Rustvold v. Taylor

14 P.3d 675, 171 Or. App. 128, 2000 Ore. App. LEXIS 1913

• Court: Court of Appeals of Oregon
• Decided: November 22, 2000
• Docket: 9709-07241; CA A104181
• Status: Published

Opinions

LANDAU, J.

Plaintiff Jeri Rustvold appeals a summary judgment dismissing her claims for medical malpractice and negligent infliction of emotional distress arising out of a medical incident that she contends left her reasonably in fear of contracting Hepatitis B or HIV. We affirm in part, reverse in part, and remand for further proceedings.

The following facts are not in dispute. Plaintiff underwent a routine rib resection at defendant Legacy Emanuel Hospital & Health Center (Emanuel). In the course of that surgery, the anesthesiologist, defendant Taylor, administered an anesthetic by inserting a syringe into plaintiffs intravenous tubing; the syringe did not pierce plaintiffs skin. While cleaning up after the surgery, Taylor discovered two used syringes on his instrument tray. Both needles had been used to administer the same anesthetic. Taylor could not tell which one had been used on plaintiff, nor could he tell whether he had used the same syringe on a previous patient.

Taylor informed plaintiff that he could not tell whether the needle that he used for her surgery had already been used. He suggested that she be vaccinated for Hepatitis B and that she be tested for HIV. Plaintiff at first refused, but ultimately she underwent at least a portion of a Hepatitis B vaccination schedule and submitted to HIV testing on three occasions. Each time, plaintiff tested negative for HIV, and eventually doctors concluded to a medical certainty that she is not infected with either Hepatitis B or HIV. Doctors also determined that the previous patient whose syringe may have been used for plaintiffs operation was not infected with either Hepatitis B or HIV.

Plaintiff initiated this action for medical malpractice and negligent infliction of emotional distress.¹ In her complaint, she alleged that defendants were negligent in the following particulars:

“a) In failing to ensure that Plaintiff* * * would not be given medication with a syringe that had previously been used on another patient;

“b) In failing to properly prepare the anesthesia area for the surgery involving Plaintiff* * *;

“c) In failing to properly clean up after the previous surgery;

“d) In giving medication to Plaintiff * * * with a syringe that likely had been used on a prior patient thus exposing Plaintiff * * * to blood born[e] disease; and;

“e) In failing to inform Plaintiff * * * immediately of the fact that it was likely that she had been given medication with a used syringe.”

Both Emanuel and Taylor moved for summary judgment, arguing that plaintiff had failed to show either the harm or causation elements of a medical malpractice claim and that her negligent infliction claim fails for lack of physical injury concurrent with the emotional distress.

In support of their motions, Emanuel and Taylor relied on, among other things, an affidavit of an expert witness asserting that, because the syringe did not pierce plaintiffs skin, because there was no more than a 50-percent chance that a previously used syringe was used in her surgery, because of the remote odds of infection even if the previous patient was infected, and because the previous patient was not infected with either Hepatitis B or HIV, there was no reasonable probability that patient had sufficient contact with any prior patient’s bodily fluids to transmit any disease whatsoever. In response, plaintiff offered an affidavit of counsel stating that counsel had hired an expert who would testify that defendants were negligent in the particular ways described in the complaint. She also offered portions of her own deposition, in which she testified to the injuries to her arm and shoulders that resulted from the subsequent testing and inoculation.

As an alternative ground for its motion, Emanuel argued that it was not liable as a matter of law because Taylor was an independent practitioner and not an employee whose tortious conduct could give rise to vicarious liability. The trial court declined to address Emanuel’s vicarious liability argument, but it nevertheless granted Emanuel’s and Taylor’s motions and entered summary judgment dismissing all claims.

On appeal, plaintiff first argues that the trial court erred in entering summary judgment on the medical malpractice claim. According to plaintiff, she has offered evidence of harm resulting from defendants’ negligence. She asserts that the emotional distress related to her fear of contracting Hepatitis B and HIV constitutes harm cognizable in a medical malpractice claim. Aside from that, she argues, her medical malpractice claim is supported by evidence of the physical injuries to her arm and shoulders associated with the testing and treatment that necessarily flowed from Taylor’s failure to ensure that he used the right syringe. Defendants argue that the fear of contracting a virus is not actionable in medical malpractice without evidence of actual exposure to the virus, and there is no such evidence in this case. As for the injuries to plaintiffs arm during testing and treatment, both defendants summarily discount the injuries as “nominal.”

On review of a summary judgment, we examine the evidence in the light most favorable to the nonmoving party to determine whether there are genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997).

The elements of a claim for medical malpractice are: (1) a duty that runs from the defendant to the plaintiff; (2) a breach of that duty; (3) harm that is measurable in damages; and (4) a causal link between the breach and the harm. Zehr v. Haugen, 318 Or 647, 653-54, 871 P2d 1006 (1994). At issue in this case is whether the evidence of plaintiffs fear of contracting Hepatitis B or HIV or of her physical injuries experienced during treatment and testing amount to legally cognizable harm.

We begin with plaintiffs emotional distress occasioned by the risk that she may have been exposed to Hepatitis B or HIV. In Curtis v. MRI Imaging Services II, 327 Or 9, 956 P2d 960 (1998), the Supreme Court addressed the extent to which psychological injury is cognizable in a medical malpractice action. Because we conclude that Curtis is controlling, we examine it in some detail. At issue was the extent to which the plaintiff could recover damages in a medical malpractice action for his purely psychological reaction to a magnetic resonance imaging (MRI) testing procedure. In his complaint, the plaintiff alleged that the defendant medical professionals were negligent:

“1. In failing to properly explain the nature of the MRI procedure to the Plaintiff prior to instituting such procedure, particularly in failing to warn the Plaintiff of the possible claustrophobic effects of the MRI;

“2. In failing to take an adequate medical and psychological history from the Plaintiff, including the history of a pre-existing asthmatic condition;

“3. In failing to properly monitor the progress of the Plaintiff during the course of the MRI procedure; and

“4. In failing to promptly terminate the MRI procedure when Plaintiff complained of difficulties with breathing, and indicated a desire for the procedure to end.”

Id. at 11. The defendants answered and moved for judgment on the pleadings on the ground that, in the absence of an allegation of an actual or threatened physical injury, a claim for negligent infliction of emotional distress is not cognizable as a matter of law. The trial court agreed and allowed the motion.

The Supreme Court reversed. The court explained that, in the context of a claim for medical malpractice, the mere fact that the harm alleged is purely psychological is not dispositive. That does not mean, the court cautioned, that all claims for emotional distress in a medical malpractice are cognizable. The court hastened to make clear that only when the applicable standard of care includes a duty to avoid the particular type of psychological harm of which the plaintiff claims will that harm be cognizable:

“[W]hen the claim is that a medical practitioner breached a professional duty to guard against a specified medical harm, the fact that that harm is psychological rather than physical is not a bar to liability. Our holding should not be read to mean that medical professionals operate under a general duty to avoid any emotional harm that foreseeably might result from their conduct. In that regard, their duty is no greater than that of the population at large. But, where the standard of care in a particular medical profession recognizes the possibility of adverse psychological reactions or consequences as a medical concern and dictates that certain precautions be taken to avoid or minimize it, the law will not insulate persons in that profession from liability if they fail in those duties, thereby causing the contemplated harm.”

Id. at 15-16 (emphasis added). Turning to the plaintiffs complaint, the court observed that

“[I]t is possible to infer, from plaintiffs specific allegations of negligence, that particular aspects of the relevant standard of care were at issue: a duty to explain the nature of the procedure, to warn of its possible claustrophobic effects, to take an adequate medical history in order to discover any particular physical or psychological sensitivities that might be affected by the procedure, and, finally, to terminate the procedure if the patient begins to experience physical or psychological difficulties.”

Id. at 14. The key, the court emphasized, is whether the medical professional “operate[s] under a standard of care that includes a specific duty to be aware of and guard against particular adverse psychological reactions or consequences to medical procedures.” Id. at 14-15. In that case, the allegations of the complaint were sufficient to establish the requisite “specific duty.”

Curtis thus establishes the principle that, for the law to recognize purely psychological harm in a medical malpractice case, the plaintiff must establish that there is a duty to guard against that psychological harm. In this case, plaintiff failed to do that.

At the outset, it is important to observe that this case comes to us in a procedural posture that is slightly different from that reflected in Curtis. This case was disposed of on summary judgment. The defendants offered uncontradicted evidence that — because the needle did not pierce plaintiffs skin, because of the remote odds of infection even if a previous user were infected, because the previous user was not, in fact, infected, and because there was, at most, only a 50-percent chance that the previous user’s needle actually was used — plaintiff had not been exposed to any disease. Plaintiff offered only an affidavit that she had retained an expert who will testify that defendants’ failure to keep the needles separate violated the applicable standard of care, as she detailed in the allegations of her complaint. In other words, she offered no direct evidence that defendants “operated] under a standard of care that includes a specific duty to be aware of and guard against particular psychological reactions or consequences” to the medical procedures involved in her operation. Curtis, 327 Or at 14-15. The narrow question before us, then, is this: When defendants’ conduct did not actually expose plaintiff to any communicable disease, are the allegations of her complaint nevertheless sufficient to support an inference that the applicable standard of care includes a specific duty to avoid causing plaintiff to fear that she will become infected with Hepatitis B or HIV?

In this case, plaintiff makes no argument that her allegations support such an inference. Her sole argument is that, because her emotional distress is a foreseeable consequence of defendants’ negligence, that emotional harm should be cognizable. But that is precisely the argument that Curtis forecloses: “Our holding should not be read to mean that medical professionals operate under a general duty to avoid any emotional harm that foreseeably might result from their conduct.” 327 Or at 15.

The dissent similarly argues that the requisite duty “arises within the ordinary knowledge that a potential exposure to HIV or Hepatitis B causes emotional trauma to any person in plaintiffs circumstances.” 171 Or App at 148. According to the dissent, because such emotional trauma is “predictable,” we may infer that the standard of care within the applicable medical community includes a duty to avoid such trauma. Once again, however, the argument cannot be reconciled with Curtis, in which the Supreme Court plainly stated that something more than the mere foreseeability of emotional trauma is required. We conclude that the purely emotional harm of which plaintiff complains is insufficient to support a claim for medical malpractice.

We turn to plaintiffs physical injuries suffered in the course of treatment and testing. Defendants’ sole response to plaintiffs assertion that she suffered physical injuries is that

“[t]he issue in this case * * * is not the nominal damages to which plaintiff might be entitled for these tests and inoculations, but the damages which she seeks for fatigue, anxiety and depression * * * from ‘fear of possible exposure to HIV or Hepatitis B.’ ”

Defendants thus do not take issue with the existence of plaintiff s physical injuries; rather, they assert that they are of no consequence, apparently because they are too insignificant. Defendants cite no authority for their proposition that, as a matter of law, we may simply disregard plaintiffs assertion that she suffered physical injuries in the course of testing and treatment. In that regard, we note that, under the summary judgment rule in effect at the time the trial court ruled on this matter, it was defendants’ burden affirmatively to prove that plaintiff suffered no legally cognizable injury. Tozer v. City of Eugene, 115 Or App 464, 467, 838 P2d 1104 (1992). Defendants having failed to do so with respect to the alleged physical injuries, we conclude that the trial court erred in allowing summary judgment on the medical malpractice claim insofar as it claims damages for plaintiffs physical injuries.

Defendant Emanuel argues that, even if there is an issue of fact as to the physical injuries that plaintiff suffered, it is entitled to summary judgment as a matter of law, because Taylor was not its agent, and vicarious liability therefore will not apply. As we have noted, however, the trial court declined to reach that issue. Under the circumstances, the trial court should have the first opportunity to evaluate the summary judgment record as to the factual predicates for the argument. See Anderson v. Carden, 146 Or App 675, 689, 934 P2d 562, rev den 326 Or 68 (1997) (“Although we may affirm the trial court on grounds different from those relied on by the trial court, in this case, the trial court’s order expressly provided that it did not consider [the alternative ground]. Under the circumstances, the trial court should have the opportunity in the first instance to evaluate the parties’ factual assertions.”).

Plaintiff next argues that the trial court erred in entering summary judgment on her claim for negligent infliction of emotional distress. She acknowledges that the claim ordinarily requires proof of a concomitant physical injury; she argues that the injuries to her arm and shoulder in the course of treatment and testing suffice. In the alternative, she argues that her case falls within a recognized exception to the physical injury requirement. According to plaintiff, defendants’ actions infringed on a legally protected interest apart from her interest in being free from foreseeable injury. That interest, she contends, is rooted in her relationship with her doctors, who have a duty to protect her from all consequences of their negligence. Defendants counter that plaintiffs physical injuries are insufficient to support a claim for negligent infliction of emotional distress, because they occurred long after the event that supposedly gave rise to the emotional distress. As for the applicability of the “legally protected interest” exception to the physical injury rule, defendants argue that plaintiff asserts no more than the right to be free of the foreseeable consequences of negligent conduct, which is insufficient to satisfy the exception.

Oregon courts generally do not permit the recovery of damages for negligent infliction of emotional distress in the absence of evidence of physical injury. Curtis v. MRI Imaging Services II, 148 Or App 607, 612, 941 P2d 602 (1997), aff'd on other grounds 327 Or 9, 956 P2d 960 (1998). The physical injury requirement “ ‘affords the desired guarantee that the mental disturbance is genuine.’ ” Wilson v. Tobiassen, 97 Or App 527, 532, 777 P2d 1379, rev den 308 Or 500 (1989) (quoting Prosser and Keeton, Torts 363 (5th ed 1985)). Thus, to provide that guarantee, the physical injury must be related to the claimed emotional distress in such a way as to demonstrate the validity of the claim.

In this case, plaintiff claims to have experienced emotional distress based on her fear of contracting Hepatitis B or HIV following the report that she may have been administered anesthesia with a previously used syringe. The physical injuries on which she relies to establish her entitlement to damages for the emotional distress occurred long after that, during treatment and testing. She does not claim emotional distress associated with that treatment and testing, only as a result of learning about the possibility of infection during her operation. Thus, the physical injuries on which she relies have nothing to do with the genuineness of her claimed emotional distress and fails to satisfy the physical injury requirement.

The absence of physical injury is not necessarily fatal to plaintiffs claim, however. There are some exceptions to the physical injury rule. Pertinent to the arguments in this case is the exception for actions that infringe on a “legally protected interest” that arises independent of the duty to avoid foreseeable risk of harm. Phillips v. Lincoln County School District, 161 Or App 429, 433, 984 P2d 947 (1999). As we explained in Curtis:

“As we understand ‘legally protected interest,’ * * * that term refers to a sort of‘duty’ that is distinct from Fazzolarilike foreseeability. The identification of such a distinct source of duty is the sine qua non of liability for emotional distress damages unaccompanied by physical injury.”

148 Or App at 618 (citations and footnotes omitted). In that case, we held that the pleadings reflected such an independent duty to avoid the possible emotional trauma associated with an MRI procedure. Id.

In this case, plaintiff failed to establish the existence of any such duty. Her argument is that her fear of contracting life-threatening diseases is a foreseeable consequence of defendants’ negligence. But, as we have noted, that is not enough. Her claim must be predicated on a duty independent of the duty to avoid foreseeable risk of harm.

Plaintiff insists that, under our decision in Curtis, the mere fact of the physician-patient relationship itself satisfies the requirement of an independent duty. Curtis cannot be read so broadly. In that case, we held that the physician-patient relationship can include a specific duty the violation of which may support a claim for negligent infliction of emotional distress. We did not say that the mere fact of the relationship always will include such a specific duty. The physician-patient relationship does not bestow on the patient an absolute right to be free of emotional distress. We conclude that, as a matter of law, plaintiff failed to establish entitlement to damages for negligent infliction of emotional distress and that the trial court did not err in entering summary judgment on that claim.

Judgment dismissing claim for medical malpractice reversed and remanded; otherwise affirmed.

1 Plaintiffs husband, David Rustvold, also alleged a claim for loss of consortium, but the trial court entered summary judgment dismissing that claim, and no appeal has been taken from that judgment.