Mackey v. U.S., 92-5200

• Decision Date: 05 November 1993
• Docket Number: No. 92-5200,92-5200
• Citation: 8 F.3d 826,303 U.S.App.D.C. 422
• Parties: Barbara J. MACKEY, Appellant, v. UNITED STATES of America, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 826

8 F.3d 826

303 U.S.App.D.C. 422

Barbara J. MACKEY, Appellant, v. UNITED STATES of America, et al., Appellees.

No. 92-5200.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 13, 1993.

Decided Nov. 5, 1993.

On Appeal from the United States District Court for the District of Columbia (No. 89cv02984).

Clifford A. Brooks, Washington, DC, argued the cause for appellant. With him on the briefs was William L. England, Jr., Washington, DC.

Michael T. Ambrosino, Asst. U.S. Atty., Washington, DC, argued the cause for appellee United States. With him on the brief were Jay B. Stephens, U.S. Atty. at the time the brief was filed, John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., Washington, DC.

Karen L. McDonald, Asst. Corp. Counsel, Washington, DC, argued the cause for appellee District of Columbia. With her on the brief were John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC.

Before: MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Appellant's aunt, Arlena Mackey, died on December 9, 1986, while in the care of D.C. General Hospital ("D.C. General"). Neither D.C. General nor St. Elizabeth's Hospital ("SEH"), the federal mental health institution at which Mackey had resided between 1964 and 1986, informed appellant that her aunt had passed away until six weeks after the date of death. Appellant Barbara Mackey sued the District of Columbia and the United States for intentional infliction of emotional distress; ¹ negligent infliction of emotional distress; and negligent interference with appellant's right to possession of, and right to bury or otherwise dispose of, Mackey's body.

Appellant's claims against the District of Columbia were tried to a jury and her claims against the United States were simultaneously tried to the District Court. The jury returned a verdict in appellant's favor, awarding her $25,000 in damages. The trial court thereafter granted a motion by the District of Columbia for judgment as a matter of law and set aside the jury's verdict. Mackey v. United States, No. 89-2984, slip op. (D.D.C. Apr. 23, 1992) ("Mem."), reprinted in Plaintiff's Appendix ("App.") 30. However, the District Court found the United States liable for negligently interfering with Barbara Mackey's right to possession of her aunt's body, and awarded appellant a $10,000 judgment. The trial court refused to award further damages on appellant's claim for negligent infliction of emotional distress, finding the evidence on this claim insufficient and uncorroborated. Mackey v. United States, No. 89-2984, slip op. (D.D.C. Feb. 10, 1992) ("Mem."), reprinted in App. 19.

Because we find that appellant offered sufficient evidence at trial from which a reasonable juror could have found negligence, we reinstate the jury's verdict against the District of Columbia. However, we affirm the District Court's refusal to award further damages against the United States on the claim of negligent infliction of emotional distress. The trial court correctly concluded that, on this record, District of Columbia law does not allow a presumption of damages for negligent infliction of emotional distress.

I. BACKGROUND

Mackey was a resident and patient at SEH from 1964 until late 1986. On November 28, 1986, Mackey was transferred to D.C. General where she remained a patient until her death on December 9, 1986. It was undisputed at trial that neither SEH nor D.C. General notified appellant (or any other relative) of Mackey's transfer to D.C. General, of her critical condition while at D.C. General or of her death. Without the knowledge or consent of any family member, D.C. General released Mackey's remains for burial in a pauper's grave on December 19, 1986. Appellant learned of her aunt's death in a January 21, 1987 letter from SEH concerning funds remaining in Mackey's account.

As Mackey's primary care provider, SEH was responsible for furnishing D.C. General with vital information about the patient. To this end, SEH provided D.C. General with a copy of Mackey's "face sheet." This document, which is usually kept at the top of a patient's records on the hospital ward, is supposed to contain the most current, accurate information on a patient, including the name, address and telephone number of the patient's next of kin. Trial Transcript ("Tr.") at 3A-38, reprinted in Plaintiff's Supplemental Appendix ("S.A.") 74. It was established at trial that, in November 1986, SEH provided D.C. General with a face sheet listing brother Julian Mackey (appellant's father) and nephew Robert Mackey (appellant's brother) as Arlena Mackey's next of kin. Julian Mackey had died in 1983, a fact which was reflected in other SEH records, but which somehow never was corrected on the face sheet. Robert Mackey's address and phone number were correct.

The evidence at trial established that once Mackey was transferred to D.C. General, it was that hospital's duty to apprise next of kin of Mackey's condition and death. Saverio Fantasia, a SEH administrator, testified that such duty was both a basic matter of hospital policy, see Tr. at 4A-23, and the subject of contractual agreement between SEH and D.C. General. That contract provided in pertinent part:

3.a. The Contractor [D.C. General] shall notify SEH and the next of kin immediately following the death of SEH patients in the contract facility. b. ... SEH will cooperate fully in notifying relatives to expedite removal of the remains as soon as possible after death.

Plaintiff's Exhibit 28, reprinted in S.A. 132.

Dr. Carl Green, the physician responsible for Mackey's care during her final stay at D.C. General, testified that, given Mackey's critical condition and the need to perform emergency medical procedures, extensive and continuous efforts should have been made to contact Mackey's next of kin. See Tr. at 3A-7, 3A-23-24. Dr. Green did not specifically remember Mackey nor any particular efforts to contact her family, but based his testimony on her medical records and on general hospital procedures. However, Mackey's medical records contained only the following notations reflecting efforts to contact a relative: (1) a note from a social service investigator on the second day of admission; (2) a second note from the social services worker dated December 4 mentioning an unspecified "plan" to try to reach relatives; (3) a resident's note reflecting calls placed to Julian and Robert Mackey; and (4) a call to SEH on December 8. Tr. at 3A-12-13, 3A-16. In response to questioning by appellant's counsel, Dr. Green conceded that, in order to protect the hospital and staff from the potential adverse legal consequences of engaging in procedures without consent, it was "very important" to document efforts to reach a patient's family. Tr. at 3A-26.

Dr. Green also testified that there would have been "daily calls" to SEH to apprise them of Mackey's critical condition and of D.C. General's inability to contact her family. Tr. at 3A-10. Mr. Fantasia cast doubt on this assertion, however, testifying that SEH was not notified of Mackey's six life-threatening "code blue" episodes "until well after the death occurred." Tr. at 4A-29. Moreover, the sole documented phone call to SEH was placed at 10:00 p.m. on December 8, the eve of Mackey's death. Mackey suffered a "code blue" and was resuscitated, after which the intern noted the following on her medical records:

Attempted to contact the family and also Saint Elizabeth's. The person who answered at Saint Elizabeth's [was] not aware of their [sic] being a patient at D.C. General by that name. Nephew's phone number in New York, no answer. Brother's number in North Carolina, wrong number.

Tr. at 3A-17-18. Dr. Green testified that, in connection with calls to SEH, it was not unusual during a late-night phone call to reach someone who was unfamiliar with the patient; Dr. Green said that if "vital information" was needed from SEH, it was understood that calls should be placed during the day. Tr. at 3A-41.

While it was undisputed that appellant's name appeared nowhere in D.C. General's records, there was clear evidence that SEH possessed appellant's name and correct address and telephone number, even though she was never listed on Mackey's face sheet or formally designated next of kin. Mr. Fantasia identified a number of documents from SEH's files demonstrating that SEH was aware of appellant's existence as early as 1983, including: (1) a letter to appellant from a SEH social worker, dated February 28, 1983, concerning Mackey's transfer to Georgetown University Hospital ("Georgetown") for surgery; (2) two Georgetown forms, dated March 3 and March 9, 1983, indicating that appellant had given telephonic consent to surgery for her aunt; (3) a letter to appellant, dated January 21, 1987, concerning funds remaining in Mackey's account after her death; and (4) an undated correspondence list containing appellant's name, address, phone number and relationship to Mackey. Tr. at 3A-46, 4A-21-22, 4A-33-34. Appellant testified that her home address and telephone number had not changed since 1978. Finally, Jeffrey Cheng, another SEH administrator, identified a SEH Death Report, prepared on December 20, 1986, which named appellant as Mackey's "nearest surviving relative" and listed her correct address. Tr. at 19.

II. DISCUSSION

A. District Court's Grant of Motion for Judgment as a Matter of Law

1. Standard of Review

In reviewing the trial court's order granting the District of Columbia's motion for judgment as a matter of law, we evaluate de novo whether appellant proffered "sufficient evidence upon which a jury could properly base a verdict" in her favor. Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 828 (D.C.Cir.1988) (emphasis in original), cert. denied, 493 U.S. 882, 110 S.Ct. 218, 107 L.Ed.2d 171 (1989). In so doing, we view...