Grider et al v. Shawnee Mission Medical Center, Inc. et al
Filing
157
MEMORANDUM AND ORDER- 119 Motion in Limine is denied as moot; 133 Mid America Physician Services LLC's Motion for Summary Judgment and 141 Shawnee Mission Medical Center Inc.'s Motion for Summary Judgment are granted; 145 Motion for Summary Judgment is denied. Signed by District Judge Daniel D. Crabtree on 11/8/2018. Mailed to pro se party Gary D. Grider,Teresa Mary Palmer,Teresa Marita Palmer and James William Palmer by regular mail. (ydm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TERESA MARY PALMER, et al.,
Plaintiffs,
vs.
Case No. 16-2750-DDC-GLR
SHAWNEE MISSION MEDICAL
CENTER, INC. and MID AMERICA
PHYSICIAN SERVICES, LLC,
Defendants.
___________________________________
MEMORANDUM AND ORDER
On November 5, 2014, plaintiff Teresa Mary Palmer gave birth to a son. Several hours
before the baby’s birth, Ms. Palmer began experiencing cramps and pain. So her husband,
mother, and father drove her to Shawnee Mission Medical Center (“SMMC”). SMMC admitted
Ms. Palmer to its Birth Center, but later diagnosed her with false labor and discharged her from
the hospital. Ms. Palmer returned home, and she continued to experience cramps and pain.
Eventually, her family called 911, and EMS responded to her home. Shortly thereafter, EMS
assisted Ms. Palmer as she gave birth to her son on the floor of the bathroom in her home.
Neither Ms. Palmer nor her son sustained any physical injuries from the home birth. To the
contrary, Ms. Palmer testified that her son is “normal and healthy.” Doc. 142-9 at 20–21 (Teresa
Mary Palmer Dep. 76:21–77:5).
This lawsuit arises from Ms. Palmer’s unanticipated home birth. Ms. Palmer, her
1
husband, her mother, and her father, all proceeding pro se, assert two claims against defendants
1
Because plaintiffs proceed pro se, the court construes their pleadings liberally. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that courts must construe pro se litigant’s
pleadings liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers).
SMMC and Mid America Physician Services, LLC. Ms. Palmer asserts a claim against SMMC
for violating the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C.
§ 1395dd. And all four plaintiffs assert a Kansas state law claim for intentional infliction of
emotional distress against both SMMC and MAPS.
This matter comes before the court on the parties’ cross motions for summary judgment.
Defendants SMMC and MAPS have filed separate Motions for Summary Judgment. Docs. 133,
141. Defendants’ motions ask the court to grant summary judgment against each of plaintiffs’
claims. Also, plaintiffs have filed a Motion for Summary Judgment. Doc. 145. Plaintiffs ask
the court to grant summary judgment in their favor on each claim they assert against defendants
in this lawsuit.
After considering the parties’ arguments, the court grants defendants’ Motions for
Summary Judgment and denies plaintiffs’ Motion for Summary Judgment. The court explains
why below.
I.
Admissible Summary Judgment Evidence
Before turning to the parties’ summary judgment motions, the court addresses what
evidence it can consider on these motions. Specifically, the parties dispute whether the court can
consider two pieces of evidence that plaintiffs rely on both to support their Motion for Summary
Judgment and to controvert defendants’ facts supporting their Motions for Summary Judgment.
The two pieces of evidence are: (1) a report prepared by the Centers for Medicare & Medicaid
Services (“CMS”) (Doc. 145-1), as well as other documents referring to Ms. Palmer’s complaint
to CMS (see, e.g., Docs. 145-3, 145-18, 145-20) (collectively “CMS documents”); and (2) a
But the court does not assume the role of advocate for pro se litigants by constructing arguments or
searching the record. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
2
revised version of SMMC’s Patient Care Protocol No. 308, a revision that SMMC issued after
November 5, 2014 (Docs. 145-5, 145-24).
For the court to consider this evidence on summary judgment, plaintiffs must establish
that the content and substance of the evidence is admissible. See Johnson v. Weld Cty., 594 F.3d
1202, 1209 (10th Cir. 2010) (explaining that it is “well settled in this circuit” that, at summary
judgment, courts can consider only admissible evidence); see also Fed. R. Civ. P. 56(c)(2) (“A
party may object that the material cited to support or dispute a fact [on summary judgment]
cannot be presented in a form that would be admissible in evidence.”). For reasons explained
below, the court concludes that both items of evidence are, in present form, inadmissible, and
thus the court may not consider either one to decide the summary judgment motions.
A. CMS Documents
Plaintiffs ask the court to take judicial notice of the CMS documents under Fed. R. Evid.
201(b)(2). Doc. 149-29. Fed. R. Evid. 201(b)(2) allows a court to take judicial notice of a fact
not subject to reasonable dispute because it “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” The court declines to take judicial
notice of the CMS documents under this rule because, as defendants correctly argue, plaintiffs
have not authenticated the documents and they contain many hearsay statements. Thus, the CMS
documents are not “from sources whose accuracy cannot reasonably be questioned,” as Fed. R.
Evid. 201(b)(2) requires. See United States v. Burch, 169 F.3d 666, 672 (10th Cir. 1999)
(refusing to take judicial notice of facts from photocopy of a map and hearsay affidavit because
these were not sources “whose accuracy cannot reasonably be questioned” as Fed. R. Evid.
201(b)(2) requires).
3
Although not cited by plaintiffs, the court has considered whether the hearsay exception
for public records found in Fed. R. Evid. 803(8) makes the CMS documents admissible.
Plaintiffs have not made any showing that the CMS documents qualify as a public record under
this Rule. See Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016) (holding that a letter was
inadmissible evidence at trial because it was hearsay and the party offering the letter failed to
identify any applicable hearsay exception); see also Woodhull v. Cty. of Kent, No. 1:04-cv-203,
2006 WL 2228986, at *5 n.4 (W.D. Mich. Aug. 3, 2006) (refusing to consider an investigative
report on summary judgment because the party offering the report never “provided foundational
facts establishing that the [report] falls within Fed. R. Evid. 803(8), which provides a hearsay
exception for certain ‘public’ records and reports”).
And, even if plaintiffs had asserted that the CMS documents qualify as a public record
under Rule 803(8)’s hearsay exception, plaintiffs have not authenticated the CMS documents
properly. Although Fed. R. Evid. 902 allows for self-authentication of public records, the CMS
documents are not self-authenticating because they contain neither seal (as Fed. R. Evid. 902(1)
requires) nor a certification (as Fed. R. Evid. 902(2) and 902(4) require). And plaintiffs don’t
authenticate the CMS documents using any of the other means in Fed. R. Evid. 901. Thus, the
court cannot consider the CMS documents on summary judgment because they are not
authenticated. See United States v. Baker, 538 F.3d 324, 331 (5th Cir. 2008) (explaining that
“[r]egardless of whether [the evidence] falls within the ambit of [Fed. R. Evid.] 803(8) . . . [the
party offering the evidence] did not authenticate [it], which is necessary as a predicate for
admission under” Fed. R. Evid. 803(8)); see also United States v. 478.34 Acres of Land, 578
F.2d 156, 159 (6th Cir. 1978) (holding that a Corp of Engineers statistical survey was
inadmissible evidence because no “effort [was] made to verify or authenticate the data in
4
accordance with Rule 901,” and the evidence thus “did not come within the exception to the
hearsay rule admitting deeds and public records, Rule 803(8), (14), (15), or any other exception
to the hearsay rule”); In re Marshall Complex Fire, No. CV-09-0010-RMP, 2010 WL 1416843,
at *4 (E.D. Wash. Apr. 8, 2010) (concluding that a state agency’s report was inadmissible on
summary judgment because the report was not authenticated under either Fed. R. Evid. 901 or
902, and thus did “not satisfy the threshold requirement of authentication” for the court to
consider whether it fell within the hearsay exception of Fed. R. Evid. 803(8)).
Also, to the extent plaintiffs ask the court to accept any legal conclusion the CMS
documents may contain, the court cannot consider that kind of evidence on summary judgment.
See Sprint Commc’ns Co. v. Vonage Holdings Corp., 500 F. Supp. 2d 1290, 1304 (D. Kan. 2007)
(explaining that legal conclusions are not “facts as would be admissible in evidence” as Fed. R.
Civ. P. 56 requires (citations and internal quotation marks omitted)); see also Shelter Mortg.
Corp. v. Castle Mortg. Co., L.C., 117 F. App’x 6, 10 (10th Cir. 2004) (holding that the district
court “correctly struck inadmissible hearsay and inadmissible legal conclusions” on summary
judgment).
For all these reasons, the court rules that it may not consider the CMS documents to
decide the current summary judgment motions because they are not admissible under the Federal
Rules of Evidence.
B. Revised Version of Patient Care Protocol No. 308
Also, the court can’t consider the revised version of SMMC’s Patient Care Protocol No.
308. SMMC issued the revised version of this policy after November 5, 2014. Thus, the revised
policy was not in effect when Ms. Palmer presented to SMMC’s Birth Center on November 5,
2014. Defendant SMMC argues that this evidence is inadmissible under Fed. R. Evid. 407
5
because it qualifies as a subsequent remedial measure. Plaintiffs never responded to this
argument.
Fed. R. Evid. 407 provides that “[w]hen measures are taken that would have made an
earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible
to prove . . . culpable conduct . . . .” The Tenth Circuit has recognized “two primary grounds for
the exclusion of evidence under Rule 407: (1) the limited probative value of subsequent
remedial measures; and (2) ‘[the] social policy of encouraging people to take . . . steps in
furtherance of added safety.’” Stahl v. Bd. of Cty. Comm’rs, 101 F. App’x 316, 321 (10th Cir
2004) (quoting Hull v. Chevron, U.S.A., 812 F.2d 584, 587 (10th Cir. 1987)). Thus, under Rule
407, “courts have excluded ‘repairs, changes in construction, installation of new safety devices
. . . , changes in rules and regulations, [and] changes in the practice of the business.’” Id.
(quoting 23 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure §
5284 (2d ed. 1980)) (emphasis added).
Here, plaintiffs offer the revised version of Patient Care Protocol No. 308 as evidence to
support their claims against defendant SMMC. Thus, plaintiffs seek to use the revised policy—a
subsequent measure taken by SMMC—to prove culpable conduct. Fed. R. Evid. 407 prohibits
admitting evidence for that purpose. And plaintiffs offer no other purpose that would allow the
court to consider this evidence on summary judgment. See Fed. R. Evid. 407 (providing
exceptions for the court to “admit this evidence for another purpose, such as impeachment or—if
disputed—proving ownership, control, or the feasibility of precautionary measures”). The court
concludes that the revised version of Patient Care Protocol No. 308 is inadmissible evidence
under Fed. R. Evid. 407. Consequently, the court does not consider the revised policy when
deciding the parties’ summary judgment motions.
6
II.
Uncontroverted Facts
The following facts are uncontroverted for purposes of the parties’ summary judgment
motions.
On November 5, 2014, plaintiff Teresa Mary Palmer was 36.2 weeks pregnant. At 2:26
a.m., she presented to SMMC’s Birth Center, complaining that she was cramping, experiencing
vaginal bleeding, and discharging pinkish fluid. Before coming to SMMC’s Birth Center, Ms.
Palmer2 was receiving prenatal care from Dr. Angela Piquard. SMMC staff admitted Ms. Palmer
for observation and assessment under Dr. Piquard’s name.
In November 2014, SMMC had a policy titled Patient Care Protocol No. 308 (Medical
Screening Exam (MSE), Care of the Perinatal Patient Receiving). Patient Care Protocol No. 308
applied to pregnant patients who presented themselves at SMMC’s Birth Center, and it
implemented the medical screening exam and stabilization requirements prescribed by
EMTALA.
Under Patient Care Protocol No. 308, registered nurses (“RNs”) and certified nurse
midwives (“CNMs”) constituted “qualified medical personnel” who were authorized to perform
medical screening exams on pregnant patients presenting to SMMC’s Birth Center to determine
if a patient was experiencing an emergency medical condition. Specifically, Patient Care
Protocol No. 308 provided, among other things, that “[a] woman is in true labor unless a
physician or qualified medical personnel certifies that, after a reasonable amount of time, the
woman is in false labor.” Doc. 142-7 at 4. Patient Care Protocol No. 308 authorized a woman’s
2
The court refers to plaintiff Teresa Mary Palmer as “Ms. Palmer.” Ms. Palmer’s mother also is a
named plaintiff in this case, and her name is Teresa Marita Palmer. The court refers to this plaintiff as
“Ms. Palmer’s mother.” The court refers to plaintiff James William Palmer as “Ms. Palmer’s father.”
And the court refers to plaintiff Gary D. Grider as “Ms. Palmer’s husband.”
7
discharge from SMMC if qualified medical personnel found her “not to be in active labor.” Id.
at 5.
Also, Patient Care Protocol No. 308 provided that “[i]f the hospital applies in a nondiscriminatory manner a screening assessment that is reasonably calculated to determine whether
an emergency medical condition exists, it has met its obligations under the Emergency Medical
Treatment and Active Labor Act (EMTALA).” Id. at 4. Patient Care Protocol No. 308 required
an assessment of a pregnant woman’s physical status based on “vital signs,” the “frequency,
duration, and intensity of contractions,” “fetal monitoring to establish fetal wellbeing,” and a
“vaginal exam” to “determine fetal presentation and station, cervical dilatation and effacement,”
and assessment of the “status of membranes.” Id. at 4–5. It also included a “Plan” providing for
consultation with a “physician to determine if [an] emergency medical condition exists and if
[the] patient requires admission, discharge, or transfer . . . .” Id. at 5. Patient Care Protocol No.
308 did not require a physician to examine a pregnant patient physically and in person when the
patient had received prenatal care as part of the medical screening exam and before her discharge
from SMMC’s Birth Center.
The following nurses provided care to Ms. Palmer after she was admitted to SMMC’s
Birth Center on November 5, 2014: Katherine Yunghans, CNM; Brandi Leann Fernandez, RN;
Lisa Marie Nelson, RN; and Heather Kristine Hardy, RN. Each of these individuals is a
“qualified medical personnel” under Patient Care Protocol No. 308. The nurses caring for Ms.
Palmer repeatedly took her vital signs, performed a urinalysis, and conducted several vaginal
exams (including a speculum exam) to assess her cervix. Ms. Palmer’s medical records contain
a note reading: “Omit vaginal exam – If less than 37 weeks – or if bleeding – or after
membranes rupture.” Doc. 142-6 at 28. Also, the nurses administered Fern and Nitrazine tests
8
to check for the presence of amniotic fluid in the vaginal canal and to determine whether Ms.
Palmer’s membranes had ruptured. According to Ms. Palmer’s medical chart, these tests
ultimately produced negative results.3
Ms. Palmer’s medical chart shows that she had a cervical assessment at 2:55 a.m. The
chart describes “OB Vaginal Bleed” as “Pink tinged.” Doc. 142-15 at 2. It also states: “10 inch
diameter of pinkish fluid present on chux following exam.”4 Id. Ms. Palmer had two other
cervical assessments at 4:20 a.m. and 6:00 a.m. For these two assessments, Ms. Palmer’s
medical chart describes “OB Vaginal Bleed” as “Pink tinged.” Id. Each of the three cervical
exams noted on the medical chart list “OB Effacement” as “100.” Id.
Ms. Palmer’s medical chart also includes Progress Notes. One note describes an
“Obstetric Exam” and provides “wet pinkish discharge present on glove following exam,
perineum appears wet.” Doc. 142-6 at 25. The note also reads: “Negative ferning. Negative
nitrazine. Amnisura deferred at this time due to presence of blood-tinged muc[ ]us.” Id. The
progress note also describes “contractions” as “mild, Regular, Irritable.” Id. And it lists
“Category I tracing” under “Baby.” Id.
3
See Doc. 142-6 at 24 (showing negative results for both the Nitrazine and Fern tests). Earlier in
her treatment, CNM Katherine Yunghans recorded Ms. Palmer’s Fern test as negative and her Nitrazine
test as “Indeterminate.” Doc. 142-6 at 48. Plaintiffs argue that this earlier recording controverts
SMMC’s asserted statement of fact that both tests were negative. The court disagrees. Although the
records show that an earlier Nitrazine test had produced “Indeterminate” results, this fact does not
controvert the fact that the Ms. Palmer’s medical chart shows that the Fern and Nitrazine tests ultimately
produced negative results.
4
The parties don’t define the word “chux.” The court believes this term refers to a disposable
underpad used by hospitals to absorb bodily fluid. See What are Chux Disposable Incontinence
Underpads?, Express Medical Supply Blog (Aug. 9, 2016),
https://www.exmed.net/blog/expressmedicalsupply/post/2016/08/09/What-are-Chux-DisposableIncontinence-Underpads.aspx (“Chux are an older brand of disposable underpads that aren’t sold anymore
. . . Modern disposable underpads are still called ‘chux’ . . . much like a tissue is called Kleenex even
when it is made by another company.”).
9
Another progress note references a “plan” to “[h]old in L&D triage for evaluation by Dr.
Piquard.” Id. Also, the progress note includes the following notations: “Questionable
prolonged ROM [rupture of membranes]” and “Category I FHR tracing.” Id.
From about 2:41 a.m. until 6:40 a.m., the nurses caring for Ms. Palmer administered
electronic fetal heart monitoring. The monitoring found a “stable” and “reassuring fetal heart
rate.” Doc. 142-6 at 25. Also, the nurses assessed Ms. Palmer’s contractions. The nurses
documented in Ms. Palmer’s medical records that her cervix was dilated to fingertip width and
100% effaced, and that her baby’s head was at a -2 station in the birth canal. According to Ms.
Palmer’s medical chart, over the course of several hours of monitoring, Ms. Palmer’s cervix
never dilated beyond fingertip width and her baby’s head remained at a -2 station.
CNM Katherine Yunghans discussed Ms. Palmer’s case with Dr. Michael Magee, and Dr.
Magee agreed with CNM Yunghans’s plan of care. They both diagnosed Ms. Palmer with false
labor. At the same time, CNM Yunghans noted a “[q]uestionable prolonged” rupture of
membranes. Doc. 142-6 at 25. Also, she noted that Ms. Palmer’s “maternal condition” was
“stable.” Id. Dr. Magee recommended that Dr. Piquard evaluate Ms. Palmer since Dr. Piquard
was planning to come to the hospital for another procedure that morning.
According to Ms. Palmer’s medical records, she had a pain score of “3” at 3:18 a.m. By
6:00 a.m., Ms. Palmer’s pain score had increased to a “5.” Around 7:17 a.m., Nurse Brandi
Leann Fernandez paged Dr. Piquard. Dr. Piquard returned the page and spoke with Nurse
Fernandez. According to Ms. Palmer’s medical chart, Dr. Piquard determined that Ms. Palmer
was in false labor. So, around 7:29 a.m., Dr. Piquard gave Nurse Fernandez a telephone order to
discharge Ms. Palmer from SMMC. At 7:38 a.m., SMMC discharged Ms. Palmer (with
discharge instructions) after assessing and monitoring her for more than five hours. Ms. Palmer
10
used a wheelchair to leave the Birth Center. SMMC discharged Ms. Palmer to her home, and she
left by private car.
SMMC’s discharge instructions included information explaining how to recognize labor.
It provided:
Yes, Labor Has Probably Started If:
Your contractions are getting stronger and more painful instead of weaker. You’ll
probably feel them throughout your whole uterus.
Your contractions are more regular (you feel them about every 5 to 10 minutes) and
they are getting closer together.
You have pink-colored or blood-streaked fluid from your vagina.
Your water breaks. It may be a gush or a slow trickle of clear fluid from your
vagina.
Doc. 142-6 at 7. The discharge instructions also describe characteristics of “false labor”
including that “[f]alse labor contractions can be strong, frequent, and painful, but there is no
regular pattern.” Id. at 5.
While Ms. Palmer was a patient at SMMC’s Birth Center on November 5, 2014, no
nurse, doctor, or other provider asked her for payment or inquired about her ability to pay for the
care she was receiving. Ms. Palmer testified that the nurses and physicians who assessed her at
SMMC treated her politely, courteously, and nicely on a “mental” level. Doc. 142-9 at 26
(Teresa Mary Palmer Dep. 100:7–13). Ms. Palmer also testified that these providers performed
vaginal examinations that caused her pain. Id. But, Ms. Palmer conceded, she has no evidence
to suggest that the providers at SMMC were trying to cause her pain or mental distress.
Before Ms. Palmer’s discharge from SMMC, no nurse, physician, or other healthcare
provider told her that they thought her membranes had ruptured. Ms. Palmer’s chart notes a
“[q]uestionable prolonged” rupture of membranes. Doc. 142-6 at 25. But no provider diagnosed
Ms. Palmer with membrane rupture before her discharge. Also, Ms. Palmer’s medical chart does
11
not show that any SMMC provider actually thought Ms. Palmer was in active or true labor
before her discharge.
Ms. Palmer testified that the decisions whether a pregnant woman is in active labor or
whether she is in a stable condition are medical decisions that a medical doctor must make. But
she believes that SMMC provided her with an inappropriate medical screening exam on
November 5, 2014, and that SMMC discharged her in an unstable condition. Specifically, Ms.
Palmer testified that she believes her medical screening exam was inappropriate because
SMMC’s staff: (1) used unreliable Fern and Nitrazine tests to assess her; (2) failed to perform an
ultrasound (at her request) to determine fluid levels around her baby; and (3) performed too
many vaginal exams with inconclusive results about her cervical dilation. Ms. Palmer also
complains that no physician personally examined her to determine her cervical dilation before
SMMC discharged her from the hospital.
Ms. Palmer testified that SMMC followed Patient Care Protocol No. 308 when caring for
her on November 5, 2014. Also, Ms. Palmer testified that she has no personal knowledge how
SMMC screened or treated other women who presented themselves to the Birth Center with
concerns about active labor during the time while Patient Care Protocol No. 308 was in effect.
After Ms. Palmer delivered her son at home, she returned to SMMC where Dr. Piquard
delivered her placenta without complication. Ms. Palmer concedes that she sustained no
physical injuries from giving birth to her son inside her home on November 5, 2014. Also, Ms.
Palmer testified that her son is normal and healthy.
Ms. Palmer asserts that SMMC’s treatment of her on November 5, 2014, deviated from
the standard of care, and thus SMMC acted negligently. Ms. Palmer concedes, however, that she
has not sought any medical or psychological treatment as a result of the events of November 5,
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2014. No healthcare provider has diagnosed Ms. Palmer with anxiety or depression because of
those events. Also, no medical records exist showing that Ms. Palmer has anxiety or depression.
Ms. Palmer also testified that she has not sought any spiritual meditation or alternative medicine
care because of the events of November 5, 2014.
Ms. Palmer has continued to work and earn income since delivering her son on
November 5, 2014. She has taken vacations, and she has continued to contribute to her marriage.
Also, Ms. Palmer still can have another child if she wanted to do so.
Like Ms. Palmer, the other three plaintiffs—her husband, mother, and father—testified
that their claims in this lawsuit are based on their assertion that SMMC and its staff provided Ms.
Palmer treatment below the level required by the standard of care. Thus, these three plaintiffs
contend, SMMC conducted itself negligently because of the way it treated Ms. Palmer and
decided to discharge her. These three plaintiffs were not patients at SMMC on November 5,
2014, and they had no provider-patient relationships themselves with doctors or nurses at the
hospital that day.
Like Ms. Palmer, the other three plaintiffs—her husband, mother, and father—never have
sought any medical or psychological treatment because of the events of November 5, 2014 (nor
have they self-medicated). Also, no healthcare provider has diagnosed any one of these three
plaintiffs with anxiety or depression based on the events of November 5, 2014. The other three
plaintiffs have continued to work since November 5, 2014.
Plaintiffs have not designated any experts to testify in support of their claims in this
lawsuit. None of the plaintiffs are medical doctors or nurses.
13
III.
Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates that “no genuine
dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(a). When it applies this standard, the court views the evidence and draws
inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279, 1283 (10th Cir. 2010). “An issue of fact is ‘genuine’ ‘if the evidence is such that a
reasonable jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if
under the substantive law it is essential to the proper disposition of the claim’ or defense.” Id.
(quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the moving
party “need not negate the non-movant’s claim, but need only point to an absence of evidence to
support the non-movant’s claim.” Id. (citing Sigmon v. CommunityCare HMO, Inc., 234 F.3d
1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
14
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
670 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
The court applies this same standard to cross motions for summary judgment. Each party
bears the burden of establishing that no genuine issue of material fact exists and that it is entitled,
as a matter of law, to the judgment sought by its motion. Atl. Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000). Cross motions for summary judgment “are to
be treated separately; the denial of one does not require the grant of another.” Buell Cabinet Co.,
Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). But where the cross motions overlap, the
court may address the legal arguments together. Berges v. Standard Ins. Co., 704 F. Supp. 2d
1149, 1155 (D. Kan. 2010) (citation omitted).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Instead, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
IV.
Analysis
Because the parties’ cross motions for summary judgment overlap, the court addresses
their legal arguments together. Defendants assert that they are entitled summary judgment as a
matter of law against plaintiffs’ EMTALA and intentional infliction of emotional distress claims.
Plaintiffs contend that they are entitled to summary judgment in their favor on the same two
claims. The court address each legal claim, below.
A. Ms. Palmer’s EMTALA Claim
EMTALA is a federal statute that provides for civil penalties against hospitals and
physicians who negligently violate that act. 42 U.S.C. § 1395dd(d)(1). “Congress enacted
EMTALA in 1986 to address the problem of ‘dumping’ patients in need of medical care but
15
without health insurance.” Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir. 2001)
(first citing Abercrombie v. Osteopathic Hosp. Founders Ass’n, 950 F.2d 676, 680 (10th Cir.
1991); then citing Stevison v. Enid Health Sys., 920 F.2d 710, 713 (10th Cir. 1990)).
This statute “places obligations of screening and stabilization upon hospitals and
emergency rooms that receive patients suffering from an ‘emergency medical condition.’”
Roberts v. Galen of Va., Inc., 525 U.S. 249, 250 (1999). EMTALA thus imposes two
requirements on participating hospitals. Phillips, 244 F.3d at 796. “First, the hospital must
conduct an initial medical examination to determine whether the patient is suffering from an
emergency medical condition.” Id.; see also 42 U.S.C. § 1395dd(a) (“[T]he hospital must
provide for an appropriate medical screening . . . to determine whether or not an emergency
medical condition . . . exists.”). “The second obligation requires the hospital, if an emergency
medical condition exists, to stabilize the patient before transporting him or her elsewhere.”
Phillips, 244 F.3d at 796; see also 42 U.S.C. § 1395dd(b) (“If . . . the hospital determines that the
individual has an emergency medical condition, the hospital must provide either . . . such further
medical examination and such treatment as may be required to stabilize the medical condition, or
. . . transfer . . . the individual to another medical facility [after satisfying certain requirements in]
subsection (c) of this section.”). “To ensure compliance with these obligations, Congress created
a private cause of action.” Phillips, 244 F.3d at 796 (first citing 42 U.S.C. § 1395dd(d); then
citing Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 521–22 (10th Cir. 1994)).
The Tenth Circuit has cautioned, however, that EMTALA “is neither a malpractice nor a
negligence statute.” Repp, 43 F.3d at 522 (citation and internal quotation marks omitted). When
Congress enacted EMTALA, it never “intended ‘to ensure each emergency room patient a
correct diagnosis, but rather to ensure that each is accorded the same level of treatment regularly
16
provided to patients in similar medical circumstances.’” Id. (quoting Collins v. DePaul Hosp.,
963 F.2d 303, 307 (10th Cir. 1992)). So, to prevail, an EMTALA plaintiff must establish that the
treating hospital treated him or her differently than it would have treated other patients in like
circumstances. Id. (“A hospital satisfies the requirements of § 1395dd(a) if its standard
screening procedure is applied uniformly to all patients in similar medical circumstances.”
(citation and internal quotation marks omitted)); see also id. (“[A] hospital violates [EMTALA]
when it does not follow its own standard procedures.”); see also Phillips, 244 F.3d at 796–97
(“A court should ask only whether the hospital adhered to its own procedures, not whether the
procedures were adequate if followed.” (citation and internal quotation marks omitted)).
But still, “this standard does not mean that any slight deviation by a hospital from its
standard screening policy violates EMTALA.” Repp, 43 F.3d at 523. “Mere de minimus
variations from the hospital’s standard procedures do not amount to a violation of hospital
policy.” Id. Because, “[t]o hold otherwise would impose liabilities on hospitals for purely
formalistic deviations when the policy had been effectively followed.” Id.
Here, Ms. Palmer asserts that SMMC violated EMTALA by: (1) failing to provide her an
appropriate medical screening exam; (2) discharging a pregnant patient experiencing cramps in
true labor; and (3) failing its duty to stabilize within its capabilities. Doc. 129 at 6–7 (Pretrial
Order ¶ 4.a.1.); Doc. 145 at 12–13 (Pls.’ Mot. Summ. J.). SMMC responds, arguing that Ms.
Palmer’s allegations merely complain that SMMC acted negligently. But, SMMC contends, the
summary judgment facts do not present a triable issue whether SMMC violated EMTALA.
SMMC asserts four arguments supporting summary judgment against Ms. Palmer’s EMTALA
claim.
17
First, SMMC contends, the summary judgment record presents no genuine issue whether
SMMC failed to follow its own procedures. To the contrary, SMMC contends, the summary
judgment facts establish that SMMC adhered to the requirements of Patient Care Protocol No.
308. Indeed, the summary judgment record—viewed in Ms. Palmer’s favor—establishes that:
(1) “qualified medical personnel”—as Patient Care Protocol No. 308 defined the term—provided
care to Ms. Palmer when she presented to SMMC’s Birth Center on November 5, 2014; (2)
SMMC’s staff repeatedly took Ms. Palmer’s vital signs, performed a urinalysis, conducted
several vaginal exams (including a speculum exam) to assess her cervix, and administered Fern
and Nitrazine tests to check for the presence of amniotic fluid in the vaginal canal and to
determine whether Ms. Palmer’s membranes had ruptured; and (3) two physicians—Dr. Magee
and Dr. Piquard—diagnosed Ms. Palmer with false labor. Also, as Ms. Palmer conceded in her
deposition testimony, SMMC followed Patient Care Protocol No. 308 when caring for her on
November 5, 2014.
But, on the summary judgment motions, Ms. Palmer argues that SMMC failed to follow
its Patient Care Protocol No. 308 because SMMC’s staff never determined her cervical dilation
or whether her membranes had ruptured. Doc. 145 at 13. The summary judgment record—even
when viewed in Ms. Palmer’s favor—can’t support either of these allegations. Ms. Palmer’s
medical chart shows that nurses documented that her cervix was dilated to fingertip width and
100% effaced, and that her baby’s head was at a -2 station in the birth canal. And, over the
course of several hours of monitoring, Ms. Palmer’s cervix never dilated beyond fingertip width
and her baby’s head remained at a -2 station. Thus, according to Ms. Palmer’s medical records,
SMMC determined Ms. Palmer’s cervical dilation.5
5
Ms. Palmer argues that her cervical examinations produced conflicting results. But the
admissible summary judgment evidence won’t support this allegation either.
18
Ms. Palmer’s medical chart also shows that nurses administered Fern and Nitrazine tests
to check for the presence of amniotic fluid in the vaginal canal and to determine whether Ms.
Palmer’s membranes had ruptured. According to Ms. Palmer’s medical records, these tests
ultimately produced negative results. Ms. Palmer argues that these tests are unreliable. But that
argument merely complains that SMMC failed to reach a correct diagnosis. It does not establish
an EMTALA violation. See Repp, 43 F.3d at 522 (explaining that EMTALA is “not intended to
ensure each emergency room patient [receives] a correct diagnosis, but rather to ensure that each
is accorded the same level of treatment regularly provided to patients in similar medical
circumstances.” (citation and internal quotation marks omitted)).
Also, Ms. Palmer argues, CNM Yunghans noted a “[q]uestionable prolonged” rupture of
membranes on her medical chart. Ms. Palmer argues that this note establishes that SMMC never
determined the status of her membranes. Even so, Ms. Palmer never identifies where Patient
Care Protocol No. 308 required SMMC to determine the status of a patient’s membranes.
Instead, the policy simply requires an assessment of the “status of membranes” using a vaginal
exam. Doc. 142-7 at 5. The summary judgment record establishes that SMMC complied with
this requirement. And no SMMC provider ever diagnosed Ms. Palmer with membrane rupture.
Again, Ms. Palmer merely is complaining that SMMC’s assessment of her membranes produced
an incorrect diagnosis. But an incorrect diagnosis will not establish an EMTALA violation.
The court also recognizes that Ms. Palmer asserts in the Pretrial Order that SMMC
violated Patient Care Protocol No. 308 by “performing vaginal exams without a physician order
on a patient less than 37 weeks, and bright red bleeding . . . .” Doc. 129 at 3 (Pretrial Order 3.a.).
Patient Care Protocol No. 308 provides:
physician order needed to perform digital exam for:
19
a) gestation less than 37 weeks with or without suspected spontaneous
rupture of membranes
b) bright red bleeding
c) diagnosis of placenta previa
d) when Fetal Fibronectin is ordered in pre-term labor
Doc. 142-7 at 5. The summary judgment facts, viewed in Ms. Palmer’s favor, establish she was
36.2 weeks pregnant when she presented at SMMC’s Birth Center. But the summary judgment
record contains no facts showing that Ms. Palmer was experiencing “bright red bleeding” as
Patient Care Protocol No. 308 provides. The court recognizes that Ms. Palmer’s medical chart
twice documents an “OB Vaginal Bleed” as “Pink tinged.” It also references the presence of
pinkish fluid after staff performed vaginal exams. But her medical records never describe
“bright red bleeding.” And plaintiff provides no other admissible summary judgment evidence
to support her assertion that she experienced bright red bleeding when she presented herself to
SMMC.
And, even if SMMC had violated this portion of Patient Care Protocol No. 308 by
performing a digital exam on Ms. Palmer without a physician’s order, Ms. Palmer fails to show
how this deviation from hospital policy was more than a de minimus one. As the Tenth Circuit
has explained, “[m]ere de minimus variations from the hospital’s standard procedures do not
amount to a violation of hospital policy.” Repp, 43 F.3d at 523. And so, EMTALA does not
“impose liabilities on hospitals for purely formalistic deviations when the policy had been
effectively followed.” Id. Here, the summary judgment facts, viewed in Ms. Palmer’s favor,
present no triable issue whether SMMC effectively followed its policies. SMMC provided an
appropriate medical screening—consistent with Patient Care Protocol—to determine whether
Ms. Palmer was experiencing a medical emergency.6 Ms. Palmer readily disagrees that SMMC
6
Plaintiffs’ Response in Opposition to SMMC’s Motion for Summary Judgment argues that Ms.
Palmer has claimed more than mere de minimus variations of hospital policy. Doc. 149 at 14. And citing
20
provided an adequate medical screening. But her complaints assert that SMMC was negligent
when it performed that screening and produced an incorrect diagnosis. As already discussed,
such complaints cannot support an EMTALA violation.
Second, SMMC argues, Ms. Palmer cannot bring an EMTALA claim based on SMMC’s
alleged negligence because EMTALA is not a medical malpractice statute. The court agrees.
The Tenth Circuit has made it clear that EMTALA “is neither a malpractice nor a negligence
statute.” Repp, 43 F.3d at 522 (citation and internal quotations marks omitted); see also Phillips
v. Hillcrest Med. Ctr., 244 F.3d 790, 798 (10th Cir. 2001) (“EMTALA does not set a federal
standard of care or replace pre-existing state medical negligence laws.”). EMTALA “does not
provide a remedy for an inadequate or inaccurate diagnosis.” Phillips, 244 F.3d at 798 (citations
omitted); see also id. at 798–99 (holding that, although plaintiffs argued that hospital staff “failed
to appropriately identify and/or appreciate the gravity of [plaintiff’s] condition,” the record
established that the hospital “technically complied with their pre-existing standards,” and so “the
practical effect was an inadequate examination” and “the district court was, as a matter of law,
correct in stating no evidence of an EMTALA claim was presented”).
Like the plaintiffs in Phillips, Ms. Palmer complains here about SMMC’s diagnosis. She
argues that SMMC staff acted negligently when they purportedly provided her an inadequate
the court’s ruling on defendants’ Motions to Dismiss, Ms. Palmer contends that the court already has
“dismissed” SMMC’s argument that she merely asserts de minimus violations of hospital policy. Id. Ms.
Palmer’s argument confuses the procedural posture of the court’s earlier ruling and the parties’ arguments
on summary judgment.
At the pleading stage, the court held that the Complaint’s allegations “as pleaded—assert[ed]
more than de minimus violations of hospital policy” and thus “plaintiff Teresa Mary Palmer [had] asserted
facts sufficient to state a plausible claim against SMMC under EMTALA.” Doc. 84 at 12. But, on
summary judgment, Ms. Palmer—as the non-moving party on SMMC’s summary judgment motion—
“may not rest on [her] pleadings, but must bring forward specific facts showing a genuine issue for trial
[on] those dispositive matters for which [she] carries the burden of proof.” Kannady v. City of Kiowa,
590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)). For
reasons explained, Ms. Palmer fails to carry that summary judgment burden here.
21
medical screening that failed to diagnose that she was experiencing active labor. And, she
contends—albeit without any evidentiary support or expert opinion—that she was in active labor
when SMMC discharged her from its Birth Center. Thus, Ms. Palmer argues, SMMC violated
EMTALA because it discharged her when she was in an unstable condition. But again, Ms.
Palmer’s complaints amount simply to allegations of inaccurate and inadequate diagnosis. And,
the Tenth Circuit has emphasized that such allegations will not support an EMTALA violation.
See, e.g., Phillips, 244 F.3d 798; Repp, 43 F.3d at 522.
Third, SMMC contends, Ms. Palmer has adduced no facts showing that any of SMMC’s
staff actually knew that her membranes had ruptured, or that she was in active labor when she
presented at the hospital on November 5, 2014. EMTALA requires a plaintiff to “prove the
hospital had actual knowledge of the individual’s unstabilized emergency medical condition to
succeed with a claim” under the statute. Urban ex rel. Urban v. King, 43 F.3d 523, 526 (10th
Cir. 1994). Here, Ms. Palmer cites several reasons that show—she claims—SMMC’s providers
knew that Ms. Palmer was in active labor. Doc. 149 at 15. They include her symptoms of
cramping, leaking fluid, and vaginal bleeding. Id. Although the summary judgment record
establishes that Ms. Palmer had these symptoms, no summary judgment facts establish that
SMMC providers actually knew that she was in active labor because she was exhibiting these
symptoms. To the contrary, viewing the summary judgment facts in Ms. Palmer’s favor, her
medical chart establishes that SMMC providers concluded that she was in false labor based on
other symptoms she was exhibiting. Thus, no reasonable jury could conclude from the summary
judgment facts that SMMC actually knew that Ms. Palmer was in active labor and in an
unstabilized emergency condition when SMMC discharged her from the Birth Center on
November 5, 2014.
22
Finally, SMMC argues, the summary judgment facts present no genuine issue of an
EMTALA violation because Ms. Palmer concedes that no one at SMMC asked about her ability
to pay for the care that she was receiving during the more than five hours that SMMC staff
assessed and monitored her at the Birth Center. As explained, Congress’s purpose when
enacting EMTALA was “to address the problem of ‘dumping’ patients in need of medical care
but without health insurance.” Phillips, 244 F.3d at 796. Here, the summary judgment record
contains no facts creating a genuine issue whether SMMC was trying to avoid giving care to Ms.
Palmer because it was concerned about her ability to pay. To the contrary, the summary
judgment facts establish that no one ever asked Ms. Palmer about her ability to pay for care.
For all these reasons, the summary judgment facts viewed in Ms. Palmer’s favor present
no triable issue of an EMTALA violation. The court thus grants SMMC’s Motion for Summary
Judgment against Ms. Palmer’s EMTALA claim. Also, the court denies plaintiffs’ Motion for
Summary Judgment on Ms. Palmer’s EMTALA claim. The summary judgment facts—when
viewed in SMMC’s favor—fail to establish that SMMC violated EMTALA as a matter of law.
B. Plaintiffs’ Intentional Infliction of Emotional Distress Claim
All four plaintiffs assert a Kansas state law claim for intentional infliction of emotional
distress. Before addressing the only remaining claim in this case, the court considers whether it
should exercise supplemental jurisdiction over it. The parties invoke the court’s federal question
jurisdiction. See Doc. 129 at 2 (Pretrial Order ¶ 1.a.) (reciting that subject matter jurisdiction is
invoked under 28 U.S.C. § 1331 and is not disputed). But, because the court has concluded that
defendant SMMC deserves summary judgment against Ms. Palmer’s EMTALA claim—the only
federal claim asserted in this lawsuit—the court may decline to exercise supplemental
jurisdiction over plaintiffs’ remaining state law claim. 28 U.S.C. § 1367(c)(3) (“The district
23
courts may decline to exercise supplemental jurisdiction [when] the district court has dismissed
all claims over which it has original jurisdiction.”).
The decision in this circumstance whether to exercise supplemental jurisdiction is
committed to the district court’s sound discretion. Exum v. U.S. Olympic Comm., 389 F.3d 1130,
1138–39 (10th Cir. 2004). Indeed, the Tenth Circuit has expressed a general preference that a
district court decline jurisdiction over state law claims if it dismisses all federal claims. See
Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998) (“When all
federal claims have been dismissed, the court may, and usually should, decline to exercise
jurisdiction over any remaining state claims.” (emphasis added)). The Supreme Court has
sharpened the analysis. Its rulings direct district courts, when deciding whether to maintain
supplemental jurisdiction over state law claims, to consider “the values of judicial economy,
convenience, fairness, and comity . . . .” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988); see also Wittner v. Banner Health, 720 F.3d 770, 781 (10th Cir. 2013) (“[W]e have said
the court should consider retaining state claims when, given the nature and extent of pretrial
proceedings, judicial economy, convenience, and fairness would be served by retaining
jurisdiction.” (citation and internal quotation marks omitted)).
Here, the court concludes that the governing factors favor the court exercising its
supplemental jurisdiction over plaintiffs’ remaining state law claim. The pretrial proceedings
mostly are complete. Discovery is closed, and the parties have filed summary judgment motions.
Judicial economy favors the court deciding the state law claim now on the complete summary
judgment record that the parties have worked carefully to assemble and submit. Also,
convenience favors the court exercising its supplemental jurisdiction because—again, the court
can decide this claim now—without requiring plaintiffs to pay to refile their state law claim in
24
state court. Also, this result is not unfair. Plaintiffs chose this forum by filing their federal and
state claims here in federal court. See Doc. 1 (Complaint). Applying its discretion, the court
thus decides to exercise supplemental jurisdiction over plaintiffs’ remaining state law claim.
As the court previously has recognized, “Kansas has set a very high standard for the
common law tort of intentional infliction of emotional distress or, as it is sometimes referred to,
the tort of outrage.” P.S. ex rel. Nelson v. The Farm, Inc., 658 F. Supp. 2d 1281, 1304 (D. Kan.
2009) (citation and internal quotation marks omitted); see also McCall v. Bd. of Comm’rs of Cty.
of Shawnee, 291 F. Supp. 2d 1216, 1229 (D. Kan. 2003) (“Claims of outrage in Kansas are
reserved for the most egregious circumstances.”). Indeed, “[t]he overwhelming majority of
Kansas cases have held in favor of defendants on the outrage issue, finding that the alleged
conduct was insufficiently ‘outrageous’ to support the cause of action.” Lindemuth v. Goodyear
Tire & Rubber Co., 864 P.2d 744, 749 (Kan. Ct. App. 1993).
In Kansas, intentional infliction of emotional distress requires the following four
elements:
(1) The conduct of the defendant was intentional or in reckless
disregard of the plaintiff; (2) the conduct was extreme and
outrageous; (3) there was a causal connection between the
defendant’s conduct and the plaintiff’s mental distress; and (4) the
plaintiff’s mental distress was extreme and severe.
Valadez v. Emmis Commc’ns, 229 P.3d 389, 394 (Kan. 2010) (citing Taiwo v. Vu, 822 P.2d
1024, 1029 (Kan. 1991)).
Defendants assert that the summary judgment evidence—even when viewed in plaintiffs’
favor—presents no triable issue on either the second or fourth elements because no reasonable
jury could conclude either that: (1) defendants’ conduct was extreme and outrageous, or (2)
plaintiffs sustained extreme and severe mental distress. Also, defendant Mid America Physician
25
Services, LLC (“MAPS”) asserts that the summary judgment facts present no genuine issue
whether MAPS participated in any conduct that plaintiffs complain occurred on November 5,
2014. And, MAPS contends, Kansas law imposes no vicarious liability on MAPS for the actions
or inactions of another Kansas healthcare provider. First, the court addresses MAPS’s liability
arguments. Next, it considers the second and fourth elements of plaintiffs’ intentional infliction
of emotional distress claim.
1. MAPS’s Liability Arguments
Defendant MAPS asserts that the summary judgment record contains no facts showing
that it committed any acts that could support the intentional infliction of emotional distress claim
plaintiffs assert against this defendant. The court agrees. In her testimony, Ms. Palmer
explained that she has sued MAPS because Dr. Piquard is a member of its healthcare practice
group. See Doc. 135-7 at 29 (Teresa Mary Palmer Dep. 109:12–15). Similarly, Ms. Palmer’s
mother and father testified that they have sued MAPS because Dr. Piquard and Dr. Magee have a
professional affiliation with MAPS. Doc. 135-9 at 15–16 (Teresa Marita Palmer Dep. 55:22–
56:4, 57:4–9); Doc. 135-10 at 19 (James William Palmer Dep. 70:13–23). And Ms. Palmer’s
husband testified that he bases his intentional infliction of emotional distress claim on the
misdiagnosis of false labor by the medical providers who treated Ms. Palmer. Doc. 135-8 at 14
(Gary Dean Grider Dep. 49:9–20, 50:6–12).
But, in Kansas, “[a] health care provider . . . shall have no vicarious liability or
responsibility for any injury or death arising out of the rendering of or the failure to render
professional services inside or outside this state by any other health care provider . . . .” Kan.
Stat. Ann. § 40-3403(h);7 see also Cady v. Schroll, 317 P.3d 90, 100 (Kan. 2014) (“[W]e
7
The undisputed summary judgment facts establish that MAPS, Dr. Piquard, and Dr. Magee met
the requirements for coverage under the health care stabilization fund as of November 5, 2014, and as
26
reaffirm the holding in those cases that [Kan. Stat. Ann. §] 40-3403(h) absolves a health care
provider not just from vicarious liability but from any responsibility, including independent
liability, where the injured party’s damages are derivative of and dependent upon the rendering
of or the failure to render professional services by another health care provider.”); Luttrell v.
Brannon, No. 17-2137-JWL, 2018 WL 3032993, at *10–11 (D. Kan. June 19, 2018) (holding
that Kan. Stat. Ann. § 40-3403(h) immunizes healthcare providers from liability for plaintiff’s
state law claims that “arise out of another health care provider’s rendering of or failure to render
professional services”).
Here, plaintiffs’ Response in Opposition to defendant MAPS’s summary judgment
motion confirms that plaintiffs base their intentional infliction of emotional distress claim on the
treatment—or lack of treatment—that Dr. Piquard and Dr. Magee provided to Ms. Palmer. See
Doc. 140 at 10–11 (alleging that Ms. Palmer “was never seen by a physician, yet two different
MAPS physicians directed the entire healthcare [Ms. Palmer] received” and that “this amounts to
outrageous conduct”). Under Kansas law, MAPS is not vicariously liable for acts by these
physicians. The court thus grants summary judgment against the intentional infliction of
emotional distress claim asserted against defendant MAPS. But, even if Kansas law permitted
plaintiffs to establish that MAPS is liable for Dr. Piquard and Dr. Magee’s conduct, the court still
would grant summary judgment against plaintiffs’ intentional infliction claim because the
summary judgment facts—when viewed in plaintiffs’ favor—present no triable issue on at least
two of the essential elements of the claim. The court explains why in the following two
subsections.
defined by Kan. Stat. Ann. §§ 40-3401, et seq. Doc. 135-6 at 1–2 (Rita Noll Aff. ¶¶ 3–5). Thus, § 403403(h) applies to shield MAPS from vicarious liability in this lawsuit.
27
2. Extreme and Outrageous Conduct
The court grants summary judgment against plaintiffs’ intentional infliction of emotional
distress claim asserted against both defendants SMMC and MAPS because the summary
judgment facts—viewed in plaintiffs’ favor—present no triable issue whether defendants
engaged in extreme and outrageous conduct. Because no reasonable jury could conclude that
defendants’ conduct was extreme and outrageous in the sense required by Kansas law, plaintiffs
cannot establish the second element of an intentional infliction of emotional distress claim. And
thus, plaintiffs’ claim fails as a matter of law.
The Kansas Supreme Court has defined the type of extreme and outrageous conduct
necessary to support an intentional infliction of emotional distress claim. The purportedly
actionable conduct “must transcend a certain amount of criticism, rough language, and
occasional acts and words that are inconsiderate and unkind.” Valadez, 229 P.3d at 394. “The
law will not intervene where someone’s feelings merely are hurt.” Id. Instead, the claim
requires conduct “outrageous to the point that it goes beyond the bounds of decency and is
utterly intolerable in a civilized society.” Id. (citing Taiwo, 822 P.2d at 1029–30).
Here, no reasonable jury could conclude from the summary judgment facts that
defendants’ conduct was extreme and outrageous. Plaintiffs assert that “[d]ischarging a high-risk
patient experiencing preterm labor . . . and three complications” constitutes an extreme and
outrageous act sufficient to support an intentional infliction of emotional distress claim under
Kansas law. Doc. 149 at 17; see also Doc. 145 at 18 (asserting that “discharging a high-risk
patient in preterm labor with three complicating factors that amounts to outrageous conduct and
should not happen”). But the summary judgment facts don’t support this assertion. As discussed
already, nothing in the summary judgment record establishes that Ms. Palmer was in “preterm
28
labor” when SMMC discharged her from its Birth Center. Plaintiffs point to various symptoms
that Ms. Palmer was experiencing and argue that she was in active labor, but no medical provider
ever concluded that she was in active labor while she was at SMMC. Also, plaintiffs have
identified no experts who will testify that Ms. Palmer was experiencing active labor when
SMMC discharged her from the Birth Center. Thus, without expert testimony, plaintiffs cannot
establish that any medical provider was negligent in his or her treatment of Ms. Palmer. See,
e.g., Dawson v. Prager, 76 P.3d 1036, 1038 (Kan. 2003) (explaining that, in Kansas, “expert
testimony is necessary to prove a deviation from the standard of care by a health care provider
where normal experience and qualifications of laypersons serving as jurors would not permit
them to draw proper conclusions”).
Viewing the summary judgment facts in plaintiffs’ favor, they establish that SMMC staff
diagnosed Ms. Palmer as having false labor and discharged her from the hospital. Less than two
hours later, Ms. Palmer delivered her baby at home. Although plaintiffs assert that defendants’
conduct was extreme and outrageous, this assertion does not meet the standard established by the
Kansas Supreme Court. Repeatedly, that court has affirmed judgment against outrage claims in
cases involving significantly more compelling facts than the ones presented. The Kansas
Supreme Court concluded that such conduct simply was not extreme and outrageous as matter of
law. See, e.g., Burgess v. Perdue, 721 P.2d 239, 243 (Kan. 1986) (affirming summary judgment
against an outrage claim brought by a mother who was told that her son’s brain was in a jar);
Hoard v. Shawnee Mission Med. Ctr., 662 P.2d 1214, 1225–26 (Kan. 1983) (holding that a
defendant hospital’s conduct was not extreme and outrageous when it erroneously informed
plaintiffs that their daughter was dead); Roberts v. Saylor, 637 P.2d 1175, 1180–81 (Kan. 1981)
(affirming summary judgment against an outrage claim brought by a patient against a doctor who
29
approached the patient, as she was on a gurney at the hospital preparing for surgery, and told her
that he did not like her).
The summary judgment facts here—when viewed in plaintiffs’ favor—simply provide no
basis for a reasonable jury to find the kind of extreme and outrageous conduct necessary to
support a claim for an intentional infliction under Kansas law. The court thus grants defendants’
Motion for Summary Judgment against plaintiffs’ intentional infliction of emotional distress
claim for this reason. Also, the court denies plaintiffs’ summary judgment motion seeking
judgment in their favor on their intentional infliction of emotional distress claim. The summary
judgment facts—viewed in defendants’ favor—fail to establish that defendants’ conduct was
extreme and outrageous as a matter of law.
3. Extreme and Severe Mental Distress
The court also grants summary judgment against plaintiffs’ intentional infliction of
emotional distress claim for another, independent reason. Plaintiffs have failed to adduce any
evidence that would permit a reasonable jury to find that any of the four plaintiffs sustained
extreme and severe mental distress. This element of an intentional infliction claim requires
emotional distress that “is sufficiently severe, genuine and extreme that no reasonable person
should be expected to endure it.” Roberts, 637 P.2d at 1179. Although “[e]motional distress
passes under various names such as mental suffering, mental anguish, nervous shock, and
includes all highly unpleasant mental reactions, such as fright, horror, grief, shame,
embarrassment, anger, chagrin, disappointment, and worry[,] . . . it is only when emotional
distress is extreme that possible liability arises.” Id. at 1180. “The extreme distress required
must be reasonable and justified under the circumstances, and there can be no liability where the
plaintiff has appeared to suffer exaggerated and unreasonable emotional distress, unless it results
30
from a peculiar susceptibility to such distress of which the actor had knowledge.” Id. (citations
omitted). “The emotional distress must in fact exist, and it must be severe.” Id. (citation
omitted).
Here, the summary judgment record contains no evidence presenting a triable issue
whether any of the four plaintiffs have sustained extreme and severe mental distress. Ms. Palmer
concedes that she sustained no physical injuries whatsoever from giving birth to her son at home
on November 5, 2014. Also, Ms. Palmer testified that her son is normal and healthy. Ms.
Palmer has not sought any medical or psychological treatment as a result of the events of
November 5, 2014. No healthcare provider has diagnosed Ms. Palmer with anxiety or
depression because of the events of November 5, 2014. Also, Ms. Palmer has no medical
records showing that she has anxiety or depression. Ms. Palmer testified that she has not sought
any spiritual meditation or alternative medicine care because of the events of November 5, 2014.
She has continued to work and earn income since giving birth. She has taken vacations, and she
has continued to contribute to her marriage. These facts will not permit a reasonable jury to
conclude that Ms. Palmer has sustained extreme and severe mental distress necessary to support
an intentional infliction of emotional distress claim. See, e.g., Valadez, 229 P.3d at 395 (holding
no extreme and severe mental distress existed, although plaintiff felt physically ill, afraid, and
cried, because the record showed no long-lasting effects or medical treatment or psychological
counseling resulting from defendants’ alleged outrageous conduct); Roberts, 637 P.2d at 1181
(affirming summary judgment and concluding no extreme and severe distress when plaintiff
expressed fright, embarrassment, and worry because “[t]he emotional distress suffered by her
was resentment and upset which normally results from acts and criticism which are inconsiderate
and unkind” but does not constitute an actionable outrage claim); Dana v. Heartland Mgmt. Co.,
31
301 P.3d 772, 781 (Kan. Ct. App. 2013) (affirming summary judgment and holding that
plaintiff’s allegations of chest pain, discomfort, crying, and increased heart and sleep
medications did not rise to the level of extreme or severe distress).
The other three plaintiffs—Ms. Palmer’s husband, mother, and father—were not patients
of SMMC on November 5, 2014. Thus, they base their intentional infliction of emotional
distress claim on Ms. Palmer’s treatment at SMMC’s Birth Center. Like Ms. Palmer, these three
plaintiffs never have sought any medical or psychological treatment because of the events of
November 5, 2014. They also have not tried any self-medication. No healthcare provider has
diagnosed any of the three plaintiffs with anxiety or depression based on the events of November
5, 2014. And these three plaintiffs have continued to work since November 5, 2014. The
undisputed facts—even when viewed in plaintiffs’ favor—present no triable issue whether these
three plaintiffs sustained extreme and severe emotional distress because of the events of
November 5, 2014.
In sum, no reasonable jury could find that any of the four plaintiffs have sustained
extreme and severe mental distress sufficient to support an outrage claim under Kansas law.
Indeed, plaintiffs have identified no evidence in the summary judgment record presenting a
triable issue whether any of the four of them have sustained any emotional distress from the
events of November 5, 2014—much less distress that a jury could conclude amounts to extreme
and severe emotional distress. And, on summary judgment, plaintiffs as the non-moving party
“must bring forward specific facts showing a genuine issue for trial [on] those dispositive matters
for which [they] carr[y] the burden of proof.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169
(10th Cir. 2010) (quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)). Plaintiffs here
32
have failed to carry this burden. The court thus grants summary judgment against plaintiffs’
intentional infliction of emotional distress claim for this second, independent reason.
Finally, the court denies plaintiffs’ summary judgment motion seeking judgment in their
favor on their intentional infliction of emotional distress claim. The undisputed summary
judgment facts—when viewed in defendants’ favor—fail to establish as a matter of law that any
plaintiff sustained extreme and severe mental distress.
V.
Plaintiffs’ Motion in Limine (Doc. 119)
Plaintiffs also have filed a Motion in Limine and Request for Order Limiting Angela
Piquard, M.D.’s Testimony to Personal Knowledge Only. Doc. 119. With their motion,
plaintiffs ask the court to strike Dr. Piquard’s expert report because, they contend, it contains
misleading statements and omits material facts. Id. at 4. Defendants construe plaintiffs’ motion
as a Daubert challenge under Fed. R. Evid. 702 and 703 to defendants’ designated expert
witness. Doc. 126 at 1. And, defendants argue, plaintiffs’ Daubert challenge fails because the
materials they cite to support their motion lack any foundation and thus constitute hearsay. Id. at
2. Thus, defendants ask the court to deny plaintiffs’ Motion in Limine.
The court has reached its decisions on the parties’ cross motions for summary judgment
without considering Dr. Piquard’s expert opinions or her report. And, because the court has
granted summary judgment for defendants and thus dismissed plaintiffs’ claims, the court need
not decide whether Dr. Piquard’s expert report is admissible evidence. The court thus denies as
moot plaintiffs’ Motion in Limine.
33
VI.
Conclusion
For the reasons explained above, the court grants defendants’ summary judgment
motions. And the court denies plaintiffs’ summary judgment motion. Also, the court denies
plaintiffs’ Motion in Limine as moot.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiffs’ Motion in
Limine (Doc. 119) is denied as moot.
IT IS FURTHER ORDERED THAT defendant Mid America Physician Services,
LLC’s Motion for Summary Judgment (Doc. 133) is granted.
IT IS FURTHER ORDERED THAT defendant Shawnee Mission Medical Center,
Inc.’s Motion for Summary Judgment (Doc. 141) is granted.
IT IS FURTHER ORDERED THAT plaintiffs’ Motion for Summary Judgment (Doc.
145) is denied.
IT IS SO ORDERED.
Dated this 8th day of November, 2018, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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