Among the 2011 Super Lawyers are Joseph R. Farris, John R. Woodard III, Robert A. Franden, and Paula J. Quillin.

Joseph R. Farris is among the Top 50 and also one of the four Professional Liability Super Lawyers. Paula J. Quillin is among The Top 25 Women and is also a Super Lawyer in employment and labor law. Robert A. Franden is a Super Lawyer in the Business/Corporate area. John R. Woodard is in the Top 50 and also is a Super Lawyer in the area of Personal Injury Defense: Products.

The “Rising Stars” are young lawyers who demonstrate unusual ability. Curtis Roberts is a Rising Star in Civil Litigation Defense. Jeremy Ward is a Rising Star in General Litigation. Sarah Buchan is a Rising Star in Personal Injury Defense: General. Jason Goodnight is a Rising Star in Transportation law.

If a doctor, hospital, dentist, or other health care provider makes a mistake, can you sue him or her? Not necessarily.

Medical malpractice involves matters of medical science and occurs when “those engag[ed] in the practice of the healing arts,” 76 O.S.2001, § 20.1, fail to “exercise ordinary care in delivery of professional services” when a duty is owed the plaintiff. Franklin v. Toal, 2000 OK 79, ¶ 14, 19 P.3d 834, 837.

In Oklahoma, the elements of a medical malpractice claim are: (1) a duty of care owed by the defendant to the plaintiff, (2) breach of that duty, (3) an injury, and (4) causation. Jennings v. Badgett, 2010 OK 7, 230 P.3d 861.

1. Duty of Care. The element of duty requires a physician-patient relationship. Jennings, supra. An action for malpractice is based on an employment contract. Funnell v. Jones, 1985 OK 73, ¶ 5, 737 P.2d 105, 107, cert. denied, 484 U.S. 853, 108 S.Ct. 158, 98 L.Ed.2d 113 (1987). To receive the professional services, the patient agrees to be treated, Scott v. Bradford, 1979 OK 165, ¶ 8-12, 606 P.2d 554, 556-557, and if the patient is unable to give consent, the consent may be implied. Rolater v. Strain, 1913 OK 634, 39 Okla. 572, 137 P. 96. Otherwise, a physician may be liable for assault and battery. Scott, 1979 OK 165 at ¶ 8-12, 606 P.2d at 556-557. Because in Oklahoma a physician is not under a general duty to provide professional services to others, see Jackson v. Mercy Health Ctr., Inc., 1993 OK 155, ¶ 5, 864 P.2d 839, 842, the physician must consent to provide the services. The agreement of the physician to treat and the patient to receive treatment is the basis of the employment contract.

2. Breach of Duty of Care. Generally, expert testimony that a doctor or hospital deviated from the standard of care is necessary to establish causation in a professional liability case. See White v. Burton, 1937 OK 381, 71 P.2d 694; Harder v. F.C. Clinton, Inc., 1997 OK 137, 948 P.2d 298. The rationale for this rule is that a trier of fact must have sufficient technical and scientific evidence at his or her disposal to answer scientific or technical questions of fact. However, when a doctor or a hospital’s lack of care has been such that common knowledge or the experience of laymen is extensive enough to recognize or infer negligence from the facts, expert medical testimony is not required. Boxberger v. Martin, 1976 OK 78, 552 P.2d 370. Expert medical evidence is not required to establish the cause of an objective injury where there is competent evidence, without such testimony, to establish the cause with reasonable certainty.

3. An Injury. This is self-explanatory; the plaintiff must have been damaged by the defendant’s negligence. As a practical matter, a trivial injury may not be worth pursuing because the damages may not justify the expenditure of money for court costs, expert witness fees, and the like.

4. Causation. Plaintiff cannot recover for negligence unless it was the proximate cause of the injuries for which the plaintiff seeks compensation. Jones v. Mercy Health Center, Inc., 2006 OK 83, 155 P.3d 9.The issue of causation involves whether a reasonable person could believe that the defendant’s negligent conduct was a cause of the plaintiff’s injury. McKellips v. St. Francis Hosp., Inc., 1987 OK 69, ¶ 10, 741 P.2d 467, 471. “Absolute certainty is not required.” McKellips, 1987 OK 69, ¶ 11, 741 P.2d at 471. It must be established by expert testimony. Jones, supra.

Remember, this is not legal advice. We probably don’t even know you, and besides that, we generally charge for legal advice.

Limited Liability for Company Debts

One of the principal advantages of forming a LLC is to limit or reduce your personal liability for business bills and debts. In some situations, however, the officers, members and managers may be personally liable for the LLC’s debts and obligations.  When you begin business, many creditors may not extend credit unless you sign a personal guaranty agreement. A guaranty agreement is an express contract that makes you personally liable for the debt or obligation guaranteed.  You can also become liable for the company’s debts or obligations as a result of your own actions. If you disregard LLC formalities or commingle your personal assets or interests with the company’s assets or interests, you can open the door for an adverse party to “pierce the company veil” and render you personally liable for the LLC’s obligations. To avoid such consequences, you should never refer to the LLC as “my” business or “our” business. Such a statement could later be used against you as being a representation that the business was a proprietorship or a partnership rather than a LLC.

Furthermore, it is important to carefully review all contracts, leases, credit agreements and similar documents prior to signing them to ensure that they do not contain hidden personal liability representations or guaranties.  In addition, members, managers, officers, employees or other agents of a LLC are liable for their own negligent conduct when it injures another. Therefore, careful consideration must be given to the need to carry adequate liability insurance.

Payroll Reporting, Withholding and Taxes

The LLC should apply to the Internal Revenue Service for an employer identification number on the required Internal Revenue Service form. Funds collected by the LLC for FICA (social security) and withholding taxes must be paid to the government in accordance with the requirements of the law. Otherwise, those persons who are responsible for the withholding and deposit of such funds will be held personally liable for their nonpayment. This liability is separate and distinct from the liability of the employer.

Disclosure of LLC in Company Transactions

You should at all times do business under the LLC name exactly as specified in the articles of organization. You should not deviate from this name. Accordingly, all letterhead, invoices, receipts and stationery should be ordered to reflect the full and correct company name.  Whenever a person signs on behalf of or for the LLC, he or she should add his or her title next to the signature so that it will be clear that he or she is acting as an agent of the LLC rather than in his or her individual capacity. If you sign a contract and fail to state your relationship to the LLC next to your name in the contract, you may be held personal liable as a party to the contract. A correct signature would be as follows:

[exact name of limited liability company]

By: [signature]

[typed name], [title, e.g., President]

Any loans or banking activities should be conducted in the name of the LLC rather than your own name individually or you may become personally liable for those obligations. Likewise, all leases, contracts and other arrangements concerning your equipment, office premises and furniture should be handled in the same fashion.

Approval of Important Transactions

All important company transactions should be approved by the managers, with a proper resolution or written consent being adopted or executed and inserted into the company’s record book. If an important transaction is entered on behalf of the LLC but without authority, you may have personal liability regarding the transaction.

Distributions by the Company

The Oklahoma Limited Liability Company Act prohibits distributions by a LLC to its members when the company is or would be rendered insolvent (i.e., unable to pay its debts as they fall due) or when the company’s total assets are or would be less than its total liabilities. Improper distributions may be recovered for three (3) years from the date of the distribution. Before declaring a distribution it would be wise to take the necessary steps to determine whether the distribution is lawful.

This is a short summary of a few considerations you should consider, it is not an exclusive list of formalities you must follow to maintain limited liability status.  You should not rely on this short summary exclusively when determining how to operate a company.  If you have any futher questions, don’t hesitate to call.

Cap on non-economic damages. Oklahoma has capped non-economic damages at $350,000.00. This law will apply to tort claims where a party claims such intangibles as “pain and suffering” or “emotional distress.”  This cap can be lifted where the Judge and jury find clear and convincing evidence that a Defendant’s negligent actions were

i.  In reckless disregard of rights of others ii. grossly negligent iii. fraudulent iv. intentional or with malice

The cap is only lifted in negligence cases, not products liability suits, and it does not apply in wrongful death actions.   These types of intentional acts in a negligence case will generally result in a claim that is not covered by insurance, because insurance covers accidental events, not intentional injuries.

The jury will determine damages above the “cap” in a separate part of the trial, after damages have already been determined.  The jury will answer special interrogatories in that proceeding.

Elimination of Joint and Several Liability. Oklahoma is eliminating the doctrine of joint and several liability.  Each defendant pays his own portion of damages, and is not liable for the whole judgment.   This applies to actions that accrue on or after November 1,2011, so it won’t affect pending suits.

Instructions to Juries. Juries will be instructed that the judgment isn’t taxable.  Under federal law, though, punitive damage awards are taxable.  So, if the judgment includes punitive damages, should the instruction be given?  That remains to be seen.

A. No employer may discharge or, except for non-payment of premium, terminate any group health insurance of any employee because the employee has in good faith:

1. Filed a claim;

2. Retained a lawyer for representation regarding a claim;

3. Instituted or caused to be instituted any proceeding under the provisions of this act;

4. Testified or is about to testify in any proceeding under the provisions of this act; or

5. Elected to participate or not to participate in a certified workplace medical plan as provided in this act.

B. No employer may discharge any employee during a period of total disability solely on the basis of absence from work.

C. After an employee’s period of total temporary disability has ended no employer shall be required to rehire or retain any employee who is determined to be physically unable to perform assigned duties. The failure of an employee to rehire or retain any such employee shall in no manner be deemed a violation of this section.

D. No employer may discharge an employee for the purpose of avoid payment of temporary total disability benefits to the injured employee.

E. An employer which violates any provision of this section shall be liable in a district court action for reasonable damages, actual and punitive if applicable, suffered by an employee as a result of the violation. An employee discharged in violation of the Workers’ Compensation Code shall be entitled to be reinstated to his or her former position. Exemplary or punitive damage awards made pursuant to this section shall not exceed One Hundred Thousand Dollars ($100,000.00). The employee shall have the burden of proof by a preponderance of the evidence.

An employer may offer light duty work that the employee is capable of performing rather than pay temporary total disability (TTD) benefits. An employer may change the at-will worker’s hours when offering light duty work without fear of violating 85 OKLA. STAT. § 5 (now codified at § 341). Wal-Mart Stores, Inc. v. Berg, 2004 OK CIV APP 79, ¶ 15, 99 P.3d 1205, 1209.

The Tenth Circuit Court of Appeals stated in Cooper v. Central & Southwest Services that the “Oklahoma Supreme Court would hold that an employer may discharge an employee who is unable to perform his assigned duties under § 5.C (now codified at § 341(C)), but only if that employee is not protected (receiving TTD compensation) by § 5.B (now codified at 341(B)).” 271 F.3d 1247, 1255 (10th Cir. 2001).

In Glasco v. State ex rel. Oklahoma Dept. of Corrections, a state employee was injured on the job and was placed on leave without pay receiving temporary total disability benefits. 2008 OK 65, ¶ 2, 188 P.3d 177, 180. After more than a year of being on leave without pay the Department discharged Glasco pursuant to 74 OKLA. STAT. § 840-2.21. Id. ¶ 4, 188 P.3d at 181. The employee subsequently brought suit against the employer alleging retaliatory discrimination under 85 OKLA. STAT. §§ 5-7 (now codified at § 341). Id. ¶ 5, 188 P.3d at 181. The Oklahoma Supreme Court removed any conflict between § 840-2.21(D) and § 5(B), and harmonized the statutes by giving force and effect to the proviso added by the 2002 amendment to § 840-2.21(D): “Notwithstanding the provisions of Section 1 et seq. of Title 85 of the Oklahoma Statutes.” Id. ¶ 17, 188 P.3d at 184. Thus, “§ 840-2.21(D) shall govern instead of § 5(B) when a state employee has been on leave without pay for a year.” Id.

Does an insurer’s refusal to unconditionally tender partial payment of UIM benefits amount to a breach of the obligation to act in good faith and deal fairly when (1) the insured’s economic/special damages have been fully recovered through tortfeasor’s liability insurance; (2) the insurer promptly investigates and places a value on the claim; (3) there is a legitimate dispute regarding insured’s noneconomic/general damages; and (4) benefits due have not been firmly established?

The insured had received compensation from the tortfeasor’s insurer in excess of her economic/special damages. GEICO determined the insured was entitled to some amount of UIM benefits under the GEICO policy for the noneconomic/general damage element of her claim. The Court noted that the distinction between these two damage elements is important. The parties could not agree on an appropriate value for the insured’s general damage claim; thus, a legitimate dispute arose. GEICO’s refusal to issue an advance payment on the insured’s UIM claim presented a scenario far different than one involving a request for partial payment needed to satisfy unpaid medical expenses, lost wages, or other economic/special damages–cases where the impact of the loss is direct, immediate, and measurable with reasonable certainty. The only portion of the claim remaining after payment from the tortfeasor were those indeterminate sums attributable to “general damages.”

If GEICO had refused to pay medical bills, lost wages, or other items, the result could have been different.

As a result of settlements, counsel for many defendants were asking plaintiffs and their lawyers to indemnify the defense for all medical bills, medical liens, and government claims to shift liability for the Medicare Secondary Payor Act (“MSPA”) which allows the federal government to prosecute subrogation claims for double damages against both the attorney for the plaintiff and defendant for a failure to properly set aside proceeds of a settlement for future medical expenses.

1. High caliber and intelligent lawyers, paralegals, and staff that have practical and common sense knowledge of best litigation practices;
2. Well respected ethical lawyers with substantial experience in high profile and large loss matters;
3. Services performed by lowest hourly rate personnel qualified for the task when appropriate;
4. Technology such as video conferencing used to avoid travel expenses when possible;
5. No charges for filing services;
6. No charges for transcription or word processing;
7. No charges for file management;
8. Voice messages emailed to smart phones when out of the office;
9. Email available on smart phones while out of the office;
10. Combine multiple tasks when possible for efficiency;
11. Twenty-four hour a day service if needed;
12. Legal assistants available to answer questions when lawyers are out of the office;
13. Hourly rate discounts for high volume clients;
14. Specialized training and experience in a number of practice areas;
15. Accident and casualty response teams;
16. No block billing; and
17. No charges for clerical functions.