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DELK v. COLUMBIA/HCA HEALTHCARE CORP, et al.



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DELK

v.

COLUMBIA/HCA HEALTHCARE
CORP, et al.


January 14, 2000

Record No. 990175

LILLIAN PARKER DELK

v.

COLUMBIA/HCA HEALTHCARE CORP., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

OPINION BY JUSTICE LEROY R. HASSELL, SR.

Present: All the Justices

William C. Andrews, III, Judge


In this appeal of a judgment sustaining a
demurrer in a medical negligence action, we consider, among other
things, whether the plaintiff pled causes of action in her third
amended motion for judgment for the defendants’ negligent failure
to protect her from the intentional acts of a third person, the
defendants’ negligent failure to control the acts of a third
person, negligent infliction of emotional distress, and
intentional infliction of emotional distress.

I.

The plaintiff, Lillian P. Delk, filed her third
amended motion for judgment against Columbia/HCA Healthcare
Corporation and Virginia Psychiatric Company, Inc., d/b/a
Columbia Peninsula Center for Behavioral Health. She alleged that
the defendants breached certain duties owed to her when she was a
patient at Columbia Peninsula Center for Behavioral Health, a
psychiatric hospital. The defendants filed demurrers to the
amended motion and asserted that the plaintiff failed to allege
viable causes of action against them. The circuit court sustained
the demurrers and entered a judgment in favor of the defendants.
Delk appeals.

II.

A.

Our inquiry is governed by settled principles
that control a circuit court’s consideration of a demurrer. A
demurrer "admits the truth of all material facts that are
properly pleaded, facts which are impliedly alleged, and facts
which may be fairly and justly inferred from alleged facts."
Cox Cable Hampton Roads, Inc. v. City of Norfolk,
242 Va. 394, 397, 410 S.E.2d 652, 653 (1991); accord Plummer
v. Center Psychiatrists, Ltd., 252 Va. 233, 234, 476
S.E.2d 172, 173 (1996). A demurrer, however, does not admit the
correctness of the pleader’s conclusions of law. Ward’s
Equip., Inc.
v. New Holland North America, Inc., 254
Va. 379, 382, 493 S.E.2d 516, 518 (1997).

When a circuit court sustains a demurrer to an
amended pleading which is complete in itself and fails to
incorporate by reference allegations in earlier pleadings, we
will consider only the allegations contained in the amended
pleading that was the subject of the demurrer sustained by the
judgment appealed from. Bell Atlantic-Virginia, Inc. v. Arlington
County
, 254 Va. 60, 63 n.2, 486 S.E.2d 297, 299 n.2 (1997); Norfolk
& W.Ry. Co.
v. Sutherland, 105 Va. 545, 549-50, 54
S.E. 465, 466 (1906); see also Breeding v. Hensley,
258 Va. 207, 212, 519 S.E.2d 369, 371 (1999); Trotter v. E.I.
Dupont de Nemours & Co.
, 124 Va. 680, 682-83, 98 S.E.
621, 622 (1919). Thus, we will recite only those facts contained
in Delk’s third amended motion for judgment, and we will consider
only her assignments of error that relate to that pleading.

Delk assigned error to several rulings by the
circuit court that are contained in orders sustaining the
defendants’ demurrers to her earlier motions for judgment:
"the [t]rial [c]ourt erred in ruling that all of the
plaintiff’s claims were medical malpractice"; "the
[t]rial [c]ourt erred in holding that plaintiff had not
sufficiently alleged actual fraud"; and "the [t]rial
[c]ourt erred in holding that plaintiff had not sufficiently
alleged punitive damages." Delk failed to incorporate by
reference in her third amended motion for judgment allegations in
her prior motions for judgment and, therefore, we cannot consider
these assignments of error because they were not the subject of
the circuit court’s judgment sustaining the demurrers to her
third amended motion for judgment.

B.

Delk, a married woman, was admitted as a
patient to Columbia Peninsula Center for Behavioral Health. The
Virginia Psychiatric Company, Inc., which operated the hospital
under the assumed name of Columbia Peninsula Center for
Behavioral Health, was "an affiliated partnership or
wholly-owned subsidiary of Columbia/HCA Healthcare
Corporation."

Delk was admitted to the hospital because of
exacerbation of her bipolar condition.
[1] "[A]t the time of her hospitalization, [Delk] was
identified as being a potential danger to herself, others, and
property. [She] was further deemed unable to meet the capacity of
the ordinary demands of her familial, occupational, and social
environment. Hospitalization was necessary for continued skill
observation, structured intervention, as well as medical and
psychological support."

Delk had a "history of mood disorders and
hospitalizations." She also had "a long-standing
history of psychiatric problems since the age of seventeen (17),
associated with sexual molestation as a young child and a gang
rape while a teenager." This information was "disclosed
to relevant staff." During "her hospitalization
. . . [Delk] was deemed by Columbia Peninsula Center
for Behavioral Health to be a high risk to herself and others and
in need of constant 24-hour supervision and surveillance."

According to Delk’s allegations, "[o]n or
about February 26 or February 27, 1997, [a] male who is believed
to have been a patient at the Defendants’ psychiatric facility at
the time of the sexual assault, and who was also believed to be
HIV positive, entered [Delk's] room on the acute care unit of
Columbia Peninsula Center for Behavioral Health and sexually
assaulted her. Although members of the nursing staff
. . . observed and documented the presence of this
unauthorized adult male in [Delk's] room, no further actions
occurred from the staff or management of Columbia Peninsula
Center for Behavioral Health . . . . No notation
was made in [Delk's] medical records regarding the sexual
assault."

The hospital’s "staff and administrators
were under a duty of care to supervise and control the assailant,
who was believed to be a patient in the acute care wing of the
Defendants’ psychiatric facility at the time of the sexual
assault." Delk pled that the defendants "were well
aware of the assailant’s troubled history, predisposition,
disturbing interaction with other patients and medical condition,
yet took no steps to protect [her] or the other potential
victims. Defendants breached this duty of care by allowing the
assailant to enter [Delk's] room on the acute care unit and thus,
allowing sexual misconduct to take place."

Delk alleged that the sexual assault upon her
was foreseeable and avoidable. She pled that the defendants
committed acts of ordinary negligence by failing to adequately
protect her. She also alleged that the defendants committed acts
of ordinary negligence because they failed to control her
assailant.

Delk pled that "[d]efendant, Columbia
Peninsula Center for Behavioral Health, by and through its
agents, employees, and assigns, failed to undertake any actions
although the Defendant had knowledge that the alleged assailant
adult male patient was HIV positive. Further, Defendant, Columbia
Peninsula Center for Behavioral Health, did not relate
information to [Delk] . . . or any criminal authorities
concerning the sexual assault or her exposure to the HIV virus.
Defendant’s conduct showed an utter disregard of prudence and
such conduct amounted to the complete neglect for the safety of
[Delk]. As a direct and proximate result of Defendant’s gross
negligence . . . [Delk], and possibly other members of
her immediate family, have been exposed to the HIV virus."

The plaintiff further alleged that as "a
direct and proximate result of Columbia Peninsula Center for
Behavioral Health’s outrageous conduct, negligence and attempt to
cover up its negligence (through misleading and faulty notations
in the medical records) in failing to adequately supervise the
Plaintiff, [Delk] suffered physical and bodily harm." She
claimed that as a result of defendant’s "reckless,
outrageous and negligent infliction of emotional distress,"
she "suffered severe mental, emotional and physical
trauma." She alleged that, as a result of
"[d]efendant’s extreme, reckless, outrageous and intentional
infliction of emotional distress," she "has suffered
severe mental, emotional and physical trauma."

III.

A.

Delk contends that she pled a cause of action
for negligence against the defendants arising out of their
failure to protect her and, therefore, the circuit court erred in
sustaining the defendants’ demurrer to this claim. Continuing,
she asserts that the defendants had a duty of care to supervise
her on a 24-hour basis to insure her safety and that a special
relationship existed between her and the defendants which created
this duty of protection. Responding, defendants assert that they
had no duty to prevent any criminal attack upon Delk because they
claim that they did not have a special relationship with her.
Additionally, the defendants contend that the criminal attack
upon Delk was not reasonably foreseeable.

A plaintiff who seeks to establish actionable
negligence must plead the existence of a legal duty, violation of
that duty, and proximate causation which results in injury. Marshall
v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904 (1990); Fox
v. Custis, 236 Va. 69, 73-74, 372 S.E.2d 373, 375 (1988).
Generally, a person does not have a duty to protect another from
the conduct of third persons. Burdette v. Marks,
244 Va. 309, 311, 421 S.E.2d 419, 420 (1992); Marshall,
239 Va. at 318, 389 S.E.2d at 904. This general rule, however,
does not apply when a special relationship exists (1) between the
defendant and the plaintiff which gives rise to a right to
protection to the plaintiff, or (2) between the defendant and the
third person which imposes a duty upon the defendant to control
the third person’s conduct. A.H. v. Rockingham
Publishing Co.
, 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998);
Burdette, 244 Va. at 312, 421 S.E.2d at 420; Dudley
v. Offender Aid & Restoration, 241 Va. 270, 276, 401
S.E.2d 878, 881 (1991); Fox, 236 Va. at 74, 372 S.E.2d at
375; Klingbeil Management Group Co. v. Vito, 233
Va. 445, 447-48, 357 S.E.2d 200, 201 (1987).

We hold that the allegations contained in
Delk’s third amended motion for judgment are sufficient to permit
her to fall within the limited exception to the general rule and,
thus, she pled a cause of action for negligence against the
defendants. Delk’s amended motion contains sufficient allegations
which, if proven, would establish the existence of a special
relationship between her and Columbia Peninsula Center for
Behavioral Health and, thus, would give rise to a duty on the
part of the defendants to protect her from third persons. For
example, Delk alleged that the defendants knew that: she was a
danger to herself and others; she had a long history of
psychiatric problems associated with sexual assaults upon her;
Columbia Peninsula Center for Behavioral Health deemed Delk to be
a high risk to herself and others; and she was in need of
constant 24-hour supervision and surveillance.

The defendants, relying principally upon A.H.
v. Rockingham Publishing Co., supra, assert that
the sexual assault upon Delk was legally unforeseeable. We
disagree.

In Rockingham Publishing, we considered
whether a newspaper publishing company had a duty to warn a 13 or
14-year old newspaper carrier of the danger of a criminal assault
by a third person while the carrier was delivering newspapers in
the early morning hours. The carrier, identified as A.H.,
delivered newspapers in the City of Harrisonburg on an assigned
route. A.H. was sexually assaulted by a man while A.H. was
delivering newspapers between 6:00 and 6:30 a.m. on November 7,
1989. There had been three prior pre-dawn assaults of a sexual
nature upon other Rockingham Publishing carriers while they were
delivering their newspapers, but none of the prior assaults had
occurred on or near A.H.’s route. Rockingham Publishing knew
about the prior assaults before the assault on A.H. The first
assault occurred about five years before the assault on A.H., the
second about four and a half years before, and the third about
four months earlier. Rockingham Publishing, 255 Va. at
219, 495 S.E.2d at 484.

Even though we held that a special relationship
existed between A.H. and Rockingham Publishing, we stated:

"A court must still determine whether the
danger of a plaintiff’s injury from such conduct was known to the
defendant or was reasonably foreseeable. ‘[W]here the duty does
exist [arising from a requisite relationship], the obligation is
not an absolute one to insure the plaintiff’s safety[;] . . . . [t]here is . . . no liability
. . . where the defendant neither knows nor has reason
to foresee the danger or otherwise to know that precautions are
called for.’ W. Page Keeton, et al., Prosser & Keeton on
the Law of Torts
? 56, at 385 (5th ed. 1984)."

Id. at 220-21, 495 S.E.2d at 485. We
concluded that the assault upon A.H. was not foreseeable. We
observed that

"the three prior sexual assaults on
Rockingham carriers in various locations in the City of
Harrisonburg in the five years preceding the assault on the
plaintiff were insufficient to raise a jury issue of whether a
sexual attack on the plaintiff was reasonably foreseeable. This
is not a case in which it was shown that the prior assaults were
at or near the location of the plaintiff’s assault, or that they
occurred frequently or sufficiently close in time to make it
reasonably foreseeable that the plaintiff would be similarly
assaulted."

Id.. at 222, 495 S.E.2d at 486.

Here, unlike the plaintiff in A.H. v. Rockingham
Publishing
, Delk pled sufficient facts which, if established
at trial, would create a jury issue on the question whether the
assault upon her was reasonably foreseeable. Delk essentially
alleged that she was especially vulnerable to a sexual assault
because of her psychiatric problems and her need for
"constant 24-hour supervision and surveillance." The
defendants were aware of her particular vulnerabilities and her
psychiatric history. She also alleged that the defendants were
well aware of the assailant’s troubled history, predisposition,
disturbing interaction with other patients, and medical
condition, and that "members of the nursing staff of
Columbia Peninsula Center for Behavioral Health observed and
documented the presence of this unauthorized adult male in
[Delk's] room," but took no action. She further alleged that
because of her "sexual abuse history and bipolar condition,
[she was placed] at an additional high risk to such
incidents."

B.

Delk contends that she pled a separate cause of
action against the defendants for their "negligent failure
to control the assailant." Continuing, she asserts that the
defendants had a duty to control the assailant and, as a result
of their breach of this duty, she was assaulted by him.
Responding, the defendants assert that the circuit court properly
sustained their demurrers to Delk’s claim that they failed to
control the assailant because Delk failed to plead in her amended
motion that the defendants had "taken charge" of the
assailant. We disagree with the defendants.

Section 315(a) of the Restatement (Second) of
Torts (1965), states in part:

"There is no duty so to control the
conduct of a third person as to prevent him from causing physical
harm to another unless

(a) a special relation exists between the actor
and the third person which imposes a duty upon the actor to
control the third person’s conduct . . . ."

Section 319 of the Restatement (Second) of
Torts provides as follows:

"One who takes charge of a third person
whom he knows or should know to be likely to cause bodily harm to
others if not controlled is under a duty to exercise reasonable
care to control the third person to prevent him from doing such
harm."

We have held that the aforementioned provisions
of the Restatement give rise to a duty in tort only if a special
relationship exists between a defendant who is charged with
negligence and the actor, and that this special relationship is
established when the defendant has taken charge or exercised
control over the actor. Fox, 236 Va. at 75, 372 S.E.2d at
376. We recently stated that "[i]t is a settled rule of
decision in this Court . . . that, in order to
establish a ‘special relation’ under Restatement ? 315(a)
. . . a plaintiff must allege facts which, if proven,
would show that the defendant had ‘take[n] charge’ of a third
person within the meaning of ? 319." Nasser v. Parker,
249 Va. 172, 179-180, 455 S.E.2d 502, 505 (1995). In Nasser,
a plaintiff filed an amended motion for judgment against a
psychiatrist and a psychiatric hospital and sought to recover
damages for intentional torts committed by a patient against a
third party. We held that the circuit court properly sustained
the defendants’ demurrers to the plaintiff’s amended motion
because the plaintiff failed to allege facts, which if proven,
would have shown that the defendants had taken charge of the
patient. Id. at 181, 455 S.E.2d at 506.

Here, we hold that the circuit court erred in
sustaining the demurrers to Delk’s claim that the defendants were
negligent because they failed to control her assailant. As we
have already stated, Delk alleged that her assailant was
"believed to be a patient in the acute care wing of the
. . . psychiatric facility" and that the hospital
staff was aware of "assailant’s troubled history,
predisposition, disturbing interaction with other patients and
medical condition." There is no allegation here, as there
was in Nasser, that the assailant was in the hospital on a
voluntary basis.

Because we are required at the demurrer stage
of the proceedings to view the allegations and the inferences
therefrom in the light most favorable to Delk, we must infer from
her allegations that the defendants exercised control over her
assailant and, thus, had taken charge of him because he was a
resident in the acute care wing of a psychiatric hospital. Of
course, at a subsequent trial, Delk will be required to prove,
with evidence, that the defendants had taken charge of her
assailant and that he was not in the hospital on a voluntary
basis.

IV.

Defendant Columbia/HCA Healthcare argues that
it has no legal duty to Delk because "Columbia/HCA is only
alleged to be a corporate affiliate of [Columbia Peninsula Center
for Behavioral Health] with no direct dealings with" Delk.
We will not consider this contention.

Code ? 8.01-273(A) states in part that
"[i]n any . . . action at law, the contention that
a pleading does not state a cause of action or that such pleading
fails to state facts upon which the relief demanded can be
granted may be made by demurrer. . . . No grounds
other than those stated specifically in the demurrer shall be
considered by the court." Defendant Columbia/HCA Healthcare
failed to assert this contention in its demurrer and, thus, may
not make this assertion on appeal.

V.

A.

Delk argues that she pled a cause of action for
intentional infliction of emotional distress and, therefore, the
circuit court erred by sustaining the demurrer to that claim.
Responding, the defendants argue that Delk failed to plead facts
which would permit a jury to infer that they acted with an intent
to cause her emotional distress. We disagree with the defendants.

In Russo v. White, 241 Va. 23,
26, 400 S.E.2d 160, 162 (1991), we stated that a plaintiff who
seeks to recover damages for intentional infliction of emotional
distress must plead, and subsequently prove by clear and
convincing evidence, that: the wrongdoer’s conduct is intentional
or reckless; the conduct is outrageous and intolerable; the
alleged conduct and emotional distress are causally connected;
and the distress is severe. A plaintiff must allege each of these
elements with the requisite degree of specificity. Jordan
v. Shands, 255 Va. 492, 499, 500 S.E.2d 215, 219 (1998); Ely
v. Whitlock, 238 Va. 670, 677, 385 S.E.2d 893, 897 (1989).

We hold that Delk pled sufficient facts which
if proven at trial, would permit a finder of fact to find that
the defendants acted recklessly. It is common knowledge that HIV,
which can be transmitted sexually or through an exchange of
bodily fluids, can develop into AIDS, a fatal disease. Certainly,
a finder of fact could conclude that the defendants acted
recklessly if Delk presents evidence at a trial that the
defendants knew she may have been exposed to HIV, but failed to
inform her so that she could have taken preventive measures to
avoid transmission of the potentially fatal disease to her
husband.

We reject the defendants’ contention that Delk
failed to assert a legally sufficient claim for damages. Delk
specifically alleged that "she has incurred and will incur
in the future hospital, doctors’ and related bills in an effort
to be cured of [her] injuries." We must infer from this
allegation that Delk incurred medical treatment in the past and
will incur medical treatment in the future as a result of her
exposure to HIV. See Russo, 241 Va. at 28, 400
S.E.2d at 163.

B.

Delk argues that the circuit court erred in
sustaining the defendants’ demurrer to her claim for negligent
infliction of emotional distress. She contends that she pled
facts which, if proven, would be sufficient to establish the
elements of this cause of action. Responding, the defendants
contend that Delk failed to state a claim of negligent infliction
of emotional distress because she failed to allege a physical
injury in her amended motion. We agree with the defendants.

In Hughes v. Moore, 214 Va. 27,
197 S.E.2d 214 (1973), we discussed the elements of a cause of
action for negligent infliction of emotional distress. We stated:

"We adhere to the view that where conduct
is merely negligent, not willful, wanton, or vindictive, and
physical impact is lacking, there can be no recovery for
emotional disturbance alone. We hold, however, that where the
claim is for emotional disturbance and physical injury
resulting therefrom, there may be recovery for negligent conduct,
notwithstanding the lack of physical impact, provided the injured
party properly pleads and proves by clear and convincing evidence
that his physical injury was the natural result of fright or
shock proximately caused by the defendant’s negligence. In other
words, there may be recovery in such a case if, but only if,
there is shown a clear and unbroken chain of causal connection
between the negligent act, the emotional disturbance, and the
physical injury."

Id. at 34, 197 S.E.2d at 219; accord
Myseros v. Sissler, 239 Va. 8, 9, 387 S.E.2d 463,
464 (1990).

Delk’s conclusional allegation that she
incurred "severe mental, emotional and physical trauma"
is not sufficient to support a cause of action for negligent
infliction of emotional distress. Delk failed to plead with
specificity that she incurred a physical injury which was the
natural result of fright or shock proximately caused by the
defendants’ alleged negligence. Delk fails to provide any
description of her physical injury in her amended motion.
Therefore, we hold that the circuit court did not err in
dismissing this claim.

VI.

We will affirm that portion of the circuit
court’s judgment which sustained the defendants’ demurrers to
Delk’s cause of action for negligent infliction of emotional
distress. We will reverse the remaining portions of the judgment,
and we will remand this case to the circuit court so that Delk
may proceed on her claims for the following causes of action: the
defendants breached a duty of care owed to her in that they
failed to protect her from the assailant; the defendants breached
a duty of care owed to her because they failed to control the
assailant; and the defendants committed acts which constituted
intentional infliction of emotional distress. We express no
opinion on Delk’s assignments of errors which were not the
subject of the demurrers to her third amended motion for
judgment.

Affirmed in part, reversed in part, and
remanded.

 

 

FOOTNOTES:

[1] Bipolar disorder is a chronic
disease which causes patients to experience recurrent episodes of
elation and depression. Robert Jean Campbell, M.D., Psychiatric
Dictionary 97 (7th ed. 1996).

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