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Higgins v. Hutzel Hospital12/12/2000
UNPUBLISHED
Defendant appeals by leave granted from the trial court's order denying in part its motion for summary disposition of plaintiff's claims for negligent and intentional infliction of emotional distress. We affirm.
In 1996, plaintiff and his wife learned that the fetus she was carrying had a serious heart defect. Plaintiff's wife testified that she was told that the fetus had a zero to five percent chance of survival. Plaintiff's wife then decided to terminate the pregnancy; plaintiff supported her decision. The termination procedure was scheduled for April 25, 1996, at defendant Hutzel Hospital (hereinafter Hutzel). The procedure involved the injection of potassium chloride into the heart of the fetus through a needle inserted through the mother's abdomen. The procedure was performed by defendant Ralph L. Kramer, M.D.
Plaintiff decided that he would be present during the procedure in order to lend emotional support to his wife. Plaintiff alleges, and his wife confirms, that before the procedure began, Dr. Kramer informed them that he was "shorthanded" and might need plaintiff's assistance. Both plaintiff and his wife testified that at the time they thought the doctor was joking. Nonetheless, plaintiff testified that before entering the room where the procedure was done, he told the doctor that he did not want to participate. Although Dr. Kramer testified that he had no independent recollection of this particular procedure, he insists that he would never have made these remarks.
Plaintiff also testified that he asked Dr. Kramer how much potassium chloride would be needed, as well as "how much would it take to hurt him or me." According to plaintiff, Dr. Kramer responded five cc's and 25 to 30 cc's, respectively.
According to plaintiff, Dr. Kramer had some difficulty during the procedure. After the first injection failed to cease fetal cardiac activity, plaintiff claims that Dr. Kramer asked him to get a second bottle of potassium chloride from a shelf. Plaintiff says he complied, and alleges he was instructed by the doctor to hold the bottle while the doctor filled a syringe. According to plaintiff, when the second attempt also failed, Dr. Kramer then asked him to go down the hallway and get a "resident" and ask for more potassium chloride. Plaintiff testified he did as he was asked, returning with an unidentified female, who, when asked by Dr. Kramer to draw some potassium chloride, replied that she was not sure how to do it. At that point, plaintiff testified he told the doctor that he would do it. Plaintiff alleges that Dr. Kramer then told plaintiff to get another syringe and load it with potassium chloride. Plaintiff testified that the following events then took place:
First I tried to hand him the needle and he says, "No. Take off the end of the syringe," which I did, and then he said for me to screw it on the catheter. I tried to hand it to him. He goes, "No. Screw it on the catheter," and I did and then I went to sit down and he goes, "No. You're going to have to inject it." And I looked at him and he said, "Now," and then I plunged it for him. He said, "Now" and then he said, "Plunge it," and then I put it in for him.
Plaintiff asserts that fetal heart activity ceased after the third injection.
Plaintiff's wife confirmed that it took three attempts before fetal heart activity ceased. Conversely, Dr. Kramer was insistent that if the first injection were to fail, the procedure is always successful by the second injection. Dr. Kramer did acknowledge that if, hypothetically, the second injection were to fail, he would make a third attempt. Plaintiff's wife also agreed that plaintiff held the via
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