Lacy v. Cooper Hospital/University Medical Center, Civ. A. No. 86-3762(SSB).

• Decision Date: 05 September 1990
• Docket Number: Civ. A. No. 86-3762(SSB).
• Citation: 745 F. Supp. 1029
• Parties: Gene H. LACY, Individually and as Administrator Ad Prosequendum of the Estate of Todd Lacy, Deceased and Gene H. Lacy and Jane Lacy, Plaintiffs, v. COOPER HOSPITAL/UNIVERSITY MEDICAL CENTER, Dr. Walter Broadnax, Dr. Sue McCoy, Dr. Robert Mirabile, Linda Sprout, and Dr. Mordicai Dunst and/or Veterans Administration Medical Center, Defendants.
• Court: U.S. District Court — District of New Jersey

745 F. Supp. 1029

Gene H. LACY, Individually and as Administrator Ad Prosequendum of the Estate of Todd Lacy, Deceased and Gene H. Lacy and Jane Lacy, Plaintiffs, v. COOPER HOSPITAL/UNIVERSITY MEDICAL CENTER, Dr. Walter Broadnax, Dr. Sue McCoy, Dr. Robert Mirabile, Linda Sprout, and Dr. Mordicai Dunst and/or Veterans Administration Medical Center, Defendants.

Civ. A. No. 86-3762(SSB).

United States District Court, D. New Jersey.

September 5, 1990.

Marc G. Brecher, Wapner, Newman & Associates, Philadelphia, Pa., for plaintiffs.

Jeanne A. Taylor, Dughi and Hewit, Mount Laurel, N.J., for defendant Dr. Dunst.

OPINION

BROTMAN, District Judge.

Presently before the court is a motion for summary judgment by defendant Mordicai Dunst, M.D. For the reasons stated herein, defendant's motion for summary judgment will be granted.

I. FACTS AND PROCEDURE

A. Prior Proceedings

Plaintiffs commenced a civil action for negligence and medical malpractice against Cooper Hospital/University Medical Center, Doctors Broadnax, McCoy, and Mirabile, and Nurse Sprout. During the course of discovery, plaintiffs' attorney obtained a letter written by Nurse Pauline Marra stating that an intern, defendant Dr. Dunst, had performed a procedure on plaintiffs' decedent, Todd Lacy ("Todd"), after he had been pronounced dead. Plaintiff's attorney then wrote a letter to plaintiffs telling them about Nurse Marra's letter.

On November 24, 1987, plaintiffs amended their complaint to include a cause of action against Dr. Dunst. Plaintiffs allege that Dr. Dunst "intentionally, recklessly, with deliberate indifference to the emotional sensitivities of plaintiffs' decedent's next of kin and without permission from plaintiffs' decedent's next of kin performed an invasive medical procedure known as a thoracentesis¹ by injecting a needle into plaintiffs' decedent's dead body." Third Amended Complaint, Fourth Cause of Action. Plaintiffs further allege that defendant's conduct "constituted a deviation from the standard of care reasonably to be expected of a physician in dealing with corpses and that it was reasonably foreseeable that such a deviation would cause emotional and substantial physical disability with respect to persons normally constituted, such as plaintiffs." Id.

On January 20, 1989, this court entered an order denying the motion of defendant Cooper Hospital/University Medical Center to dismiss Count IV of plaintiffs' Third Amended Complaint. The court stated that plaintiffs' Fourth Cause of Action "alleges a cause of action for mishandling of a corpse and not for emotional distress as a result of the death of a loved one." The court noted that "New Jersey recognizes a cause of action for mishandling a corpse, see Schwartz v. United Jersey Bank, 497 F.Supp. 335, 338 (D.N.J. 1980); Muniz v. United Hospitals Medical Center, 153 N.J. Super. 79 379 A.2d 57 (App.Div.1977)."

B. Facts

Todd was admitted to Cooper Medical Center on December 14, 1985, with a diagnosis of bowel obstruction. The obstruction was surgically corrected and Todd was recovering satisfactorily. On December 30, at around 9:30 p.m., Todd complained of chest pains. At about 5:15 a.m., Todd was found unresponsive, cold and clammy, and without blood pressure or a pulse. A Code was called. Defendant, Dr. Mordicai Dunst, M.D., was among the doctors that responded to the Code.² Defendant had not had any prior contact with Todd. After efforts at cardiopulmonary resuscitation ("CPR") were unsuccessful, defendant performed three pericardiocenteses³ on the patient. Defendant contends that the first pericardiocentesis yielded a white, milky fluid that is not expected to be found in the pericardial space. Brief In Support Of Motion For Summary Judgment On Behalf Of Defendant, Mordicai Dunst, M.D., at 2 ("Defendant's Brief"). Defendant performed another pericardiocentesis because he thought he had entered the stomach the first time. Defendant Dunst's Deposition at 100. The second pericardiocentesis yielded no fluid. Defendant's Brief at 2. Defendant concluded there was no fluid in the pericardial space and Todd was pronounced dead.⁴ Id.

Defendant contends that he then "looked around and I noticed a bottle containing fluid that had the same appearance as the fluid" from the first pericardiocentesis; this led defendant to conclude that the first pericardiocentesis was, in fact, in the correct place and that the fluid he withdrew may have come from the heart. Defendant's Deposition at 100. As a result of this realization, defendant decided to do a third pericardiocentesis in the hopes that the withdrawal of fluid would stimulate Todd's heartbeat. Id. at 113. The third procedure yielded "a small amount of fluid, similar in appearance" to the first procedure. Id. at 102. Unfortunately, Todd's heart did not respond and the doctors in attendance pronounced Todd dead a second time. Id. at 103. Defendant admits that a nurse present in Todd's room during the Code told defendant, when he started the third pericardiocentesis, that he should not "practice" on the body.⁵ He told her he was not practicing, but he did not stop and explain the situation to her because "this was an emergency situation. In order to have explained exactly what I was doing would have taken some amount of time. That amount of time would have possibly prevented his resuscitation." Id. at 112-13. Defendant stated that he did not write anything down regarding any of the three pericardiocenteses, id. at 103, and there is no mention of the procedures in the chart summary. According to the Final Summary report by pathologist Susan Gisser, M.D.,

at autopsy the major finding was necrosis of the right ventricular apex with a pericardial effusion of white, turbid fluid, grossly not unlike the hyperalimentation fluid. There was a cellular reaction to this, indicating that puncture occurred prior to actual demise and that the catheter tip was most likely delivering fluid directly into the pericardial cavity.

Reply Brief to Defendant, Mordicai Dunst, M.D.'s Motion for Summary Judgment ("Plaintiff's Brief"), Exhibit 7. Defendant asserts that this finding shows that the first pericardiocentesis was done in the correct place and, thus, justifies his having performed the third pericardiocentesis. Defendant's Brief at 2 n. 2.

Plaintiffs paint quite a different picture of the events after the Code was called. Plaintiffs allege that defendant performed an "invasive medical procedure" on Todd after he was dead. Third Amended Complaint, Fourth Cause of Action ¶ 33. In other words, plaintiffs contend that defendant was "practicing" on Todd's already dead body. Plaintiffs base their belief on a letter they received from their attorney⁶ regarding a letter Nurse Pauline Marra wrote to Dr. Carnahan. Defendant's Brief, Exhibit 4. Nurse Marra's letter primarily discussed her dissatisfaction with Dr. Broadmax's behavior toward Todd during the evening of December 30 and the morning of December 31. Id., Exhibit 3. With regard to defendant Dr. Dunst, Marra wrote "After the man was pronounced, Dr. Dunst proceeded to perform a thoracentesis⁷ even after I told him that it was unacceptable to practice on patients. He told me he was not practicing and was going to do it anyway!!" Id. She stated in her deposition that it is "unethical to be doing anything to a patient after he or she has been pronounced." Pauline Marra's Deposition at 12.

According to plaintiffs, defendant could not have been attempting to save Todd's life by a third pericardiocentesis because Todd already had no blood pressure or pulse when the Code was called, and CPR and two pericardiocenteses had been unsuccessful. Plaintiff's Brief at 5. In addition, plaintiffs note that defendant spoke to Dr. Camishion, one of the attending physicians, about the third pericardiocentesis. Id. In his deposition, Dr. Camishion stated, "defendant said that in order to rule out every possibility as a cause of death, he wanted to be sure that the patient hadn't had a pneumothorax, and he did an aspiration to check the air, which is a perfectly acceptable medical procedure." Id., Exhibit 11 (Deposition of Dr. Camishion at 131-32). Plaintiffs allege that this is evidence that Todd was already dead at the time of the third procedure.

Defendant contends that plaintiffs can prove no set of facts under which recovery for intentional infliction of emotional distress or for negligent infliction of emotional distress is available. Defendant is presently moving for a grant of summary judgment in his favor.

II. DISCUSSION

A. Summary Judgment Standard

The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir.1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the non-moving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Recent Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610,...