Date: 09-10-2012
Case Style: Donna Wade v. Steven D. Jimerson, M.D.
Case Number: CJ-2011-388
Judge: Tom A. Lucas
Court: District Court, Cleveland County, Oklahoma
Plaintiff's Attorney: John E. Vitali and Thomas Knowlton Ishmael
Defendant's Attorney: Iona Jane Harness and Shannon E. Bickham for Steven D. Jimerson, M.D. and R. Bruce Parker
David Branscum, Mathew Dunlpa Martin, III and Glen D. Huff, for Norman Regional Hospital Authority, Marcie Robertson, Melissa Carbtree and Jana Jennings
Description: Donna Wade sued Steven D. Jimerson, M.D., R. Bruce Parker, M.D., Norman Regional Hospital Authority, Marcie Robertson, Melissa Crabtree and Jana Jennings on medical negligence (medical malpractice) theories claiming:
1. Plaintiff is a resident of Cleveland County, Oklahoma.
2. Defendant, Steven D. Jimerson, M.D. (“Jimerson”), is a resident of Cleveland County, Oklahoma.
3. Defendant, R. Bruce Parker, M.D. (‘Parker”), is a resident of Cleveland County, Oklahoma.
4. Defendant, Norman Regional Hospital Trust, is an Oklahoma Public Trust doing business as Norman Regional Hospital in Cleveland County, Oklahoma.
5. The acts and omissions giving rise to this matter occurred in Norman, Cleveland County, Oklahoma.
6. The amount in controversy exceeds the sum of Ten Thousand Dollars, exclusive of interest, costs and attorneys fees.
7. At all times pertinent, Plaintiffs decedent, Beth Payne Carrier (‘Decedent”), was under the medical care and treatment of each of the Defendants in relation to her pregnancy.
8. At all times pertinent, Defendant Parker was a physician practicing medicine in the state of Oklahoma and maintained a physician-patient relationship with Decedent.
9. At all times pertinent, Defendant Jimerson was a physician practicing medicine in the state of Oklahoma and maintained a physician-patient relationship with Decedent.
10. On or about July 28, 2009 Decedent sought medical treatment at the Norman Regional Hospitals emergency room.
11. On July 29, 2009 Decedent died while a patient of Defendants.
12. On or about July 28, 2009 Defendants Parker and Jimerson were employees, agents orservants of Defendant Norman Regional Hospital, and Norman Regional Hospital is vicariously liable for Parker and Jimerson’s negligent acts and omissions.
13. On or about July 28, 2009 employee nurses of Norman Regional Hospital negligently provided Decedent medical care, and Norman Regional Hospital is vicariously liable for their nurses negligent acts and omissions.
14. On or about July 28, 2009, Defendants Parker and Jimerson, independently and/or collectively, failed to exercise the degree of care required in their treatment of Decedent and their negligence caused or contributed to Decedent’s injuries and death.
15. At all times pertinent, Norman Regional Hospital failed to exercise ordinary care and attention to Decedent and their negligence caused or contributed to Decedent’s injuries and death.
16. As a result of the Defendants’ negligence, Decedent suffered personal injuries and wrongful death which entitles Plaintiff to recover damages as set forth in 23 O.S. § 61, 12 0.5. §1051 and 12 OS §1053.
17. At all times pertinent, the acts and omissions of Defendants, individually and/or collectively, caused a substantial reduction of the Decedent’s chance of recovery or survival and increased the risk of Decedent’s death, entitling Plaintiff to recover damages.
18. Defendants’ acts and omissions were willful, wanton and are in reckless disregard for the well-being of Decedent, and exemplary damages are appropriate and demanded.
19. On or aboutJuly 21,2010 Plaintiff served Norman Regional Hospital with her Notice of Governmental Tort Claim (“Tort Claim”). See Ex. 1, Tort Claim. As of the date of the filing of this Petition, Plaintiff received no response from Norman Regional Hospital regarding the Tort Claim. As such, Plaintiff’s Tort Claim was deemed denied. See 51 0.S. § 157. Plaintiff is now entitled to pursue her claims against Norman Regional Hospital by and through this civil action.
19. Plaintiff has consulted and reviewed the facts of these claims with a qualified expert pursuant to the terms of 12 0.5. § 19(A)(1) and deems this claim to be meritorious and based on good cause. See Ex. 2, Affidavit.
WHEREFORE, Plaintiff, Donna Wade, Administratrix of the Estate of Beth Payne Carrier, demands judgment in excess of the amount required for federal diversity jurisdiction pursuant to 28 U.S.C. § 1332, together with interest, costs, attorney fees, and any further relief the court deems equitable, just, and available to Plaintiff by law.
Norman Regional Hospital Authority answered as follows:
I. Every allegation in the Petition is denied, unless specifically admitted in this answer.
2. This defendant is without knowledge sufficient to form a belief as to the truth of paragraphs I and 6 of the Petition.
3. Regarding the allegations in paragraphs 8 and 9 of the Petition, this defendant admits that Drs. Parker and Jimerson were physicians practicing medicine in the State of Oklahoma. This defendant is without knowledge sufficient to form a belief as to the truth of the remaining allegations in paragraphs 8 and 9 of the Petition.
4. The allegations in paragraphs 7, 12, 13, 15 through 18 and the second paragraph erroneously numbered as paragraph “19” of the Petition are specifically denied by this Defendant, together with the prayer for relief which follows.
5. The allegations in paragraphs 2, 3, 4, 5 and 11 of the Petition are admitted by this Defendant,
6. Regarding the allegations in the first paragraph numbered as paragraph “19” of the Petition relating to Plaintiffs July 21, 2010 Notice of Governmental Tort Claim the allegations in the first two sentences of that paragraph are admitted. The allegations in the last sentence of that paragraph are mere legal conclusions and no responsive pleading is required. If a responsive pleading is deemed necessary, this Defendant denies the allegations in the last sentence of that paragraph.
7. The allegations in paragraph 14 of the Petition are not directed against this defendant and no responsive pleading is required. If a responsive pleading is deemed necessary, this Defendant is without knowledge sufficient to form a belief as to the truth of paragraph 14.
8. This Defendant specifically denies any act or omission on its part in the care and treatment of the decedent was the proximate cause of any injury to the decedent.
9. This Defendant specifically denies that the Plaintiff sustained any injury or suffered any damage by reason of any alleged act or omission on the part of this Defendant.
10. This Defendant specifically denies that it was in any manner negligent in its care and treatment of the Plaintiffs decedent.
11. This Defendant specifically denies the applicability of any punitive damages.
12. Any damages allegedly suffered by the Plaintiff were caused by the underlying medical condition of the decedent or were the result of unforeseeable or unavoidable complications due to the underlying condition of the decedent, which was not caused by the acts of this Defendant.
13. Any damages allegedly suffered by the Plaintiff or Plaintiffs decedent were caused by an unrelated preexisting or post-developing medical condition, disease or illness which was not caused by the acts of this Defendant.
14, Since discovery has not begun, this Defendant reserves the right to amend its answer in any particular.
AFFIRMATIVE DEFENSES
1. The Petition fails to state a claim against this Defendant upon which relief can be granted, either in whole or in part. This defense includes, but is not limited to, Plaintiffs claim of punitive damages.
2. The Petition should be dismissed pursuant to 120. S. § 19(A) (3) and (C) (2) because the affidavits of Mark Jacobs, M.D. provided by Plaintiffs do not state the acts or omissions of the defendants that constituted professional negligence, nor do they include reasons explaining why the acts or omissions constituted professional negligence. As a result, Plaintiff has failed to comply with 12 OS. §19 and dismissal is warranted.
3. Plaintiffs claims are barred by the doctrine of estoppel, either in whole or in parL
4. Plaintiffs damages, if any, were proximately caused or contributed to by the negligence or other wrongful act or omission of the decedent. In addition, and in the alternative, Plaintiffs damages, if any, were proximately caused or contributed to by the negligence of other parties over whom this Defendant exercised no control.
5. Plaintiff assumed the risk of the injury alleged.
6. Plaintiff lacks standing to bring this action.
7. Defendant denies that it is liable for any punitive and/or exemplary damages. Defendant denies any act or failure to act on the part of any agent, servant or employee of Defendant in relation to the Plaintiffs sufficient to warrant the imposition of punitive damages.
8. Defendant asserts Plaintiffs’ claim for punitive damages violates provisions of the Oklahoma and U.S. Constitutions. For example, the imposition of punitive damages under Oklahoma law would violate the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution in each of the following ways:
(a) Oklahoma law permits the imposition of unlimited punitive damages that are vastly disproportionate to any acts or compensatory injury thereby violating the Fourteenth Amendment of the U.S. Constitution.
(b) Disproportionate punitive damages constitute an arbitrary and capricious taking of property which is unjustified by any rational governmental interests, thereby violating the Fifth and Fourteenth Amendments of the U.S. Constitution.
(c) The award of punitive damages without specific standards to guide the jury’s discretion in determining the amount of damages is contrary to due process under the Fourteenth Amendment of the U.S. Constitution.
(d) Oklahoma does not provide a reasonable limit on the amount of any punitive damages award, thus violating the Fourteenth Amendment of the U.S. Constitution.
(e) The substance of standards of liability under which punitive damages are sought in this case are ambiguous, subjective, and not reasonably ascertainable, and thus “void for vagueness” under the Fourteenth Amendment of the U.S. Constitution.
(f) Oklahoma fails to provide a clear, objective and consistent appellate standard for post-verdict review of punitive damages thus violating the Fifth and Fourteenth Amendments of the U.S. Constitution.
(g) Oklahoma law permits civil punishment upon a standard of proof less than required for the imposition of criminal sanctions.
(h) Oklahoma law permits multiple awards of punitive damages for the same alleged act or omission.
(i) Oklahoma law and procedures goveming Plaintiffss’ punitive damage claim violates the Fifth Amendment guarantee against self-incrimination under the U.S. Constitution because said claim is penal in nature, while defendant is required to disclose documents and/or other evidence against its interests under the rules of discovery and evidence.
(j) The procedural standards for imposing punitive damages are unduly vague and do not furnish the jury sufficient guidance in determining whether and how much to award punitive damages for the alleged tortious acts of the defendants and thereby permits arbitrary and capricious taking of property in violation of the due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.
10. Moreover, any award of punitive damages in this case would violate Defendant’s procedural and substantive due process rights because circumstances in this case are insufficient to support the reasonableness of an award of punitive damages and there are inadequate legal and procedural constraints imposed on the fact finder’s discretion to impose such awards. The standard for punitive damages lacks sufficiently objective criteria and procedural safeguards to give a jury adequate criteria on an appropriate range of propoi-tionality regarding punitive damages. Furthermore, post-trial procedures and standards for trial court scrutiny of punitive damages awards and standards for appellate review of punitive damages awards are insufficient, and, therefore, violate Defendant’s right to due process of law.
11. This Court lacks jurisdiction because of Plaintiff’s failure to properly follow 12 OS. §2008.
12. For further answer or defense, this Defendant states that Plaintiff’s damages claims are limited or restricted by the provisions of the Affordable Access to Health Care Act, 63 0.S. § 1- 1708.1A et seq.
13. Plaintiffs’ claims are barred or otherwise subject to the limitations of the Oklahoma Governmental Tort Claims Act, Title 51 O.S. § 151 et seq.
14. Any action by the Plaintiffs against this Defendant is barred by the statute of limitations.
WHEREFORE, having answered, the Defendant, Norman Regional Hospital, prays that Plaintiff take nothing and that Defendant Norman Regional Hospital be dismissed from this action, and that it be awarded its costs and fees in this action and any further relief the Court finds to be equitable.
R. Bruce Parker, M.D. answered as follows:
1. R. Bruce Parker, M.D. is a physician licensed to practice medicine in the State of Oklahoma.
2. Defendant admits that he treated Beth Payne Carrier.
3. Defendant specifically denies that any medical care rendered by him was beneath the standard of care or was negligent.
4. Defendant alleges that at all times he acted within accepted standards of medical care and that he did not cause harm or injury to the plaintiff.
5. Defendant alleges that at all times he used his best judgment in diagnosing and/or treating Beth Payne Carrier.
6. Defendant alleges that plaintiffs alleged injuries were not the result of negligence.
7. Plaintiff’s Petition fails to state a cause of action against Defendant.
8. This action is barred in whole or in part by the statute of limitations.
9. Plaintiffs alleged injuries were caused or contributed to by plaintiff or third persons over whom Defendant had no control.
10. Plaintiffs alleged injuries were the result of an unavoidable casualty or misfortune.
11. Plaintiff’s alleged injuries were caused by plaintiffs pre-existing or post- developing medical condition for which Defendant is not responsible.
12. Any damages allegedly suffered by the plaintiff were caused by intervening or supervening causes for which Defendant had no control.
13. Plaintiff failed to mitigate her alleged damages.
14. Plaintiff has failed to fully comply with the Affordable Access to Health Care Act and 12. OS. § 19(A)(1).
15. Plaintiffs claims are limited and/or barred by the Affordable Access to Health Care Act. Defendant reserves the right to further plead or amend his Answer including affirmative defenses as discovery proceeds in this matter.
WHEREFORE, having answered, Defendant pray that plaintiff take nothing by way of his Petition filed herein, and that he be awarded his costs and such other just and equitable relief to which he may be entitled.
Steven D. Jimerson, M.D. answered as follows:
1. Steven D. Jimerson, M.D. is a physician licensed to practice medicine in the State of Oklahoma.
2. Defendant admits that he treated Beth Payne Carrier.
3. Defendant specifically denies that any medical care rendered by him was beneath the standard of care or was negligent.
4. Defendant alleges that at all times he acted within accepted standards of medical care and that he did not cause harm or injury to the plaintiff.
5. Defendant alleges that at all times he used his best judgment in diagnosing and/or treating Beth Payne Carrier.
6. Defendant alleges that plaintiff’s alleged injuries were not the result of negligence. 7. 8. 9. persons over 10. misfortune.
Plaintiff’s Petition fails to state a cause of action against Defendant.
This action is barred in whole or in part by the statute of limitations. Plaintiff’s alleged injuries were caused or contributed to by plaintiff or third whom Defendant had no control
Plaintiff’s alleged injuries were the result of an unavoidable casualty or 11. developing 12. intervening o 13. 14. Care Act and 15. Health Care Act.
Defendant reserves the right to further plead or amend his Answer including affirmative defenses as discovery proceeds in this matter.
Plaintiff’s alleged injuries were caused by plaintiff’s pre-existing or post- medical condition for which Defendant is not responsible. Any damages allegedly suffered by the plaintiff were r supervening causes for which Defendant had no control.
Plaintiff failed to mitigate her alleged damages. Plaintiff has failed to fully comply with the Affordable Access to Health 12. 0.8. § 19(A)(1)
Plaintiff’s claims are limited and/or barred by the Affordable Access to caused by
WHEREFORE, having answered, Defendant pray that plaintiff take nothing by way of his Petition filed herein, and that he be awarded his costs and such other just and equitable relief to which he may be entitled.
Application for approval of settlement and disbursement of settlement proceeds:
Plaintiff requests the Court review, examine and approve the Settlement Agreement reached between the parties in the above referenced matter. In support of this Application, Plaintiff shows the Court as follows:
1. Plaintiff Donna Wade is the duly appointed Administratix of the Estate of Beth Payne Carrier;
2. Plaintiff made claims and brought suit seeking to recover damages resulting from the wrongful death of the decedent for the benefit of the estate and it’s beneficiaries;
3. ASettlementAgreementwas entered into between the parties at a Mediation Conference on May 15, 2012;
4. The parties have entered into a Settlement Agreement with Defendants in exchange for a dismissal with prejudice and a release in full of all claims on behalf of the Estate of Beth Payne Carrier, deceased;
5. Plaintiff has prosecuted all claims on behalf of the estate with due diligence and believes the Settlement Agreement to be in the best interest of any and all beneficiaries to the Estate of Beth Payne Carrier, deceased.
6. Plaintiff requests the Court conduct a hearing on the Application forApproval of Settlement and allow all interested parties an opportunity to present evidence and testimony on the distribution of settlement proceeds in accordance with due process of law and Oklahoma statutory authority.
WHEREFORE, Plaintiff requests the Court approve the Settlement Agreement as being in best interest of the parties and enter an order disbursing proceeds in a manner equitable, just and pursuant to law.
Outcome: COMES NOW the plaintiff, Donna Wade, Administratrix of the Estate of Beth Payne Carrier, deceased, and her counsel of record John E. Vitali and hereby DISMISS WITH PREJUDICE any and all claims against the defendant R. Bruce Parker, M.D., only. This DISMISSAL WITH PREJUDICE prohibits any future refiling against R. Bruce Parker, M.D., by the Estate of Beth Payne Carrier and heirs of Beth Payne Carrier.
Plaintiff's Experts:
Defendant's Experts:
Comments:
