Martin v. Ohio County Hosp. Corp., No. 2008-SC-000211-DG.

• Decision Date: 01 October 2009
• Docket Number: No. 2008-SC-000211-DG.
• Citation: 295 S.W.3d 104
• Parties: Tina MARTIN, Administratrix of the Estate of Billie Carol Shreve, Deceased; and Donald Ray Shreve, Individually, Appellants, v. OHIO COUNTY HOSPITAL CORPORATION, Appellee.
• Court: United States State Supreme Court — District of Kentucky

295 S.W.3d 104

Tina MARTIN, Administratrix of the Estate of Billie Carol Shreve, Deceased; and Donald Ray Shreve, Individually, Appellants, v. OHIO COUNTY HOSPITAL CORPORATION, Appellee.

No. 2008-SC-000211-DG.

Supreme Court of Kentucky.

October 1, 2009.

Abram V. Conway, II, Conway & Keown, Hartford, KY, Wanda McClure Dry, Oak Ridge, TN, Counsel for Appellants.

Ronald Sheffer, William Kenneth Burnham, Sheffer Law Firm, LLC, Louisville, KY, Counsel for Appellee.

Kevin Crosby Burke, Paul A. Casi, II, Paul A. Casi, PSC, Louisville, KY, Counsel for Amicus Curiae, Kentucky Justice Association.

Opinion of the Court by Justice NOBLE.

The Appellants in this action, Tina Martin, Administratrix of the Estate of Billie Carol Shreve, Deceased, and Donald Ray Shreve, Individually, were granted discretionary review of the Court of Appeals' reversal of the trial court's judgment. Two issues are raised: Whether a surviving spouse is entitled to loss of consortium damages beyond the death of the injured spouse for the unlawful acts of a third party; and whether the Appellee, Ohio County Hospital Corporation, was entitled to a directed verdict on a claim under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd. This Court reverses the decision of the Court of Appeals.

I. Background

The decedent in this action, Billie Carol Shreve, was injured in an automobile accident a short distance from the hospital run by Appellee, Ohio County Hospital Corporation. She was properly taken to the hospital's emergency room, and was first seen by a registered nurse who performed triage. The patient had indications of blunt abdominal trauma and stated that she was uncomfortable, and although she otherwise appeared stable at first, rapidly deteriorated. Her blood pressure began to drop severely and her pulse rate elevated approximately an hour and twenty-five minutes after arriving at the hospital, and she lapsed into unconsciousness some nine minutes later. The nurse and doctor attending her testified that by that time, they believed she had gone into shock, was probably hemorrhaging, and was in need of a surgeon. However, there was no surgeon available to the hospital, or one was not called. The attending physician could not pinpoint the source of bleeding, but ordered blood transfusions. This treatment gave rise to a negligence claim that is not before the Court. Despite no surgeon being available, the patient was not transferred to an appropriate facility at that time. Instead, the attending physician ordered a CT scan, but had to forward the films to another hospital to have a radiologist read them. It was over four hours later before the patient was transferred to another hospital. By the time she arrived, the patient had bled to death.

The medical negligence action against the physician was settled before trial, and the driver who caused the accident was never made a party. The trial court gave an instruction on loss of consortium damages that limited those damages to the brief period from the time of the accident until Mrs. Shreve's death and to a total of $250,000. The jury awarded the maximum under this instruction.¹ Appellant Donald Ray Shreve offered a post-death loss of consortium instruction which the court declined, but he did not appeal this denial.

The trial court also gave an apportionment instruction on the fault of the driver, the doctor, and the hospital. The jury awarded no fault against the driver, 50% of fault against the doctor, and 50% against Appellee. On appeal, the Court of Appeals held that Appellee was entitled to a directed verdict both on the claim made by Appellant, Donald Ray Shreve, the spouse of the decedent, for loss of consortium, and on the claim made under the Emergency Medical Treatment and Active Labor Act, (EMTALA), 42 U.S.C. § 1395dd. This Court granted discretionary review.

A. Loss of Consortium after Death

The issue of whether a spouse may claim loss of consortium after the death of her spouse turns on what the silence of the legislature on that issue in KRS 411.145 means.

At common law, loss of consortium was historically a one-way street. A husband could claim loss of consortium with his wife up until her death, but a wife could not claim the same loss with her husband. Then, in 1970, this Court's predecessor in Kotsiris v. Ling, 451 S.W.2d 411 (Ky.1970), expanded the cause of action for loss of consortium to allow a wife the same claim. That same year, KRS 411.145 was enacted, and states as follows:

(1) As used in this section "consortium" means the right to the services, assistance, aid, society, companionship and conjugal relationship between husband and wife, or wife and husband.

(2) Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person.

The statute defines "consortium" in such a way that it does not necessarily include financial support, but can be read to cover only the emotional and physical elements of a relationship between husband and wife such as love, companionship, and sexual relations. As such, it does not cause a double recovery through a wrongful death action claiming economic loss. Also, contrary to the common law up until Kotsiris, either a husband or wife may recover damages for this loss from a culpable third party. On its face, the statute gives equality for loss of consortium to both spouses, and codifies loss of consortium as a cause of action.

However, loss of consortium developed as a common law concept, and under common law it terminated with the death of the spouse. The reasoning was that death terminated any possibility of a spousal relationship, and thus all loss would be covered by a wrongful death action. See generally Thomas Cooley, A Treatise on the Law of Torts 470 (3d ed.1906). Grounded initially on the loss of sexual congress, the common law doctrine evolved to include the "softer" aspects of a relationship, and finally, in Kotsiris, an equal claim for either spouse.

But with the enactment of the statute, the General Assembly made loss of consortium a statutory cause of action, which belongs specifically to a spouse, not to the estate of the deceased. The statute is silent as to whether such a claim is limited to the loss up until the spouse's death or extends beyond it. At common law, as noted above, loss of consortium claims ended at death. An argument can be made that the legislature intended to codify the cause of action of loss of consortium as it existed at common law, and thus the silence must be interpreted to mean that the claim still ends at death. But an equally viable argument can be made that if legislators had so intended, they would have said so. Instead, the statutory language is a broad grant without stated limitations of any kind, subject only to the general principles of tort law and the procedural rulings of the courts.

Thus the Court is left to construe the statute until the legislature clarifies its meaning by amending the statute or enacts a different statute.

Appellant argues that spouses have a loss of consortium claim extending beyond the death of their spouse because this Court extended such a right to children in Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997). Finding that "[t]he claim of loss of parental consortium is a reciprocal of the claim of the parents for loss of a child's consortium which was recognized in KRS 411.135," id. at 321, this Court determined that recognizing a parent's right to loss of love and affection of a child and not allowing the converse for the child ran counter to public policy which favors strengthening family bonds. It is interesting to note that the statute limits the parents' recovery to the time it would have taken a child to reach majority, but this Court did not specify such a restriction on the child's claim for loss of consortium. The opinion is completely silent as to the duration of the damages. In other ways, however, this case is significantly different from Guiler.

First, there is a statute which gives spouses a claim for loss of consortium. To date, there is still no statute which gives children a right to parental loss of consortium damages. Contra, KRS 411.135 gives parents damages for loss of consortium with the child. That statute, which this Court in Guiler termed as "reciprocal" to a child's loss of parental consortium claim, does not appear to create a separate cause of action, but instead begins, "In a wrongful death action in which the decedent was a minor child," and goes on to say that the loss of affection and companionship is an element of damages to be recovered "in addition to all other elements of the damages usually recoverable in a wrongful death action." This appears to be an additional element of damages within the wrongful death statute, not a separate cause of action for loss of consortium. Nevertheless, this Court has held that the parents of a deceased child do have a claim under this statute for the loss of affection and companionship of their child regardless of whether the personal representative of the child's estate ever asserts a claim for wrongful death. Dep't of Educ. v. Blevins, 707 S.W.2d 782, 785 (Ky.1986). That opinion followed the Guiler decision, and is consistent with the notion that loss of consortium is a personal rather than an estate right. The statutes do not give children such a personal claim; that was done by the Court in Guiler.

KRS 411.145, which was enacted in 1970, the same year the Court issued its opinion in Kotsiris, says that a wife or a husband "may recover damages against a third person for loss of consortium" resulting from a negligent or intentional act, clearly establishing a separate cause of action for spousal loss of consortium. Such a recovery is not premised on the spouse's death, so it is not specifically a part of a wrongful death claim under Kentucky law. Loss of consortium...