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Escalante v. Koerner8/10/2000
Opinion by Justice Yañez
This appeal involves claims of medical negligence, gross negligence, and intentional infliction of emotional distress arising from the demise of one fetus in a twin pregnancy and the handling of the remains of that fetus. The trial court granted a directed verdict in favor of all defendants on all claims. We affirm the trial court's judgment with respect to the negligence claims, and also affirm the trial court's judgment that appellant Margarito Escalante take nothing on his claim for intentional infliction of emotional distress. However, we reverse and remand the claim of appellant Ramona Escalante for intentional infliction of emotional distress against appellee Dr. James D. Koerner.
In late 1993 appellant Ramona Escalante became pregnant with twins. Her obstetrician/gynecologist was Dr. Koerner. On December 27, 1993 Escalante had a sonogram and the fetal heart rate of Twin B at that time was 163, within normal range. Because Ramona would be thirty-five years old when the twins were due, Dr. Koerner recommended that Ramona also undergo amniocentesis. The amniocentesis was performed by appellee Dr. Shawn Strain on January 20, 1994, when Ramona was approximately eighteen weeks pregnant. During the amniocentesis Twin B was observed as having a very low heart rate. The next day Twin B's heart had stopped altogether.
Thereafter Dr. Koerner advised Ramona and her husband Margarito that Twin B was "reabsorbing" and that there was nothing left of Twin B. Ramona had several sonograms after the demise of Twin B, and she asked to see Twin B on the sonogram monitor. However, Ramona testified that the monitor would be turned so she could not see it, and Dr. Koerner would tell her that she "didn't need to see a baby that was in pieces." Despite Dr. Koerner's assurances that there would be nothing left of Twin B when Twin A was born, the Escalantes contacted a funeral home to arrange for a burial of Twin B and had a small coffin made.
In June 1994 Ramona entered a hospital for Twin A to be delivered by caesarian section. The Escalantes took with them the small coffin they had for Twin B in anticipation of receiving the remains of Twin B. Before the surgery Ramona was asked to sign a consent form that authorized the doctor and hospital to "dispose of, in accordance with the accustomed practice, any tissue or body parts surgically removed." Ramona testified that she reiterated her desire to receive whatever remained of Twin B, and Dr. Koerner told her that the form referred only to the afterbirth. With that understanding, she signed the consent form. While Twin A was being delivered Ramona again asked Dr. Koerner if anything was left of Twin B. Ramona testified that Dr. Koerner told her "there is nothing left. Concentrate on your little boy."
Dr. Koerner testified that neither of the Escalantes ever communicated to him a desire to receive the remains of Twin B. He testified that Ramona's testimony about the sonogram monitor being turned away from her view was false. He also testified that a nurse secured Ramona's signature on the consent form authorizing ""dispos of, in accordance with the accustomed practice, any tissue or body parts surgically removed," and that he was not even present in the room at that time.
In March 1996 the Escalantes learned that Twin B had not been wholly reabsorbed, and that photos existed of Twin B. The remains of Twin B, rather than being delivered to the Escalantes, were disposed of as surgical waste. Ramona testified that, after learning that there had been some remains of Twin B despite Dr. Koerner's statements to the contrary, she "was feeling lied to. I was feeling - I became sick, a
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