Ross v. Patterson

• Decision Date: 28 October 1991
• Docket Number: No. 90-259,90-259
• Citation: 817 S.W.2d 418,307 Ark. 68
• Parties: Robert ROSS, M.D., Appellant, v. Jimmy PATTERSON, As Special Administrator, et al., Appellees.
• Court: Arkansas Supreme Court

Page 418

817 S.W.2d 418

307 Ark. 68

Robert ROSS, M.D., Appellant, v. Jimmy PATTERSON, As Special Administrator, et al., Appellees.

No. 90-259.

Supreme Court of Arkansas.

Oct. 28, 1991.

Phillip Malcolm, Tonia P. Jones, Little Rock, for appellant.

Morgan E. Welch, No. Little Rock, for appellees.

HOLT, Chief Justice.

This is a tort of outrage case.

The appellant, Dr. Robert Ross, treated the appellee, Dorothy Patterson, as a patient in his OB/GYN practice in Pine Bluff, Arkansas. During the course of Mrs. Patterson's pregnancy, and unknown to her at that time, Dr. Ross developed a substance abuse problem with drugs and alcohol.

The day before Mrs. Patterson went into labor in September 1984, Dr. Ross received a complaint and notice of hearing from the Arkansas State Medical Board that he was to appear before them in December on charges of falsifying drug prescriptions. Dr. Ross, who later admitted his alcohol and drug addictions, immediately made arrangements for treatment of his substance abuse and left Pine Bluff to be admitted to an impaired physician's rehabilitation center in Mississippi, leaving his wife to handle the transfer of responsibility of his patients to a medical group of which he was a member.

As a result of Dr. Ross's absence when Mrs. Patterson went into labor and when she was admitted into Jefferson Memorial Hospital, Dr. Siva Kaipa, one of the physicians who took calls for Dr. Ross as part of the medical group, became Mrs. Patterson's attending physician and delivered her baby, who died several hours after birth. After the baby's funeral, Mrs. Patterson learned that Dr. Ross's absence was due to his efforts to address his substance abuse.

The estate of the deceased infant, Christopher Patterson, filed a medical malpractice suit against Dr. Ross, his nurse, Frances Vanlandingham, Dr. Kaipa, and Jefferson Memorial Hospital. Mrs. Patterson also asserted a personal claim against Dr. Ross, Nurse Vanlandingham, and the Jefferson Memorial Hospital for deceit and the tort of outrage.

Prior to trial, the appellees entered into a settlement agreement with the hospital. A jury trial was held between December 5 and December 21, 1989, and the medical malpractice claim against Dr. Kaipa resulted in a mistrial. Dr. Ross and Nurse Vanlandingham were both found not liable for medical malpractice or deceit in connection with the infant's death. The jury also found that Nurse Vanlandingham was not liable for the tort of outrage; however, it returned a verdict against Dr. Ross in this regard and awarded Mrs. Patterson $175,000 in compensatory damages and $50,000 in punitive damages.

On appeal, Dr. Ross asserts three points of error: 1) that there was not substantial evidence to support the jury's verdict against him for the tort of outrage, 2) that the trial court abused its discretion in admitting unfairly prejudicial evidence of his substance abuse, and 3) that the trial court erred in the manner in which it instructed the jury on the issues of tort of outrage and punitive damages.

We have taken a very narrow view of claims for the tort of outrage, also known as the intentional infliction of emotional distress, see Harris v. Arkansas Book Co., 287 Ark. 353, 700 S.W.2d 41 (1985) (citing Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982)), and we continue to do so here. We find that there was not substantial evidence to support the jury's verdict against Dr. Ross for the tort of outrage, and we reverse and dismiss.

In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988) (citing M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980)), we stated that one is subject to liability for outrage if he or she willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct: conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. Furthermore, the emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).

Furthermore, the tort of outrage is not easily established and requires clear-cut proof; merely describing the conduct as outrageous does not make it so. Givens v. Hixson, supra.

In Sterling Drug, we found that where a corporate employer suspected that an employee had reported it to the General Services Administration for pricing violations, and had entered on an eighteen-month campaign to force the employee to resign even though agents of the employer knew that the employee was under pressure because of a recent divorce, the employer's conduct did not rise to a sufficient level to support a verdict for outrage as recognition of the tort of outrage did not open the doors of the courts to every slight insult or indignity one must endure in life.

Likewise, in Sterling v. Upjohn Healthcare Servs., Inc., 299 Ark. 278, 772 S.W.2d 329 (1989), we held that where an employee's supervisor had taken a dislike to him and made various attempts to undermine his authority with his employees and to have him fired by falsely accusing him of always being drunk and of making untrue statements on his job application, by delaying the processing of his expense vouchers, by having employees watch him and report back to his supervisor, by instructing him not to communicate with other employees, and by cursing him, the conduct did not meet the standard required for the tort of outrage.

In Neff v. St. Paul Fire & Marine Ins. Co., 304 Ark. 18, 799 S.W.2d 795 (1990), we also noted that where the hospital was doing no more than it had a legal right to do--releasing the seventeen-week-old fetal remains to one of the parents without consulting the other--the conduct, even if improper, would not equate with outrageous conduct necessary for the tort of outrage. See generally Deason v. Farmers and Merchants Bank, 299 Ark. 167, 771 S.W.2d 749 (1989); Bell v. McManus, 294 Ark. 275 742 S.W.2d 559 (1988); and Webb v. HCA Health Servs. of Midwest, Inc., 300 Ark. 613, 780 S.W.2d 571 (1989).

In contrast, where an employer interrogated an employee, whom it suspected of theft, at thirty minute intervals for most of a day, denied him valium when he was under obvious stress, and threatened him with arrest, we found that there was substantial evidence to support the jury verdict for outrage and placed special emphasis on the fact that even though the employer knew of the employee's lower than normal emotional stamina, it refused to permit him to take his medication during the interrogation. Tandy Corp. v. Bone, supra.

In Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985), cert. denied, 475 U.S. 1036, 106 S.Ct. 1245, 89 L.Ed.2d 354 (1986), Treece, a police officer, sued Hess, the Little Rock City Director, for outrage. Hess, who was angry with Treece over a personal matter, conducted surveillance of Treece, communicated to other individuals that he would have Treece fired at any cost, and apparently made false reports concerning Treece's employment conduct. Basing our decision in part on the fact that Hess's actions continued over a two year time span, we found substantial evidence to support the jury verdict for outrage.

We also found sufficient evidence to support a finding that corporations operating a perpetual care cemetery had committed the tort of outrage where the corporations' agents had repeatedly driven heavy equipment across two gravesites of members of the appellees' family in an attempt to alleviate a drainage problem which the corporations had caused and which could have been solved in other ways, and had continued construction even after the vaults had been exposed and the distress to the appellees had become apparent. Growth Properties I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984).

In viewing the facts of this case, we cannot find substantial evidence to satisfy the requirements of the tort of outrage set out in Sterling Drug, Inc. v. Oxford, supra, or Tandy Corp. v. Bone, supra. To the contrary, Mrs. Patterson was not aware during the course of her pregnancy that Dr. Ross had a substance abuse problem. When Dr. Ross was confronted with the complaint from the Arkansas State Medical Board, he enlisted the help of his wife to handle the necessary communications for the transfer of responsibility for his patients to the "call group" (of which he was a member) consisting of Drs. Kaipa, Devi, and Bracy. Although there was initially some confusion at the hospital as to which doctor would be responsible for Dr. Ross's patients when Mrs. Patterson first went to the hospital, the confusion was resolved by the time that she was actually in labor and admitted to the hospital.

Mrs. Patterson claims that she suffered severe emotional distress because Dr. Ross never saw her during the last month of her pregnancy and because he failed to personally inform her that he was leaving town.

Even if we were to accept Mrs. Patterson's claim as true that she was upset because Dr. Ross did not see her during the last month of her pregnancy, which fact is disputed by Dr. Ross and Nurse Vanlandingham as well as office records of her visits, Mrs. Patterson testified that she always had the utmost faith and confidence in Dr. Ross, even in the last month of her pregnancy, and that she had resisted suggestions from family members that she change doctors.

Additionally, Dr. Reid Pierce, another physician with an OB/GYN practice in Pine Bluff, Arkansas, testified that Dr. Ross's decision to ask his wife to handle the transfer of responsibility for his patients to a physician on call for him was professionally acceptable. Mrs. Patterson had also signed a form acknowledging that he might be unavailable at the time of her delivery and consenting to treatment by another physician.

Mrs. Patterson's own psychologist...