Opinion
No. 868SC848
Filed 7 April 1987
1. Parent and Child 1 — loss of parental consortium — no action in N.C. A claim for loss of parental consortium is not recognized in N.C., and it is not a denial of equal protection or due process to allow a spouse but not a child to recover for the loss of consortium of an injured person or to allow the child of a deceased parent but not the child of a brain-damaged parent to recover for such loss.
2. Physicians, Surgeons and Allied Professions 11 — surgery more extensive than anticipated — no battery The trial court did not err in entering a summary judgment order dismissing plaintiffs' claims for battery based on defendant surgeon's expansion of a laparoscopy (band-aid surgery) into a total abdominal hysterectomy where the evidence showed that the surgery was expanded because of conditions discovered during the laparoscopy; a request for sterilization signed by the patient and plaintiff husband authorized defendant to perform a laparoscopy and "to do any other procedure that his judgment may dictate during the above operation"; the patient signed an operation consent form which authorized additional procedures "if any conditions are revealed at the time of the operation that were not recognized before and which call for procedures in addition to those originally contemplated"; and the expanded surgery was thus not unauthorized.
3. Physicians, Surgeons and Allied Professions 21 — malpractice — no punitive damages The trial court in a medical malpractice action properly dismissed plaintiffs' claims for punitive damages where there was no evidence of any aggravated facts which would support such claims.
APPEAL by plaintiffs from Llewellyn, Judge. Judgment entered 18 March 1986 in Superior Court, LENOIR County. Heard in the Court of Appeals 6 January 1987.
Kenneth B. Oettinger, Grover C. McCain, Jr. and Boyce, Mitchell, Burns Smith, by Robert E. Smith, for plaintiff appellants.
Hornthal, Riley, Ellis Maland, by L. P. Hornthal, Jr. and Robert B. Hobbs, Jr., for defendant appellee.
Judge PHILLIPS dissenting.
On 18 February 1981, Judith Hill was admitted to Lenoir Memorial Hospital for the purpose of undergoing a permanent sterilization procedure called laparoscopy. Laparoscopy, often referred to as "band-aid surgery," is a minor operation where small incisions are made in the abdominal wall, a laparoscope is inserted in the incision, and the fallopian tubes are sealed by clips or an electric current. The patient generally is released from the hospital the same day.
Both Mrs. Hill and Mr. Hill signed a request for sterilization on 18 February 1981 which authorized Dr. Gilmore to perform the laparoscopy. Mrs. Hill also signed an operation consent form that same day.
On 19 February 1981, during the operation it was discovered that the patient's tubes and ovaries were completely bound down bilaterally by adhesions. Dr. Gilmore also discovered a cystic mass and chronic infection. Dr. Gilmore determined that it would be in the patient's best interest to perform a total abdominal hysterectomy. He left the operating room to consult with Mr. Hill. He then returned to the operating room and performed the hysterectomy.
Post-operatively, Mrs. Hill was noted to be confused. She was subsequently diagnosed as suffering from hypoxic brain damage (brain damage caused by a deprivation of oxygen to the brain) which occurred either during or immediately following the surgery performed by Dr. Gilmore.
On 11 January 1982, Mrs. Hill, through her guardian ad litem, Barbara Ipock, Timothy W. Hill, her husband, and Timothy Jason Hill, her son, through his guardian ad litem, instituted this action against Dr. Gilmore and several others, including an anesthesiologist, a nurse anesthetist and Lenoir Memorial Hospital, Inc., to recover damages for the injuries to Mrs. Hill and her family's loss of consortium.
Defendant Gilmore filed a motion for summary judgment on 5 April 1982. Plaintiffs filed a Rule 56 (f) motion requesting an order allowing the late filing of the affidavit of their gynecological expert. The hearing was set for 1 November 1982.
On 17 November 1982, the trial court entered orders denying plaintiffs' Rule 56 (f) motion and allowing Dr. Gilmore's motion for summary judgment. Plaintiffs excepted and the case proceeded against Lenoir Memorial Hospital, Inc. and the anesthesia defendants.
Prior to trial, the remaining defendants obtained summary judgment on the issue of Timothy Jason Hill's loss of parental consortium. After the trial had begun, the anesthesiologist settled with the remaining plaintiffs, Mr. and Mrs. Hill.
At trial the jury returned a verdict in favor of the plaintiff Judith Hill for $600,000 and plaintiff Timothy W. Hill for $150,000 against Lenoir Memorial Hospital and the nurse anesthetist. In its judgment, the trial court reduced Mrs. Hill's award by $100,000, presumably to reflect the earlier settlement.
Plaintiffs appealed the trial court's order granting defendant Gilmore's motion for summary judgment. In an opinion reported in 73 N.C. App. 182, 326 S.E.2d 271, disc. rev. denied, 314 N.C. 116, 332 S.E.2d 481 (1985), this Court vacated the order granting Dr. Gilmore's motion for summary judgment and remanded the case for further proceedings.
On remand, plaintiffs filed a motion for leave to amend the complaint to allege claims against Dr. Gilmore for battery and for punitive damages. The motion was allowed.
In response to the amended complaint, Dr. Gilmore filed a motion for partial summary judgment, alleging that there was no genuine issue of material fact with respect to (1) the claim of the minor plaintiff, Timothy Jason Hill, for loss of parental consortium and (2) the claims of Barbara Ipock, guardian ad litem for Judith Hill, and of Timothy W. Hill, individually, for battery and punitive damages.
On 18 March 1986, the trial court allowed defendant Gilmore's motion for partial summary judgment and dismissed Timothy Jason Hill's claim for loss of parental consortium, and the claims for battery and punitive damages of Barbara Ipock, guardian ad litem for Judith Hill, and of Timothy W. Hill, individually. The order of partial summary judgment was later amended by the trial court to find that its ruling dismissing part of plaintiffs' claims affected a substantial right of plaintiffs and that there was no just cause for delay of an appeal from said rulings.
On appeal, defendant Gilmore cross-assigns as error the prior decision of the Court of Appeals in Ipock v. Gilmore, 73 N.C. App. 182, 326 S.E.2d 271, disc. rev. denied, 314 N.C. 116, 332 S.E.2d 481 (1985). From the judgments of the trial court, plaintiffs appeal.
Plaintiffs first contend that the trial court committed reversible error in allowing Dr. Gilmore's motion for partial summary judgment, dismissing the claim of Timothy Jason Hill for loss of parental consortium. We disagree.
Recognition of the claim of loss of parental consortium has twice been refused by the courts of this state. Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432 (1949); Azzolino v. Dingfelder, 71 N.C. App. 289, 322 S.E.2d 567 (1984), rev'd in part on other grounds, 315 N.C. 103, 337 S.E.2d 528 (1985), cert. denied, 107 S.Ct. 131 (1986). This asserted cause of action was not acknowledged at common law and it has no statutory sanction. Henson at 176, 56 S.E.2d at 434. It is the duty of the judiciary to enforce the law as we find it and to determine if a cause of action is existent or non-existent as the law now exists, not to create new claims. Id.
We are aware of the dictum by way of footnote in the first appeal of this case which stated:
We do note . . . that in other suits involving an indirect impact on children, our appellate courts have declined to recognize a cause of action for loss of parental consortium. See Henson v. Thomas, 231 N.C. 173, 56 S.E.2d 432 (1949); Azzolino v. Dingfelder, 71 N.C. App. 289, 322 S.E.2d 567 (1984). However, arguably in this case, the impact on the child is directly foreseeable.
Ipock v. Gilmore, 73 N.C. App. 182, 188, 326 S.E.2d 271, 276, disc. rev. denied, 314 N.C. 116, 332 S.E.2d 481 (1985).
While the loss of parental consortium in situations such as the present case may be quite real and worthy of compensation, recognition of a new cause of action is a policy decision which falls within the province of the legislature. "The `excelsior cry for a better system' in order to keep step with the new conditions and spirit of a more progressive age must be made to the Legislature, rather than to the courts." Henson at 176, 56 S.E.2d at 434.
Plaintiffs contend that it would be a denial of both equal protection and due process (1) to allow a spouse but not a child to recover for the loss of consortium of an injured person, or (2) to allow the child of a deceased parent but not the child of a brain-damaged parent to recover for such loss. We disagree.
First, the spousal relationship and the relationship between parent and child are not the same. Companionship, service, responsibility, love and affection between spouses differ in both degree and kind from those of a parent-child relationship. The law is not constitutionally required to treat these relationships as identical. See Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982).
Second, allowing the child of a deceased parent but not the child of a brain-damaged parent to recover for such loss does not deny equal protection or due process. The distinction is not between kinds of children but between a defendant's scope of liability for causing fatal as distinct from nonfatal injuries to the people who are the immediate victims of his or her negligence. Id.
Also, if the parent lives then the tangible aspects of a child's loss can be included in the compensation awarded in the parent's own cause of action. Halberg v. Young, 41 Haw. 634, 59 A.L.R.2d 445 (1957). With this in mind, a state legislature could rationally conclude that only upon the death of a parent should a child be compensated for intangible losses. See Russell v. Salem Transp. Co., 61 N.J. 502, 295 A.2d 862 (1972).
Plaintiffs argue that the middle tier test applicable in some equal protection cases should be used here. See Dixon v. Peters, 63 N.C. App. 592, 306 S.E.2d 477 (1983). We disagree.
There is neither a semi-suspect class nor a semi-fundamental interest involved in the present situation. We find no basis to support plaintiffs' argument that the middle tier (substantial state interest) test should be used. Therefore, all that is needed is a rational basis for denying minor plaintiff's claim. Id. Several rationales are listed as follows.
First, there is the possible overlap in recovery of claims between the injured parent and the child. Second, there is the potential increase in insurance costs. There are also the derivative nature and indirectness of the injury; the uncertainty and remoteness of damages; the multiplication of tort litigation; and the splitting of the basic cause of action. See Garza v. Kanton, 54 Cal.App.3d 1025, 127 Cal.Rptr. 164 (1976); see also Suter v. Leonard, 45 Cal.App.3d 744, 20 Cal.Rptr. 110 (1975).
We do not suggest that in situations such as the one presently before us, that a child's claim is not genuine. However, there must be a line drawn which ends a tort-feasor's liability at some point.
While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree.
Toby v. Grossman, 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 561, 249 N.E.2d 419, 424 (1969). It is the legislature's prerogative to extend such liability if they believe it proper, not ours.
This state does not recognize the claim of the minor plaintiff. The trial judge, therefore, properly granted partial summary judgment for defendant dismissing the claim for loss of parental consortium.
Plaintiffs next contend that the trial court committed reversible error in allowing defendant's motion for summary judgment, dismissing the claims of Barbara S. Ipock, guardian ad litem for Judith Hill, and of Timothy W. Hill, individually, for battery, on the ground that there were genuine issues as to material facts and defendant was, therefore, not entitled to judgment as a matter of law. We disagree.
It has been established that only an unauthorized operation constitutes a battery. See Nelson v. Patrick, 58 N.C. App. 546, 293 S.E.2d 829 (1982). In fact, the N.C. Supreme Court stated that:
. . . where an internal operation is indicated, a surgeon may lawfully perform, and it is his duty to perform, such operation as good surgery demands, even when it means an extension of the operation further than was originally contemplated, and for so doing he is not to be held in damages as for an unauthorized operation.
Kennedy v. Parrott, 243 N.C. 355, 363, 90 S.E.2d 754, 759 (1956).
The request for sterilization signed by both Judith and Timothy W. Hill authorized Dr. Gilmore to perform the laparoscopy and "to do any other procedure that his judgment may dictate during the above operation." The operation consent form which was signed by Mrs. Hill stated that, "[i]f any conditions are revealed at the time of the operation that were not recognized before and which call for procedures in addition to those originally contemplated, I authorize the performance of such procedures."
In light of the established case law above and the consent forms signed by Mrs. Hill, the trial court properly granted partial summary judgment dismissing plaintiffs' claims for battery because the evidence presented did not support such claims.
Plaintiffs lastly contend that the trial court committed reversible error in allowing defendant's motion for summary judgment, dismissing the claims of Barbara Ipock, guardian ad litem for Judith Hill, and of Timothy W. Hill, individually, for punitive damages, on the grounds that there were genuine issues as to material facts and defendant was, therefore, not entitled to judgment as a matter of law. We disagree.
In order to qualify for punitive damages in North Carolina, some element of aggravation must be proven. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976); Paris v. Kreitz, 75 N.C. App. 365, 331 S.E.2d 234, disc. rev. denied, 315 N.C. 185, 337 S.E.2d 858 (1985). In the context of an intentional tort, aggravated conduct ". . . usually consists of insult, indignity, malice, oppression, or bad motive in addition to the tort." Paris at 374, 331 S.E.2d at 241.
The record does not indicate any evidence of aggravated facts sufficient to support a claim for punitive damages. The trial court did not err in granting partial summary judgment in favor of defendant on plaintiffs' claim for punitive damages.
Defendant makes cross-assignments of error contending that the Court of Appeals erred in its first opinion in this case. "Once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question not only on remand at trial, but on a subsequent appeal of the same case." N.C.N.B. v. Virginia Carolina Builders, 307 N.C. 563, 566, 299 S.E.2d 629, 631, reh'g denied, 307 N.C. 703 (1983). Defendant's cross-assignments of error are without merit.
Affirmed.
Judge ORR concurs.
Judge PHILLIPS dissents.