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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.