismiss stage and the summary judgment stage that the immunity provided for in 10A O.S. 2011 §1-2-104 precluded West from recovering on any of her claims. The statute provides in relevant part:

A. Any person who, in good faith and exercising due care, reports suspected child abuse or neglect, or who allows access to a child by persons authorized to investigate a report concerning the child shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed. Any such participant shall have the same immunity with respect to participation in any judicial proceeding resulting from such report.

         B. For purposes of any proceeding, civil or criminal, the good faith of any person in making a report pursuant to the provisions of Section 1-2-101 of this title shall be presumed. [5]

         10A O.S. 2011 §1-2-104. When interpreting the predecessor version of this statute, which is substantially similar to the current version, the Oklahoma Supreme Court ...


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