# FILED September 19, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

PAMELA FRANKLIN, ) HAMILTON CIR CUIT ) Plaintiff/Appellant ) NO. 03A01-9704- CV-00121 ) v. ) ) HON. SAMUEL H. PAYNE VENCOR HOS PITAL, ) JUDGE ) Defendant/Appellee ) ) REVERSED and R EMANDED

Ronald J. Ber ke, Chattanoog a, for Appellant. E. Blake Moore, Chattanooga, for Appellee.
O P I N I O N

INMAN, Se nior Jud ge The complaint was dismissed on a Rule 12.03 moti on for judgment on t he pleadings. The plaintiff appeals, i nsisting that her complai nt states a caus e of action under the prevailing l aw in thi s jurisdi ction. Our r eview of the findings of fact made by the trial court is de novo upon the record of the trial court. There is no presumption of the cor rectness of the dec ision of the tri al court on a q uestion of law

. NCNB Nat’l Bank v. Thrailkill , 856 S.W .2d 150 (Tenn. Ct. App . 1993). The complaint was filed in June 1995, allegi ng intentional infliction of mental distress resulting from the def endant’s asserted outrageo us conduct, described in this fashion: the plaintiff’s mother was admitted to the defendant Hospi tal on June 17, 1994, where she died 12 day s later. The pl aintiff employed a pathologist to perform an autopsy , but the defendant refused t o surrender i ts medical records of the deceased to him. On July 1, 1994, the plaintiff filed a complaint in Chance ry Court seeki ng to compel th e hospital to pr ovide copi es of its medical records pertaining to the deceased to faci litate the autopsy. An Ord er was ent ered accordingl y, but the H ospital failed t o produce all of the records. Followi ng a hearing pursuant to a contemp t citation, the Hospital, despite a warning from the Chancellor, still failed to produce all of the pertinent records.2 An amendment to the compla int was fil ed in June, 1996. The plaintiff alleg ed that the defendant had g iven conflic ting reason s for her mother’ s death, and that th e blood and urine s pecimens should b e analyz ed by a pathol ogist to det ermine medication levels; she alleged that altho ugh the defenda nt assured her that these specimens would be transferred with the body for an immediate aut opsy, they were destroyed t o prevent an analysis , and the defendant thereafter persisted i n coverin g up its negligence to the point where it aggressively defied an order of the Chan cery Court to produ ce its reco rds pertaini ng to the death of theplaintiff’s mother . The complaint all eges that the de fendant was held in contempt, but still refused t o produce the requisite records. The plaintiff alleg ed that the defendant’s actions caused her severe physical and emo tion al dis tres s fo r which she wa s trea ted b oth m edic ally an d psyc holo gical ly, aggravating pre- existingconditions, a nd that she is e ntitled to damag es for the outrageous co nduct thus show n. As heretofore shown, the com plaint was dismissed for failure to stat e a claim upon which r

elief can be gr

anted. A proper resolution of suc h a motion req uires that we assume the truth of all relevant and m aterial allegations and reasonable inferences draw n therefrom. Cornpropst v . Sloan, 528 S.W .2d 188 (Tenn. 197 5); Holloway v. P

utnam County

, 534 S.W.2d 292 (Tenn. 1976). Dismi ssal of the comp lai nt i s w arrante d onl y w hen n o set of fac ts w ill enti tle the p lai ntiff to reli ef, Dobbs v. Guenther

, 846 S.W.2d 70 (Tenn. App. 1992); Sullivant v . Ameri cana Homes, In c., 605 S.W .2d 246 (Tenn. App . 1980). There can be no dou bt that the plaintiff had the right to employ a pathologist to perform an auto psy to determine the cause of death of her moth er. Continuing in this vei n, there can be no doubt that time was of the essence, and the medical records per

taining to t he patient, the flui ds and tissue t aken from the patient by the Hospital were indispens able to the autopsy . We assume as true that the Hos pital refused to produce t hese vital elements, and w hen ordered by a Court of competent jurisdict ion to do so, per sisted in i ts refusal unti l its deceas ed former patient was inte rred and ge nera lly beyo nd re ach o f co nven tion al au tops y.1 which, we reiterate, we only assume as true for the purpose of the M otion. 3 In C. D. Swallows

v. Western Elect

ric Com pany, Inc., 543 S.W.2d 581 (Tenn. 1976), the Supreme Court recognized the tort of outrageous cond uct in this jurisdict ion and limited its exi stence to inst ances (1) w here the conduct of the defendant has been so outr ageous in char

acter, and so ex

treme in degree, as to be beyond the pale of de cency and to be regarded as atrocious and ut terly intolerable in a civil ized soci ety, and (2) where the conduct resul ts in seri ous mental injur y. Liability does not exte nd to mere insul ts, indign ities, annoyances, threats, petty oppression, or

other triv ialities. Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997); Medlin v. Allied I

nvestment C

o., 398 S.W .2d 270 (Tenn. 196 6). It is not only

alleged di rectly, but is reaso nably inferabl e from the complaint, that the enquir ies made by t he plaintiff about her mother’s death moti vated the defendant to conceal or destroy evidence relating thereto, compo unded by its failure or refusal to obey a lawful order of a Court of competent jurisdiction to produ ce relevant r

ecords and materi als in accor dance with the command of Tenn. Code Ann. § 68- 11-3 04(a )(1) t o fu rnish hosp ital reco rds wit hou t unr easo nab le de lay. W hether conduct is so outrageous as to be intolerable in a civilized society is subjectively based and is dependent upon a l itany of factors . In Moorehead v. J. C. Penny Co., Inc. , 555 S.W.2d 713 (Tenn. 1977), the defendant thre atened to destroy the plaintiff’s cr

edit reputation . The Supreme Cour t held that the al legations stated a cause of action for out rageous conduc t, stating that the applica ble standards of ‘extreme and outrageous’ and not ‘tolerated in a civilized society’ are, like ‘negl igenc e,’ p rima rily f or ap plica tion by a jur y. The refusal of the defendant to pr oduce the recor

ds and materials

was progressi vely exacerbati ve; from a rout ine request to a reliance on the statute to an action in Chan cery Cour t and, in a sens e, to the case at bar, wit h the request ed information still not f

orthcomi ng. Under these circumstances, 1 we concl ude that the complaint states

a cause of action. The issue of the plai ntiff’s standing to sue is pretermitted as hav ing no relevance to a disposition under R ULE 12.03.4 The judgment of dismissal is reversed and the case is remanded. Costs are assessed to the appellee.

___________________________________ W illiam H. I nman, Senior Ju dge
CONCUR:

________________________________ Housto n M. Godd ard, Pre siding Jud ge
( dissenting opinion) Hersche l P. Franks , Judge2 The standard describes such conduct as outrageou s in character and so ex treme in deg

ree as to be beyond the pale of decency. Swallows v. W estern Electric Company

, Inc., 543 S.W.2d 581 (Tenn. 1 976). 

# FILED
September 19, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

PAMELA F RANKLI N, ) C/A NO. 03A01-9704-CV-00121 ) Plaintif f-A ppella nt, ) HA MIL TO N C IRC UIT ) v. ) ) VENCOR HO SPITAL, ) ) Defendant-Appell ee. )

D I S S E N T I N G O P I N I O N

I c an no t co nc ur w ith th e r es ul t re ac he d b y th e m ajo rity. Es se nt ial ly, plaint iff’s complaint

charges t

hat the hospit al viol ated i ts cont ract wit h her to furnish her copies of he r mother’ s medical records , and that she was r equired to seek thes e records through t he Chancery Court action, a nd when ordered to pr oduce by t he Chancellor

the defe ndan ts failed to furn ish all rec ords, e spec ially x-rays. From this she conc luded :

The hospita l’s a ctions amounted to an i ntenti onal inf lict ion of mental distress, a nd to outrag eous cond uct. I cannot a ccept the majori ty ’s premi se that the hospi tal’ s refusa l to furnish the medical records as agreed wit

h her or i n violat

ion of T.C.A. §68- 11-304, which requires a hospit al to furni sh a pati ent or a patient ’s authorized represent ative , the patie nt’s hos pitalrecords without unreasonable delayupon request , in wri ting, or it s refusa l to ful ly comply wit h the Ch ance ry Cou rt orde r con stitutes ou trageo us co ndu ct. 2 In Bain v. Wells, 936 S.W.2d 6183 The complaint does not suggest w hen plaintiff was m

ade aware of the destruction of these samples, nor how the information about the destruction im pacted upon her m

ental state. 6 (Tenn . 1997), Justice D rowo ta cites the Restatem ent of T orts 2d, §461 1 as the stand ard prevailing in t

his juris diction, which provides: On e w ho b y extrem e and outrag eous cond uct inte ntiona lly or reckle ssly causes se vere emoti onal dis tres s to anot her is subject

to li abili ty for such emotionaldist

ress, and if bodi ly harm to theother result s from it , for s uch bod il y harm. Simply stated, the tort

of outrageous conduct is the intenti onal infliction of mental distress upon another and as a genera l proposi tion, a breach of cont ract, violat

ion of a st atute , or violation of a c ourt order sho uld not and , in my view, do n ot establish a basis fo r the tort of o utrage ous c ond uct. B ut this se ems to be th e ration ale relied upo n by the m ajority to conclude that the complaint alle ges a cause of a ction. I beli eve the fol lowing all egati ons which we are required to t ake as tr ue, could form a bas is for o utrage ous c ond uct:

She [plai ntiff

] saw vial s of blood and urine at her mother’ s bedside which had been taken only moments before her death. She w as assured that these blood and uri ne samples would be t ransfer red with t

he body for

an immediate autopsy . . . . In fac t, t he hospit al del ayed t

ransfer ring t he body of plaint iff’s deceased mother

to the pathologi st . . . a dditi onally , the hospit al did not del iver t

he blood and uri ne samples t aken shortly before deat h, and destr oyed t

he samples s o that t

hey coul d not be checked. Such wilful de struc tion coul d consti tute out rageous conduct , but Ido not beli eve the plaint iff on the complaint

as drawn can prove any set of fac ts t o bring t

his al leged destruction w ithin the context of intentionally or recklessly causing the plaintiff sev ere emotional distress

. 3 M oreo ver, the record dem onstra tes plain tiff w as in an adve rsarial ro le with the de fendant fr om the outset , and was represented by counsel. In thi s posture I do not believe the plai ntiff can establi sh any right to recover torti ous damages.7 ________________________ Herschel P. Franks, J.