Franklin v. Vencor ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE FILED
September 19, 1997
PAMELA FRANKLIN, ) HAMILTON CIRCUIT
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Plaintiff/Appellant ) NO. 03A01-9704-CV-00121
)
v. )
) HON. SAMUEL H. PAYNE
VENCOR HOSPITAL, ) JUDGE
)
Defendant/Appellee )
) REVERSED and REMANDED
Ronald J. Berke, Chattanooga, for Appellant.
E. Blake Moore, Chattanooga, for Appellee.
OPINION
INMAN, Senior Judge
The complaint was dismissed on a Rule 12.03 motion for judgment on the
pleadings. The plaintiff appeals, insisting that her complaint states a cause of action
under the prevailing law in this jurisdiction. Our review of the findings of fact made
by the trial court is de novo upon the record of the trial court. There is no
presumption of the correctness of the decision of the trial court on a question of law.
NCNB Nat’l Bank v. Thrailkill, 856 S.W.2d 150 (Tenn. Ct. App. 1993).
The complaint was filed in June 1995, alleging intentional infliction of mental
distress resulting from the defendant’s asserted outrageous conduct, described in
this fashion: the plaintiff’s mother was admitted to the defendant Hospital on June
17, 1994, where she died 12 days later. The plaintiff employed a pathologist to
perform an autopsy, but the defendant refused to surrender its medical records of
the deceased to him. On July 1, 1994, the plaintiff filed a complaint in Chancery
Court seeking to compel the hospital to provide copies of its medical records
pertaining to the deceased to facilitate the autopsy. An Order was entered
accordingly, but the Hospital failed to produce all of the records. Following a hearing
pursuant to a contempt citation, the Hospital, despite a warning from the Chancellor,
still failed to produce all of the pertinent records.
An amendment to the complaint was filed in June, 1996. The plaintiff alleged
that the defendant had given conflicting reasons for her mother’s death, and that the
blood and urine specimens should be analyzed by a pathologist to determine
medication levels; she alleged that although the defendant assured her that these
specimens would be transferred with the body for an immediate autopsy, they were
destroyed to prevent an analysis, and the defendant thereafter persisted in covering
up its negligence to the point where it aggressively defied an order of the Chancery
Court to produce its records pertaining to the death of the plaintiff’s mother. The
complaint alleges that the defendant was held in contempt, but still refused to
produce the requisite records.
The plaintiff alleged that the defendant’s actions caused her severe physical
and emotional distress for which she was treated both medically and psychologically,
aggravating pre-existing conditions, and that she is entitled to damages for the
outrageous conduct thus shown.
As heretofore shown, the complaint was dismissed for failure to state a claim
upon which relief can be granted. A proper resolution of such a motion requires that
we assume the truth of all relevant and material allegations and reasonable
inferences drawn therefrom. Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975);
Holloway v. Putnam County, 534 S.W.2d 292 (Tenn. 1976). Dismissal of the
complaint is warranted only when no set of facts will entitle the plaintiff to relief,
Dobbs v. Guenther, 846 S.W.2d 70 (Tenn. App. 1992); Sullivant v. Americana
Homes, Inc., 605 S.W.2d 246 (Tenn. App. 1980).
There can be no doubt that the plaintiff had the right to employ a pathologist
to perform an autopsy to determine the cause of death of her mother. Continuing in
this vein, there can be no doubt that time was of the essence, and the medical
records pertaining to the patient, the fluids and tissue taken from the patient by the
Hospital were indispensable to the autopsy. We assume as true that the Hospital
refused to produce these vital elements, and when ordered by a Court of competent
jurisdiction to do so, persisted in its refusal until its deceased former patient was
interred and generally beyond reach of conventional autopsy.
2
In C. D. Swallows v. Western Electric Company, Inc., 543 S.W.2d 581 (Tenn.
1976), the Supreme Court recognized the tort of outrageous conduct in this
jurisdiction and limited its existence to instances (1) where the conduct of the
defendant has been so outrageous in character, and so extreme in degree, as to be
beyond the pale of decency and to be regarded as atrocious and utterly intolerable in
a civilized society, and (2) where the conduct results in serious mental injury.
Liability does not extend to mere insults, indignities, annoyances, threats, petty
oppression, or other trivialities. Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997); Medlin
v. Allied Investment Co., 398 S.W.2d 270 (Tenn. 1966).
It is not only alleged directly, but is reasonably inferable from the complaint,
that the enquiries made by the plaintiff about her mother’s death motivated the
defendant to conceal or destroy evidence relating thereto, compounded by its failure
or refusal to obey a lawful order of a Court of competent jurisdiction to produce
relevant records and materials in accordance with the command of Tenn. Code Ann.
§ 68-11-304(a)(1) to furnish hospital records without unreasonable delay.
Whether conduct is so outrageous as to be intolerable in a civilized society is
subjectively based and is dependent upon a litany of factors. In Moorehead v. J. C.
Penny Co., Inc., 555 S.W.2d 713 (Tenn. 1977), the defendant threatened to destroy
the plaintiff’s credit reputation. The Supreme Court held that the allegations stated a
cause of action for outrageous conduct, stating that the applicable standards of
‘extreme and outrageous’ and not ‘tolerated in a civilized society’ are, like
‘negligence,’ primarily for application by a jury.
The refusal of the defendant to produce the records and materials was
progressively exacerbative; from a routine request to a reliance on the statute to an
action in Chancery Court and, in a sense, to the case at bar, with the requested
information still not forthcoming. Under these circumstances, 1 we conclude that the
complaint states a cause of action.
The issue of the plaintiff’s standing to sue is pretermitted as having no
relevance to a disposition under RULE 12.03.
1
which, we reiterate, we only assume as true for the purpose of the Motion.
3
The judgment of dismissal is reversed and the case is remanded. Costs are
assessed to the appellee.
___________________________________
William H. Inman, Senior Judge
CONCUR:
________________________________
Houston M. Goddard, Presiding Judge
(dissenting opinion)
Herschel P. Franks, Judge
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IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION FILED
September 19, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
PAMELA FRANKLIN, ) C/A NO. 03A01-9704-CV-00121
)
Plaintiff-Appellant, ) HAMILTON CIRCUIT
)
v. )
)
VENCOR HOSPITAL, )
)
Defendant-Appellee. )
DISSENTING OPINION
I cannot concur with the result reached by the majority. Essentially,
plaintiff’s complaint charges that the hospital violated its contract with her to furnish her
copies of her mother’s medical records, and that she was required to seek these records
through the Chancery Court action, and when ordered to produce by the Chancellor the
defendants failed to furnish all records, especially x-rays. From this she concluded:
The hospital’s actions amounted to an intentional infliction of mental
distress, and to outrageous conduct.
I cannot accept the majority’s premise that the hospital’s refusal to furnish the medical
records as agreed with her or in violation of T.C.A. §68-11-304, which requires a hospital
to furnish a patient or a patient’s authorized representative, the patient’s hospital records
without unreasonable delay upon request, in writing, or its refusal to fully comply with the
Chancery Court order constitutes outrageous conduct.2 In Bain v. Wells, 936 S.W.2d 618
2
The standard describes such conduct as outrageous in character and so extreme in degree as
to be beyond the pale of decency. Swallows v. Western Electric Company, Inc., 543 S.W.2d 581
(Tenn. 1976).
(Tenn. 1997), Justice Drowota cites the Restatement of Torts 2d, §4611 as the standard
prevailing in this jurisdiction, which provides:
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 to the other results from it, for such
bodily harm.
Simply stated, the tort of outrageous conduct is the intentional infliction of mental distress
upon another and as a general proposition, a breach of contract, violation of a statute, or
violation of a court order should not and, in my view, do not establish a basis for the tort
of outrageous conduct. But this seems to be the rationale relied upon by the majority to
conclude that the complaint alleges a cause of action.
I believe the following allegations which we are required to take as true,
could form a basis for outrageous conduct:
She [plaintiff] saw vials of blood and urine at her mother’s bedside which
had been taken only moments before her death. She was assured that these
blood and urine samples would be transferred with the body for an
immediate autopsy. . . . In fact, the hospital delayed transferring the body of
plaintiff’s deceased mother to the pathologist . . . additionally, the hospital
did not deliver the blood and urine samples taken shortly before death, and
destroyed the samples so that they could not be checked.
Such wilful destruction could constitute outrageous conduct, but I do not believe the
plaintiff on the complaint as drawn can prove any set of facts to bring this alleged
destruction within the context of intentionally or recklessly causing the plaintiff severe
emotional distress.3 Moreover, the record demonstrates plaintiff was in an adversarial role
with the defendant from the outset, and was represented by counsel. In this posture I do
not believe the plaintiff can establish any right to recover tortious damages.
3
The complaint does not suggest when plaintiff was made aware of the destruction of these
samples, nor how the information about the destruction impacted upon her mental state.
6
________________________
Herschel P. Franks, J.
7