Ryan v. Brown

Decision Date11 May 2005
Docket NumberNo. 16A04-0404-CV-235.,16A04-0404-CV-235.
Citation827 N.E.2d 112
PartiesTonia RYAN and Kevin Ryan, Appellants-Plaintiffs, v. Thomas BROWN, M.D. and Decatur County Memorial Hospital, Appellees-Defendants.
CourtIndiana Appellate Court

Lance D. Cline, Marie Troendle Greer, Cline, Farrell, Christie, Lee & Caress, P.C., Indianapolis, IN, Attorneys for Appellant.

Marilyn A. Young, Steven J. Cohen, Zeigler, Cohen, & Koch, Indianapolis, IN, Attorneys for Appellee Thomas M. Brown, M.D.

Angela M. Smith, Hall, Render, Killian, Heath & Lyman, Indianapolis, IN, Attorney for Appellee Decatur County Memorial Hospital.

OPINION

ROBB, Judge.

Tonia and Kevin Ryan ("the Ryans") appeal the trial court's order granting partial summary judgment to Dr. Thomas Brown and Decatur County Memorial Hospital ("DCMH"). We affirm in part, reverse in part, and remand.

Issues

The Ryans raise three issues for our review, which we consolidate and restate as follows:

1. Whether the trial court properly determined as a matter of law that the Indiana Medical Malpractice Act does not create a separate cause of action for the wrongful death of a fetus; and
2. Whether the trial court properly determined as a matter of law that neither Tonia nor Kevin Ryan have a claim for negligent infliction of emotional distress.
Facts and Procedural History

In 1998, Tonia Ryan became pregnant with her husband, Kevin Ryan's, baby. This was Tonia's first pregnancy. Prior to becoming pregnant, Tonia had no significant past medical history and no history of hypertension. Tonia's doctor was Dr. Thomas Brown. Tonia had her first prenatal visit with Dr. Brown on May 12, 1998. Throughout the rest of the year, Tonia had several appointments with Dr. Brown. During each of these check-ups, Tonia's blood pressure was taken. On June 8, 1998, Tonia's blood pressure was recorded as 170/80, and on September 28, 1998, Tonia's blood pressure was 150/78. Dr. Brown did not give Tonia any advice about her blood pressure during either of these check-ups. On October 26, 1998, Tonia's blood pressure was 150/90, and Dr. Brown instructed Tonia to stay off her feet as much as possible. Tonia's blood pressure on November 9, 1998, was 180/80 but a second reading only found it to be 150/82. Tonia's blood pressure on November 16, November 20, and November 23 were 140/90, 170/80 with a second reading of 140/78, and 170/90 with a second reading of 163/84.1

On December 7, 1998, Tonia, who at that time was in her thirty-fourth week of pregnancy, called Dr. Brown's office to report her concern about having noticed decreased fetal movement over the previous two days. Tonia and Kevin both met with Dr. Brown later that day. Tonia's blood pressure was recorded as 172/98, and she had 4+ proteinuria in her urine.2 Dr. Brown did detect fetal heart tones. Dr. Brown diagnosed Tonia with preeclampsia, and advised her to admit herself to DCMH. Preeclampsia is a pregnancy-related condition that causes high blood pressure and can affect an expecting mother's kidneys, liver, brain, and placenta. Preeclampsia, available at http://my.webmd. com/hw/health_guide _atoz/stp1755.asp? navbar=hw2837. If untreated, preeclampsia may deprive a fetus of oxygen. Id.

Kevin and Tonia both went to DCMH where Kevin helped Tonia through the admissions process. Tonia was admitted to DCMH at 3:50 p.m. with an initial blood pressure of 190/116. Shortly after Tonia was admitted to DCMH, Kevin had to leave for work. The initial nursing assessment of Tonia at DCMH revealed that she had abdominal and uterine pain, edema in her feet and lower legs, visual disturbances, and a headache. These symptoms suggested the possibility of an impending placental abruption that could threaten the life of Tonia and Kevin's child, whom they had named Ray. This information was not timely relayed to Dr. Brown. At 6:45 p.m., Tonia discovered that she had vaginal bleeding and reported this to her nurse. Tonia's nurse reported this to Dr. Brown at 7:10 p.m., and Dr. Brown instructed the nurse to have a biophysical profile performed.

Dr. Brown arrived at the hospital at approximately 8:15 p.m. and an ultrasound was preformed on Tonia shortly thereafter. The ultrasound revealed that Ray had died in utero. Kevin was called at work and asked to come to DCMH. When Kevin arrived at DCMH, Dr. Brown told him that Ray had died. Kevin then informed Tonia of Ray's death. Because Tonia's condition was deteriorating, Dr. Brown attempted to induce labor but was unsuccessful. Lab reports indicated that Tonia was beginning to suffer from HELLP Syndrome.3 At this point, Dr. Brown decided to transfer Tonia to Methodist Hospital in Indianapolis. Kevin rode with Tonia as she was transferred to Methodist Hospital in an ambulance. At Methodist, Ray was delivered stillborn, via a vacuum assisted vaginal delivery, on December 8, 1998. After Ray was delivered, both Tonia and Kevin had the opportunity to hold their son. Tonia remained hospitalized at Methodist for two days where she received treatment to stabilize her condition.

On November 18, 1999, the Ryans filed a proposed complaint for damages with the Indiana Department of Insurance alleging negligence on the part of Dr. Brown and the nurses employed by DCMH. A medical review panel unanimously found that Dr. Brown and DCMH failed to meet the applicable standard of care and that such conduct was a factor in the damages incurred by the Ryans.

The Ryans filed their complaint against Dr. Brown and DCMH in the Decatur County Circuit Court on May 10, 2002. In their complaint, the Ryans alleged that Dr. Brown and various nurses at DCMH committed malpractice in their treatment of Tonia and Ray. The Ryans alleged that under Indiana's Medical Malpractice Act, they could bring a claim for the wrongful death of Ray. Both Tonia and Kevin also brought claims for negligent infliction of emotional distress.

On July 3, 2003, Dr. Brown filed a motion for summary judgment arguing that the Ryans were barred from seeking damages for the death of Ray pursuant to Indiana's Wrongful Death of a Child Statute. The Ryans filed a brief in opposition to Dr. Brown's motion for summary judgment on November 12, 2003. On January 23, 2004, Dr. Brown converted his motion for summary judgment into a motion for partial summary judgment. In this motion, Dr. Brown conceded that Tonia could bring a negligence claim for her own injuries. On February 12, 2004, DCMH filed its own motion for summary judgment, which essentially joined Dr. Brown's motion for partial summary judgment.

On March 30, 2004, the trial court entered an order granting Dr. Brown's and DCMH's motions for partial summary judgment. The trial court concluded that Dr. Brown and DCMH "are entitled to partial summary judgment on [the Ryans'] claims for the wrongful death of their child as well as their claims for negligent infliction of emotional distress." Appellant's Brief at 2. The trial court also found that Dr. Brown and DCMH "are not entitled to summary judgment on Plaintiff Tonia Ryan's claims for damages for her own injuries." Id. This appeal ensued.

Discussion and Decision
I. Standard of Review

The Ryans appeal the trial court's order granting Dr. Brown and DCMH's motions for partial summary judgment. When determining the propriety of an order granting summary judgment, we use the same standard of review as the trial court. Geiersbach v. Frieje, 807 N.E.2d 114, 116 (Ind.Ct.App.2004), trans. denied. Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The party moving for summary judgment has the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Ling v. Stillwell, 732 N.E.2d 1270, 1274 (Ind.Ct.App.2000),trans. denied. Once the moving party meets these two requirements, the burden shifts to the non-moving party to show the existence of a genuine issue of material fact by setting forth specifically designated facts. Id. We must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the nonmoving party, and resolve all doubts against the moving party. RMJ Enters., Inc. v. Scottsdale Ins. Co., 808 N.E.2d 159, 162 (Ind.Ct.App.2004). "If the trial court's grant of summary judgment can be sustained on any theory or basis in the record, we must affirm." Brady v. Allstate Indem. Co., 788 N.E.2d 916, 919 (Ind.Ct.App.2003). Additionally, where the issue presented on appeal is a pure question of law, we review the matter de novo. Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind.2000)

.

II. Wrongful Death Action

In their complaint, the Ryans brought a claim for damages for the wrongful death of Ray under Indiana's Medical Malpractice Act, Indiana Code section 34-18-1-1 et seq. The trial court concluded that Dr. Brown and DCMH were entitled to partial summary judgment on the Ryans' claim for the wrongful death of Ray. In their appellant's brief, the Ryans argued that the trial court erred in granting Dr. Brown and DCMH's motions for partial summary judgment. The Ryans asserted that "[t]he Indiana Medical Malpractice Act creates a remedy separate and distinct from the Indiana Wrongful Death of a Child Statute [Indiana Code section 34-23-2-1] for the wrongful death of a viable fetus caused by health care provider negligence." Appellant's Br. at 6. They concluded that "[b]ecause Ray Ryan is recognized as a patient under the Indiana Medical Malpractice Act, his negligently caused in utero death creates a claim for damages for his surviving parents." Id.

After the Ryans filed their appellant's brief, our supreme court decided Chamberlain v. Walpole, 822 N.E.2d 959 (Ind.2005). In Chamberlain, the court agreed with our opinion in Breece v. Lugo, 800 N.E.2d 224 (Ind.Ct.App.2003),trans. denied.822 N.E.2d at 964. In Breece, we noted that the purpose of Indiana's...

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