Melton v. Medtronic Inc

• Decision Date: 25 August 2010
• Docket Number: No. 4729.,4729.
• Citation: 698 S.E.2d 886,389 S.C. 641
• Court: South Carolina Court of Appeals
• Parties: William P. MELTON and Ann Frazier Melton, Appellants,v.MEDTRONIC, INC., Dr. Jennifer Feldman, and Columbia Heart Clinic P.A., d/b/a Columbia Heart and/or Columbia Heart Cardiologists, Defendants,of whom Dr. Jennifer Feldman, and Columbia Heart Clinic P.A., d/b/a Columbia Heart and/or Columbia Heart Cardiologists are Respondents.

389 S.C. 641

698 S.E.2d 886

William P. MELTON and Ann Frazier Melton, Appellants,v. MEDTRONIC, INC., Dr. Jennifer Feldman, and Columbia Heart Clinic P.A., d/b/a Columbia Heart and/or Columbia Heart Cardiologists, Defendants,of whom Dr. Jennifer Feldman, and Columbia Heart Clinic P.A., d/b/a Columbia Heart and/or Columbia Heart Cardiologists are Respondents.

No. 4729.

Court of Appeals of South Carolina.

Heard April 14, 2010.

Decided Aug. 25, 2010.

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Glenn E. Bowens, of Winnsboro, for Appellants.

Martin S. Driggers, Jr., of Hartsville, for Respondents.

WILLIAMS, J.

In this civil case, we must determine whether the circuit court erred in granting summary judgment in favor of Dr. Jennifer Feldman (Dr. Feldman) and Columbia Heart Clinic (collectively Respondents) on William and Ann Melton's (collectively Appellants) causes of action for medical malpractice, negligent misrepresentation, abandonment, and intentional infliction of emotional distress.¹ We affirm.

FACTS

William Melton (Melton) is a seventy-four-year-old male who resides in Winnsboro, South Carolina. In 2002, Melton had what he described as a “flicker of a blackout,” which caused him to become unsteady when he stood up. Following this episode, Melton visited his family physician, Dr. Manuel Venegas (Dr. Venegas), in Chapin, South Carolina. After putting Melton through a series of tests, Dr. Venegas concluded Melton did not have a serious heart problem. However, as a safety precaution, Dr. Venegas referred Melton to Dr. Feldman, a cardiologist in Columbia, for further assessment.

Dr. Feldman arranged for Melton to have a catheterization performed on June 24, 2002. Before the catheterization, Melton was given a form to sign that would authorize Dr. Feldman to implant a cardioverter defibrillator (ICD) into Melton's heart if necessary. Although Melton does not recall being told exactly what an ICD would do or whether he actually needed one, he signed the form.

After the catheterization, Dr. Feldman informed Melton he needed to have an ICD implanted. Dr. Feldman recommended an ICD made by Medtronic, Inc. (Medtronic). On June 25, 2002, Melton signed a consent form authorizing Dr. Feldman to implant a Medtronic Marquis ICD (the ICD) into his chest. Melton understood the purpose of the ICD was to deliver a shock to his heart if it needed regulating. However, Melton does not recall Dr. Feldman ever offering any advice on which type of ICD she would be implanting, which ones were better than others, or what the risks of implanting an ICD were. Further, according to Melton, when he asked Dr. Feldman how she chooses one company's ICD over another, she responded, “I choose according to which company's representative I like the best.”

The summer after Dr. Feldman implanted the ICD, the ICD delivered an unexpected shock to Melton's heart. During his next visit, Dr. Feldman told Melton the ICD was “set at the wrong speed,” and so she had a nurse adjust it accordingly. Thereafter, on the morning of June 10, 2005, Melton experienced yet another unexpected shock from the ICD as he was getting dressed. Melton's wife called for an ambulance, which took Melton to Providence Memorial Hospital.

At some point after the June 2005 incident, during a “normal defibrillator visit,” a nurse informed Melton that up to 1.5 percent of the type of Medtronic ICDs that Melton had implanted in his chest “may suffer sudden and premature battery failure.” ² According to Melton, the nurse also stated Dr. Feldman “had known about the defect for about a year but [was not] allowed to tell patients that the battery might go dead at any moment....” Neither the nurse nor Dr. Feldman gave Melton any advice as to whether to replace the ICD. Melton was, however, given a copy of a “Device Alert,” which discussed the potential defect, how to monitor the battery of an implanted ICD, and that the patient had the option of having a different ICD implanted. At one point, the Device Alert reads, “My signature below indicates that all of the information above has been explained to me including the risks and benefits of each course of action, and that I had a chance to ask questions about this information.” Melton signed his name at the bottom of the Device Alert.

Melton and Dr. Feldman decided to replace the ICD with one made by Guidant. The surgery to replace the ICD was scheduled for July 6, 2005. Before that time, however, Melton read in the Wall Street Journal and other publications that Guidant, like Medtronic, was experiencing technical problems with their ICDs. When Melton called Dr. Feldman's office to discuss the surgery and the other kinds of ICDs that were available, a nurse told him Dr. Feldman was on vacation in Australia, and “if [he] wanted any information, to go to the website of the company.” Upon returning from her vacation, Dr. Feldman called Melton. Melton claims Dr. Feldman was upset that Melton “didn't trust her choice of putting in a Guidant,” and that she said he “shouldn't have any questions about it[.]” Ultimately, Dr. Feldman told Melton, “You don't trust me, you need to get another doctor, ... and don't even come back to my group.” Dr. Feldman did provide Melton the name of another doctor with the University of South Carolina; however, Melton never called that doctor.

Appellants commenced this action against Medtronic, Dr. Feldman, and Columbia Heart Clinic on April 17, 2006.³ Appellants settled their claims against Medtronic. As part of discovery, the Respondents took depositions from Melton and his wife. Respondents also took depositions from three of Melton's treating physicians: his current family physician, Dr. Venegas; his former family physician, Dr. Roger Gaddy (Dr Gaddy); and his current cardiologist, Dr. John Beard (Dr. Beard). Neither Dr. Feldman nor the nurse with whom Melton spoke at Columbia Heart Clinic were deposed. Dr. Feldman and Columbia Heart Clinic moved for summary judgment on December 27, 2006.

The circuit court granted summary judgment as to all claims against the Respondents. As to Melton's causes of action for medical malpractice, negligent misrepresentation, and abandonment, the circuit court held those claims were “all de facto claims for medical malpractice” and, therefore, Melton was required to provide expert testimony. The circuit court found Melton failed to produce expert testimony establishing the standard of care, breach, and proximate causation. As to Melton's cause of action for outrage or intentional infliction of emotional distress, the circuit court found Melton presented “insufficient evidence that the conduct of [Respondents] was outrageous in any respect.” As to Melton's two causes of action for breach of warranty, the circuit court held those were products liability claims. Accordingly, because neither of the Respondents was the “seller” of the ICD, summary judgment was appropriate. Finally, as to Melton's wife's action for loss of consortium, the circuit court held because her claim was dependent on Melton's claims, summary judgment was appropriate. This appeal followed.

STANDARD OF REVIEW

“The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder.” Dawkins v. Fields, 354 S.C. 58, 69, 580 S.E.2d 433, 438 (2003). “An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under Rule 56(c), SCRCP.” Bovain v. Canal Ins., 383 S.C. 100, 105, 678 S.E.2d 422, 424 (2009). “Rule 56(c) of the South Carolina Rules of Civil Procedure provides that a trial court may grant a motion for summary judgment ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Rule 56(c), SCRCP). “In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party.” Hancock v. Mid-South Mgmt. Co., 381 S.C. 326, 329-30, 673 S.E.2d 801, 802 (2009).

LAW/ANALYSIS

A. Outrage/Intentional Infliction of Emotional Distress

Melton argues the circuit court erred in granting summary judgment in favor of the Respondents on his claim for outrage. We disagree.

To establish intentional infliction of emotional distress or outrage, a plaintiff must establish: (1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from his conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, and utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable man could be expected to endure it. Shupe v. Settle, 315 S.C. 510, 517, 445 S.E.2d 651, 655 (Ct.App.1994). “Facts which may show extreme insensitivity on the part of the defendant do not necessarily establish the tort of outrage.” Hawkins v. Greene, 311 S.C. 88, 91, 427 S.E.2d 692, 694 (Ct.App.1993).

We find no evidence in the record suggesting that Dr. Feldman or Columbia Heart Clinic acted intentionally or recklessly to inflict severe emotional distress on Melton. Moreover, while Dr. Feldman's decision to dismiss Melton as a patient so close to the date of his scheduled surgery was arguably insensitive, we can hardly deem such conduct “so extreme and outrageous as to exceed all possible grounds of decency” or “utterly intolerable in a civilized community,” especially in light of the fact that Melton admitted Dr. Feldman provided him with the name of another cardiologist. Shupe, 315 S.C. at 517, 445 S.E.2d at 655.

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