Nguyen v. Ihc Health Serv. Inc
| Decision Date | 22 April 2010 |
| Docket Number | No. 20080738-CA.,20080738-CA. |
| Citation | 232 P.3d 529,2010 UT App 85 |
| Parties | Buu NGUYEN, Plaintiff and Appellant,v.IHC HEALTH SERVICES, INC., dba Primary Children's Medical Center; University of Utah Hospitals and Clinics; University of Utah; State of Utah; and Pulmonetic Systems, Inc., Defendants and Appellees. |
| Court | Utah Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Matthew H. Raty, Sandy, for Appellant.
Robert G. Wright, Brandon B. Hobbs, and Zachary E. Peterson, Salt Lake City, for Appellee Primary Children's Medical Center.
David G. Williams and Bradley R. Blackham, Salt Lake City, for Appellees University of Utah Hospitals and Clinics, University of Utah, and State of Utah.
Before Judges McHUGH, ORME, and THORNE.
¶ 1 Buu Nguyen appeals the district court's exclusion of his expert and the resulting dismissal of his claims for negligence and failure to obtain informed consent, as well as the court's grant of summary judgment on his intentional infliction of emotional distress and punitive damages claims. We affirm the district court's decisions, except as concerns the claim premised on failure to obtain informed consent. With respect to that claim, we reverse and remand.
¶ 2 Nguyen was the father of one-year-old Derek Nguyen. Derek was admitted into the pediatric intensive care unit (PICU) at Primary Children's Medical Center (PCMC) as a result of severe injuries he sustained in a car accident. Dr. Madeline Witte, a University of Utah School of Medicine employee, was responsible for Derek's care while at PCMC. During Derek's treatment, Dr. Witte concluded that a CT scan was necessary to determine if bleeding or a blood clot in Derek's brain was causing his deteriorating condition. The CT scanner was located on a different floor of the hospital, so a transport ventilator was used to facilitate Derek's transfer. The ventilator was a sales model of the unit that PCMC was considering purchasing. Derek was placed on the ventilator for approximately an hour before the transport and was transported only after it was determined that the ventilator would provide the support needed. While returning to the PICU after the CT scan, the ventilator lost power. Resuscitation attempts failed, and Derek died.
¶ 3 PCMC had developed a procedure to test and evaluate equipment it was considering for purchase, such as the ventilator. The process included identifying the type of appropriate test-patient and the need to obtain consent from the patient's parent before the equipment was used. Dr. Witte acknowledged in her deposition that the ventilator was only supposed to be used on “moderately ill” patients. She also stated that while Derek's father was told “that there was some risk involved” in transporting Derek, he was not told that the ventilator was a test model. According to Dr. Witte, she used the ventilator not as part of the testing process, but only because the ventilator was the only machine “available that [she] had confidence could deliver the level of support that Derek was requiring.” However, several people accompanied Derek as he was moved to observe the ventilator in action. Significantly, this group included a representative from the ventilator manufacturer.
¶ 4 Following an investigation regarding the ventilator's malfunction, Dr. Witte met with Nguyen and told him that the ventilator quit working because “a screw had made contact with the motherboard resulting in shutdown of the ventilator.” Dr. Witte also told Nguyen “that the malfunction of the ventilator clearly played a role in the timing of [Derek]'s death” but that Derek's severe injuries “could very possibly have resulted in his demise even in the absence of a ventilator malfunction.”
¶ 5 Nguyen filed a complaint against IHC Health Services, Inc., doing business as PCMC; University of Utah Hospitals and Clinics; University of Utah; and the State of Utah (collectively, Defendants) alleging negligence, failure to obtain informed consent, intentional infliction of emotional distress, and recklessness that justified punitive damages.1 After a July 23, 2008 hearing, the district court granted Defendants' motions for partial summary judgment on the claims of intentional infliction of emotional distress and punitive damages. The court also granted Defendants' motion to exclude Dr. John Goldenring from testifying as Nguyen's expert. Because “[Nguyen] ha[d] failed to offer admissible expert testimony to establish either a breach of the applicable standard of care or causation,” the court granted Defendants' summary judgment motion for the remaining claims of negligence and failure to obtain informed consent. Nguyen appeals the court's rulings.
¶ 6 Nguyen asserts that the trial court incorrectly granted summary judgment on his claims. A court shall grant summary judgment when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Utah R. Civ. P. 56(c).
A summary judgment movant, on an issue where the nonmoving party will bear the burden of proof at trial, may satisfy its burden on summary judgment by showing, by reference to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that there is no genuine issue of material fact. Upon such a showing, whether or not supported by additional affirmative factual evidence, the burden then shifts to the nonmoving party, who may not rest upon the mere allegations or denials of the pleadings, but must set forth specific facts showing that there is a genuine issue for trial.
Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600 (emphasis in original) (citations and internal quotation marks omitted). “We evaluate the evidence in the light most favorable to the party opposing summary judgment,” Doctors' Co. v. Drezga, 2009 UT 60, ¶ 9, 218 P.3d 598, and “review a district court's decision to grant summary judgment for correctness, giving no deference to the district court,” Raab v. Utah Ry. Co., 2009 UT 61, ¶ 10, 221 P.3d 219.
¶ 7 Nguyen also argues that the court improperly excluded Dr. Goldenring from testifying as an expert. Carbaugh v. Asbestos Corp., 2007 UT 65, ¶ 7, 167 P.3d 1063.
ANALYSIS
¶ 8 The district court properly granted Defendants' summary judgment motion on Nguyen's claim for intentional infliction of emotional distress. Nguyen's complaint alleged that Defendants acted outrageously by “using [Derek] as a test subject for, and as part of a sales demonstration of the Pulmonetic ventilator,” an untested ventilator, without obtaining Nguyen's consent. In responding to Defendants' summary judgment motion, Nguyen claimed that Defendants did not follow their own guidelines established for testing the ventilator and that “[n]o emergency existed to justify disregard of the protocols.”
¶ 9 Defendants argued in their summary judgment memoranda that even if all of Nguyen's assertions could be proven, the conduct as described did not establish that Defendants acted outrageously, as is required to prove a claim of intentional infliction of emotional distress,2see Oman v. Davis Sch. Dist., 2008 UT 70, ¶ 51, 194 P.3d 956. 3Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 28, 21 P.3d 198 (alterations in original) (citations and internal quotation marks omitted). Given Utah case law, the district court correctly ruled that any failure to follow the testing protocol under the circumstances of this case did not “amount[ ] to evidence of outrageous conduct.” 4
¶ 10 Furthermore, the district court correctly determined that no evidence established that Defendants intended to cause emotional distress. See generally Oman, 2008 UT 70, ¶ 51, 194 P.3d 956. In responding to Defendants' motions for summary judgment, Nguyen did not dispute that “Dr. Madeline Witte determined that a CT scan was critical to assess Derek's ongoing problems” and that “[b]efore Derek was transported to the CT scanner, he was placed on the Pulmonetics ventilator for approximately an hour to insure that the ventilator would provide Derek with the requisite levels of support.” This evidence demonstrates, as a matter of law, that Defendants' actions in using the ventilator were not outrageous or done to intentionally cause emotional harm to Nguyen. Therefore, the district court correctly granted Defendants' summary judgment motions on the intentional infliction of emotional distress claims.
¶ 11 The district court also properly granted PCMC's summary judgment motion on Nguyen's punitive damages claim. Nguyen argued that summary judgment on this claim was inappropriate because PCMC acted in “knowing and reckless disregard [of Derek's] safety” by attaching the critically ill and unstable child to the untested ventilator for purposes of evaluating the ventilator, by not consulting with other members of Derek's health care team about using the ventilator, by not following the established protocol for using the ventilator, and by not informing Nguyen that they were going to use an untested ventilator on Derek. We agree with the district court and PCMC that even if all those facts were established, they would not, as a matter of law, justify a punitive damages award because they would not...
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