Wargelin v. Sisters of Mercy Health Corp.

• Citation: 385 N.W.2d 732,149 Mich.App. 75
• Decision Date: 05 May 1986
• Docket Number: Docket No. 83228
• Court: Court of Appeal of Michigan (US)
• Parties: Laurie L. WARGELIN, as Personal Representative of the Estate of Kelly A. Wargelin, Plaintiff, and Laurie L. Wargelin and Philip B. Wargelin, individually, Plaintiffs-Appellants, v. SISTERS OF MERCY HEALTH CORPORATION, a Michigan corporation, d/b/a St. Joseph Mercy Hospital; Jeffries and Postmus and Boudeman, P.C.; and Frank Wallace Jeffries, M.D., jointly and severally, Defendants-Appellees. 149 Mich.App. 75, 385 N.W.2d 732

Page 732

385 N.W.2d 732

Laurie L. WARGELIN, as Personal Representative of the Estate

of Kelly A. Wargelin, Plaintiff, and Laurie L. Wargelin and Philip B. Wargelin, individually, Plaintiffs-Appellants, v. SISTERS OF MERCY HEALTH CORPORATION, a Michigan corporation, d/b/a St. Joseph Mercy Hospital; Jeffries and Postmus and Boudeman, P.C.; and Frank Wallace Jeffries, M.D., jointly and severally, Defendants-Appellees.

Docket No. 83228.

149 Mich.App. 75, 385 N.W.2d 732

Court of Appeals of Michigan.

Submitted Nov. 13, 1985.

Decided Feb. 5, 1986.

Released for Publication May 5, 1986.

[149 MICHAPP 77] Meklir, Scheier, Nolish & Friedman, P.C. by Samuel A. Meklir, Southfield, for plaintiffs-appellants.

Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman, Detroit, for Sisters of Mercy Health Corp.

Richard B. Bailey, for Jeffries, Postmus & Boudeman, P.C., and Frank Wallace Jeffries, M.D.

Before BRONSON, P.J., and ALLEN and CHERRY, ^* JJ.

PER CURIAM.

In this appeal as of right, we are asked to decide whether the tort allowing bystander recovery for a parent who witnesses the negligent infliction of an injury to his or her child should apply in a unique situation. Specifically, where parents are cognizant that a fetus is in danger during labor and observe the failure to take necessary corrective measures, and then witness the resulting stillbirth of their child and subsequent actions by defendants, including the placement of the infant on the mother's stomach and efforts to resuscitate the child, should the parents be entitled to bring a cause of action seeking recovery for emotional and mental distress caused by the witnessing of these events?

The trial court answered the foregoing question in the negative, finding that plaintiffs had only witnessed resuscitative efforts which could not be viewed as inflicted "injuries". The court also determined that plaintiffs' distress resulted from the futility of these efforts, and opined that creating [149 MICHAPP 78] liability in these circumstances would result in family members being excluded during the rendering of emergency treatment to loved ones. Based on these findings and considerations, the trial court granted defendants' motion for summary judgment on counts II and III of plaintiffs' complaint. ¹ There was no summary disposition as to count I, the wrongful death action brought on behalf of the child. Plaintiffs appeal the order granting summary judgment, the trial court having certified the question for interlocutory review pursuant to GCR 1963, 806.3(1)(a)(ii). ²

Laurie Wargelin was admitted to St. Joseph Mercy Hospital at approximately 5:15 a.m. on November 20, 1980. At that time her contractions were about seven minutes apart. She was informed that her obstetrician, Dr. Frank Wallace Jeffries, had been notified of her admission but he was not [149 MICHAPP 79] in attendance when she entered the hospital. However, Mrs. Wargelin was examined upon admission and, consistent with Dr. Jeffries' earlier observations, it was noted that her uterus was irregular or lopsided. She was never led to believe that this factor was significant but now contends that delivery by Caesarean section was indicated by this condition.

After examination, the Wargelins were left in a labor room with one nurse in attendance. At Mrs. Wargelin's request, an external fetal monitor was attached to her abdomen. Dr. Jeffries appeared at 7:30 a.m. and briefly examined Mrs. Wargelin to ensure that she was properly dilating. At approximately 10:00 a.m., the Wargelins became distressed when the fetal monitor indicated that the fetal heartbeat had decelerated and the sounds of the beat diminished. Mrs. Wargelin repeatedly asked for Dr. Jeffries. However, the attending nurse assured her that everything was fine, explaining that interference of the pelvic bone during contractions was the cause of the diminished heartbeat or the change in heart rate. Mrs. Wargelin testified at her deposition that she and her husband remained concerned, doubting the explanation, since the deceleration in the rate of the heartbeat and the diminished sound did not always coincide with the contractions.

Dr. Jeffries reappeared at approximately 11:00 a.m. and announced that Mrs. Wargelin was ready to deliver. He inquired whether they wished to deliver in the labor room or go to the delivery room. At the Wargelin's election, they proceeded to the delivery room where an intern subsequently delivered Kelly A. Wargelin while Dr. Jeffries observed. Apparently not realizing that the infant had not begun to breath and was bluish-gray, the intern placed the child on Mrs. Wargelin's stomach[149 MICHAPP 80] as if it were a healthy child. At this juncture, Dr. Jeffries grabbed the baby and took it to a nearby table where he attempted to resuscitate the child, pounding on its chest, administering shocks, and inserting a long needle in the baby's heart. During this procedure, Dr. Jeffries sent a nurse to call for a pediatrician on two occasions. The nurse returned the second time and explained that there was no pediatrician in the hospital. After approximately 15 minutes, efforts to resuscitate the child were abandoned.

Neither the defendants nor the trial court indicated whether the motion for summary judgment was brought and decided pursuant to GCR 1963, 117.2(1), for failure to state a claim upon which relief could be granted, or pursuant to GCR 1963, 117.2(3), alleging that there was no genuine issue of material fact and that judgment should therefore have been rendered as a matter of law. However, since the parties and the court relied on matters extrinsic to the pleadings, we will treat this motion as if it were brought pursuant to subsection (3) and review it accordingly. See, Huff v. Ford Motor Co., 127 Mich.App. 287, 292-293, 338 N.W.2d 387 (1983). In a motion for summary judgment under GCR 1963, 117.2(3), now MCR 2.116(C)(10), "[t]he court must give the opposing party the benefit of any reasonable doubt, and should grant the motion only if satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome". Johnson v. Auto-Owners Ins Co., 138 Mich.App. 813, 815, 360 N.W.2d 310 (1984).

Michigan has recognized a cause of action based on negligence in a parent who witnesses the negligent infliction of injury to his or her child and suffers emotional distress as a consequence. See, Gustafson v. Faris, 67 Mich.App. 363, 241 N.W.2d [149 MICHAPP 81] 208 (1976); Toms v. McConnell, 45 Mich.App. 647, 207 N.W.2d 140 (1973); Perlmutter v. Whitney, 60 Mich.App. 268, 230 N.W.2d 390 (1975); Miller v. Cook, 87 Mich.App. 6, 273 N.W.2d 567 (1978) lv. den. 406 Mich. 890 (1979); Williams v. Citizens Mutual Ins. Co., 94 Mich.App. 762, 290 N.W.2d 76 (1980); Henley v. Dep't of State Highways & Transportation, 128 Mich.App. 214, 340 N.W.2d 72 (1983); Bernier v. Bd. of County Road Comm'rs for the County of Ionia, 581 F.Supp. 71 (WD Mich,1983) (applying Michigan law). The parameters of this cause of action were delineated in Gustafson, supra, 67 Mich.App. pp. 368-369, 241 N.W.2d 208, which adopted the limitations set forth in Prosser, Torts (4th ed), Sec. 54, pp 334-335 and thereby created four elements which must be established in order to recover: (1) "the injury threatened or inflicted on the third person must be a serious one, of a nature to cause severe mental disturbance to the plaintiff"; (2) the shock must result in actual physical harm; (3) the plaintiff must be a member of the immediate family, or at least a parent, child, husband or wife; and (4) the plaintiff must actually be present at the time of the accident or at least suffer shock "fairly contemporaneous" with the accident. In Gustafson, the Court indicated that in Michigan, the bystander need not actually witness the accident as long as the injury to the individual plaintiffs occurs fairly contemporaneous with the accident. These limitations insure against deceptive claims and restrict the cause of action to bystanders whom the tortfeasor could reasonably have foreseen might have suffered mental disturbance as a result of witnessing the accident.

Defendants maintain that summary judgment was properly granted, averring that plaintiffs cannot establish the first Gustafson element, a serious injury of a nature to cause severe mental disturbance. [149 MICHAPP 82] They argue that the resuscitative efforts cannot be viewed as the negligent infliction of injury and that the injuries herein involved cannot be viewed as "sudden, brief and inherently shocking accidental event[s]" as contemplated by Gustafson. We note that no Michigan cases have interpreted what was meant by Gustafson's requirement of a serious injury of a nature to cause severe mental disturbance. To this extent, this case presents an issue of first impression. We also note that defendants have not cited any cases from other jurisdictions which might lend support to their interpretation of this element. Rather, they base their argument on the types of injuries which Michigan courts have heretofore recognized as serious and likely to cause mental distress, i.e., children being struck by an automobile as in Toms, supra, and Gustafson, supra. See also, Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968).

We have found additional case law from other jurisdictions where, with factual scenarios similar to the case at bar, parents were permitted to proceed on a cause of action for recovery of mental distress damages where the parents had witnessed birth injuries to the child. Haught v. Maceluch, 681 F.2d 291, reh.den. 685 F.2d 1385 (CA 5,1982) (applying Texas law); Sesma v. Cueto, 129 Cal.App.3d 108, 181 Cal.Rptr. 12 (1982). However, these cases did not involve fitting the facts with the elements described in Gustafson, supra. Rather, in Haught and Sesma, supra, those courts were faced with determining whether the...