SOUTH CENT. REG. MEDICAL CTR. v. Pickering, 1998-IA-00939-SCT.

• Decision Date: 04 November 1999
• Docket Number: No. 1998-IA-00939-SCT.,1998-IA-00939-SCT.
• Citation: 749 So.2d 95
• Parties: SOUTH CENTRAL REGIONAL MEDICAL CENTER v. Jimmie N. PICKERING and Thomas W. Pickering.
• Court: Mississippi Supreme Court

749 So.2d 95

SOUTH CENTRAL REGIONAL MEDICAL CENTER v. Jimmie N. PICKERING and Thomas W. Pickering.

No. 1998-IA-00939-SCT.

Supreme Court of Mississippi.

November 4, 1999.

Brooke Ferris, Richard O. Burson, Laurel, Attorneys for Appellant.

Leonard B. Melvin, Laurel, Attorney for Appellees.

BEFORE PITTMAN, P.J., MILLS AND WALLER, JJ.

STATEMENT OF THE CASE

MILLS, Justice, for the Court:

¶ 1. On September 22, 1989, Jimmie N. Pickering and her husband, Thomas W. Pickering, filed suit against South Central Regional Medical Center (South Central) in the Circuit Court of the Second Judicial District of Jones County seeking damages for negligent infliction of emotional distress. The lawsuit arose out of a September 30, 1987 incident in which Jimmie N. Pickering was possibly exposed to HIV and other communicable diseases when she used an allegedly contaminated lancet (used for pricking one's finger to draw blood) that was allegedly stored improperly by a nurse employed by South Central. South Central moved for summary judgment on the Pickerings' claims for emotional distress caused by her fear of contracting HIV or other communicable diseases. The circuit court denied South Central's motion but later amended its judgment granting certification for interlocutory appeal. Subsequently, on July 27, 1998, South Central filed its Petition for Interlocutory Appeal with this Court pursuant to M.R.A.P. 5, and by order of this Court South Central's Petition was granted.

STATEMENT OF THE FACTS

¶ 2. Between September 30 and October 4, 1987, Jimmie N. Pickering was a patient at South Central. Pickering is a diabetic and was at South Central obtaining services related to this illness. Specifically, Pickering maintains that she was at South Central to regulate her increasingly volatile blood sugar levels and to receive instructions on how to regulate those levels in the future. In order to determine her blood sugar levels at the hospital Pickering used the hospital's Autoclix machine. The Autoclix contained lancets that Pickering used to prick her finger to draw blood. Pickering contends that the lancets that were stored in the Autoclix that she was given to use by the hospital had actually been used before by some other unknown patient and/or patients. In other words, these lancets were used lancets.

¶ 3. Pickering claims that the nurse responsible for her treatment informed her directly that the lancets in question were, in fact, used lancets. As noted, part of Pickering's treatment at South Central was supposed to include instructions on how to test/regulate her blood sugar levels. Pickering asserts that after requesting her nurse several times to give her those instructions, the nurse finally agreed. The nurse then requested that Pickering simply show her the routine that she followed. The nurse then handed the "kit" to Pickering at which point Pickering picked up a lancet. The nurse immediately grabbed Pickering's hand apparently in an attempt to prevent Pickering from using the lancet. The nurse then informed her that the group of lancets from which Pickering had chosen was a group of previously used lancets. The nurse then immediately disposed of the lancets in the proper receptacle in the room. When Pickering asked the nurse why she had not disposed of the lancets before this incident, Pickering claims that the nurse responded that the receptacle was only implemented two weeks earlier and that she had not grown accustomed to using it. Furthermore, Pickering claims that every time she had previously tested her blood she pricked her finger with the used lancets.

¶ 4. Pickering admits that she has no other evidence that the lancets had been previously used other than the nurse's reaction and statement. However, it is undisputed that South Central ordered Pickering to be tested for HIV following the incident. Furthermore, Pickering asserts in her deposition that South Central tested eleven more patients all of whom had been attended by the same nurse and all of whom had used the same diabetic kit that Pickering had used.

¶ 5. Pickering offers no evidence that the lancets that she used were contaminated with HIV or any other communicable diseases. In fact, the lancets were disposed of by South Central before any tests could be run on them. Nevertheless, after it became clear that Pickering was possibly using used lancets South Central conducted an HIV test on Pickering. The first test was conducted while Pickering was still in the hospital in September of 1987. The results of this test were negative. Pickering was then tested for HIV and other communicable diseases by South Central at no charge four more times-November 1987, January 1988, March 1988, and September 1988—and once by another institution in August of 1990. All of these tests were negative.

¶ 6. In support of its motion for summary judgment, South Central provided the affidavit of Francis S. Morrison, M.D., a board certified hematologist and internist. Dr. Morrison's affidavit stated that, after reviewing Pickering's medical records, it was his opinion that Pickering would not develop HIV in the future. He also stated that the longest period of time between exposure by skin puncture and development of HIV positivity is ten (10) months.

¶ 7. After learning that she had been using these previously used lancets, Pickering claims that she became extremely anxious and afraid that she might have contracted HIV via the used lancets. Indeed, Pickering claims that she feels like "part of me is lost" because she no longer socializes with her friends, does not actively participate in her granddaughter's life, and does not go grocery shopping anymore for fear that she will infect those around her. Furthermore, Pickering claims that she is subjected to ridicule in the form of snickering and pointing by others whom she believes know about the incident in the hospital. Her claims of emotional distress are supported by the deposition testimony of six other individuals-five family members and one friend.

STANDARD OF REVIEW

¶ 8. The standard for reviewing the granting or the denying of summary judgment is the same standard as is employed by the trial court under Miss. R.Civ.P. 56(c). This Court conducts de novo review of orders granting or denying judgment and examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. The evidence must be viewed in the light most favorable to the party against whom the motion has been made. If, in this view, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in his favor. Otherwise, the motion should be denied. Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite. In addition, the burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant would be given the benefit of the doubt. McCullough v. Cook, 679 So.2d 627, 630 (Miss.1996); Mantachie Natural Gas Dist. v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992); Clark v. Moore Mem'l United Methodist Church, 538 So.2d 760, 762 (Miss.1989) Short v. Columbus Rubber & Gasket Co., 535 So.2d 61 (Miss.1988).

ANALYSIS

¶ 9. South Central points to the relatively recent case of Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648 (Miss.1995) in arguing that since Pickering has offered no evidence of actual exposure to HIV or any other disease she must therefore lose on her emotional distress claim. In Ferguson, this Court stated that "if one is to recover for emotional distress predicated on potential future illness there must be substantial proof of exposure and medical evidence that would indicate possible future illness." Ferguson, 662 So.2d at 658. The plaintiffs in Ferguson brought a claim for emotional distress based on a fear of developing cancer in the future. Id. at 651. They alleged that the Leaf River Mill was producing a toxic byproduct, dioxin, which was released into a nearby river on which the plaintiffs lived and exposing them to an increased risk of developing cancer. Id. The property of one of the plaintiffs was located one hundred miles down river from the mill, and another plaintiffs property was located approximately one hundred and twenty-five miles down river from the mill. Id. The Fergusons did not have themselves, their property or their well water tested for the presence of dioxin; instead they relied on tests of wildlife in the area of the Leaf River to support their claims of emotional distress. Id. at 651, 653. In finding the Fergusons' claims for emotional distress based on a fear of developing cancer in the future to be without merit, we stated:

We have before found that emotional distress inflicted either negligently or intentionally is compensable. However, emotional distress based on the fear of a future illness must await a manifestation of that illness or be supported by substantial exposure to the danger, and be supported by medical or scientific evidence so that there is a rational basis for the emotional fear. We do not harm and, in fact, preserve a recovery for emotional distress when the same is based on such a foundation.

Ferguson, 662 So.2d at 650. This Court went on to hold specifically that there was a lack of evidence proving exposure of the Fergusons to a dangerous or harmful agent and that therefore their emotional distress claims should fail. Id. at 658.

¶ 10. As noted, we have established that an essential requirement in bringing a successful claim for emotional distress based on a fear of future illness is the offering of "substantial proof of exposure and medical evidence that would indicate possible future illness." Ferguson, 662 So.2d at 658. Although this Court has not decided...