Perry v. Saint Francis Hosp. & Medical Center

• Decision Date: 26 April 1995
• Docket Number: No. 93-4231-SAC.,93-4231-SAC.
• Parties: Mary Ann PERRY, Ron Perry, Don Perry, Linda Huntsman, Beverly Blassingame, and Vickie Puff, Plaintiffs, v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER, INC. and American National Red Cross, Defendants.
• Court: U.S. District Court — District of Kansas

886 F. Supp. 1551

Mary Ann PERRY, Ron Perry, Don Perry, Linda Huntsman, Beverly Blassingame, and Vickie Puff, Plaintiffs, v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER, INC. and American National Red Cross, Defendants.

No. 93-4231-SAC.

United States District Court, D. Kansas.

April 26, 1995.

COPYRIGHT MATERIAL OMITTED

Nancy E. Freund, Murphy & Freund, Ronald P. Pope, Eugene B. Ralston & Assoc., P.A., Topeka, KS, for plaintiffs Mary Ann Perry, Ron Perry, Don Perry, Linda Huntsman, Beverly Blassingame, Vickie Puff.

Thomas L. Theis, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for defendant and cross-defendant St. Francis Hosp., Saint Francis Hosp. and Medical Center, Inc.

James S. Pigg, Kristine A. Larscheid, Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendant and cross-defendant American Nat'l Red Cross.

MEMORANDUM AND ORDER

CROW, District Judge.

"Death is unique. It is unlike aught else in its certainty and its incidents. A corpse in some respects is the strangest thing on earth. A man who but yesterday breathed, and thought, and walked among us has passed away. Something has gone. The body is left still and cold, and is all that is visible to mortal eye of the man we knew. Around it cling love and memory. Beyond it may reach hope. It must be laid away. And the law — that rule of action which touches all human things — must touch also this thing of death."

Louisville & N.R. Co. v. Wilson, 123 Ga. 62, 63, 51 S.E. 24 (1905).

This is a tissue donation case in which the plaintiffs allege the defendants took from the deceased Kenneth Perry's body more tissue than what the plaintiffs had agreed to donate. Specifically, the plaintiffs allege they gave their consent to remove the corneas from Kenneth's eyes and to remove the bone marrow from Kenneth's bones. The defendants, however, removed not just the corneas, but the entire eyes, and not just the bone marrow, but the large major bones from the upper arm, hip and leg regions.

The case comes before the court on the defendant Saint Francis Hospital's ("St. Francis") motion for summary judgment. (Dk. 121). The hospital requests oral argument on its motion. After reviewing the briefs and exhibits submitted, the court does not believe that oral argument would materially assist it in deciding the motion for summary judgment. The court denies the request for oral argument.¹

The plaintiffs recently dismissed with prejudice their claims against the defendant American National Red Cross. (Dk. 146). In their response to the hospital's motion, the plaintiffs limit their claims against the hospital to the tort of outrage, breach of contract, and negligence. The court's prior order (Dk. 105), published at 865 F.Supp. 724, 729 (D.Kan.1994), also limited these pending claims in two material respects.

First, for the adult children of Kenneth Perry to have a breach of contract claim, they must allege and prove their consideration was something other than a right to donate Kenneth's body. Because Mary Ann Perry, as the surviving spouse of Kenneth, had the exclusive statutory and common-law right to custody of Kenneth's body, only she could contract with regards to that right. By a rhetorical question, the court recognized the possibility of the adult children's consideration being something other than their mother's right to donate: "Could not the adult children contract with the defendants for a particular harvest procedure in exchange for their promise to abide by, support, and counsel their mother in her decision to donate their father's body?" 865 F.Supp. at 728. Since such a contract would be consistent with the plaintiffs' allegations for breach of contract, the court denied the defendants' motions to dismiss this claim. Id.

Second, the court understood the plaintiffs' negligence claim to allege that the defendants owed a duty to conform their procedures and actions to what Nurse McDonald had represented as the manner for removing the corneas and bone marrow. 865 F.Supp. at 728. On this claim, the plaintiffs seek to recover for their emotional distress. The court followed the long-established rule in Kansas that a plaintiff may not recover for emotional distress unless either "`the distress is accompanied by or results in a physical injury,'" or the wrongful act is "`wanton or willful or ... is committed with malice and intended to cause mental distress.'" 865 F.Supp. at 729 (quoting first Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 274, 662 P.2d 1214 (1983), and quoting second Bowman v. Doherty, 235 Kan. 870, 879, 686 P.2d 112 (1984)). Since the plaintiffs had alleged that the defendants' conduct was "gross and wanton," the court denied the defendant's motion to dismiss. 865 F.Supp. at 729.

SUMMARY JUDGMENT STANDARDS

A court grants a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The initial burden is with the movant to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). If this burden is met, the non-moving party must "come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case." Martin v. Nannie and Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) (citations omitted). "`The party opposing the motion must present sufficient evidence in specific, factual form for a jury to return a verdict in that party's favor.'" Thomas v. International Business Machines, 48 F.3d 478, 484 (10th Cir.1995). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the non-moving party. Id.

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion does not empower a court to act as the jury and determine witness credibility, weigh the evidence, or choose between competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

STATEMENT OF UNCONTROVERTED FACTS

For purposes of this motion only, the court considers the following facts to be uncontroverted.

1. On January 28, 1992, Kenneth Perry suffered a heart attack at his home and was transported by ambulance to the defendant St. Francis Hospital ("St. Francis"). Efforts to resuscitate Kenneth failed, and he was pronounced dead shortly after arriving at St. Francis.

2. Kenneth's widow is the plaintiff Mary Ann Perry. The remaining plaintiffs are Kenneth's adult sons and daughters. All of the plaintiffs, except Vickie Puff, were present at St. Francis at the time of Kenneth's death. Though residing in Mississippi, Vickie Puff was in contact by telephone with the other plaintiffs near the time of Kenneth's death.

3. A physician came to the room where the plaintiffs were waiting and told them of Kenneth's death. Before the physician left them, he told the plaintiffs they could stay there while they composed themselves.

4. Nancy McDonald, a night shift staff nurse in the emergency room at St. Francis, visited the plaintiffs in the waiting room and discussed before all the plaintiffs the matter of tissue donations. Nurse McDonald explained that Kenneth's death prevented an organ donation but that a donation of his body for research or a tissue donation of bone, skins and corneas remained as possible options. Saying they were opposed to disfiguring Kenneth's body because that is not what Kenneth would have wanted, the plaintiffs initially responded, "No" to Nurse McDonald's question about donations. Nurse McDonald then explained the procedure for donating the corneas in which they were just "peeled off" without removing the eyes from the dead body.

5. Nurse McDonald then left the waiting room while the plaintiffs discussed whether Kenneth would have wanted to donate his corneas. The plaintiffs decided the donation would have been acceptable to Kenneth as the procedure simply involved "peeling them off."

6. When Nurse McDonald returned, the plaintiffs told her of their decision to donate Kenneth's corneas. Nurse McDonald then asked again about a skin or bone donation and explained that only sections of bones could be taken. The plaintiffs again said they were opposed to such a donation. One of Kenneth's sons adamantly said that his father's body was not going to be taken apart. Nurse McDonald then began discussing a bone marrow donation and explained a procedure involving a needle and syringe without any disfigurement. Nurse McDonald...