Howe v. Hull

• Citation: 874 F. Supp. 779
• Decision Date: 25 May 1994
• Docket Number: No. 3:92CV7658.,3:92CV7658.
• Parties: Bruce HOWE, Representative of the Estate of Fred Charon, Plaintiff, v. Charles HULL, M.D., et al., Defendants.
• Court: U.S. District Court — Northern District of West Virginia

874 F. Supp. 779

Bruce HOWE, Representative of the Estate of Fred Charon, Plaintiff, v. Charles HULL, M.D., et al., Defendants.

No. 3:92CV7658.

United States District Court, N.D. Ohio, Western Division.

May 25, 1994.

COPYRIGHT MATERIAL OMITTED

Ellen Simon Sacks, Spangenberg, Shibley, Traci, Lancione & Liber, Cleveland, OH, Doris K. Wohl, Wohl & Associates, Toledo, OH, for plaintiff Bruce Howe, as representative of the Estate of Fred L. Charon.

Doris K. Wohl, Wohl & Associates, Toledo, OH, for plaintiff Fred L. Charon.

Rolf M. Scheidel, Shumaker, Loop & Kendrick, Toledo, OH, for defendant Charles E. Hull, M.D.

James M.L. Ferber, Schottenstein, Zox & Dunn, Columbus, OH, Timothy D. Krugh, Robison, Curphey & O'Connell, Toledo, OH, for defendant Memorial Hosp.

MEMORANDUM AND ORDER

JOHN W. POTTER, Senior District Judge:

This cause is before the Court on defendant Memorial Hospital's motion for summary judgment, defendant Charles Hull's motion for summary judgment, plaintiff's opposition¹, defendant Memorial Hospital's reply and supplemental reply, and defendant Hull's reply.

Plaintiff brought suit in the current action alleging that on April 17, 1992, defendants refused to provide Charon medical treatment because he was infected with HIV. Plaintiff claims that defendants' actions violate the Americans with Disabilities Act (ADA), the Federal Rehabilitation Act of 1973 (FRA), the Emergency Medical Treatment and Active Labor Act (EMTALA), and constituted intentional and negligent infliction of emotional distress under Ohio law. The defendants vehemently dispute these claims and allegations and have moved for summary judgment on all of plaintiff's claims.

In order to be entitled to summary judgment, defendants must establish that there are no material facts in dispute, thus presenting no triable issues to present to the jury. Under the Federal Rules,

Summary judgment is proper only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The Supreme Court has stated that the inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 106 S.Ct. 2505, 2512 91 L.Ed.2d 202 (1986).... In reviewing a motion for summary judgment, however, all inferences "`must be viewed in the light most favorable to the party opposing the motion.'" See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 106 S.Ct. 1348, 1356-57 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)).

Ralph Shrader, Inc. v. Diamond International Corp., 833 F.2d 1210, 1213 (6th Cir. 1987).

Matsushita demands only that the non-moving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated in that decision. If the nonmoving party's theory is ... senseless, no reasonable jury could find in its favor, and summary judgment should be granted.

Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, ___, 112 S.Ct. 2072, 2083, 119 L.Ed.2d 265 (1992) (footnote omitted).

The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any' which he believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The substantive law of the case identifies which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Therefore, only disputes of facts affecting the outcome of the suit under the applicable substantive law will preclude the entry of summary judgment. Id. A moving party may discharge its burden "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 324-325, 106 S.Ct. at 2553-54. Where the moving party has met its initial burden, the adverse party "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.

Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." ... Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."

Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. It is particularly inappropriate for a court to engage in fact finding or resolve issues of witness credibility on summary judgment. See, e.g., Anderson, 477 U.S. at 249, 106 S.Ct. at 2510; Lashlee v. Sumner, 570 F.2d 107 (6th Cir.1978).

On April 17, 1992, Charon and plaintiff Howe were travelling through Ohio, on their way to vacation in Wisconsin. Charon was HIV positive. That morning Charon took a floxin tablet for the first time. Floxin is a prescription antibiotic drug. Within two hours of taking the drug, Charon began experiencing fever, headache, nausea, joint pain, and redness of the skin.

Due to Charon's condition, Charon and plaintiff checked into a motel and, after consulting with Charon's treating physician in Maine, sought medical care at the emergency room of Fremont Memorial Hospital. Charon was examined by the emergency room physician on duty, Dr. Mark Reardon. There is some dispute over what Dr. Reardon's initial diagnosis of Charon's condition was.

Dr. Reardon testified that Charon suffered from a severe drug reaction, and that it was his diagnosis that this reaction was probably Toxic Epidermal Necrolysis (TEN).² Reardon depo. p. 17-22, 123-24. This diagnosis was also recorded in Charon's medical records. Dr. Reardon also testified regarding Charon's condition that "possibly it was an early stage of toxic epidermal necrolysis, although I had never seen one." Dr. Reardon had no prior experience with TEN, other than what he had read in medical school. Reardon depo. p. 42, 49, 102.

Plaintiff's medical expert Calabrese, however, testified that, after reviewing the medical records and Reardon's deposition, while Charon did appear to be suffering from a severe allergic drug reaction, Calabrese "did not believe that TEN was the likely or even probable diagnosis...." Calabrese depo. p. 24.

Prior to Charon's eventual transfer to the Medical College of Ohio, Dr. Reardon called Dr. Lynn at MCO and asked Lynn if he would accept the transfer of Charon. Dr. Lynn testified that at no time did Dr. Reardon mention that plaintiff had been diagnosed with the extremely rare and deadly TEN. Lynn affidavit at para. 7. Dr. Reardon also did not inform the ambulance emergency medical technicians that plaintiff was suffering from TEN.

Dr. Reardon determined that Charon "definitely needed to be admitted" to Memorial Hospital. Reardon depo. at p. 21. Since Charon was from out of town, procedure required that Charon be admitted to the on-call physician, Dr. Hull. Dr. Reardon spoke with Dr. Hull on the telephone and informed Dr. Hull that he wanted to admit Charon, who was HIV-positive and suffering from a non-AIDS related severe drug reaction.

While Dr. Reardon and Dr. Hull discussed Charon's situation, the primary area of their discussion appears to have been whether Charon's condition had advanced from HIV to full-blown AIDS. Dr. Hull inquired neither into Charon's physical condition nor vital signs, nor did he ask Dr. Reardon about the possibility of TEN. Hull depo. p. 76-78, 160. During this conversation, it is undisputed that Dr. Hull told Dr. Reardon that "if you get an AIDS patient in the hospital, you will never get him out," and directed that plaintiff be sent to the "AIDS program" at MCO.³ When Dr. Hull arrived at the hospital after Dr. Reardon's shift but prior to Charon's transfer, he did not attempt to examine or meet with Charon.

It is undisputed that Charon was never admitted to Memorial Hospital. There does, however, appear to be a dispute over who actually had the power and authority to transfer or admit an out-of-town emergency room patient to the Hospital. Dr. Reardon testified that the ultimate authority to transfer rested with him, but also indicated that the on-call physician is required to admit such patients. Reardon depo. p. 117, 115, 106.

Charon was transferred to the Medical College of Ohio some time after 8:45 P.M. on April 17. After his conversation with Dr. Hull and prior to the transfer, Dr. Reardon told Charon and plaintiff that "I'm sure you've dealt with this before ..." Howe asked, "What's that, discrimination?" Dr. Reardon replied, "You have to understand, this is a small community, and the admitting doctor does not feel comfortable admitting Charon." Howe depo. p. 50.

Plaintiff and defendants dispute whether Charon's physical condition was stable at the time of transfer and whether Charon's physical condition deteriorated during the transfer. See Reardon depo. p. 87-88, 114; Conley depo. p. 11-12, 20, 38. But see Waxman depo. p. 58-62, 96; Howe depo. p. 56-57.

Charon was admitted and treated at the Medical College of Ohio (MCO). Despite the TEN diagnosis, Charon was not diagnosed by MCO personnel as having TEN and, in fact, was never examined by a dermatologist.⁴ After several days, Charon recovered from the allergic drug reaction and was released from MCO.

Defendant Hull has moved for summary judgment on plaintiff's EMTALA...