                   IN THE COURT OF APPEALS OF TENNESSEE

                         EASTERN SECTION AT KNOXVILLE            FILED
                                                                September 19, 1997
PAMELA FRANKLIN,                            )      HAMILTON CIRCUIT
                                                              Cecil Crowson, Jr.
                                            )                    Appellate C ourt Clerk
       Plaintiff/Appellant                  )      NO. 03A01-9704-CV-00121
                                            )
v.                                          )
                                            )      HON. SAMUEL H. PAYNE
VENCOR HOSPITAL,                            )      JUDGE
                                            )
       Defendant/Appellee                   )
                                            )      REVERSED and REMANDED



Ronald J. Berke, Chattanooga, for Appellant.
E. Blake Moore, Chattanooga, for Appellee.


                                       OPINION


                                                   INMAN, Senior Judge


       The complaint was dismissed on a Rule 12.03 motion for judgment on the

pleadings. The plaintiff appeals, insisting that her complaint states a cause of action

under the prevailing law in this jurisdiction. Our review 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 correctness of the decision of the trial court on a question of law.

NCNB Nat’l Bank v. Thrailkill, 856 S.W.2d 150 (Tenn. Ct. App. 1993).

       The complaint was filed in June 1995, alleging intentional infliction of mental

distress resulting from the defendant’s asserted outrageous conduct, described in

this fashion: the plaintiff’s mother was admitted to the defendant Hospital on June

17, 1994, where she died 12 days later. The plaintiff employed a pathologist to

perform an autopsy, but the defendant refused to surrender its medical records of

the deceased to him. On July 1, 1994, the plaintiff filed a complaint in Chancery

Court seeking to compel the hospital to provide copies of its medical records

pertaining to the deceased to facilitate the autopsy. An Order was entered

accordingly, but the Hospital failed to produce all of the records. Following a hearing

pursuant to a contempt citation, the Hospital, despite a warning from the Chancellor,

still failed to produce all of the pertinent records.
       An amendment to the complaint was filed in June, 1996. The plaintiff alleged

that the defendant had given conflicting reasons for her mother’s death, and that the

blood and urine specimens should be analyzed by a pathologist to determine

medication levels; she alleged that although the defendant assured her that these

specimens would be transferred with the body for an immediate autopsy, they were

destroyed to prevent an analysis, and the defendant thereafter persisted in covering

up its negligence to the point where it aggressively defied an order of the Chancery

Court to produce its records pertaining to the death of the plaintiff’s mother. The

complaint alleges that the defendant was held in contempt, but still refused to

produce the requisite records.

       The plaintiff alleged that the defendant’s actions caused her severe physical

and emotional distress for which she was treated both medically and psychologically,

aggravating pre-existing conditions, and that she is entitled to damages for the

outrageous conduct thus shown.

       As heretofore shown, the complaint was dismissed for failure to state a claim

upon which relief can be granted. A proper resolution of such a motion requires that

we assume the truth of all relevant and material allegations and reasonable

inferences drawn therefrom. Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975);

Holloway v. Putnam County, 534 S.W.2d 292 (Tenn. 1976). Dismissal of the

complaint is warranted only when no set of facts will entitle the plaintiff to relief,

Dobbs v. Guenther, 846 S.W.2d 70 (Tenn. App. 1992); Sullivant v. Americana

Homes, Inc., 605 S.W.2d 246 (Tenn. App. 1980).

       There can be no doubt that the plaintiff had the right to employ a pathologist

to perform an autopsy to determine the cause of death of her mother. Continuing in

this vein, there can be no doubt that time was of the essence, and the medical

records pertaining to the patient, the fluids and tissue taken from the patient by the

Hospital were indispensable to the autopsy. We assume as true that the Hospital

refused to produce these vital elements, and when ordered by a Court of competent

jurisdiction to do so, persisted in its refusal until its deceased former patient was

interred and generally beyond reach of conventional autopsy.



                                             2
       In C. D. Swallows v. Western Electric Company, Inc., 543 S.W.2d 581 (Tenn.

1976), the Supreme Court recognized the tort of outrageous conduct in this

jurisdiction and limited its existence to instances (1) where the conduct of the

defendant has been so outrageous in character, and so extreme in degree, as to be

beyond the pale of decency and to be regarded as atrocious and utterly intolerable in

a civilized society, and (2) where the conduct results in serious mental injury.

Liability does not extend to mere insults, indignities, annoyances, threats, petty

oppression, or other trivialities. Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997); Medlin

v. Allied Investment Co., 398 S.W.2d 270 (Tenn. 1966).

       It is not only alleged directly, but is reasonably inferable from the complaint,

that the enquiries made by the plaintiff about her mother’s death motivated the

defendant to conceal or destroy evidence relating thereto, compounded by its failure

or refusal to obey a lawful order of a Court of competent jurisdiction to produce

relevant records and materials in accordance with the command of Tenn. Code Ann.

§ 68-11-304(a)(1) to furnish hospital records without unreasonable delay.

       Whether conduct is so outrageous as to be intolerable in a civilized society is

subjectively based and is dependent upon a litany of factors. In Moorehead v. J. C.

Penny Co., Inc., 555 S.W.2d 713 (Tenn. 1977), the defendant threatened to destroy

the plaintiff’s credit reputation. The Supreme Court held that the allegations stated a

cause of action for outrageous conduct, stating that the applicable standards of

‘extreme and outrageous’ and not ‘tolerated in a civilized society’ are, like

‘negligence,’ primarily for application by a jury.

       The refusal of the defendant to produce the records and materials was

progressively exacerbative; from a routine request to a reliance on the statute to an

action in Chancery Court and, in a sense, to the case at bar, with the requested

information still not forthcoming. Under these circumstances, 1 we conclude that the

complaint states a cause of action.

       The issue of the plaintiff’s standing to sue is pretermitted as having no

relevance to a disposition under RULE 12.03.


       1
           which, we reiterate, we only assume as true for the purpose of the Motion.

                                             3
      The judgment of dismissal is reversed and the case is remanded. Costs are

assessed to the appellee.



                                      ___________________________________
                                      William H. Inman, Senior Judge


CONCUR:



________________________________
Houston M. Goddard, Presiding Judge



       (dissenting opinion)
Herschel P. Franks, Judge




                                       4
                      IN THE COURT OF APPEALS OF TENNESSEE

                                       EASTERN SECTION                       FILED
                                                                            September 19, 1997

                                                                             Cecil Crowson, Jr.
                                                                             Appellate C ourt Clerk



PAMELA FRANKLIN,                                ) C/A NO. 03A01-9704-CV-00121
                                                )
          Plaintiff-Appellant,                  ) HAMILTON CIRCUIT
                                                )
v.                                              )
                                                )
VENCOR HOSPITAL,                                )
                                                )
          Defendant-Appellee.                   )




                               DISSENTING                OPINION




                 I cannot concur with the result reached by the majority. Essentially,

plaintiff’s complaint charges that the hospital violated its contract with her to furnish her

copies of her mother’s medical records, and that she was required to seek these records

through the Chancery Court action, and when ordered to produce by the Chancellor the

defendants failed to furnish all records, especially x-rays. From this she concluded:

                 The hospital’s actions amounted to an intentional infliction of mental
                 distress, and to outrageous conduct.

I cannot accept the majority’s premise that the hospital’s refusal to furnish the medical

records as agreed with her or in violation of T.C.A. §68-11-304, which requires a hospital

to furnish a patient or a patient’s authorized representative, the patient’s hospital records

without unreasonable delay upon request, in writing, or its refusal to fully comply with the

Chancery Court order constitutes outrageous conduct.2 In Bain v. Wells, 936 S.W.2d 618


             2
              The standard describes such conduct as outrageous in character and so extreme in degree as
     to      be beyond the pale of decency. Swallows v. Western Electric Company, Inc., 543 S.W.2d 581
             (Tenn. 1976).
(Tenn. 1997), Justice Drowota cites the Restatement of Torts 2d, §4611 as the standard

prevailing in this jurisdiction, which provides:

              One who by extreme and outrageous conduct intentionally or recklessly
              causes severe emotional distress to another is subject to liability for such
              emotional distress, and if bodily harm to the other results from it, for such
              bodily harm.

Simply stated, the tort of outrageous conduct is the intentional infliction of mental distress

upon another and as a general proposition, a breach of contract, violation of a statute, or

violation of a court order should not and, in my view, do not establish a basis for the tort

of outrageous conduct. But this seems to be the rationale relied upon by the majority to

conclude that the complaint alleges a cause of action.

              I believe the following allegations which we are required to take as true,

could form a basis for outrageous conduct:

              She [plaintiff] saw vials of blood and urine at her mother’s bedside which
              had been taken only moments before her death. She was assured that these
              blood and urine samples would be transferred with the body for an
              immediate autopsy. . . . In fact, the hospital delayed transferring the body of
              plaintiff’s deceased mother to the pathologist . . . additionally, the hospital
              did not deliver the blood and urine samples taken shortly before death, and
              destroyed the samples so that they could not be checked.

Such wilful destruction could constitute outrageous conduct, but I do not believe the

plaintiff on the complaint as drawn can prove any set of facts to bring this alleged

destruction within the context of intentionally or recklessly causing the plaintiff severe

emotional distress.3 Moreover, the record demonstrates plaintiff was in an adversarial role

with the defendant from the outset, and was represented by counsel. In this posture I do

not believe the plaintiff can establish any right to recover tortious damages.




          3
           The complaint does not suggest when plaintiff was made aware of the destruction of these
          samples, nor how the information about the destruction impacted upon her mental state.


                                                 6
________________________
Herschel P. Franks, J.




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