Fisher v. Lindauer

• Decision Date: 15 November 2012
• Docket Number: No. 1:11–cv–242.,1:11–cv–242.
• Parties: Randi FISHER, as Personal Representative of the Estate of Madison Fisher, Deceased, and individually, and Jason Fisher, Plaintiffs, v. Susan LINDAUER, Lee Salmonsen, Deborah Larson, Carol Wohlschied, and United States of America, Defendants.
• Court: U.S. District Court — Western District of Michigan

904 F.Supp.2d 750

Randi FISHER, as Personal Representative of the Estate of Madison Fisher, Deceased, and individually, and Jason Fisher, Plaintiffs,

v.Susan LINDAUER, Lee Salmonsen, Deborah Larson, Carol Wohlschied, and United States of America, Defendants.

No. 1:11–cv–242.

United States District Court,

W.D. Michigan,

Southern Division.

Nov. 15, 2012.

Phillip Benjamin Toutant, Brian J. McKeen, McKeen & Associates, PC, Detroit, MI, for Plaintiffs.

Carol D. Carlson, Cindy C. Boer, Smith Haughey Rice & Roegge PC, Carolyn Ann Almassian, Agnes Kempker–Cloyd, U.S. Attorney, Grand Rapids, MI, Matthew J. Thomas, Rutledge Manion Rabaut Terry & Thomas PC, Paul J. Manion, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

PAUL L. MALONEY, Chief Judge.

This case involves three claims arising out of the death of Madison ¹ Fisher: a wrongful-death claim brought on behalf of her estate, and claims for negligent infliction of emotional distress brought by each of Madison's parents, Plaintiffs Randi and Jason Fisher. Before the court is a motion for partial summary judgment filed by Defendants Susan Lindauer, Deborah Larson, and Carol Wohlschied (as well as several former defendants). (ECF No. 64.) Defendant Lee Salmonsen has joined this motion (ECF No. 68), and the United States of America has also concurred with the moving Defendants' analysis (ECF No. 71.)

For the reasons discussed herein, the court will grant the motion as to Plaintiff Jason Fisher and deny it as to Randi Fisher.

I. Background²

Randi Fisher and her husband, Jason, arrived at the Battle Creek Health System around midnight on October 22, 2008. Randi was in labor. She was admitted to the facility's labor and delivery unit, where she stayed through the night. Around 6:30 a.m., anaesthetic was ordered, but before Randi could be given the epidural, the fetus's heart rate decreased and the shot was called off. The attending physician, Dr. Marti Peters, arrived shortly thereafter. When the fetus's heart rate did not stabilize, Dr. Peters determined that Randi needed an emergency Caesarian section (“c-section”) and called the on-call obstetrician, Dr. Orady.

At 7:10 a.m., Randi was taken into the operating room. Jason was not allowed to be present during the operation. After initial attempts to give Randi spinal anaesthesia failed, Randi was put to sleep using general anaesthesia, and Dr. Orady began the operation at 7:22 a.m. Dr. Orady delivered the baby two minutes later, but it was stillborn. A resuscitation team attempted to restart the baby's heartbeat, but it was not able to do so. A later autopsy showed a severe infection of the placenta and fetal membranes (necrotizing chorioamnionitis), with extensive bacterial colonization of the baby's lungs and colon.

The Fishers were then informed about their baby's death—Jason in the waiting room, and Randi in the recovery room after she woke up. Doctors and at least one nurse spoke with both Randi and Jason, explaining what happened and expressing sympathy for their loss. The Fishers were allowed to hold the baby, and the hospital also arranged for a professional photographer to take pictures. The hospital also provided the Fishers with a grief counselor.

On March 11, 2011, Randi and Jason filed suit in this court against an array of doctors and nurses allegedly involved in Randi's medical care, as well as several associated medical organizations. (ECF No. 1.) Plaintiffs filed an amended complaint in September adding the United States of America as a defendant and dropping several earlier-named defendants. (ECF No. 24.) Discovery continued through January 2012, when Defendants Susan Lindauer, Deborah Larson, and Carol Wohlschied (as well as several former defendants) filed the motion for partial summary judgment at issue today. (ECF No. 64.) Defendant Lee Salmonsen has joined this motion (ECF No. 68), and the United States of America has also concurred with the moving Defendants' analysis (ECF No. 71.) Several other motions were filed between January and April 2012 (ECF Nos. 62, 77, 79), but these motions have since been resolved by joint stipulation. ( See ECF Nos. 84, 92.) In September, the parties stipulated to dismissal of claims against several other defendants. (ECF Nos. 118–120.) On November 13, 2012, the parties presented oral argument on the pending motion for summary judgment.

II. Legal Framework

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.2008). The burden is on the moving party to show that no genuine issue of material fact exists, but that burden may be discharged by pointing out the absence of evidence to support the nonmoving party's case. Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir.2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The facts, and the inferences drawn from them, must be viewed in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Once the moving party has carried its burden, the nonmoving party must set forth specific facts in the record showing there is a genuine issue for trial. Fed.R.Civ.P. 56(c), (e); Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. The question is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505.

III. Discussion

Defendants' motion relates only to Randi and Jason's individual claims for negligent infliction of emotional distress. Under Michigan law, the tort of negligent infliction of emotional distress has four requirements:

(1) a serious injury, of a nature to cause severe mental disturbance to the plaintiff, is threatened or inflicted on a third person;

(2) the shock to the plaintiff must result in actual physical harm;

(3) the plaintiff must be a member of the third person's immediate family, or at least a parent, child, husband or wife; and

(4) the plaintiff must either be present at the time of the accident or suffer shock fairly contemporaneous with the accident.

See Wargelin v. Sisters of Mercy Health Corp., 149 Mich.App. 75, 385 N.W.2d 732, 735 (1986). Defendants challenge only the second and fourth elements of this test, arguing that neither Randi nor Jason can show that they have suffered actual physical harm (element two), and that because Jason was not in the operating room and Randi was not conscious for the c-section, neither was “present at the time of the accident” or suffered “fairly contemporaneous” shock, as element four requires.

A. Element Two—Actual Physical Harm

Defendants first argue that the evidence does not show that Randi and Jason actually suffered physical harm due to their alleged emotional trauma. They note that Jason testified at deposition that he had not seen a physician or counselor and had not taken any medication following Madison's death. And while they admit that Randi had suffered from psychological problems after the death, Defendants note that her problems pre-date her pregnancy and that treatment notes from her current psychiatrist state that she is doing very well.

Plaintiffs cite medical records from Randi's post-surgery hospital stay to show that she afterward suffered from “anxiety, hyperventilation, using oxygen, losing sleep, agitation and panic”; that she had “sudden mood changes,” “expressed homicidal ideation against the staff,” and showed “Anxiety, Depressed mood, Hopelessness, Impaired concentration, Manic symptoms, Sleep disturbance (decrease), [and] Thought disturbance.” These records also show that Randi was later taken to the hospital's psychiatric ward, and her doctor recommended admission to a psychiatric hospital after she was released. Plaintiffs also reference their psychiatry expert's preliminary report regarding Randi, which states that she became “severely depressed” following Madison's death. Finally, Plaintiffs state that the independent medical examinations requested by Defendants should reveal further evidence of the physical harm they have suffered.

As Plaintiffs note, Michigan's courts have broadly construed the “definite and objective physical injury” requirement. The case establishing this rule, Daley v. LaCroix, held that a plaintiff's “sudden loss of weight, her inability to perform ordinary household duties, [and] her extreme nervousness and irritability” satisfied the “physical injury” requirement. 384 Mich. 4, 179 N.W.2d 390, 396 (1970). Another early case held that a plaintiff's claims that she had “withdrawn from normal forms of socialization, was for a period of nine months following the accident unable to function as she did previously, and continues in a state of depression” similarly satisfied this standard. Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140, 145 (1973). Under these longstanding precedents, Randi Fisher's alleged symptoms were sufficiently “physical” to avoid summary judgment. See Apostle v. Booth Newspapers, Inc., 572 F.Supp. 897, 901 (W.D.Mich.1983)supplemented,577 F.Supp. 962 (W.D.Mich.1984) (“While a ‘definite and objective physical injury’ is required, the courts are very lenient in finding allegations sufficient in this regard.”). Defendants' argument that Randi's psychological issues existed long before her pregnancy is simply a factual dispute that should be left to the jury to resolve.

As Defendants pointed out during oral argument, Plaintiffs' argument...