Every year, it seems we have at least one claim that is the failure to provide timely notice under the Oklahoma Governmental Tort Claims Act, 51 O.S. §151 et seq. Usually, we see this problem in the context of a claim against a medical provider, such as an ambulance service or even a hospital. By the time plaintiff’s counsel finds out the defendant is considered a political subdivision under the Oklahoma Governmental Tort Claims Act, the statute of limitations has expired.
The law on this issue in Oklahoma is unforgiving. Title 51 O.S. §156 provides that if notice is not given to the state or political subdivision within one year the claim is forever barred.
Here are some recommendations to avoid this potential problem:
- Once you agree to represent the plaintiff, begin searching for the identity of the defendant immediately. Double check to see if the entity is a political subdivision or if the employee responsible is employed by a political subdivision and was acting within the scope of their employment with the political subdivision.
- File the lawsuit as soon as possible and well before the statute of limitations. File early enough you can hopefully ascertain any problems with the identity of your defendant and correct it before the statute of limitations expires.
- When you file early, send discovery with the petition designed to identify if the defendant is either a political subdivision or an employee of a political subdivision.
- If you file on the eve of statute of limitations and a motion to dismiss is filed based on the contention you have failed to provide timely notice to a political subdivision, initiate discovery immediately to test the defendant’s contention that the defendant is a political subdivision. You may be able to show the entity is not a political subdivision pursuant to 51 O.S. §152. Do not wait until the hearing on the motion to dismiss. If you initiate discovery right away after receiving the motion to dismiss, the court is more likely to grant you leave to conduct discovery on the identity issue prior to ruling on the motion to dismiss.