WILLIAM J. HANNAH and JANICE HANNAH,
as Co-Guardians and Co-Conservators for
Michelle Hannah, a protected person,
LUTHERAN HEALTH SYSTEMS,
a North Dakota corporation,
d/b/a Belle Fourche Health Care Center,
[1998 DSD 41]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND ORDER
Filed Dec 8, 1998
Richard H. Battey, Chief Judge
I. PROCEDURAL HISTORY
[¶1] On January 5, 1998, William Hannah and Janice Hannah ("the Hannahs") as co-guardians and co-conservators for Michelle Hannah, filed a complaint in South Dakota state court against Lutheran Health Systems ("LHS") alleging nursing home malpractice. The Hannahs asserted that as a result of two separate incidents of malpractice, their daughter Michelle Hannah suffered personal injuries while residing at Belle Fourche Health Care Center ("BFHCC"). BFHCC is a nursing home facility owned and operated by LHS of Fargo, North Dakota. LHS filed a notice of removal with this Court on January 28, 1998. Currently pending before the Court is LHS's motion for summary judgment regarding the Hannahs' claim for punitive damages (Docket#17).(fn1) Jurisdiction is based upon 28 USC § 1332.
[¶2] BFHCC is a licensed health care facility providing long-term care to persons suffering from physical and mental disabilities. Defendants' Statement of Material Facts ("Defendants' SMF") at 1. Michelle Hannah became a resident of BFHCC in 1981 following an automobile accident which rendered her a quadriplegic. Id. Sometime during November 11, 1996, Michelle suffered a broken femur and a subdural hematoma while under the care of BFHCC. Plaintiffs' Statement of Material Facts ("Plaintiffs' SMF") at 3. BFHCC employees have denied all knowledge of the cause of Michelle's injuries. Defendants' SMF at 2; Plaintiffs' SMF at 2.
[¶3] On November 11, 1996, Michelle complained of left knee pain(fn2) to nurse Tammy Kidd and nurse Bonnie Renner, though neither nurse noted these complaints in Michelle's interdisciplinary progress notes.(fn3) Defendants' SMF at 3; Plaintiffs' SMF at 3. Nurse Kidd examined Michelle and observed that her knee was "warm to touch and swollen compared to the other leg and it was hard underneath." Kidd Depo. at 6. Nurse Kidd also left a note for the morning nurse to "check out" Michelle's knee, though Michelle did not receive any medical attention that day and it is unclear whether Michelle's knee was examined by the morning nurse. Id. On November 12, 1998, Michelle's father, Bill Hannah, asked that Michelle be examined by a doctor or nurse upon noticing that Michelle's knee appeared swollen, red, and warm. Plaintiffs' SMF at 3; Affidavit of Bill Hannah. It appears that Michelle did not receive medical attention on November 12.
[¶4] On November 13, 1996, Michelle began to have difficultly breathing and was admitted to Lookout Memorial Hospital in Spearfish. On this date, staff members also observed that Michelle was cold and clammy and continued to complain of leg pain. Defendants' SMF at 2; Kidd Depo. at 10. Following these events, nurse Kidd and nurse Renner recorded Michelle's November 11 complaints of pain as "late entries" in Michelle's progress notes. Exhibit A, Plaintiffs' Response to Defendants' Motion for Summary Judgment. It is not unusual for BFHCC staff to make late entries in a patient's progress notes. Defendants' SMF at 3; Steen Depo. at 12; Renner Depo. at 6; Kidd Depo. at 9-10.
III. SUMMARY JUDGMENT STANDARD
[¶5] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
[¶6] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). The Supreme Court has instructed that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986). The nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts," and "[w]here the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 106 S. Ct. at 1356.
[¶7] The trilogy of Celotex, Anderson, and Matsushita provides the Court with a methodology in analyzing motions for summary judgment. See generally 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 5.04 (2d ed. 1991) (discussing the standards for granting summary judgment that have emerged from Matsushita, Celotex, and Anderson).
[¶8] On October 7, 1998, LHS filed a motion for summary judgment as to the Hannahs' claim for punitive damages contending that they had failed to establish punitive damages according to the standard required by the law of the state of South Dakota.(fn4) Under South Dakota law, punitive damages are only available "where the defendant has been guilty of oppression, fraud, or malice, actual or presumed . . . ." SDCL 21-3-2. Actual malice is a positive state of mind, evidenced by a desire and intention to injure another, actuated by hatred or ill-will towards that person. Dahl v. Sittner, 474 NW2d 897, 900 (S.D. 1991) (citing Gamble v. Keyes, 43 S.D. 245, 178 N.W. 870, 872 (1920)). Presumed or legal malice, on the other hand, is malice which the law infers from or imputes to certain acts. Hannahs v. Noah, 83 S.D. 296, 303, 158 NW2d 678, 682 (1968).
[¶9] The Hannahs' complaint is founded on a claim of presumed malice. Presumed malice may only be sustained by demonstrating a wanton and reckless disregard for the rights of others. Flockhart v. Wyant, 467 NW2d 473, 475 (S.D. 1991); see also Smith v. Montana-Dakota Utilities, 575 F Supp. 265 (D.S.D. 1983) (holding that punitive damages are recoverable upon proof of wanton and reckless disregard of human rights). However, "'South Dakota requires more egregious conduct than states which merely require proof of conduct more egregious than gross negligence, but which do not require proof of malice. Thus, South Dakota is among the states having the most stringent conduct requirement.'" Bierle v. Liberty Mut. Ins. Co., 792 F Supp. 687, 691 (D.S.D. 1992) (quoting Richard L. Blatt, Robert W. Hammesfahr, and Lori S. Nugent, Punitive Damages, A State by State Guide to Law and Practice (West Pub. 1991)). In sum, a showing of presumed malice requires proof that the act complained of was more objectionable than even gross negligence.
[¶10] As a threshold matter, the Court will assume for summary judgment purposes only that Michelle did suffer a broken femur and subdural hematoma on November 11, 1996, while in the care of LHS. Viewing the facts in a light most favorable to the Hannahs, this Court finds that plaintiffs' claim for punitive damages is not sustainable under the facts. The Hannahs assert that the "defendants intentionally and willfully or with gross negligence as to indicate a wanton disregard for the rights and safety of Michelle, failed to call a physician to examine her injuries, [and] failed to provide any type of care for her injuries whatsoever . . . ."(fn5) Complaint at 5.
[¶11] While a review of the evidence suggests that a jury could conclude that BFHCC staff members acted negligently in not properly reporting or following up on Michelle's complaints, South Dakota law requires more.(fn6) As discussed above, the stringent definition of presumed malice transcends negligence and calls for willful and wanton conduct on the part of the defendant. Lee v. Beauchene, 337 NW2d 827, 829 (S.D. 1983) (holding that willful and wanton misconduct is something more than ordinary negligence but less than deliberate or intentional conduct). This high standard is required because the purpose behind punitive damages is to punish and make an example of the defendant. SDCL 21-3-2.
[¶12] While it is true that on November 11, 1996, Michelle complained of pain to her left side, including her knee, depositions of BFHCC staff members indicate that Michelle often suffered from and complained of pain. Upon hearing Michelle's complaints, nurse Kidd examined Michelle and left a follow up note for nurses on the next shift to examine Michelle's knee. Nurse Renner also examined Michelle in response to nurse Kidd's request.
[¶13] Nowhere in the evidence does it reasonably appear that BFHCC staff were aware that Michelle had a broken femur and acted in disregard for Michelle's rights or safety, nor has any evidence been brought to light to indicate that staff members were aware of Michelle's head injury before her transfer to Lookout Memorial Hospital. In fact, there has been no showing that Michelle even specifically complained about a head injury to staff members.
[¶14] Finally, the conduct of BFHCC on November 13,1998, is also not indicative of a staff acting in wanton disregard to Michelle's health or safety. Upon discovering that Michelle was having difficulty breathing and appeared "cold and clammy," Michelle was transported via ambulance to Lookout Memorial Hospital.
[¶15] Upon review of all the evidence in this case, and in light of the stringent requirements for punitive damages in South Dakota, it is the finding of this Court that the facts viewed in the light most favorable to the nonmoving party do not support punitive damages under South Dakota law. Accordingly, it is hereby
[¶16] ORDERED that defendants' motion for summary judgment as to punitive damages (Docket #17) is granted.
1. Michelle was injured on two separate occasions while in the care of BFHCC. However, Plaintiffs seek punitive damages only for Michelle's November 11, 1996, injuries, and not for her November 20, 1997 injuries. Accordingly, the Court will limit its discussion to the events surrounding the 1996 injuries to Michelle.
2. Michelle suffered frequently from pain well before her November 1996 injuries. She often complained to BFHCC staff of pain to her neck, shoulder, buttocks, leg, and ankle. Earl Depo. at 5-6; Sapp Depo. at 5; Patterson Depo. at 9; Renner Depo. at 5.
3. Interdisciplinary progress notes are maintained by staff members of BFHCC to chart the health of their residents. Progress notes are a running chronological summary of medical events that occur in the care and treatment of a resident. They are called "interdisciplinary" because entries are made by staff members from all medical disciplines. Plaintiffs' Brief in Support of Motion for Summary Judgment at 9.
4. This being a diversity case, the Court must apply the law of the state of South Dakota. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
5. Plaintiffs have also asserted that LHS intentionally and willfully altered its records with respect to Michelle, due to the "late entries" made in Michelle's progress notes. The Court finds no evidence in the record whatsoever to support this claim for punitive damages. Both late entries were properly noted as such when recorded in the progress notes and they were post-dated to the November 11, 1996 dates. Exhibit A, Plaintiffs' Response to Defendants' Motion for Summary Judgment.
6. The Court holds no opinion as to whether LHS was or was not negligent in its care of Michelle Hannah.