Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02555-JLK-BNB

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LEXSEE 1993 TENN. APP. LEXIS 374 JANICE F. WILSON, Plaintiff/Appellant, v. H.C.A. SOUTHERN HILLS MEDICAL CENTER, Defendant/Appellee. No. 01A01--9211--CV-00460 COURT OF APPEALS OF TENNESSEE, WESTERN SECTION, AT NASHVILLE 1993 Tenn. App. LEXIS 374 May 26, 1993, Filed PRIOR HISTORY: [*1] From the Circuit Court of Davidson County at Nashville. Honorable Hamilton Gayden, Judge DISPOSITION: REVERSED AND REMANDED

COUNSEL: For Plaintiff/Appellant: Lionel R. Barrett, Jr., Robert J. Turner, Lionel R. Barrett, Jr., P.C., Nashville. For Defendant/Appellee: C. J. GIDEON, JR., Linda Gibbons Willis, Gideon & Wiseman, Nashville. JUDGES: FARMER, TOMLIN, CRAWFORD OPINIONBY: FARMER OPINION: This appeal is from the trial court's grant of summary judgment in favor of Appellee. In January 1991, Appellant, Janice F. Wilson, was admitted to H.C.A. Southern Hills Medical Center (H.C.A.), Appellee, where she underwent a hysterotomy to remove the body of her deceased infant. A preoperative diagnosis of intrauterine fetal demise was rendered after an ultrasound, prior to admission, revealed no fetal heart tones. After the stillbirth, Ms. Wilson received certain documents from H.C.A. One was a "Certificate of Birth" which indicated the birth weight and length of the infant and displayed his footprints. The other was a "crib card," stating "I'm a boy!", and once again providing the infant's weight and length and also his head and chest measurements. n1 (Copies attached as Appendix to opinion.) n1 In Ms. Wilson's complaint, she claims receipt of these documents by H.C.A.'s employees, on or about January 16, 1991, during her admission at the hospital. In her affidavit, however, she asserts that the items were mailed to her in care of a relative. [*2] Ms. Wilson filed a complaint against H.C.A. alleging outrageous conduct and intentional and negligent infliction of emotional distress resulting from the hospital's actions in providing these documents. Ms. Wilson claimed that such conduct was outrageous in character and so extreme in degree that it could not be tolerated in a civilized society. She further alleged that the conduct was intentional and designed to inflict severe emotional distress, and finally, that such conduct constituted negligence on behalf of H.C.A.'s employees in that they knew or should have known that the delivery of the documents would result in serious and severe mental injury to her. As a proximate result of such conduct, Ms.

Case 1:00-cv-02555-JLK-BNB

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Wilson alleged "serious and severe mental injury and damages." In response, H.C.A. filed a motion for summary judgment and included the affidavit of Kelly Bacon, an MSW employed at H.C.A. since July 1990. Bacon asserted that she was "familiar with the accepted standard of hospital practice in responding to stillbirths or neonatal deaths as that standard existed in [January 1991]," and that in her opinion, H.C.A. complied with the standard. Bacon stated that H.C.A.'s policy is to provide [*3] certain publications to families who have endured miscarriages, neonatal deaths or stillbirths to assist in the bereavement process. Two publications routinely provided are "When Hello Means Good--Bye," recognized in the field of perinatal loss, and a pamphlet entitled "Sharing." The former text suggests that it is helpful to the bereaved parent to acquire "certain keepsakes" to remind them of their child. The keepsakes listed include a set of footprints or handprints, a birth certificate, a lock of hair, a picture of the baby, the plastic arm bracelet identifying the child and a record of the weight, length and head and chest measurements of the baby. In her affidavit, Bacon refers to the "bereavement checklist" maintained for Ms. Wilson. This checklist, made part of the record, indicates that Ms. Wilson also received a photograph, birth certificate, footprints, lock of hair, crib card, tape measure revealing the child's length and head circumference and name bands. The affidavits of Ms. Wilson and her mother, Ruby Taylor, were filed in response to H.C.A.'s motion. In both affidavits, it is asserted that Ms. Wilson did not receive the publications "When Hello Means Good--Bye" and [*4] "Sharing" and that she was not counseled by Ms. Bacon. The trial court granted H.C.A.'s motion for summary judgment on the ground that no genuine issue of material fact existed. The sole issue presented for review is whether the trial court erred in granting H.C.A.'s motion for summary judgment, which is to be granted only when it is shown that no genuine issue as to any material fact exists and that the moving party is entitled to a judgment as a matter of law. Rule 56.03 T.R.C.P. In determining whether a genuine issue exists, the trial court and this Court must look to all the evidence, take the strongest legitimate view of it in favor of the nonmoving party and, allowing all reasonable inferences from it in his favor, discard all countervailing evidence. Dooley v. Everett, 805 S.W.2d 380 (Tenn. App. 1990). If no disputed issue of material fact exists, then summary judgment should be granted by the trial court and sustained by the court of appeals. Graves v. Anchor Wire Corp., 692 S.W.2d 420, 421 (Tenn. App. 1985) (citing Bennett v. Mid--South Terminals Corp., 660 S.W.2d 799 (Tenn. App. 1983)). [*5] We first address Ms. Wilson's claim of intentional infliction of emotional distress by means of outrageous conduct. In Ms. Bacon's affidavit, she asserts that H.C.A.'s policy and procedure regarding the care of families of stillborn infants, known as "Care of the Family and Disposition of Nenonates Who are Miscarried, Stillborn or Die after Birth" or "Mat70," was in effect during Ms. Wilson's admission to H.C.A. Pertinent provisions of Mat--70, a copy of which was attached to the affidavit, read as follows: When a diagnosis of death in utero is made, careful counseling with the family should begin before delivery. When possible, a copy of When Hello Means Good--bye should be given to the family "before delivery." Every attempt should be made to guide the natural grieving process. All nursing staff will be familiar with the contents of the bereavement packet and the book When Hello Means Good--bye so they may offer maximum support to the family as well as understand their own grief. .... A. Support of Family 1. Obtain a Bereavement Packet for the family. Complete the Bereavement Checklist . . . for mother's chart and the Family Support Form to be filed in [*6] the Bereavement file in the Nursery for follow-up. 2. Obtain footprints, lock of hair, weight, length, head circumference, two Polaroid photographs (One with and one without blanket) and "Medical Photograph" . . . . 3. Encourage parents to see the baby REGARDLESS OF ITS APPEARANCE. 4. Give the parents their portion of the Bereavement Packet: "we remember. . ." birth certificate

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When Hello Means Good--bye Bibliography for Bereaved Parents SHARING Information With regard to this policy and H.C.A.'s treatment of Ms. Wilson, Ms. Bacon asserts the following in her affidavit: By experience and training, I am familiar with the accepted standard of hospital practice in responding to stillbirths and neonatal death as that standard existed in January of 1991. I have reviewed the original chart for the admission of Janice Wilson to [H.C.A.] in January of 1991, with particular attention to the bereavement checklist which is a portion of that chart. I have also reviewed Policy MAT-70. In my opinion, [H.C.A.] complied with the accepted standards of professional practice in January of 1991 in furnishing Janice Wilson with the certificate of birth and the crib card, Exhibits # 1 [*7] and # 2 to the Complaint, and in furnishing her with the other materials noted on the bereavement checklist. The medical records of Ms. Wilson indicate that Ms. Bacon conversed with Ms. Wilson on January 17, 1991 and that Bacon "provided emotional support" and Ms. Wilson "voiced no concern at this time." Further progress notes of Ms. Bacon indicate that, on January 18, 1991, she "met with [Ms. Wilson], allowing [her] to ventilate feelings. [Ms. Wilson] tearful throughout interview, but appears to be grieving appropriately with respect to current loss. Provided [Ms. Wilson] with information regarding support group for mothers who have experienced infant loss. [Ms. Wilson] given number for contact person at 'Sharing.' [Ms. Wilson] voices no concerns at this time." The intrapartum record indicates that Ms. Wilson received the publication "When Hello Means Good-bye" and a support group pamphlet on January 15, 1991. The records further indicate that Ms. Wilson refused to see the infant, but did provide a name for him. "In order to sustain a motion for summary judgment, a defendant must offer evidence which, if not controverted, would entitle that defendant to dismissal." Highfill v. Baptist Hosp. Inc., 819 S.W.2d 436, 439 (Tenn. App. 1991). [*8] In the instant case, the evidence is contradicted by the two affidavits presented on behalf of Ms. Wilson. Ms. Wilson's affidavit reads, in pertinent part, as follows: At the time I was admitted to [H.C.A.] in January of 1991, I did not receive publications entitled "When Hello Means Goodbye" or "Sharing." I did not receive any written material dealing with the fact that my child was still--born and did not survive my pregnancy. I further did not receive counseling by Kelly Bacon as is set forth in the Affidavit that she has submitted to the Court. Ms. Taylor's affidavit reiterates her daughter's assertions that counseling was not afforded, either in the form of direct communications or publications (except for the items that were mailed), to assist Ms. Wilson in the bereavement of her child. After reviewing the evidence presented in this case, we conclude that there is a conflict between the parties as to whether Ms. Wilson received counseling regarding the documentation she was given. The question then becomes whether the facts as presented by Ms. Wilson are sufficient to support her cause of action and entitle her to damages. If so, then there is a dispute as to [*9] a material fact. See, Highfill, 819 S.W.2d at 439. If the evidence shown by Ms. Wilson does not demonstrate facts entitling her to succeed in this case, then the disputed facts are immaterial. Id. To constitute outrageous conduct, this Court in Gann v. Key, 758 S.W.2d 538, 546 (Tenn. App. 1988) held: These factors are set out in the Restatement of Torts(2d), sec. 46, '"Outrageous Conduct Causing Severe Emotional Distress". "(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm results from it, for such bodily harm." Clarification of this statement is found in the following comment: "d. Extreme and Outrageous Conduct. The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even

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that his conduct is characterized by 'malice', or a degree of aggravation which would [*10] entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly untolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous.' "The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities." Gann, 758 S.W.2d at 544 (quoting Medlin v. Allied Investment Co., 217 Tenn. 469, 398 S.W.2d 270 (Tenn. 1966). Reviewing the evidence in the light most favorable to Ms. Wilson, the record would show that she received the aforementioned documents, either during her admission to H.C.A. or while at home, through the mail, without the benefit of counseling. We find these facts sufficient to support Ms. Wilson's claim for intentional infliction of emotional distress by means of outrageous conduct and conclude that the disputed facts [*11] are material. When the evidence or proof in support of or in opposition to a summary judgment motion establishes a disputed fact, and the fact is material, . . . the court must then determine whether the disputed material fact creates a genuine issue within the meaning of Rule 56.03. . . . The test for a 'genuine issue' is whether a reasonable jury could legitimately resolve that fact in favor of one side or the other. If the answer is yes, summary judgment is inappropriate; . . . ." Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). We hold that a jury could reasonably find that the actions of H.C.A., through its employees, constituted outrageous conduct as previously defined by our supreme court. We, therefore, conclude that there exists a genuine issue of material fact and that the trial court erred in granting summary judgment in favor of H.C.A. as to this cause of action. We now address Ms. Wilson's claim of negligent infliction of emotional distress. Our threshold consideration is whether this action sounds in simple negligence or medical malpractice. Depending on the authority and the circumstances of the case, a hospital may be liable based [*12] on theories of negligence, malpractice, contract, or express or implied warranty. While it has been held that a hospital may be liable for negligence, but not for medical malpractice, since it is not a person licensed as a physician, it has also been held that an action against a hospital may be premised on either simple negligence or medical malpractice, depending on the nature of the conduct involved. Where the lack of due care may be discerned on the basis of common knowledge, the action sounds in simple negligence; if professional skill and judgment are involved, the more particularized theory of medical malpractice applies. 41 C.J.S. Hospitals § 24 (1991). Prior to its repeal in 1985, T.C.A. § 29--26--102(4) and (6) allowed hospitals as "health care providers" to be sued for medical malpractice. See, Burris v. Hosp. Corp. of America, 773 S.W.2d 932, 934 (Tenn. App. 1989). Since its repeal, malpractice actions continue to be brought in Tennessee against hospitals. See, Jernigan v. Coffee County Hosp. Group, Inc., No. 89-407--II (Tenn. App. April 27, 1990). In her complaint, Ms. Wilson states: the conduct of the employees of [H.C.A.] [*13] in providing [Ms. Wilson] with the [Certificate of Birth and Crib Card] was negligent in that they knew or should have known that the delivery of this documentation would cause [her] serious and severe mental injury. [H.C.A.] through its employees and agents, had a duty to [Ms. Wilson] to refrain from any conduct that might elevate the horrible anguish [Ms. Wilson] has suffered as a result of giving birth to a dead baby.

Case 1:00-cv-02555-JLK-BNB

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In her affidavit, Ms. Wilson asserts that she was not afforded counseling. She argues that H.C.A. deviated from the standard of accepted professional care in the handling of the bereavement for stillbirth parents. We conclude that H.C.A.'s "professional skill and judgment" are at issue in this case and treat the action as one for medical malpractice. A claimant's burden of proof in a medical malpractice case is governed by T.C.A. § 29-26--115 as follows: Claimant's burden in malpractice action - Expert testimony ---- Presumption of negligence - - Jury ---instructions. ---- (a) In a malpractice action, the claimant shall have the burden of proving by evidence as provided by subsection (b): (1) The recognized standard of acceptable professional practice in the profession [*14] and the specialty thereof, if any, that the defendant practices in the community in which he practices or in a similar community at the time the alleged injury or wrongful action occurred; (2) That the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with such standard; and (3) As a proximate result of the defendant's negligent act or omission, the plaintiff suffered injuries which would not otherwise have occurred. The only evidence presently in the record as to the standard of care is contained in Ms. Bacon's affidavit filed in support of the motion for summary judgment. As heretofore noted, she states that, by experience and training, she is familiar with the accepted standard of hospital practice in responding to stillbirths. In her opinion, H.C.A. complied with the accepted standards of professional practice in January 1991 in furnishing Ms. Wilson with the certificate of birth, the crib card and in furnishing her with the other materials noted on the bereavement checklist. Her opinion is not refuted and her qualifications to render this opinion are not challenged. However, Ms. Wilson's affidavit states that she did not receive [*15] any of the material other than the birth certificate and crib card, which was mailed to her in care of a relative, thus creating a genuine issue of material fact. Thus, certain of the facts relied upon by Ms. Bacon to establish that the hospital followed the standard of care are in dispute. Therefore, we find that it was error for the trial court to grant summary judgment as to this cause of action. The judgment of the trial court granting summary judgment in behalf of the defendant is reversed and this cause is remanded. Costs of this cause are taxed to the defendant, for which execution may issue if necessary. FARMER, J. TOMLIN, P.J., W.S. (Concurs) CRAWFORD, J. (Concurs) [SEE APPENDIX IN ORIGINAL]