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Hinsberger v. Alaska (8/23/2002) sp-5609
Hinsberger v. Alaska (8/23/2002) sp-5609
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DANIEL LEE HINSBERGER, )
) Supreme Court No. S-10130
Appellant, )
) Superior Court No.
v. ) 3KN-96-18 CI
)
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 5609 - August
23, 2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Carol A. Brenckle, Kenai, for
Appellant. Venable Vermont, Jr., Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Daniel Hinsberger brought suit against the State of
Alaska for medical negligence and negligent infliction of
emotional distress (NIED) for treatment Hinsberger received while
incarcerated. The superior court granted the state's motion for
partial summary judgment on the issue of medical negligence
because the state submitted expert testimony that the care
provided to Hinsberger met the appropriate standard of care, and
Hinsberger did not rebut that evidence. The superior court then
granted another motion for partial summary judgment in favor of
the state on the NIED claim because Hinsberger would be unable to
establish breach of a preexisting duty in light of the summary
judgment on the medical negligence claim. Because Hinsberger
failed to demonstrate how he would prove breach of a preexisting
duty, we affirm the superior court's grant of summary judgment.
II. FACTS AND PROCEEDINGS
A. Facts
On December 20, 1993, in the course of a physical
altercation with his ex-wife, Daniel Hinsberger was kneed in the
groin and he passed blood in his urine for about two days. He
was charged with assault in the fourth degree in connection with
the incident, and in January 1994 he was taken into custody and
transported to the Wildwood Pretrial Facility (Wildwood).
Hinsberger was examined by Wildwood medical staff for complaints
of severe pain on his right side and blood in his urine the day
he was incarcerated. Hinsberger was released from custody the
next day and the criminal charges were later dismissed.
Hinsberger was again incarcerated a few days later for a
different offense and transported to Wildwood.
On January 11 Hinsberger complained of severe pain on
his right side and was seen by Wildwood medical staff around 8:30
a.m. Hinsberger was transported to Central Peninsula General
Hospital (Central Hospital) where he was seen by Dr. Cynthia
Milbrant at 11:30 a.m. Hinsberger was then admitted to Central
Hospital under the care of Dr. Gonzalo Fraser. That same day, an
intravenous pyelogram (IVP) was obtained that revealed an
obstruction. Hinsberger was released on January 12 and
transported back to Wildwood. Also on January 12 he was
transferred to Cook Inlet Pretrial Facility (Cook Inlet) in
Anchorage so that he could receive medical care. That same day,
Hinsberger was seen by Cook Inlet's medical personnel at
approximately 8:00 p.m.
On January 14 Hinsberger was seen by Dr. Kevin Tomera
in Anchorage. Dr. Tomera diagnosed Hinsberger with kidney stones
that would probably pass in one month and recommended that
Hinsberger drink a lot of fluids. Dr. Tomera advised Hinsberger
to return if the kidney stones did not pass in one month because
Hinsberger would need an IVP and probably stone manipulation. On
the same day, Hinsberger was transferred to Homer where he went
to the emergency room and was seen by Dr. Paul Eneboe around 9:00
p.m. Hinsberger was then transported to Wildwood and was seen by
medical staff after his arrival.
Hinsberger claims that his pain medications on January
18 were inappropriately interrupted. Then, on January 19
Hinsberger was placed in medical segregation per Dr. Fraser's
orders. Hinsberger was placed back on his pain medication on
January 20. On January 24 Hinsberger was transferred back to
Cook Inlet where he submitted his first request for health care
that evening. Hinsberger filed a second request for health care
on January 26. Hinsberger also claims to have filed on the same
day a prisoner grievance that was returned to him because he used
the wrong form. Hinsberger filed his third request for health
care later that same day. On January 30 Hinsberger filed his
fourth request for health care. Hinsberger filed a fifth request
for health care on February 3. Hinsberger also claims to have
filed a second prisoner grievance on February 3 that was again
returned to him because it was filed on the wrong form. The
State of Alaska denies this claim.
On February 10 Hinsberger filed his sixth and seventh
requests for health care. Hinsberger was seen by Dr. Tomera and
received a follow-up IVP on February 11. Dr. Tomera performed
surgery on Hinsberger on February 15 in which a stent was
inserted to alleviate the right renal obstruction to Hinsberger's
kidney. Hinsberger required follow-up surgery on February 25 in
which Dr. Tomera "performed a right pyeloplasty to alleviate the
right ureteral pelvic junction obstruction." Hinsberger was
hospitalized until March 2 when he was discharged and transported
back to Cook Inlet.
Hinsberger claims that he slipped on a piece of food on
the floor on March 4 after his return to Cook Inlet and that he
experienced a burning and ripping sensation in the area of the
surgical incision. He also claims to have slipped on a wet floor
on March 5 causing him to experience considerable pain in the
abdominal area. Hinsberger claims that he woke up in
excruciating pain on March 6 and when he contacted the shift
supervisor to request medical attention he was placed in the
"drunk tank." On March 9 Hinsberger was transferred back to
Wildwood and ultimately released on March 11.
B. Proceedings
In January 1996 Hinsberger brought suit against the
State of Alaska alleging negligence due to delays in medical
treatment and negligent infliction of emotional distress. The
state moved for partial summary judgment on the claim of medical
negligence in November 2000. The state attached the affidavit of
Dr. Greg O. Lund to the motion. In the affidavit, Dr. Lund
concluded that Hinsberger's condition was appropriately managed
by the state and that Hinsberger received the prescribed
medications in an appropriate fashion. Dr. Lund summarized that
all of the care provided to Hinsberger during his incarceration
was "appropriate, timely, and well within the standard of care."
It appears from the record that Hinsberger did not oppose this
motion. The superior court granted the state's motion for
partial summary judgment on the issue of medical negligence.
In January 2001 the state moved for partial summary
judgment on the remaining claim of NIED. The state argued that
Hinsberger was no longer able to claim NIED as a result of
physical injury because the superior court granted summary
judgment in favor of the state on the claim of medical
negligence. In the absence of any physical injury caused by the
state, the state argued that Hinsberger's only claim was that
NIED resulted from a breach of a preexisting duty owed to him by
the state. However, the state asserted, Hinsberger would be
unable to establish the breach of a preexisting duty because the
grant of summary judgment in favor of the state on the issue of
medical negligence established that the state had met the
requisite standard of care.
Hinsberger opposed the motion, arguing that the issue
was not one of medical negligence but whether Hinsberger was
provided with the health care services required to prevent or
alleviate pain and suffering. The superior court granted partial
summary judgment in favor of the state on the issue of NIED.
Because the superior court disposed of all the claims on motions
for summary judgment, the court entered final judgment in favor
of the state.
Hinsberger appeals only the superior court's grant of
the state's motion for partial summary judgment on the NIED
claim. He does not appeal the earlier grant of partial summary
judgment in the state's favor on the issue of medical negligence.
III. STANDARD OF REVIEW
We review an appeal from summary judgment de novo.1 "A
superior court's grant of summary judgment must be affirmed if
the evidence in the record fails to disclose a genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law."2 "All reasonable factual inferences must be
drawn in favor of the party opposing summary judgment."3 If we
must answer questions of law, we will "adopt the rule of law
which is most persuasive in light of precedent, reason and
policy."4
IV. DISCUSSION
The Superior Court Did Not Err in Granting the State's
Motion for Partial Summary Judgment.
Hinsberger argues that the state failed to provide him
with required medical services to prevent his pain and suffering.
He asserts that the state failed to provide prescription
medications at the appropriate intervals and that his requests
for medical treatment were denied because he failed to file the
proper form. Because the state owed Hinsberger a duty to provide
him with medical care during his incarceration, he argues that he
falls under the preexisting duty exception to the rule barring
recovery for NIED without physical injury.
In Hancock v. Northcutt,5 we held that damages are not
awarded for NIED in the absence of physical injury.6 However, we
have allowed two exceptions to this rule: the preexisting duty
exception and the bystander exception.7 Hinsberger relies on
Chizmar v. Mackie8 in arguing that he has a viable claim for
NIED. In Chizmar, we held that a plaintiff can recover for
emotional distress caused by mere negligence "where the defendant
owes the plaintiff a preexisting duty."9
The state owed Hinsberger a duty to provide him with
necessary medical care under AS 33.30.011.10 But establishing
that the state owed Hinsberger a duty is only the first step in
the analysis. The next step is to consider whether the duty was
breached. We have held that "[i]n order to maintain a NIED claim
there must be a breach of a duty arising out of a pre-existing
contractual or fiduciary relationship."11
Hinsberger did assert a claim for medical negligence,
claiming that he was injured because of the state's delay in
providing him with medical treatment, but his claim was rejected
on the state's motion for partial summary judgment.
The state moved for partial summary judgment on the
negligent medical care claim, attaching the affidavit of Dr. Greg
O. Lund, a urologist certified by the American Board of Urology,
with its motion. Dr. Lund opined that Hinsberger received all of
his medications as prescribed and that he received treatment in a
timely manner, "well within the standard of care." Hinsberger
failed to respond to the state's motion for partial summary
judgment. The superior court granted the state's motion for
partial summary judgment on the issue of medical negligence.
Because Hinsberger could not make a separate claim for NIED based
on breach of a preexisting duty where the superior court
previously found "that there was no medical negligence," the
superior court properly granted the state's motion for summary
judgment on the NIED claim.
We note that the state was not entitled to summary
judgment on its first motion, concerning medical negligence,
merely because Hinsberger failed to respond to the motion. We
have held that a movant does not have a right to summary judgment
merely because the non-moving party fails to respond.12 Here, the
state offered the affidavit of Dr. Lund that the treatment
offered to Hinsberger met the applicable standard of care. Dr.
Lund's affidavit addressed not only the competency of medical
care that Hinsberger received from physicians and nurses but also
the appropriateness and timeliness of Department of Corrections's
responses to Hinsberger's various complaints and requests for
medication or additional treatment. Hinsberger failed to
controvert Dr. Lund's opinion with expert affidavits. Therefore,
the superior court found that the state did not breach its duty
to Hinsberger in providing medical care.
This case is similar to Kendall v. State, Division of
Corrections.13 In Kendall, two defendants moved for summary
judgment on a medical malpractice claim offering an advisory
panel report in which the experts stated that Kendall's care had
been proper.14 The superior court granted summary judgment in
favor of the defendants.15 We affirmed the grant of summary
judgment holding that, once the defendants presented an expert
opinion that Kendall was properly cared for, the burden shifted
to Kendall to demonstrate how she would prove her case.16 We
stated that the "defendants' motion was sufficient to establish
the absence of a genuine issue as to negligence" and Kendall
"presented no expert affidavits and did not show, based on the
evidence that was presented, that a reasonably arguable case of
medical negligence existed."17
Hinsberger has not appealed the grant of summary
judgment on the issue of medical negligence. Because the
superior court ruled that the state did not breach its duty as a
matter of law, Hinsberger will be unable to prove a claim for
NIED, as he will be unable to establish a breach of the
preexisting duty.18
Hinsberger also claims that his requests for medical
attention were ignored by the state because he used the wrong
form or failed to follow the appropriate procedure. But he fails
to show that the state breached any preexisting duty by these
acts. And he fails to offer any explanation, even if the
allegations are true, of a link between these actions and his
claim for NIED. In short, Hinsberger fails to allege causation.
Finally, Hinsberger argues that he is owed a duty under
Cleary v. Smith19 that is separate and distinct from the duty owed
to him under AS 33.30.011(4). Hinsberger argues that Cleary,
which involved a court-sanctioned settlement agreement,20 imposes
a duty on the state to provide medical services that are
comparable in quality to those available to the general public
and which are required to prevent or alleviate pain and
suffering. In contrast, AS 33.30.011(4) requires the state to
provide necessary medical services to prisoners. Even if the
Cleary settlement agreement did impose an additional duty on the
state, Hinsberger has failed to show how this duty was breached
in light of Dr. Lund's affidavit and the case law discussed
above.
V. CONCLUSION
Because Hinsberger did not claim that he suffered any
physical injury as the result of the state's alleged negligent
infliction of emotional distress upon him, he was required to
show that the state had a preexisting duty to him that it
breached. The source of such a duty is AS 33.30.011, requiring
the Department of Corrections to provide necessary medical
services for prisoners in jail. But the superior court had
already correctly ruled that the state had not breached its duty
to provide necessary medical services. Therefore, Hinsberger
failed to show how he could prove his NIED case following the
grant of summary judgment to the state on the issue of medical
negligence. For this reason, we AFFIRM the superior court's
grant of summary judgment in the state's favor on the issue of
NIED.
_______________________________
1 Ganz v. Alaska Airlines, Inc., 963 P.2d 1015, 1017
(Alaska 1998).
2 Johnson v. Olympic Liquidating Trust, 953 P.2d 494,
496 (Alaska 1998).
3 Id.
4 Ganz, 963 P.2d at 1017 (internal quotations omitted).
5 808 P.2d 251 (Alaska 1991).
6 Id. at 257.
7 See Tommy's Elbow Room, Inc. v. Kavorkian, 727 P.2d
1038, 1043 (Alaska 1986); Chizmar v. Mackie, 896 P.2d 196, 203
(Alaska 1995). The bystander exception is not applicable to the
present case as Hinsberger is not claiming that he suffered
emotional distress from witnessing harm to a close relative.
8 896 P.2d 196 (Alaska 1995).
9 Id. at 203.
10 AS 33.30.011, titled "Duties of commissioner," states
in relevant part:
The commissioner shall
. . . .
(4) provide necessary
(A) medical services for prisoners
in correctional facilities or who are
committed by a court to the custody of the
commissioner, including examinations for
communicable and infectious diseases . . . .
Because there is a statutory duty imposed on the state, it is
unnecessary to analyze the duty under the common law. See Karen
L. v. Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 953 P.2d 871, 875 n.9 (Alaska 1998); M.A. v. United
States, 951 P.2d 851, 853 (Alaska 1998).
11 Caudle v. Mendel, 994 P.2d 372, 376 (Alaska 1999).
12 Martinez v. Ha, 12 P.3d 1159, 1162 (Alaska 2000).
13 692 P.2d 953 (Alaska 1984).
14 Id. at 954.
15 Id.
16 Id. at 955.
17 Id.
18 Silvers v. Silvers, 999 P.2d 786, 793 (Alaska 2000)
(stating that "[a]s with any negligence case, the plaintiff must
establish (1) a duty of care; (2) breach of the duty; (3)
causation; and (4) harm").
19 No. 3AN-81-5274 Civ. (Alaska Super., December 21,
1990).
20 Id. at 1.
