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Ryan v. Brown5/11/2005
FOR PUBLICATION
Tonia and Kevin Ryan ("the Ryans") appeal the trial court's order granting partial summary judgment to Dr. Thomas Brown and Decatur County Memorial Hospital ("DCMH"). We affirm in part, reverse in part, and remand.
Issues
The Ryans raise three issues for our review, which we consolidate and restate as follows:
1.Whether the trial court properly determined as a matter of law that the Indiana Medical Malpractice Act does not create a separate cause of action for the wrongful death of a fetus; and
2.Whether the trial court properly determined as a matter of law that neither Tonia nor Kevin Ryan have a claim for negligent infliction of emotional distress.
Facts and Procedural History
In 1998, Tonia Ryan became pregnant with her husband, Kevin Ryan's, baby. This was Tonia's first pregnancy. Prior to becoming pregnant, Tonia had no significant past medical history and no history of hypertension. Tonia's doctor was Dr. Thomas Brown. Tonia had her first prenatal visit with Dr. Brown on May 12, 1998. Throughout the rest of the year, Tonia had several appointments with Dr. Brown. During each of these check-ups, Tonia's blood pressure was taken. On June 8, 1998, Tonia's blood pressure was recorded as 170/80, and on September 28, 1998, Tonia's blood pressure was 150/78. Dr. Brown did not give Tonia any advice about her blood pressure during either of these check-ups. On October 26, 1998, Tonia's blood pressure was 150/90, and Dr. Brown instructed Tonia to stay off her feet as much as possible. Tonia's blood pressure on November 9, 1998, was 180/80 but a second reading only found it to be 150/82. Tonia's blood pressure on November 16, November 20, and November 23 were 140/90, 170/80 with a second reading of 140/78, and 170/90 with a second reading of 163/84.
On December 7, 1998, Tonia, who at that time was in her thirty- fourth week of pregnancy, called Dr. Brown's office to report her concern about having noticed decreased fetal movement over the previous two days. Tonia and Kevin both met with Dr. Brown later that day. Tonia's blood pressure was recorded as 172/98, and she had 4+ proteinuria in her urine. Dr. Brown did detect fetal heart tones. Dr. Brown diagnosed Tonia with preeclampsia, and advised her to admit herself to DCMH. Preeclampsia is a pregnancy-related condition that causes high blood pressure and can affect an expecting mother's kidneys, liver, brain, and placenta. Preeclampsia, available at http://my.webmd.com/hw/health_guide_atoz/stp1755.asp?navbar=hw2837. If untreated, preeclampsia may deprive a fetus of oxygen. Id.
Kevin and Tonia both went to DCMH where Kevin helped Tonia through the admissions process. Tonia was admitted to DCMH at 3:50 p.m. with an initial blood pressure of 190/116. Shortly after Tonia was admitted to DCMH, Kevin had to leave for work. The initial nursing assessment of Tonia at DCMH revealed that she had abdominal and uterine pain, edema in her feet and lower legs, visual disturbances, and a headache. These symptoms suggested the possibility of an impending placental abruption that could threaten the life of Tonia and Kevin's child, whom they had named Ray. This information was not timely relayed to Dr. Brown. At 6:45 p.m., Tonia discovered that she had vaginal bleeding and reported this to her nurse. Tonia's nurse reported this to Dr. Brown at 7:10 p.m., and Dr. Brown instructed the nurse to have a biophysical profile performed.
Dr. Brown arrived at the hospital at approximately 8:15 p.m. and an ultrasound was preformed on Tonia shortly thereafter. The ultrasound revealed that Ray had died in utero. Kevin was called at work and asked to
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