ENTRY ORDER


O’Brien v. Synnott
(2012-164)
 
2013 VT 33
 
[Filed 17-May-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 

2013 VT 33


 
No. 2012-164

 

Kelley S. O’Brien 


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden
  Unit,


 


Civil Division


 


 


Catherine Synnott
  and Fletcher Allen Healthcare


February Term, 2013


 


 


 


 


Geoffrey
  W. Crawford, J.


 

Kelley S. O’Brien, Pro Se, Beattyville,
Kentucky, Plaintiff-Appellant.
 
Nicole Andreson and Angela R.
Clark of Dinse, Knapp & McAndrew,
P.C., Burlington, for
  Defendants-Appellees.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Burgess and Robinson, JJ.
 
 
¶ 1.            
ROBINSON, J.   Plaintiff Kelley S. O’Brien sued
defendants Fletcher Allen Health Care (FAHC) and FAHC nurse Catherine Synnott for drawing his blood at the request of law
enforcement officers and without his consent, and for injuries he suffered when
allegedly assaulted by police officers after defendants negligently allowed
those officers unrestricted access to him in the hospital while he was
recovering from surgery.  The trial court granted defendants summary
judgment, concluding that it was not reasonably foreseeable that the police
officers would harm plaintiff if allowed unsupervised access, and that nurse
had plaintiff’s apparent consent to draw the blood.  We affirm in part and
reverse in part.
¶ 2.            
The relevant facts are as follows.  In February 2009, outside a
convenience store, a police officer on foot tried to stop plaintiff who was
reportedly driving erratically.  Plaintiff allegedly refused to stop
driving and drove into the officer.  The officer fired shots into plaintiff’s
car, hitting his lower back.  Plaintiff drove off, and, after his car came
to a stop, police took him to FAHC for medical treatment.[1]  What happened next is very much in
dispute.
¶ 3.            
Because the trial court dismissed plaintiff’s case on summary judgment,
we consider the disputed evidence about what happened next in the light most
favorable to plaintiff, affording him “the benefit of all reasonable doubts and
inferences.”  White v. Harris, 2011 VT 115,
¶ 6, 190 Vt. 647, 36 A.3d 203 (mem.) (quotation omitted).  Although plaintiff’s account of
the relevant events at FAHC is disputed, our recitation reflects his factual
claims.[2] 

¶ 4.            
Plaintiff testified by affidavit that a law enforcement officer
requested an evidentiary sample of his blood in the emergency room, and
plaintiff refused.  The officer said he would get a warrant. 
Plaintiff was taken from the emergency room for emergency surgery.  While
he was in the post-anesthesia care unit (PACU) recovering from the surgery, his
nurse left the area, allowing a group of police officers the opportunity to
access plaintiff’s room.  The officers asked plaintiff for a blood sample.
 When plaintiff refused, they held him down, covered his mouth, and tried,
unsuccessfully, to take his blood by force.  
¶ 5.            
Subsequently, nurse returned and drew plaintiff’s blood.  Although
she presented herself in her capacity as plaintiff’s medical provider, nurse
actually drew blood for the nonmedical purpose of providing a sample of
plaintiff’s blood to the police.  Nurse did not disclose to plaintiff her
purpose for drawing blood, or that the blood draw was not in connection with
medical treatment for plaintiff’s benefit.  Plaintiff did not object to
her drawing the blood, but also did not consent to her drawing his blood for a
nonmedical purpose.
¶ 6.            
On the basis of the above facts, plaintiff sued defendants.  Both
parties filed motions for summary judgment.  Defendants argued that they
were entitled to summary judgment because plaintiff failed to support his claim
of medical malpractice with expert testimony and because 23 V.S.A. § 1202
provided consent for the blood draw.[3] 
In response, plaintiff argued that he did not need expert testimony to support
a battery claim and that § 1202 applies only to law enforcement
officers.  
¶ 7.            
The court agreed with plaintiff that an expert was not required because
plaintiff alleged battery and negligence in allowing the police officers to
assault him, and not medical malpractice.  As to § 1202, the court
concluded that there were insufficient facts to determine whether the statute
applied.  Nonetheless, the court held that plaintiff’s battery claim
failed as a matter of law because plaintiff’s actions in failing to object to
the blood draw provided apparent consent.  Because nurse was acting on the
instructions of law enforcement officers and had “no reason to believe that
their request was improper,” she was “justified in acting on the understanding
that consent was present when she drew the blood.”  
¶ 8.            
The court also concluded that plaintiff’s negligence claim failed. 
Although the court found that a special relation existed between defendants and
plaintiff such that defendants had a duty to protect plaintiff from harm from
third parties, the court held that defendants’ duty did not extend to
protecting plaintiff against a sudden attack from third parties that defendants
had no reason to anticipate.  In this case, there was no evidence
suggesting that nurse had any reason to know that four officers might suddenly
throw themselves on plaintiff as alleged.  Because the alleged assault by
the officers was not reasonably foreseeable to nurse, she violated no duty in
failing to protect plaintiff from them.  The court accordingly granted
defendants’ motion for summary judgment.[4] 

¶ 9.            
On appeal, this Court reviews motions for summary judgment “de novo,
using the same standard of review as the trial court.”  White,
2011 VT 115, ¶ 6.  Summary judgment is appropriate where there
is no genuine issue of material fact and a party is entitled to judgment as a
matter of law.  V.R.C.P. 56(a).  A dispute
over material facts precludes summary judgment.  “The issue is material
only if it might affect the outcome.”  N. Sec. Ins. Co. v. Rossitto, 171 Vt. 580, 581, 762 A.2d 861, 863 (2000) (mem.). 
¶ 10.         As
noted above, the facts here are unquestionably in dispute.  The question,
then, is whether, considering the facts in the light most favorable to
plaintiff, defendants are entitled to judgment as a matter of law.  We
first consider plaintiff’s claim that defendants negligently failed to protect
him from the police officers.  Defendants’ duty to protect plaintiff does
not extend to protecting him from attacks by third parties that are not
reasonably foreseeable.  See Endres v.
Endres, 2008 VT 124, ¶ 13, 185 Vt. 63, 968
A.2d 336 (“Whether a defendant is negligent depends on whether his or her
action was objectively reasonable under the circumstances; that is, the
question is whether the actor either does foresee an unreasonable risk of
injury, or could have foreseen it if he conducted himself as a reasonably
prudent person.” (quotation omitted)); see also
Restatement (Second) of Torts § 314A cmt. e (1965) (stating that defendant is “not required to take
precautions against a sudden attack from a third person which [the defendant]
has no reason to anticipate”); id. § 320 (explaining that actor has
duty to control conduct of third persons only when actor “knows or should know
of the necessity and opportunity for exercising such control”).  
¶ 11.         We
agree with the trial court that plaintiff has not identified any evidence that
defendants should have anticipated that the police officers would attack
plaintiff if left unsupervised.  As the trial court noted, plaintiff was
in police custody at the time, so some police presence around him was to be
expected.  On this record, we agree with the trial court that defendants
cannot be held liable for negligence on account of nurse’s alleged conduct in
leaving plaintiff alone with law enforcement officers even viewing the evidence
most favorably to plaintiff.[5]
¶ 12.         With
respect to the battery claim, we must assume, consistent with plaintiff’s
affidavit testimony, that plaintiff was awake and alert at the time of the
blood draw, and that at no time was he told that the blood was being drawn at
law enforcement’s request rather than for medical purposes.  In the
medical context, a provider commits battery if the provider performs a
procedure without the patient’s consent, and a plaintiff who has consented to a
procedure cannot recover for an invasion.  Christman
v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 889 A.2d 746. 

¶ 13.         Defendants
make two arguments in support of the trial court’s summary judgment ruling on
the battery claim.  First, defendants argue that even if, contrary to
defendants’ position, plaintiff was conscious during the blood draw, by failing
to object to nurse’s actions he provided “apparent consent.”  “If words or
conduct are reasonably understood by another to be intended as consent, they
constitute apparent consent and are as effective as consent in fact.”  Restatement (Second) of Torts § 892(2) (1979). 
Defendants contend that because the police had requested an evidentiary blood
sample, because nurse used a special procedure for labeling the blood sample
for the police, and because plaintiff did not object when she went to draw the
blood, even assuming plaintiff’s version of the facts, nurse reasonably
understood plaintiff to have consented.  Defendants note that there was no
evidence that nurse was aware of plaintiff’s prior refusals.
¶ 14.        
This argument fails because it relies on inferences in defendants’ favor
that we cannot draw at the summary judgment stage.  In particular,
defendants ask us to infer that because the police asked nurse to draw the
blood, and because she had a special collection kit for the blood draw,
plaintiff understood that she was drawing the blood for the nonmedical purpose
of providing a sample to the police when he did not object to her
actions.  In the face of plaintiff’s testimony that nurse did not inform
him of the purpose of the blood draw and that he did not know that nurse was
drawing the blood for nonmedical purposes, we cannot indulge the inference that
his failure to object to her withdrawing the blood amounted to apparent
consent.  A factfinder may ultimately draw the
same inference as the trial court did here, but may also reach the opposite
conclusion.  As we have said in the past, “Since the resolution of this
case must involve inferences to be drawn by the factfinder,
the inability to do so leaves the record fatally incomplete.”  Ejnes v. Carinthia Trailside Assocs., 153 Vt.
355, 358, 571 A.2d 49, 51 (1989). 
¶ 15.         In the absence of undisputed evidence that plaintiff knew or should
have understood the nonmedical purpose of the blood draw, the fact that he did
not object does not support the conclusion that his conduct amounted to
apparent consent.  See Restatement (Second) of Torts § 892B
(1979) (explaining that consent is not valid if induced by “substantial mistake
concerning the nature of the invasion”).   
¶ 16.         Nor
was plaintiff’s consent to the blood draw itself, without knowledge that it was
not for a medical purpose, sufficient to defeat his battery claim.  In Christman, we recognized that consent to a specific
procedure may encompass different but substantially the same (or less invasive)
procedures.  2005 VT 119, ¶ 17.  This
is not a scope-of-consent case.  The only undisputed consent apparent here
is plaintiff’s consent to medical treatment generally.  Plaintiff’s broad
consent to medical treatment is different in kind from any purported consent to
a blood draw for nonmedical, law-enforcement purposes.[6]  
¶ 17.         Defendants’
second argument in support of the trial court’s ruling on the battery claim is
that defendants should be immune from civil liability for battery when they
draw a blood sample from an individual suspected of driving under the influence
at the request of law enforcement officers without regard to whether the
individual consents to the blood draw. 
¶ 18.         At
common law, as noted above, a medical provider who performs an unconsented-to procedure on a patient may be liable for
battery.  Id. ¶ 6.  The rule for
which defendants advocate represents a departure from this general rule. 
The policy rationales supporting a departure are substantial: specified medical
personnel are the only people authorized by statute to draw evidentiary
blood samples.  23 V.S.A. § 1203(b). 
To the extent that fear of civil liability for battery makes such medical
professionals unwilling to draw blood in response to a legitimate request from
law enforcement, it may compromise law enforcement and public safety.  On
the other hand, the consequences of interposing the state between medical
providers and patients, abrogating providers’ own duty to their patients to
refrain from unconsented-to medical procedures, are
also disagreeable.  
¶ 19.         In
the face of these competing policy considerations, we would look to the
Legislature to define the contours of any exceptions to the ordinary common law
obligations of medical provider to patient.  See Reed v. Glynn, 168
Vt. 504, 508, 724 A.2d 464, 466 (1998) (“In this area of conflicting
considerations, the choices are fundamentally for the Legislature.”).  
¶ 20.         We
note that the Legislature has expressly limited the liability of medical
providers in certain circumstances related to blood draws and individuals
suspected of driving under the influence, neither of which is applicable
here.  See 23 V.S.A. § 1203(a) (limiting liability of medical
personnel drawing blood pursuant to request for independent blood test by
person who has been tested); id. § 1203b(b) (immunizing from civil
and criminal liability emergency room personnel who make good-faith reports
pursuant to obligation to report blood alcohol concentrations in excess of
legal limit when treating individuals injured in motor vehicle
accidents).  
¶ 21.         However,
in contrast to some other states, our Legislature has not expressly
required medical personnel to comply with law enforcement requests to draw
blood, and has not immunized those providers from liability for
complying.  See, e.g., 625 Ill. Comp. Stat. Ann. 5/11-500.1 (West 2012)
(“A person authorized under this Article to withdraw blood or collect urine
shall not be civilly liable for damages when the person, in good faith, withdraws
blood or collects urine . . . upon the request of a law
enforcement officer, unless the act is performed in a willful and wanton
manner.”); 75 Pa. Cons. Stat. Ann. § 3755 (West 2004) (providing that
hospital personnel shall draw blood or urine sample for police in specified
circumstances and establishing civil and criminal immunity from liability for
hospital personnel who accordingly draw blood or urine samples and provide them
to law enforcement).
¶ 22.         Given
that the Legislature has not indicated an intent to limit the liability of
medical personnel who draw blood at the request of law enforcement, we conclude
that, at least in a situation as alleged by plaintiff here in which a patient
is conscious and the authority to draw blood depends upon actual, as opposed to
statutorily implied, consent the police officers’ request does not protect
defendants from liability for drawing the blood without plaintiff’s consent.[7]
Affirmed
as to the portion of the court’s order granting summary judgment to defendants
on plaintiff’s negligence claim.  Reversed
as to the portion of the order granting summary judgment on the battery claim. 
The matter is remanded for further proceedings consistent with this decision.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]  Like
the trial court, we include these facts and uncontroverted allegations of the
underlying criminal case to provide a context and do not rely on them in
reaching our decision.  Without specifying which ones, plaintiff claims
that some of the documents submitted by defendants related to his criminal case
are either irrelevant or not part of the record on appeal.  All of the
documents included in defendants’ printed case were also submitted to the trial
court without objection.  Therefore, they are part of the record on
appeal.
 


[2]
 Plaintiff’s own claims have not been entirely consistent; we view any
inconsistencies in his testimony in the light most favorable to his claims.


[3]
 Section 1202(a)(2) provides that if
breath-testing equipment is not available or a person is unable to provide a
sufficient sample, or if an officer deems that a person is incapable of making
a decision, the person is deemed to have consented to the taking of an
evidentiary blood sample.  Defendants’ position is that nurse drew the
blood pursuant to a request by law enforcement when plaintiff was asleep. 
Accordingly, defendants do not claim that nurse disclosed the purpose of the
blood draw to plaintiff or that he provided express consent; they contend that
plaintiff was asleep at the time.  


[4]
 The court also denied plaintiff’s cross-motion for summary
judgment.  On appeal, plaintiff does not challenge the trial court’s
denial of his summary judgment motion, and we do not directly address that
ruling here.


[5]
 In plaintiff’s statement of undisputed facts submitted on March 7, 2012,
plaintiff alleged that nurse Synnott had observed the
officers trying to hold down plaintiff to retrieve a blood sample. 
Plaintiff did not support the assertion with any citation to the record. 
In fact, the assertion is contrary to nurse Synnott’s
testimony that she did not see physical contact between plaintiff and the
officers and plaintiff’s own prior statement that the officers had unsupervised
contact with him.  The party opposing summary judgment may not rest on
mere assertions to rebut credible evidence.  See Gore v. Green Mountain
Lakes, Inc., 140 Vt. 262, 266, 438 A.2d 373, 375
(1981).  Thus, the court properly disregarded plaintiff’s unsupported
assertion, and considered the fact that he was unsupervised when allegedly
assaulted as undisputed for purposes of the motion.  V.R.C.P.
56(e).


[6]
 In Christman, we distinguished between
claims against medical providers based on lack of consent, and claims based on
lack of informed consent.  2005 VT 119, ¶ 7. 
The former cases are limited to those in which “a physician performs an
operation for which there was no consent.”  Id.  In the latter
category—informed-consent cases—“the
patient does provide consent for the procedure employed, but receives
inadequate disclosures of the alternatives and foreseeable risks and benefits
of the alternatives.”  Id.  These latter cases are medical
negligence cases rather than battery cases, in which the patient’s consent to
the procedure operates as a bar to the battery claim.  This is not an
informed consent case, as plaintiff is not challenging the adequacy of
nurse’s advice concerning the risks or side effects of the procedure.  


[7]
 Because we adopt plaintiff’s factual claims for the purpose of this
appeal, including his assertion that he was conscious and alert at the time of
the blood draw, we do not address the applicability and effect on defendants’
potential liability of the implied consent statute.  23
V.S.A. § 1202.  Nor do we reach the question of whether
defendants violated any separate legal duty to plaintiff by providing a sample
of his blood, once drawn, to law enforcement. 



