Opinion
CV-00-827-ST.
December 13, 2001
OPINION AND ORDER
INTRODUCTION
Plaintiff, Malvina Shusterowitz ("plaintiff"), Personal Representative of the Estate of Max Shusterowitz, originally brought this action in Marion County Circuit Court, State of Oregon, Case No. 00-C13167, Shusterowitz v. Salem Associates, LLC dba Brookstone Alzheimer's Special Care Center. Defendant, Salem Associates, LLC, filed a Notice of Removal to this court on June 15, 2000, alleging jurisdiction based on diversity of citizenship under 28 U.S.C. § 1332. In the Pretrial Order, plaintiff alleges claims for negligence, wrongful death pursuant to ORS 30. 020, punitive damages, and breach of contract based on defendant's failure to provide proper care for her husband, Max Shusterowitz ("Shusterowitz").
Defendant has now filed a Motion for Summary Judgment (docket #17) against plaintiff's claims for punitive damages and wrongful death. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c). For the reasons stated below, defendant's motion for summary judgment is denied.
FACTS
Shusterowitz was admitted as a respite resident to Brookstone Alzheimer's Special Care Center ("Brookstone") for one week from April 12 through April 19, 1998. At that time, he was 78 years old, had dementia and, therefore, was unable to care for himself. During that week, plaintiff called and spoke to Brookstone employees every day who told her that he was fine. When plaintiff and his daughter picked him up on April 19, 1998, they found that he had lost some 11 pounds, could no longer walk unassisted, was dehydrated, and was unshaven and covered with filth. The clothing he had taken with him to Brookstone were largely unused and his toiletries were untouched. Shusterowitz returned home for a few days, then went to Salem Hospital for a few days, followed by nearly a month in the Robinson Jewish Home. On June 2, 1998, less than seven weeks after leaving Brookstone, he died in Legacy Emanuel Hospital from an infection. Plaintiff claims that Brookstone's negligent care for Shusterowitz led to ensuing medical problems and ultimately his death.
ANALYSIS
I. Motion to Strike
As a threshold issue, defendant seeks to strike the affidavits submitted by plaintiff of Roger McKimmy, M. D., Erling Oksenholt, D. O., and July Thorton Bowles, R. N. for failure to comply with FRCP 56(e). Defendants asserts that they contain inadmissible legal conclusions and hearsay. Although none of the three affiants treated Shusterowitz, they give their opinions based upon their review of a long list of medical and other records, including a "brief medical summary" and a "brief weight chart summary. "According to defendant, these summaries are inadmissible hearsay because they were prepared by plaintiff's attorney. Even if the summaries are inadmissible hearsay, the three affidavits are not thereby rendered admissible.
These three affiants are offering their opinions as experts. Experts, unlike fact witnesses, may rely on hearsay, such as medical records, to render an opinion. FRE 703 ("If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject, the facts or data need not be admissible in evidence"). Instead, the admissibility of an expert opinion under FRCP 56(e) is whether "the affiant is competent to give an expert opinion and the factual basis for the opinion is stated in the affidavit, even though the underlying factual details and reasoning on which the opinion is based are not." Bulthius v. Recall Corp., 789 F.2d 1315, 1318 (1985). Here each of the three affiants lists the many records which they reviewed and states how those records factually support their opinions that Shusterowitz suffered dehydration and/or received poor care while at Brookstone. Therefore, they are competent to give their expert opinions based on the factual basis stated in their affidavits.
Defendant also objects to the legal conclusions contained in the affidavits that Brookstone was negligent. McKimmy Aff, ¶ 6 ("The record supports negligent and reckless care of Mr. Shusterowitz during his stay at Brookstone"); Oksenholt Aff, ¶ 4 (Shusterowitz's decubitus ulcers "evidence negligent care"); Bowles Aff, ¶¶ 10-11 (Shusterowitz's physical condition and weight loss on April 19, 1998, was "evidence of gross negligence" and "lack of care at Brookstone was grossly negligent"). By referring to Brookstone's negligence, the three affiants proffer an opinion on the ultimate legal issue on plaintiff's negligence claim. Contrary to defendant's contention, with one exception not relevant here, "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. "FRE 704(a). Nevertheless, under FRE 701 and 702, the opinion must be helpful to the trier of fact. An opinion is not helpful if it merely tells the fact finder what conclusion to reach. However, any prejudice or confusion is alleviated if the expert discloses the basis of his or her opinion.
Depositions and affidavits are referred to by the last name of the deponent or affiant and by the relevant page and paragraph number.
Here, the three affiants adequately explain why they believe that the care provided by Brookstone to Shusterowitz was negligent. Normally the characterization of a person's conduct as negligent, even by an expert, is not particularly helpful. But here each affiant supports his or her opinion regarding the level of care provided by Brookstone to its patients with specific facts. Use of the word "negligence" in this context is not fatal. After all, the affiants could have just as easily used the word "neglect" to describe the quality of Brookstone's care and the meaning would be the same. Accordingly, the court denies defendant's motion to strike the three affidavits submitted by plaintiff.
II. Motion for Summary Judgment A. Legal Standard
FRCP 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party shows the absence of an issue of material fact, the non-moving party must go beyond the pleadings and designate specific facts showing a genuine issue for trial. Id. at 324. A scintilla of evidence, or evidence that is merely colorable or not significantly probative, does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir), cert denied, 493 U.S. 809 (1989), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir 1987). The court must view the inferences drawn from the facts in the light most favorable to the non-moving party. Thus, reasonable doubts about the existence of a factual issue should be resolved against the moving party. Id. at 630-31. However, when the non-moving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics Inc., 818 F.2d 1466, 1468 (9th Cir 1987), cert denied, 484 U.S. 1006 (1988). The Ninth Circuit has stated, "No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." Id.
B. Causation
The parties agree that the immediate cause of Shusterowitz's death was a rapidly progressing infection. However, plaintiff contends that Shusterowitz's dehydration at Brookstone caused by poor care "set into motion a series of events requiring placement of a urinary catheter, required to assess low urine output, which in turn resulted in sepsis and, ultimately, the death of Mr. Shusterowitz. "McKimmy Aff, ¶ 4; see also Oksenholt Aff, ¶ 7 ("There is no doubt that the poor [care] received by Mr. Shusterowitz probably impacted his health and life expectancy, and ultimately, caused his death. ") Relying principally on Flint v. Portland Pizza Delivery No. 8, Inc., 134 Or. App. 234, 895 P.2d 313 (1995), defendant argues that it is entitled to summary judgment because its expert, William M. Bennett, M. D., reviewed Shusterowitz's medical records and concluded that the cause of his death was "a sepsis with dehydration and septic shock" and that Shusterowitz's seven-day stay at Brookstone "was not a substantial contributing factor" in his death just over six weeks later. Bennett Aff, ¶ 3. Instead, Dr. Bennett opines that Shusterowitz "had several medical problems, including multi-infarct dementia, vascular disease of his brain leading to multiple strokes, coronary artery disease, and renal insufficiency" and his death was caused by "the worsening of these medical problems, not his stay at Brookstone or the care he received there." Id. ¶ 4.
Flint involved a wrongful death action arising from an automobile accident. The defendant (a pizza company) brought a third-party action against the owners of property adjacent to the corner of the intersection where the accident occurred, alleging that the owners negligently failed to maintain their hedge and that it obstructed the driver's vision at and around the intersection. The only evidence concerning the issue of whether anything blocked the driver's view of the intersection was: (1) a statement made by driver about two weeks after the accident, to the effect that there was not anything blocking her view of the plaintiff's vehicle; and (2) her later deposition testimony that she could not recall whether or not anything blocked her view of the intersection. Flint, 123 Or App at 237, 895 P.2d at 314. Plaintiff offered expert testimony about "the manner in which the hedge affected vehicles approaching the intersection," but the Oregon Court of Appeals nevertheless granted summary judgment, stating that plaintiffs had failed to rebut defendant's evidence because the expert testimony "would not rebut defendants' evidence that it did not block this driver's view of [the plaintiff] or resolve whether [the driver] looked in the direction of the hedge." Id. at 239, 895 P.2d at 315 (emphasis in original).
Defendant contends that disease processes unrelated to the care (or lack thereof) that Shusterowitz received while at Brookstone were the cause of his death. Shusterowitz had preexisting poor kidney function and neither the hospital nor the Robinson Jewish Home where Shusterowitz stayed prior to his death diagnosed dehydration. However, unlike Flint, this case does not involve unrebutted evidence of a lack of causation.
While no physician explicitly diagnosed Shusterowitz with dehydration between April 19, 1998, and the date of his death, plaintiff has submitted significant circumstantial evidence that Shusterowitz became dehydrated while at Brookstone. Four days prior to his admission at Brookstone, Shusterowitz was examined by Dr. Angus Webber who found that he was self-ambulatory, had no decubiti or need for catheterization, and weighed 125 pounds. Webber Aff, ¶ 3. Upon his admission to Brookstone, his dentures fit well, he was still walking without assistance, and he was eating and drinking well. Plaintiff's Aff, ¶ 2.
During his seven-day stay at Brookstone, Shusterowitz's condition changed dramatically. Chart records from Brookstone indicate that Shusterowitz's fluid intake during his stay was a paltry 480 cubic centimeters (ccs). Bowles Aff, ¶ 4. Eight of Shusterowitz's 18 meals were not charted at all, and the records indicate that Shusterowitz may have had no food at all during one 48 hour stretch of his stay at Brookstone. Id. ¶ 5. There is no record of any bowel movements during his stay at Brookstone. Id. ¶ 9.
Shusterowitz lost some 11 pounds between April 8 and April 22, 1998. Plaintiff's Aff, ¶ 3; Oksenholt Aff, ¶ 3. When plaintiff picked him up on April 19, 1998, Shusterowitz's dentures were loose fitting. Plaintiff's Aff, ¶ 3. He had a decubitus ulcer on his right heel. McKimmy Aff, ¶ 3. Dr. Webber's records indicate that Shusterowitz did not void for three days after his wife picked him up at Brookstone. Oksenholt Aff, ¶ 3. Finally, upon admission to the Salem Hospital on May 1, 1998, Shusterowitz was diagnosed with a fecal impaction. A significant weight loss and loose-fitting dentures are circumstantial evidence of dehydration, and a stool impaction can be caused by dehydration. McKimmy Aff, ¶ 3. Dr. Oksenholt states that "[a]bsent dehydration, this drastic weight loss would not have occurred in Mr. Shusterowitz. "Oksenholt Aff, ¶ 3. Dr. Webber attests unqualifiedly that Shusterowitz "suffered from dehydration as a result of his respite stay at Brookstone. "Webber Aff, 6 6.
Defendant attempts to downplay Shusterowitz's dramatic weight loss between April 8 and April 22, 1998, by noting that his medical records show that he weighed less than 120 pounds in December 1994 and again in February 1995. However, plaintiff has submitted evidence that those weight fluctuations were due to the congestive heart failure that Shusterowitz suffered in December 1994, and that from July 10, 1996, through October 1, 1997, his weight progressively increased, reaching 129 pounds on October 1, 1997. Atkinson Aff, ¶ 3. In addition, it is not the fact that Shusterowitz weighed 114 pounds on April 22, 1998, that is significant. Instead, what is significant is that he weighed 11 pounds more some 14 days earlier. The last three of those days he spent with his wife who encouraged him to drink all he could. Plaintiff's Depo, p. 150. The preceding eight days, he was at Brookstone.
Defendant also notes that there is no diagnosis of dehydration during his stay at Salem Hospital. However, that omission is not particularly probative, given that during the 12 days between his return home and his admission to Salem Hospital on May 1, 1998, plaintiff cared for Shusterowitz and pushed him to drink fluids. Dr. Webber, who examined Shusterowitz on April 22, 1998, now attests that Shusterowitz did suffer from dehydration as a result of his stay at Brookstone (Webber Aff, ¶ 6), and another doctor states that the "records support the proposition" that Shusterowitz "suffered from dehydration as a result of his poor care while at Brookstone. "McKimmy Aff, ¶ 3.
To establish the lack of responsibility by Brookstone, defendant places great emphasis on the June 3, 1998 letter to the Shusterowitz family from Dr. A. Perry Hendin who treated Shusterowitz during his last month in the hospital. Conveying his condolences, he confirmed that two weeks before his death, Shusterowitz "was really stable and overall doing well, though certainly there were still signs that he wasn't eating well, with some weight loss, and his ulcers were not healing up well, not because of pressure problems or neglect, but because of his poor nutritional status and overall weakness." Although he believed that Shusterowitz was stable and doing well two weeks before his death, the record does not reveal that Dr. Hendin knew the status of Shusterowitz's health prior to entering Brookstone. Absent that basis for comparison, his letter sheds little light on the key issue. Even if his letter could be taken at face value, he assists plaintiff by noting the weight loss and ulcers which occurred as a result of his stay at Brookstone.
Defendants also argues that none of the plaintiff's medical experts opined that based on a "reasonable medical probability," Brookstone's lack of care caused Shusterowitz's death. A plaintiff must prove medical causation by a preponderance of the evidence that the injury sustained was "`within the range of reasonable medical probability, as material contributing cause'" of the injury. Hurst v. State Acc. Ins. Fund Corp., 76 Or. App. 532, 535, 709 P.2d 1149, 1150 (1985), quoting Adams v. Gilbert Tow Serv., 69 Or. App. 318, 321, 684 P.2d 1254, 1255 (1984). However, the testimony of a doctor need not use the exact magic words "to a reasonable medical probability," as long as the doctor's language, used in the context of the entire medical report and considered with other evidence, establishes medical causation. Moore v. Douglas County, 92 Or. App. 255, 258, 757 P.2d 1371, 1373 (1988). The opinions stated by these three expert witnesses easily satisfy that standard. They clearly link Brookstone's lack of care to Shusterowitz's dehydration and ultimate death. Any perceived lack of an adequate factual basis for their opinions should be addressed by cross-examination at trial. Although Shusterowitz did suffer from a variety of serious medical problems before his stay at Brookstone, plaintiff has produced evidence that the care he suffered at Brookstone began his downhill slide resulting in his death. Therefore, plaintiff has created a sufficient issue of material fact to preclude defendant from obtaining summary judgment on the wrongful death claim.
C. Punitive Damages
Plaintiff seeks to recover punitive damages for Brookstone's failure to properly care for Shusterowitz. Even if defendant committed any negligence in its care of Shusterowitz, defendant argues that such negligence, even if gross negligence, cannot support punitive damages.
As the Oregon Supreme Court recognized several decades ago, "[t]he law in Oregon relating to punitive damages is far from clear." Noe v. Kaiser Foundation Hosp., 248 Or. 420, 422, 435 P.2d 306, 307 (1967). However, punitive damages have rarely been allowed for negligent injury to a person. Disallowing an award of punitive damages for the unauthorized circumcision of a baby, the court explained:
Other than in medical malpractice cases, the court has, with one exception, refused to allow punitive damages for negligent injury to the person. . . . In medical malpractice cases gross negligence is said to justify punitive damages. . . The explanation for a different rule in malpractice cases is" * * * the character of the defendant's profession and the obligation it imposes * * *."Id. 248 Or at 422-23, 435 P.2d at 307 (citations and footnote omitted).
Two decades later in Andor by Affatigato v. United Air Lines, Inc., 303 Or. 505, 510, 739 P.2d 18, 21 (1987), the Oregon Supreme Court again discussed punitive damages in a negligence case. It noted that the facts and legal standards for punitive damages "are not easily disentangled" because "judicial statements of criteria for punitive damages have sought to encompass very different situations in one general formulation."
The defendant's culpability may range from a deliberate purpose to cause harm to the plaintiff or to others regardless of gaining any benefit thereby, through an intent to harm the plaintiff or others in order to benefit oneself, and a readiness to benefit oneself with conscious indifference to or disregard of a known or highly probable risk of severe harm to others to a readiness to expose others to such risks without intending any countervailing benefit to anyone. The defendant may be an individual or it may be an enterprise or other organization, which poses the question where the culpable mental state is to be located. The conduct at issue may be a single act, or it may be repeated, or continuous, or a failure to act. The interests culpably invaded or disregarded ordinarily are personal to the plaintiff, but occasionally punitive damages are imposed for breach of a public responsibility. The aim of punitive damages, as of punishment in other contexts, may be to deter the defendant, or to deter others, or to reaffirm and vindicate social norms for their own sake even when the efficacy of deterrence is doubtful.Id. 303 Or at 510-11, 730 P.2d at 21 (citations and footnotes omitted).
Andor involved an airplane crash that was the result of the combination of a repair to a landing gear that led the crew to be uncertain whether the gear had properly extended and the pilot's unwillingness to accept assurances that the landing gear was safe. Holding that punitive damages were not appropriate, the court stated that the evidence showed only that the company and the pilot had each acted negligently. The accident was the result of a negligent repair combined with a reaction by the pilot that the jury could find to be foreseeable. That evidence was sufficient to subject the company to liability for compensatory damages, but was insufficient to support an award of punitive damages.
[M]ere failure to foresee the pilot's reactions is not enough for punitive damages. If this sufficed, it would support a claim for punitive damages whenever some persons within an organization failed to anticipate foreseeable risks of substandard performance by others in the organization. For punitive damages, some conscious disregard of or highly irresponsible indifference to this human element in the decision on equipment is required.Id. 303 Or at 517, 739 P.2d at 25-26.
In 1995 the Oregon Legislature adopted a statute allowing the recovery of punitive damages in a civil action when it is shown by clear and convincing evidence that a defendant showed a "reckless and outrageous indifference to a highly unreasonable risk of harm" and "acted with a conscious indifference to the health, safety and welfare of [another]." ORS 18.537(1). This standard is consistent with prior case law, but increases the required level of proof.
In a wrongful death action, punitive damages may be awarded in an amount "which the decedent would have been entitled to recover from the wrongdoer if the decedent had lived." ORS 30.020(2)(e).
Defendant argues that, as in Noe and Andor, the most plaintiff has shown is a personal injury caused by misjudgment and negligence that does not rise to the level that would justify punitive damages. Plaintiff disagrees, pointing to evidence that she believes satisfies the standard for punitive damages under ORS 18.537(1).
In particular, Brookstone's very name implies it is familiar with the special needs of persons suffering from dementia. Furthermore, Shusterowitz suffered from a number of medical problems that were known to Brookstone at the time of his admission. McKimmy Aff, ¶ 7. Yet, "[t]he Brookstone records leave one with the impression that Mr. Shusterowitz was admitted to Brookstone and ignored." Bowles Aff, ¶ 13. This opinion is supported by the unused clothing in Shusterowitz's suitcase and his untouched toiletries. In addition, plaintiff found him covered with filth to the point that she had to bathe him two or three times to get the feces off of his groin. Plaintiff's Aff, ¶ 4. Brookstone's records further reveal that it continued to give him a diuretic despite his weight loss and lack of fluid intake and output, at least until the last two days when it administered no medication. Bowles Aff, ¶¶ 7-8. "Assuming that he was neglected at Brookstone, it is the worst case of neglect that I have seen." Webber Aff, ¶ 8.
However, defendant has submitted evidence that it did not simply place Shusterowitz in a room and ignore him for a week. Brookstone's staffing rate level exceeded similar state Medicare/Medicaid facilities' requirements. Sanders Depo, p. 11. The staff made rounds every two hours. Id. at 88. To ensure that residents did not fall from their beds, thereby causing themselves injury, Brookstone utilized short-legged bed frames that were only four-to-six inches off of the floor. Id. at 87. Shusterowitz started out eating very well but gradually declined to a poor appetite. Id. at 66-67, 132. He may not have eaten for a number of reasons, such as a dislike for the food, loneliness for his family, or confusion. Id. at 132. He was offered a bath at least twice which he refused. Id. at 117. He was shaved twice. Ennis Depo, p. 21. He was cooperative in taking his medications. Sanders Depo, p. 119. Although he was cooperative for the most part, he was withdrawn and on the last day was resistive to care. Id. at 118-19.
When a "clear and convincing" evidence requirement applies, a court may take the quantum of proof into account on a summary judgment motion. Anderson, 477 U.S. at 255-56. The evidence may well establish by clear and convincing evidence that defendant acted recklessly or with outrageous indifference to a highly unreasonable risk of harm to Shusterowitz by allowing him to become dehydrated. However, the evidence as a whole is not sufficient to establish by clear and convincing evidence that Brookstone acted with the requisite wrongful state of mind of a conscious indifference to the health, safety, and welfare of others. This is not a medical malpractice case that under Oregon law might justify punitive damages for a negligent injury. Instead, this case concerns the level of care provided by a respite care home to its residents. The care by some of defendant's employees may well have been sub-standard and grossly negligent by not better monitoring and recording Shusterowitz's fluid intake and output and forcing him to take liquids. However, there is no evidence that defendant intentionally jeopardized the care of its residents by, for example, having fewer staff than necessary, failing to adequately train its staff, ignoring complaints of inadequate performance, or the like.
The evidence in the record does not support a reasonable jury finding that the plaintiff has shown a conscious indifference to the health of Shusterowitz by clear and convincing evidence. Thus, defendant's motion for summary judgment against plaintiff's claim of punitive damages is granted.
ORDER
For the reasons stated above, defendant's Motion for Summary Judgment (docket #17) is GRANTED as to plaintiff's claim for punitive damages and otherwise DENIED.