Potts v. Board of County Com'Rs

• Decision Date: 22 February 2008
• Docket Number: No. 97,828.,97,828.
• Citation: 176 P.3d 988
• Parties: Tamara (Tammy) POTTS and James A. Wilson, Jr., Heirs of Law of Ella Alene Wilson, deceased, and Ella Alene Wilson, Deceased, by and through Tamara Potts, Special Administrator of the Estate of Ella Alene Wilson, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, Kansas, Karl Hendry, and Michael Baxter, Appellees.
• Court: Kansas Court of Appeals

176 P.3d 988

Tamara (Tammy) POTTS and James A. Wilson, Jr., Heirs of Law of Ella Alene Wilson, deceased, and Ella Alene Wilson, Deceased, by and through Tamara Potts, Special Administrator of the Estate of Ella Alene Wilson, Appellants, v. The BOARD OF COUNTY COMMISSIONERS OF LEAVENWORTH COUNTY, Kansas, Karl Hendry, and Michael Baxter, Appellees.

No. 97,828.

Court of Appeals of Kansas.

February 22, 2008.

Michael Crow, of Crow, Clothier & Associates, of Leavenworth, for appellants.

J. Steven Pigg and Teresa L. Watson, of Fisher, Patterson, Sayler & Smith, L.L.P., of Topeka, for appellees.

Before BUSER, P.J., GREEN and CAPLINGER, JJ.

CAPLINGER, J.

Plaintiffs, Tamara Potts (Potts) and James. Wilson (James), as heirs at law, and Potts, as special administrator of the Estate of Ella Alene Wilson, deceased (Alene), appeal the district court's order granting summary judgment to the defendants, the Board of County Commissioners of Leavenworth County (Leavenworth County), and Leavenworth County emergency medical technicians (EMTs), Karl Hendry (Hendry), and Michael Baxter (Baxter) on plaintiffs' state law tort claims of negligence and wrongful death, as well as their claim under 42 U.S.C. § 1983 (2000).

This action resulted after Alene fell in her home and was injured but refused to be transported to a hospital by Leavenworth County EMTs. Alene eventually was transported to the hospital but died at home some 2 weeks later as a result of an infection acquired at the hospital. The plaintiffs alleged the defendants were negligent, indirectly causing Alene's death, when they refused to transport Alene to the hospital, against her wishes and in violation of a durable power of attorney held by Potts. The plaintiffs also asserted the tort of outrage and claims under 42 U.S.C. § 1983.

In this appeal, the plaintiffs argue the district court erred in granting summary judgment on plaintiffs' state law claims of negligence and wrongful death by two exceptions to liability under the Kansas Tort Claims Act (KTCA), K.S.A.2007 Supp. 75-6104(d) and (e), because written Leavenworth County protocols required the EMTs to find Alene incompetent based upon her response to certain questions asked by the EMTs. Further, the plaintiffs argue the protocols required that the EMTs transport Alene to the hospital against her wishes because Potts', as her mother's attorney-in-fact, " requested that they do so. Finally, plaintiffs argue material issues of fact precluded summary judgment on their 42 U.S.C. § 1983 claim. The plaintiffs do not appeal summary judgment on their outrage claim.

Because we find the EMTs did not owe a special duty of care to Alene independent of written county protocols in place to protect her health and safety, we conclude the district court did not err in finding the defendants were shielded from liability by K.S.A. 2007 Supp. 75-6104(d) for their alleged failure to comply with written county protocols. Further, because Alene was never in the custody of the EMTs and the EMTs did not restrain her in any manner, the district court properly granted summary judgment on the plaintiffs' 42 U.S.C. § 1983 claim.

Factual and procedural background

On the morning of November 23, 2003, Alene, age 68, fell on her kitchen floor and was injured. Alene's son, James Wilson, was at home with her at the time. Upon learning of her mother's fall, Alene's daughter, Tamara Potts, drove to the home, and she and James carried Alene upstairs to her bedroom where they laid her on her bed.

Potts attempted to convince her mother to permit Potts to call an ambulance to take her to the hospital, but Alene refused, saying she did not need to go to the hospital. Nevertheless, Potts contacted 911 and a few minutes later, Josh Magaha and Chuck Magaha, Fairmont Township volunteer first responders, arrived at the residence.

Alene, who was agitated, refused the responders' requests to transport her to the hospital and insisted she did not want to be touched. Alene advised the responders she would not go to the hospital because the last time she was hospitalized, she had to pay $700 for a headache.

Leavenworth County EMTs Hendry and Baxter arrived a few minutes later. Potts advised them that her mother suffered from hallucinations, Alzheimer's, and paranoia and had previously suffered a stroke. Potts also told the EMTs that her mother was not competent and that Potts had a durable power of attorney over her mother giving Potts the right to insist that Alene be transported to a hospital if Alene refused to be transported. Potts attempted to give Hendry a document dated in 1994 and signed by Alene which Potts said would verify her durable power of attorney, but Hendry advised Potts he first needed to see the patient.

Josh and Chuck Magaha left the bedroom when Hendry and Baxter arrived. Alene would not permit Hendry or Baxter to touch her or take her blood pressure, but she did allow Hendry to perform a limited visual examination of her leg which did not detect any obvious shortening or rotation. In his patient care report, Hendry wrote that Alene experienced pain from her left hip and may have suffered a hip fracture, but she was without gross deformity to her leg.

In response to questioning from Hendry and Baxter, Alene advised the EMTs that she had slipped and fallen on the kitchen floor. Alene also correctly stated her name as well as the name of the President of the United States. However, Alene incorrectly stated the year as 2002 and then 2004 before correctly stating the year was 2003.

Baxter attempted to convince Alene to permit the EMTs to take her to a hospital, but Alene continued to refuse, insisting she did not want to be moved from her bed. At some point, Hendry attempted to contact Alene's physician, Dr. Peter Cristiano, but received no response at his office, which was closed that Sunday. Hendry then contacted the emergency room physician at St. Luke's Hospital, who advised Hendry that Alene could not be transported if she refused transport.

Sometime later, someone at the scene contacted the Basehor Police Department. Alene immediately recognized the responding officer, Jason Slaughter, from a prior contact. Alene advised Slaughter she would not go to the hospital because she was charged too much on her previous visit. Hendry requested that Slaughter take Alene into protective custody, but Slaughter refused, stating he did not believe Alene suffered from diminished capacity.

Hendry determined that Alene was alert, focused, and aware of her surroundings and that she understood the possible consequences of her refusal to be transported to the hospital. Accordingly, Hendry concluded that Alene did not appear to be of diminished mental capacity and the EMTs would not transport her to the hospital against her will. Nevertheless, the EMTs remained at Alene's home for approximately 1 hour, attempting to convince Alene to allow them to transport her to the hospital. At the EMTs' request, Alene printed and signed her name on a "Refusal to Transport" form.

The next morning, Potts contacted Dr. Cristiano, who instructed Potts to bring her mother to his clinic. Potts and Wilson carried their mother downstairs and transported her to the clinic in a wheelchair Potts had purchased that morning.

Dr. Cristiano x-rayed and examined Alene, indicating in his records that Alene had fallen in her kitchen, tripped down some stairs, hit the left side of her buttocks, and was in "quite a bit of pain from her left leg, hip and down to her knee." He stated that Alene was able to move the hip socket and/or the hip bone which, though not conclusive, indicated she had not suffered a severe injury. Dr. Cristiano further indicated that Alene did not complain of any numbness or tingling—signs that would indicate nerve damage. Finally, prior to receiving her x-rays, Dr. Cristiano assessed Alene as having suffered contusions to her left hip and elbow caused by a fall. He did not diagnose Alene as having a fractured hip.

Dr. Cristiano released Alene to return home after prescribing an anti-inflammatory medication and instructing Alene to use ice packs for the next 48 hours and then apply heat. Although Cristiano suggested Alene return to the clinic for a follow-up visit, he did not designate a specific date or time. Dr. Cristiano made no special accommodations to transport Alene from the clinic to her home. Rather, Potts took Alene home using the wheelchair and Potts' van.

Later that afternoon, Dr. Cristiano learned from Alene's x-rays that she had fractured her left hip, and Alene was admitted to the hospital about 5 p.m. Surgery to repair her hip was performed on November 27, 2003. Prior to that time, Alene's surgeon ordered Alene be placed in traction to immobilize her leg, but Alene refused. While hospitalized, Alene also refused to eat and refused oxygen. Alene's condition deteriorated, and she contracted nosocomial pneumonia, a hospital-borne infection.

Alene was discharged from the hospital on December 3, 2003, and sent home to receive hospice care. She died on December 6, 2003. Alene's death certificate identified pneumonia as the immediate cause of death.

After her mother's death, Potts submitted two complaints to the Kansas Board of Emergency Medical Services (KBEMS) requesting that the KBEMS revoke Hendry's and Baxter's licenses and review the protocols of the Leavenworth County EMS. The KBEMS declined to revoke Hendry's and Baxter's licenses, finding no evidence of inadequate patient care due to the EMTs' refusal to transport Alene to the hospital.

Potts and Wilson filed suit on their behalf and on behalf of their mother against the defendants, alleging negligence, wrongful death, outrage, and violation of 42 U.S.C. § 1983. The case was later consolidated with a subsequently filed survival action based upon the same occurrences filed by Potts on behalf of her mother's estate.

The district court granted the defendants' motion for summary...