Free Response to Motion - District Court of Colorado - Colorado

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

Document 84-10

Filed 06/19/2006

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LEXSEE 1988 KY. APP. LEXIS 164 PAMELA V. SEITZ, APPELLANT v. HUMANA OF KENTUCKY, INC. d/b/a HUMANA HOSPITAL AUDUBON, APPELLEE No. 87--CA-2511--S Court of Appeals of Kentucky 1988 Ky. App. LEXIS 164 November 4, 1988, Decided PRIOR HISTORY: [*1] APPEAL FROM JEFFERSON CIRCUIT COURT, HON. KEN COREY, JUDGE, ACTION NO. 85--CI-06401 DISPOSITION: REVERSING

COUNSEL: Kenneth L. Sales, Marion E. Taylor Bldg., Louisville, Ky., ATTORNEY FOR APPELLANT. David R. Monohan, Jann B. Logsdon, Louisville, Ky., ATTORNEY FOR APPELLEE. OPINIONBY: WEST OPINION: BEFORE: CLAYTON AND WEST, JUDGES, AND DUNN, SPECIAL JUDGE. WEST, JUDGE. Pamela Seitz appeals from a summary judgment granted to the appellees, Humana of Kentucky, Inc. The facts are as follows. On February 28, 1985, Pam Seitz was admitted into Humana Hospital Audubon as a result of complications with her pregnancy. She had experienced two prior miscarriages and was considered a high risk case. On March 10, 1985, after the premature rupture of her membranes, Seitz began to experience pain and discomfort. Several times that evening and through the night she rang her intercom buzzer complaining to the nurses of her pain. She had been checked at one point and it was determined that her cervix had not dilated and therefore was not in danger of a premature delivery at that time. On the morning of March 11, Seitz continued to experience pain and discomfort culminating in the spontaneous delivery of a stillborn fetus into her bedpan. The actions [*2] of the attending nurses preceding and following this occurrence form the crux of this dispute. Seitz alleges that the nursing staff intentionally deactivated her "buzzer." Those allegations are buttressed by the testimony of her roommate Sandy Hartz. Hartz, in her deposition, testified that during the delivery she repeatedly tried to activate Seitz's buzzer as well as her own but that the light on Seitz's intercom would not operate. For a period of fifteen (15) to twenty (20) minutes they could get no hospital personnel to assist them. Mrs. Hartz then went into the hallway and screamed for help. According to Hartz's testimony, a hospital cleaning woman finally answered her cries. Several nurses responded, including Kathy Knoebel, a nurse from the labor and delivery unit. However, by this time, Ms. Seitz had delivered the child into a bedpan with only the assistance of her roommate. Seitz alleged that Nurse Knoebel yelled at her to shut--up as she was disturbing other patients. Hartz's testimony supported that allegation. She was subsequently hustled out of the room and moved immediately. The appellees do not deny that this exchange occurred, however, their version of the nurse's conduct [*3] is significantly different. Nurse Knoebel testified that her actions were intended to calm Seitz down in order to determine what was causing the problem. She further states

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

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1988 Ky. App. LEXIS 164, *3

that upon her discovery of the fetus she apologized to Seitz. A further factual disagreement exists concerning the exchange as to what was to be done with the fetus. Ms. Seitz testified that Nurse Knoebel was very sarcastic when she asked her what would happen to the baby and stated flatly that the hospital would dispose of it. Nurse Knoebel stated that funeral arrangements were discussed only after Seitz had calmed down and that she enumerated for Seitz the options as to the disposition of the baby's body. The issues to be decided are whether the trial court erred in ruling that the allegations failed as a matter of law to meet the threshold requirements for an action based upon severe emotional distress caused by outrageous conduct and further, whether material questions of fact exist so as to render a summary judgment inappropriate in this action at this point. The tort of outrage has only been addressed in Kentucky in one case, Craft v. Rice, Ky., 671 S.W.2d 247 (1984). In that case, the court adopted Section [*4] 46 of Restatement (2nd) Torts, which requires the following necessary elements: 1) The wrongdoer's conduct was intentional or reckless--the wrongdoer either had the specific purpose of inflicting emotional distress or intended his specific conduct and knew or should have known that emotional distress would likely result: 2) The conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality aimed at limiting frivolous suits and avoiding litigation where only bad manners and hurt feelings are involved: 3) There is a causal connection between the wrongdoer's conduct and the emotional distress: and, 4) The emotional distress is severe. Craft at page 249, citing Moore v. Allied Chemical Corp., (E.D. Va. 1979) 480 F. Supp. 364. The trial court distinguished the instant case from Craft mainly by the fact that in Craft the harassment occurred over an extended period of time. We believe that the trial court's interpretation of Craft is too restrictive. The holding of Craft does not require that the outrageous conduct extend over a long period of time. The case at bar is also clearly distinguishable from the [*5] case cited by the trial court to support its issuance of a summary judgment, Ross v. Burns, (CA 6, 1980) 612 F.2nd 271. The Ross case involved the publication of photographs of an undercover narcotics officer which increased the risk of his recognition in the community and jeopardized his personal safety and efficacy on the job. The facts in the present case are considerably different. The incident that gave rise to the appellant's claims occurred while she was a patient in the hospital being cared for during a problem pregnancy. The exchanges transpired between a nurse and patient while in a hospital room. This is a different situation than a police officer, in public, who has his picture taken and subsequently placed in the newspaper. The facts here disclose a woman who was under a great deal of emotional stress from the time of her admission to the hospital. Further, the appellees knew the appellant was subject to complications. She was twenty (20) weeks pregnant, her membranes had prematurely ruptured, and she had previously experienced two miscarriages. Because of the relationship that exists between a patient and nurse, this action requires a different analysis. A case [*6] cited in Ross which is more applicable to the circumstances of the within action is Rockhill v. Pollard, 290 Or. 54, 485 P.2d 28 (1971). In that case a motorist, whose daughter was unconscious due to an injury in an automobile accident, alleged that Dr. Pollard had acted with extreme and outrageous conduct when he, without examining the child, told the plaintiff that nothing was wrong and that they should wait outside in the middle of the night in freezing weather and seek treatment elsewhere. The court in Rockhill was faced with the same issue now before this court, specifically, what are the threshold requirements to sustain this cause of action. That court stated at page 31: We need a simple test and think it best for this case to merely hold that the conduct must be outrageous in the extreme. It is our impression that the test for liability in these cases can only be worked out on a case to case basis. The court went on to state that when deciding what behavior may be found to be extreme or outrageous, a determination of the special duties owed by a physician to a patient was appropriate. Likewise, in this case, the special duties owed by a nurse to a patient are [*7] important. The Rockhill court framed those duties as follows at page 32: The object of a cause of action as described in § 46 is to compensate for real suffering intentionally or recklessly caused by socially intolerable behavior which invades plaintiff's interest in peace of mind. Certainly a physician who is consulted in an emergency has a duty to respect that interest, at least to the extent of making a good--faith attempt to provide adequate treatment or advice. We think a jury could infer from the evidence that defendant willfully or recklessly failed to perform that duty. In another case from the Supreme Court of Oregon, the court further expressed the need to look at the relationship between the parties as one of the elements of the tort. In Hall v. May Department Stores, Co., Or., 637 P.2d 126 (1981), the court espoused a three part test: 1) Whether the relationship between the defendant and the victim of the alleged tort

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

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is one that imposes on the defendant a greater obligation to refrain from subjecting the victim to abuse, fright or shock than would be true in arm's--length encounters among strangers; 2) Whether the acts alleged against the defendant, if proved, [*8] qualify as extraordinary conduct which a reasonable jury could find beyond the farthest reaches of socially tolerable behavior; and 3) whether there is evidence from which a reasonable jury may find that a disputed relationship in fact existed and that the defendant in fact engaged in conduct meeting the second test. Id. at 130. Based on the above, we hold, therefore, that the conduct alleged by Seitz sufficiently met the threshold requirements of the tort. Furthermore the evidence shows that material issues of fact remain to be answered, i.e. whether or not Seitz's intercom was disconnected; what in fact were the actions of Nurse Knoebel after she entered Seitz's room; and what indeed was the discussion between Seitz and Nurse Knoebel as to the disposal of the body. We therefore conclude that the summary judgment was granted prematurely. As to the matter of the causal connection between the alleged outrageous behavior and the resulting emotional distress, we note the testimony of Dr. Barnes and Seitz creates a factual issue as to causation and resultant damages. In her complaint, appellant raised negligence and contractual issues. The trial court failed to address these matters, [*9] so they are not before us and we will leave them for consideration below. Therefore, this case is REVERSED and REMANDED with directions that it should go forward with discovery and trial. Further, pursuant to CR 76.15(3)(A), the application of CR 76.20 and CR 76.32, as well as other appropriate rules of civil procedure for further appellate steps, is reinstated effective the date of this opinion. ALL CONCUR.