McGill v. Newark Surgery Ctr.

• Decision Date: 03 April 2001
• Docket Number: No. 99-CV-02.,99-CV-02.
• Citation: 113 Ohio Misc.2d 21,756 NE 2d 762
• Parties: McGILL et al. v. NEWARK SURGERY CENTER et al.
• Court: Ohio Court of Common Pleas

113 Ohio Misc.2d 21

756 NE 2d 762

McGILL et al. v. NEWARK SURGERY CENTER et al.¹

No. 99-CV-02.

Court of Common Pleas of Ohio, Licking County.

Decided April 3, 2001.

James M. Roper, for plaintiffs.

Theodore M. Munsell, for Newark Surgery Center, Ambulatory Resource Centres, Inc. and ARC Management Services.

Christopher Meyer, for Licking Memorial Hospital.

Margaret R. Carmany, for T. Frederick Weigand, Jr., M.D.

Gregory B. Foliano, for Seung Hah Park, M.D.

GREGORY L. FROST, Judge.

I. Nature of the Proceedings

This matter came before court on the motion for summary judgment of defendant Licking Memorial Hospital ("LMH"). After consideration of the pleadings, affidavits, appropriate exhibits, and memoranda, this court makes the following entry. In ruling upon the motion, the court is required to construe the evidence in a manner most favorable to the plaintiffs, interpreting the record of evidence properly before it, and all reasonable inferences arising from such evidence, in favor of the plaintiffs and against defendant LMH, which is the moving party. Set forth below is a recitation of the relevant facts, so construed in plaintiffs' favor:

II. Facts

The facts giving rise to this action involve the relationship between defendant LMH and defendant Newark Surgery Center ("NSC"), and the events that occurred on December 4, 1998. Until June 1998, LMH was the only entity that provided outpatient surgery in Licking County. However, in June 1998, NSC opened as a provider of outpatient surgical services.

Before opening for business, NSC contacted LMH in an effort to obtain a transfer agreement with LMH. NSC sought the agreement with LMH to allow the transfer of patients from NSC to LMH without incident. One reason for seeking the transfer agreement is that LMH and NSC are within one mile of each other. After numerous failed attempts by NSC to meet with LMH's CEO, William J. Andrews, due to cancelled or rescheduled appointments by Andrews, NSC eventually learned that LMH would not consider a transfer agreement with NSC because NSC is LMH's competitor.

At the same time, NSC was also pursuing a transfer agreement with the Ohio State University Hospital in Columbus, Ohio. NSC successfully obtained a transfer agreement with the Ohio State University Hospital. In addition, NSC obtained an agreement with the Central Ohio Regional Red Cross in Columbus for the supply of blood and blood products. According to testimony on behalf of NSC, NSC did not pursue an agreement with LMH for the supply of blood and blood products because, after LMH refused to consider a transfer agreement with NSC, NSC did not believe LMH would consider an agreement for the supply of blood and blood products.

Notwithstanding, LMH maintains a Central Ohio Regional Red Cross blood bank on its premises. LMH is one of forty entities throughout central Ohio to maintain a Red Cross blood bank. The agreement between LMH and the Red Cross permits LMH to house Red Cross blood and blood products, although LMH does not own the blood or blood products. As already noted, while LMH houses a Red Cross blood bank, and NSC has an independent agreement with the Red Cross in Columbus, LMH and NSC had no agreement with each other concerning the supply of blood and blood products.

Against this backdrop, the court now turns to the tragic events of December 4, 1998. On that date, Patricia McGill underwent elective outpatient surgery at the Newark Surgery Center. As part of the surgery, Mrs. McGill was to undergo a laparoscopic tubal ligation. During this part of the surgery, bleeding was noted by the surgeon, Dr. Maureen Yablonski. The bleeding was detected at approximately 3:08 p.m. Several minutes later, at approximately 3:10 p.m., the anesthesiologist, Dr. Park, ordered four units of 0 Negative blood.²

According to the testimony of Marcie Kincaid, a managing nurse at NSC, she requested a type and cross-match sample to send to the Red Cross in Columbus to obtain the requested blood. However, Kincaid was instructed by the physicians to call LMH and request the blood. Kincaid testified she called the blood bank at LMH at approximately 3:10 p.m. Kincaid spoke with Carol Hill at the LMH blood bank. The testimony indicates that Kincaid relayed to Hill that four units of blood were needed for an emergency at the surgery center. Kincaid testified that she requested four units of packed red blood cells, while the testimony of the physicians is that Kincaid was instructed, and did, request four units of O Negative blood.³ Hill denied the request for blood, indicating that LMH had no agreement to supply blood to NSC. Hill also told Kincaid to transfer the patient to LMH. Thereafter, Kincaid informed the physicians LMH would not supply the blood.

During this time frame, Kincaid apparently had also contacted the Red Cross in Columbus to inform them that a type and cross-match would be sent, so they could prepare to release four units of O Negative blood. Kincaid testified, however, that she did not order blood at that time from the Red Cross, because she was still waiting for a type and cross-match sample.

Regardless, by approximately 3:25 p.m., Dr. T. Frederick Weigand had arrived to aid in the surgery, and specifically to help control and/or stop the bleeding. Dr. Weigand instructed Kincaid to again call LMH and request four units of O Negative blood. During the second phone call, Kincaid stated that four units of O Negative blood was needed for a life and death emergency. Again, Hill indicated she was unable to provide the blood.

After the second phone call, and at approximately 3:30 p.m., Kincaid spoke again with the Red Cross in Columbus, Ohio, who, according to Kincaid's testimony, had remained on the phone. Kincaid spoke with JoAnn Kosanke and indicated that NSC needed four units of O Negative blood for an emergency situation. Apparently, Kosanke told Kincaid to make the request to LMH because it was an emergency. Kincaid explained LMH had already denied the request.

Kincaid was then instructed by the physicians to call LMH a third time to request the blood. Thus, at approximately 3:40 p.m., Kincaid again called Carol Hill at the LMH blood bank. During this call, Dr. Weigand of NSC asked to speak with Dr. Hahn, the pathologist at the blood bank at LMH. Dr. Hahn was apparently unaware of the circumstances, and passed the phone back to Hill. Dr. Weigand testified that Hill stated that she had been instructed not to supply any blood or blood products to NSC. Hill also stated that she would lose her job if she provided the requested blood to NSC. Thereafter, Dr. Weigand told Kincaid to speak with Hill. Dr. Weigand testified that his heart sank as he got off the phone because he did not believe LMH would provide the blood.

Immediately thereafter, Hill apparently told Kincaid to obtain approval to release the blood from the Red Cross, which owns the blood at LMH, and LMH would then release the Red Cross blood from the LMH blood bank. According to the testimony of Kincaid, the Red Cross provided authorization to LMH to release blood from the LMH blood bank.

Simultaneously, Kincaid dispatched two persons to LMH to retrieve the four units of 0 Negative blood. Upon arrival, the couriers were provided with only two units of 0 Negative blood. The two units arrived back at the surgery center and were transfused into the patient at approximately 4:00 p.m.

Thereafter, at approximately 4:28 p.m., the physicians prepared the patient for transfer to LMH by ambulance. While moving the patient from the surgery table to the gurney, the patient went into cardiac arrest. The patient was treated and stabilized and then placed in the ambulance for transfer. On the way to LMH, the patient again went into cardiac arrest. Despite continuous efforts during the transfer and at LMH, the patient expired, and was pronounced dead at approximately 5:55 p.m. The blood loss caused the patient's cardiac arrest. Testimony has been submitted by plaintiffs indicating that if blood had been provided earlier, and in the amount requested, the patient could have been saved.

Two other disputed facts are relevant for this decision. First, plaintiff Robert M. McGill, spouse of the decedent, submitted an affidavit stating that he was present at LMH when his wife was brought in from the ambulance. McGill stated that he witnessed his wife covered in bloody drapes as she was wheeled into the hospital, with physicians and nurses working to resuscitate her from cardiac arrest. Second, the hospital chart indicates that the decedent was awake and responsive upon arrival at LMH. Noted on the chart next to these entries is the word "error." With regard to these notations, the testimony is consistent and indicates that the decedent was never conscious from the time surgery commenced, up to the point of her expiration. LMH now seeks summary judgment on all of plaintiffs' claims against LMH. LMH premises its request for summary judgment by initially arguing, because the decedent was not a patient of LMH until 5:00 p.m. on December 4, 1998, LMH owed no legal duty to supply blood to the decedent. In addition, LMH seeks summary judgment on plaintiffs' claims for survivorship, negligent infliction of emotional distress, and punitive damages. In response, plaintiffs contend that summary judgment must be denied because LMH owed a legal duty to provide blood to the decedent, whom LMH knew was in a life-and-death emergency, because LMH maintains a Red Cross community blood bank on its premises. In addition, and/or alternatively, plaintiffs argue that LMH voluntarily assumed a duty when it released two trauma units of blood to NSC. Finally, plaintiffs contend that genuine issues of material fact exist with regard to the remaining claims, and, therefore, assert that summary judgment cannot be granted to LMH.

III. Standard of Review

The standard to be applied when construing a motion for summary judgment is set out in...