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Hinsberger v. State8/23/2002
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 pre-existing duty owed to him by the state. However, the state asserted, Hinsberger would be unable to establish the breach of a pre-existing 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 p
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