Opinion
Case No. 99-12575, Chapter 7, Adv. No. 00-1018.
January 8, 2001
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant-Debtor Anthony E. Numrich's motion for summary judgment (Doc. 16), Plaintiff Deborah Matlock's response (Doc. 30), Dr. Numrich's reply (Doc. 32), and the parties' various affidavits and depositions.
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the general order of reference entered in this district. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I).
The underlying complaint arises under 11 U.S.C. § 523(a)(6). Matlock's complaint consists of two counts. In Count I, Matlock contends that Dr. Numrich committed malpractice by severing the blood supply to Matlock's toe. In Count II, Matlock contends that Dr. Numrich altered his medical records in an attempt to show that Matlock caused her postoperative problems by changing her own bandages.
Dr. Numrich contends that as a matter of law Matlock's allegations against him do not show that he acted with the requisite intent to harm her for the debt to be nondischargeable under § 523(a)(6).
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Bankruptcy Rule 7056. In considering a motion for summary judgment, the court is not to weigh the evidence, but rather must determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986). The court must view the underlying facts in a light most favorable to the non-moving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The following facts are not disputed. Dr. Numrich, a podiatrist, began treating Matlock for foot pain in August, 1998. After cortisone shots proved to be ineffective, Dr. Numrich operated on Matlock's foot on October 15, 1998 to remove a nueroma. On October 21, 1998, Dr. Numrich observed one of Matlock's toes to be "dusky". Accordingly, he prescribed a medicine to increase the blood supply to the toe. A second prescription was added on October 22, 1998 also to increase vascularization to the toe. On October 26 and 28, 1998, Dr. Numrich observed Matlock's toe and believed it to look better.
However, by November 2, 1998, Dr. Numrich observed necrosis around the incision and referred Matlock to Rudolph Moreira, a vascular surgeon. Matlock testified at her deposition that because Dr. Moreira was not covered by her insurance plan, Dr. Numrich offered to pay for her medical treatment with Dr. Moreira. Matlock declined an immediate appointment at Dr. Moreira's Montgomery office because she was unfamiliar with the area. Instead, she saw Dr. Moreira at his Fairfield office on or around November 4, 1998.
On November 7, 1998, Dr. Moreira amputated Matlock's toe. Matlock received flowers from Dr. Numrich following the procedure. The pathology report from the amputated toe indicated gangrene. Dr. Moreira opined that the amputation was necessitated not by an infection but by Dr. Numrich's surgical procedure which compromised the blood supply to the toe.
In November 1999, Matlock filed a malpractice action against Dr. Numrich in state court. This action was stayed by Dr. Numrich's subsequent bankruptcy petition. Dr. Numrich testified at his deposition that his bankruptcy was precipitated by his divorce.
During her deposition, Matlock repeatedly testified that she had no reason to believe that Dr. Numrich intended to harm her either preoperatively, during the surgery, or postoperatively. See Doc. 19, at p. 20, 26, 33, 41, 56. She testified that she had no reason to believe that Dr. Numrich was malicious towards her in any way. See id. at p. 62. She further testified that she did not think that Dr. Numrich knowingly cut the blood supply to her toe. See id. at p. 63. By was of an affidavit, Dr. Numrich testified that he never intended to harm or injure Matlock in any way.
Pursuant to§ 523(a)(6), a debtor is not discharged from a debt for willful and malicious injury. For an injury to be willful, the debtor must have intended not only his conduct, but the consequences of his conduct. Kawaauhau v. Geiger, 523 U.S. 57 (1988). Interpreting Kawaauhau, the Sixth Circuit has held that a debt is nondischargeable when the debtor "desires to cause the consequences of his act, or . . . believes that the consequances are substantially certain to result from it." In re Markowitz, 190 F.3d 455, 464 (6th Cir. 1999).
Under § 523(a)(6), a debtor is deemed to have acted maliciously when he acts in conscious disregard of his duties or without just cause or excuse. Murray v. Wilcox, 229 B.R. 411, 419 (Bankr.N.D.Ohio 1998). After the Supreme Court's decision in Kawaauhau, the few courts to address the issue are split as to whether "willful and malicious injury" is a unitary or a dual standard requiring proof of both a willful injury and a malicious injury. In re Moffitt, 252 B.R. 916, 922, fn. 5 (B.A.P. 6th Cir. 2000) (citations omitted). Until such time as the Sixth Circuit directly addresses the issue, this Court will assume that the term "malicious" has not been subsumed by the term "willful."
Count I
For purposes of this motion for summary judgment, we must assume, as alleged by Matlock, that Dr. Numrich did sever the blood supply to Matlock's toe, thereby causing the loss of the toe. However, there is absolutely no evidence to support a contention that Dr. Numrich intended to sever the blood supply or intended for Matlock to lose her toe. In other words, we find that with respect to the operative procedure, Dr. Numrich neither intended the act nor intended the harm. See Kawaahau, 523 U.S. at 57. This finding is supported by Matlock's deposition testimony that she had no reason to believe that Dr. Numrich intended to harm her. At most, Matlock has stated a claim for medical malpractice, or negligence, which is a dischargeable debt.
Matlock contends that because a severing of the blood supply was substantially certain to result in the loss the toe, the debt is nondischargeable. Matlock's misinterpretation of the test in In re Markowitz would improperly convert all garden-variety malpractice claims into nondischargeable debts. For a debt to be nondischargeable under § 523(a)(6), the plaintiff must prove that the debtor 1) intended the act and 2) intended the consequences or be substantially certain that the consequences would result. In the present case, as stated above, Dr. Numrich never intended to sever the blood supply.
Matlock also contends that Dr. Numrich failed to treat her properly postoperatively and should have referred her to a vascular surgeon sooner. Similarly, as discussed above, Matlock has, at most, stated a claim for malpractice.
Although not germane to this decision, we note that Matlock delayed seeing the vascular surgeon by two days on her own accord.
Furthermore, there is no indicia of malice on the part of Dr. Numrich. To the contrary, Dr. Numrich attempted to treat Matlock's condition conservatively with medication and only later performed surgery. He saw Matlock numerous times after the surgery and prescribed two medicines for the purpose of increasing blood circulation to the toe. When he believed the toe to be necrotic, he referred Matlock to a specialist, even offering to pay for the specialist's medical care. He sent Matlock flowers after the amputation. These acts belie an allegation of a conscious disregard of Dr. Numrich's duties toward Matlock.
Accordingly, with regard to Count I of Matlock's complaint, we find that Matlock has failed to state a claim against Dr. Numrich under § 523(a)(6).
Count II
For purposes of this motion for summary judgment, we must also assume, as alleged by Matlock, that on three occasions Dr. Numrich added or caused to be added notations to his medical records that Matlock changed her bandages against his instructions. Matlock's theory is that the later notations are false and that the notations were added to protect Dr. Numrich against a malpractice claim by creating a defense that Matlock caused an infection of her toe.
Dr. Numrich does not dispute that the notations were added later. He testified at his deposition that the notations were added to make the medical record more accurate as well as to provide protection in the event that a claim was made against him. Although a later addition to a medical record may render the addition subject to closer scrutiny, Matlock has cited no "rule" requiring medical records to be made contemporaneously in order to be true. Similarly, additions made to a medical record out of a concern of a possible malpractice action are deserving of closer scrutiny, but are not presumed to be false.
Matlock testified at her deposition that she did on one occasion, change her bandages against Dr. Numrich's instructions. She was able to do so because she had dressings from another unrelated wound that she was allowed to change. Therefore, on one of the three occasions, Dr. Numrich's later addition to the medical record was true.
Thus, we are left with Matlock's allegation, which we must assume to be true for purposes of this motion for summary judgment, that on two occasions, Dr. Numrich added or caused to be added false additions to the medical record that Matlock changed her own bandages.
As contended by Matlock, the injury to her toe occurred when the blood supply to it was severed. The two false additions to the medical record that she changed her own bandages did not cause the loss of Matlock's toe. Thus, while the addition to the medical record was certainly intentional, there is no causal connection between the intent to act, i.e., the false addition to the record, and the underlying harm, i.e., the loss of Matlock's toe. While it is possible that in some circumstances the elements of intent to harm and malice may be shown by subsequent circumstantial evidence, we do not find those circumstances to be present in this case. In this regard, the Court notes that nondischargeable debts under § 523(a)(6) are generally reserved for those debts that are "socially reprehensible" and "not worthy of discharge." See In re Moffitt, 252 B.R. at 924 (citations omitted).
Also, this Court questions whether an attempt to deprive Matlock of a dischargeable medical malpractice claim converts that claim into a nondischargeable debt under § 523(a)(6). In any event, Matlock was not deprived of anything because, tragically, Dr. Numrich had no malpractice coverage. Important to this decision is the additional fact that Dr. Numrich did not file bankruptcy to avoid paying on an uninsured malpractice claim, rather, his bankruptcy was caused by debts relating to his divorce.
Accordingly, with regard to Count II of Matlock's complaint, we find that she has failed to state a claim against Dr. Numrich under § 523(a)(6).
In conclusion, the motion for summary judgment is GRANTED.
IT IS SO ORDERED.