Kenning v. St. Paul Fire and Marine Ins. Co.

• Decision Date: 24 December 1997
• Docket Number: Civil No. 97-3027.
• Citation: 990 F.Supp. 1104
• Parties: Daniel KENNING and Cyndia Kenning, heirs-at-law of Matthew Kenning, deceased, Plaintiffs, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and Sharon Huemmer Pritchard, M.D., Defendants.
• Court: U.S. District Court — Western District of Arkansas

990 F.Supp. 1104

Daniel KENNING and Cyndia Kenning, heirs-at-law of Matthew Kenning, deceased, Plaintiffs, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and Sharon Huemmer Pritchard, M.D., Defendants.

Civil No. 97-3027.

United States District Court, W.D. Arkansas, Harrison Division.

December 24, 1997.

Cynthia O. MacPherson, MacPherson Law Firm, Mountain Grove, MO, Frank H. Bailey, Bailey Law Firm, Mountain Home, AR, Thomas W. Cline, Gainesville, MO, for Daniel Kenning, Cyndia Kenning.

Walter Cox, Davis, Cox & Wright, Fayetteville, AR, for St. Paul.

Sidney P. Davis, Fayetteville, AR, for Dr. Pritchard.

MEMORANDUM OPINION

H. FRANKLIN WATERS, District Judge.

Currently before this court is separate defendant St. Paul Fire and Marine Insurance Company's motion for partial summary judgment and plaintiffs' response thereto. For the reasons set forth below, this court finds that said motion should be and hereby is granted.

I. FACTS

Plaintiffs contend that their son, Matthew Kenning, died as a result of a violation of 42 U.S.C. § 1395dd, commonly referred to as the "Patient Anti-Dumping Act." Specifically, plaintiffs contend that Matthew had an emergency medical condition when he sought treatment from Baxter County Regional Hospital ("Baxter"), that Baxter knew he had an emergency medical condition, and that Baxter discharged him without stabilizing his condition. Plaintiffs also assert that Dr. Sharon Pritchard misdiagnosed Matthew's condition and that her misdiagnosis was the proximate cause of his death.¹

On March 25, 1997, Daniel Kenning took his ten year old son, Matthew Kenning, to the emergency department at Baxter in Mountain Home, Arkansas. Plaintiffs were concerned about their son's persistent cough. Mr. Kenning states that he took his son to Baxter because he knew Baxter had emergency room services and would provide his son with the best care. Plaintiffs' Exhibit "R," at 2. Mr. Kenning had experience with Baxter when he worked with the Ozark County's Sheriff's Office and from when his two children were born. Id., at 1.

A registered nurse, Kathy Cox, examined Matthew and took his temperature, heart rate, respiratory rate, blood pressure, etc. Defendant's Exhibit "2," at 9-12. In addition, Ms. Cox asked Mr. Kenning all of the usual questions regarding Matthew's medical history, allergies, current medications, etc. Id., at 13-15. Ms. Cox states that when she examined Matthew he had a 100.7° temperature and was pale. Id., at 9, 15. Ms. Cox determined that Matthew's breathing was labored — he had a respiratory rate of sixty — but that his lungs were clear. Id., at 16. After performing her examination, Ms. Cox took Matthew to an examination room in the emergency department to await one of the physicians on duty, Dr. Sharon Pritchard.² Id., at 18.

Dr. Pritchard also examined Matthew and ordered the following tests: a complete blood count; a chest x-ray; and a blood culture. When Dr. Pritchard examined Matthew's chest x-ray she discovered that the left atrium of his heart was enlarged. Plaintiff's Exhibit "D," at 16. Dr. Pritchard also took Matthew's respiratory rate and she states that it had improved since the time of Ms. Cox's assessment. Plaintiffs' Exhibit "H," at 10. However, Dr. Pritchard did not record this change in Matthew's respiratory rate, which was in violation of Baxter's policy.

After examining Matthew, Dr. Pritchard phoned Dr. Yoland Condrey, a pediatrician, to discuss Matthew's condition and treatment options. Defendant's Exhibit "A," at 22, 23. Dr. Coundrey was in the hospital at the time, but she did not come down to the emergency room to examine Matthew. Dr. Pritchard states that she and Dr. Condrey agreed on the decision to discharge Matthew. Id., at 22. Dr. Pritchard asserts that she did not feel it was necessary to admit Matthew because she determined, in her clinical judgment, that outpatient therapy would be the best for Matthew. Id., at 31. Thus, Dr. Pritchard ordered medications to be given to Matthew at Baxter and prescribed additional medications to be administered to Matthew at home.

Dr. Pritchard diagnosed Matthew as having pneumonia and anemia and advised Mr. Kenning that he should take his son home to rest. Defendant's Exhibit "1," at 1. She told Mr. Kenning that he should make an appointment to see Dr. Condrey in a few days.

Dr. Pritchard states that she believed that Matthew's condition was stable at the time he was discharged from Baxter on the evening of March 25, 1997. The records indicate that Matthew's condition was considered stable and that he walked out of the hospital accompanied by a member of his family (Mr. Kenning). Defendant's Exhibit "1," (Baxter County Regional Hospital Emergency Department Nursing Record).

Matthew's chest x-ray film was examined on the morning of March 26, 1997, by Dr. G. Regnier. Dr. Regnier stated in his report that "[f]ilms of the chest made on this child ... show an abnormally large heart and shows marked pulmonary vascular changes of infiltration or congestion. At this time, there is no evidence of any fluid accumulation .... This child appears to have a serious disease process." Defendant's Exhibit "1," (Baxter County Regional Hospital Radiology Consultation Request). Dr. Condrey states in her deposition that, if she had seen the x-ray, she would have probably admitted Matthew, given his vital signs and low respiratory rate. Defendant's Exhibit "B," at 9.

Unfortunately, no one contacted plaintiffs regarding the results from Dr. Regnier's consultation. Thus, plaintiffs had no indication that their son's condition was life-threatening. On March 26, 1997, the day after Matthew was discharged from Baxter, he stopped breathing and was pronounced dead at 1:18 p.m.

Plaintiffs contend that Matthew's condition was an "emergency medical condition" and that Dr. Pritchard should not have discharged him from Baxter on the night of March 25, 1997. Plaintiffs offer the affidavit of Shane Bennoch, M.D., as proof that Matthew's condition was an emergency. Dr. Bennoch states that, in his opinion, according to Matthew's chart and the chest x-ray, Matthew had an "emergency medical condition." Plaintiff's Exhibit "E," at 2. Specifically, Dr. Bennoch states that "[p]neumonia and anemia in a ten year old child with an enlarged heart is an `emergency medical condition.'" Id.

Matthew Kenning did not have insurance. However, there is no evidence that Mr. Kenning was advised that he had to pre-pay for the medical services provided to his son, or that he was required to make a deposit or make any financial arrangements prior to Matthew receiving treatment at Baxter. Plaintiffs received a statement from Baxter for emergency room services a few days after Matthew was treated.

Dr. Pritchard states that she did not know at the time that Matthew was a "private pay" patient. Defendant's Exhibit "5," at 41. However, Matthew's admittance form indicates that he was a "private pay" patient. Defendant's Exhibit "1," at 1.

Plaintiffs contend that Dr. Pritchard was negligent in misdiagnosing Matthew. Plaintiffs assert that Dr. Pritchard is an agent of Baxter and thus, Baxter is vicariously liable for her negligence.

Plaintiffs seem to concede that Dr. Pritchard is an independent contractor. However, plaintiffs contend that Baxter can still be held liable for Dr. Pritchard's negligence under the theory of apparent authority or ostensible authority.

Dr. Pritchard has a contract with Dr. Pat Black, P.A. ("Black P.A.") to work as an emergency room physician at Baxter. Dr. Pritchard has no oral or written employment contract with Baxter.

Black P.A. is a professional association of physicians licensed to practice medicine in Arkansas. Black P.A. has a professional services agreement (the "Agreement") with Baxter to provide emergency room services. The Agreement provides that Black P.A. will be responsible for providing all professional emergency room services to Baxter, for responding to all Baxter codes, and for consulting with Baxter's staff when appropriate. Exhibit "A" to Defendant's Exhibit "4," at 1. The Agreement provides that Black P.A. shall receive 90% of Baxter's gross billings for emergency room services plus additional fees for second on-call coverage in the emergency room. Id. at 5. The Agreement requires that each physician of Black P.A. have his or her own malpractice liability insurance coverage in the amount of $500,000. Id. In addition, the Agreement states:

Black P.A. and [Baxter] are independent contractors for purposes of this Agreement. No employee or agent of one party shall be considered an employee or agent of the other party. Nothing in this Agreement shall create a partner, principal-agent, joint venture, or landlord-tenant relationship, or shall allow [Baxter] to exercise control over the professional medical judgment or the manner by which Black P.A. performs medical services under this Agreement ....

Id.

Dr. Pritchard states that she is an independent contractor, that she is paid an hourly fee for her services as an emergency room physician at Baxter by Black P.A. and that she does not receive a salary from Baxter. Defendant's Exhibit "5," at 45-46. Dr. Pritchard states that she was not wearing a name tag or any other identifying material on the night of March 25, 1997, that stated she was an employee of Baxter. Id. at 43.

As evidence that Baxter represented Dr. Pritchard to be its agent, plaintiffs point to the billing statement they received from Baxter for emergency room services rendered. It states at the top "Baxter County Regional Hospital" and it does not contain any reference to Black P.A. Exhibit "A" to Plaintiffs' Exhibit "R." In addition, plaintiffs assert that all of Matthew's medical records from Baxter are labeled or stamped "Baxter County Regional Hospital."

Plaintiffs also submitted various pamphlets and brochures that contain information about Baxter. Plaintiffs point to the fact that the brochures state...