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Hinsberger v. State8/23/2002
ssed 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. 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. The superior court granted summary judgment in favor of the defendants. 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. 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."
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 pre-existing duty.
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 pre-existing 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. Smith 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, 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 pre-existing 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.
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