Barnett v. Mercy Health Partners-Lourdes

• Decision Date: 31 August 2007
• Docket Number: No. 2006-CA-000889-MR.,2006-CA-000889-MR.
• Citation: 233 S.W.3d 723
• Parties: Randy BARNETT, Individually and as Personal Representative of the Estate of Evert Barnett, Deceased, Appellant, v. MERCY HEALTH PARTNERS-LOURDES, INC., a/k/a Lourdes Hospital, Inc., Appellee.
• Court: Kentucky Court of Appeals

233 S.W.3d 723

Randy BARNETT, Individually and as Personal Representative of the Estate of Evert Barnett, Deceased, Appellant, v. MERCY HEALTH PARTNERS-LOURDES, INC., a/k/a Lourdes Hospital, Inc., Appellee.

No. 2006-CA-000889-MR.

Court of Appeals of Kentucky.

August 31, 2007.

Ronald E. Osman, Marion, IL, for appellant.

Richard L. Walter, Paducah, KY, for appellee.

Before COMBS, Chief Judge; KELLER, Judge; BUCKINGHAM,¹ Senior Judge.

OPINION

KELLER, Judge.

Randy Barnett (Barnett) as personal representative for the Estate of Evert Barnett (Evert) appeals from the McCracken Circuit Court's order granting Mercy Health Partners-Lourdes, Inc.'s (Lourdes) motion for summary judgment. Barnett argues that the circuit court's finding that there are no genuine issues of material fact is in error because there is evidence that he suffered damages based on his breach of contract claim. Furthermore, Barnett argues that the Kentucky Consumer Protection Act (the Act) applies to Lourdes and that he suffered damages as a result of Lourdes's violation of provisions of the Act. Lourdes argues that Barnett failed to prove any damages based on the breach of contract claim and that, even if the Act applies to Lourdes, it did not violate any provisions of the Act and Barnett has failed to prove any damages under the Act. For the reasons set forth below, we affirm.

FACTS

On February 14, 2000, Evert began to experience chest pains and his grandson, Barnett, took Evert to Lourdes for evaluation and treatment. While evaluating Evert for his complaints of chest pains, a physician discovered a lump under Evert's arm. The physician believed the lump could be a lymphoma and so Evert underwent surgery to remove the lump on February 18, 2000. Barnett alleges that the surgeon who performed the biopsy, Dr. Brunson, was intoxicated at the time of the surgery, that other personnel at Lourdes and in the operating room knew of Dr. Brunson's condition, and that they unsuccessfully tried to stop him from performing the surgery. Following surgery, Evert developed some complications and ultimately suffered a stroke. Evert managed to live at home for a short period of time following his release from Lourdes, but he eventually was placed in a nursing home, where he died several months later.

In November of 2001, Barnett filed a complaint individually and on behalf of Evert's estate containing various allegations against Lourdes and Dr. Brunson, including claims for intentional and negligent infliction of emotional distress and battery. The circuit court dismissed the battery and negligent and intentional infliction of emotional distress claims against Lourdes and Dr. Brunson. Barnett appealed the dismissal of the intentional infliction of emotional distress claim, and this Court affirmed.² The circuit court then entered a summary judgment dismissing Barnett's claims for breach of contract and violation of the Act. It is from this order that Barnett appeals. We will set forth additional facts as necessary when we discuss Barnett's breach of contract and Consumer Protection Act claims.

STANDARD OF REVIEW

"The standard of review on appeal of a summary judgment is whether the circuit judge correctly found that there were no issues as to any material fact and that the moving party was entitled to a judgment as a matter of law." Pearson ex rel. Trent v. National Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky.2002). Summary judgment is only proper when "it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). In ruling on a motion for summary judgment, the Court is required to construe the record in a light most favorable to the party opposing the motion. Id. at 480. A party opposing a summary judgment motion "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but `must present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. at 481.

BREACH OF CONTRACT

During the admission procedure, Barnett signed a number of documents on behalf of Evert. Barnett argues that when he signed a document agreeing to be responsible for payment for Evert's treatment, he created a contract with Lourdes. The terms of the document Barnett relies on are set forth, in pertinent part, below.

CONSENT AND CONDITIONS OF TREATMENT

I hereby authorize the performance of any medical and/or diagnostic procedures, which may be advised and recommended by my physician(s). As part of the medical procedures or tests, I also consent to testing for human immunodeficiency virus (HIV) infection, hepatitis, or any other blood-borne infectious disease if a physician orders the test for diagnostic purposes. Furthermore, I request the use of any facilities and services of Lourdes and/or Transitional Care, which may be regarded as necessary or beneficial in the performance of said procedure.

...

PHYSICIANS ARE NOT HOSPITAL AND/OR TRANSITIONAL CARE EMPLOYEES; therefore any services they provide to you will be billed separately by the physician. The bill you will receive from Lourdes and/or Transitional Care will reflect the hospital and/or Transitional Care services only. It is your responsibility to give your insurance information to the physicians who provide you service.

ASSIGNMENT OF BENEFITS AND FINANCIAL AGREEMENT

I understand and agree that whether I sign as agent of the patient, that in consideration of the services to be rendered on the patient, I obligate myself to pay Lourdes and/or Transitional Care in accordance with the regular rates and terms of the hospital and/or Transitional Care. Further, I authorize and direct insurance benefits to be paid directly to Lourdes and/or Transitional Care in accordance with the terms of my policy. I understand and agree that Lourdes and/or Transitional Care shall have no obligation or duty to the patient to be familiar with the terms of the patient's insurance coverage. Any conditions to insurance coverage, including but not limited to preadmission certification, filings or notices, shall be the sole obligation of the patient and Lourdes and/or Transitional Care shall have no obligation or duty to see that such conditions are met. I agree to pay all patient expenses not paid by insurance. I also agree that the provisions regarding the release of information and assignment of benefits shall apply not only to Lourdes and/or Transitional Care, but also to such physicians, professionals and suppliers of services, or any of them, and their claims for payment.

Based on the above, and from what we can glean from Barnett's brief and oral argument, Barnett is arguing that, in consideration for his agreement to pay for Evert's treatment if insurance would not cover the expenses, Lourdes agreed to treat Evert, exercising appropriate care. Barnett argues that Lourdes breached the contract when it permitted an intoxicated surgeon to perform surgery on Evert. Finally, Barnett argues that he performed all of his obligations under the contract as Lourdes has been paid for its services. However, Barnett has not put in the record any evidence that he paid any amount to Lourdes on behalf of Evert.

To be enforceable, a "contract must contain definite and certain terms setting forth promises of performance to be rendered by each party." Kovacs v. Freeman, 957 S.W.2d 251, 254 (Ky.1997). Reviewing the documents signed by Barnett, it appears that Barnett did promise to pay for any amounts that would not be covered by Evert's insurer. Although the documents do not contain any specific promise by Lourdes to provide care or as to the quality of care, the fact that Lourdes rendered care implies such a promise. Therefore, we hold that an express contract existed between Barnett and Lourdes.

However, establishing the existence of a contract is not sufficient to sustain a cause of action for breach of contract. Barnett must also prove that Lourdes breached the contract and that he suffered damages as a result of that breach. In an action for breach of contract, the measure of damages "is that sum which will put the injured party into the same position he would have been in had the contract been performed." Perkins Motors, Inc. v. Autotruck Federal Credit Union, 607 S.W.2d 429, 430 (Ky.App.1980).

This is where Barnett's claim for breach of contract fails. Assuming for the sake of argument that Lourdes did breach the contract, Barnett has not put forth any evidence that he suffered any damages. Barnett alleges that, had he and Evert known that the surgeon was intoxicated, Evert would not have gone forward with the surgery and the expenses related to the surgery would not have been incurred. That may be true. However, Barnett has not put forth any evidence that he was liable for or paid any of the expenses related to the surgery. Therefore, Barnett has not suffered any damages as his position has not changed as a result of the alleged breach.

In addition to his contract claim, Barnett has asserted a contract claim on behalf of Evert's estate. Barnett argues that an implied contract existed between Evert and Lourdes by virtue of Lourdes's offer of treatment and Evert's acceptance of that offer. Lourdes argues that no implied contract existed between it and Evert. Because Barnett has failed to prove that any amount was paid by the estate to Lourdes on behalf of Evert, he has failed to prove that the estate suffered any damages. Therefore, whether a contract existed between Evert and Lourdes and whether any such contract was breached is of no consequence.

CONSUMER PROTECTION ACT

Barnett argues that Lourdes made certain representations on its web page regarding the quality of care and that those representations, at least as to the treatment received by Evert, were untrue and amounted to "[u]nfair, false, misleading, or deceptive acts or...