Jackobson v. Marin General Hospital, 97-16139
| Decision Date | 06 November 1998 |
| Docket Number | No. 97-16139,97-16139 |
| Citation | 192 F.3d 881 |
| Parties | (9th Cir. 1999) KAREN M. JACOBSEN, and HARDY F. JACOBSEN, Plaintiff-Appellants, v. MARIN GENERAL HOSPITAL; CALIFORNIA TRANSPLANT DONOR NETWORK, INC.; HENRY BUHRMANN; PHYLLIS WEBER; and MARIN COUNTY CORONER'S OFFICE, Defendants-Appellees |
| Court | U.S. Court of Appeals — Ninth Circuit |
Raphael S. Moore (argued), Law Office of Raphael S. Moore, Davis, California, for plaintiffs-appellants Karen M. and Hardy F. Jacobsen.
Warren L. Dranit (argued), Spaulding McCullough & Tansil, Santa Rosa, California, for defendant-appellee Marin General Hospital.
Robert H. Garnett, Lewis, D'Amato, Brisbois & Bisgaard, San Francisco, California, for defendant-appellee California Transplant Donor Network, Inc.
Appeal from the United States District Court for the Northern District of California; Marilyn Hall Patel, District Judge, Presiding. D.C. No. CV-96-03609-MHP.
Before: Mary M. Schroeder and Sidney R. Thomas, Circuit Judges, and Barry Ted Moskowitz,* District Judge.
Karen and Hardy Jacobsen appeal the district court's dismissal with prejudice of their claims against the Marin General Hospital ("Hospital") and the California Transplant Donor Network, Inc. ("Network"). We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm.
The Jacobsens are citizens and residents of the Kingdom of Denmark. In 1995, their son, Martin Jacobsen ("Martin"), also a Danish citizen, was visiting the United States as a tourist when, on the morning of October 4, 1995, the California Highway Patrol found Martin lying on the side of northbound 101, off of Alexander Bridge and south of the Waldo Tunnel in Sausalito, California. He was unconscious and suffering from head trauma. Martin was taken to the Hospital and admitted at approximately 4:05 a.m. on October 4. At that time, Dr. Morris, Martin's attending physician, noted "presumed homeless" and further noted that no I.D. had been made. At 8:25 a.m., the Network contacted the Marin County Coroner's Office ("Coroner") and requested a donation of Martin's organs. The Coroner denied the request. At 9:00 a.m., a search began for Martin's next of kin or other persons authorized to make or decline an anatomical gift of Martin's organs.
Sometime before 9:30 a.m. on October 4, the Marin County Sheriff's Department ("Sheriff") and the Coroner took photos of Martin's body. The photos depict a blue card next to Martin's body, listing the date "10/4/95" and the name "Jacobsen, M." At 12:25 p.m., the Network made another request for a donation of Martin's organs. Dr. Morris, in response, indicated that Martin had not been declared brain dead. At 2:00 p.m., the Network called the Sheriff and was told that the patient had been identified by the FBI as Martin Jacobsen from New York City.
The following day, on October 5, 1995, at 9:00 a.m., the Network spoke with the Sheriff, who stated that he felt "9/10" sure that the patient was "Martin Jacobsen." At 9:40 a.m., Dr. Ramirez made a clinical determination that Martin was brain dead. At 3:00 p.m., Dr. Nisam made another determination that Martin was brain dead. Dr. Nisam also noted in his report "that the patient was being maintained physically, pending the identification of next of kin as well as the coroner's conclusions" and that the Sheriff, Coroner and FBI
On October 6, 1995, at approximately 9:00 a.m., the Sheriff reported to the Network that they were unable to identify "this `John Doe.' " At 10:13 a.m., the Network asked the Coroner for authorization to recover the organs of John Doe. The Coroner consented. The harvesting of Martin's kidney, liver, pancreas and heart began at approximately 11:30 p.m. and was completed by 2:16 a.m. on October 7, 1995. The Jacobsens allege that neither they nor Martin would have consented to the maintenance of Martin's body for organ donation or the removal of his organs for the purpose of making an anatomical gift.
On October 4, 1996, the Jacobsens filed suit against the Hospital, Network and Coroner, asserting a claim under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and various state law claims premised on the California Anatomical Gift Act, Cal. Health & Safety Code sections 7150 7156.5 (the "Gift Act"), and common law. The defendants each filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On April 16, 1997, the district court dismissed with prejudice the Jacobsens' complaint. Jacobsen v. Marin Gen. Hosp., 963 F. Supp. 866 (N.D. Cal. 1997). It held that the Jacobsens' claims against the Coroner were barred because they had failed to first file a claim with the State Board of Control pursuant to the California Tort Claims Act. Id. at 870. It further held that, in any event, the search conducted to find Martin's next of kin was reasonable and that the defendants acted in compliance with the Gift Act when they maintained and harvested organs from Martin's body. Id. at 871-72. The district court thus entered judgment in favor of the Hospital, Network and Coroner. Id. at 874.
We review de novo the district court's order dismissing the Jacobsens' causes of action pursuant to Federal Rule of Civil Procedure 12(b)(6). Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). Our review is limited to the allegations of material facts set forth in the complaint, which are taken as true and read in the light most favorable to the Jacobsens. See Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). We may affirm the district court's dismissal for failure to state a claim on any basis fairly supported by the record, even if the district court did not reach the issue or relied on other grounds or different reasoning. Steckman , 143 F.3d at 1295. However, the complaint should not be dismissed unless it appears beyond doubt that the Jacobsens can prove no set of facts in support of their claim that would entitle them to relief. Id.
The Jacobsens appeal the district court's dismissal with prejudice of five of their six causes of action. Of the five causes of action, three are premised on common law negligence theories: negligent search; negligence in procuring injury-producing conduct of another; and negligent infliction of emotional distress from the mutilation of a corpse. The remaining two causes of action assert claims for intentional infliction of emotional distress from the mutilation of a corpse and for joint enterprise liability. Because the Jacobsens' claims arise from the sequence of events that resulted in the harvesting of the organs of their son, Martin, the Jacobsens' claims fall under the Gift Act. Section 7151(a) of the Gift Act provides that under certain circumstances, certain classes of people in the following order of priority may authorize a gift of all or part of a decedent's body: (1) the attorney-in-fact with power of attorney; (2) the decedent's spouse; (3) the decedent's adult son or daughter; (4) either parent of the decedent; (5) the decedent's adult brother or sister; (6) the decedent's grandparent; or (7) the decedent's guardian or conservator of his or her person (collectively,"next of kin"). Id. S 7151. If, however, the decedent's next of kin cannot be located after a reasonable search has been made to locate them, the Gift Act authorizes either a coroner, hospital or public health official, whichever entity has custody of the decedent's body and seeks to release the body for organ donation, to make the anatomical gift. Id. S 7151.5. A person or entity who complies with the Gift Act or a similar anatomical gift act of another state, or who, in good faith, attempts to do so,is immune from civil and criminal liability. Id. S 7155.5.
The Jacobsens' three negligence claims for negligent search, negligence in procuring injury-producing conduct of another, and negligent infliction of emotional distress collectively allege that the Hospital's and Network's "custodial relationship" with Martin gave rise to a duty owed to the Jacobsens to search for Martin's next of kin and to protect the Jacobsens' right to Martin's remains. The claims further allege that both the Hospital and Network breached this duty. The district court dismissed the Jacobsens' negligence claims, determining that under section 7151.5 of the Gift Act, only the Coroner, not the Hospital or Network, owed a duty to the Jacobsens. 963 F. Supp. at 873 & n. 9. The Jacobsens argue that the district court should not have dismissed their negligence claims because, under either the Gift Act or common law, both the Hospital and Network owed a duty to the Jacobsens to search for Martin's next of kin and to protect the Jacobsens' right to his remains.
Whether a defendant owes a duty is a question of law. Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., 48 Cal. 3d 583, 588 (1989). A duty in tort owing from a defendant to a plaintiff can be created by law, by a defendant's assumption of that duty, or by a preexisting relationship between the plaintiff and the defendant. Id. at 590; see also Aguirre-Alvarez v. Regents of the Univ. of California, 67 Cal. App. 4th 1058, 1063 (1998).
With regard to a duty arising from law, section 7151.5 of the Gift Act imposes a duty to ensure that a reasonable search has been made for a decedent's next of kin. This duty is imposed on either a coroner, hospital, or public health official, whichever of these three parties has custody of the decedent's body and seeks to permit the release of the decedent's body for organ donation. Cal. Health & Safety Code S 7151.5.
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