CHILDERS (TANYA A), ET AL. VS. GEILE (SANDRA F.), ET AL.
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RENDERED: NOVEMBER 6, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002114-MR
TANYA A. CHILDERS AND
JEFFREY J. CHILDERS
v.
APPELLANTS
APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE WILLIAM B. MAINS, JUDGE
ACTION NO. 06-CI-90320
SANDRA F. GEILE, M.D. AND
MARSHALL EMERGENCY SERVICES
ASSOCIATES, P.S.C.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND STUMBO, JUDGES; HENRY,1 SENIOR JUDGE.
STUMBO, JUDGE: Tanya A. Childers and Jeffrey J. Childers appeal from an
Order of the Montgomery Circuit Court sustaining the Summary Judgment motion
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
of Sandra F. Geile, M.D. and Marshall Emergency Services Associates, P.S.C. In
granting the motion, the circuit court determined that the Childerses could not
prosecute a claim for the tort of outrage because damages for emotional distress
were already recoverable via a claim for medical negligence. The Childerses now
argue that the Kentucky Supreme Court has consistently held that the tort of
outrage may co-exist with the traditional common law tort of negligence, and that
the circuit court erred in failing to so rule. For the reasons stated below, we affirm
the Order on appeal.
On December 31, 2005, Tanya Childers, whose pregnancy was in its
second trimester, began experiencing profuse vaginal bleeding. Her husband,
Jeffrey, called EMS, which transported Tanya from the couple’s home to Mary
Chiles Hospital in Montgomery County, Kentucky. Dr. Sandra Geile was on duty
in the emergency room when Tanya arrived, and she began examining Tanya to
determine if Tanya was experiencing a miscarriage.
Upon examining Tanya, Dr. Geile determined that Tanya’s “cervical
os was open”2 and that “large clots with tissue noted in the vaginal vault.” Dr.
Geile concluded that Tanya had suffered a miscarriage. As part of the
examination, Dr. Geile ordered an “hCG” test, which measures hormones
associated with pregnancy. Dr. Geile would later state that she used a handheld
doppler to search for the baby’s heartbeat. Tanya would maintain that though Dr.
Geile used a doppler on Tanya during a prior emergency room visit, she did not
2
“Cervical os” appears to be an abbreviation of “cervical ostium,” which is that portion of the
cervical opening observable by pelvic examination.
2
use it on the visit at issue. Dr. Geile also stated that she observed tissue extruding
through the cervical os, which she removed with forceps and discarded. She did
not include this finding in Tanya’s medical record.
The parties are in agreement that Tanya became hysterical when she
was told of the miscarriage, and Ativan was administered to Tanya to calm her
nerves. Sometime thereafter, the results of the hCG test indicated that Tanya’s
hormones were within the normal range for someone in Tanya’s stage of
pregnancy.
Dr. Geile would later state in deposition that she consulted with an
obstetrician/gynecologist, who suggested that Dr. Geile prescribe Methergine to
Tanya for the purpose of stopping Tanya’s bleeding. The following day, Tanya
took the Methergine, and had a follow-up visit with her physician, Dr.
Cunningham. Upon examining Tanya, Dr. Cunningham determined that she had
not experienced a miscarriage, that the fetus was 15-weeks old and in a breach
presentation with a heart rate of 162 beats per minute. Dr. Cunningham told Tanya
that Methergine causes contractions and should not have been prescribed to a
pregnant patient.
Tanya was placed on bed rest, and according to her deposition,
continued to have contractions. Tanya miscarried on January 5, 2006, and sadly
the baby did not survive. She would later state that she experienced tremendous
grief and guilt over what she believed was her failure to protect her son.
According to Jeffrey, she cried every day for months thereafter, was prescribed an
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antidepressant, and in his opinion, never rebounded from the loss. It is also
uncontroverted that Tanya suffered emotional distress from having taken
Methergine, which she believed harmed her developing child.
The Childerses subsequently filed the instant action against Dr. Geile
and Marshall Emergency Services Associates, P.S.C. alleging medical negligence
and the tort of outrage. Shortly thereafter, they filed an amended complaint which
dropped the negligence claim and proceeded solely on the tort of outrage.
On December 3, 2007, Dr. Geile and Marshall Emergency Services
Associates filed a Motion for Summary Judgment, wherein they argued that the
tort of outrage is a “gap filler” tort which may be asserted only where damages for
mental distress are unavailable under traditional tort theory. They maintained that
since the Childerses were availed of seeking damages for mental distress under a
medical negligence claim, they could not proceed with the claim of outrage. The
motion was denied. Dr. Geile and Marshall Emergency Services Associates filed a
second Motion for Summary Judgment on February 6, 2008, wherein they again
claimed that emotional distress is an element of damages in a medical malpractice
claim, and that as such the Childerses could not proceed with the outrage action.
The second motion was granted by way of an Order rendered on October 21, 2008,
and this appeal followed.
The Childerses now argue that the Montgomery Circuit Court erred in
granting the Summary Judgment motion of Dr. Geile and Marshall Emergency
Services Associates. They maintain that the Kentucky Supreme Court has
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consistently held that outrage claims may coexist with the traditional common law
torts of negligence, assault and defamation. They also contend that it is reversible
error for the trial court to give Court of Appeals Opinions greater precedential
effect than those of the Kentucky Supreme Court, which they argue is what
occurred when the circuit court sustained the motion for Summary Judgment. In
support of this argument, the Childerses direct our attention to Craft v. Rice, 671
S.W.2d 247 (Ky. 1984), and several subsequent Opinions, which they contend
stand for the proposition that the tort of outrage is not limited to the role of a “gap
filler” which may be prosecuted only in the absence of other viable causes of
action wherein damages for emotional distress may be awarded. Rather, they
maintain that the tort of outrage may be prosecuted concurrently with the tort of
negligence and other traditional common law torts.
The Childerses further argue that the trial court misapplied Rigazio v.
Archdiocese of Louisville, 853 S.W.2d 295 (Ky. App. 1993), which was rendered
several years subsequent to Craft. According to the Childerses, Craft allows for a
claim of outrage to be prosecuted concurrently with a traditional tort, whereas
Rigazio provides that it may not. The Childerses maintain that the trial court
incorrectly imposed the Rigazio decision on Craft, resulting in the trial court
improperly concluding that Craft did not allow for outrage to be prosecuted
concurrently with a traditional tort. Stated differently, the Childerses argue that the
trial court improperly gave greater precedential value to the Court of Appeals
Opinion in Rigazio than to the Kentucky Supreme Court Opinion in Craft.
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In contrast, Dr. Geile and Marshall Emergency Services Associates
maintain that none of the Kentucky Supreme Court cases cited by the Childerses
are inconsistent with the gap filler rule which, beginning with Rigazio, has been
relied upon by this Court in at least six published opinions. Further, they contend
that it is inconceivable that if the Kentucky Supreme Court did disapprove of the
gap filler rule as the Childerses argue that the Court would not have allowed it to
stand without comment during the decade since Rigazio was rendered.
Having closely examined the record, the law and the written
arguments, we find no error in the Summary Judgment on appeal. We first look at
Craft, supra, wherein the Kentucky Supreme Court adopted the tort of outrage. In
Craft, the plaintiffs allegedly were harassed by Boyd County Sheriff Roy Rice,
who repeatedly threatened to arrest Albert Craft, made threatening statements to
the Crafts on a CB radio, surveilled the Crafts’ home and forced the vehicle of
Irene Craft into an oncoming lane of traffic. The Crafts suffered great emotional
anguish, and Irene Craft experienced chronic diarrhea, colitis and a nervous
condition. In adjudicating the Crafts’ appeal from the trial court’s dismissal of
their action based on the statute of limitations, the Court adopted Restatement
(Second) of Torts § 46 (Outrageous Conduct Causing Severe Emotional Distress)
and recognized the tort of outrage which it characterized as “claimed interference
with the plaintiff’s rights causing emotional distress generating a cause of action
regardless of whether the plaintiff suffers any bodily harm resulting from the
emotional distress.” Craft, 671 S.W.2d at 249. It went on to note that any physical
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injury “is incidental to the emotional distress rather than essential to the cause of
action as is the case in an action for personal injury.” Id. The Childerses
apparently rely on this proposition for their conclusion that Craft allows for the tort
of outrage to be prosecuted concurrently with the traditional tort of negligence.
Rigazio expanded on Craft some years later. In Rigazio, a former
student of a parochial school brought suit against the archdiocese seeking damages
for sexual abuse under theories of battery, intentional infliction of emotional
distress, negligence and outrage. In affirming a Summary Judgment of the
Jefferson Circuit Court in favor of the archdiocese and other defendants, a panel of
this Court stated that,
we believe that § 47 recognizes that where an actor’s
conduct amounts to the commission of one of the
traditional torts such as assault, battery, or negligence for
which recovery for emotional distress is allowed, and the
conduct was not intended only to cause extreme
emotional distress in the victim, the tort of outrage will
not lie. Recovery for emotional distress in those instances
must be had under the appropriate traditional common
law action. The tort of outrage was intended to
supplement the existing forms of recovery, not swallow
them up.
Rigazio, 853 S.W.2d at 299. See also, Banks v. Fritsch, 39 S.W.3d 474, 481 (Ky.
App. 2001), stating that:
the tort of outrage is intended as a “gap filler,” providing
redress for extreme emotional distress where traditional
common law actions do not. Where an actor’s conduct
amounts to the commission of one of the traditional torts
such as assault, battery, or negligence for which recovery
for emotional distress is allowed, and the conduct was
not intended only to cause extreme emotional distress in
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the victim, the tort of outrage will not lie. Recovery for
emotional distress in those instances must be had under
the appropriate traditional common law action.
We are not persuaded by the Childerses’ argument that Rigazio and
Banks are inconsistent with Craft. Craft adopted the tort of outrage in Kentucky
and held that any physical injury is incidental to the emotional distress rather than
essential to the cause of action. Craft, 671 S.W.2d at 249. The Craft Court did not
address whether the common law torts of negligence or assault could be argued
concurrently with the tort of outrage. That issue was never addressed in Craft
because it was “undisputed that no touching occurred to either plaintiff.” Id. at
248. Rigazio and Banks do not supplant or otherwise contradict the Craft holding.
Rather, they expanded upon it by holding that the tort of outrage could not be
brought where the actor’s conduct amounted to one of the traditional torts, such as
negligence, for which recovery for emotional distress is allowed. Furthermore, it is
of no consequence whether an action alleging one of the traditional torts is actually
filed. All that is required in order to bar a claim of outrage is that the “conduct
amounts to the commission of one of the traditional torts such as assault, battery,
or negligence for which recovery for emotional distress is allowed . . . .” Rigazio,
853 S.W.2d at 299. In sum, Craft, Rigazio and Banks collectively recognize the
application of the tort of outrage in Kentucky to facts where the conduct was
intended only to cause extreme emotional distress in the victim, and where those
facts would not otherwise sustain a cause of action for a traditional tort like
negligence, assault or battery. And finally, it is worth noting that the Kentucky
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Supreme Court cited with approval the Rigazio decision in Stringer v. Wal-Mart
Stores, Inc., 151 S.W.3d 781 (Ky. 2004). This further bolsters the argument of Dr.
Geile and Marshall Emergency Services Associates that the gap filler
characterization of the tort of outrage set out in Rigazio is not in derogation of the
Craft holding.3
The Childerses final contention is that even if Rigazio were the law in
Kentucky, their cause of action was erroneously dismissed. They argue that the
tort of outrage is properly characterized as a gap filler under the instant facts
because the only other cause of action available to them was a wrongful death
claim and not an action alleging one of the traditional torts such as negligence.
They argue that since emotional distress is not an element of damages in a
wrongful death claim, Rigazio and Banks are not applicable to the instant facts and
that the trial court erred in failing to so rule.
In order for the Court of Appeals to overturn a judgment of the trial
court, it is necessary for the appellants to show some abuse of discretion by the
trial court or that the judgment below is clearly erroneous. Boggs v. Burton, 547
S.W.2d 786 (Ky. App. 1977). The Childerses have done little to demonstrate that
the instant facts might have supported a wrongful death claim but not a negligence
action. The burden rests with them to demonstrate that the trial court abused its
3
Even if we were persuaded that Rigazio was inconsistent with Craft, Court of Appeals
Administrative Order 2006-10 prohibits one panel of the Court from overruling the holding of
another panel. Inconsistent holdings must be resolved by the Court of Appeals acting en banc, or
on appeal to the Kentucky Supreme Court.
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discretion in its application of the Craft and Rigazio holdings, and they have not
met that burden. Accordingly, we find no error on this issue.
Summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” CR 56.03. “The record must be viewed in a light most favorable to the party
opposing the motion for summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). “Even though a trial court may believe the party opposing the motion may
not succeed at trial, it should not render a summary judgment if there is any issue
of material fact.” Id. Finally, “[t]he standard of review on appeal of a summary
judgment is whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
When viewing the record in a light most favorable to the Childerses
and resolving all doubts in their favor, we find no error in the trial court’s
determination that Dr. Geile and Marshall Emergency Services Associates were
entitled to a Summary Judgment as a matter of law. Accordingly, we affirm the
Summary Judgment of the Montgomery Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
Anne Milton McMillin
Louisville, Kentucky
Kenneth W. Smith
Johann F. Herklotz
Lexington, Kentucky
Charles Johnson
Heidi Engel
Winchester, Kentucky
ORAL ARGUMENT FOR
APPELLEES:
ORAL ARGUMENT FOR
APPELLANTS:
Johann F. Herklotz
Lexington, Kentucky
Anne Milton McMillin
Louisville, Kentucky
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