Gomes v. Hameed

¶ 1 The determinative issues are whether: 1) statutory immunity pursuant to the Good *482Samaritan Act, 76 O.S.2001 § 5 et seq., precludes recovery against a doctor who attempted to provide care to an emergency room patient with whom he had no contractual relationship; and 2) an agreement not to sue negotiated on behalf of a minor and/or incapacitated person requires court approval to be enforceable. We hold that the doctor is entitled to statutory immunity and that such an agreement requires court approval.

FACTS

¶ 2 On June 8, 2001, seventeen year old Georgette Gomes (patient), who was in her twenty-fourth week of pregnancy when she went into premature labor, was transported to Presbyterian Hospital (hospital) in Oklahoma City, Oklahoma from Memorial Hospital in Chickasha, Oklahoma. In the course of treatment, she was given magnesium sulfate intravenously to delay and control her contractions.

¶ 3 Between 8:52 and 8:56 a.m. on June 9, 2001, she delivered twins. Sometime after 9:55 a.m., she stopped breathing and a code blue was called at 10:18 a.m. The appellees, Dr. Akhtar Hameed, (Hameed) and Jennifer L. Miles Holter, (Holter)(doctors) responded to the code blue. At the time, Dr. Holter was a resident participating in the University of Oklahoma College of Medicine Residency Program and Dr. Hameed was a solo practitioner visiting the labor and delivery department of the hospital "doing records and caring for his own patient." The patient was resuscitated, but she suffered permanent brain damage.

¶ 4 On August 30, 2001, Joe Womack, as guardian ad litem on behalf of the patient filed suit against the hospital for negligence. According to both doctors, sometime in February of 20083, about a month before the hospital trial began, they entered into an oral contract with the guardian's lawyer John Norman (lawyer/attorney)., They allege that he agreed not to sue them in exchange for their testimony against the hospital. The lawyer contends that he merely said when asked whether he was going to sue the doe-tors, that he "had no plans of doing so." Although the doctors complied with the agreement, the cause ended in a verdict in favor of the hospital on March 12, 2003.

¶ 5 After he failed to recover against the hospital, the guardian ad litem, on behalf of Georgette Gomes, filed a wrongful death/negligence action against the doctors on June 5, 2008. She died on July 29, 2008, and the case was ultimately dismissed without prejudice.1 On September 22, 2004, the appellees, the patient's parents and the father of her minor child acting as co-guardians (guardians) and represented by the same lawyer who sued the hospital, brought a wrongful death/negligence action against the doctors, asserting claims on her behalf and on behalf of her surviving child and parents.

¶ 6 On October 4, 2005, Doctor Holter filed a motion for summary judgment arguing that the cause should be dismissed because: 1) the attorney had breached the agreement not to sue; 2) even if the agreement were unenforceable due to lack of consideration, promissory estoppel precluded a lawsuit; and 8) the statute of frauds was inapplicable because the contract was performed within a year.2 On October 26, 2005, Dr. Hameed *483also filed a motion for summary judgment arguing that: 1) he had entered into an agreement not to sue with the lawyer which had been breached; and 2) pursuant to 76 0.§$.2001 § 53 and 59 0.9.2001 § 5184, he was immune from lability.

¶ 7 On December 28, 2005, the trial court entered separate orders granting summary judgment in favor of the doctors without explaining the basis of its decision. The Court of Civil Appeals affirmed the trial court, determining that the doctors were entitled to summary judgment as a matter of law based on the agreement not to sue them made by counsel for the guardian of the patient to secure their assistance in the guardian's suit against the hospital. We granted certiorari on February 20, 2007.

I.

¶ 8 THE ABSENCE OF A CONTRACTUAL RELATIONSHIP WITH AN EMERGENCY ROOM PATIENT ENTITLES A DOCTOR TO STATUTORY IMMUNITY FROM CLAIMS OF NEGLIGENCE PURSUANT TO THE GOOD SAMARITAN ACT, 76 0.8.2001 § 5 et seq.

¶ 9 Doctor Hameed argues that summary judgment should have been entered in his favor because, as a matter of law, he is statutorily immune from liability. He alleges that our decision in Jackson v. Mercy Health Center, Inc., 1998 OK 155, 864 P.2d 839, is dispositive of the issue. The lawyer contends that Jackson is distinguishable on its facts and that even if it weren't, because Hameed did not render any care, he cannot invoke statutory immunity. Although the lawyer had apparently alleged in a previous lawsuit that "the fluid containing magnesium sulfate *484was given by Defendant Akhtar Hameed,"5 now he insists that Hameed was negligent because, by his own admission, he merely observed what was happening, rather than providing proper care.6

¶ 10 The immunity statutes at issue are 76 0.9.2001 $ 57 and 59 0.8.2001 § 518.8 Title 76 0.$.2001 § 5 is known as the Good Samaritan Act (the Act). It provides statutory immunity from acts of negligence when a physician renders or attempts to render emergency care.9 In Jackson v. Mercy Health Center, Inc., 1998 OK 155, 864 P.2d 839, the Court addressed the issue of whether the Good Samaritan Act, 76 0.98.1991 § 5,10 cloaked the hospital with statutory immunity from Hability for its personnel's allegedly negligent attempt to render medical aid to a hospital visitor. There, the visitor, while accompanying his pregnant wife to the operating room became dizzy and the hospital personnel helped him to take a seat. After being seated, but not secured, he fell and was injured. The visitor sued the hospital for negligence.

¶ 11 The hospital asserted that it was statutorily immune from liability pursuant to the Act. The Jackson Court recognized that the Act had abrogated the common-law reseue doctrine for medical providers in an effort to encourage them to risk assisting strangers in need of help when they had no duty to render aid. The Act provided immunity from liability for negligence to all those health care providers who, while not contractually bound to assist an injured person, render, or attempt to render, care in good faith.

¶ 12 The Court noted that Good Samaritan immunity rests on three elements: 1) the absence of a prior contractual relationship between the rescuer and the injured person; 2) the characterization of the rescuer's act as having been done in good faith, voluntarily and without compensation; and 3) the injured person's apparent need of emergency medical aid. The Court also noted that rescue is not limited to any particular place, but that it may occur anywhere--including a hospital.

¶ 13 The Jackson Court did not address what actions were required to qualify as rendering or attempting to render emergency care.11 It did determine that the Act's immunity was inapplicable in the context of a hospital/patient relationship because the Act expressly requires the absence of a prior contractual relationship between the reseuer and the injured person. No hospital is ever a Good Samaritan vis-a-vis its own patient. However, the Court concluded that under the facts of that cause that: 1) the visitor had no contractual relationship with the Hospital which would make him a patient and thus take him out of the range of statutory immunity; and 2) the hospital was clearly responding to an apparent emergency which called for immediate action.

¶ 14 Here, Georgette Gomes was not that of a visitor, invitee, licensee, or trespass*485er. Her status was that of a patient with a contractual relationship to the hospital and its staff. Nevertheless, Jackson's rationale applies to these facts because she was not his patient: Dr. Hameed had no direct contractual relationship with her; he did not work for the hospital; and he merely happened to be at the emergency room going through records and visiting his patient when the code blue was called.

¶ 15 Whether Dr. Hameed administered the alleged overdose12 or, as he contends, responded to the emergency call, and went into the room in an attempt to render aid, but found himself an observer of the multiple doctors and nurses who were in the room already assisting the patient, we agree that Jackson is dispositive. The doctor's conduct qualifies as rendering or attempting to render care, thus invoking the statute's protection from claims of negligence. Because the doctor is statutorily immune from claims of negligence under the Good Samaritan Act, we need not address his alleged immunity pursuant to 59 0.98.2001 § 518.13

II.

¶ 16 AN AGREEMENT NOT TO SUE WHICH WAS NEGOTIATED ON BEHALF OF A MINOR AND/OR INCAPACITATED PERSON REQUIRES COURT APPROVAL TO BE ENFORCEABLE.

¶ 17 Although Dr. Hameed is protected by statutory immunity, Dr. Holter does not qualify for such immunity. As stated earlier, the Good Samaritan Immunity Act is based on three factors. Unlike Dr. Hameed, Dr. Holter did have a contractual relationship with the patient in that Dr. Holter was a resident working in the hospital in which the patient was being treated. Because the Jackson Court found that this. Act does not apply to the traditional hospital/patient relationship, and because Dr. Holter does not hold the status as "visitor" as was the case for Dr. Hameed, Dr. Holter does not qualify for immunity. Nevertheless, she argues that summary judgment was proper because: 1) no substantial controversy exists regarding the alleged agreement not to sue; and 2) an attorney's actions bind the client without regard to age or incapacity. The lawyer insists that an agreement never existed and that even if it did, it would be unenforceable without court approval.

¶ 18 A contract is an agreement to do or not to do a certain thing.14 Every contract results from and offer and acceptance.15 The facts are clearly disputed as to whether an offer was made, much less accepted.16 The question of whether the minds of the parties ever met in complete agreement is a question of fact for the jury.17 Because the issue of the existence of a contract is a question of fact,18 summary judg*486ment was premature.19

¶ 19 Nevertheless, a novel question remains as to whether such an agreement is enforceable. The doctor argues that an attorney may act as an agent of a client but she provides no authority under which an attorney has been allowed to waive the right to sue on behalf of a minor or incapacitated person-nor does research reveal any controlling authority.

¶ 20 The lawyer relies on Creech v. Melnik, M.D., 147 N.C.App. 471, 556 S.E.2d 587 (N.C.App.2001), a similar case, as persuasive authority to illustrate that the alleged agreement is unenforceable without court approval. In Creech v. Melnik, supra, the North Carolina Court of Appeals decided a case which involved parents who, in their capacity as guardians ad litem, brought a medical malpractice action against a doctor alleging that the doctor provided negligent treatment to their son. Before filing the action, the plaintiff's attorney spoke with the doctor on several occasions, allegedly assuring the doctor that they would not sue her if she spoke with him concerning the events surrounding the child's birth. The trial court granted summary judgment in favor of the doctor under the affirmative defenses of equitable estoppel and breach of implied contract not to sue. After the cause was remanded on appeal, a jury returned a verdict in favor of the doctor on the grounds that the plaintiffs breached their implied contract not to sue. The plaintiffs appealed, arguing that: 1) the attorney did not have the authority to contract on behalf of the minor; and 2) there was no evidence which showed that a court had reviewed and approved the alleged contract on behalf of the minor.

¶ 21 In Creech v. Melnik, supra, the appellate court determined that court approval was required to create a valid contract involving a minor. Because the record showed no evidence that the "implied" contract with the subject minor was investigated and approved by a court, it reversed the jury verdict. The court reasoned that court investigation and approval were necessary because:

1) historically, courts have provided special protections for minors in general contractual relations which allowed contracts to be avoided or disaffirmed;

2) infants are regarded as entitled to special protection of the State as wards of the court because courts are the supreme guardians of all infants and their personal and property rights;

3) courts have the inherent authority over the property of infants and will exercise jurisdiction whenever it is necessary to preserve and protect children's estates and interests;

4) settlement of a minor's tort claims are effective only after judicial examination and adjudication; and

5) a next of friend, guardian ad litem, or guardian cannot consent to a judgment or compromise without investigation and approval by the court.

¶ 22 We need look no further than our case law and statutes to reach the same result as the Creech Court. A guardian is a person appointed by the court to care for the person or property of another.20 A *487guardian ad litem is a person appointed by the court to assist the subject of a proceeding in making decisions or to make decisions when the subject of a proceeding is incapable of making decisions even with assistance.21 A minor is a person under the age of 18,22 and an incapacitated person is one who is physically or mentally impaired.23 We have long recognized that minors and incompetent or incapacitated persons are the special wards of the court and that a guardian ad litem of a minor child is the arm of the court extended to persons unable to look after their own interests.24

*488¶ 28 A court has broad authority to appoint a guardian ad litem for a minor's protection whenever necessary to defend the interests of a minor.25 A guardian ad litem is not permitted to waive any of the substantial rights of the ward or to consent to anything which would prejudice the minor's rights.26 Upon appointment, a guardian (I'd litem becomes an officer of the court and is charged with the duty of protecting the rights of a minor for the State in its role as parens patriae.27 It is the duty of the court to guard with jealous care the interests of minors in actions involving their rights and every presumption is indulged in favor of the minor. If a guardian ad litem fails to properly discharge their duty, it becomes the imperative duty of the court to protect the infant's rights.28

¶ 24 In Hamilton By and Through Hamilton v. Vaden, 1986 OK 36, ¶ 12, 721 P.2d 412, we addressed whether the minority of a surviving child tolled the limitation period for a wrongful death suit and described the general policy of protection of minor's interests. The Court noted that:

... The mere existence of a guardian ad litem or next friend does not remove from the court's consideration the infirmities caused by the child's minority. It is the policy of the law generally, and of our statutes in particular, to protect minor litigants' interests. Oklahoma law places an affirmative duty on the courts to preserve and protect the rights of a minor even when the child is represented by a guardian ad litem or next of friend.

A guardian ad litem, or next friend, is not permitted to waive any of the substantial rights of the ward or to consent to anything which would prejudice the minor's rights. If the appearance of a next friend sufficed to remove the minority-based disability of the child, these added protections would be unnecessary.. ..

It is the duty of the courts sedulously to guard the rights of minors. No presumption against an infant is permitted; rather every presumption is indulged in his/her favor. A guardian ad litem must present every issue available on behalf of the child. 'If the guardian fails properly to discharge the duties of guardianship, the responsibility devolves upon the courts acting on behalf of the state to protect the best interest of the child. Courts cannot assume that parents will act effectively to protect the rights of their children; and it is neither reasonable nor realistic to rely upon parents (who may themselves be minors, or who may be ignorant, lethargic, or unconcerned) to bring an action within the time provided. It is equally unreasonable to expect a minor, whose parents fail timely to vindicate hig/her legal rights, independently to seek out another adult willing to serve as next friend. To do so would ignore the realities of the family unit and the limitations of children.. ..

¶ 25 In Lambert v. Hill, 1937 OK 331, ¶ 9, 73 P.2d 124, an attorney and a guardian ad litem entered into a release and satisfaction of a judgment on behalf of a minor. The Court recognized that the weight of authority supported the doctrine that a compromise or agreement of satisfaction entered into on behalf of a minor would require consent and *489approval of a court. Even though the agreement was not presented to the trial court at the time it was made, it was later reviewed at a hearing and approved by the trial court. Consequently, the transaction was affirmed on appeal.

¶ 26 Although many of our cases involve minors, the same rationale that supports protection of minors also supports protection of incapacitated or incompetent persons. Whenever a minor or incapacitated person is involved in cireumstances which give rise to legal action, suit must be brought by a representative to ensure that their interests are protected.29 An infant's right to rescind a contract is unaffected by approval or consent by a parent.30 Pursuant to 30 0.8.2001 § 4-702, when a guardian compromises and settles a lawsuit on behalf of the ward, the settlement is subject to court approval.31

¶ 27 It would be incongruous to require court approval of compromises and settlements of legal actions or agreed releases and satisfactions in settlement of judgments on behalf of minors or incapacitated persons, but allow a covenant not to sue or a release of a cause of action on behalf of a minor or incapacitated person to remain enforceable without court investigation or approval. En-foreement without court approval would allow the court to abandon its duty to guard the interests of minors in actions involving their rights. However, Lambert v. Hill, supra, illustrates that the contract need not be approved before the exchanged promises are performed. While we hold that an agreement not to sue which is negotiated on behalf of a minor or incapacitated person must be approved by the court to be enforceable,32 there is no impediment to having such a contact tendered for judicial approval upon remand.33

¶ 28 Neither the United States Constitution nor the Constitution of the State of *490Oklahoma delineate the effective date of judicial opinions. We may give prospective operation to our announcements when necessary to avoid disruption and to allow a period of adjustment.34 In making such a determination, we must consider: 1) the purpose of the new rule; 2) the extent of reliance on old doctrines; and 3) the burden likely to be imposed on administering the legal process due to additional litigation or curative actions.35 A weighing of these factors persuades us to give today's pronouncement effect in this cause and to prospectively govern those clams which arise after the effective date of today's pronouncement.

CONCLUSION

¶ 29 Title 76 O.S.2001 § 536 has been applied where no prior contractual relationship existed with the person in need of emergency care. The undisputed facts show that nature of the relationship between Dr. Hameed, the hospital and the patient entitle the doctor to the application of § 5 to provide statutory immunity as a matter of law. Consequently, summary judgment on this issue is affirmed.

¶ 30 nsofar as Dr. Holter is concerned, disputed facts exist regarding whether a contract not to sue was entered. Nevertheless, even if a contract were agreed upon, the courts have a duty to protect the interest of minors and incapacitated and incompetent persons. This duty requires that an agreement not to sue allegedly negotiated on behalf of a minor and/or incapacitated person be investigated and approved by the court before any substantial rights are waived or the minor's rights are prejudiced. However, there is no impediment to the trial court approving such an agreement, if it exists, on remand. Today's ruling governs this cause and prospectively those claims which arise after the effective date of today's pronouncement.

TRIAL COURT REVERSED IN PART;, AFFIRMED IN PART, AND REMANDED.