ALBERT MOONSAMMY, Individually, and as Executor of the Estate of Lilian C. Moonsammy, Plaintiff-Appellant, vs. MERCY HOSPITAL, IOWA CITY, IOWA, and DR. WILLIAM DULL, Defendants-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-447 / 08-1638
Filed August 19, 2009
ALBERT MOONSAMMY, Individually,
and as Executor of the Estate of
Lilian C. Moonsammy,
Plaintiff-Appellant,
vs.
MERCY HOSPITAL, IOWA CITY,
IOWA, and DR. WILLIAM DULL,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Denver Dillard,
Judge.
The plaintiff appeals from the district court‟s order granting summary
judgment to the defendants. AFFIRMED.
Elizabeth Craig and Martin Diaz, Iowa City, for appellant.
Richard M. Tucker and Anna Moyers Stone of Phelan, Tucker, Mullen,
Walker, Tucker, & Gelman, L.L.P., Iowa City, and Constance Alt, Nancy Penner,
and Tricia Hoffman-Simanek of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids,
for appellees.
Considered by Sackett, C.J., and Eisenhauer and Mansfield, JJ.
2
MANSFIELD, J.
Lilian Moonsammy passed away unexpectedly at Mercy Hospital in Iowa
City three days after being admitted for severe back pain. Suspecting that she
might have received an overdose of morphine in the hospital, the attending
physician recommended that her husband request an autopsy. Unfortunately,
the autopsy that was performed did not include a toxicology screen, thus making
it impossible to determine whether morphine caused Lilian‟s death.
Lilian‟s husband, Albert, sued the hospital and the attending physician for
negligent infliction of emotional distress, and the district court granted the
defendants‟ motion for summary judgment. For the reasons set forth herein, we
conclude Albert has not established a contractual relationship that would support
an exception to the general rule that a plaintiff who suffered no physical injury will
be denied recovery for emotional distress. See Overturff v. Raddatz Funeral
Servs., Inc., 757 N.W.2d 241, 245-46 (Iowa 2008). Accordingly, we affirm the
judgment below.
I. Background Facts and Proceedings
Since this case comes to us on review from a grant of summary judgment,
we recite the facts in the light most favorable to the plaintiff. On December 9,
2004, Lilian, age sixty-five, was admitted to Mercy Hospital due to severe pain,
mainly in her lower back. Her treating physician, Dr. William L. Dull, ordered
morphine to alleviate her pain.
On the afternoon of December 11, Lilian‟s
daughter noticed that her mother seemed “groggy” and “out of it.”
subsequently ordered a reduction in the morphine dose.
Dr. Dull
Thereafter, the
daughter observed that the nurses appeared to be confused about Dr. Dull‟s
3
orders concerning the morphine dose and even about how to operate the pump
properly.
At approximately 5:10 a.m. on December 12, a nurse found Lilian
unresponsive and after unsuccessful efforts to resuscitate her, Lilian was
pronounced dead at 5:46 a.m.
Shortly after Lilian‟s unexpected death, Lillian‟s husband, Albert
Moonsammy, arrived at the hospital and spoke with Dr. Dull.
The doctor
indicated that he was unsure of the cause of the cause of Lilian‟s death, but that
morphine may have played a role. Albert testified that Dr. Dull told him, “„Albert, I
don‟t know why your wife died. I do not know if it‟s the morphine. You must
request the postmortem or an autopsy,‟ and I said, „Yes Doctor.‟” A nurse then
entered the room and handed Albert an autopsy consent form, which provided:
Authority for Autopsy[:] I hereby authorize and empower the
pathologist of Mercy Hospital, Iowa City Iowa and/or such person(s)
as he/she may designate to perform a complete autopsy
examination . . . and to retain portions of fluids or tissues for further
study to the above named patient.
Albert signed the form, and the nurse witnessed it.
Prior to the autopsy being performed, Dr. Dull completed a discharge
report. The report stated that Lilian was admitted with low back pain, but had
atherosclerotic vascular disease, hypertension, long-standing anemia, noninsulin dependent diabetes mellitus, and hyperlipidemia. An electrocardiogram
had an “incomplete left bundle branch block.”
The report then stated this
“appears to be a sudden death” and discussed possible causes of death:
The presumption of the underlying diagnosis could be incorrect.
The other differential diagnoses include some bone dyscrasia,
dysproteinemia, sepsis, or perhaps even a vascular problem
(leaking aneurysm specifically), although most of these seem
unlikely based on the information at this moment.
Other
4
considerations for what appears to be sudden death would be a
stroke or a conduction abnormality. Finally, it is possible that she
had a cerebrovascular insult, although this too seems unlikely but
possible. Finally, of course, the issue of her morphine could have
played a role in her death. Nonetheless, since it is not entirely clear
why or how she died, an autopsy has been requested and granted
by the family. Therefore, the final diagnoses are pending these
results, which are not yet available.
However, Dr. Dull did not speak with the doctor who was to perform the autopsy.
Later that day, December 12, Dr. Don J. Merryman performed the
autopsy. Dr. Merryman testified that he performed a complete autopsy, which is
a complete anatomic examination of the body, but does not generally include a
toxicology screen. As it was not regularly included, Dr. Merryman did not do a
toxicology screen. The final autopsy report stated:
No anatomic cause of death was identified. The patient did have a
history of a left bundle branch block during this hospitalization and
also during the previous hospitalization approximately five years
ago. This indicates some degree of abnormality in the conduction
system of the heart and the cause of death is attributed to a cardia
arrhythmia.
Dr. Merryman later testified that he did not believe morphine played a role in
Lilian‟s death.
From the clinical findings and nursing notes, there was no
evidence of respiratory depression, the only way he was aware that morphine
can contribute to death. Lilian‟s death certificate stated her cause of death was
arrhythmia due to conduction defect and atherosclerotic vascular disease.
After the autopsy was completed, Lilian‟s body was cremated.
Subsequently, Albert received the autopsy results and met with Dr. Dull, who
explained that Lilian had died of a heart problem. However, Albert learned that
toxicology testing had not been completed and believed that morphine had
something to do with Lilian‟s death.
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On November 13, 2006, Albert filed a petition seeking recovery for
medical malpractice resulting in wrongful death, loss of consortium, and negligent
infliction of emotional distress.1 In the claim for negligent infliction of emotional
distress, Albert asserted that the defendants‟ failure to perform a toxicology
screen during the autopsy examination deprived him of a definitive explanation of
Lilian‟s death and thus, caused him emotional distress. Albert introduced expert
testimony in the form of a report completed by Dr. Jonathan L. Arden. In his
written report, Dr. Arden stated, in part:
The general purpose of an autopsy is to provide detailed
medical information about the decedent, which often can answer
questions that cannot be resolved by less invasive methods during
life. Hospital and forensic autopsies serve different functions, and
thus may use different procedures. The hospital autopsy is used
largely to determine the cause of death and to evaluate the extent
of natural disease and the effects of treatment. The forensic
autopsy is concerned with deaths that are violent (meaning any
deaths that result from injuries) and those that are unexplained. . . .
To assess whether morphine caused or contributed to
[Lilian‟s] death would require (in part) toxicology laboratory testing,
which would not be [routinely done] in a hospital autopsy. . . .
There was no compelling evidence from the medical history
or record to suggest a specific cause of death. The autopsy did not
reveal any anatomic cause of death, and in fact showed that the
putative cause of death according to Dr. Dull (atherosclerotic heart
disease) did not affect Ms. Moonsammy to a degree that it could
legitimately be the cause of death. The concerns about morphine
were never addressed, because no toxicology testing was done.
The ultimate question posed by the autopsy, namely the cause of
death, cannot be answered due to the absence of any conclusive
positive results from the examinations that were done coupled with
the failure to perform toxicology testing. The lack of data on which
to base a conclusion is reflected by the incomplete cause of death
statement, that death was caused by an arrhythmia related to her
left bundle branch block. The stated cause of death lacks an
etiologically specific underlying process (which is required of a
cause of death), and is not medically credible.
1
The petition also named Dr. Don Merryman as a defendant.
Dr. Merryman was dismissed without prejudice from the suit.
On March 5, 2008,
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Given all of the above, and my own assessment of the
medical records, the autopsy report and examination of the
microscopic slides from the autopsy, it is my opinion that the actual
cause of death of Ms. Moonsammy was not determined and, with
the absence of required information, cannot be determined with
reasonable medical certainty.
On June 3, 2008, the defendants moved for summary judgment. Albert
did not resist dismissal of the medical malpractice and loss of consortium claims.
However, Albert vigorously opposed dismissal of the negligent infliction of
emotional distress claim, asserting that a duty extended from the defendants to
him because the parties had a contractual relationship that dealt with a service
that carries a deep emotional response upon breach.
On September 12, 2008, the district court found the parties did not have a
contractual relationship and, therefore, the defendants did not owe a duty to the
plaintiff. Accordingly, it granted the defendants‟ motion for summary judgment.
Albert appeals.
II. Scope and Standard of Review
We review a district court‟s grant of summary judgment for correction of
errors at law. Iowa R. App. P. 6.4; Moore v. Eckman, 762 N.W.2d 459, 460
(Iowa 2009).
Summary judgment shall be granted when the entire record
demonstrates there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.
Iowa R. Civ. P. 1.981(3);
Overturff, 757 N.W.2d at 244. The moving party bears the burden to establish
there is no genuine issue of material fact, and the facts must be viewed in the
light most favorable to the moving party.
Overturff, 757 N.W.2d at 244.
“Because the existence of a duty under a given set of facts is a question of law
7
for the court, it is properly resolvable by summary judgment.” Id. at 245; J.A.H. v.
Wadle & Assocs., 589 N.W.2d 256, 258 (Iowa 1999).
III. Analysis
Albert contends the district court erred in granting summary judgment on
his negligent infliction of emotional distress claim because the defendants had a
duty to avoid causing him emotional harm. It is a well-established principle that a
plaintiff must ordinarily suffer some physical injury in order to recover damages
for negligent infliction of emotional distress. Overturff, 757 N.W.2d at 245.2 “We
have departed from this principle only in a few instances where the
circumstances have justified imposition of a duty on the injurer to exercise
ordinary care to avoid causing emotional harm.” Millington v. Kuba, 532 N.W.2d
787, 793 (Iowa 1995); see e.g., Barnhill v. Davis, 300 N.W.2d 104, 107-08 (Iowa
1981) (concluding injurer has a duty to exercise ordinary care to avoid causing
emotional harm to bystander witnessing serious injury or death of a close
relative); see also Restatement (Third) of Torts (Tentative Drafts) § 46 (2009).
Such claims have been recognized in the delivery of medical services incident to
the birth of a child, services incident to a funeral and burial, and transmission and
2
Some states allow negligent infliction of emotional distress claims more broadly without
accompanying physical injury. W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, David
G. Owen, Prosser and Keeton on Torts § 54, at 364-65 (5th ed. 1984). Albert cites to
two cases where a negligent infliction of emotional distress claim based upon an autopsy
survived summary judgment. However, both of these cases are from jurisdictions that
do not require accompanying physical injury. Kelly v. Brigham & Women’s Hosp., 745
N.E.3d 969, 976-77 (Mass. App. Ct. 2001) (stating “plaintiffs must corroborate their
mental distress claims with enough objective evidence of harm to convince a judge that
their claims present a sufficient likelihood of genuineness to go to trial” and allowing a
wrongful autopsy claim); Ricottilli v. Summersville Mem’l Hosp., 425 S.E.2d 629, 634-35
(W.V. 1992) (discussing that a claim of negligent infliction of emotional distress does not
have to be accompanied by physical injury as long as accompanied by facts sufficient to
guarantee that the emotional damages claim was not spurious and allowing a claim for
failure to determine a cause of death during an autopsy).
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delivery of telegrams announcing the death of a close relative. See Oswald v.
LeGrand, 453 N.W.2d 634, 639 (Iowa 1990); Meyer v. Nottger, 241 N.W.2d 911,
920 (Iowa 1976); Mentzer v. W. Union Tel. Co., 93 Iowa 752, 768-71, 62 N.W. 1,
5-6 (1895).
The exception to the physical injury requirement exists “where the nature
of the relationship between the parties is such that there arises a duty to exercise
ordinary care to avoid causing emotional harm.” Oswald, 453 N.W.2d at 639.
However, a duty does not exist solely based on the existence of a highly
emotional relationship or situation.
Millington, 532 N.W.2d at 793.
“[O]ther
factors must be present for a duty to avoid causing emotional harm to arise.
Such factors include the injured party personally experiencing the injurer‟s
negligent conduct and the injured party having a contract with the injurer.” Id.
(citing Barnhill, 300 N.W.2d at 108; Oswald, 453 N.W.2d at 639). Thus, our
supreme court has recognized a duty to protect against emotional distress where
the parties have a relationship that is contractual in nature and concerns acts or
services that involve deep emotional responses in the event of a breach. Id.;
Oswald, 453 N.W.2d at 639. It is this exception to the general rule upon which
Albert relies.
Albert argues that he contracted with the defendants to perform an
“autopsy to determine whether Lilian died from the over-administration of
morphine” and this contract carried with it a deep emotional response upon
breach.
We must thus determine whether the parties had a contractual
relationship. Shortly after Lilian‟s death, Dr. Dull told Albert he did not know the
cause of Lilian‟s death and instructed Albert to request an autopsy. Albert then
9
signed the hospital‟s autopsy consent form, which authorized a “complete
autopsy” to be performed by the hospital pathologist.
It is difficult to see how this sequence of events can be fashioned into a
contract.
Dr. Dull and the hospital are two separate parties.
Albert had no
contract with Dr. Dull regarding the autopsy. Dr. Dull merely told him he should
request one. Nor did Albert have a contract with Mercy Hospital. He signed a
form authorizing a complete autopsy, but such authorization forms are generally
not held to be contracts in and of themselves. See Powers v. Peoples Cmty.
Hosp. Auth., 455 N.W.2d 371, 373 (Mich. App. 1990) (stating that the “patient bill
of rights . . . merely authorized the hospital and its doctors to render appropriate
medical care, and does not constitute a written agreement to perform a specific
act”). Further, the defendants were not paid to perform an autopsy as they did
not bill the patient‟s family or insurance.
Albert argues that signing the consent form was consideration because
this act gave the hospital legal authority to perform the autopsy. See Iowa Code
§ 144.56 (2005) (providing that an “autopsy . . . may be performed upon the body
of a deceased person by a physician whenever the written consent to the
examination or autopsy has been obtained . . .”).
Albert points out that
consideration can be either a legal benefit or a legal detriment. Meincke v.
Northwest Bank & Trust Co., 756 N.W.2d 223, 227 (Iowa 2008). However, in
order to constitute consideration, a performance or return promise must be
bargained for. Id. at 228. Albert gave the hospital authorization, but nothing was
performed or promised in return by the hospital and thus, the authorization was
not bargained for. Albert simply testified that he was handed a form by the nurse
10
and signed it. Further, Albert does not assert the contract was that the hospital
would perform an autopsy, but rather that the hospital would “determine whether
Lilian died from the over-administration of morphine.”
There is no evidence,
testimony or otherwise, that the hospital agreed to this term. The nurse who
obtained the signed consent was not even present when Dr. Dull discussed the
morphine issue with Albert. We agree with the district court that consideration
was lacking and a contract was not formed.
Next, Albert argues that the consideration requirement may be avoided
through the doctrine of promissory estoppel.
Under promissory estoppel, a
promise may be enforced despite an absence of the consideration typically found
in a contract. Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 48 (Iowa
1999); see also Restatement (Second) of Contracts § 90, at 242 (1981).
[T]he elements of promissory estoppels [are] as follows: (1) a clear
and definite promise; (2) the promise was made with the promisor‟s
clear understanding that the promisee was seeking an assurance
upon which the promisee could rely and without which he would not
act; (3) the promisee acted to his substantial detriment in
reasonable reliance on the promise; and (4) injustice can be
avoided only by enforcement of the promise.
Schoff, 604 N.W.2d at 49.
As discussed above, Albert claims the hospital
promised to “determine whether Lilian died from the over-administration of
morphine.” Albert essentially asks us to infer that this promise was made from
the surrounding circumstances. However, an inference from circumstances is
not a “clear and definite promise.” We cannot divine from Albert‟s testimony that
either Dr. Dull or a Mercy Hospital employee promised a postmortem
examination for morphine would be performed. Nor did Albert testify that he
relied on such a promise, or that signing the consent form involved a substantial
11
detriment to him. We conclude that Albert cannot rely on promissory estoppel to
establish a contractual relationship between the parties.
Albert asks us to hold that a duty should be imposed on the defendants in
this case because the emotional distress was foreseeable and public policy
considerations support recognizing such a duty. Albert argues “[t]he best way to
deter professional negligence in the performance of a contract to perform an
autopsy is to recognize a special duty to avoid causing emotional distress.”
(Emphasis added.) Yet this argument ultimately begs the question whether the
parties had a contract and, as discussed above, they did not.
We believe this case is in some respects similar to Slaughter v. St.
Anthony Community Hospital, 615 N.Y.S.2d 61, 62 (N.Y. App. Div. 1994), where
the court held that claims for intentional and negligent infliction for emotional
distress should be dismissed. There, the plaintiff mother gave birth to a stillborn
infant. Id. Due to “the gross deformities and abnormalities” of the baby, the
attending obstetrician recommended that a post mortem examination be
conducted.
Id.
The hospital “was allegedly instructed to carry out this
examination, but negligently failed to do so.” Id. The parents contended that the
hospital‟s negligence deprived them of the knowledge they needed to plan future
pregnancies, and consequently caused them to suffer emotional distress. Id.
Despite these allegations, however, the appellate court dismissed the parents‟
claims. Id.
Furthermore, in this case, we believe public policy considerations weigh
against recognizing Albert‟s negligent infliction of emotional distress claim. Due
to an unfortunate but unintended set of circumstances, evidence that might or
12
might not support a medical malpractice claim has been irretrievably lost. Prior
to the summary judgment ruling, Albert argued that the failure to perform a
toxicology screen had prevented Albert from knowing whether the defendants
negligently caused Lilian‟s death. However, our supreme court has expressly
declined to recognize a cause of action for negligent spoliation of evidence.
Meyn v. State, 594 N.W.2d 31, 34 (Iowa 1999) (declining to adopt the negligent
spoliation of evidence theory urged by plaintiff as a separate tort cause of action).
Arguably, if we were to find a duty in this case, where there was no contract to
perform a toxicology screen, we would be allowing a negligent spoliation of
evidence claim in by the backdoor.
IV. Conclusion
For the reasons set forth herein, we affirm the district court‟s grant of
summary judgment.
AFFIRMED.
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