Ritchie v. Wahiawa General Hospital

• Decision Date: 20 January 2009
• Docket Number: No. 08-00133 JMS/LEK.,08-00133 JMS/LEK.
• Parties: Jonathan M. RITCHIE and January J. Ritchie, Plaintiffs, v. WAHIAWA GENERAL HOSPITAL, Defendant.
• Court: U.S. District Court — District of Hawaii

597 F.Supp.2d 1100 Jonathan M. RITCHIE and January J. Ritchie, Plaintiffs,
v.
WAHIAWA GENERAL HOSPITAL, Defendant. Civil No. 08-00133 JMS/LEK. United States District Court, D. Hawai`i. January 20, 2009.

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Eric A. Seitz, Lawrence I. Kawasaki, A Law Corporation, Della A. Belatti, Honolulu, HI, for Plaintiffs.

William S. Hunt, Jan M. Vernon, Alston Hunt Floyd & Ing, Honolulu, HI, for Defendant.

ORDER (1) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY OF DEFENDANT WAHIAWA GENERAL HOSPITAL AND (2) DENYING DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS II AND IV OF PLAINTIFFS' COMPLAINT REGARDING CLAIMS FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND PUNITIVE DAMAGES

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

On August 25, 2006, five-month pregnant Plaintiff January J. Ritchie ("January") was rushed to Defendant Wahiawa General Hospital ("Defendant" or "Wahiawa General") on the island of Oahu, Hawaii with early contractions. The next day, she delivered her son, Gregory Michael Ritchie ("Gregory"), who was either stillborn or died shortly after birth. When January and her husband Jonathan M. Ritchie (collectively, "Plaintiffs") attempted to pick up Gregory's remains on April 20, 2007, Wahiawa General could not locate them. After a search and internal investigation, Defendant has still not found Gregory's remains or determined their whereabouts.

Subsequently, Plaintiffs filed this action against Defendant alleging negligence; negligent, reckless, and/or intentional infliction of emotional distress; and tortious interference with the right to bury Gregory in accordance with their religious practices. Currently before the court is Plaintiffs' Motion for Partial Summary Judgment as to Liability of Defendant ("Plaintiffs' Motion for Partial Summary Judgment") and Defendant's Motion for Partial Summary Judgment on Counts II and IV of Plaintiffs' Complaint Regarding Claims for Intentional Infliction of Emotional Distress and Punitive Damages ("Defendant's Motion for Partial Summary Judgment"). Based on the following, the court (1) GRANTS in part and DENIES in part Plaintiffs' Motion for Partial Summary Judgment and (2) DENIES Defendant's Motion for Partial Summary Judgment.

II. BACKGROUND

A. Factual Background

1. The Delivery

On August 25, 2006, five-month pregnant January was admitted to Wahiawa General with contractions. Pls.' Exs. 1 at 29-30, 4 at W0082;¹ Kohrer Decl. ¶ 3. At approximately 10:09 a.m. the next day,

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January delivered Gregory, which Dr. William McKenzie ("Dr. McKenzie") first documented as a "stillborn infant" that "showed no signs of life." Pls.' Exs. 2-3.² When Gregory was given to January to hold, she felt and saw a strong heartbeat, which she reported to Dr. McKenzie and the attending nurses. Id.; Pls.' Ex. 1 at 70-71. Although neither Dr. McKenzie nor Tammy Kohrer, a registered nurse who attended the birth ("Nurse Kohrer"), noted any signs of life,³ see Def.'s Opp'n Ex. B at 26-27, 29; Kohrer Decl. ¶¶ 7-8, Dr. McKenzie later added on January's chart that a heartbeat was detected and recorded Gregory's time of death as 10:39 a.m. Pls.' Exs. 2-3; Def.'s Opp'n Ex. B at 29.

At some point while January was in surgery on August 26, 2006, Gregory's remains were taken to the hospital morgue. See Gage Decl. Ex. 1.

2. The Birth and Death Certificates

Before leaving the hospital on August 30, 2006, January met with Wahiawa General Patient Liaison Dawn Michell ("Michell"). Michell Decl. ¶ 2.⁴ Michell recalls that January requested a birth certificate for Gregory, and she informed January that Wahiawa General would not issue one because Gregory was stillborn. Id. January recalls that this meeting was to address her concerns about Gregory's remains staying at the hospital until Plaintiffs could make funeral arrangements. Pls.' Opp'n Ex. 1 at 84.

After meeting with January, Michell looked into whether Wahiawa General should issue a birth certificate for Gregory because, even though Dr. McKenzie noted on January's chart that Gregory had a heartbeat and lived for thirty minutes, only January witnessed Gregory's heartbeat firsthand. Michell Decl. ¶¶ 3-5. Michell consulted the Ob-Gyn Chief and the hospital's insurer who determined that a birth certificate should not be issued. Id. ¶ 5. Dr. McKenzie, however, disagreed and believed Wahiawa General should issue the birth certificate. Pls.' Opp'n Ex. 2 at 44-45.

In late October 2006, Plaintiffs called Wahiawa General to obtain Gregory's birth certificate. Pls.' Exs. 1 at 39, 9 at 39. After contacting Defendant, Plaintiffs had a meeting with Michell, the Director of Patient Services Kelly Bitonio ("Bitonio"), and a hospital social worker to discuss whether the hospital would issue a birth certificate. Pls.' Exs. 1 at 39-41, 9 at 39-40; Michell Decl. ¶ 6; Bitonio Decl. ¶ 4. Plaintiffs claim that Defendant told them Wahiawa General would not issue a birth certificate, in part, because of the instruction of their insurance lawyers. Pls.' Exs. 1 at 39-41, 9 at 39-40. Defendant

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maintains that Wahiawa General Staff explained they could not issue a birth certificate because Gregory was stillborn. Michell Decl. ¶ 6.

Plaintiffs also claim that Wahiawa General personnel told them that they could contact a mortuary to pick up Gregory's remains without a birth certificate. Pls.' Exs. 1 at 42, 9 at 42. When Plaintiffs contacted mortuaries, however, they were informed that they needed a birth and death certificate before they would retrieve the body. Pls.' Exs. 1 at 95, 9 at 42-43.

After this meeting, Plaintiffs contacted Dr. McKenzie who told them "not to worry" because he would help them get the birth certificate. See Pls.' Exs. 1 at 43-44, 9 at 40. At some point later, Dr. McKenzie went to Wahiawa General's Director of Medical Records June Beaumont ("Beaumont") and asked her to process the birth certificate because January felt a heartbeat. Def.'s Opp'n Ex. C at 14-15. Beaumont, however, claims that she did not issue a birth certificate at that time because she called Dr. David, Head of Vital Statistics at the State of Hawaii Department of Health ("Vital Statistics") who told her to wait until he spoke to Dr. McKenzie directly. Id. Subsequently, Dr. McKenzie spoke to Dr. David, who determined that Gregory was a live birth, after which Dr. McKenzie "went back to the [Wahiawa General] medical records and . . . gave them the name of whoever [he] talked to at [Vital Statistics] and said, you know, we need a birth certificate and we need a death certificate and eventually they gave that to [him] and [he] signed it." Def.'s Opp'n Ex. B at 46.

On January 5, 2007, Wahiawa General personnel submitted information online to the State Department of Health in order to process Gregory's birth certificate. Pls.' Ex. 5; Def.'s Opp'n Ex. C at 18, 22. Wahiawa General, however, submitted the incorrect birth date which delayed the issuance of Gregory's birth certificate until March 27, 2007. Pls.' Exs. 5-7. Plaintiffs received the corrected birth certificate in March or April 2007. Def.'s Opp'n Ex. A at 97-98.

On February 12, 2007, Dr. McKenzie certified Gregory's cause of death to the State Department of Health. Pls.' Ex. 8. Gregory's death certificate was filed by the State registrar on April 20, 2007. Id.

3. Wahiawa General's Morgue Policy

Wahiawa General policy requires that any person who transports a body to the morgue must sign the "morgue book" (also referred to as the "morgue log") which documents the name, age, and time of death of the deceased person, the attending physician, and the date of placement in the morgue. Gage Decl. ¶¶ 2-3; see also Kohrer Decl. ¶ 13; Bitonio Decl. ¶ 7. Wahiawa General's policy also mandates that (1) fetal remains be wrapped in a bag or blue chux and labeled with the baby's name, date of birth, and physician's name and placed in the walk-in cooler, Def.'s Opp'n Ex. D at A000012; (2) only authorized Wahiawa General personnel have access to the morgue using a morgue key, Bitonio Decl. ¶ 6; (3) Defendant keeps a "key control log" that documents who signs out the morgue key, id.; and (4) a nurse supervisor must assist removal of a body from the morgue to mortuaries. Gage Decl. ¶ 2. At the time of removal, a nurse supervisor must confirm that the mortuary transporter has authorization to remove the body and document the name of the mortuary and the date and time on the morgue log. Id. ¶ 3; Kohrer Decl. ¶ 13.

4. Loss of Gregory's Remains

On or about April 20, 2007, Mililani Mortuary arrived at Wahiawa General to pick up Gregory's remains to prepare them for

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shipment to California. Pls.' Ex. 1 at 100-02. Wahiawa General, however, could not locate Gregory's remains. Id.; Michell Decl. ¶ 8.

Michell, Bitonio, Assistant Director of Nursing Jean Look, and others conducted an unsuccessful two-hour search for Gregory's remains. Michell Decl. ¶ 8; Bitonio Decl. ¶¶ 5-6. Although Gregory's remains were never signed out on the morgue log, see Gage Decl. ¶ 4; Def.'s Opp'n Ex. 1, Wahiawa General also contacted various mortuaries to see if they had picked up the remains by mistake. Michell Decl. ¶ 8; Bitonio Decl. ¶ 7. After the search was exhausted, Bitonio called January to explain the problem. Bitonio Decl. ¶ 8.

Over the next two days, Michell and Bitonio interviewed over fifteen staff members, including medical and cleaning staff, who had access to the morgue key during that time.⁵ Michell Decl. ¶ 8; Bitonio Decl. ¶ 6. None of the employees recalled seeing Gregory's remains after, on, or about March 27, 2007 when the remains— wrapped in a chux and blanket and placed into a small basket—were moved to accommodate another body. Id.⁶ Subsequently, January met with Bitonio again. Bitonio Decl. ¶ 8.

Defendant never located Gregory's remains or determined the cause for their loss. Bitonio Decl...