News & Resources

In a recent case, the Oklahoma Supreme Court struck down an Oklahoma statute that attempted to limit or cap “non-economic damages” at $350,000.  The statute, 23 O.S. §61.2, was enacted in 2011.  In Beason v. I.E. Miller Services, Inc., 2019 OK 28, the plaintiff was injured after a boom from a crane fell and hit him.  As a result of the incident, he underwent two amputations on parts of his arm.  He sued the operator of the crane, and was awarded $14,000,000.  His wife was awarded $1,000,000 on her loss of consortium claim.  The jury determined that $5,000,000 of the $14,000,000 was non-economic damages.  The trial judge determined that all of the wife’s damages were non-economic in nature.  The damage cap was applied to the non-economic damages, and a total judgment of $9,700,000 was entered.  The plaintiffs appealed the trial court’s reduction of the jury verdict.  The Supreme Court, after retaining the appeal for nearly three (3) years, determined that the damage cap violated Oklahoma’s prohibition on “special laws.”  The Court stated that Article 5, Section 46 of the Oklahoma Constitutional “requires uniformity of treatment when like-situated litigants arrive at the courthouse door:  “[C]ourt procedure [must] be symmetrical and apply equally across the board for an entire class of similarly situated persons or things.”  The Court found that the law was impermissibly “special” because it limited “pain and suffering” damages when the plaintiff survived the ”injury causing event,” but did not limit such damages in cases of “wrongful death.”  The […]

The United States Supreme Court recently decided a new arbitration case involving the Federal Arbitration Act in the nursing home context.  See Kindred Nursing Centers v. Clark, 2017 WL 2039160 (2017).  Kentucky courts had held that certain arbitration agreements were invalid because the “powers of attorney” at issue did not specifically entitle the representatives to enter into the arbitration agreements.  This was called the “clear statement” rule.  In other words, an agent could not deprive her principal of the right to “jury trial” unless it was expressly provided for in the power of attorney.  The Supreme Court reversed, finding that Kentucky’s “rule” violated the FAA because it singled out arbitration agreements for disfavored treatment.  The Court made it clear that the Federal Arbitration Act cares not only about the “enforcement” of arbitration agreements, but also about their “initial validity,” or “what it takes to enter into them.”  The Court stated that “[a] rule selectively finding arbitration contracts invalid because improperly formed fares not better under the Act than a rule selectively refusing to enforce those agreements once properly made.”  The decision reinforces the strength of the Federal Arbitration Act, even in state court proceedings.  The Court remanded for further consideration of the power of attorney.

DRI’s Uninsured and Underinsured Motorist Coverage Compendium has recently been published.  The Compendium addresses the latest developments on topics relevant to UM/UIM coverage.  Topics include whether UM/UIM coverage is mandatory, whether stacking is allowed or required and which if any offsets against coverage are allowed.  The Compendium addresses these questions in each of the fifty states, as well as the District of Columbia.  Compendium authors were selected based upon their breadth and depth of experience and knowledge in defending against related contract and bad faith actions.  Attorney Matthew B Free, with Best & Sharp, was honored to write the Compendium’s Oklahoma chapter.

In the recent case of Moore v. Warr Acres Nursing Center, 2016 OK 28, 376 P.3d 894, the Oklahoma Court held that a public policy exception to at-will employment existed to protect an employee from being fired from a nursing home solely for not working while infected with the influenza virus, and that fact questions remained as to the true reasons for the employee’s termination, which precluded summary judgment.  Moore was the first case to rely on federal and state agency regulations to support the “public policy”  issue.

In November of 2011, a new statute became effective in Oklahoma which limited the admissibility of evidence in personal injury cases regarding a plaintiff’s economic damages.  Prior to the statute, there was some confusion on the amount that a plaintiff could recover in a personal injury lawsuit for medical bills – i.e., the amounts “billed” by health care providers, or the amounts “actually paid.”  For a variety of reasons, the amounts “billed” are often far in excess of the amounts “actually paid” for medical services. The new statute has the purpose of limiting the admissibility of such evidence to the amount “paid” for such services.  In Lee v. Bueno, 2016 OK 97, 381 P.3d 736, the plaintiff argued that the statute was unconstitutional for a variety of reasons.  However, the Court rejected all such arguments.  The Court held that, in enacting the statute, the “Legislature has exercised its policymaking role and determined that injured parties in a personal injury action will not be able to admit evidence of, and therefore recover damages for, amounts they or their insurer were billed for treatment but were not required to pay” and that the statute “abrogates the collateral source rule to the extent it would otherwise conflict with the statute.”  A concurring opinion note that the new statute was a “reaction to the way that medical services are priced.  It ensures that a plaintiff does not receive a windfall, but also ensures that the measure of damages ‘is the amount which will compensate […]

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 […]