|
PLAINTIFF-APPELLANT'S
BRIEF
QUESTIONS PRESENTED
|
I. |
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN GRANTING THE
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIM OF CAROLYN M. WRENN BECAUSE GENUINE ISSUES OF MATERIAL FACT EXIST AND THE DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW? |
STATEMENT OF THE CASE
This is a medical malpractice action filed by
plaintiffs George T. Wrenn and Carolyn M.
Wrenn in the Superior Court of Durham County,
North Carolina on January 8, 1992. (R p. 2)
Plaintiff George T. Wrenn brought this action
for personal injuries he suffered as a result
of the negligence of the defendant Jesse
Randall Byrd, M.D. Plaintiff Carolyn M. Wrenn
is the wife of Mr. Wrenn and joined her claim
for negligent infliction of emotional distress
in this action with her husband.
This action was initially brought against
defendants Coastal Emergency Services, Inc.
("Coastal"), Maria Parham Hospital,
Inc. ("Hospital"), and Jesse Randall
Byrd, M.D., a physician who saw Mr. Wrenn in
the Hospital's emergency department on
September 4, 1989 for diagnosis and treatment
with presenting complaints of, inter alia, the
sudden onset of fever, chills, nausea,
headaches, and aches in the muscles of his
lower extremities. (R p. 2) Defendants Coastal
and the Hospital were duly served with
process. The defendant Byrd was duly served
with process on January 13, 1992 (R p. 13) and
served his response to plaintiffs' Complaint
on February 12, 1992, denying liability. (R p.
15) On April 5, 1994, plaintiffs filed an
Amended Complaint bringing in an additional
Coastal defendant. (R p. 48) The defendant
Byrd served his answer and motion to
plaintiffs' Amended Complaint on June 6, 1994,
denying liability. (R p. 62)
The case was peremptorily set for trial for
the October 10, 1994 Civil Session of Superior
Court in Durham County. On September 29, 1994,
defendant Byrd served his motion for summary
judgment. (R p. 68) Plaintiffs earlier gave
notice of voluntary dismissal without
prejudice of their claims against the
Hospital, and on October 10, 1994, plaintiffs
filed and served their notice of voluntary
dismissal without prejudice of their claims
against all Coastal defendants. (R p. 70) Also
on October 10, 1994, plaintiffs filed and
served a notice of voluntary dismissal without
prejudice of their claims for punitive damages
against the defendant Byrd. (R p. 72)
In a pre-trial hearing on October 10, 1994,
the Court granted the defendant's motion for
summary judgment on the claim for negligent
infliction of emotional distress of the
plaintiff Carolyn Wrenn. (R p. 126) On October
11, 1994, plaintiff Carolyn Wrenn filed and
served Notice of Appeal to the North Carolina
Court of Appeals. (R p. 127) Also on October
11, 1994, plaintiff George Wrenn filed and
served Notice of Voluntary Dismissal without
Prejudice of all his claims against defendant
Dr. Byrd. (R p. 129) The Order Settling the
Record on Appeal was entered on January 13,
1995. (R p. 131) The Record on Appeal was
filed and served on January 23, 1995. (R p.
137)
STATEMENT OF FACTS
On September 4, 1989, George Wrenn and Carolyn
Wrenn had been married for about twenty-four
years. (Wrenn dep. p. 57 [All "Wrenn
dep." references are to the deposition of
Carolyn Wrenn]) They lived together in
Henderson, North Carolina. On this date, at
about one o'clock in the morning, Mr. Wrenn
went to bed and started shaking all over. He
said to his wife, "I'm about to
freeze." (Wrenn dep. p. 5) Mrs. Wrenn
took her husband's temperature and the reading
was over 103E heading toward 104E. Mrs. Wrenn
had never known her husband to have a
temperature that high and, being a religious
person, she prayed because she was scared. (Wrenn
dep. p. 6) After applying cold compresses to
her husband and watching him for a while, Mrs.
Wrenn decided to take her husband to the
emergency department at Maria Parham Hospital
in Henderson because she "...knew at that
point that something deathly was wrong."
(Wrenn dep. p. 8) Mrs. Wrenn drove her husband
to the hospital. Mr. Wrenn lay in the back
seat of the vehicle. Upon arriving at the
Hospital's emergency department at
approximately 3:10 a.m. on September 4, 1989,
Mrs. Wrenn went to the desk to register her
husband. She had to help her husband into the
emergency department. (Wrenn dep. p. 9)
She went with her husband to the examination
room and was present with him in the
examination room when the defendant, Dr. Jesse
Byrd, came in to see her husband. (Wrenn dep.
pp. 11, 13) She left the examination room only
for a few minutes to see her pastor when he
arrived at the emergency department in
response to a phone call from Mrs. Wrenn. (Wrenn
dep. p. 13)
Because Mr. Wrenn's condition was so poor, Dr.
Byrd obtained a history from Mrs. Wrenn. (Wrenn
dep. p. 14) Mrs. Wrenn told Dr. Byrd she
thought her husband possibly had food
poisoning. (Wrenn dep. p. 8) Mrs. Wrenn also
told personnel at the emergency department
that her husband had been bitten by a tick
about two weeks previously in the groin area
and that the head of the tick had stayed in a
couple of hours. Mrs. Wrenn told them about
the tick because she knew there was a
possibility her husband had Rocky Mountain
Spotted Fever. (Wrenn dep. p. 38)
Upon admission to the emergency department,
Mr. Wrenn's presenting complaints included the
sudden onset of fever, chills, nausea,
headaches, and aches in the muscles of his
lower extremities. (R pp. 53, 64) After
obtaining a history, Dr. Byrd performed a
physical examination of Mr. Wrenn in the
presence of Mrs. Wrenn. Dr. Byrd documented in
the medical record the following: Mr. Wrenn
was a 42 year old white male with sudden onset
of fever two hours previously; he had fever,
chills, and nausea, and he had vomited several
times; he had frontal headaches and aches in
the muscles of the lower extremities; he had
been bitten by a tick in the groin two weeks
prior and the head of the tick may have stayed
in a couple of hours; he was acutely ill, and
was vomiting bile-stained material; and he had
an old abdominal scar from status post-splenectomy.
(R pp. 53, 54, 64) Mr. Wrenn's vital signs
showed tachycardia and hypotension. (R p. 81)
Mr. Wrenn passed out during one of the x-rays.
(R p. 81)
Dr. Byrd's diagnosis of Mr. Wrenn's condition
was gastroenteritis-rule out food poisoning,
and Mr. Wrenn was discharged from Maria Parham
on September 4, 1989 at approximately 6:55
a.m. (R pp. 64, 65) At the time of Mr. Wrenn's
discharge from Maria Parham, "he was more
or less out of it." (Wrenn dep. p. 18)
Mrs. Wrenn could tell that her husband
"...was sick, really sick." (Wrenn
dep. p. 20) Dr. Byrd told Mrs. Wrenn what to
do and gave her instructions to give her
husband Phenergan, Tylenol, to force fluids,
and that he should rest. (Wrenn dep. p. 17)
Mrs. Wrenn took her husband home from the
Hospital at approximately 7:00 a.m. During the
day of September 4, 1989, Mrs. Wrenn stayed
home with her husband and took care of him. (Wrenn
dep. p. 63) During the evening, at around 9:00
p.m. or 9:30 p.m., Mrs. Wrenn noticed spots on
her husband's hips while she was giving him a
suppository. (Wrenn dep. p. 25) The heat bumps
on his hips had turned black. (Wrenn dep. p.
29) There were also splotched places on his
face that were turning dark. (Wrenn dep. p.
31) Mrs. Wrenn became alarmed by the
splotches. (Wrenn dep. p. 32) She then
returned her husband by automobile back to the
emergency department of Maria Parham Hospital,
where they arrived at approximately 10:02 p.m.
on September 4, 1989. (Wrenn dep. pp. 32, 33;
R p. 65) On the return trip to the Hospital,
Mr. Wrenn was laid out in the back seat again
with a pillow. (Wrenn dep. p. 33) Mrs. Wrenn
had to help him get into the car. She pulled
her car in front of the entrance where the
emergency ramp is, went inside and told the
personnel she needed a wheelchair. Hospital
personnel came out, helped put Mr. Wrenn in
the wheelchair, and took him inside. (Wrenn
dep. p. 33)
Upon arrival at the emergency department of
Maria Parham on his second visit on September
4, 1989, the medical records noted that Mr.
Wrenn had signs and symptoms of sepsis and
rule out Rocky Mountain Spotted Fever. (R p.
81) Mrs. Wrenn called her pastor and told him
that her husband was back at the hospital in
emergency. The pastor told Mrs. Wrenn he would
be over in a short while and he came over. (Wrenn
dep. p. 34) On the second visit to the
emergency department, there were "quite a
few" personnel working with Mr. Wrenn. (Wrenn
dep. p. 35) Mrs. Wrenn told the physician on
duty in the emergency department, Dr. Murphy,
that if they weren't "...sure what was
wrong with him and didn't know what to do for
him, to please send him to Duke." (Wrenn
dep. p. 36) She was concerned that the nurses
could not get a blood pressure on her husband
and she felt that if they did not know what to
do for him at Maria Parham that he should be
somewhere else and that maybe Duke would know
what to do for him. (Wrenn dep. p. 36)
During Mr. Wrenn's second admission to the
emergency department of Maria Parham on
September 4, 1989, he was resuscitated and
transported by Life Flight to Duke University
Medical Center. (R p. 65) Mr. Wrenn arrived at
Duke Medical Center at approximately 2:40 a.m.
on September 5, 1989. (R p. 65) Mrs. Wrenn was
driven to Duke by her pastor and his wife. (Wrenn
dep. p. 39) At Duke, doctors told Mrs. Wrenn
that her husband was a very sick man and that
it would be touch and go for the next
twenty-four hours. (Wrenn dep. p. 40) While he
was at Duke, Mr. Wrenn had multiple medical
problems and multiple surgical procedures,
including amputations of most of both of his
feet, amputation of a finger, skin grafts, and
treatment in the medical intensive care unit.
(R p. 82)
Plaintiff presented the affidavit of Neal
Little, M.D., who is a physician licensed to
practice medicine in the State of Michigan who
was so licensed at all times relevant to this
action. Dr. Little is also Board certified in
emergency medicine and was Board certified
during 1989. (R p. 80) In Dr. Little's
opinion, "...Dr. Byrd deviated from the
applicable standard of care by not
entertaining the diagnoses of Rocky Mountain
Spotted Fever and early sepsis caused by
bacterial illness strongly enough to treat
these conditions with intravenous antibiotics
and fluids and other, appropriate adjunctive
therapy." (R pp. 82-83) In addition, in
Dr. Little's opinion, Dr. Byrd's deviations
from the applicable standard of care were a
cause of the necessity for the amputations and
other conditions and complications suffered by
Mr. Wrenn after he was discharged from the
Maria Parham emergency department on September
4, 1989. (R p. 83) Dr. Little noted in his
affidavit that Mr. Wrenn was immunocompromised
due to his prior splenectomy. Further, Dr.
Little explained Mr. Wrenn's condition as
follows:
|
It is a well-known medical fact that patients
who have undergone splenectomy are more susceptible
to an overwhelming bacterial infection. This
condition is known in the medical literature
as overwhelming postsplenectomy infection. Mr.
Wrenn also had a history of exposure
to an infectious source, a tick bite, and he
manifested signs and symptoms of an infectious
disease process, including sudden onset of
fever, chills, headaches, pain in
the lwer
extremities, nausea, and vomiting of
bile-stained material, an elevated pulse
rate (tachycardia),
and he was hypotensive (he had an abnormally
low blood pressure). |
(R p. 82)
Mr. Wrenn was a patient at Duke undergoing the
extensive treatments referred to above from
September 5, 1989 until one day short of three
weeks, and again from October 10, 1989 until
the day before Thanksgiving. (Wrenn dep. p.
42) During the time her husband was a patient
at Duke, Mrs. Wrenn would work during the day
in Henderson and then drive to Durham to be
with her husband at Duke. She would spend the
night at Duke and then drive back to her job
in Henderson during the morning. She would cry
on these trips and tried her best to cope and
not to cry in front of her husband. Her
husband would break down crying from time to
time. (Wrenn dep. pp. 70-71) While her husband
was at Duke, Mrs. Wrenn "lived at [the]
hospital during much of [the] time he was
there. [She] slept in ICU [Intensive Care
Unit] waiting room" (Sciara dep., Exhibit
5) Mrs. Wrenn has received counseling
"...only from the good Lord, no human
down here." (R p. 54) During her
husband's recuperation from the surgical
procedures following his discharge from Duke,
Mrs. Wrenn bathed her husband, handled his bed
pan, put him in a wheelchair from time to
time, and performed other tasks necessary for
his care. (Wrenn dep. p. 66)
Mrs. Wrenn was seen by Dr. Anthony D. Sciara,
a psychologist practicing in Asheville, North
Carolina, on July 31, 1992, almost three years
after her husband's two visits to the
emergency department of Maria Parham Hospital.
(App. p. 1) Mrs. Wrenn cried during her
interview with Dr. Sciara. (App. p. 9) During
his discovery deposition, Dr. Sciara testified
that Mrs. Wrenn "...has a lot of the
symptoms of depression...It's not a severe
depression, but it's moderate." (App. p.
9) This testimony was in relation to Dr.
Sciara's opinions concerning Mrs. Wrenn's
reaction to the changes that had happened in
their life due to her husband's injuries.
(App. p. 9) Although the Wrenns are very
religious people who have relied on their
pastor and prayer for psychological and
emotional support, neither Mr. or Mrs. Wrenn
denied to Dr. Sciara that they could use
psychological counseling "...in terms of
coping during the difficult times." (App.
p. 10) The times when they could use
psychological counseling not only dealt with
past difficult times but also times when Mr.
Wrenn is having skin breakdowns or when things
were very difficult for them. (App. p. 10) Mr.
Wrenn continues to have skin breakdowns and
problems with ambulation, chronic pain, and
trying to adjust to his disability. (App. pp.
6, 7) Also, Mr. Wrenn continues to have
swelling and pain chronically in the
afternoons and everyday he must lie down on a
couch with his feet raised for several hours
at a time. (App. p. 8) Mrs. Wrenn testified
that if it had not been for the Lord, she
could not have withstood the emotional
distress that she went through as a result of
her husband's injuries (Wrenn dep. p. 55), and
that her experience has been a
"nightmare." (Wrenn dep. p. 15)
As a result of Mr. Wrenn's amputations, he
suffers from reactive depression. (App. pp. 4,
5) He can no longer do many of the things he
did before his injuries such as operate his
business of setting up and servicing mobile
homes, and enjoy hobbies such as bowling. His
ability to enjoy other activities such as
fishing and gardening is limited due to his
injuries. (App. pp. 2 -6) The many changes in
her husband's life depress Mrs. Wrenn (App.
pp. 9, 10)
ARGUMENT
| I. |
THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN GRANTING THE DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
CLAIM OF CAROLYN M. WRENN BECAUSE GENUINE
ISSUES OF MATERIAL FACT EXIST AND THE
DEFENDANT IS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW. |
ASSIGNMENT OF ERROR NO. 1
(R p. 133)
Pursuant to N.C.G.S. ' 1-277 and ' 7A-27,
plaintiff Carolyn M. Wrenn appeals as of right
from the Order of the trial court granting
summary judgment in favor of the defendant on
her negligent infliction of emotional distress
claim. The plaintiff's claim has been fully
determined and dismissed and plaintiff
therefore has the right to an immediate
appeal. N.C.G.S. ' 1-277 (1983); ' 7A-27
(1989). There are no related claims pending in
the trial court at this time. (R pp. 70, 72,
129)
Summary judgment is appropriate only if the
pleadings, depositions, interrogatories, and
admissions on file, together with any
affidavits, show that there is no genuine
issue as to any material fact and that the
movant is entitled to judgment as a matter of
law. N.C.R.Civ.P. 56 (1990). The party moving
for summary judgment has the burden of clearly
establishing the lack of any triable issue of
material fact. Caldwell v. Deese, 288 N.C.
375, 218 S.E.2d 379 (1975). Further, it must
also be established that the movant is
entitled to judgment as a matter of law.
Johnson v. Phoenix Mutual Life Insurance Co.,
300 N.C. 247, 266 S.E.2d 610 (1980). The
movant is held to a strict standard and all
inferences of fact must be drawn against the
movant and in favor of the party opposing the
motion. Caldwell v. Deese, supra.
There are genuine issues of material facts in
this case which should be determined by a
jury. Therefore, this Court should reverse the
trial court's ruling granting defendant's
motion for summary judgment, and allow Mrs.
Wrenn to have her claim determined at trial.
In a claim for negligent infliction of
emotional distress, the plaintiff must allege
and prove that (1) the defendant negligently
engaged in conduct, (2) it was reasonably
foreseeable that such conduct would cause the
plaintiff severe emotional distress, and (3)
the conduct did in fact cause plaintiff severe
emotional distress. Johnson v. Ruark
Obstetrics, 327 N.C. 283, 395 S.E.2d 85
(1990).
As to the first requirement, plaintiff
presented expert testimony that Mrs. Wrenn's
husband, George T. Wrenn, suffered amputations
of most of both of his feet and other injuries
because of the negligence of the defendant Dr.
Byrd. (R p. 80) As to the second requirement,
plaintiff's forecast of evidence showed that
it was reasonably foreseeable that Dr. Byrd's
conduct would cause Mrs. Wrenn severe
emotional distress. Some of the factors to be
considered in determining the reasonable
foreseeability of a person suffering severe
emotional distress as a result of concern for
another include, but are not limited to, (1)
the plaintiff's proximity to the negligent act
causing injury to the other person, (2) the
relationship between the plaintiff and the
other person, and (3) whether the plaintiff
personally observed the negligent act. Id.,
395 S.E.2d at 98.
As noted above, Mrs. Wrenn's husband was
injured as a direct and proximate result of
the negligence of the defendant Dr. Byrd. (R.
p. 80) At the time the negligence occurred,
the Wrenns were happily married and had been
married for approximately twenty-four years. (Wrenn
dep. pp. 3, 57) Mrs. Wrenn was with her
husband in the examination room when Dr. Byrd
engaged in negligent conduct in his treatment
of Mr. Wrenn. (Wrenn dep. pp. 11, 13) Dr. Byrd
personally gave Mrs. Wrenn discharge
instructions when he sent Mr. Wrenn home from
the emergency department with the wrong
diagnosis. (Wrenn dep. p. 65) Mrs. Wrenn
personally observed Dr. Byrd's negligent
treatment of her husband and the catastrophic
injuries her husband suffered because of the
negligence.
As to the third requirement, the evidence was
overwhelming that Dr. Byrd's negligent conduct
caused Mrs. Wrenn severe emotional distress.
During her husband's first admission to the
emergency department, Mrs. Wrenn feared he may
be suffering from the life-threatening illness
of Rocky Mountain Spotted Fever. (Wrenn dep.
p. 38) She knew something was "deathly
wrong" (Wrenn dep. p. 8), her husband was
"out of it" (Wrenn dep. p. 18) and
she could tell he "was sick, really
sick." (Wrenn dep. p. 20) She called her
pastor from the hospital sometime after 3:00
a.m. for support. (Wrenn dep. pp. 29-32) Later
that day, approximately fourteen to fourteen
and one-half hours following Mr. Wrenn's
discharge from the emergency department, Mrs.
Wrenn became alarmed by the appearance of
black spots on her husband. She took him back
to the hospital where her husband was
diagnosed with sepsis, rule out Rocky Mountain
Spotted Fever. (R p. 81) She asked that her
husband be sent to Duke and he was flown there
in the early morning hours in critical
condition. (R p. 82) Mrs. Wrenn's pastor and
his wife drove Mrs. Wrenn to Duke. (Wrenn dep.
p. 39) Her husband was in a life-threatening
condition in Duke's medical intensive care
unit fighting for his life. (Wrenn dep. p. 40)
Mrs. Wrenn literally lived at Duke Hospital
during much of this time, sleeping in the
waiting room of the intensive care unit and
driving to Henderson to work every morning
while crying because she did not want to break
down in front of her husband. (Wrenn dep. pp.
70-71; Sciara dep., Exhibit 5) She was with
her husband when he underwent amputations of
most of both of his feet and one of his
fingers and she watched and experienced with
him his extreme physical and emotional
suffering.
After Mr. Wrenn's discharge from Duke on the
day before Thanksgiving, 1989, Mrs. Wrenn took
care of her husband, which included bathing
him, handling his bed pan, and helping him in
and out of his wheelchair. (Wrenn dep. p. 66)
She described her ordeal as a
"nightmare," (Wrenn dep. p. 15) and
testified that she could not have withstood
the emotional distress without the help of the
Lord. (Wrenn dep. p. 55)
In addition to the severe emotional distress
Mrs. Wrenn suffered during the time of the
events at Maria Parham and Duke, and during
her husband's recovery at home from the acute
phase of his condition, Mrs. Wrenn still
suffers from depression. She was seen on July
31, 1992 by Anthony D. Sciara, Ph.D., a
psychologist. (App. p. 1) Dr. Sciara testified
at his deposition that Mrs. Wrenn cried during
his interview with her. (App. p. 9) Dr. Sciara
stated that although Mrs. Wrenn was not
severely depressed at the time of the
interview, which was almost three years after
the date of Dr. Byrd's negligence and her
husband's injuries, she nevertheless was
suffering from moderate depression. (App. p.
9) Accordingly, Mrs. Wrenn suffers from
chronic depression, which is an example of
"severe emotional distress"
identified in Johnson v. Ruark Obstetrics,
supra, 395 S.E.2d at 97:
|
In this context, the term "severe
emotional distress"
means any emotional
or mental disorder, such as, for example,
neurosis,sychosis, chronic
depression,
phobia, or any other type of severe and
disabling emotional or mental condition which
may be generally recognized and diagnosed by
professionals trained to do so. (emphasis
added) |
"Chronic" means
"marked by long duration or frequent
recurrences." Webster's Ninth New
Collegiate Dictionary, Merriam-Webster, Inc.,
1991. Depression that has continued almost
three years beyond the occurrence of the
negligent conduct and injuries and which is
more difficult for Mrs. Wrenn to cope with
during the continuing skin breakdowns and
other difficulties her husband suffers from,
is chronic depression. That is to say, Mrs.
Wrenn's depression is ongoing and recurrent.
Dr. Sciara was of the opinion that Mrs. Wrenn
and her husband were in need of psychological
counseling and support during difficult times,
which include the continuing times when Mr.
Wrenn suffers skin breakdowns at the
amputation sites, his chronic pain, his
difficulty with ambulation, and his difficulty
adjusting to his disability. (App. pp. 6, 7,
10)
At the hearing on defendant's motion for
summary judgment, the trial court was
satisfied that Mrs. Wrenn had produced a
sufficient forecast of evidence to meet the
requirements of showing Dr. Byrd's negligent
conduct and that it was reasonably foreseeable
that Dr. Byrd's negligent conduct would cause
the plaintiff severe emotional distress. (App.
pp. 17, 19, & 22) However, the trial court
ruled that Mrs. Wrenn failed to forecast
evidence that she had suffered severe
emotional distress and the Court allowed
defendant's motion for summary judgment on
that basis. (App. p. 26) In so ruling, the
trial court committed reversible error in
these respects: (1) by overlooking Mrs.
Wrenn's evidence that she suffered severe
emotional distress during the time her
husband's critical condition and his injuries
were manifested and during the acute phase of
his illness and injuries, including his
amputations; (2) by requiring Mrs. Wrenn to
produce expert testimony that she was
suffering from severe depression at the time
of her interview with a psychologist, which
occurred almost three years after Dr. Byrd's
negligence and the manifestation of her
husband's injuries, as opposed to chronic
depression (App. pp. 11-26); and (3) by
failing to follow the law of Ruark that
chronic depression is a form of severe
emotional distress. Ruark, supra, 395 S.E.2d
at 97.
As a result of the foregoing errors, the trial
court ruled as a matter of law that Mrs. Wrenn
had not forecast sufficient evidence of severe
emotional distress, even though the evidence,
including Mrs. Wrenn's testimony and the
testimony of a qualified psychologist, as well
as all of the reasonable inferences to be
drawn from that testimony, and when taken in
the light most favorable to the plaintiff,
demonstrated that Mrs. Wrenn had indeed
suffered severe emotional distress. It is
certainly reasonable to conclude that she
suffered and continues to suffer severe
emotional distress upon consideration of the
evidence and the circumstances of her
husband's treatment and catastrophic injuries.
Ruark, supra, is the controlling authority for
this case. Our Supreme Court ruled in Ruark
that in a medical malpractice action, a
citizen can have a viable claim for negligent
infliction of emotional distress due to the
observation of injury caused to a loved one
following negligent acts of a defendant health
care provider. In Ruark, the plaintiffs were
expectant parents who alleged that a doctor
was negligent in his prenatal care of the
mother and child, and as a result, the baby
had to be delivered after it had died. The
negligence occurred prior to the injury and it
was not the observation of the negligent acts
that caused severe emotional distress to the
plaintiffs, but it was the experience of the
labor and delivery of their stillborn child
that caused the plaintiffs severe emotional
distress. Ruark, supra, 395 S.E.2d at 87.
In the instant case, as in Ruark, the
negligence occurred prior to the injury, both
of which were personally observed by the
plaintiff, Carolyn M. Wrenn. Mrs. Wrenn
suffered with her husband through the
amputations of most of both of his feet and
one of his fingers. She was with him and
watched his suffering. In summary, Mrs. Wrenn
was present when the negligence occurred, she
personally observed the negligence, she was
married to Mr. Wrenn at the time of the acts,
and she was present and observed his extreme,
disfiguring injuries and the painful,
extensive treatments required to save her
husband's life.
In addition to the above factors which satisfy
the foreseeability requirement articulated in
, plaintiff's evidence also showed that
Dr. Byrd knew Mrs. Wrenn was subject to severe
emotional distress as a result of his
negligence and its consequences. See Gardner
v. Gardner, 334 N.C. 662, 435 S.E.2d 324
(1993). Although our Supreme Court has not
imposed this latter factor as a requirement
for the tort of negligent infliction of
emotional distress in a medical malpractice
case where the plaintiff is present at the
time of the negligence and injury, Ruark,
supra, the circumstances of this case show
that Dr. Byrd knew Mrs. Wrenn would suffer
severe emotional distress if her husband were
injured as a consequence of negligence. It is
reasonable that Dr. Byrd could foresee that if
he allowed George Wrenn to leave the hospital
with the possibility he was suffering from an
untreated, life-threatening condition, that
Mr. Wrenn could suffer catastrophic injury or
death in the presence of his wife causing her
severe emotional distress. Dr. Byrd knew Mrs.
Wrenn was Mr. Wrenn's wife. He obtained Mr.
Wrenn's history from her (Wrenn dep. pp. 8,
14, 16) and gave Mrs. Wrenn discharge
instructions. (Wrenn dep. p. 65) Also, Dr.
Byrd knew she was very worried and emotionally
distressed because of her husband's condition.
She stayed beside her husband in the
examination room the entire time, except to go
meet her pastor when he arrived at the
emergency room in response to her call. (Wrenn
dep. pp. 29-32) Dr. Byrd knew that Mrs. Wrenn
was watching her husband suffer and that she
was distressed over his condition. Dr. Byrd
knew Mrs. Wrenn was concerned that her husband
could be suffering from Rocky Mountain Spotted
Fever, an often fatal condition. (Wrenn dep.
p. 38) Because of the nature of the
relationship between doctors and their
patients, doctors are witness daily to the
severe emotional distress caused by the sudden
loss of a loved one or the catastrophic injury
of a loved one and are all too aware of the
consequences of their negligent conduct.
Mrs. Wrenn's severe emotional distress was
foreseeable to Dr. Byrd because she was
present at all times, she manifested her
concern and susceptibility to emotional
distress in Dr. Byrd's presence, and it was
apparent to Dr. Byrd that the severe nature of
Mr. Wrenn's condition, especially if it were
not treated properly, was likely to cause Mrs.
Wrenn severe emotional distress as opposed to
"mere fright or temporary anxiety." Ruark, 395 S.E.2d at 97. Indeed, the evidence
showed, as common sense would suggest under
these catastrophic circumstances, that Mrs.
Wrenn suffered severe emotional distress and
continues to suffer chronic depression as a
proximate and foreseeable result of
defendant's negligence.
Not only is this case in accord with Ruark,
but it is consistent with Andersen v.
Baccus,
335 N.C. 526, 439 S.E.2d 136 (1994), Sorrells
v. M.Y.B. Hospitality, 334 N.C. 669, 435
S.E.2d 320 (1993), Gardner v. Gardner, 334
N.C. 662, 435 S.E.2d 324 (1993), and Butz v.
Holder, 113 N.C. App. 156, 437 S.E.2d 672
(1993), because of Mrs. Wrenn's presence in
the examination room with her husband and Dr.
Byrd, and at the time Dr. Byrd discharged Mr.
Wrenn, the concern she demonstrated to Dr.
Byrd that her husband may have a
life-threatening illness, the call to her
pastor to come to the emergency department,
the evidence of severe emotional distress she
suffered during her husband's critical illness
and injuries, and expert testimony of her
chronic depression and difficulty coping with
her husband's continuing skin breakdowns at
his amputation sites and other continuing
medical problems almost three years after the
events giving rise to her husband's injuries.
In addition, plaintiff specifically pleaded
the elements of the tort and also pleaded that
"...defendants knew...that the plaintiff
Carolyn M. Wrenn was susceptible to suffering
severe mental and emotional distress..."
(R p. 59)
Plaintiff's forecast of evidence created
genuine issues of material facts and the trial
court committed reversible error in allowing
defendants the drastic remedy of summary
judgment. Mrs. Wrenn's claim should be
determined by a jury.
CONCLUSION
Based on the foregoing reasoning and
authorities, plaintiff-appellant respectfully
requests this Court to reverse the Order of
the trial court granting partial summary
judgment to the defendant on the plaintiff
Carolyn M. Wrenn's claim for negligent
infliction of emotional distress, and to
remand this action to the Superior Court of
Durham County for trial.
Respectfully submitted this ____ day of
_________, 1995.
BENTLEY & KILZER, P.A.
_________________________________________
Charles A. Bentley, Jr.
_________________________________________
Susan B. Kilzer
Attorneys for Plaintiff-Appellant
Post Office Box 52089
Durham, North Carolina 27717-2089
(919) 489-1330
CERTIFICATE OF SERVICE
I do hereby certify that on this ___ day of
_______________, 1995, I served a copy of
PLAINTIFF-APPELLANT'S BRIEF on counsel for the
defendant by depositing a copy of same in the
United States Post Office, with first class
postage prepaid and properly addressed as
follows:
Samuel G. Thompson
John D. Madden
James Y. Kerr
Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan
Attorneys for Jesse Randall Byrd, M.D.
Post Office Box 2611
Raleigh, North Carolina 27602-2611
___________________________________
Charles A. Bentley, Jr./ Susan B. Kilzer
APPENDIX
Contents
Page
DEPOSITION OF ANTHONY D. SCIARA, PH.D..............
1-10
TRANSCRIPT OF
PROCEEDINGS............................ 11-26
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