Van Zandt v. Holy Redeemer Hosp.

• Decision Date: 05 August 2002
• Citation: 806 A.2d 879
• Parties: Cynthia N. VAN ZANDT, Appellee, v. HOLY REDEEMER HOSPITAL and Manuel A. Bergnes, M.D. Appeal of: Holy Redeemer Hospital. Cynthia N. Van Zandt, Appellee, v. Holy Redeemer Hospital and Manuel A. Bergnes, M.D. Appeal of: Manuel A. Bergnes, M.D.
• Court: Pennsylvania Superior Court

806 A.2d 879

Cynthia N. VAN ZANDT, Appellee, v. HOLY REDEEMER HOSPITAL and Manuel A. Bergnes, M.D.

Appeal of: Holy Redeemer Hospital.

Cynthia N. Van Zandt, Appellee, v. Holy Redeemer Hospital and Manuel A. Bergnes, M.D.

Appeal of: Manuel A. Bergnes, M.D.

Superior Court of Pennsylvania.

Argued June 25, 2002.

Filed August 5, 2002.

Reargument Denied October 7, 2002.

John J. Hare, Doylestown, for Holy Redeemer Hospital.

Robert Toland, II, Wayne, for Bergnes.

Martin A. Durkin, Philadelphia, for Van Zandt.

BEFORE: LALLY-GREEN, OLSZEWSKI, and POPOVICH, JJ.

OPINION BY LALLY-GREEN, J.:

¶ 1 In this consolidated appeal, Appellants Holy Redeemer Hospital (Hospital) and Dr. Manuel A. Bergnes, M.D. (Dr. Bergnes) appeal from the judgment entered on June 4, 2001, in favor of plaintiff/Appellee, Cynthia N. Van Zandt. We vacate the judgment and remand for entry of judgment notwithstanding the verdict (jnov).

¶ 2 The unusual factual and procedural history of the case is as follows. In January 1999, Van Zandt filed a complaint against the Hospital and Dr. Bergnes. Van Zandt alleged the following. Her mother, Susan Van Zandt (the decedent), died while in the Hospital's care on June 18, 1997. The Hospital knew or should have known that the decedent and her family did not want the decedent's organs to be donated. Dr. Bergnes, an agent of the Hospital, conducted an autopsy of the decedent's body on June 19, 1997. Dr. Bergnes' autopsy report indicated that the decedent's eyes had been donated.¹ After Van Zandt read the autopsy report, she suffered emotional distress.

¶ 3 Van Zandt raised three causes of action against the Hospital: (1) negligence; (2) negligent infliction of emotional distress; and (3) respondeat superior; i.e., vicarious liability for the actions of Dr. Bergnes. Van Zandt alleged that the Hospital either harvested² the decedent's eyes or allowed another person or entity to do so, all without express consent. Van Zandt also alleged that the Hospital was negligent for failing to safeguard the decedent's body, and for issuing an autopsy report which "it knew or should have know[n] was inaccurate and/or otherwise contained false information."³ Complaint at ¶ 15(f).

¶ 4 Van Zandt raised causes of action against Dr. Bergnes for negligence and negligent infliction of emotional distress, alleging precisely the same underlying factual allegations. It should be noted that the only damages identified in the complaint were damages for emotional distress. Van Zandt also sought punitive damages against both Appellants.

¶ 5 On March 9, 1999, in response to preliminary objections by the Hospital, Judge Arnold New dismissed with prejudice Count II (negligent infliction of emotional distress), Count III (respondent superior), and all claims for punitive damages against the Hospital. Similarly, on May 19, 2000, in response to preliminary objections by Dr. Bergnes, Judge New dismissed with prejudice Count II (negligent infliction of emotional distress) and all claims for punitive damages against Dr. Bergnes.

¶ 6 On October 3, 2000, Van Zandt filed a motion to amend the complaint in response to deposition testimony given by Dr. Bergnes on August 17, 2000. According to Van Zandt, Dr. Bergnes testified that on July 1, 1998, he received a telephone call from the Hospital's Chief Pathologist, Peter J. Farano, M.D. Motion to Amend at ¶ 9. Dr. Bergnes memorialized this conversation in a handwritten note stating that it was possible that the eyes were not removed, and that it was possible Dr. Bergnes did not remove the bandages over the decedent's eyes to establish that they were actually harvested. Id. According to Dr. Bergnes' handwritten note, he had no specific recollection of whether he removed the bandages. Id., Exhibit D. On the same day, legal counsel for the Hospital dictated an amended post-mortem report stating: "the original description of the external examination indicated that the eyes had been donated. In actuality, both eyes were covered with bandages. These bandages were never removed, and the eyelids were never retracted to corroborate the absence of the eyes." Id. at ¶ 10. Dr. Bergnes signed this amended report. Id., Exhibit E. Van Zandt alleged that these newly-discovered facts constituted conspiracy, conversion, and egregious conduct forming a basis for punitive damages. On November 8, 2000, the trial court denied Van Zandt's motion to amend.

¶ 7 Trial took place before Judge Alfred DiBona, Jr., on January 4-5, 2001. Van Zandt began her case by playing the videotaped deposition testimony of Dr. Bergnes. Dr. Bergnes, age 85 at the time of the deposition, testified in relevant part as follows:

I never actually saw the eyes on the corpse. I observed the bandages covering the eyes. I saw a note reading "do not remove". On the basis of those observations that the eyes had been donated, I assumed that the eyes had been donated. I assumed that the eyes had been donated.

The truth is I do not know if my assumption was correct or not. Without lifting the eyelids, it is impossible to know if any part of the eyes has been donated, and I never, ever—I never even removed the bandages covering the eyes. It was a false assumption on my part that produced that remark.

N.T., 8/17/2000, at 66. He could have investigated the meaning of the "do not disturb" sign, but did not do so. Id. at 112. He agreed that it was beyond the standard of medical care to make assumptions when conducting an autopsy. Id. at 67.

¶ 8 On July 1, 1998, almost one year after the decedent died, Dr. Farano contacted him and asked him about amending the report, which he agreed to do. Id. at 69. He told Dr. Farano that he had not lifted the decedent's eyelids. Id. at 72. Dr. Farano sent him a draft amended report, which he signed. Id. at 69. Dr. Bergnes did not write the amended report, but he approved it and signed it. Id. at 73. At first he stated that it was his understanding that legal counsel for the Hospital drafted the words of the amended report. Id. Later, he acknowledged that he did not know who wrote the amended report. Id. at 177. When asked if he knew that making a mistake on an autopsy report could cause great pain to the family members of a deceased, Dr. Bergnes replied:

Yes. You are asking me—I heard about this a year later, you know? I remembered then when I was asked what the sequence of events were, and I apologize to Mrs. Van Zandt's daughter profoundly, and I can understand her concern, but, as I have stated, I was in error in the statement and the reasons for it. More I cannot tell you.

Id. at 105.

¶ 9 The purpose of the autopsy was to determine the cause of death, and the condition of the decedent's eyes was not relevant to that determination. Id. at 136-137. Dr. Bergnes did not remove the decedent's eyes, and has never removed anyone's eyes in the past. Id. at 139-140. As of the date of the deposition, he does not know whether the eyes were donated. Id. at 154.

¶ 10 Van Zandt's testimony may be summarized as follows. On June 17, 1997, the decedent was admitted to the Hospital suffering from seizures, a brain injury, and a tumor in her abdomen. On the next day, Van Zandt and her family decided to remove the decedent from life support. By 6:30 in the evening, Van Zandt paid her last respects to her mother. At that time, the decedent's eyes were open and unbandaged. Id. at 90. Nurses from the Hospital asked her to leave the room so they could prepare the decedent for the morgue. Id. When she returned to the room approximately 20 minutes later, the respirator had been removed and two bandages were taped to the decedent's eyes. Id. at 93. There were no notes or papers attached to the bandages. Id. at 94. At approximately 10:00 that night, she received a call from the Lions Eye Bank of Delaware Valley asking if she would be interested in donating her mother's eyes to the eye bank. She refused, and had no further contact with the eye bank after that phone call. Id. at 96-97. She denied the eye bank's request because the decedent was opposed to organ donation for religious reasons. Id. at 98. Despite this professed concern that the body remain intact after death, the body was cremated at the request of Van Zandt and her family. Id. at 100. She last saw the decedent's body at a funeral home two days after the death. The decedent's eyes were closed and her face had a sunken look. Van Zandt could not determine whether the eyes were present. Id. at 100. ¶ 11 In the late summer or early fall of 1997, Van Zandt requested her mother's autopsy report because Van Zandt's oncologist felt it would be helpful in monitoring Van Zandt's ovarian cancer. When Van Zandt read that her mother's eyes had been donated, Van Zandt suffered great emotional distress. Id. at 103. She testified that she "backtracked" in her grieving process and that she suffered from nightmares. She saw a psychologist throughout 1998.

¶ 12 Van Zandt also presented the testimony of Paul J. Hoyer, M.D., a forensic pathologist. Dr. Hoyer provided his expert opinion that Dr. Bergnes did not meet a reasonable standard of care in performing the first autopsy report "in that he described examining eyes or the absence of eyes when he—depending on what you believe to be the case, he either had not looked or didn't remember looking." N.T., 1/4/2001, at 59. In other words, he deviated from the standard of care when he described something which he did not necessarily see. Id. at 69.

¶ 13 Finally, Van Zandt presented stipulated testimony from an employee of the Lions Eye Bank. The stipulation stated that between 9:45 and 10:25 p.m. on June 18, 1997, the employee telephoned Van Zandt and sought permission for the eye donation, and that Van Zandt refused permission. Id. at 127.

¶ 14 The trial court denied the defendants' motion for a directed verdict. The defendants then presented their evidence. The Hospital presented testimony from the president of the Lions Eye Bank, stating that...