Miller v. Spicer

• Decision Date: 07 May 1993
• Docket Number: Civ. A. No. 90-586 MMS.
• Citation: 822 F. Supp. 158
• Parties: Rod MILLER, Plaintiff, v. Robert SPICER, M.D., and Beebe Medical Center, Defendants.
• Court: U.S. District Court — District of Delaware

822 F. Supp. 158

Rod MILLER, Plaintiff, v. Robert SPICER, M.D., and Beebe Medical Center, Defendants.

Civ. A. No. 90-586 MMS.

United States District Court, D. Delaware.

May 7, 1993.

COPYRIGHT MATERIAL OMITTED

Barbara J. Gadbois, of Ament, Lynch & Carr, Wilmington, DE, for plaintiff Rod Miller.

John A. Elzufon, and Cathy A. Jenkins, of Elzufon, Austin & Drexler, P.A., Wilmington, DE, for defendant Robert Spicer, M.D.

Richard F. Stokes, Esq., of Tunnell & Raysor, Georgetown, DE, Of Counsel: Stephen A. Ryan, of Stephen A. Ryan, P.C., Bala Cynwyd, PA, for defendant Beebe Medical Center.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

I. INTRODUCTION

Defendants Robert Spicer, M.D., and Beebe Medical Center "Beebe" move for partial summary judgment on the issue of liability as to three of the claims asserted in plaintiff Rod Miller's complaint. For the reasons which follow, summary judgment on the issue of liability will be granted in favor of Dr. Spicer on plaintiff's claim defendants discriminated against him on the basis of his perceived human immunodeficiency virus "HIV" status in violation 29 U.S.C. § 794 (1988). Defendant Beebe's motion for summary judgment on this claim will be denied. Both defendants' motions for summary judgment on the issue of liability will be denied as to plaintiff's claim for intentional infliction of emotional distress. Summary judgment on the issue of liability will be granted in favor of both defendants as to plaintiff's claim for breach of contract.

II. FACTS

On June 28, 1987, plaintiff injured his foot and sought medical treatment at Beebe Medical Center's emergency room. Docket Item "D.I." 84 at B-41-42. Beebe employee Dr. Paul Emory diagnosed the injury as a lacerated tendon. He informed plaintiff that immediate surgery was necessary and that if surgery was not immediately performed, the tendon would not heal correctly and plaintiff's ability to walk could be permanently impaired. D.I. 84 at B-43. Hospital staff began to prepare the plaintiff and an operating room for the surgical procedure. D.I. at B-40, B-44.

Emory contacted Dr. Spicer, a surgeon with staff privileges at Beebe, who was then performing surgery in one of Beebe's operating rooms. D.I. 78 at A-26c; D.I. 98 at B-90. At or about the same time, some other unidentified Beebe employee also contacted the operating room being utilized by Spicer with a derogatory comment about plaintiff or plaintiff's companions that was apparently meant to be a joke. Intending to communicate that plaintiff and/or his companions were homosexual, the Beebe employee told those in the operating room that someone had come into the emergency room with "broken wrists." D.I. 98 at B-100. Thereafter Spicer reported to the emergency room to consult on plaintiff's treatment. Dr. Emory "whispered" to Spicer that plaintiff was homosexual. D.I. 98 at B-92. Spicer testified that aside from these incidents his belief that plaintiff was homosexual was based on his own observations of one of plaintiff's companions who, according to Spicer, demonstrated a gay affect. D.I. 84 at B-99-100.

Spicer then examined plaintiff in a manner that was brusque and rough. D.I. 78 at A-27. He questioned plaintiff, "Do you have any ailments?" When plaintiff responded in the negative Spicer again, more angrily asked plaintiff, "Do you have any ailments?" Receiving the same negative response Spicer then addressed a question to plaintiff's friends as well as plaintiff, "Okay. Look fellows, you're going to have to level with me. You're going to have to tell me whether he has AIDS." D.I. 78 at A-28.

Mr. Miller informed Spicer that he had had an "AIDS test" but that he did not know the results. D.I. 78 at A-29. Spicer was "bugged" by the fact that plaintiff did not know the results of his test. D.I. 84 at B-97. He testified in deposition that when plaintiff indicated he didn't know the results of the test, it was the "turning point in my relationship with the plaintiff." D.I. 84 at B-104. Spicer requested Beebe employees to attempt to ascertain the results of the test, but they were unsuccessful. D.I. 98 at B-44, B-49. Spicer then told plaintiff that because he could not obtain the results of plaintiff's AIDS test, Spicer would not perform the required surgery. D.I. 98 at B-49. Spicer has admitted that his determination to transfer the plaintiff rather than treat him was motivated by his inability to confirm plaintiff was HIV negative. He stated that he had to protect the women (nurses) in the operating room from the possibility the plaintiff might have AIDS. D.I. 78 at A-31, A-38. Spicer acknowledged that he transferred plaintiff to plaintiff's home town of the District of Columbia because "they take care of gay people." D.I. 84 at B-107.

Spicer arranged for a helicopter to transport plaintiff to George Washington University Medical Center. D.I. 84 at B-104, 106. After transportation was arranged Dr. Emory returned "sheepishly" to the emergency room to perform what Emory himself called the "dirty job" of informing plaintiff that he would be air lifted to the District of Columbia. D.I. 84 at B-48, B-50. Thereafter Dr. Emory inscribed on plaintiff's chart the phrase, "known admitted homosexual." D.I. 98 at 18-A. Plaintiff was not a known admitted homosexual; he had never been asked whether he was homosexual. D.I. 98 at B-54, B-97.

It appears that Dr. Emory could have taken efforts to prevent the allegedly discriminatory transfer of plaintiff if he so chose. Testimony shows that where an emergency room doctor employed by Beebe disagreed with the treatment plan of a "independent contractor" doctor such as Spicer, he can take steps such as contacting the chief of staff of the emergency room. D.I. 98 at B-22A-22B. Dr. Emory took no such action.

In the two hour period during which plaintiff awaited the helicopter, he began to complain that he was being denied treatment because of his perceived sexual orientation and HIV status and demanded to see his chart. D.I. 84 at B-12, B-52-54. When Nurse Burton showed him his chart he saw that the words "known admitted homosexual" had been written on it. D.I. 84 at B-54.

When plaintiff protested about being labelled homosexual without any basis and that his perceived sexual orientation and HIV status were the reasons for his transfer, Nurse Burton, with the knowledge of her supervisor Nurse Soots, telephoned Dr. Spicer at home. Spicer told her the reason for plaintiff's transfer was that he, Spicer, "didn't do" tendon repairs. D.I. 84 at B-67; D.I. 98 at B-13. Dr. Spicer has subsequently admitted that he has performed thousands of tendon repairs. D.I. 98 at B-94. In Burton's telephone call to Spicer, he declined to comment on plaintiff's accusations. D.I. 98 at B-21.

The nurses' actions appear to be in contravention of Beebe's antidiscrimination policy. The policy directs a nurse receiving a complaint of discrimination, including discrimination based on HIV status, to contact her nursing supervisor, here Nurse Soots. The supervisor is directed to contact the doctor in question. If she does not receive a satisfactory response from him or her, she is directed to contact the chief of service and the chief of staff who are charged with taking appropriate action. D.I. 92 at A-28-29; D.I. 98 at B-69A. The supervisor, Nurse Soots took no such action.

Plaintiff was subsequently air lifted to the District of Columbia. However, rather than being helicoptered to George Washington University Medical Center as he should have been, plaintiff was deposited at Georgetown University Hospital and was later taken to George Washington by ambulance. D.I. 84 at B-55. By the time plaintiff finally arrived at George Washington he was told that his foot was now so swollen it was impossible to perform a proper examination, much less surgery. D.I. 78 at A-33. Surgery was performed eight days later. Id. Plaintiff apparently now has permanent injury to his foot. D.I. 98 at B-37-39.

III. STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) provides that summary judgment

shall be rendered forthwith 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. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Fed.R.Civ.P. 56(c). The entry of summary judgment is inappropriate where there exists a genuine and material issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). An issue is genuine if a "reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. A fact is material if, under the relevant substantive law, determination of such fact might affect the outcome of the case. Id.

In determining if there exists a genuine issue of material fact, the Court should refrain from credibility determinations, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and instead draw all inferences in favor of the nonmoving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). However, if the movant demonstrates the absence of a genuine issue of material fact, the party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts" to prevent its entry. Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56. It is not sufficient for the party opposing summary judgment to provide a mere scintilla of evidence supporting his or her case. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512.

The moving party has the initial burden of identifying those parts of the pleadings, depositions, answers to...