News & Resources

Oklahoma is at an “at-will” employment state.  In general, this means that “an employer may discharge an employee for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong.”  See Burk v. K-Mart Corp., 1989 OK 22, ¶5, 770 P.2d 24.  However, the Court has recognized exceptions to this rule when the termination is “in contravention of a clear mandate of public policy.”  Id. at ¶17.  In the recent case of Moore v. Warr Acres Nursing Home Center, LLC, 2016 OK 28, the Court recognized a Burk tort for terminating an employee of a nursing facility after the employee allegedly called in sick with influenza.  The Court held that a clear public policy exists that would prevent a nursing home employer from terminating an employee solely because the employee had influenza.  (The Court based this public policy on the “constitution, the statutes, the regulations approved by Congress and the Oklahoma Legislature, and the Nursing Center’s rules, regulations and handbook.”)  The Court remanded for a jury trial because fact questions remained over whether this was the true basis for the employee’s termination. As the dissent notes, the case is probably the most significant because it allows a “public policy” tort to be based on administrative rules/regulations:  “Including administrative rules within the public policy exception greatly expands the Burk tort, placing a greater burden on employers who must search through those rules to determine whether termination of an employee will be against public policy.”  […]

The Oklahoma Supreme Court recently issued a new opinion on the doctrine of informed consent in medical negligence cases.  See Allen v. Harrison, 2016 OK 44, 2016 WL 1567600 (mandate not yet issued at the time of this publication).  In that case, the plaintiff swallowed a nail, and the ER physician recommended that he “eat fiber and let the nail pass”; the physician allegedly failed to disclose the alternative medical options, which would have included endoscopic and surgical removal of the ingested nail.   The underlying medical negligence claim was tried to a jury, and a defense verdict was rendered by the jury. However, the plaintiff appealed the trial court’s pre-trial partial summary judgment ruling on the informed consent claim.  The Supreme Court agreed that summary judgment was inappropriate on the informed consent claim, and remanded for a new trial.  In particular, the Court rejected the ER physician’s argument that he had no duty to advise of medical options that were outside the scope of his practice.  Id. at ¶13 (“[P]hysicians do not adequately discharge their obligations by limiting their disclosures to the treatments they recommend or treatments within their scope of practice.”).  Rather, the Court implied that the ER physician had a duty to make this disclosure even if it meant a “consultation with another medical professional to facilitate the disclosure.” The case contains a number of holdings regarding informed consent.  The conclusion summarizes the holding:  “[I]nformed consent applies equally to invasive as well as noninvasive medical treatments and treatment […]