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Hinsberger v. State8/23/2002
artial 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. "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." "All reasonable factual inferences must be drawn in favor of the party opposing summary judgment." 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."
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 pre-existing duty exception to the rule barring recovery for NIED without physical injury.
In Hancock v. Northcutt, we held that damages are not awarded for NIED in the absence of physical injury. However, we have allowed two exceptions to this rule: the pre-existing duty exception and the bystander exception. Hinsberger relies on Chizmar v. Mackie 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 pre-existing duty."
The state owed Hinsberger a duty to provide him with necessary medical care under AS 33.30.011. 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 " 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."
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 pre-existing 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. 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 addre
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