Delk v. Columbia Healthcare Corp.

• Decision Date: 14 January 2000
• Docket Number: Record No. 990175.
• Citation: 259 Va. 125,523 S.E.2d 826
• Parties: Lillian Parker DELK v. COLUMBIA/HCA HEALTHCARE CORP., et al.
• Court: Virginia Supreme Court

523 S.E.2d 826

259 Va. 125

Lillian Parker DELK v. COLUMBIA/HCA HEALTHCARE CORP., et al.

Record No. 990175.

Supreme Court of Virginia.

January 14, 2000.

Joseph R. Winston, Danville (Tricia Purks Hoffler, Norfolk; Willie E. Gary, Stuart, FL; Madison B. McClellan; Hoffler & Associates, Norfolk; Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, Stuart, FL, on briefs), for appellant.

E. Duncan Getchell, Jr., (Elizabeth Butterworth Stutts; H. Carter Redd; Jonathan T. Blank; McGuire, Woods, Battle & Boothe, Richmond, on brief), for appellee Columbia/HCA Healthcare Corporation.

Mark S. Yacano (Linda B. Georgiadis; Wright, Robinson, Osthimer & Tatum, on brief), Richmond, for appellee Columbia Peninsula Center for Behavioral Health.

Present: All the Justices.

HASSELL, Justice.

In this appeal of a judgment sustaining a demurrer in a medical negligence action, we consider, among other things, whether the plaintiff pled causes of action in her third amended motion for judgment for the defendants' negligent failure to protect her from the intentional acts of a third person, the defendants' negligent failure to control the acts of a third person, negligent infliction of emotional distress, and intentional infliction of emotional distress.

I.

The plaintiff, Lillian P. Delk, filed her third amended motion for judgment against Columbia/HCA Healthcare Corporation and Virginia Psychiatric Company, Inc., d/b/a Columbia Peninsula Center for Behavioral Health. She alleged that the defendants breached certain duties owed to her when she was a patient at Columbia Peninsula Center for Behavioral Health, a psychiatric hospital. The defendants filed demurrers to the amended motion and asserted that the plaintiff failed to allege viable causes of action against them. The circuit court sustained the demurrers and entered a judgment in favor of the defendants. Delk appeals.

II.

A.

Our inquiry is governed by settled principles that control a circuit court's consideration of a demurrer. A demurrer "admits the truth of all material facts that are properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred from alleged facts." Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991); accord Plummer v. Center Psychiatrists, Ltd, 252 Va. 233, 234, 476 S.E.2d 172, 173 (1996)

. A demurrer, however, does not admit the correctness of the pleader's conclusions of law. Ward's Equip., Inc. v. New Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997).

When a circuit court sustains a demurrer to an amended pleading which is complete in itself and fails to incorporate by reference allegations in earlier pleadings, we will consider only the allegations contained in the amended pleading that was the subject of the demurrer sustained by the judgment appealed from. Bell Atlantic-Virginia, Inc. v. Arlington County, 254 Va. 60, 63 n. 2, 486 S.E.2d 297, 299 n. 2 (1997); Norfolk & W.Ry. Co. v. Sutherland, 105 Va. 545, 549-50, 54 S.E. 465, 466 (1906); see also Breeding v. Hensley, 258 Va. 207, 212, 519 S.E.2d 369, 371 (1999)

; Trotter v. E.I. Dupont de Nemours & Co., 124 Va. 680, 682-83, 98 S.E. 621, 622 (1919). Thus, we will recite only those facts contained in Delk's third amended motion for judgment, and we will consider only her assignments of error that relate to that pleading.

Delk assigned error to several rulings by the circuit court that are contained in orders sustaining the defendants' demurrers to her earlier motions for judgment: "the [t]rial [c]ourt erred in ruling that all of the plaintiff's claims were medical malpractice"; "the [t]rial [c]ourt erred in holding that plaintiff had not sufficiently alleged actual fraud"; and "the [t]rial [c]ourt erred in holding that plaintiff had not sufficiently alleged punitive damages," Delk failed to incorporate by reference in her third amended motion for judgment allegations in her prior motions for judgment and, therefore, we cannot consider these assignments of error because they were not the subject of the circuit court's judgment sustaining the demurrers to her third amended motion for judgment.

B.

Delk, a married woman, was admitted as a patient to Columbia Peninsula Center for Behavioral Health. The Virginia Psychiatric Company, Inc., which operated the hospital under the assumed name of Columbia Peninsula Center for Behavioral Health, was "an affiliated partnership or wholly-owned subsidiary of Columbia/HCA Healthcare Corporation."

Delk was admitted to the hospital because of exacerbation of her bipolar condition.¹ "[A]t the time of her hospitalization, [Delk] was identified as being a potential danger to herself, others, and property. [She] was further deemed unable to meet the capacity of the ordinary demands of her familial, occupational, and social environment. Hospitalization was necessary for continued skill observation, structured intervention, as well as medical and psychological support."

Delk had a "history of mood disorders and hospitalizations." She also had "a longstanding history of psychiatric problems since the age of seventeen (17), associated with sexual molestation as a young child and a gang rape while a teenager." This information was "disclosed to relevant staff." During "her hospitalization ... [Delk] was deemed by Columbia Peninsula Center for Behavioral Health to be a high risk to herself and others and in need of constant 24-hour supervision and surveillance."

According to Delk's allegations, "[o]n or about February 26 or February 27, 1997, [a] male who is believed to have been a patient at the Defendants' psychiatric facility at the time of the sexual assault, and who was also believed to be HIV positive, entered [Delk's] room on the acute care unit of Columbia Peninsula Center for Behavioral Health and sexually assaulted her. Although members of the nursing staff ... observed and documented the presence of this unauthorized adult male in [Delk's] room, no further actions occurred from the staff or management of Columbia Peninsula Center for Behavioral Health. . . . No notation was made in [Delk's] medical records regarding the sexual assault."

The hospital's "staff and administrators were under a duty of care to supervise and control the assailant, who was believed to be a patient in the acute care wing of the Defendants' psychiatric facility at the time of the sexual assault." Delk pled that the defendants "were well aware of the assailant's troubled history, predisposition, disturbing interaction with other patients and medical condition, yet took no steps to protect [her] or the other potential victims. Defendants breached this duty of care by allowing the assailant to enter [Delk's] room on the acute care unit and thus, allowing sexual misconduct to take place."

Delk alleged that the sexual assault upon her was foreseeable and avoidable. She pled that the defendants committed acts of ordinary negligence by failing to adequately protect her. She also alleged that the defendants committed acts of ordinary negligence because they failed to control her assailant.

Delk pled that "[d]efendant, Columbia Peninsula Center for Behavioral Health, by and through its agents, employees, and assigns, failed to undertake any actions although the Defendant had knowledge that the alleged assailant adult male patient was HIV positive. Further, Defendant, Columbia Peninsula Center for Behavioral Health, did not relate information to [Delk] . . . or any criminal authorities concerning the sexual assault or her exposure to the HIV virus. Defendant's conduct showed an utter disregard of prudence and such conduct amounted to the complete neglect for the safety of [Delk]: As a direct and proximate result of Defendant's gross negligence . . . [Delk], and possibly other members of her immediate family, have been exposed to the HIV virus."

The plaintiff further alleged that as "a direct and proximate result of Columbia Peninsula Center for Behavioral Health's outrageous conduct, negligence and attempt to cover up its negligence (through misleading and faulty notations in the medical records) in failing to adequately supervise the Plaintiff, [Delk] suffered physical and bodily harm." She claimed that as a result of defendant's "reckless, outrageous and negligent infliction of emotional distress," she "suffered severe mental, emotional and physical trauma." She alleged that, as a result of "[d]efendant's extreme, reckless, outrageous and intentional infliction of emotional distress," she "has suffered severe mental, emotional and physical trauma."

III.

A.

Delk contends that she pled a cause of action for negligence against the defendants arising out of their failure to protect her and, therefore, the circuit court erred in sustaining the defendants' demurrer to this claim. Continuing, she asserts that the defendants had a duty of care to supervise her on a 24-hour basis to insure her safety and that a special relationship existed between her and the defendants which created this duty of protection. Responding, defendants assert that they had no duty to prevent any criminal attack upon Delk because they claim that they did not have a special relationship with her. Additionally, the defendants contend that the criminal attack upon Delk was not reasonably foreseeable.

A plaintiff who seeks to establish actionable negligence must plead the existence of a legal duty, violation of that duty, and proximate causation which results in injury. Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Fox v. Custis, 236 Va. 69, 73-74, 372 S.E.2d 373, 375 (1988). Generally, a person does not have a duty to protect another from the conduct of third persons. Burdette v. Marks, 244 Va. 309, 311, 421 S.E.2d 419, 420 (1992); Marshall, 239 Va. at 318,389 S.E.2d at 904. This general rule, however, does not apply when a special relationship exists (1) between the ...