Merce v. Greenwood

EMTALA

Merce v. Greenwood, No. 2:04-CV-00610 PGC (D. Utah Dec. 17, 2004)

A
patient suffered injuries soon after being treated and discharged from a hospital’s
emergency room. Over two years later, he brought a lawsuit against two of
the treating physicians for violations of EMTALA’s anti-dumping provisions.
The United States District Court for the District of Utah granted the physicians’
motions to dismiss, finding that EMTALA’s two-year statute of limitations
period is not altered by provisions of state law such as pre-litigation screening
requirements. Also, the court noted that the statute begins to run on the
date of the violation, not when the violation is discovered. The court also
observed that, "oddly,
neither [physician] has raised a straightforward challenge to plaintiffs’ EMTALA
claim against him: namely, that under the plain language of the Act, only hospitals
can be sued for violations."

 

Mercatus Group, LLC v. Lake Forest Hosp. (Summary)

ANTITRUST

Mercatus Group, LLC v. Lake Forest Hosp., No. 10-1665 (7th Cir. May 26, 2011)

The United States Court of Appeals for the Seventh Circuit upheld summary judgment in favor of a hospital that was sued for allegedly violating federal antitrust laws. The suit was brought by a corporation that planned to construct a physician center that would compete with the hospital. The physician center alleged that the hospital mounted a public relations campaign laced with misrepresentations and designed to convince the community board to deny the request to develop the project. It also claimed that the hospital improperly offered incentives to two hospital-affiliated physician groups to keep them from relocating their practices to the physician center.

The court concluded that the hospital’s efforts to lobby the community board, acting in a legislative capacity, and its campaign to sway the public were immunized from antitrust liability under free speech principles dealing with the hospital’s right to petition the government for redress. Similarly, the hospital’s “derogatory” comments about the physician center to other businesses in the community and warnings to the physician center’s hospital partner to “stay out of its territory,” when not backed by any coercive conduct, were not actionable under the federal antitrust laws.

Lastly, the court found that the hospital’s conduct in attempting to retain physicians that the physician center was trying to lure away did not constitute actual or attempted monopolization under federal antitrust laws. According to the court, absent predatory conduct by the hospital, there could be no antitrust liability in the hospital trying to retain the business of its physicians and “the Hospital had no duty to step aside and allow [the physician center] to make off with its physicians, patients, and revenue.”

 

Memphis Health Ctr., Inc. v. Grant

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
November 2005 Session

MEMPHIS HEALTH CENTER, INC., by Sadie Davis and Cornelia Berry,
Directors, and Morristein J. Holman, Chief Executive Officer and Director
v.
GREGORY GRANT, DEAN JOHNSON, CYNTHIA COMBS, CLAUDETTE
BRANCH, ERNEST HUGHES, LEAOLA CRUTCHFIELD, BETTY
MILLER, FREDERICK SANDERS, EDDIE DANDRIDGE, DYRIE GOODS,
and BROWN McGHEE, individually and in their capacity as the Board of
Governors of Memphis Health Center, Inc.

An Appeal from the Chancery Court for Shelby County
No. CH-04-1188-2 D. J. Alissandratos, Chancellor

No. W2004-02898-COA-R3-CV – Filed July 28, 2006

This is a derivative action. The board chairman of a nonprofit health care center was found guilty
of submitting false claims in violation of federal law. Thereafter, the health care center’s chief
executive officer and two of its board members filed a derivative action on behalf of the health care
center against the chairman and health care center’s remaining board members for violating their
fiduciary duties to the corporation. The derivative suit sought, inter alia, injunctive relief to require
the board to take action against the board chairman, and to enjoin the board from allegedly violating
the CEO’s employment agreement by terminating her. The trial court issued a temporary restraining
order, enjoining the board from violating the health care center’s bylaws, from violating federal
regulations, and from terminating the employment of the CEO. Subsequently, the trial court found
the defendant board members guilty of contempt for violating that order and entered a permanent
injunction against the defendants. The permanent injunction awarded in the contempt action
removed the defendants from the board and permanently barred them from the premises. The
defendants appealed. We affirm, finding that the trial court’s action was warranted in the face of the
board’s failure to take action regarding the board chairman after the federal judgment for filing false
claims was entered against him.

Tenn. R. App. P. 3; Judgment of the Chancery Court is Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAV ID
R. FARMER , J., joined.

Kathleen L. Caldwell, Memphis, Tennessee, for Defendants/Appellants, Gregory Grant, Dean
Johnson, Cynthia Combs, Claudette Branch, Ernest Hughes, Leaola Crutchfield, Betty Miller,
Frederick Sanders, Eddie Dandridge, Dyrie Goods, and Brown McGhee, individually and in their
capacity as the Board of Governors of Memphis Health Center, Inc.

Robin H. Rasmussen, Memphis, Tennessee, for Plaintiff/Appellee, Memphis Health Center, Inc.,
by Sadie Davis and Cornelia Berry, Directors, and Morristein J. Holman, Chief Executive Officer
and Director.

OPINION

This appeal arises out of a derivative action initiated in the Chancery Court for Shelby
County on behalf of Memphis Health Center, Incorporated (“Memphis Health Center”), a Tennessee
non-profit corporation, by Plaintiff/Appellee Morristein J. Holman (“Holman”), the chief executive
officer of Memphis Health Center, against the Board of Governors of Memphis Health Center
(collectively, “Board” or “Defendants”).

On June 18, 2004, Holman, individually and as Chief Executive Officer of Memphis Health
Center, filed a verified complaint in the Chancery Court for Shelby County on behalf of Memphis
1
Health Center against the Defendant/Appellant Board members, individually and in their capacity
as the Board of Governors of Memphis Health Center. The complaint sought injunctive relief, both
temporary and permanent, prohibiting the Board from violating the Bylaws of Memphis Health
Center, violating the rules and regulations of the United States Department of Health and Human
Services (“HHS”), violating Holman’s employment contract with Memphis Health Center,
interfering with the day-to-day operations of Memphis Health Center, coming upon the premises of
Memphis Health Center without furnishing prior notice to Holman, and taking any action to amend
the Bylaws until the court made a final decision in the case. Additionally, Holman requested
reimbursement for her attorney’s fees and expenses incurred in prosecuting the derivative claim
against the Board.

The complaint stated that Holman was the Chief Executive Officer of Memphis Health
Center and named the following Board members as Defendants: Gregory Grant, the Chairman of
the Board (“Chairman Grant”); Dr. Dean Johnson, Vice Chairman; Cynthia Combs, Secretary;
Claudette Branch, Treasurer; Cornelia Berry; Sadie Davis; Reverend Ernest Hughes; Leaola
Crutchfield; Betty Miller; Dr. Frederick Sanders; Eddie Dandridge; Dyrie Goods; and, Dr. Brown
McGhee. Additionally, the complaint alleged that the Board failed to comply with the Bylaws of
Memphis Health Center and interfered with Holman’s performance of her responsibilities as Chief
Executive Officer pursuant to her employment agreement. Holman asserted as well that the Board
failed to comply with the HHS regulations regarding the operation of non-profit facilities.

1
V e r ific a t io n o f th e c om p la in t b y a p la in t iff is re q u ire d in a d e r iv a tiv e su i t , p u r su a n t to T e nn e sse e C o d e
A nno ta ted § 4 8 -5 6 -4 0 1 ( c ) (20 0 2 ) .

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In support of the assertion that the Board failed to comply with the Bylaws of the corporation,
a copy of the Memphis Health Center Bylaws was attached to the complaint. The alleged violations
of the Bylaws included the following: (1) that two Board members did not meet the qualification
requirements for Board service; (2) that the Board did not maintain a vita on each Board member as
required in the Bylaws; (3) that the Board did not comply with the Bylaw requirements for
termination of board members who fail to attend meetings, specifically, Defendants Cynthia Combs
and Claudette Branch; and (4) violation of the Bylaws by Defendant Board Secretary Cynthia Combs
by not attending all meetings, recording all votes, keeping minutes of all proceedings, distributing
minutes to Board members, and giving notice of all board meetings. The complaint also alleged that
the Board acted outside its scope of responsibility of establishing corporate policy, as set out in the
Bylaws, by interfering with Holman’s responsibilities as the Chief Executive Officer in the day-to-
day operation of Memphis Health Center. Holman averred that Chairman Grant frequently interfered
“with the daily operation and staff of [Memphis Health Center]” and took “unilateral action to
obligate the corporation without [Holman’s] knowledge.” The complaint further alleged that the
Board failed to hold meetings specifically provided for in the Bylaws, instead rescheduling those
meetings for later dates and failing to give notice of the specially scheduled meetings.

The complaint also alleged that Chairman Grant told others that he intended to terminate
Holman’s employment. Holman maintained that Grant’s statements compromised and undermined
her ability to discharge her responsibilities as Chief Executive Officer.

Finally, the complaint set forth allegations that the Board had violated federal rules and
regulations. In support of this contention, Holman attached a December 4, 2001 letter from HHS,
detailing various conditions to be remedied in order to continue receiving federal grant funding.
Holman acknowledged that the issues set forth in the letter had been addressed, except for one issue.
The letter expressed concern about the Board’s interference in the day-to-day operations of Memphis
Health Center:

There is a serious breakdown of organizational discipline due to the Board’s
involvement in the day-to-day operation of the health center. The CEO’s inability
to exert control in this environment raises concern about the ability of the health
center to serve its patients and to safeguard federal funds.

The complaint alleged that, despite this warning from HHS, Chairman Grant continued to interfere
with the day-to-day operations of Memphis Health Center.

The complaint sought temporary and permanent injunctive relief, to enjoin Grant and the
Board from (1) violating the Bylaws, (2) violating the HHS rules and regulations, (3) violating
Holman’s employment agreement or taking any action to terminate her employment, or (4) amending
the Bylaws. It also sought an injunction prohibiting Grant from contacting Memphis Health Center
staff members, being involved in its day-to-day operations, or coming onto the premises of Memphis
Health Center without giving Holman 24 hours notice. On June 21, 2004, Chancellor Arnold Goldin
issued the temporary restraining order as requested, granting Holman all of the relief sought except

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for the request to enjoin Grant from contacting staff members, being involved in the day-to-day
operations or coming onto the premises without prior notice to Holman.

On June 25, 2004, Chancellor Goldin entered an order, indicating that counsel for the
Defendants had sought clarification of the temporary restraining order, and directing the Board to
conduct a meeting to determine whether Holman should be suspended, with pay, during the
prosecution of the instant derivative suit. The Chancellor appointed a special master to monitor the
Board meeting and ensure that the meeting was conducted in accord with both court-imposed
directions for the meeting and the Memphis Health Center Bylaws.

On June 28, 2004, the Special Master filed a report recommending certification of the vote
in the court-ordered Board meeting. In the report, the Special Master detailed the Board’s
approximately ten-minute meeting and the Board’s nine-to-four vote on a resolution to suspend
Holman from her duties as Chief Executive Officer of Memphis Health Center with pay. The
2
resolution claimed that Holman had “covered up” sexual harassment complaints and had not
informed the Board of the matter, resulting in the filing of a sexual harassment lawsuit against
Memphis Health Center. It stated that the suspension with pay was “not to be construed . . . as
termination” of Holman’s employment.

The next day, June 29, 2004, Holman filed notices of voluntary dismissal of the claims
against Defendants Sadie Davis and Cornelia Berry, both individually and in their capacity as
members of the Board.

On the same day, June 29, 2004, prior to the filing of any responsive pleadings and only
eleven days after filing her original complaint, Holman filed an amended complaint. The amended
complaint reiterated the allegations of the original complaint, but also added two plaintiffs, Memphis
Health Center Board members Sadie Davis and Cornelia Berry (collectively with Holman,
“Plaintiffs”). The amended complaint also claimed that Holman, as Chief Executive Officer of
Memphis Health Center, was an ex officio member of the Memphis Health Center Board. The

2
A l th o u gh ta n ge n tia l to h e r so le c o u r t-d e f in e d d u ty a s S p e c ia l M a s te r , th e S p e c ia l M a s te r ’s re p o r t sp e c ifie d
o th e r m a t te rs re la tin g to th e d a i ly o p e r a tio n s o f M em p h is H e a l th C e n te r o f w h ic h th e S p e c ia l M a s te r th o u gh t th e tr ia l
co u r t sho u ld b e aw a r e . T h e r epo r t e xp la in ed th a t th e B o a rd shou ld a p p o in t a n ind iv id u a l to a s sum e th e ro l e o f th e a c ting
C h ie f E x e cu t ive O f fic e r :

Em p lo yee s com p la in tha t the y d o no t kn ow w ho ha s the au tho r i ty to g ive o rd e r s o r m ak e d ec is io n s .
A c co rd ing to th e unn am ed em p lo y e e s , th e r e a r e two (2 ) bo a rd m em b e r s who s im p ly to o k on th e
re sp o n s ib i l i ty o f g iv i n g o rd e r s . T h e re ha s b e e n n o th in g in w r i t in g to in fo rm th e s ta ff o f th e p r o p e r
c ha nn e ls fo r p ro b lem s . I t ap p e a r s th a t th e imm e d ia te a ss is ta n t to [H o lm a n ] h a s a lso b e en re lie ve d o f
h e r du t ie s by th e s e two bo a rd m em b e r s , n am e ly [Ch a irm a n G r an t] and B e t ty M i l le r .

T h e re p o r t a lso sa id th a t som e em p lo ye es ha d to ld th e S p e c ia l M a ste r th a t B o a rd m em b e r s h a d rem o ve d b o x e s o f re co rd s
a n d d o c um e n ts f rom M em p h is H e a lth C e n te r a n d h a d a t tem p te d to a c ce ss p a yro l l r e c o rd s th a t th e y w e re no t a u th o r iz e d
to ob ta in . T h e Sp e c ia l M a s te r ’s r epo r t ind ic a ted th a t th is w a s s ign ific an t b e c au s e H o lm an w a s en jo in ed f rom th e
p rem ise s a nd “h a s h ad no w ay to o b ta in r e co rd s w h ich w i l l a ss is t h e r in p ro se cu t ing he r c a se .”

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amended complaint specified that it was a derivative action, filed pursuant to Tennessee Code
Annotated section 48-56-401, et seq., sought the same injunctive relief and explained why the
Plaintiffs had not made any demand to the Board for redress of the claimed violations:

Plaintiffs would further show that any demand upon the Defendants to correct the
willful, wanton and grossly negligent conduct in which they have engaged would be
futile in that the Defendants have a direct interest in continuing to breach their
fiduciary duty and violate the Bylaws and federal rules and regulations and, therefore,
are not independent and that the conduct of the Defendants is not protected by the
business judgment rule. In support of this allegation, Plaintiffs would show that in
spite of the issuance of a temporary restraining order by this Honorable Court, the
Defendants have violated the spirit of the restraining order by suspending [Holman]
from her position as Chief Executive Officer. Further Defendants have continued to
engage in the day-to-day operation of [Memphis Health Center] rather than confining
their role to that of setting policy and procedure and have engaged in the specific acts
as alleged in [this complaint].

The amended complaint was verified by both Holman and Sadie Davis.

In July 2004, at the Plaintiffs’ request, Chancellor D. J. Alissandratos extended the temporary
restraining order until trial, which was then set for August 18, 2004. As a result, the Defendants
remained temporarily enjoined from violating the Memphis Health Center Bylaws, violating the
HHS rules and regulations, taking any action to terminate Holman, or taking any action to amend
the MHC bylaws.

On August 3, 2004, the Defendants filed answers to the original and amended complaints.
Each answer asserted the same affirmative defenses and asserted that the Plaintiffs were not entitled
to any relief sought. Primarily, the Defendants argued that Plaintiffs did not meet the requirements
for a derivative action, in part, because Holman, as an ex officio non-voting member of the Board
of Directors, did not qualify as a “director” within the meaning of the applicable statutes. The
Defendants also asserted affirmatively that the Board had acted appropriately, exercising good
business judgment.

On August 13, 2004, the Plaintiffs filed a petition for civil contempt against the Defendants,
arguing, inter alia, that the Defendants had not complied with the injunctive orders issued by the trial
court. The Plaintiffs asserted that, after issuance of the TRO, the Defendants continued to violate
several provisions of the Bylaws, particularly by failing to remove Chairman Grant from the Board
for conduct unbecoming a Board member—a ground for removal in the Bylaws. In support of this
allegation, the Plaintiffs asserted that, on June 17, 2004, the United States District Court for the
Western District of Tennessee found that Chairman Grant violated the federal False Claims Act, 31
U.S.C. § 3729-33, by submitting 3,306 false claims. Consequently, a judgment was entered against
Grant for $5,929,719.21. The petition for civil contempt alleged additional violations of the Bylaws,
including: the improper administration of Board elections; inadequate record keeping; Chairman

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Grant’s unauthorized signing of medical service provider contracts without Board approval; the
Secretary’s failure to provide the requisite notice to Board members of impending Board meetings;
insufficient public notice of Board meetings for public attendance in violation of the Tennessee Open
Meetings Act; unauthorized Board members redeeming certificates of deposit and converting funds
to other accounts; unauthorized Board action against Holman by suspending her without Bylaw
authorization to suspend the Chief Executive Officer; improper Board involvement in the day-to-day
operation of MHC; and unauthorized payment of attorney fees.

A month later, on September 13, 2004, the Defendants filed a motion for summary judgment.
The motion simply stated that summary judgment was appropriate because there were no issues of
material fact and “Defendants are entitled to judgment as to a matter of law, as to all issues in this
action.” Any accompanying memorandum of law in support of this motion was not made part of the
record on appeal.

On September 30, 2004, the trial court held a hearing on the Plaintiffs’ petition for civil
contempt. At the outset of the hearing, the Defendants made an ore tenus motion to dismiss, arguing
primarily that the Plaintiffs lacked standing to bring a derivative action. In the oral motion, the
3
Defendants contended that Holman lacked standing to bring a derivative action under Tennessee
Code Annotated section 48-56-401 because she was only an ex officio member of the Memphis
Health Center Board, and not a director or member within the meaning of the statute. The
Defendants also argued that Holman did not comply with Tennessee Code Annotated section 48-56-
401(c) in that she neither made a demand on the Board nor alleged that her failure to make a demand
was excused on the basis of futility. The Defendants maintained that Plaintiffs Sadie Davis and
Cornelia Berry, although members of the Board, lacked standing because they failed to meet the
pleading requirements of Rule 23.06 of the Tennessee Rules of Civil Procedure, requiring that the
complaint set forth with particularity the reasons for not making a demand on the Board. Finally,
the Defendants asserted that the only two plaintiffs with standing to bring a derivative action, Davis
and Berry, failed to verify the complaint.4

In response, the Plaintiffs argued that the Board was interested and controlled by the
Chairman, and therefore any demand on the Board for remedial action would be futile, citing the
assertion to that effect in the amended complaint. Additionally, Plaintiffs maintained that Holman
was a member of the Board, citing Article VI, section 7, of the Bylaws, stating that the Chief
Executive Officer shall serve as an ex officio non-voting member of the Board.

3
C o un s e l fo r th e D e fend an ts o r ig in a l ly f ram ed th e o r a l m o t io n in te rm s o f ju r isd ic t io n , bu t no is su e s reg a rd ing
ju r isd ic tio n w e re a rgu e d .

4
E v e n th o u gh P la in tiff S a d ie D a v is v e r ifie d th e am e n d e d c om p la in t, c o u n se l fo r th e D e fe n d a n ts c la im e d th a t
D a v i s t e s t i f i e d in a d is cov e ry d ep o s it io n th a t , co n tr a ry to th e v e r ific a t io n sh e s ign ed , sh e w a s un ab l e to sw e a r to th e
a l leg a t io n s in th e o r ig in a l c om p la in t in co rp o r a ted b y r e fe r en c e in to th e am end ed com p la in t . A p p a r en tly , th e tr ia l co u r t
d id no t c r ed i t th is a rg um en t . D av is ’ d ep o s i t io n is n o t in the re co rd , so th is C o u r t h a s no m e an s b y wh ich to re v iew th is
a rg um en t .

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After hearing the arguments, the trial court concluded that Holman was a member of the
Board for the purposes of Tennessee’s derivative action statute. The court also found that Plaintiffs
Davis and Berry were members of the Board, and that paragraph 9 of the amended complaint stated
sufficient justification for excusing the demand. Consequently, the trial court denied the Defendants’
motion to dismiss.

After determining that the Plaintiffs had standing and that the demand requirement had been
met, the trial court examined the contempt issues raised by the Plaintiffs—the first being whether
the Board violated the Bylaws by not taking action to remove, or at least investigate, Chairman Grant
for conduct unbecoming a Board member. In support of this claim, the Plaintiffs submitted to the
5
court a copy of the United States District Court’s judgment against Chairman Grant, finding him
guilty of 3,306 counts of fraud under the federal False Claim Act. The Plaintiffs maintained that this
was sufficient proof to obligate the Board, in its fiduciary capacity, to investigate the truth of the
claims against Grant and consider terminating him for conduct unbecoming a Board member.

Counsel for the Defendants stipulated that there were no issues of material fact on this issue
and did not dispute the authenticity of the federal judgment against Grant. The Defendants admitted
that the federal judgment against Grant was public knowledge and that the Board had made no
inquiries into it. In defense of the Board, counsel for the Defendants argued only that the federal
judgment against Grant was not final because it was being appealed, and, consequently, it was
reasonable for the Board to refrain from taking any action to investigate the claims until the federal
appeal was resolved. The Defendants also noted that the Board had “been extraordinarily busy
handling what they have been handling,” and argued that only three months of inaction was
insufficient to hold the Board in contempt. Addressing the judgment against Grant, counsel for the
Defendants asked rhetorically, “Is it conduct unbecoming? I am not going to argue that it is not
unbecoming. It is not something that any organization would like. It is not something Mr. Grant
would like.”

Next, the trial court heard argument on the issue of whether the Board’s suspension of
Holman with pay violated the injunctive order directing the Board to refrain from taking any action
to terminate Holman’s employment. The parties agreed that, on this issue, there were no material
facts in dispute. The Plaintiffs argued that the Board’s suspension of Holman “violated the spirit of
the Court’s injunction,” effectively terminating Holman’s employment by suspending her and barring
her from the premises. The Plaintiffs argued that the Bylaws did not authorize such action. In
response, the Defendants noted that Holman was suspended with pay, not terminated, and argued
that this was done in order to put Holman in a position where she could do no harm to Memphis
Health Center while the derivative suit was pending.

5
A r t ic le I I I , se c t io n 5 , sub s ec tio n c , o f th e M H C B y law s p ro v id e s , “A n y B o a rd m em b e r who d o e s no t
d isc h a rg e h is /h e r d u tie s , o r is c o n v ic te d o f a fe lo n y o r e x h ib i ts c o n d u c t u nb e c om in g a B o a r d m em b e r , m a y b e te rm in a te d
b y tw o -th ird s (2 /3 ) vo te o f th e e n t ire m em b e r sh ip o f th e B o a rd o f G o v e rno r s a t a re gu la r o r sp e c ia l m e e ting c a lle d fo r
tha t p u rp o se .”

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Finally, the Plaintiffs alleged that the Defendants violated the provision in the injunctive
order prohibiting the Board from violating HHS rules and regulations regarding the operation of a
nonprofit health care center. First, the Plaintiffs alleged that Chairman Grant improperly negotiated
a $100,000 certificate of deposit without Board approval. Secondly, the Plaintiffs alleged that
Memphis Health Center’s Chief Financial Officer expressed concern to its interim Chief Executive
Officer regarding the mishandling of certain cashier’s checks. In response, on the issue regarding
the $100,000 certificate of deposit, the Defendants maintained that Grant in fact obtained Board
approval for his actions, so a factual issue was presented. On the other allegations on the
mishandling of cashier’s checks, the trial court found from argument of counsel that the Plaintiffs’
evidence was insufficient. Consequently, the trial court heard testimony only on the issue of whether
the Board approved the cashing of the $100,000 certificate of deposit.

The first witness the Plaintiffs called to testify was Betty Miller, the acting secretary of the
Board who was responsible for the minutes of all Board meetings. Despite the fact that the minutes
were subpoenaed for the hearing, Miller testified that she did not bring the minutes to the hearing.
She first stated that the Executive Committee of the Board approved Grant’s negotiation of the
certificate of deposit, and then later recanted that assertion. Miller testified she did not recall any
full Board vote on negotiation of the $100,000 certificate of deposit, which was required under the
Bylaws.

Memphis Health Center’s interim Chief Executive Officer, Sandra Randolph, asserted that
the proceeds from the certificate of deposit were used for the Center’s payroll, but had no direct
knowledge of Board approval of the negotiation of the certificate of deposit. Likewise, the Chief
Financial Officer, Carolyn Tippet, had no direct knowledge of Board approval. Finally, the
Defendants called Claudette Branch, a Board member and Defendant, who testified that she recalled
a Board meeting in which the Board ratified a report of the financial committee that included
redemption of the certificate of deposit. No minutes of such a Board meeting were produced at the
hearing.

At the close of the hearing, the trial court stated, “There is zero proof in this Court’s record
that is credible to this Court that indeed the Board has approved the cashing of this $100,000
[certificate of deposit].” The trial judge noted that Branch was the only Board member who testified,
without later recanting, that the Board approved redemption of the certificate of deposit, and the trial
judge stated that he did not “find her very credible.” The trial court emphasized that the Defendants’
witnesses “did nothing meaningful to try to comply with [the subpoena for financial records and
meeting minutes].” The court continued:

They all do know . . . or some of them have testified that they knew that the
Department of Health and Human Services had forewarned them over two years ago
about cashing these [certificates of deposit], how careful they should really be about
that. And here’s this cavalier approach, so cavalier that even today on this moment
of trial, no minutes are brought, no person other than one that the Court has found to
be not credible who even attended such a Board meeting.

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The trial court held the Defendants in contempt with respect to each of the three issues. It found that
the Board had an affirmative obligation to address conduct unbecoming a Board member, and a
particular obligation to at least investigate the judgment of violation of the federal False Claims Act
against Chairman Grant, and that it failed to do so on the four occasions that the Board met after the
entry of the federal judgment, even once after the temporary restraining order went into effect.
Second, the trial court found that the Bylaws authorized the Board to either select or dismiss the
CEO, but that it had no authority to suspend the CEO with pay. On this basis, the trial court found
that the suspension of Holman with pay was a violation of the injunctive order. Third, the trial court
concluded that the $100,000 certificate of deposit was redeemed without Board approval, also in
violation of the injunctive order. Therefore, the trial court held the Defendant Board members in
contempt of court. After the hearing, the Plaintiffs filed a motion for their attorney’s fees and
expenses.

A written order to the effect of the trial court’s oral ruling was entered on October 14, 2004.
In the written order, the trial court also set out its equitable remedy to address the violation of the
injunctive order. First, the trial court removed all Board members with the exception of Plaintiffs
Sadie Davis and Cornelia Berry. Special Master Deborah Henderson was ordered to act as
Chairperson of the Board and, with the assistance of the remaining Board members, to select new
Board members. The Special Master was also directed to investigate and determine whether to
remove Dr. Sandra Randolph as Chief Executive Officer, to determine whether other employees
hired by the Defendants during the pendency of the litigation should be removed, and to investigate
and determine whether Holman should be reinstated as chief executive officer “pending any action
by the newly-selected Board of Governors pursuant to the Bylaws.” Finally, the trial court instructed
the Special Master to make any further recommendations deemed necessary for the continued
operation of Memphis Health Center.

On October 6, 2004, one week before the trial court entered its final order in this matter,
counsel for the Plaintiffs had filed a motion for an award of reasonable attorney’s fees and expenses.
On October 25, 2004, the trial court granted the Plaintiffs’ motion for attorney’s fees and expenses,
noting that counsel for the Defendants did not object to the motion. Memphis Health Center was
ordered to pay over $25,000 in attorney’s fees and expenses to the attorneys for the Plaintiffs.

Finally, on October 25, 2004, the trial court entered a consent order on the Plaintiffs’ motion
for additional time to respond to the Defendants’ September 13, 2004 motion for summary judgment.
The consent order acknowledged that the trial court’s contempt order disposed of all of the issues
raised in the Defendants’ motion for summary judgment. Consequently, the Plaintiffs’ motion for
additional time was deemed moot, and the October 14, 2004 contempt order was deemed a final
order. The defendants now appeal the contempt order.

On appeal, the Defendant Board members urge this Court to reverse the trial court on three
grounds. First, the Defendants argue that the trial court erred in denying the Defendants’ oral motion
to dismiss and in failing to hear the Defendants’ motion for summary judgment. In support of this
argument, the Defendants assert that the Plaintiffs lacked standing to bring a derivative action, failed

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to fulfill the statutory prerequisites for bringing such an action, and also argue that the derivative
action failed to state a claim upon which relief could be granted. In addition, the Defendants argue
that the trial court exceeded its jurisdictional powers. Finally, the Defendants contend that the trial
court erred in granting the Plaintiffs’ petition for civil contempt.

On appeal, this Court reviews the trial court’s findings of fact de novo upon the record,
accompanied by a presumption of correctness, unless the evidence preponderates otherwise. Tenn.
R. App. P. 13(d). The trial court’s legal conclusions, however, are reviewed de novo and are not
entitled to any presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87,
91 (Tenn. 1993).

The Defendants’ first assignment of error stems from the trial court’s denial of the oral
motion to dismiss, made by the Defendants at the outset of the September 30, 2004 hearing on the
Plaintiffs’ petition for contempt. On appeal, the Defendants essentially urge this Court to find that
the trial court erred in denying the motion to dismiss on several grounds: (1) the Plaintiffs did not
have standing to bring a derivative action; (2) the lawsuit failed to meet statutory prerequisites for
a derivative action; (3) the verification requirement for a derivative action was not met; (4) the
complaint failed to state a claim upon which relief could be granted; and, (5) the court failed to hear
and rule on the Defendants’ motion for summary judgment.

Generally, the proper party to bring a lawsuit on behalf of a corporation is the corporation
itself, acting through its directors or a majority of its shareholders. Lewis v. Boyd, 838 S.W.2d 215,
221 (Tenn. Ct. App. 1992) (citing Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 531-32 (1984);
State v. Mitchell, 58 S.W. 365, 368 (Tenn. 1899)). Tennessee courts have historically been reluctant
to interfere with the internal workings of corporations or intrude on the managerial responsibilities
of directors. Id. at 220 (citing Chism v. Mid-South Milling Co., 762 S.W.2d 552, 556 (Tenn. 1988);
Wallace v. Lincoln Sav. Bank, 15 S.W. 448, 449–50 (Tenn. 1891)). Where disinterested directors
act in good faith and with an honest belief that their decisions further the corporation’s interests, the
court will decline to substitute its judgment for that of the board of directors. Id. (citing French v.
Appalachian Electric Coop., 580 S.W.2d 565, 570 (Tenn. Ct. App. 1978)). This is referred to as
the business judgment rule.

The derivative action is a limited exception to the rule that the corporation itself is the proper
party to bring a lawsuit on its own behalf. “A derivative action is an extraordinary, equitable remedy
available to shareholders when a corporate cause of action is, for some reason, not pursued by the
corporation itself.” Id. at 221 (citing Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 (1991)).
Essentially, a derivative action is a suit brought by one or more members, directors, or shareholders
of a corporation, “on a corporation’s behalf to redress an injury sustained by, or to enforce a duty
owed to, a corporation.” Id. (citing Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 527-29 (1984);
Bourne v. Williams, 633 S.W.2d 469, 471 (Tenn. Ct. App. 1981)). In Tennessee, derivative actions
are largely governed by statute.

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To guard against misuse of the derivative action, preconditions to such lawsuits are imposed.
Tennessee Code Annotated section 48-56-401(2002) sets forth the requirements for a derivative
action filed on behalf of a nonprofit corporation. We review only those provisions relevant to the
instant action. First, to bring a proceeding on behalf of a domestic or foreign corporation to procure
a judgment in the corporation’s favor, the plaintiff must be a “director” of the corporation. T.C.A.
§ 48-56-401(a)(2). Second, each plaintiff must be a director at the initiation of the proceeding. Id.
§ 48-56-401(b). In addition, several pleading requirements must be fulfilled. The complaint must
be verified and must allege, with particularity, the demand made to obtain action by the directors.
Id. § 48-56-401(c). It must explain either why the action sought from the directors was not obtained
or why no demand was made on the directors. Id. This is known as the demand requirement. See
Lewis, 838 S.W.2d at 221.

In this case, the Defendants first argue that the trial court erred in denying their motion to
dismiss because the Plaintiffs lacked standing to bring a derivative action. The Defendants contend
that Holman was not a “director” of Memphis Health Center, as required in Tennessee Code
Annotated section 48-56-401(a)(2), and therefore had no authority under the statute to bring a
derivative action on behalf of Memphis Health Center to procure a judgment in its favor. Tennessee
Code Annotated section 48-51-201(10) defines “director” as “natural persons, designated in the
charter or bylaws or elected by the incorporators . . . to act as members of the board, irrespective of
the names or titles by which such persons are described.” T.C.A. § 48-51-201(10) (emphasis added).
Article III, section 3, subsection d, of the Memphis Health Center Bylaws governs the composition
of the Board of Directors; it states that the Chief Executive Officer is an “ex-officio non-voting
member to the Board.” Article VI, section 7, of the Memphis Health Center Bylaws provides that
“[n]o employee of MHC [Memphis Health Center] shall be eligible for election to the Board while
still in employment status . . . . Notwithstanding the above, the Chief Executive Officer shall serve
as ex-officio non-voting member of the Board.” In Article X, the Bylaws provide that the Chief
Executive Officer, as an ex-officio member of the Board, is considered “an ex-officio member of all
committees except the Executive Committee.” Finally, under the Bylaws, while the general public
is permitted to attend Memphis Health Center board meetings, the chief executive officer as an ex
officio member of the Board is also entitled to attend standing committee meetings. The issue, then,
is whether the term “director” under section 48-51-201(10) is limited to full voting members of the
corporate board of directors or whether it can include an ex officio member of the Board such as
Holman. The question is close, but on balance we must conclude that, considering all of the Bylaw
provisions set forth above, an ex officio member of the Memphis Health Center Board of Directors
falls within the meaning of the term “director” in section 48-51-201(10) and therefore has standing
to maintain a derivative action against the corporation.

The Defendants also assert that Plaintiff Cornelia Berry lacked standing because her term as
a director was scheduled to end in October 2004, and she was not eligible for renewal. The statute,
however, clearly provides that, to bring such a proceeding, each plaintiff need only be a director “at
the time of bringing the proceeding.” T.C.A. § 48-56-401(b). It is undisputed that Plaintiff Berry
was a director at the time she and the other Plaintiffs filed the amended complaint. This argument
is without merit.

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The Defendants next argue that the Plaintiffs failed to comply with the statutory demand
requirement for a derivative action. Tennessee Code Annotated section 48-56-401(c) requires the
complaint to “allege with particularity the demand made, if any, to obtain action by the directors .
. . or why [the plaintiffs] did not make the demand.” Tennessee courts have imposed a demand
requirement on derivative actions for more than a century. Lewis, 838 S.W.2d at 221 (citing Akin
v. Mackie, 310 S.W.2d 164, 167 (Tenn. 1958); Deaderick v. Wilson, 67 Tenn. (8 Baxt.) 108, 131
(Tenn. 1874)). However, when such a demand would be futile, that is, “idle ceremony,” Tennessee
caselaw provides that the demand requirement may be excused. Humphreys v. Plant Maint. Serv.,
Inc., 1999 WL 553715, at *6 (Tenn. Ct. App. July 30, 1999); Lewis, 838 S.W.2d at 221. Typically,
in a “demand excused” case, a plaintiff claims that a demand would be futile because the board is
interested and not independent, and, consequently, the court examines the interest and independence
of the corporate decision-makers. Humphreys, 1999 WL 553715, at *6 (citing Aronson v. Lewis,
473 A.2d 805, 814 (Del. 1984)).

In the case at bar, the original complaint did not include any reference to the demand
requirement, either by alleging that a demand was made or that a demand would be futile. The
amended complaint, however, included such an allegation. Paragraph nine of the amended
complaint alleged that any demand “would be futile in that the Defendants have a direct interest in
continuing to breach their fiduciary duty and violate the Bylaws and federal rules and regulations,
and, therefore, are not independent.” The trial court heard this argument as part of the Defendants’
oral motion to dismiss; it noted that while the evidence at trial might show that the demand should
not be excused, the allegation in the amended complaint was sufficient to survive the motion to
dismiss. We find no error in the trial court’s conclusion on this issue.

The Defendants next argue that the trial court erred in denying the motion to dismiss because
the derivative action was brought without being verified. Tennessee Code Annotated section 48-56-
401(c) provides that a complaint in a derivative action must be verified. T.C.A. § 48-56-401(c). The
Defendants acknowledge that the original complaint was verified by Plaintiff Holman, but contend
that she was not competent to do so because, as only an ex officio member of the Board, she had no
standing to file the derivative action. As noted above, we conclude that, under the circumstances of
this case, Holman had standing to file the lawsuit, and therefore her verification of the original
complaint is sufficient. We find no error in the trial court’s holding on this issue.

The Defendants next argue that the complaint fails to state a claim upon which relief could
be granted. Without citation to authority, the Defendants assert that a violation of the bylaws of a
corporation, violation of an employment contract, and violation of federal rules and regulations are
not recognized causes of action on behalf of a corporation in Tennessee. From our review of the
amended complaint, however, the Plaintiffs primarily allege a breach of the Board members’
fiduciary duty to the corporation. It is undisputed that the directors of a corporation owe a fiduciary
duty to the corporation to “faithfully pursue the interest of the organization, and its nonprofit
purpose, rather than his or her own financial or other interests, or those of another person or
organization.” Summers v. Cherokee Children & Family Serv., Inc., 112 S.W.3d 486, 504 (Tenn.
Ct. App. 2002); see also Nelms v. Weaver, 681 S.W.2d 547, 549 (Tenn. 1984). If the directors

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breach their fiduciary duty, they may be held jointly and severally liable to the corporation.
Resolution Trust Corp. v. Block, 924 S.W.2d 354, 357 (Tenn. 1996). Consequently, this argument
is without merit.

Here, one of the Plaintiffs’ primary allegations was that the Chairman of the Board was found
to have committed thousands of violations of the federal False Claims Act, and that the Board
refused to take action to remove him or even to investigate, and that this inaction was a violation of
their fiduciary duty to Memphis Health Center. This allegation was clearly actionable.
Consequently, this argument is without merit.6

The Defendants argue as well that the trial court erred by failing to hear and rule on the
Defendants’ motion for summary judgment at the September 30, 2004 hearing. The Tennessee
7
Rules of Civil Procedure provide that a motion for summary judgment must be served at least thirty
days before the time fixed for a hearing. Tenn. R. Civ. P. 56.04. This rule is mandatory, not
discretionary, and exists to ensure that the responding party will have sufficient time to file, among
others, any responsive affidavits and discovery depositions. Craven v. Lawson, 534 S.W.2d 653,
655 (Tenn. 1976). The Defendants’ motion for summary judgment was filed only seventeen days
before the September 30, 2004 hearing, and the Plaintiffs explicitly declined to waive the thirty day
requirement. Under these circumstances, the trial court did not err in refusing to address the
Defendants’ motion for summary judgment at the September 30, 2004 hearing on the Plaintiffs’
petition for contempt.

The Defendants’ next assertion of error by the trial court is that the trial court exceeded its
jurisdictional powers. The Defendants argue first that the trial court’s consideration of general
allegations of violations of federal rules and regulations “created a mixed bag of jurisdictional issues
making [Memphis Health Center] a quasi-federal agency with the opportunity to be defended by the
U.S. Attorney General in Federal Court.” The Defendants continue, “The lower court refused to
recognize this jurisdictional issue and erred by denying Defendants’ Motion for Summary Judgment
issue of lack of jurisdiction controverted to a Motion to Dismiss issue.” After a sincere attempt to

6
P a r t o f th e b a s is fo r o u r h o ld in g s tem s from th e p r o c e d u ra l p o s tu re o f th is c a se . T h e law su it w a s , in e sse n ce ,
re so lv e d w he n th e tr ia l c o u r t a d d r e sse d th e a lle g a t io n s o f c o n tem p t o f c o u r t . C o n se q u e n t ly , w e re v iew wh e th e r th e tr ia l
c o u r t h ad su ffic ie n t b a s is to issu e th e in ju nc tiv e o r d e r , c o n s id e r th e P la in tiffs ’ a l le g a t io n s th a t th e D e fe n d a n ts h a d v io la te d
the in ju nc t ive o rd e r , an d g ra n t the re l ie f o rd e re d fo r the D e fen d an t’s co n tem p t o f co u r t . T o d o s o , w e n ee d no t p a r se
th rough th e num e rou s a l leg a t io n s in th e com p l a in t to d e t e rm in e wh ich a r e a c t io n ab le ; it is su ffic ien t if th e p r im a ry
a l leg a t io n o f fa i lu re to tak e a c t io n a ga in s t C ha irm an G ran t wa s ad eq ua te b a s i s fo r the tr ia l co u r t ’s ac t io n s .

In d e ed , th e re m ay b e se r io u s q u e s t io n o f wh e the r a d e r iv a t ive a c t io n is the ap p ro p r ia te ve h ic le fo r a p la in t i f f
su ch a s CEO H o lm an to s e e k r e l i e f fo r a v io la t io n o r ev en , in th is c a s e , an an tic ip a ted v io la t io n o f h e r emp lo ym en t
a g re em e n t . E v en a ssum ing , how ev e r , th a t su c h a l le ga tio n s a re no t a c tio n a b le in a d e r iv a tiv e law su i t , th e a lle ga tio n o f
in a c t io n in th e fa ce o f C h a irm a n G ra n t’s m isc o nd u c t w e re am p le b a sis fo r th e tr ia l co u r t to p ro c ee d .

7
O n O c to b e r 2 5 , 2 0 0 4 , th e D e fe nd a n ts en te re d in to a co n se n t o rd e r s ta ting th a t “ th e D e fe nd a n ts ’ M o t io n fo r
S umm a ry J ud gm e n t h a s b e e n d e c id e d p u rsu a n t to th e O rd e r o n P e ti t io n fo r C i ta tio n fo r C iv il C o n tem p t h e re to fo r e e n te re d
o n O c to b e r 1 4 , 2 0 0 4 and tha t sa id O rd e r sh o u ld b e t re a ted a s a f in a l o rd e r .”

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understand this issue as stated, the Court is simply unable to do so. No legal authority is cited in
support of this argument. This Court has previously held that the “failure to cite authority for
propositions in arguments submitted on appeal constitutes a waiver of the issue.” Messer Griesheim
Industries, Inc. v. Cryotech of Kingsport, Inc., 131 S.W.3d 457, 474 (Tenn. Ct. App. 2003); see
also Hawkins v. Hart, 86 S.W.3d 522, 531 (Tenn. Ct. App. 2001) (explaining that a party’s failure
to make a legal argument and cite authority in support of the party’s position on appeal will
constitute a waiver of that issue). Therefore, we deem this issue, as stated, to be waived.

The Defendants also contend that the trial court exceeded its jurisdictional powers by
allowing the Special Master to exceed her appointed duties. Again, no legal authority is offered to
support the argument, nor do the Defendants explain how the outcome of this case was affected by
allegedly permitting the Special Master to exceed her designated duties, nor how this deprived the
trial court of jurisdiction. This argument is without merit.

The Defendants maintain as well that the trial court exceeded its jurisdictional authority in
that the October 14, 2004 order on contempt “deprives the Defendants of their rights.” Claiming that
some of the Defendants have “urgent medical needs, including diabetes and other conditions that
require regular monitoring,” the Defendants argue that the trial court’s order enjoining the
Defendants from entering onto the premises of Memphis Health Center “constitutes a violation of
federal law and as such violates the constitutional rights of the Defendants and could deprive them
of life and liberty under color of state law.” No legal authority is cited in support of this grab bag
of conclusory allegations. This argument is also without merit.

The Defendants assert further that the removal of the Defendants from the Memphis Health
Center Board violates the federal Volunteer Protection Act of 1997, codified at 42 U.S.C. § 14501,
et seq. The Defendants’ argument, in its entirety, is as follows:

The law governing volunteers is encompassed in Federal Law, i.e., the Volunteer
Protection Act of 1997. This Act provides certain protections to volunteers,
nonprofit organizations and governmental entities in lawsuits based on the activities
of volunteers. Tennessee law is not broader than said Act, and therefore the doctrine
of federal pre-emptions (sic) should be applied.

In general, the Act seeks “to provide certain protections from liability abuses related to volunteers
serving nonprofit organizations and governmental entities.” 42 U.S.C. § 14501(b). The Act,
however, is not applicable when a civil action is brought “by any nonprofit organization . . . against
any volunteer of such organization or entity.” Id. § 14503(b). In this case, a derivative suit was
brought on behalf of Memphis Health Center, a nonprofit organization, seeking primarily injunctive
relief against the volunteer Board member Defendants. We must conclude that the federal Volunteer
Protection Act of 1997 is not applicable under these circumstances.

Finally, the Defendants’ argue that the trial court erred in granting the Plaintiffs’ petition for
contempt, primarily on the basis that the Defendants did not violate the trial court’s injunctive order.

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In order to address this assertion of error, the appellate court must ascertain whether the trial court’s
order was one of civil or criminal contempt. See, e.g., LeCroy-Schemel v. Cupp, 2000 WL
1130683, at *3 (Tenn. Ct. App. Aug. 10, 2000). The distinction between the two has both
substantive and procedural ramifications. See Bailey v. Crum, 183 S.W.3d 383, 387 (Tenn. Ct. App.
2005); Sanders v. Sanders, 1997 WL 15228, at *3 (Tenn. Ct. App. Jan. 17, 1997). The rights of the
parties, the quantum of proof, and the procedural due process afforded to the respondents depends
on the classification of the contempt; consequently, the label attached by the petitioners or the trial
court is not dispositive. Instead, this Court looks at the nature of the proceedings below, and not the
name attached to the proceedings, to determine whether they were in prosecution of civil or criminal
contempt. See Sanders, 1997 WL 15228, at *2.

Civil contempt proceedings are often initiated by a private party when another party has not
complied with a court order; the initiation of the action is for the benefit of the petitioning litigant.
Doe v. Bd. of Prof. Responsibility of the Supreme Court of Tennessee, 104 S.W.3d 465, 473 (Tenn.
2003); Sanders, 1997 WL 15228, at *2. To find the respondent guilty of civil contempt, only a
preponderance of the evidence is required. Doe, 104 S.W.3d at 474. The punishment for civil
contempt is intended to be coercive; the remedy is temporary by nature. Id. at 473; Sanders, 1997
WL 15228, at *2. Holding an individual in civil contempt is an available remedy “only when the
individual has the ability to comply with order at the time of the contempt hearing.” Ahern v.
Ahern, 15 S.W.3d 73, 79 (Tenn. 2000). It is often said that the party held in civil contempt holds
the keys to the jail because he may purge himself of contempt by complying with the court order.
Id.

Criminal contempt proceedings also punish an individual for failing to comply with a court
order, but are intended to be punitive and unconditional, not coercive and temporary. See, e.g.,
Sanders, 1997 WL 15228, at *2. Criminal contempt is a tool to “vindicate the dignity and authority
of the law, and the court as an organ of society.” Black v. Blount, 938 S.W.2d 394, 398 (Tenn.
1996). Criminal contempt may arise during a civil proceeding, but, more so than civil contempt,
“raise[s] an issue between the public and the accused.” Id. Because of the finality of the
punishment, the accused in a criminal contempt proceeding is entitled to greater procedural
protections than the accused in a civil contempt proceeding. For instance, the respondent is
presumed innocent, and must be proven guilty beyond a reasonable doubt. See, e.g., id. The
respondent is entitled to the privilege against self-incrimination. Sanders, 1997 WL 15228, at *3.
Criminal contempt also requires more exacting procedural safeguards than civil contempt; for
criminal contempt, the respondent is entitled to notice that he faces criminal contempt sanctions and
must be afforded an opportunity to present evidence of innocence or any other available defense.
Id. (citing Cooke v. United States, 267 U.S. 517, 537 (1925)).

In this case, the petition for contempt filed by the Plaintiffs stated that it was for civil
contempt, asking only that the Defendants be found in contempt, that Plaintiff Holman be permitted
to resume her duties as CFO, and for “other, further and general relief. . . .” However, the
classification of contempt as either civil or criminal does not depend on the nomenclature used by
the petitioners, but rather depends “upon the action taken by the court to address the contempt.”

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Ahern v. Ahern, 15 S.W.3d 73, 78 (Tenn. 2000). Here, the remedy imposed did not involve the
typical remedies for criminal contempt, i.e. fines or jail time. Nevertheless, the remedy imposed by
the trial court, removal of all of the Defendants from the Memphis Health Center Board, was
certainly permanent in nature; these Defendants were afforded no opportunity to eventually comply
with the injunctive order. Under these circumstances, we must conclude that the contempt was
criminal in nature and review it as such. 8

In Barber v. Chapman, this Court articulated the appropriate standard for reviewing criminal
contempt cases on appeal:

In a criminal contempt case, the guilt of the accused must be established beyond a
reasonable doubt. Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996) (citing
Robinson v. Air Draulics Engineering Co., 377 S.W.2d 908, 912 (Tenn. 1964)).
However, on appeal, individuals convicted of criminal contempt lose their
presumption of innocence and must overcome the presumption of guilt. “Appellate
courts do not review the evidence in a light favorable to the accused and will reverse
criminal contempt convictions only when the evidence is insufficient to support the
trier-of-fact’s finding of contempt beyond a reasonable doubt.” Thigpen v. Thigpen,
874 S.W.2d 51, 53 (Tenn. Ct. App. 1993) (citing Tenn. R. App. P. 13(e)).
Furthermore, appellate courts review a trial court’s decision of whether to impose
contempt sanctions using the more relaxed abuse of discretion standard of review.
Hawk v. Hawk, 855 S.W.2d 573, 583 (Tenn. 1993).

Barber v. Chapman, 2004 WL 343799, at *2 (Tenn. Ct. App. Feb. 23, 2004). Accord Moody v.
Hutchison, 159 S.W.3d 15, 25 (Tenn. Ct. App. 2004).

In this case, the first and most serious allegation of contempt stemmed from the Board’s
failure to consider removal, or even investigate, Chairman Grant’s conduct after the United States
District Court entered a judgment against him, finding him guilty of 3,306 acts of fraud. Notably,
the facts regarding this allegation were undisputed; the Defendants took no action to investigate the
judgment despite the fact that the full Board convened on four occasions following the rendering of
the federal judgment and at least once after the trial court’s injunctive order was entered. The
authenticity of the federal judgment was not called into question. The legal duty of the Board to take
action to protect the corporation was likewise not questioned; the Defendants never contested the
Plaintiffs’ assertion that the Bylaws imposed a duty on the Board to address the unbecoming conduct
of any Board member. Astonishingly, the only defense presented for the Board’s inaction was that
the final order of the United States District Court was being appealed to the United States Court of
Appeals. The trial court rightfully found this excuse wholly inadequate.

8
T h e D e fend an ts r a is e no i ssu e o n a p p e a l r eg a rd ing w h e th e r th e no t ic e th ey r e c e iv ed w a s su ffic ien t to m e e t th e
r equ i rem en ts fo r no t ic e o f a c r im in a l co n tem p t p ro c e ed ing .

-16-

Under these circumstances, we cannot conclude that the trial court erred in finding that the
Board violated the injunctive order by failing to comply with the Memphis Health Center Bylaws
and act in the best interests of the corporation. Indeed, the contempt is established based on
undisputed facts, and therefore guilt is proven beyond a reasonable doubt.

Certainly the remedy imposed by the trial court, wholesale removal of the entire Board except
for the Plaintiffs, is breathtaking in scope. Even so, given the grave nature of the federal court’s
judgment against Chairman Grant and the inexplicable indifference to it exhibited by the Board, the
trial court’s remedy is not unreasonable. Clearly the Defendants were not going to protect Memphis
Health Center from Grant. The trial court was left with little choice. We find no abuse of discretion
in the trial court’s decision to impose criminal contempt sanctions and in the remedy ordered.

Since the remedy imposed was warranted to address this first allegation of contempt, it
becomes unnecessary for this Court to review the Defendants’ remaining factual arguments regarding
the findings of contempt. Therefore, all other issues raised on appeal are pretermitted.

The decision of the trial court is affirmed. The costs of this appeal are assessed to the
Appellants/Defendants Gregory Grant, Dean Johnson, Cynthia Combs, Claudette Branch, Ernest
Hughes, Leaola Crutchfield, Betty Miller, Frederick Sanders, Eddie Dandridge, Dyrie Goods, and
Brown McGhee, individually and in their capacity as the Board of Governors of Memphis Health
Center, Inc., and their surety(ies), for which execution may issue, if necessary.

___________________________________
HOLLY M. KIRBY, JUDGE

-17-

Mercer v. HCA Health Serv. of Tennessee, Inc.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 10, 2001 Session

RENE C. MERCER, ET AL. v. HCA HEALTH SERVICES OF
TENNESSEE, INC., ET AL.

Appeal from the Circuit Court for Davidson County
No. 98C-3458 Barbara N. Haynes, Judge

No. M2000-02785-COA-R3-CV – Filed February 7, 2002

A widow claimed that her husband’s suicide was caused by the negligence of the defendant hospital
and the defendant psychiatrist in releasing him prematurely from involuntary commitment. The trial
court granted summary judgment to the defendants, finding that the hospital was obligated to release
the patient when ordered to do so by the psychiatrist, and that the psychiatrist was entitled to absolute
immunity for actions undertaken under the involuntary commitment statutes. We reverse the trial
court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed and Remanded

BEN H. CANT RELL , P.J., M.S., delivered the opinion of the court, in which PATR ICIA J. COTT RELL ,
J. and J. S. DAN IEL, SP . J., joined.

Daniel L. Clayton, Nashville, Tennessee and Steven R. Walker, Memphis, Tennessee, for the
appellants, Rene C. Mercer, Sarah Lynne Mercer and David Leigh Mercer.

C. J. Gideon, Jr., Dixie W. Cooper, and Christi D. Griffin, Nashville, Tennessee, for the appellee,
HCA Health Services of Tennessee, Inc.

Phillip North and Robert Briley, Nashville, Tennessee, for the appellee, Steven R. Nyquist, M.D.

OPINION

I. A SU IC IDE

On December 22, 1997, John Mercer was brought to the emergency room at Summit Medical
Center, a hospital operated by HCA Health Services of Tennessee. Mr. Mercer had threatened to
commit suicide. He had also imbibed two quarts of liquor a day for the previous three days, and had
a potentially lethal blood alcohol level of .40. He was admitted to the hospital, where psychiatrist

Dr. Steven Nyquist ordered that Mr. Mercer be put on suicide watch. The following day, Dr. Nyquist
obtained an emergency commitment order from the General Sessions Court, which authorized the
hospital to hold Mr. Mercer until December 31, 1997.

Mr. Mercer’s prior history included depression, psychiatric admissions, suicide threats, and
head injury. He and his wife Rene had recently separated. He was living alone, and was under
financial stress. Even though this information was available as a result of interviews with the patient
by HCA staff members, and through HCA’s own medical records, Dr. Nyquist was apparently not
made aware of very much of Mr. Mercer’s history when he ordered the patient discharged on
December 24. Mr. Mercer was found dead in his home of a self-inflicted gunshot wound on
Christmas Day.

On December 17, 1998, Rene Mercer, individually and on behalf of the couples’ two minor
children, filed a Complaint in the Circuit Court of Davidson County, naming Dr. Nyquist and HCA
Health Services of Tennessee d/b/a Summit Hospital as defendants. The plaintiffs claimed that Dr.
Nyquist had acted negligently in discharging Mr. Mercer, and that the discharge led directly to his
death. They also claimed that Dr. Nyquist’s decision was induced in part by the negligent failure of
nurses and social workers employed by HCA to no ti fy the psychiatrist of numerous factors that
would have alerted him to the potential danger of such a discharge.

Both defendants filed answers, followed by separate motions for summary judgment. The
defendant healthcare company claimed that once Dr. Nyquist ordered the discharge of Mr. Mercer,
it had a legal duty to release him, and that as a matter of law it could not be held liable for so doing.
The defendant psychiatrist claimed that because he was operating under the Involuntary Admission
statutes, his discharge of Mr. Mercer amounted to a quasi-judicial act, and he was therefore entitled
to abso lu te immuni ty.

The plaintiffs filed Memoranda in Opposition to both motions, accompanied by the affidavits
of two psychiatrists and two psychiatric nurses. The affiants stated that they had reviewed Mr.
Mercer’s medical records, and the policies and procedures of Summit Medical Center. After
describing in some detail the deficiencies in the process that led to Mr. Mercer’s discharge, they
declared that the actions of Dr. Nyquist and the HCA staff fell below the recognized standards of
acceptable professional practice, and were the causes in fact of Mr. Mercer’s death.

Following a hearing on HCA’s motion, the trial court agreed with the defendant that its
employees were only performing their legal duty when they discharged Mr. Mercer on the orders of
Dr. Nyquist, and that HCA was therefore entitled to judgment as a matter of law. The court’s
summary judgment order, filed on September 20, 2000, granted the defendant’s request to certify the
judgment as final under Tenn. R. Civ. Proc. 54.02. The plaintiffs promptly filed a Notice of Appeal.

Dr. Nyquist’s Motion for Summary Judgment was heard on October 23, 2000, and was
subsequently granted as well. The trial court acknowledged that the defendant’s immunity argument
was a question of first impression in Tennessee. The court declared, however, that it was important

-2-

for mental health professionals to be involved in the legal process for involuntary commitment and
discharge of persons with mental illness, and that granting them immunity for their actions and
decisions would promote the broad public policy underlying the process. The court accordingly
deemed Dr. Nyquist’s discharge of Mr. Mercer to be a quasi-judicial act, and declared him to be
protected by judicial immunity. The court also certified this judgment as final under Tenn. R. Civ.
Proc. 54.02, and the plaintiffs filed another Notice of Appeal. On January 9, 2001, the Court of
Appeals ordered consolidation of the two pending appeals.

II. JUD IC IAL AND QUASI -JUD IC IAL IMM UN ITY

The standards for summary judgment are well-known, and need not be discussed in great
detail here. To demonstrate entitlement to summary judgment, the moving party must demonstrate
that there is no genuine issue of material fact, and that the moving party is entitled to judgment as
a matter of law. Rule 56.04, Tenn. R. Civ. Proc.; Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).

In the great majority of summary judgment cases reviewed by this court, the question for our
decision has been whether the allegations of the non-moving party are sufficient to raise a genuine
issue of material fact such as would preclude summary judgment for the moving party. In this case,
however, it appears that the affidavits of the plaintiffs’ experts have raised questions of material fact
as to the existence of all the elements of negligence in the context of a medical malpractice action.
The defendants therefore cannot demonstrate an entitlement to summary judgment except on the
basis of immunity or some other legal defense that would allow them to avoid entirely the question
of negligence.

It has long been a part of the common law that judges enjoy absolute immunity for acts
performed in the exercise of their judicial functions. Webb v. Fisher, 109 Tenn. 701, 72 S.W. 110
(1902). Neither the correctness of a judge’s decisions, nor his motives, affect this immunity. Heath
v. Cornelius, 511 S.W.2d 683 (Tenn. 1974). A more limited form of immunity extends to testifying
witnesses, including those who testify by sworn affidavit. Dyer v. Dyer, 156 S.W.2d 445 (Tenn.
1941). We note that although witnesses cannot be subjected to civil liability for their testimony, they
may in appropriate cases be prosecuted for perjury.

Generally, individuals who act both at the direction of the court, and in aid of the court’s
funct ioning, such as guardians ad litem, enjoy absolute immunity from liability for their acts.
Winchester v. Little, 996 S.W.2d 152 (Tenn. Ct. App. 1998). However, this only applies when the
actions involve the exercise of discretion. In Miller v. Niblack, 942 S.W.2d 533 (Tenn. Ct. App.
1996), this court found that a laboratory that negligently performed a paternity blood test was not
entitled to immunity, even though the trial court had ordered the test, because the court’s order
allowed no room for discretion as to the type of tests to be performed, the manner of performing
them, or the interpretation of the results.

Outside of the courts, members of official bodies that perform judicial functions are entitled
to what is some times cal led quasi-jud ic ia l immun ity. These include the Board of Law Examiners,

-3-

Hampton v. Tennessee Board of Law Examiners, 770 S.W.2d 755 (Tenn. Ct. App. 1988), the Board
of Professional Responsibility, Cawood v. Davis, 680 S.W.2d 795 (Tenn. Ct. App. 1984), and the
Board of Claims, Schoenly v. Nashville Speedways, Inc. 344 S.W.2d 349 (Tenn. 1961).

Judicial and quasi-judicial immunities exist only under circumstances where they appear to
be absolutely necessary for the proper functioning of courts and other bodies. It is significant that
the United States Supreme Court has declared its reluctance to extend immunities beyond those
mandated by constitutional and statutory requirements, noting in particular that “[a]bsolute immunity
is ‘strong medicine,’ justified only when the danger of officials’ being deflected from the effective
performance of their duties is very great.” Forrester v. White, 484 U.S. 219, 230 (1988).

III. THE INVOLUNTARY COMM ITMENT STATUTES

The statutes that governed involuntary commitment at the time of the events discussed above1
included a section that dealt with the liabilities and immunities of parties acting under its provisions.
Subsections (a) and (b) of Tenn. Code. Ann. § 33-3-102 set out criminal penalties for intentionally
causing an individual to be detained under its provisions without probable cause, while Subsection
(c) entitled hospital administrators and others to rely in good faith on representations made by
qualified individuals for involuntary admissions. Subsection (d) of that statute read:

All persons acting in good faith, reasonably and without negligence in connection
with the preparation of petitions, applications, certificates or other documents or the
apprehension, detention, discharge, examination, transportation or treatment of an
individual under the provisions of this title shall be free from all liability, civil or
criminal, by reason of such acts.

[Acts 1965, ch. 38, § 6].

The appellees urge us to ignore Subsection (d), or to treat it as meaningless verbiage, since
an individual who is not negligent would not be liable in any case. Although it may be difficult to
divine the legislature’s purpose in enacting Subsection (d), it appears to us that they chose not to
grant immunity to individuals who have acted negligently in the involuntary commitment process.

The involuntary commitment statutes as a whole describe a series of escalating steps for the
detention of individuals against their will, when required for emergency mental health diagnosis,
evaluation , and treatment. On ly the firs t few of these steps are relevant to our inqu iry.

Under former Tenn. Code. Ann. § 33-6-103(a) (and current Tenn. Code. Ann. § 33-6-402
and 403), a physician or a police officer can take a person into custody for immediate examination

1Th e i n v o lu n t a r y c omm i tm e n t s t a tu t e s we r e m o d i f ie d a n d r e n um b e r e d a ft e r th e ev e n t s t h at gave r ise to th is
lawsu i t . In t he f o llow ing d i s cu s s ion , w e r e f e r to tho s e s t a tu te s in a c co rd an c e w i th th e ir p r io r numb e r ing . Wh e r e th e
s ta tu tes a r e sub s tan t ia l ly unc hang ed , we have s ome t imes re fe r red to them by the i r c u r ren t des ign a t ions a s we l l .

-4-

without a civil order or warrant if the person is mentally ill and he “poses an immediate substantial
likelihood of serious harm” to himself or to others “because of the mental illness.”2 If a physician
determines after examination that the person is subject to involuntary hospital admission, then he
must complete a certificate of need, showing the factual foundation for his conclusions. Tenn. Code.
Ann. § 33-6-103(h) (now § 33-6-404).

The certificate is submitted to a general sessions court, which upon a finding of probable
cause, “may order the defendant admitted for not more than five (5) days from the date of the order,
excluding Saturdays, Sundays and holidays, for emergency diagnosis, evaluation and treatment
pending a probable cause hearing . . . .” Tenn. Code. Ann. § 33-6-103(l) (now 33-6-413).

It is not disputed that a physician acting under this statute is entitled to release a patient after
obtaining an order from the General Sessions court , and before the probable cause hearing. In fact,
Tenn. Code. Ann. § 33-6-109 read, “a patient admitted to a hospital under any provision of this title
other than Tenn. Code. Ann. § 33-6-104 shall be discharged” if “he no longer meets the standards
under which the admission took place, AND the patient’s detention is not otherwise authorized under
the admission statute.” See current Tenn. Code. Ann. § 33-6-705.

Dr. Nyquist argues that Tenn. Code. Ann. § 33-6-109 and related statutes showed a clear
legislative bias towards personal liberty and against involuntary commitment. The appellee testified
that he conducted several interviews with Mr. Mercer and that he concluded on the basis of their
conversations that the patient was not mentally ill. He argues that once he made that determination,
he had no choice under Tenn. Code. Ann. § 33-6-109 but to discharge his patient. It appears to us,
however, that the appellants are entitled to inquire into the process whereby Dr. Nyquist determined
Mr. Mercer’s mental status.

IV. CONST ITUT IONAL AND PUBL IC POL ICY CONS IDERAT IONS

Dr. Nyquist argues that confining an individual against his will implicates Article 1, § 8 of
the Tennessee Constitution, which prohibits such imprisonment except “by the judgment of his peers
or the law of the land.” Since judges involved in the conviction and sentencing of criminals may not
be prosecuted for judicial acts that lead to imprisonment or to release for an accused person, he
argues that a doctor who is entrusted with a decision that involves a similar loss of liberty should
enjoy the same legal immunity.

We note that another sec tion o f ou r Const itution, A rticle I, § 17, provides that “every man,
for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of
law.” Thus, if we declared Dr. Nyquist to be entitled to judicial immunity, we would be depriving
the Mercer fami ly and others simi larly si tuated of a remedy to wh ich they would otherwise be
constitutionally entitled. See Whisnant v. Byrd, 525 S.W.2d 152 (Tenn. 1975).

2Te nn . Co de . A nn . § 3 3 -6 -4 03 a dds “o r se r ious em o t ion a l d is tu rb ance .”

-5-

Courts may sometimes be forced to choose between competing constitutional principles, but
judicial immunity (unlike legislative immunity, see Article II, § 13) is not a constitutional
requirement. It is a common law ru le of venerab le lineage, while quasi-judicial immunity is
sometimes (but not in the circumstances present here) a statutory requirement. In the absence of any
constitutional or statutory authority to extend judicial immunity to health providers acting under the
involuntary commitment statutes, we are left with the public policy argument as the sole rationale
for the trial court’s decision.

We must note, however, that our courts have stated on more than one occasion that the public
policy of this state is to be found in its Constitution and statutes, and that the judiciary has a very
limited power to declare what public policy is, in the absence of an unambiguous constitutional,
statutory, or regulatory provision. See Stein v. Davidson Hotel Co., 945 S.W.2d 714 (Tenn. 1997),
Whisnant v. Byrd, 525 S.W.2d 152 (Tenn. 1975).

Further, even if we were required to declare what the public policy of this state should be in
regard to judicial immunity for physicians involved in commitment proceedings, we think the
arguments in favor of immunity are less compelling than the arguments against it. The trial court
stated that giving physicians “judicial immunity for decisions made and actions taken during the
involuntary commi ttal and discharge proces s wil l promote the broad publ ic pol icy underlying the
judicial proceeding.” There is, however, more than one way to look at the effects of liability and
immunity on the conscientious performance of public duties. In Forrester v. White, 484 U.S. 219
(1988), the United States Supreme Court recognized the complexity of the question:

“Suits for monetary damages are meant to compensate victims of wrongful actions
and to discourage conduct that may result in liability. Special problems arise,
however, when government officials are exposed to liability for damages. To the
extent that the threat of liability encourages these officials to carry out their duties in
a lawful and appropriate manner, and to pay their victims when they do not, it
accomplishes exactly what it should. By its nature, however, the threat of liability
can create perverse incentives that inhibit officials in the proper performance of their
duties.” (emphasis in the original)

284 U.S. at 230.

In Forrester, the Supreme Court dealt with the question of whether an Illinois Circuit Court
judge was immune from a civil rights discrimination lawsuit for his action in discharging a female
employee of the court on account of her sex. The court held that he was not, and drew a distinction
between judicial acts (for which a judge is entitled to immunity) and the “administrative, legislative
or executive functions that judges may on occasion be assigned by law to perform.” 284 U.S. at 227.

The Court spoke in terms of a functional approach to the question of immunity, declaring that
the function for which it is sought is a more important consideration in determining whether
immunity is appropriate than is the title of the individual exercising the function. The appellant has

-6-

seized on this question of a functional approach, and argued that the function of a physician in
confining a patient against his will is almost identical to the function of a judge sentencing a
convicted criminal to prison. However, the Forrester Court also said,

“. . . we examine the functions with which a particular official, or class of officials
has been lawfully entrusted, and we seek to evaluate the effect that various forms of
liability would likely have on the appropriate exercise of those functions. Officials
who seek exemption from personal liability have the burden of showing that such an
exemption is justified by overriding considerations of public policy . . . .”

284 U.S. at 224.

When we analyze the possible effects of liability versus immunity on involuntary
commitment decisions, we discover dangers in both. The trial court inferred (without any
evidentiary support that we can find) that it would be difficult to find physicians willing to make
involuntary commitment decisions in the absence of a guarantee of absolute protection against
lawsuits. Of more significance, perhaps, is the possibility that a medical professional faced with the
danger of liability may allow that concern to take priority over the exercise of sound medical
judgment. But one who is endowed with immunity for his acts will be able to neglect his/her
medical duties without fear of consequences. We find pitfalls along both pathways.

Decisions to discharge or hold patients are discretionary ones, and in that respect they are
somewhat akin to those for which judges and certain other government officials receive immuni ty.
But one vital difference is that there are no recognized or ascertainable standards of care judges and
government officials must adhere to in reaching their decisions, that are analogous to those that apply
to medical professionals. Faithful adherence to these standards provides an effective shield against
liability for the conscientious medical professional. The stringent evidentiary requirements of the
medical malpractice statutes provide further protection for such an individual.

Tenn. Code. Ann. § 29-26-115(a) declares that the plaintiff has the burden of proving the
relevant standard of care, deviation from the standard, and that the injury complained of resulted
from that deviation. These elements can only be proven by expert testimony, except where the act
of alleged malpractice lies within the knowledge of ordinary laymen. Stokes v. Leung, 651 S.W.2d
704 (Tenn. Ct. App. 1982); Baldwin v. Knight, 569 S.W.2d 450 (Tenn. 1978).

Tenn. Code. Ann. § 29-26-115(b) sets out stringent requirements of licensure and practice
for healthcare professionals to satisfy before they are permitted to testify as to the necessary
elements. Section (c) of the same statute states that there will be no presumption of negligence in
a medical malpractice action, while Section (d) requires the court to instruct the jury in such an
action that “injury alone does not raise a presumption of the defendant’s negligence.” Thus, the
outcome of a medical malpractice lawsuit against a physician who has made an involuntary
commitment decision may not be determined by the correctness of the decision or by its result, but

-7-

solely by the question of whether the defendant followed the relevant standard of care in reaching
it.

It appears to us that these statutes meet the concerns voiced by the Supreme Court in
Forrester v. White, supra, far more effectively than blanket immunity would. Accordingly, we
conclude that considerations of public policy do not require a grant of judicial immunity for doctors
involved in involuntary commitment proceedings.

V. THE ROLE OF HCA HEALTH SERV ICES

As we stated above, the trial court granted summary judgment to HCA Health Services
because it found that the defendant had a legal duty under Tenn . Code. Ann . § 33-6-109 to discharge
Mr. Mercer once Dr. Nyquist ordered it. The plaintiffs vigorously disputed this interpretation of the
statute, and argued that Tenn. Code. Ann. § 33-6-103 and Tenn. Code. Ann. § 33-6-108 placed the
ultimate responsibility for discharge on the superintendent of the hospital. We do not think it
necessary to express an opinion on this question of statuto ry interpretation, however, because it
appears to us that the plaintiffs have alleged facts sufficient to support a claim against HCA upon
an entirely different basis.

According to Dr. Nyquist’s deposition, the responsibility for Mr. Mercer’s care lay with a
treatment team led by the psychiatrist, and which included registered nurses and a social worker
employed by HCA. Two registered psychiatric nurses retained as experts testified that the standard
of care required the treatment team to assess Mr. Mercer’s potential for suicide, to document their
observations, and to communicate those observations to each other and to Dr. Nyquist. They
concluded, after examining the hospital’s records that this was not done, even though Mr. Mercer
presented numerous risk factors for possible suicide.

Among other things, team members apparently failed to review the medical records of Mr.
Mercer’s previous hospitalization, despite hospital policy requiring such review. Those records
would have revealed a history of head trauma, which according to the affidavits of the two expert
psychiatrists, increases the risk of suicide because of poor judgment. Also, social worker Glenn
Vann learned from Mrs. Mercer that there had been a similar episode of alcohol intoxication and
threats of suicide the previous Christmas, but he did not convey the info rma tion to Dr . Nyquist. If
he had done so, Dr. Nyquist might have been less likely to believe Mr. Mercer’s denial of suicidal
ideation.

Dr. Nyquist himself testified at his deposition that to determine the mental status of a patient,
he needed to know about his “psychosocial world”, as well as “elements of current medical history,
past medical h is tory, of fami ly psychiatric his tory, personal psychiatric history.” This testimony was
consistent with the explanation of the standard of care presented by the plaintiff’s psychiatric experts.
The record indicates, however, that Dr. Nyquist’s determination that Mr. Mercer should be
discharged was based solely on a few interviews he conducted with the patient. He also testified that

-8-

prior to releasing Mr. Mercer, he never attempted to obtain any other records involving his previous
hospitalizations.

Dr. Nyquist’s testimony raises the question as to what extent the alleged negligence in this
case should be imputed to HCA for the failure of its employees to convey important information to
the psychiatrist, and to what extent Dr. Nyquist was obligated to seek or request this information
from the treatment team. It does not, however, negate the questions of material fact raised by the
allegations of negligence against HCA.

VI.

The judgment of the trial court is reversed. Remand this cause to the Circuit Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal
equally between the appellees, HCA Healthcare Services of Tennessee and Steven R. Nyquist, M.D.

_________________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.

-9-

Meierer v. St. John’s Reg’l Health Ctr.

EMTALA/PREEMPTION

Meierer v. St. John’s Reg’l Health Ctr., No. 04-3449-CV-S-GAF
(W.D.Mo. May 5, 2005)

A hospital required that uninsured patients execute a contract agreeing
to pay for all medical treatment before receiving any medical services. An
uninsured patient filed a complaint against the hospital citing state law claims
of breach of charitable trust and breach of the duty to provide emergency medical
treatment. The hospital removed the case to the United States District Court,
Western District of Missouri arguing that the complaint implied federal law.
The district court held that the patient’s claim of breach of charitable trust
did not explicitly rely on the federal EMTALA statute, that EMTALA does not
provide a complete preemption of state law, and that the patient’s claim of
breach of charitable trust relied exclusively on state regulations governing
the operation of its hospitals. Therefore, the district court remanded the
case to the state court.

 

 

Meija v. Cmty. Hosp. of San Bernardino

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

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Medical Staff of Sharp Mem’l Hosp. v. Super. Ct. of San Diego County

D043178

(Super. Ct. No. GIC802060)

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA

MEDICAL STAFF OF SHARP MEMORIAL
HOSPITAL et al.,

SUPERIOR COURT OF SAN DIEGO
COUNTY,

____________________________________

PENNY PANCOAST,

Real Party in Interest.

Petitioners,

v.

Respondent;

Filed 7/30/04

Proceedings in mandate after superior court granted writ. Ronald S. Prager, Judge.

Petition granted.

Higgs, Fletcher & Mack, LLP, John Morris and Richard D. Barton for Petitioners.

Manatt, Phelps & Phillips, LLP, and Terri D. Keville; Lois Richardson for

California Healthcare Association as Amici Curiae on behalf of Petitioners.

No appearance for Respondent.

Stephan, Oringher, Richman & Theodora, P.C., Arthur R. Chenen, Robert M. Dato

and Dean J. Smith for Real Party in Interest.

Bond Curtis, LLP, and Charles Bond; Catherine I. Hanson and Gregory M.

Abrams for California Medical Association as Amici Curiae on behalf of Real Party in

Interest.

In this original proceeding the trial court found the Medical Staff of Sharp

Memorial Hospital et al. (the medical staff) acted improperly when it summarily

suspended the staff privileges of Penny Pancoast, a medical doctor. Accordingly, the trial

court ordered Dr. Pancoast’s suspension be rescinded.

We grant the medical staff’s petition for a writ of mandate and direct the trial court

to vacate its order.

There is no dispute among the parties Dr. Pancoast was in no condition to admit

patients at the time of her suspension. Indeed, by way of her response to the petition Dr.

Pancoast concedes her disability. The record also shows that in the absence of her

suspension, Dr. Pancoast planned to begin admitting patients to Sharp Memorial Hospital

(Sharp). Under these circumstances Business and Professions Code section 809.5, as

well as the medical staff’s bylaws, permitted the medical staff to summarily suspend Dr.

Pancoast’s admission privileges, subject to her right to a post-suspension hearing.

2

FACTUAL BACKGROUND

A. Dr. Pancoast

Dr. Pancoast is a duly licensed physician with an internal medicine practice. She

obtained medical staff privileges at Sharp in 1991 and was re-appointed for two-year

periods in 1993, 1995, 1997 and 1999.

B. Dr. Pancoast’s Personal Life

Between 1996 and 2000 Dr. Pancoast experienced grave turmoil in her personal

life. Her marriage dissolved and her son was diagnosed with a severe mental illness

which appeared to be related to abuse inflicted by his father. Because Dr. Pancoast’s

former husband had failed to maintain the family’s health insurance, Dr. Pancoast bore

the cost of her son’s hospitalization until her resources were consumed and she filed for

bankruptcy.

In addition to these difficulties, in February 2000 Dr. Pancoast was the victim of a

sexual assault.

C. Dr. Pancoast’s Mental State

Although as early as 1996 the medical staff had received information which

indicated Pancoast was under severe emotional distress, the information the medical staff

began receiving in early 2000 indicated her emotional situation was deteriorating. In

February 2000 her privileges at Sharp were suspended because she had not completed a

number of medical records.

On March 13, 2000, the chairman of Sharp’s Wellbeing Committee wrote to Dr.

Pancoast and indicated he had unsuccessfully attempted to contact her over the previous

3

five days. She responded by sending the chairman a letter stating her mail had been

accumulating for weeks and that she was providing full-time care for her son. According

to Dr. Pancoast, she continued to be on “administrative leave.”

On March 15, 2000, Sharp’s Manager of Medical Staff Services had a telephone

conversation with Dr. Pancoast. Dr. Pancoast sounded very agitated and related that her

son’s condition had deteriorated and he had suffered serious physical injuries. Dr.

Pancoast recognized she was on a medical records suspension and stated she “can’t do

much more if she’s 6 feet under.” The next day the head of Sharp’s Wellbeing

Committee received correspondence from Dr. Pancoast’s psychologist and psychiatrist

which indicated she was “under an undue amount of stress.”

On March 30, 2000, Dr. Pancoast had a telephone conversation with another

hospital employee. The employee described Dr. Pancoast as “crying, angry, verbally

wandering and unconnected.” Dr. Pancoast related all of her personal problems to the

employee and told the employee she had become suicidal and that her mental condition

was “precarious.”

On April 6, 2000, a doctor who temporarily rented office space to Dr. Pancoast

wrote to the chief of staff at Sharp. The doctor stated that because of the havoc Dr.

Pancoast had created at his office, he had asked her to leave. He reported instances of Dr.

Pancoast “slurring her words” and calling “many consecutive days to cancel all of her

office patients.” He also asked that his correspondence be kept confidential because Dr.

Pancoast appeared vindictive and he wanted to protect himself, his wife and office staff

from her attacks and telephone calls.

4

On April 19, 2000, her psychiatrist and licensed clinical social worker sent Sharp

another letter advising the hospital that Dr. Pancoast was receiving psychiatric treatment

“for depressive symptoms and stress.”

D. Sharp’s Response

Following Sharp’s suspension of Dr. Pancoast for failure to complete medical

records in February 2000, Sharp’s Wellbeing Committee made several unsuccessful

attempts to contact Dr. Pancoast.

On March 10, 2000, the Internal Medicine Supervisory Committee received two

Quality Variance Reports concerning patients of Dr. Pancoast. The committee asked her

to attend its next meeting because this appeared to be a “repetitive issue.”

On April 4, 2000, Sharp’s Medical Executive Committee advised Dr. Pancoast she

needed to contact the chairman of the Wellbeing Committee and follow all reasonable

recommendations it made.

On or about May 16, 2000, Dr. Pancoast met with the chairman of the Wellbeing

Committee. Dr. Pancoast stated she had started seeing patients in her office and hoped to

get her hospital privileges back as soon as possible. Dr. Pancoast also stated the

hospital’s concerns about her were not “of major significance” and the chief of staff had a

vendetta against her.

Significantly, Dr. Pancoast stated she had stopped seeing the psychiatrist and the

licensed clinical social worker who had been treating her. She explained that she no

longer could afford the health care insurance which provided the mental health services

she had been using.

5

On May 26, 2000, the Sharp employee responsible for the hospital’s records

advised the hospital’s Manager of Medical Staff that Dr. Pancoast had completed 32 of

the 34 medical charts which had caused her suspension but that the remaining two charts

were still missing.

On May 30, 2000, Sharp was contacted by a patient Dr. Pancoast had recently

treated. The patient had been referred to Dr. Pancoast by a Sharp emergency room

physician. The patient reported that after giving the patient conflicting interpretations of

laboratory results, Dr. Pancoast cancelled appointments on two successive days and

failed repeatedly to provide the patient with a copy of the laboratory results which the

patient wanted reviewed by a urologist. The patient also complained because Dr.

Pancoast related to her intimate details of the treatment Dr. Pancoast’s son was receiving

and the abuse he had suffered. Finally, the patient reported Dr. Pancoast had asked her to

write Sharp a letter minimizing the difficulty the patient had with Dr. Pancoast. The

patient, who is a nurse, thought Dr. Pancoast was unstable.

On June 5, 2000, the Wellbeing Committee directed Dr. Pancoast to see a

psychiatrist it designated on June 21, 2000.

On June 6, 2000, the Medical Executive Committee discussed Dr. Pancoast’s

ability to practice at Sharp Hospital. The committee authorized the chief of staff to

summarily suspend Dr. Pancoast’s clinical privileges if the medical records suspension

was lifted before she had been cleared to resume practice by the psychiatrist designated

by the Wellbeing Committee.

6

On June 19, 2000, Dr. Pancoast returned to the hospital with the two missing

charts and completed her work in them.

On June 20, 2000, Dr. Pancoast asked the chief of staff to be taken off the medical

records suspension. The chief of staff then advised Dr. Pancoast that he was summarily

suspending her privileges based on her behavior and demeanor over the previous months.

In a June 21, 2000, letter to Dr. Pancoast, the chief of staff stated: “You called me

yesterday afternoon at approximately 3 p.m. to advise that you had completed all

delinquent medical records. Accordingly you requested that your medical records

suspension be lifted. Based on the authority given to me by the Medical Executive

Committee, I advised you that your clinical privileges were summarily suspended,

effective immediately.”

The chief of staff’s letter further stated: “The summary suspension is based on

your actions and demeanor over the past several months, which cause the Medical

Executive Committee to believe immediate action is required to protect the well being of

prospective patients at Sharp Memorial Hospital.”

The chief of staff’s letter advised Dr. Pancoast the Medical Executive Committee

would conduct a further meeting on the suspension and she would be required to attend

the meeting. The meeting was held on June 29, 2000, and the Medical Executive

Committee decided to continue the summary suspension. At the meeting, the chief of

staff advised Dr. Pancoast that if she promptly resigned from the medical staff, Sharp

would not be required to report her suspension to the Medical Board of California or the

National Practitioner Data Bank.

7

On June 30, 2000, Dr. Pancoast advised the chief of staff she had decided to

resign. The chief of staff advised her a written letter of resignation would be required.

On July 5, 2000, Dr. Pancoast delivered a letter to the hospital which stated: “I plan to

stop hospital coverage and plan to do clinic work with set hours.” The chief of staff

found this was not a formal resignation from the staff and advised Dr. Pancoast he was

therefore required to report her suspension to the Medical Board of California and

National Practitioner Data Bank. On July 10, 2000, Dr. Pancoast sent the chief of staff a

second letter in which she thanked him for accepting her resignation.

Notwithstanding Dr. Pancoast’s resignation letter, on August 4, 2000, Sharp

submitted an Adverse Action Report to the National Practitioner Data Bank. The report

indicated Dr. Pancoast had been suspended from Sharp’s attending staff and she had

resigned while under investigation.

E. Dr. Pancoast’s Attempts to Obtain Reinstatement

On September 21, 2000, Dr. Pancoast’s attorney wrote to the hospital and asked

that arrangements be made to reinstate her staff privileges. The hospital responded that

because Dr. Pancoast had resigned from the staff, she would be required to submit a new

application which would be processed in a timely fashion.

On October 30, 2001, Dr. Pancoast sent the hospital a demand that her privileges

be restored or in the alternative that she be provided a hearing. The hospital rejected her

demand.

8

TRIAL COURT PROCEEDINGS

On December 13, 2002, Dr. Pancoast filed a petition for a writ of mandate against

the medical staff, Sharp and the chief of staff, Kenneth Roth. She alleged the hospital

had acted improperly in suspending her privileges and in failing to provide her with a

post-suspension hearing. She prayed for a writ which directed the hospital to either

restore her privileges or provide her with a hearing. In addition she asked for damages to

compensate her for the income she lost following the suspension and for the stigma the

hospital’s report of her suspension had caused her.

The trial court granted Dr. Pancoast’s writ of mandate. Relying on its

interpretation of Business and Professions Code section 809.5, the trial court found the

hospital had no power to suspend Dr. Pancoast merely because she posed a threat to

prospective patients, as opposed to actual patients. In its order, the trial court stated: “[I]t

is hard to imagine how [Dr. Pancoast] could pose an ‘imminent’ threat to anyone if she

had no patients at the hospital and could admit none due to her medical records

suspension.” The hospital filed a motion to reconsider which the trial court denied.

Sharp then filed a petition for a writ of mandate and we issued an order to show

cause.

DISCUSSION

I

Extraordinary relief is appropriate here because, in light of Dr. Pancoast’s pending

damages claims, Sharp has no right of appeal from the order granting Dr. Pancoast’s

petition and because the issue presented is one of public safety affecting not only Sharp’s

9

power to suspend physicians, but the power of other hospitals in the state to act in similar

situations. (See City of Glendale v. Superior Court (1993) 18 Cal.App.4th 1768, 1776.)

II

Business and Professions Code1 section 809.5, subdivision (a), provides:

“Notwithstanding Sections 809 to 809.4, inclusive, a peer review body may immediately

suspend or restrict clinical privileges of a licentiate where the failure to take that action

may result in an imminent danger to the health of any individual, provided that the

licentiate is subsequently provided with the notice and hearing rights set forth in Sections

809.1 to 809.4, inclusive, or, with respect to organizations specified in Section 809.7,

with the rights specified in that section.” (Italics added.)

In addition to the provisions of section 809.5, Sharp’s bylaws provide: “Whenever

a member’s conduct appears to require that immediate action be taken to protect the life

or well-being of patient(s) or to reduce a substantial and imminent likelihood of

significant impairment of the life, health, or safety of any patient, prospective patient,

other person, the officers of the medical staff, the chief or vice chief of the department in

which the member holds privileges, the medical executive committee, or any member of

the medical executive committee, may summarily restrict or suspend the medical staff

membership . . . .” (Italics added.)

1
All further statutory references are to the Business and Professions Code unless
otherwise indicated.

10

The initial question we must resolve is whether, in permitting summary suspension

where there is likely harm to prospective patients, Sharp’s bylaws go beyond the scope of

the summary suspensions permitted by section 809.5. Dr. Pancoast points out there is

some inconsistency between the statute which requires imminent harm and the bylaws

which permit summary suspension where the potential harm is to a class of unidentified

patients who have not yet even sought treatment.

On further analysis the facial inconsistency disappears. We must begin by

recognizing that the overriding goals of the state-mandated peer review process is

protection of the public and that while important, physicians’ due process rights are

subordinate to the needs of public safety. (See Webman v. Little Co. of Mary Hospital

(1995) 39 Cal.App.4th 592, 600-601; Rhee v. El Camino Hospital District (1988) 201

Cal.App.3d 477, 489; Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 626-

627.) ” ‘[A] hospital which closes its eyes to questionable competence and resolves all

doubts in favor of the doctor does so at the peril of the public’ [citation], thereby

undercutting the goal of the state’s peer review mechanism. [Citation.]” (Webman v.

Little Co. of Mary Hospital, supra, 39 Cal.App.4th at pp. 600-601.) As the court in Rhee

v. El Camino Hospital District, supra, 201 Cal.App.3d at page 489 stated: “We do not

wish to denigrate the importance of due process rights; however, it must be emphasized

that this is not a criminal setting, where the confrontation is between the state and the

person facing sanctions. Here the rights of the patients to rely upon competent medical

treatment are directly affected, and must always be kept in mind. An analogy between a

11

surgeon and an airline pilot is not inapt: a hospital which closes its eyes to questionable

competence and resolves all doubts in favor of the doctor does so at the peril of the

public.”

Read in light of the overriding interest in public safety, section 809.5 protects

prospective as well as identified patients. On any given day, it is self-evident an impaired

physician poses just as much a threat to identified patients as to unidentified ones. The

eventual patient who at the beginning of the day has not yet broken a bone or had a heart

attack is entitled to just as much protection from impaired physicians as are the patients

who have scheduled clinical appointments. In this regard we find the argument of the

California Healthcare Association persuasive: “The Legislature’s manifest intent to

protect the public at large would be vitiated if a peer review body were required to name

specific threatened patients before it could take action to suspend a physician whose

conduct ‘may result in an imminent danger.’ [A] hospital and its medical staff cannot

possibly know all of the specific patients whom a medical staff physician may be seeing

in the hospital in the near future, and may not know any of the patients’ identities at all.

The medical satff and hospital simply cannot be precluded from acting based on who the

victims might be.”

Thus we reject Dr. Pancoast’s argument that in considering harm to prospective

patients Sharp’s bylaws go beyond what is permitted by section 809.5. Application of

section 809.5 does not turn on whether patients are identified or unidentified; application

of the power provided by the statute turns on whether the risk of harm, whether to

identified or prospective patients, is in fact imminent. Because application of Sharp’s

12

bylaws also turns on whether harm is imminent, the bylaws are entirely consistent with

the statute.

III

The next question we are required to consider is whether the Medical Executive

Committee had any basis upon which to conclude Dr. Pancoast represented such an

imminent threat. As Sharp points out, the hospital’s determination of this factual issue is

entitled to deference and it should not be faulted for considering patient safety as its

principal obligation. (See Webman v. Little Co. of Mary Hospital, supra, 39 Cal.App.4th

at pp. 600-601; Rhee v. El Camino Hospital Dist., supra, 201 Cal.App.3d at p. 489;

Miller v. Eisenhower Medical Center, supra, 27 Cal.3d at pp. 626-627.) Given the

interests involved and the presumed expertise of the medical profession, in considering

the summary suspension of staff privileges at a private hospital the trial court was bound

by the substantial evidence standard of review. (Cipriotti v. Board of Directors (1983)

147 Cal.App.3d 144, 155.) Under that standard the trial court was required “to determine

whether the administrative findings are supported ‘in the light of the whole record,’ not

merely that part of the evidence in the record or the interpretation thereof which the trial

court decides to accept as more credible or probable, or which results from the trial

court’s substitution of its preferred resolution of conflicts” in the record. (Id. at pp. 153-

154.)

The record is, as we noted at the outset, unambiguous with respect to Dr.

Pancoast’s mental condition at the time of the suspension. She had been suffering from

severe emotional distress and had engaged in a series of bizarre acts and statements and

13

open hostility towards others. Nowhere in the record or in her briefs does she deny the

incidents occurred or that they were a matter of legitimate concern to the hospital. Thus

the record is undisputed Dr. Pancoast did not have the ability to safely admit patients to

the hospital and safely administer care to them at the time of her suspension. In this

regard her brief in this proceeding is telling and convincing. She states: “In June 2000,

real party in interest Penny Pancoast, M.D., a long time and well-respected member of

the San Diego medical community, was suffering from severe emotional distress as the

result of terrible problems in her personal life. Realizing she was not competent to

practice medicine, she voluntarily ceased admitting patients to Sharp Memorial Hospital

and was working with the Physician Well Being Committee, which was monitoring her

treatment and recovery, to make sure she did not return to practice until she was able.”

Although, in light of her brief, there can be no dispute that as of the time of her

suspension she was not capable of safely admitting patients, there is a dispute about

whether she intended to begin admitting patients as soon as her records suspension was

lifted. Dr. Pancoast contends, and the trial court found, as of the date of her suspension

she had no intention to begin admitting patients. She contends she planned to wait until

the evaluation required by the Wellbeing Committee was complete. Thus she contends

that at the time she was suspended she posed no imminent threat to patients.

However, the only evidence which supports the trial court’s finding that she did

not intend to begin admitting patients are her earlier statements, made following her

records suspension, that she was on “administrative leave.” In contrast to this somewhat

self-serving description of her status, the record contains a great deal of proof Dr.

14

Pancoast did in fact intend to begin admitting patients as soon as she completed the

unfinished patient records. As we have noted, she told the chairman of the Wellbeing

Committee she looked forward to completing the needed records and admitting patients.

Most importantly, on the day after she completed the last records, Dr. Pancoast asked the

chief of staff to lift her records privileges. These circumstances fully support the

conclusion Dr. Pancoast did in fact intend to begin admitting patients as soon as she

completed the unfinished records. More importantly, these circumstances are more than

sufficient to withstand the limited review permitted under the substantial evidence test. It

bears emphasis that the question the trial court was required to determine was not

whether in fact the trial court believed Dr. Pancoast intended to admit patients, but

whether the medical staff acted reasonably in concluding she had such an intent.

(Cipriotti v. Board of Directors, supra, 147 Cal.App.3d at p. 155.) Plainly, on the issue

of Dr. Pancoast’s intentions, this record meets that deferential standard.

We recognize that at the time the suspension was issued Dr. Pancoast was

scheduled to meet with the psychiatrist selected by the Wellbeing Committee. Although

the services and support of the Wellbeing Committee are required by the Joint

Commission on Accredidation for Healthcare Organizations, the public protection which

is the subject of section 809.5 cannot be subordinated to the rehabilitative needs of an

individual physician. (See Rhee v. El Camino Hospital Dist., supra, 201 Cal.App.3d at p.

489.) Thus, Dr. Pancoast’s cooperation with the Wellbeing Committee did not, per se,

prevent the hospital from acting to protect patients under section 809.5.

15

As a factual matter Dr. Pancoast’s cooperation with the Wellbeing Committee did

not in any manner undermine the Medical Executive Committee’s determination Dr.

Pancoast was an imminent threat. On the date Dr. Pancoast was suspended, the

psychiatric evaluation had not been made and the hospital had no basis upon which it

could assume the evaluation would be favorable to Dr. Pancoast or that the evaluation

process would be completed before Dr. Pancoast began admitting patients. In this

context we cannot fault the hospital for resolving all doubt as to Dr. Pancoast’s mental

condition in favor of patient safety. (Rhee v. El Camino Hospital Dist., supra, 201

Cal.App.3d at p. 489.)

We reject Dr. Pancoast’s contention the medical staff could have prevented harm

to patients by simply extending her records suspension rather than suspending her as a

risk to patients. Although continuation of the records suspension may have had less

severe repercussions for Dr. Pancoast, because her records were apparently in order as of

June 20, 2000, and because she in fact asked that the records suspension be lifted, the

hospital could not without incurring liability to her extend the records suspension.

We also reject Dr. Pancoast’s contention that the medical staff should have

considered less drastic limitations on her practice. At the time Dr. Pancoast was

suspended, Sharp had received a serious complaint from one of Dr. Pancoast’s more

recent patients and was aware Dr. Pancoast did not have access to her mental health

providers. Given these circumstances we are not in a position to second-guess the

medical staff’s judgment that suspension rather than some less drastic limitation on Dr.

16

Pancoast’s practice would adequately protect the public. (Rhee v. El Camino Hospital

District, supra, 201 Cal.App.3d at p. 489.)

In short, at the time the suspension was issued, the hospital had information which

showed Dr. Pancoast could not safely admit patients and further showed, if granted

`privileges, she would attempt to do so. Under these circumstances section 809.5

authorized the hospital to prevent her from admitting patients pending a full hearing on

whether her staff privileges should have been terminated.

Because the hospital acted properly under section 809.5 in suspending Dr.

Pancoast’s privileges, the trial court erred in granting her petition. Accordingly, we must

grant Sharp’s petition and direct the trial court to vacate its writ.2

DISPOSITION

Let a writ of mandate issue directing the superior court to vacate its order of

July 2, 2003, and to conduct such other further proceedings as are necessary and

2
Our determination is without prejudice to other claims Dr. Pancoast may wish to
pursue, including inter alia, claims related to post suspension statements made by the
chief of staff, her reliance on those statements or the validity of her post-suspension
resignation from the staff.

17

consistent with the views we have expressed. Petitioners to recover their costs in this

writ proceeding.

CERTIFIED FOR PUBLICATION

WE CONCUR:

HUFFMAN, J.

NARES, J.

BENKE, Acting P. J.

18

Meija v. Cmty. Hosp. of San Bernardino,

Meija v. Cmty. Hosp. of San Bernardino,
No. E028795 (Cal. Ct. App. July 12, 2002)

The
California Court of Appeals reversed a lower court’s judgment of nonsuit in
favor of a hospital that had been sued under the theory of ostensible agency
for the negligence of a radiologist who misdiagnosed the plaintiff’s x-ray and
the physician who saw her in the hospital’s emergency department. The appeals
court said: "[U]nless the evidence conclusively indicates that the patient
should have known that the treating physician was not the hospital’s agent,
the issue of ostensible agency must be left to the trier of fact."

Medical Staff of Sharp Mem’l Hosp. v. Super. Ct. of San Diego County

Medical Staff – Summary Suspension

Medical Staff of Sharp Mem’l Hosp. v. Super. Ct.
of San Diego County, No. D043178 (Cal. Ct. App. July 30, 2004)

The California Court of Appeals found that a hospital acted properly when
it suspended the privileges of a physician whose mental health was deteriorating.
More importantly, the court held that the overriding goal of the peer review
process is protection of the public. Therefore, although physicians’ due process
rights are important, they are subordinate to the needs of public safety.

The physician in this case suffered several traumatic events during the few
years preceding her suspension, including the dissolution of her marriage,
severe mental illness of her son, and personal bankruptcy. The extreme emotional
distress caused her to lapse into depression, which eventually affected her
personal and professional life. The hospital received several complaints about
the physician’s mental stability and professional performance.

Although the physician was cooperating with the hospital and medical staff’s
Wellbeing Committee, it was determined that an immediate suspension of the
physician’s privileges was necessary to protect patients. The physician eventually
sued, arguing that the hospital should have taken less drastic steps to protect
patients, especially since she was cooperating with her rehabilitation. The
court of appeals disagreed, and held that the court was required to defer to
the hospital’s judgment so long as the Medical Executive Committee had any
basis upon which to conclude that the doctor represented an imminent threat
to patients. Finding ample evidence showing the physician’s instability, the
court held in favor of the hospital.

 

Melfi v. Mount Sinai Hosp. (Full Text)

APR 28 2009

SUPREME COURT, APPELLATE D IV IS ION , F IRST DEPARTMENT,

R i ch a rd T . An d r i a s ,
D av id B . S ax e
John W. Sw e eny , J r .
J am e s M. C a t t e r s on
K a r l a Mo skow i t z ,

J .P .

J J .

478 7 -4788
Ind ex 122974 / 02

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P l a i n t i f f -R e sp o nd e n t ,

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M o un t S in a i Ho sp i t a l , e t a l . ,
D e f end an t s -A pp e l l a n t s ,

New Yo rk C i ty Po l i c e D ep a r tm en t , e t a l . ,
D e f end an t s .
x
– – – – – – – – – – – – – – – – – – – – – – –
M t . S in a i Ho sp i t a l and New Y o rk C i t y H e a l th and Ho s p i t a l s
Co rpo r a t ion ap p e a l
f rom an o rd e r o f th e
Sup r em e Cou r t , New Y o rk Coun ty ( Jo a n B .
C a r e y , J . ) , en t e r ed May 5 , 2008 , wh i ch ,
to
th e e x t en t a pp e a l ed f r om a s l im i t ed by th e
b r i e f s , d en i e d th e mo t ion by d e f end an t H e a l th
and Ho sp i t a l s C o r po r a t i on to d i sm i s s th e
c au s e o f a c t ion fo r lo s s o f s epu l ch e r and th e
mo t ion by d e f e nd an t M ou n t S in a i to s t r ik e
p l a i n t i f f ‘ s d em and s fo r pun i t iv e d am ag e s
r e l a t e d to th e c l a im s o f m a lp r a c t i c e and lo s s
o f s epu l c h e r , and g r an t ed p l a in t i f f ‘ s mo t i on

to am end th e comp l a in t to p l e ad a c au s e o f
a c t io n fo r g ro s s n eg l ig en c e and r e l a t e d
pun i t iv e d am ag e s ag a in s t Moun t S in a i in
conn e c t ion w i t h th e m a lp r a c t i c e c l a im .

A a ron son , R app apo r t , F e in s t e in & D eu t s ch ,
LLP , New Yo rk (S t e v en C . M and e l l o f coun s e l ) ,
fo r Mo un t S in a i Ho sp i t a l , ap p e l l an t .

M i ch a e l A . C a r do zo , Co rp o r a t io n C ou n s e l , New
Y o r k (V i c to r i a S c a l z o and S t e ph en J . M cG r a th
o f co u n s e l ) ,
fo r New Y o rk C i ty H e a l th and
Ho sp i t a l s Co rpo r a t ion , ap p e l l an t .

T a co p in a , S e i g e l & Tu r ano , P .C . , New Y o rk
(B r i an K ing o f c oun s e l ) ,
fo r r e spond e n t .

2

CATTERSON, J .

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in t e r

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lo s s o f s ep u l ch e r a f t e r h i s b ro th e r ‘ s body w a s s en t to a

c ommun i ty co l l eg e f o r emb a lm ing p r a c t i c e and th en fo r bu r i a l

in a

m a s s g r av e in P o t t e r ‘ s F i e ld .

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in fo rm a t ion in c lud ing M r . M e l f i ‘ s add r e s s , d a t e o f b i r th , and

so c i a l s e c u r i ty numb e r .

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ou t s id e o f th e C i ty . A t
th e 50 -h h e a r ing i n th i s a c t io n , Jo h n
M e l f i t e s t i f i ed th a t a l thou gh h e and h i s b r o t h e r w e r e c l o s e ,
t h e r e w e r e p e r iod s wh en t h e r e w a s no con t a c t b e tw e en th em .
Th e s e
o c cu r r ed w h en L eon a rd M e l f i ch e ck ed h im s e l f in to r eh ab c l in i c s
w i thou t t e l l ing anyon e , o r w h e n h e v i s i t ed w r i t e r f r i e nd s in
C a l i fo rn i a .

3

th e id en t i fy ing in fo rm a t ion and th e con t a c t

in f o rm a t io n fo r Jo ann

T ed e s co . A t r i ag e a s s e s sm en t w a s p e r fo rm ed in th e em e rg en cy ro om

bu t

th e r e co rd do e s no t show th a t any t r e a tm e n t w a s adm in i s t e r ed .

M r . M e l f i w a s n ex t a s s e s s ed b y a t t end ing phy s i c i an Jo h n Jo s eph

B run s , J r . , M .D . , who m ad e a p r e l im i n a r y d i agno s i s o f cong e s t iv e

h e a r t f a i lu r e and a t r i a l f ib r i l l a t ion .

Sub s e qu e n t ly , a t t r i a l , D r . B run s t e s t i f i ed to adm in i s t e r ing

a d r ug to r edu c e th e h e a r t r a t e and con c ed ed t h a t add i t ion a l

t r e a tm en t wou l d ty p i c a l ly b e adm in i s t e r ed in l ig h t o f M r . M e l f i ‘ s

c r i t i c a l symp tom s . How ev e r th e r e co rd d o e s no t r e f l e c t any

add i t ion a l

t r e a tm en t .

Fu r th e r , a l though D r . B ru n s t e s t i f i e d t h a t

M r . M e l f i r e c e iv ed nu r s i ng c a r e , no do c um e n t a t ion w a s g en e r a t e d

to th a t e f f e c t e i th e r .

Th e on ly do cum en t a t ion th a t s how ed any

t r e a tm en t w a s a b i l l i ng sh e e t

ind i c a t ing th a t p u l s e ox im e t ry ,

c a th e t e r p l a c em en t and an e l e c t ro c a rd i og r am w e r e p e r fo rm ed . M r .

M e l f i ‘ s cond i t ion qu i c k ly d e t e r io r a t ed , and , d e sp i t e th e f a c t

th a t h e s top p e d b r e a th ing an d b e c am e un r e spon s iv e ,

th e r e i s

no th ing in th e m ed i c a l r e co rd s to in d i c a t e th a t any l i f e – s a v ing

t r e a tm en t w a s in i t i a t ed .

M r . M e l f i d i ed a t 6 :20 p .m .

th a t ev en ing .

Th e d e a th

c e r t i f i c a t e p r ep a r ed by th e ho sp i t a l

in c lud e d M r . M e l f i ‘ s n am e

a n d a g e , bu t om i t t ed any add i t ion a l

id en t i fy ing in f o rm a t io n su ch

a s h i s a dd r e s s , so c i a l s e cu r i ty numb e r , and Jo ann T ed e s co ‘ s

4

con t a c t

in fo rm a t i o n , wh i ch h ad b e en l i s t e d on th e EMS R e po r t a nd

in th e P a t i en t R eg i s t r a t ion Fo rm . A l though D r . B run s t e s t i f i ed

th a t h e m ad e two phon e c a l l s in an e f fo r t to r e a c h Ms . T e d e s c o ,

th e s e a t t emp t s a r e a l so undo c um e n t ed in th e r e co rd s .

M r . M e l f i ‘ s body r em a in ed in M t . S in a i Ho sp i t a l ‘ s mo rgu e fo r

30 d ay s .

On Nov emb e r 2 1 , 2001 ,

a d e a th c e r t i f i c a t e w a s f i l ed

w i t h th e NYC D ep a r tm e n t o f H e a l th .

Sh o r t ly th e r e a f t e r a bu r i a l

p e rm i t w a s i s su ed , and on Nov emb e r 28 , 2001 , M r . M e l f i ‘ s bo dy w a s

t r a n s f e r r ed to t h e C i ty m o rgu e a t B e l l e vu e Ho sp i t a l .

Th e r e c o r d i s s i l en t a s to any e f fo r t m ad e to id en t i fy o r

l o c a t e th e n ex t o f k in du r ing th e p e r i od th e body w a s a t th e C i ty

mo rgu e . M r . M e l f i ‘ s body w a s s ub s e q u en t l y s en t fo r emb a lm i n g

p r a c t i c e by s tud en t s o f th e N a s s au Coun ty Commun i ty Co l l eg e ‘ s

Mo r tu a ry S c i en c e D ep a r tm en t b e fo r e i t w a s f in a l ly t r an s f e r r ed on

D e c emb e r 20 , 2001 to th e C i t y c em e t e ry on H a r t I s l and a l so kn ow n

a s “Po t t e r ‘ s F i e ld . “2 M r . M e l f i ‘ s body w a s in t e r r e d in a m a s s

2The New Yo rk C i ty D e p a r tm en t o f Co r r e c t ion s m a in t a in s and
o p e r a t e s th e C i ty C em e t e ry , c a l l ed Po t t e r ‘ s F i e ld , on H a r t
I s l and ,
t h e B ro n x ,
in Long I s l and Sound . Bu r i a l s a r e d o n e w i th
inm a t e l abo r . H a r t I s l and w a s pu r ch a s ed by th e C i t y in 1868 an d
a y e a r l a t e r w a s e s t ab l i sh ed a s th e C i ty ‘ s pub l i c c em e t e ry fo r
th e bu r i a l o f tho s e p e r son s who d i e d i nd i g en t o r who s e bod i e s
w en t un c l a im ed . H a r t I s l and b eg an a s a p r i son c amp fo r
con f ed e r a t e s o ld i e r s and w a s su b s eq u en t l y hom e to a ch a r i ty
ho sp i t a l fo r wom en , an in s an e a sy lum ,
r e fo rm a to ry , and a j a i l fo r
p r i son e r s who w o r k ed o n th e Po t t e r ‘ s F i e l d bu r i a l d e t a i l . Du r ing
Wo r ld W a r I I ,
th e N a v y u s ed th e i s l and fo r d i s c ip l in a ry b a r r a ck s .
inm a t e s o n H a r t I s l and app e a l e d to th e w a r d en and
In th e 1940 s ,

5

g r av e w i th 1 50 u n c l a im ed bod i e s .

Two mon th s a f t e r M r . M e l f i ‘ s bu r i a l , on o r abou t F eb ru a ry 2 ,

20 02 , h i s n i e c e , Dawn Ko s i l l a ,

a New Yo rk S t a t e T roop e r , w a s

co n t a c t ed by t h e m an ag e r o f th e N a r r a g a n s e t t Ho t e l who in fo rm ed

h e r o f h e r un c l e ‘ s d e a th . Ms . Ko s i l l a , who h ad v i s i t ed h e r un c l e

app rox im a t e l y a w e ek b e fo r e h i s d e a th , no t i f i ed h e r f a t h e r ,

t h e

d e c ed e n t ‘ s b ro th e r , John M e l f i .

Th e f am i ly th en co n t a c t ed Ms .

s co who adv i s ed th em th a t s h e h ad no t b e en in fo rm ed ab ou t

L eo n a rd M e l f i ‘ s d e a th .

Jo hn M e l f i

imm ed i a t e ly s t a r t ed m ak ing inqu i r i e s a t M t . S i n a i

Ho sp i t a l and th e C i ty m o r gu e in an e f fo r t to l o c a t e h i s b ro th e r ‘ s

b ody . A f t e r s e v e r a l un su c c e s s fu l en coun t e r s w i th emp loy e e s o f

th e ho sp i t a l and th e m o r gu e , h e en l i s t ed th e a s s i s t an c e o f th e

l o c a l m ed i a and s ho r t ly t h e r e a f t e r l

in m id -F eb ru a ry ,

l e a rn ed t h a t

h i s b ro th e r h ad b e en bu r i ed in Po t t e r ‘ s F i e ld .

J oh n M e l f i a r r ang ed fo r th e exhum a t ion o f th e body on Ap r i l

o f f e r ed to bu i ld a monum en t
to th e unb e f r i end ed d e ad . Th e 30 – foo t
h igh m em o r i a l w a s comp l e t ed in 1948 . On on e s id e i s eng r av ed a
s imp l e c rOSS i on th e o th e r th e wo rd “P e a c e . “
Th e l ik e ly o r ig in
o f th e t e rm “Po t t e r ‘ s F i e ld ” a s m e a n ing a pub l i c bu r i a l p l a c e fo r
po o r a nd u nk now n p e r s on s i s a p a s s ag e f rom th e Go sp e l o f S t .
“Th en Jud a s , wh i ch h ad b e t r ay ed H im ,
M a t th ew (27 : 3 -8 ) :
s aw th a t
h e w a s cond emn ed ,
r ep en t ed h im s e l f , and b rou gh t ag a i n th e th i r ty
p i e c e s o f s i lv e r to th e ch i e f p r i e s t s [ . . . J and th e y took
coun s e l l and bough t w i th th em th e p o t t e r s f i e ld to bu ry s t r ang e r s
in . “
h t tp : / /www . co r r e c t i onh i s t o ry .o rg / h tm l / ch ro n i c l /n y cd o c /h tm l /h a r t .h
tm l .

6

10 1 2 00 2 and h ad i t t r an s po r t ed to a M anh a t t an f un e r a l hom e wh e r e

h e id en t i f i e d h i s b r o t h e r l s n ak ed co rp s e wh i ch w a s v i s ib ly

s c a r r ed w i th in c i s ion s and ho l e s m ad e by t h e s tud en t s who h ad

p r a c t i c ed on h im .

L eo n a rd M e l f i w a s f in a l ly l a id to r e s t in th e

f am i ly b u r i a l p lo t

i n h i s hom e tow n o f B ingh am ton I New Yo rk on

A p r i l 18 1 2002 .

On o r abo u t May 2 , 2002 , John M e l f i s e rv ed a no t i c e o f c l a im

on th e d e f end an t s .

no t i c e o f c l a im s t a t e d in th e en t ry

r equ i r ed fo r ” th e t im e wh en l

th e p l a c e wh e r e , and th e m a nn e r In

wh i ch th e c l a im a ro s e , ” th a t du e to M t . S in a i / s n eg l i g e n c e and

m e d i c a l m a l p r a c t i c e l M r . M e l f i ex p i r ed a t

th e ho sp i t a l o n O c to b e r

28 , 20 01 .

Th e no t i c e o f c l a im fu r th e r s t a t ed th a t “no

n o t i f i c a t i on w a s m ad e to anyon e r eg a rd ing M r . M e l f i / s d e a th , ” an d

th a t p r i o r to h i s bu r i a l on D e c emb e r 2 0 1 200 1 1 “h i s body w a s

i l l eg a l ly emb a lmm en t

( s i c ) w i th ou t

th e p e rm i s s ion o f th e n e x t o f

k in . “

On O c tob e r 21 1 2002 1

th e p l a in t i f f comm en c ed th i s a c t i on

a g a in s t

th e C i ty d e f end an t s and M t . S in a i a s s e r t ing c au s e s o f

a c t ion fo r m ed i c a l m a lp r a c t i c e l w rong fu l d e a th l

lo s s o f

s epu l ch e r l f r a u du l en t con c e a lm en t and pun i t i v e d am ag e s .

Fo l l ow ing d i s c o v e rY I d e f end an t New Y o rk C i ty H e a l th and H o sp i t a l s

Co rpo r a t ion l su ed h e r e a s B e l l ev u e Ho s p i t a l and H e a l th and

Ho s p i t a l s Co rp o r a t ion ( h e r e in a f t e r r e f e r r ed to a s “HHC”) mov ed

7

fo r d i sm i s s a l o f th e a c t io n a s t im e -b a r r ed b y th e 9 0 – d ay

r eq u i r em en t fo r s e rv i c e o f n o t i c e o f c l a im .

Th e d e f e n d an t M t .

S in a i Ho sp i t a l mov ed to d i sm i s s th e c l a im s fo r pun i t i v e d am ag e s

and f r audu l en t co n c e a lm en t .

T h e p l a in t i f f mov ed fo r l e av e to

am end h i s comp l a in t to add c l a im s fo r

i g e n t and in t en t ion a l

i n f l i c t ion o f emo t ion a l d i s t r e s s .

By d e c i s ion and o r d e r d a t e d Ap r i l 30 , 2008 ,

th e cou r t d en i e d

HHC ‘ s mo t ion fo r d i sm i s s a l .

Th e cou r t r e a son ed th a t , ” [ a ) s t h e

d e f end an t ‘ s condu c t i s no t

imm ed i a t e ly app a r en t

to a p l a in t i f f ,

th e t im e in wh i c h to f i l e a no t i c e o f c l a im in su ch a c a s e shou ld

b e g i n to ru n on ly wh e n th e w rongdo ing h a s b e en d i s cov e r ed ,

su ch

a s in a m ed i c a l m a lp r a c t i c e c a s e in wh i ch a fo r e ign ob j e c t i s

d i s cov e r ed in th e body o f a p a t i en t . I I

Th e cou r t a l so d en i ed M t .

S in a i ‘ s mo t ion to d i sm i s s th e pun i t i v e d am ag e s c l a im ; i t

d i sm i s s ed t h e p l a i n t i f f ‘ s f r audu l en t con c e a lm en t c l a im .

Th e p l a i n t i f f ‘ s mo t ion fo r l e av e to am end w a s g r an t ed to th e

ex t en t o f p e rm i t t ing h im to a s s e r t a c au s e o f a c t ion fo r g ro s s

n eg l ig en c e in t h e c l a im ag a in s t M t . S in a i and to s e e k pun i t iv e

d am ag e s in c o n n e c t i o n th e r ew i t h ;

l e av e to am e nd w a s no t g r an t ed

to a dd c l a im s o f n eg l ig en t and in t en t ion a l in f l i c t ion o f

emo t ion a l d i s t r e s s a s th e s e w e r e d e t e rm in ed by th e cou r t to b e

dup l i c a t iv e o f th e lo s s o f s e pu l ch e r c l a im . A l l c l a im s ag a in s t

th e New Y o r k C i t y Po l i c e D ep a r tm en t , D ep a r tm en t o f Co r r e c t i on s

8

a nd D e p a r tm en t o f H e a l th w e r e d i sm i s s ed a s th e c ou r t d e t e rm in ed

t h a t th ey h ad no du ty to id en t i fy M r . M e l f i o r lo c a t e h i s n e x t o f

k in .

Fo r th e r e a son s s e t f o r t h b e low , we m od i f y and d i sm i s s th e

c l a im fo r pun i t iv e d am ag e s on t h e lo s s o f s e pu l ch e r c au s e o f

a c t ion a g a i n s t M t . S in a i , an d a f f i rm Su p r em e Cou r t ‘ s

d e t e rm in a t ion to d eny d i sm i s s a l o f t h e a c t ion ag a in s t HHC on t h e

g ro und s th a t

t h e no t i c e o f c l a im fo r lo s s o f s ep u l ch e r w a s

un t im e ly f i l ed .

I t i s w e l l e s t ab l i sh ed th a t th e commo n – l aw r igh t o f

s epu l c h e r g iv e s t h e n ex t o f k in th e a b s o lu t e r igh t to th e

imm ed i a t e po s s e s s ion o f a d e c e d e n t ‘ s body fo r p r e s e rv a t io n and

bu r i a l , and th a t d am ag e s w i l l b e aw a r d ed ag a in s t any p e r son who

un l aw f u l ly in t e r f e r e s w i th th a t r igh t o r imp rop e r ly d e a l s w i th

th e d e c ed en t ‘ s body . D a r c y v . P r e s b y t e r i an Ho sp .

in C i ty o f N .Y . ,

202 N .Y . 259 , 95 N .E . 695 (1911 ) i E s t a t e o f S ch e u e r v . C i ty o f

New Yo r k , 10 A .D .3d 272 , 274 -2 75 , 780 N .Y .S .2d 597 r 6 00 (1 s t

D ep t . 2004 ) r

d en i ed r

6 N .Y .3d 7 0 8 , 8 1 3 N .Y .S .2d 4 4 r 846

N .E . 2d 475 (2006 ) i B o o th v . Hu f f r 273 A .D . 2d 576 r 708 N .Y .S .2d

757 (3 rd D ep t . 2 0 0 0 ) ; Lo t t v . S t a t e o f New Yo rk r 3 2 M i s c .2d 296 ,

29 7 , 2 55 N .Y .S . 2 d 434 , 436 (C t .C l . 1962 ) .

A c t ion s ag a in s t HHC a r e gov e r n ed by M cK inn ey ‘ s

Un con so l id a t ed L aw s o f NY § 740 1 (2 ) wh i ch ,

i n r e l ev an t p a r t ,

9

p rov id e s th a t su ch a c t io n m ay no t b e comm en c ed “un l e s s a no t i c e

o f in t en t ion to comm en c e su ch a c t ion and o f th e t im e wh en and t h e

p l a c e wh e r e th e to r t o c c u r r ed and t h e in ju r i e s o r d am ag e , w e r e

su s t a in ed [ . . . J sh a l l h av e b e en f i l ed w i th a d i r e c to r o r o f f i c e r

o f th e co r po r a t i on w i th i n n i n e ty d ay s a f t e r su ch c a u s e o f a c t ion

sh a l l h av e a c c ru ed . “

HHC a r gu e s th a t

t h e mo t ion cou r t e r r ed b e c au s e th e

p l a in t i f f ‘ s no t i c e w a s un t im e ly .

HHC a s s e r t s th a t t h e c au s e o f

a c t ion a c c ru ed on D e c emb e r 20 , 2001 ,

th e d ay L e on a rd M e l f i ‘ s body

w a s s en t

to th e Mo r tu a r y S c i en c e D ep a r tm en t o f N a s s au Comm un i ty

C o l l eg e , and thu s th e d ay o f th e a l l eg ed to r t iou s in t e r f e r en c e

w i th th e p l a i n t i f f ‘ s r ig h t

to imm ed i a t e po s s e s s ion o f th e body .

We r e j e c t HHC ‘ s a rg um en t on th e g round s th a t i t f a i l s to

r e cogn i z e t h e e s s en t i a l n a tu r e o f th e r i gh t o f s epu l c h e r ,

a

un iqu e c au s e o f a c t ion amo ng th e to r t s r e cogn i z ed a t common l aw .

Fo r thou s and s o f y e a r s ,

th e r igh t o f s e pu l ch e r h a s

en com p a s s ed a so l e ly emo t io n a l

in ju ry ,

a con c ep t th a t ,

in

g en e r a l , d i d no t g a in cu r r en cy in New Yo rk un t i l th e l a t e 19 50 s .

Du r ing i t s evo lu t ion in th e common l aw ,

t h e r e fo r e , c l a im s fo r th e

lo s s o f s epu l c h e r h av e comp e l l ed cou r t s to s t rugg l e w i th th e

l eg a l con c e p t s and th e o r i e s und e rp i nn ing th e com p e n s a b l e w rong .

A t th i s po in t ,

th e cou r t s h av e r e cogn i z ed th a t th e r igh t o f

s epu l c h e r i s l e s s a qu a s i -p rop e r ty r i gh t and mo r e th e l eg a l r ig h t

1 0

o f th e s u rv iv ing n ex t o f k in to f ind ” so l a c e and com fo r t ” in th e

r i tu a l o f bu r i a l . Con s equ en t ly , we f ind th a t a c au s e o f a c t ion

do e s no t a c c ru e un t i l

in t e r f e r en c e w i th th e r igh t d i r e c t l y

imp a c t s on t h e ” so l a c e and com f o r t ” o f th e n e x t o f k in ,

th a t i s ,

un t i l

in t e r f e r en c e c au s e s m e n t a l an g u i sh fo r th e n ex t o f

n .

Fu r th e r , b e c au s e th e in ju ry i s em o t ion a l o r m en t a l , i t i s

ax iom a t i c th a t a p l a in t i f f m u s t b e aw a r e o f t h e in t

e r en c e

g iv ing

s e to h i s /h e r d i s t r e s s b e

h e / s h e c an a c tu a l

exp e r i en c e d i s t r e s s .

Th e r igh t o f s epu l c h e r , evok ing th e my s t e ry and so r row o f

d e a t h an d t h e hop e f o r an a f t e r l i f e , h a s b e en r i tu a l i z ed s in c e

th e e a r l i e s t p r e -Ch r i s t i an c iv i l i z a t ion s .

F r om th e Egy p t i an

mumm i f i c a t io n p ro c e s s to th e Roman c iv i l l aw ‘ s impo s i t ion o f a

du ty o f bu r i a l , v i r t u a l ly ev e ry f a i th and so c i e ty h a s exh ib i t ed a

r ev e r en c e fo r t h e d e ad .

C em e t e ry , 10 R . I . 227 , 235 -36 (1872 ) . Num e rou s B ib l i c a l

r e f e r en c e s to b u r i a l sh ap ed th e C h r i s t i an b e l i e f th a t p rop e r

bu r i a l in co n s e c r a t ed g round w a s e s s en t i a l to r e su r r e c t i on . S e e ,

~, G en e s i s 50 :26 (d e s c r ib ing Jo s ep h ‘ s bu r i a l ) i D e u t e ronom y

3 4 : 6 (d e s c r i b i ng Mo s e s ‘ bu r i a l ) .

Mo s c h io n ,

a G r e e k po e t

f r om th e th i r d c en tu ry B .C . , op in ed

th a t m ank ind b eg an to bu ry th e d e ad to r emov e a l l t r a c e s o f a

f o rm e r s a v a g e ex i s t en c e o r th e c ann ib a l i sm o f th e T i t an s :

1 1

”Th e e a r t h , on c e b a r r e n , b eg a n to b e p lough ed by yo k ed
ox e n ,
t ow e r in g c i t i e s a ro s e , m e n bu i l t sh e l t e r i n g h om e s
and tu rn ed th e i r l iv e s f r om s av ag e w a y s to c i v i l i z ed .
F rom th i s t im e th ey m ad e i t a l aw to bu ry th e d e ad o r
g iv e unbu r i ed bod i e s th e i r po r t ion o f du s t ,
l e a v i ng no
v i s ib l e r em ind e r o f th e i r fo rm e r imp e r i ou s f e a s t s . “
W .K .C . Gu t h r i e , T h e Soph i s t s , a t 82
[C am b r i dg e Un i v .
P r e s s 19 71 ] , W .B . Ty r r e l l and F .S . B r own , A th en i an
My t h s and In s t i tu t io n s , a t 81 ,
[Ox fo rd U n iv . P r e s s
19 91 ] .

In th e G r e e k t r a g edy An t igon e , Sopho c l e s a s c r ib ed th e r igh t

to bu r y th e d e ad a s g iv en by t h e god s . C r eon , who a s c end ed t o

th e t h ron e o f Th eb e s a f t e r O ed ipu s w a s exp e l l ed fo r k i l l ing h i s

f a th e r and m a r ry ing h i s mo th e r , d e c r e e d th a t Po lyn i c e s ,

son o f

th e i n c e s tuou s un io n b e tw e en O ed ipu s and Jo c a s t a , w a s no t

to b e

bu r i ed bu t r a th e r r em a in abov e th e g round to ro t .

Th e b l ind

p roph e t T e i r e s i a s r a i l e d ag a in s t C r eon ‘ s d e c i s io n :

“Know ,
th en , and k now i t w e l l ,
th a t th ou s h a l t s e e no t
m any w i nd ing c i r cu i t s o f th e su n , b e fo r e th ou g iv ‘ s t a
q u i t t a n c e fo r th e d e ad ,
a co rp s e b y th e b ego t t en ; fo r
th a t
tho u h a s t
t r amp l ed to th e g round w h a t s tood on
h igh , and fou l ly p l a c ed w i th in a ch a rn e l -hou s e a l iv ing
sou l . A nd now thou k e ep ‘ s t f rom th em ,
t h e God s b e low ,
th e co rp s e o f on e un b l e s t , unw ep t , unh a l l ow ed . ” H a rv a rd
C l a s s i c s Vo l . V I I I , P a r t 6 , L in e s 1223 – 1231 [P .F .
Co l l i e r & Son , N .Y . ] .

Hugo G r o t i u s ,

th e g r e a t ju r i s t o f th e 17 th c en tu ry Du t ch

R e pub l i c ,

in a comm en t a ry abou t

th e r igh t o f s epu l c h e r , expound ed

on th e an c i e n t sou r c e s :

” I so c r a t e s t r e a t ing o f th e w a r o f T h e s eu s ag a in s t C r eon
sp e a k s thu s :

“Who do e s no t know , who h a s no t

l e a rn ed , ev en i n

1 2

th e D i on y s i a c f e s t iv a l s f rom th e w r i t e r s o f t r ag ed i e s ,
wh a t ev i l s b e f e l l A d r a s tu s b e f o r e Th eb e s , wh en , w i sh i ng
to r e i n s t a t e th e son o f O ed i pu s , h i s s on – in – l aw , h e
lo s t th e mo s t o f h i s A rg iv e t roop s and s aw th e l e a d e r s
th em s e lv e s ly ing s l a i n i wh e n h e h im s e l f , d i sg r a c e fu l ly
su r v i v i ng , cou ld no t ob t a in a t ru c e to bu ry th e d e ad ,
to A t h en s , wh i ch T h e s eu s th en
h e c am e a s a su pp l i an t
w a s ru l in g , and b e sough t T h e s eu s no t
to cou n t i t a
t r iv i a l m a t t e r th a t su ch men l ay u n b u r i e d , and no t
to
a l low th e co n t emp tuou s d i s r eg a r d o f th e an c i en t cu s tom
and an c e s t r a l r i gh t , wh i ch a l l m en h av e in common , no t
a s i f e s t ab l i sh ed b y m an , bu t o rd e r ed by a d i v in e
pow e r ; and Th e s eu s , wh en h e h e a rd th i s , w i thou t d e l ay
s en t an emb a s sy to Th eb e s .

“L a t e r th e s am e au tho r c en su r e d th e Th eb an s
b e c au s e t h ey h ad pu t
t h e d e c r e e s o f th e i r own s t a t e
abov e t h e d iv in e l aw s . He m e n t i o n s th e s am e s to ry a l s o
in th e P r a i s e o f H e l en ,
e l s ewh e r e ,
in th e P a n egy r i c ,
and in t h e P l a t a i c O r a t i on . H e rodo tu s ,
too , m en t ion s i t
in h i s n in th book , D iodo ru s S i cu lu s in h i s H i s to r i e s ,
Book IV , X en ophon in h i s G r e ek H i s to ry , B ook V I , and
Ly s i a s in th e o r a t ion in ho no r o f th e dead i f i n a l ly ,
A r i s t id e s h a s th e s t o r y in h i s P anA th e n i an O r a t io n , an d
h e s ay s th a t th i s w a r w a s und e r t ak en on b e h a l f o f t h e
common n a tu r e o f m en . n On th e Law o f W a r and P e a c e ,
Book 2 , Ch . 19 [162 5 ] .

Th e an c i en t con c ep t th a t ev e ry p e r son i s en t i t l ed to a

p rop e r bu r i a l con t i nu ed th ro ugh th e evo lu t ion o f Eng l i sh common –

l aw an d p rov id e s th e o r i g in s o f Am e r i c a n ju r i sp rud en c e con c e r n i ng

th e r igh t o f s epu l c h e r . 3

In 17 th c en tu ry Eng l and th e b u r i a l o f

b od i e s w a s p e r fo rm ed p r im a r i ly by chu r ch e s wh i ch h ad a du ty to

3 R i c h a rd Bu rn , an e a r ly Eng l i s h au tho r on th e top i c o f
e c c l e s i a s t i c a l l aw , w ro t e o f th e r igh t o f ev e ry p a r i sh ion e r to a
Ch r i s t i an bu r i a l
He fu r th e r
in th e chu r chy a rd o f h i s p a r i sh .
ex p l a in ed th a t th i s r igh t to bu r i a l c anno t b e d en i ed a s a r e su l t
o f d eb t , c l e a r ly in d i c a t in g th e so c i e t a l con c e r n w i th t im e ly
bu r i a l . Bu rn , E c c l e s i a s t i c a l Law Vo l . 1 a t 258 -58 (7 th e d . 1809 ) .

1 3

In th a t c a s e ,

th e d e f end an t a rgu ed th a t th e p l a i n t i f f w idow

h a d no l eg a l

in t e r e s t in o r r igh t

to th e body o f h e r d e c e a s ed

h u sb an d .

Th e d e f end an t a s s e r t e d t h a t

th e m en t a l s u f f e r ing and

n e rvou s s h o ck b e c a u s e o f th e b ody ‘ s mu t i l a t ion and d i s s e c t ion

w e r e no t a c t ion ab l e b e c au s e th ey w e r e no t d ep end en t upon a c tu a l

in ju ry to p e r son o r p rop e r ty s in c e t h e body w a s no t p rop e r ty .

Th e cou r t ,

r e j e c t e d t h e ub iqu i tou s “nu l l iu s in bon i s “

ph r a s e , s t a t ing th a t i t m ad e s en s e on ly in a p e r iod in h i s to ry

wh en s ep u1 . tu r e and cu s tody o f th e body r em a in s w e r e w i th in th e

ex c lu s iv e j u r i s d i c t i o n o f th e ch u r ch and e c c l e s i a s t i c a l c ou r t s .

Id . a t 3 10 .

In s t e ad ,

th e cou r t h e l d th a t

” t h e r igh t

to

po s s e s s ion o f a d e a d body fo r th e pu rpo s e s o f d e c en t bu r i a l

b e lo ng s to th o s e mo s t

in t im a t e ly and c lo s e l y c onn e c t e d w i th th e

d e c e a s ed by dom e s t i c t i e s . ” Id . a t 309 . A s a co n s eq u e n c e ,

th e

cou r t ob s e rv ed , ” th e m e r e f a c t

t h a t a p e r s on h a s ex c lu s iv e r igh t s

ov e r a body fo r t h e pu rpo s e s o f b u r i a l l e ad s n e c e s s a r i ly to th e

c on c l u s i on th a t i t i s h i s p r op e r t y in th e b ro ad e s t and mo s t

g en e r a l s e n s e o f th a t

t e rm . ” Id . a t 3 1 0 .

S ign i f i c an t ly , how ev e r ,

th e c ou r t sh i ed aw ay f r om ho ld in g

th a t th e com p e n s a b l e w ro ng a ro s e b e c au s e in t e r f e r en c e w i th th e

r i gh t w a s a fo rm o f in ju ry to p rop e r ty .

In s t e ad , i t

ch a r a c t e r i z ed th e “po s s e s so ry ” r igh t a s a l eg a l r igh t w i th

d am a g e s r e cov e r ab l e u p o n th e to r t iou s i nv a s io n o f su ch l eg a l

1 5

r i gh t .

Id .

Th e co u r t

th en co n c lu d ed th a t uwh e r e th e w rong fu l a c t

co n s t i t u t e s an in f r ing em en t on ( s i c )

a l eg a l r i gh t , m en t a l

su f f e r ing m ay b e r e cov e r ed f o r ,

i f i t i s th e d i r e c t , p rox im a t e ,

an d n a tu r a l r e su l t o f th e w rong fu l a c t . H

a t 311 .

F rom t h e r e ,

i t w a s

y a s t r e t ch fo r

cou r t

to ho ld th a t em o t ion a l

i n j u ry to n ex t o f k in c a n b e p r e s um e d in a lo s s o f s ep u l ch e r

a c t ion .

a t 312 ( I t ” i s t oo p l a in to adm i t o f a rgum en t H th a t

“m en t a l su f f e r ing and in j u ry t o th e f e e l ing s wou ld b e o rd in a r i ly

th e n a tu r a l and p rox im a t e r e su l t o f know l edg e t h a t

th e r em a in s o f

a d e c e a s ed hu sb and h ad b e en mu t i l a t ed . H) .

Ov e r

t h e n ex t

f ew d e c ad e s , New Y o rk cou r t s c i t ed f r equ en t ly

to L a r son in r e c og n i z ing th e l eg a l r i gh t o f th e n e x t o f k in to

po s s e s s th e co rp s e fo r p r e s e rv a t ion and bu r i a l .

Th ey app e a r ed

comp e l l ed , how ev e r ,

to r e s t a t e a t ev e ry tu rn , Lo rd Cok e ‘ s

m i s app l i ed d i c tum th a t no p r op e r t y r igh t s ex i s t ed in t h e co rp s e .

S e e D a r cy , 202 N .Y . a t 262 , c i t ing L a r so n v . Ch a s e , w i th

u app rov a lH ( r igh t o f s epu l ch e r c anno t b e m a in t a in ed by an

ex e c u to r o r adm in i s t r a to r o f an e s t a t e b e c au s e i t i s no t a

p rop e r ty r i gh t ) ; H a s s e lb a ch v . M ou n t S in a i H o sp . , 173 App . D iv .

8 9 , 92 , 1 59 N .Y .S . 376 , 37 9 (1 s t D ep t . 1916 )

(Uno p rop e r ty

r i g h t s ,

in th e o rd in a ry c omm e r c i a l s en s e ,

i n a d e ad body , and th e

d am ag e s a l low e d [ . . . J a r e n e v e r aw a rd ed a s a r e comp en s e fo r th e

in ju ry d on e to th e body a s a p i e c e o f p rop e r tyH ) ; F o l e y v .

16

Ph e lp s , 1 A pp . D i v . 55 1 , 554 -555 , 37 N .Y .S . 471 , 47 3 -4 74 (1 s t

D ep t . 1896 ) .

T h e Fo l ey cou r t , wh i l e ho ld ing th a t

th e p l a in t i f f w idow d id

no t h av e an a c t ion b a s e d on a p rop e r ty r igh t fo r t h e un au tho r i z ed

d i s s e c t ion o f h e r hu sb and ‘ s

n ev e r th e l e s s

a “qu a s i

p rop e r t y ” r ig h t .

To r e a ch th i s r e su l t ,

th e cou r t ob s e rv ed th a t

” ‘ th e b u r i a l o f t h e d e ad i s a sub j e c t wh i ch in t e r e s t s t h e

f e e l ing s o f m ank ind to a

e r d eg r e e th an m any m a t t e r s o f

a c t u a l p rop e r ty . ‘ ” Fo l e v , 1

D iv . a t 555 , 37 N .Y .S . a t 474 ,

q u o t in g P i e r c e , 10 R . I . a t 237 -238 .

A “qu a s i p rop e r ty ” r i gh t ,

how ev e r , w a s to b e found in t h e ” du ty impo s ed by th e un iv e r s a l

f e e l ing s o f m a nk ind to b e d i s ch a rg ed by som e o n e tow a rd th e

d e ad . “

F o l e y , 1 App . D iv . a t 555 , 3 7 N .Y .S . a t 47 3 ( in t e rn a l

quo t a t ion m a rk s and c i t a t ion om i t t ed ) .

In C o h en v . Con g r eg a t io n

S h e a r i th I s r a e l

( 85 App . D iv . 65 , 67 , 82 N .Y .S . 918 , 9 19 (2 nd

D ep t . 1903 ) ) ,

th e cou r t ex p l a in ed th a t a c co rd in g th e n ex t o f k i n

a “qu a s i p rop e r tyH r ig h t

in th e d e c e d en t ‘ s body w a s ” equ i t ab l e

r e co gn i t i on o f th e n a tu r a l s en t im en t , a f f e c t ion , o r r ev e r en c e

wh i c h ex i s t s fo r th e mo r t a l r em a in s o f tho s e we h av e lov ed long

s in c e an d lo s t a wh i l e H ( i n t e r n a l quo t a t ion m a r k s and c i t a t io n

om i t t ed ) .

Th e F o l ey cou r t , how ev e r , h ad s to pp ed sho r t o f ag r e e ing w i th

th e f ind i ng o f th e L a r s o n cou r t th a t d am ag e s wou ld ” a l low a

1 7

r e cov e ry f o r m en t a l su f f e r ing and fo r in ju ry to th e f e e l ing s . “

Fo l ey , 1 App . D i v . a t 556 , 37 N .Y .S . a t 474 . E s t ab l i sh in g a

” qu a s i p rop e r ty ” r igh t

th e r e fo r e , s t i l l l e f t un an sw e r ed th e i s su e

o f wh a t p r e c i s e ly co n s t i tu t

th e a c t ion ab l e w rong i f a n e x t o f

k in w a s d ep r iv ed o f a

t I s body fo r

i a l o r i f th e r igh t

w a s in t e r f e r ed w i th in som e o th e r f a sh ion , and t hu s how d am ag e s

w e r e to b e c a l cu l a t e d ; b u t no

long .

1911 , abo u t fou r

s b e fo r e t h e Cou r t

f App e a l s

z e d in u n eq u iv o c a l

t e rm s th a t

” [ f ] r e edom f rom m en t a l

d i s tu r b an c e i s now a p ro t e c t ed i n t e r e s t ” (F e r r a r a v . G a l lu ch io , 5

N .Y .2d 16 , 2 1 , 1 76 N .Y .S . 2d 99 6 , 9 99 (1 958 ) ) , i t h ad r e cogn i z ed

comp en s ab l e emo t ion a l

in j u ry in r igh t o f s e pu l ch e r c a s e s . S e e

D a r cy v . P r e sby t e r i a n Ho sp i t a l

in th e C i ty o f N .Y . , 202 N .Y . 259 ,

sup r a .

In th a t c a s e ,

th e Cou r t f in a l l y look ed w i th ” app rov a l ” to

th e ru l e adop t ed by t h e L a r so n cou r t .

Id . , a t 263 .

Th e cou r t

h e ld th a t ev en t houg h th e r e w a s no p ro p e r ty r igh t

in a body ,

a

mo t h e r who s e d e c ed en t s on w a s sub j e c t ed to an un au th o r i z ed

au top sy w a s en t i t l ed to r e c o v e r ” f o r h e r wo und ed f e e l ing s and

m en t a l d i s t r e s s . ” Id .

Sub s equ en t ly ,

in 1916 ,

th i s Cou r t found th a t fo r a v io l a t io n

o f th e r ig h t to s epu l ch e r “d am ag e s m a y b e r e cov e r ed fo r th e

in ju ry to th e f e e l ing s and th e m en t a l s u f f e r i ng r e su l t ing f rom

th e un l aw fu l a c t . ” H a s s e lb a c h , 173 App . D iv . a t 9 1 , 159 N .Y .S . a t

1 8

37 8 .

In 1917 ,

th e Cou r t o f App e a l s found th a t th e bu r i a l o f a

f a th e r ‘ s body a t s e a d e p r iv ed th e n ex t o f k in ” o f th e so l a c e o f

g iv ing th e body a d e c en t b u r i a l on l a nd . “

F in l ey v . A t l an t i c

T r an sp . L td . , 220 N .Y . 2 4 9 , 257 , 115 N .E . 715 , 718 (1 917 )

(d am a g e s p rop e r ly r e cov e r ab l e so l e ly fo r m en t a l ang u i sh ,

su f f e r ing and n e rvou s sho ck ) . A y e a r l a t e r ,

th i s Cou r t ob s e rv ed :

” n e x t o f k in [ . . . J a r e en t i t l ed to su ch r igh t o f po s s e s s i on a s a

so l a c e and com fo r t

in th e i r t im e o f d i s t r e s s . ” S t ah l v . W i l l i am

N e c k e r In c . , 184 App . D i v . 85 , 90 -9 1 , 17 1 N .Y .S . 728 , 732 (1 s t

D ep t . 19 18 ) .

Th e Cou r t con c lud e d :

“On e who d ep r iv e s a p a r t y th u s

en t i t l ed [ . . . J f rom th e s o l a c e and com fo r t a r i s in g f rom th e

p r iv i l eg e o f su ch b u r i a l

[ . . . J i s l i ab l e in d am ag e s fo r th e

m en t a l su f f e r ing and a ng u i s h to th e su rv iv ing r e l a t iv e b y r e a s on

o f su ch d ep r iv a t ion . ” 184 Ap p . D iv . a t 91 , 17 1 N .Y .S . a t 7 32 .

In 193 3 ,

th e S e cond D e p a r tm e n t s t a t ed th a t “d am ag e s a r e

r e co v e r ab l e f o r in ju ry to th e f e e l ing s and m en t a l su f f e r ing

r e s u l t ing d i r e c t l y [ . . . J f rom th e w rong fu l a c t o f d ep r iv a t ion

a l though no a c t u a l o r p e cun i a ry d am ag e s b e p r o v en . ” Go s t kow sk i

v . Roman C a tho l i c Chu r ch , 23 7 A .D . 640 , 642 , 262 N .Y .S . 1 04 , 106

(2d D ep t . 19 33 ) , ~=-‘~, 262 N .Y . 320 , 18 6 N .E . 798 (1933 ) .

By 19 75 th e Cou r t o f App e a l s ,

in th e m e an t im e , h av ing

squ a r e ly add r e s s ed th e i s su e o f com p en s ab l e em o t i on a l h a rm ,

r e cogn i z e d th a t th e m i sh and l ing o f a co rp s e w a s o n e o f two

19

ex c ep t ion s p e rm i t t ing r e cov e ry fo r emo t ion a l h a rm a lo n e .

Jo hn son

v . S t a t e o f New Yo rk , 37 N .Y .2d 378 , 372 N .Y .S .2d 638 (1975 ) .

Th e Cou r t ob s e rv ed :

“R e cov e ry in th e s e c a s e s h a s o s t en s ib ly b e en

g round e d on a v io l a t ion o f th e r e l a t iv e ‘ s qu a s i -p rop e r t y r igh t

in

th e bo d y .

I t h a s b e en no t ed [ . . . J th a t

[ . . . J su c h a p ro p e r ty

r igh t i s l i t t l e m o r e th an a f i c t ion ;

in r e a l i ty ,

th e p e r s on a l

f e e l ing s o f th e su rv ivo r s a r e b e ing p ro t e c t ed . ” 37 NY2d a t 382 ,

372 N .Y .S .2d a t 641 ( in t e rn a l quo t a t ion m a r k s and c i t a t io n s

om i t t ed ) .

C ou r t s in o th e r ju r i sd i c t io n s a l so r e c ogn i z e d th a t a “qu a s i

p rop e r t y ” r igh t w a s a l eg a l f i c t ion to e n ab l e r e cov e ry o f d am ag e s

f o r in ju ry to th e f e e l ing s o f th e n ex t o f k in . S e e P rop e r ty t

P r iv a cy an d th e Hum an Body , 80 B .D . L . R ev . 359 , 385 -386 (2000 ) ,

c i t i ng C a rn ey v . Kn o l lwoo d C em e t e r y A s s n . , 33 O h io App .3d 31 , 36 ,

51 4 N .E .2d 430 , 435 (1986 )

(p l a in t i f f b r ing s th e a c t ion fo r th e

m en t a l ang u i sh und e rgo n e ” f rom th e r e a l i z a t ion th a t d i s r e sp e c t

a n d in d ign i t i e s h av e b e en h e ap ed upon th e bo dy o f o n e who w a s

c lo s e to h im in l i f e . ” ) i c i t ing Cu lp epp e r v . P e a r l S t . B l dg . , 877

P .2d 877 , 880 (Co lo . 1994 )

( i t i s no t

in ju ry to th e d e ad body

“bu t wh e th e r th e imp rop e r a c t i on s c au s ed em o t i on a l o r phy s i c a l

p a in o r su f f e r ing to su rv iv ing f am i ly m emb e r s ” ) ; c i t ing K e y e s v

Ko nk e l , 78 N .W . 6 49 , 649 (M i c h . 18 99 )

( r e cov e ry i s fo r d am ag e to

th e n ex t o f k in by i n f r ing em en t o f h i s r igh t to h av e th e body

20

d e l iv e r ed to h im f o r bu r i a l ) .

Th e c ou r t

in S c a rp a c i v . M i lw auk e e

coun ty (96 W i s .2d 663 , 672 , 29 2 N .W .2d 816 , 820 – 21 (1980 ) )

exp l a i n ed su c c in c t ly :

~The b a s i s fo r r e cov e ry o f d am ag e s i s found no t
in a
p rop e r ty r igh t in a d e ad body bu t
in th e p e r son a l r igh t
o f t h e f am i ly o f th e d e c e a s ed to b u ry th e body [ . . . J
Th e l aw i s no t p r im a r i ly con c e rn ed w i th th e ex t en t o f
th e phy s i c a l
in ju ry to th e bod i l y r em a i n s bu t w i th
wh e th e r th e r e w e r e any imp rop e r a c t ion s and wh e th e r
su ch a c t ion s c au s ed emo t ion a l o r ph y s i c a l su f f e r ing to
th e l iv in g k in . “

B a s ed on th e fo r ego ing an a ly s i s , we f ind HHC ‘ s a rg um en t t h a t

J o h n M e l f i ‘ s r igh t o f s ep u l ch e r c l a im a c c ru ed on D e c emb e r 20 ,

2001 to b e w i thou t m e r i t .

Th e d e c e d e n t ‘ s b ro th e r in th i s c a s e i s

no t s e ek ing to v ind i c a t e any q u a s i -p rop e r ty r i gh t th a t w a s

in t e r f e r ed w i t h on D e c emb e r 20 , 2001 w h e n HHC r e l e a s ed L eon a rd

M e l f i ‘ s bod y f o r p r a c t i c e emb a lm ing and bu r i a l

in Po t t e r ‘ s F i e ld .

Jo hn M e l f i b r in g s t h e a c t i o n ag a in s t HHC b e c au s e o f th e m en t a l

angu i sh h e su f f e r ed u pon th e r e a l i z a t ion th a t h i s b ro th e r w a s

d e ad a n d th a t t h e f a i lu r e to n o t i f y th e n ex t o f k in d ep r iv ed th e

f am i ly o f g iv ing h im a p ro p e r bu r i a l .

H en c e , we f ind th a t f o r a r igh t o f s epu l ch e r c l a im to a c c ru e

1 )

th e r e mu s t b e in t e r f e r en c e w i th th e n ex t o f k in ‘ s imm ed i a t e

po s s e s s ion o f d e c ed e n t ‘ s body an d 2 )

th e in t e r f e r en c e h a s c a u s ed

m en t a l angu i s h , w h i ch i s g e n e r a l ly p r e sum ed .

In t e r f e r en c e c an

a r i s e e i th e r by un au tho r i z e d au t op sy (D a r cy , 202 N .Y . a t 2 6 2 –

21

263 ) , o r by d i s po s in g o f th e r em a in s in adv e r t en t ly (F in l ey , 220

N .Y . a t 25 7 -2 58 ; Co r r e a v . M a imon id e s M ed . C t r . , 16 5 M i s c . 2 d

6 14 , 62 9 N .Y .S . 2d 673 (Sup . C t . , K i ng s Cou n ty 1995 ) ) , o r , a s in

th i s c a s e , by f a i l u r e to no t i f y n ex t o f k in o f th e d e a th .

Th e

n ex t o f k in ‘ s m en t a l a ng u i sh in th e s e s i tu a t ion s i s th en

g e n e r a l ly p r e sum ed bu t ,

in any ev en t , c a nn o t b e f e l t un t i l th e

n ex t o f k in i s aw a r e o f th e in t e r f e r e n c e w i th h i s /h e r r igh t o f

po s s e s s i on o f th e lov ed on e ‘ s body fo r b u r i a l .

R igh t o f s epu l ch e r c a s e s ,

t h e n , a r e no t ak in to ” fo r e ign

ob j e c t ” c a s e s , a s Sup r em e Cou r t ob s e rv ed h e r e , wh e r e th e s t a tu t e

o f l im i t a t ion s i s to l l ed r a th e r th an a c c r u ing a t th e d a t e o f t h e

su rg eon ‘ s n e g l ig en t a c t .

In tho s e c a s e s , i t i s in d i sp u t ab l e th a t

a c t u a l

i n ju ry o c cu r s w h en th e fo r e ign o b j e c t i s l e f t in s id e th e

bod y bu t

th e s t a tu t e o f l im i t a t ion s i s t o l l ed un t i l p l a in t i f f

d i s cov e r s th e ex i s t en c e o f th e fo r e ign ob j e c t .

H e r e , b e c au s e th e in ju ry i s so l e ly emo t ion a l , i t i s

ax iom a t i c th a t a n ex t o f k in c an no t b e i n ju r ed em o t i o n a l ly un t i l

h e o r sh e b e com e s aw a r e o r h a s know l edg e th a t h i s o r h e r r igh t o f

s epu l ch e r h a s b e en in t e r f e r ed w i th un l aw fu l ly .

Thu s , wh i l e HHC i s co r r e c t th a t th e w rong fu l a c t th a t

in t e r f e r ed w i th po s s e s s ion o c cu r r ed on D e c emb e r 20 t 2001 , i t d id

no t b e com e an a c t io n ab l e w rong un t i l th e p l a in t i f f w aS t

in f a c t ,

em o t i on a l ly i n j u r ed by th e k now l edg e o f th a t

in t e r f e r en c e in o r

22

a round F eb ru a ry 200 2 .

In o th e r wo rd s , s e nd i ng a co rp s e to

Po t t e r ‘ s F i e ld o r fo r p r a c t i c e emb a lm ing i s no t a c t ion ab l e p e r

s e ; i t i s no t a c t ion ab l e un t i l a c l a im an t n ex t o f k in h a s

su f f e r e d emo t ion a l a ngu i s h a s a r e su l t o f th e w rong fu l a c t .

Con t r a ry to t h e d e f end an t ‘ s a s s e r t ion s ,

th e a c c r u a l o f c l a im

in r igh t o f s epu l ch e r a c t ion s b e long s in th a t sm a l l body o f c a s e

l aw wh e r e a c l a im do e s no t a c c ru e w i th th e n e g l i g en t a c t bu t a t

th e t im e a p l a i n t i f f i s a c tu a l l y in ju r e d by th e n e g l ig en t a c t .

S e e S ex s to n e v C i ty o f R o ch e s t e r , 32 A .D .2d 737 , 301 N .Y .S .2d 887

(4~ D ep t . 1969 )

(90 -d ay p e r iod fo r f i l ing a no t i c e o f c l a im d id

no t run f rom d a t e o f n e g l ig en t

i s su an c e o f c e r t i f i c a t e bu t

f rom

th e d a t e th e n eg l ig en t a c t p rod u c ed in ju ry to th e p l a in t i f f s ) ,

c i t i ng Kon a r v . Mon ro Mu f f l e r Shop s o f Ro ch e s t e r , 28 A .D .2d 642 ,

280 N .Y .S .2d 81 2 (4 th D e p t . 1967 ) ; s e e a l so Thom a s v . G ruppo so ,

73 M i s c .2d 427 , 431 , 34 1 N .Y .S .2d 819 , 8 2 4 (C iv . C t . N .Y . Cou n ty ,

19 73 )

( c au s e o f a c t i on d id no t a r i s e on d ay o f n e g l i g en t s a l e bu t

wh en p l a in t i f f d em and ed h i s p ro p e r ty and w a s no t i f i ed th a t i t w a s

so ld ) ; s e e a l so D i s t e l v . Coun ty o f U l s t e r , 10 7 A .D .2d 99 4 , 996 ,

484 N .Y .S . 715 , 717 (3~ D ep t . 1 985 )

( s t a t ing th a t th e 90 -d ay

n o t i c e r equ i r em e n t und e r s e c t ion 50 – e o f th e G en e r a l Mun i c ip a l

Law b eg an to ru n wh en p l a in t i f f s r e c e iv ed an a f f id av i t s t a t ing

th a t d e f en d an t cou ld no t

lo c a t e po r t ion s o f o rg an s o f d e c ed e n t ,

a f fo rd ing th em su f f i c i en t n o t i c e to cu t o f f th e to l l ing o f th e

23

s t a tu t e ) .

A s th e p l a in t i f f co r r e c t ly a s s e r t s ,

th e c a s e s r e l i ed on by

HHC a r e in appo s i t e . J e n s e n v . C i ty o f New Yo rk (288 A .D .2 d 346 ,

734 N .Y .S .2 d 88 (2 nd D e p t . 2001 ) ) and Moo r e v . C i ty o f New Y o rk

(2 91 A .D .2d 38 6 , 736 N .Y .S .2d 889 (2 nd D e p t . 2002 ) ) , a r e a c t ion s

in g r o s s n e g l ig en c e and n e g l i g en t in f l i c t ion o f emo t i on a l

d i s t r e s s , no t

lo s s o f s epu l ch e r c a s e s . Mo r eov e r ,

l i k e th e th i rd

c a s e , C a l ly v . New Y o r k Ho s p . Med . C t r . o f Qu e en s

(14 A .D . 3d

640 , 788 N .Y .S . 2 d 620 (1 s t D e p t . 2005 ) ) , J en s en and Moo r e con c e rn

th e t im e l in e s s o f th e comm en c em en t o f th e a c t io n s and thu s s p e ak

to th e s t a tu t e o f l im i t a t ion s in a c t ion s ag a in s t

th e c i ty r a th e r

th an th e t im e l in e s s o f no t i c e s o f c l a im .

I t m ay w e l l b e th a t w e r e we d e t e rm in in g th e t im e l in e s s o f

c omm en c em en t o f a r igh t o f s ep u l ch e r a c t ion , we wou ld d i s ag r e e

w i th th e S e cond D ep a r tm e n t and f i nd ,

l ik e th e mo t ion cou r t in

th i s c a s e ,

th a t a v i o l a t ion o f th e r i gh t o f s e pu l ch e r i s a

con t inu ing w rong , w i t h th e s t a tu t e o f l im i t a t io n s t o l l ed un t i l a

lo v ed on e ‘ s body i s r e tu rn ed o r th e n ex t o f k in i s in fo rm ed th a t

th e bod y w i l l n ev e r b e r e tu rn ed .

Ind e ed , we c o u ld b e sw ay ed by

th e cou r t ‘ s r e a son ing th a t a f ind i ng o th e r th an th a t o f

con t inu ing w rong wou l d r ew a rd ,

i f no t n e c e s s a r i ly en cou r ag e ,

a

to r t f e a so r ‘ s d e l ay in a ck now l edg ing m i s id en t i f i c a t ion o f r em a in s

( s e e J en s en , 288 A .D .2d a t 347 , 734 N .Y .S .2d a t 90 ) , o r th e

24

in ad v e r t en t d i spo s a l o f r em a i n s un t i l th e s t a tu t e o f l im i t a t i on s

h ad run . Bu t we n e ed no t r e a ch th e m e r i t s o f th a t

i s su e in th i s

c a s e .

A s to a no t i c e o f c l a im ,

th e 90 -d ay c lo ck s t a r t s to run u po n

th e a c c r u a l o f th e c l a im ,

th a t i s ,

th e mom en t a w rong b e com e s

a c t ion ab l e . A s t a tu t e o f l im i t a t ion s sp e ak s to th e l a t e s t po i n t

in t im e th a t an a c t io n f o r a w rong fu l a c t m ay b e comm en c ed .

In

th i s c a s e , John M e l f i ‘ s c l a im a c c ru ed upon th e p a in fu l

r e a l i z a t io n in F eb ru a ry 2 002 ,

th a t h i s b ro th e r ‘ s body h ad b e en

mu t i l a t e d and b u r i e d in a m a s s g r av e o f un c l a im ed bod i e s .

Th e r e fo r e t h e f i l in g o f th e no t i c e o f c l a im on May 2 , 2 00 2 w a s

t im e ly w i t h i n th e s t a t u t o r i ly p e rm i s s ib l e 90 d a y s .

HHC a l so app e a l s th e o rd e r d eny ing s umm a r y judgm en t a s to

th e lo s s o f s epu l ch e r c l a im on th e b a s i s th a t i t h ad no s t a tu to ry

du ty to lo c a t e th e n ex t o f k in and c anno t b e h e ld l i ab l e fo r i t s

d i s c r e t ion a r y d e l iv e ry o f th e un c l a im ed bod y to N a s s a u Coun ty

C ommu n i ty Co l l e g e ‘ s Mo r t u a ry S c i en c e D ep a r tm en t wh e r e s tud en t s

p r a c t i c ed emb a lm ing on th e body .

S e c t ion 421 1 (1 ) o f th e New

Yo r k P ub l i c H e a l th Law s e t s fo r th th e r equ i r em en t s fo r th e

d e l iv e r y o f un c l a im e d c ad av e r s to s c h oo l s . Sp e c i f i c a l ly ,

” [no ]

body o f a d e c e a s ed p e r son sh a l l b e d e l iv e r ed to [ . . . ] any

un iv e r s i ty , co l l eg e , o r s choo l

[ . . . ] i f th e d e c e a s ed p e r s o n i s

kn own to h av e a r e l a t i v e who s e p l a c e o f r e s id en c e i s kn own o r c an

25

b e a s c e r t a in ed a f t e r r e a son ab l e and d i l ig en t inqu i ry . “

Pub l i c

H e a l th Law § 421 1 (3 ) ( c ) .

Th e mo t ion cou r t co r r e c t ly con c lud ed th a t th e mo rgu e h ad a

s t a tu to ry o b l ig a t io n to m ak e ap p ro p r i a t e e f fo r t s to lo c a t e a n ex t

o f k in and th a t a qu e s t ion o f f a c t ex i s t s a s to wh e th e r i t

condu c t ed a ” r e a son ab l e and d i l ig en t

inqu i ry ” to lo c a t e th e n ex t

o f k in o f L eo n a rd M e l f i . G iv en th e p au c i ty o f ev id en c e th a t e v en

on e p e r s on a t t emp t ed to lo c a t e th e n ex t o f k in du r ing th e

d e c e d en t ‘ s s ad jou rn ey th rough th e C i ty mo rgu e to Po t t e r ‘ s F i e l d ,

i t i s con c e iv ab l e th a t a ju ry c o u l d f ind th a t HHC co nd u c t ed no

in qu i ry a t a l l , mu ch l e s s on e th a t i s r e a son ab l e and d i l ig e n t .

F in a l ly , a l though p u n i t iv e d am a g e s m a y b e aw a r d ed in a lo s s

o f s e p u l ch e r c l a im , M t . S in a i Ho sp i t a l a rgu e s th a t pun i t i v e

d am ag e s a r e n o t app rop r i a t e in th i s c a s e b e c au s e th e w rong fu l

con du c t d id n o t d emon s t r a t e su ch a ” ‘ con s c iou s an d d e l ib e r a t e

d i s r ega rd o f th e in t e r e s t s o f o th e r s [ so l

tha t

th e condu c t m a y b e

ca l l ed w i l f u l o r wa n ton . ‘ ” L ib e rm an v . R iv e r s id e Mem. Ch a p e l , 225

A .D . 2d 28 3 , 2 9 1 , 650 N .Y .S .2 d 194 , 2 00 (1 s t D ep t . 1 996 )

(quo t ing

P r o s s e r and K e e ton , To r t s § 2 , a t 9 -10 [5 th e d . 1984 ] ) i s e e a l s o

P l unk e t t v . NYC Down town Ho s p . , 21 A .D . 3d 10 22 , 801 N .Y .S .2d 3 54

(2~ D ep t . 2 005 ) i L i e ndo v . L ong I s . J ew i sh M ed . C t r . , 273 A .D .2d

445 , 71 1 N .Y .S . 2d 741 (2 nd D ep t . 2000 ) .

Th e r e co rd r e f l e c t s th a t th e d e f end an t , M t . S in a i Ho sp i t a l ,

26

h a s ex t en s iv e p ro to co l s in p l a c e to m ak e c e r t a in th a t a n ex t o f

k in i s lo c a t e d to c l a im th e body o f a d e c e a s ed p a t i en t .

Th e

s t ep s t ak en by ev e ry ho sp i t a l d ep a r tm en t a r e r equ i r ed to b e

do cum e n t ed .

Th e t r e a t ing phy s i c i an who p ronoun c e s th e d e a th i s

in i t i a l ly r e s p o n s ib l e fo r no t i fy ing th e n ex t o f k in .

I f h e i s

no t su c c e s s fu l , h e in fo rm s th e nu r s e m an a g e r , who th en con t inu e s

c o n t a c t e f fo r t s by m ak ing r ep e a t e d phon e c a l l s , s end ing a

t e l e g r am , and con t a c t i ng th e New Y o rk C i t y Po l i c e D ep a r tm en t to

r equ e s t v i s i t s to po t en t i a l ad d r e s s e s o f th e n ex t o f k in .

I f a l l

o f th e s e e f fo r t s a r e un su c c e s s fu l ,

th e nu r s e m an ag e r con t a c t s y e t

ano th e r ho sp i t a l d i r e c to r who condu c t s h e r own inv e s t ig a t ion

b e fo r e fo rm a l ly r equ e s t ing a po l i c e inv e s t i g a t ion . On c e th e bo dy

i s t r an s f e r r ed down to th e ho sp i t a l mo rg u e ,

th e r e a r e ev en mo r e

in t e r – a nd in t r a -d ep a r tm e n t a l p r o c edu r e s in p l a c e to a s c e r t a in a

n ex t o f k in . On ly a f t e r ev e ry sou r c e h a s b e en ex h au s t ed in

a t t em p t ing to id e n t i fy a n ex t o f k in ,

i s th e body t r an s f e r r ed to

th e C i ty mo rgu e .

O th e r th an th e two p hon e c a l l s pu rpo r t ed ly p l a c ed b y D r .

B ru n s th a t w e r e no t do cum e n t e d ,

th e r e i s no t h i ng in th e r e co rd to

sugg e s t th a t th e s e p r e c au t ion a ry p r o c edu r e s w e r e fo l low ed by M t .

S in a i in th i s c a s e .

Th e p e r sonn e l

to whom D r . B r un m a y h av e

d e l eg a t ed th i s du ty m ad e no d o cum en t e d a t t emp t

to con t a c t a n ex t

o f k in , no r w a s t h e New Y o rk Po l i c e D ep a r tm en t c on t a c t e d .

27

C r i t i c a l id en t i fy ing in fo rm a t io n w a s om i t t ed f rom th e d e a th

c e r t i f i c a t e p r ep a r ed by th e ho sp i t a l d e s p i t e th e f a c t

th a t th i s

in fo rm a t i on w a s e a s i ly ob t a in a b l e f rom i t s own r e co rd s .

Wh i l e i t i s po s s ib l e to v i ew th i s condu c t a s w i l l f u l and in

con s c iou s d i s r e g a r d o f o th e r s ,

in o rd e r fo r M t . S in a i to b e h e ld

v i c a r iou s ly l i ab l e fo r pun i t i v e d am ag e s a r i s in g f rom th e con du c t

o f i t s emp l oy e e s , i t m u s t h av e ” au t ho r i z ed , p a r t i c ip a t ed in ,

con s en t ed to o r r a t i f i ed th e condu c t g iv ing r i s e to su ch d am ag e s ,

o r d e l i b e r a t e l y r e t a in ed th e un f i t s e rv a n t ” su ch th a t i t i s

com p l i c i t

in th a t condu c t .

Lough ry v . L in co ln F i r s t B an k , 6 7

N .Y .2 d 369 , 378 , 4 9 4 N .E .2d 70 , 74 , 502 N .Y .S .2d 965 , 9 69 (1 986 ) ;

1 Mo t t S t r e e t ,

In c . v . Con Ed i son , 33 A .D .3d 531 , 532 , 823

N .Y .S .2d 375 , 3 76 (1 s t D ep t . 2006 ) . Comp l i c i ty i s ev id en t wh e n

” a sup e r io r o f f i c e r in th e cou r s e o f emp loYm e n t o rd e r s ,

p a r t i c ip a t e s in , o r r a t i f i e s ou t r a g e ou s c ond u c t . “

Lough ry , 67

N .Y .2 d a t 37 8 , 5 02 N .Y .S . 2d a t 970 . A ” sup e r io r o f f i c e r ” i s on e

who ho l d s ” a h igh l ev e l o f g en e r a l m an ag e r i a l au tho r i ty in

r e l a t ion to th e n a t u r e and op e r a t ion o f th e emp loy e r ‘ s bu s in e s s . “

6 7 N .Y .2d a t 38 0 , 5 0 2 N .Y .S .2d a t 971 . D r . B r un s i s an a s s i s t an t

p ro f e s s o r and a t t e nd ing phy s i c i an in th e em e rg en cy d ep a r tm en t a t

M t . S i n a i . How ev e r , ev en a s th e h igh e s t l ev e l adm i n i s t r a to r i n

c h a rg e o f L eon a rd M e l f i ‘ s em e rg en cy room c a r e , D r . B run s c anno t

b e con s id e r ed som eon e w i th a ” h igh l ev e l o f g e n e r a l m an ag e r i a l

28

au t ho r i ty ” ov e r th e bu s in e s s o f th e en t i r e ho sp i t a l .

S e e e .g . , ~

Mo t t S t r e e t , 33 A .D .3d a t 532 , 8 2 3 N .Y .S .2d a t 376 ( ho l d i ng th a t

a f i e l d r ep r e s en t a t iv e who t e rm in a t ed p l a i n t i f f ‘ s g a s s e r v i c e w a s

no t a m an ag e r o f Con Ed i s on ) .

Fu r t h e r , i t c an no t b e s a id th a t

D r . B ru n s ‘ s and h i s co l l e agu e s ‘ condu c t r e f l e c t s th e ” co rpo r a t e

cu l tu r e l l o r ” in s t i tu t i on a l con s c i en c e l l a s th e ex t en s iv e po l i c i e s

an d p ro c ed u r e s p romu l g a t ed by th e ho sp i t a l exp r e s s ly b e l i e th i s

in f e r en c e .

Sw e r s k y v . D r e y e r and T r aub , 2 19 A .D .2d 321 , 329 , 643

N .Y .S . 2d 33 (1 s t D ep t . 1 99 6 ) .

How ev e r , a t th i s s t ag e in th e p ro c e ed in g s we c anno t ru l e , a s

a m a t t e r o f l aw ,

th a t th e p l a in t i f f h a s f a i l ed to pu t fo r th a

p r im a f a c i e c a s e o f g ro s s n eg l ig en c e and pun i t iv e d am ag e s ag a in s t

M t . S in a i con c e rn ing m e d i c a l m a lp r a c t i c e . G i v e n th e p a u c i ty o f

ev id en c e p r e s en t ed by th e ho sp i t a l

in th e cou r s e o f d i s cov e ry ,

th e p l a in t i f f h a s a t l e a s t r a i s e d a t r i a b l e i s s u e o f f a c t

in th i s

r eg a rd .

A c co rd in g ly ,

th e o rd e r o f th e S u p r em e Cou r t , New Y o rk Coun ty

( J o an B . C a r e y , J . ) , en t e r ed May 5 , 2008 , wh i ch ,

to th e ex t en t

app e a l e d f rom a s l im i t ed by th e b r i e f s , d en i ed th e mo t ion by

d e f end an t HHC to d i sm i s s th e c a u s e o f a c t i on fo r lo s s o f

s epu l c h e r and th e mo t ion by d e f end an t Moun t S in a i to s t r ik e

p l a in t i f f ‘ s d em and s f o r pu n i t i v e d am ag e s r e l a t ed to th e c l a im s o f

m a lp r a c t i c e and lo s s o f s epu l c h e r , and g r a n t ed p l a in t i f f ‘ s mo t ion

29

to am end t h e com p l a in t to p l e ad a c au s e o f a c t ion fo r g ro s s

n eg l ig en c e and r e l a t e d pun i t i v e d am ag e s a g a in s t M o un t S in a i

in

conn e c t io n w i t h t h e m a lp r a c t i c e c l a im , sh o u ld b e m od i f i e d , on th e

l aw , Mo un t S in a i ‘ s mo t i on to s t r ik e p l a in t i f f ‘ s d em and fo r

pun i t iv e d am ag e s in conn e c t ion w i th th e lo s s o f s ep u l ch e r c l a im

g r an t ed , and o th e rw i s e a f f i rm ed , w i thou t co s t s .

A l l con cu r .

TH IS CONSTITUTES THE DEC IS ION AND ORDER
OF THE SUPREME COURT, APPELLATE D IV IS ION , F IRST DEPARTMENT.

ENTERED: APR IL 28 , 2009

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