Kelly v. Brigham & Women's Hospital

• Decision Date: 11 April 2001
• Docket Number: No. 98-P-1904.,98-P-1904.
• Citation: 51 Mass. App. Ct. 297,745 NE 2d 969
• Court: Appeals Court of Massachusetts
• Parties: FRANCES KELLY v. BRIGHAM & WOMEN'S HOSPITAL & others.

51 Mass. App. Ct. 297

745 NE 2d 969

FRANCES KELLY v. BRIGHAM & WOMEN'S HOSPITAL & others.¹

No. 98-P-1904.

Court of Appeals of Massachusetts, Suffolk.

October 12, 2000.

April 11, 2001.

Present: GREENBERG, KAPLAN, & DUFFLY, JJ.

Anne F. McDonough for the plaintiff.

M. Catherine Huddleson for the defendants.

GREENBERG, J.

Frances Kelly, whose husband Michael died of complications from non-Hodgkins lymphoma, sued the Brigham & Women's Hospital (hospital) and two physicians, Michael Vasconcelles, an oncologist, and Sara Vargas, a resident working in the hospital's pathology department. The plaintiff seeks to recover on four discrete theories for depression and emotional distress caused by an autopsy performed on her husband, the scope of which exceeded what she had authorized.² Upon the defendants' motion for summary judgment, a judge of the Superior Court concluded that the plaintiff had failed to make out a prima facie case on all claims, and she appeals. The plaintiff also complains of the Superior Court judge's denial of her motion to amend her original complaint to add two other physicians, Madeleine Kraus and Craig Lilly.³

These are the material facts presented, where disputed, in the light most favorable to the nonmoving party. See, e.g., Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000). The plaintiff's husband, a forty-two year old man with a history of cancer, relapsed in the summer of 1994. He was admitted to the hospital on August 3, 1994, by Vasconcelles, who had managed his care since 1992. On his fifth day at the hospital, the plaintiff's husband was transferred to the intensive care unit because of his worsening condition. While alone with the plaintiff at the hospital, Vasconcelles brought up the subject of an autopsy. He sought permission from her because, at that point, her husband was intubated, sedated, and unable to communicate, and the plaintiff was his health care proxy. She initially refused, saying, "You know Michael's just been through so much. I really don't want to put him through anymore." Pressed by Vasconcelles to reconsider, the plaintiff asked whether the specimens could be obtained by an aspiration needle rather than by cutting his body. Although Vasconcelles was not a trained pathologist, he assured her that the incision, if one were required, would not be more than two to three inches in length.⁴ At that time, she gave her written consent for a limited autopsy by signing a form that Vasconcelles provided. The consent form restricted the procedure to a "biopsy of the liver and right lung ONLY," (emphasis in original) and stated in writing that the pathologists "may make an incision to obtain autopsy specimens, if necessary." No limitations on the size of the incision, upon which the plaintiff alleges she relied in giving consent, were specified on the form.

Michael Kelly died on August 11, 1994. On the morning of August 12, Dr. Madeleine Kraus, the chief resident of the hospital's pathology department, performed the autopsy, with verbal approval from Dr. Craig Lilly, who headed the clinical team that cared for Kelly during his stay in the hospital's intensive care unit. Vargas, a resident-in-training, observed, prepared tissue samples, and reported the autopsy results as a "prosector." We may infer from the materials that appear in the hospital record that neither Kraus nor Vargas had any knowledge of the conversation between the plaintiff and Vasconcelles concerning the limits agreed upon before she signed the consent form. Vasconcelles and Lilly were not present at the autopsy.

In response to a question put by the plaintiff's lawyer, Vargas stated that she believed "it was necessary to cut to do a thorough and complete autopsy." Because the permission form limited the autopsy team to a single incision, the team was required to make a cut large enough to sample both the lung and the liver, rather than two smaller cuts. Vargas stated that a needle biopsy is "not in accordance with the practice I've seen so far in my training where we're taught to try to maximize the chance of diagnosis while maximizing the body's appearance for a potential funeral."

Kraus made an incision that extended from the middle of the decedent's chest down to his waist around to the lower back. According to Kraus, whose memorandum is part of the record but who was not deposed, its length was approximately twenty to twenty-five centimeters, or eight to ten inches. As a result, the sutured incision was plainly visible to the funeral home director, Lawrence Keaney, who viewed the body after it arrived at his funeral home. He called the plaintiff and told her what he had found. She became upset and agitated. When the plaintiff subsequently arrived at the funeral home, Keaney showed the plaintiff the pictures he had taken of the body to spare her the ordeal of viewing it. The plaintiff again became upset and had a panic attack. At the wake, she confronted Vasconcelles and told him that he had "broken her trust." Vasconcelles noted that she was visibly upset and angry. She continued for some time after the events to have panic attacks and depression that were ameliorated, to some extent, by tranquilizers and antidepressant medications.

Two weeks after her husband's death, the plaintiff broke down while teaching preschool at the Alice Burke School and decided it was necessary to leave this position. She claims that a preexistent panic disorder was aggravated by thoughts of her husband's scarred body. Her complaints continued for the year she remained in the United States before her return to England where other family members reside. She also indicated that she experienced nightmares (when later her father had heart surgery), and that she used klonapan and diazapam, medications prescribed for anxiety disorders.

1. Disposition on summary judgment. We note at the outset our reluctance to grant summary judgment in negligence actions, based on our traditional deference to a jury's "unique competence in applying the reasonable man standard to a given fact situation." Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984), quoting from 10A Wright & Miller, Federal Practice and Procedure § 2729, at 194 (2d ed. 1983). See Roderick v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994), citing Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983) (holding that, because negligence typically involves questions of fact, negligence actions are usually inappropriate for summary judgment). Here the motion judge, on the basis of the facts we have recited, decided that, without the aid of expert testimony, no reasonable fact finder could conclude that the defendants' conduct was either negligent (i.e., fell below the acceptable standard of care), reckless, or intentional. It was on this basis that he ruled in favor of the defendants. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991) ("a party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56c, unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case"). In this case, however, the materials submitted by the plaintiff were sufficient to withstand summary judgment on three of the four claims against Vasconcelles.

2. Wrongful Autopsy—Negligent Infliction of Emotional Distress Against Vasconcelles. We begin with a brief history of the plaintiff's primary claim, tortious interference with a dead body, better characterized as a claim of wrongful autopsy. Massachusetts has long recognized that survivors may experience compensable mental distress when the corpse of a loved one is subjected to an unwanted autopsy. See Burney v. Children's Hosp., 169 Mass. 57, 59-60 (1897). The Supreme Judicial Court ruled that the natural guardian of a child has a possessory right to the body for burial and may maintain an action for an unauthorized autopsy. See ibid., quoting from Pierce v. Swan Point Cemetery, 10 R.I. 227, 237 (1872) (concluding that "it would be discreditable to any system of law not to provide a remedy" where the corpse was violated). A surviving spouse has no less of a right, assuming the decedent or a statute has not otherwise assigned such authority. Cf. Stackhouse v. Todisco, 370 Mass. 860, 860 (1976) (holding that a surviving spouse generally has the right to the decedent's body for the purposes of burial and other disposition).

There is no question that a hospital or its medical personnel, absent statutory authority, may not order the removal of tissue or other body parts of a deceased person for forensic or scientific study without consent from the spouse or next of kin. See G. L. c. 38, § 4, concerning jurisdiction of medical examiner. Because many persons regard an autopsy with aversion, it may not legally be performed without consent of the person having the duty to bury the body unless authorized by statute. See, e.g., Parker v. Quinn-McGowen Co., 262 N.C. 560, 562 (1964). The need for a remedy for injuries caused by unauthorized autopsies sets such a claim apart from other negligent, intentional, or reckless injuries to dead bodies. See ibid, (noting the difference between "mutilation" occurring while preparing a body for burial and "mutilation" occurring to advance medical science). See also Annot., Liability for Wrongful Autopsy, 18 A.L.R.4th 858 (1982 & Supp. 2000). Cf. Green v. Southern Transplant Serv., Inc., 698 So. 2d 699, 701 (La. Ct. App. 1997) (noting contemporary society's respect for remains of the dead as attested to by the "tremendous impact the demand for the return of the remains of our Vietnam War dead has had on foreign policy"). As the Supreme Judicial Court remarked in Burney, the right asserted against those who perform a wrongful autopsy "is the right to what...