Wallace v. Lawrence, No. 766-12-10 Wrcv (Teachout, J., October 8, 2014)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                             CIVIL DIVISION
Windsor Unit                                                                                       Docket No. 766-12-10 Wrcv

PATRICIA WALLACE, Individually and as
Administratrix of the Estate of Randall Wallace
     Plaintiff

           v.

YOLANDA LAWRENCE, M.D., et al.
    Defendants

                                         DECISION
    Defendant Lawrence’s Motion for Partial Summary Judgment (filed May 14, 2014)
           Plaintiff Wallace’s Petition for Interlocutory Review (May 20, 2014)
  Defendant Springfield Hospital’s Motion for Partial Summary Judgment (May 20, 2014)
         Defendant Green’s Motion for Entry of Final Judgment (May 20, 2014)

        This is a medical malpractice case. Plaintiff Patricia Wallace claims that she was given,
and injured by, too high a dose of the sedative propofol when in the care of Defendants Yolanda
Lawrence, M.D., her physician, Mark Green, C.N.R.A., a certified nurse anesthetist, and
Springfield Hospital. During the pendency of this case, Ms. Wallace’s husband, who claimed
loss of consortium, died. Ms. Wallace was appointed the administrator of his estate and
substituted herself in this case to maintain the loss of consortium claim. On May 15, 2014, the
court granted summary judgment to Defendant Green on liability. Plaintiff seeks interlocutory
review of that decision. Defendant Green seeks partial final judgment pursuant to Rule 54(b).
Separately, Dr. Lawrence and Springfield Hospital each have filed partial summary judgment
motions arguing that Mr. Wallace’s loss of consortium claim did not survive his death.

Interlocutory Review

        There are three criteria used to evaluate whether a case is appropriate for interlocutory
review: whether the “ruling involves [1] a controlling question of law [2] as to which there is
substantial ground for difference of opinion and [3] that an immediate appeal may materially
advance the termination of the litigation.” V.R.A.P. 5(b)(1); see generally In re Pyramid Co. of
Burlington, 141 Vt. 294 (1994) (discussing the criteria). Plaintiff disagrees with the court’s
summary judgment ruling but has not isolated an issue that is appropriate for interlocutory
review. The court ruled on summary judgment that Plaintiff’s expert’s specific testimony was
that Mr. Green did not breach any standard of care and that the expert’s subsequent affidavit
generally asserting the contrary in opposition to summary judgment was unavailing. Plaintiff’s
disagreement with court’s analysis does not warrant an “exception to the normal restriction of
appellate jurisdiction to the review of final judgments.” In re Pyramid Co. of Burlington, 141
Vt. at 300. This case has been pending for nearly four years. Liability with regard to the other
defendants remains an open question. Interlocutory review now would do little more than cause
unnecessary delay and expense, and waste[] scarce judicial resources.” Id. Plaintiff’s motion is
denied.

Partial Final Judgment

         Rule 54(b) authorizes the court to enter partial final judgment that terminates part of the
litigation only. Mr. Green seeks partial final judgment to the effect that Plaintiff’s claims against
him have been determined in his favor. Doing so would force Plaintiff to either appeal, and
litigate the appeal in the Supreme Court and the nearly identical claims against the remaining
defendants in the trial court at the same time, or forego appeal to avoid fighting on two fronts.
Mr. Green has come forward with no support for a finding that there is “no just reason for
delay.” V.R.C.P. 54(b). Allowing the case to remain in an interlocutory phase with regard to
Mr. Green’s liability until all of the claims have been decided will avoid piecemeal litigation and
any risk that the Supreme Court will be required to address the same issues in successive
appeals. Mr. Green’s motion is denied.

Survival of Loss of Consortium

        Defendants Lawrence and Springfield Hospital argue that the loss of consortium claim
did not survive the death of Mr. Wallace. They cite no binding authority to that effect and they
offer no compelling rationale in support of that conclusion. The issue is one of statutory
interpretation. The relevant survival statute provides as follows: “In an action for the recovery of
damages for a bodily hurt or injury, occasioned to the plaintiff by the act or default of the
defendant or defendants, if either party dies during the pendency of such action, the action shall
survive and may be prosecuted to final judgment by or against the executors or administrators of
such deceased party.” 14 V.S.A. § 1452. The question is whether a loss of consortium claim is a
claim of “bodily hurt or injury.”

        Section 1452 is little changed from its original enactment in 1847, which also included
the expression “bodily hurt or injury.” The Vermont Supreme Court’s interpretation of that
language in Whitcomb v. Cook, 38 Vt. 477 (1866), controls this case. In Whitcomb, the plaintiff
alleged wrongful arrest and false imprisonment after being jailed on a writ due to an unpaid debt.
At some point, the plaintiff died and the defendant argued that the claims did not survive under
the precursor to 14 V.S.A. § 1452. The trial court ruled in favor of survival. Whitcomb, 38 Vt.
at 479. On appeal, the defendant argued that the statute did not apply because “bodily hurt or
injury” “imports violence, force, a wounding of the person,” circumstances that were not present
in the plaintiff’s claim. Id. at 480 (emphasis in original).

        The Court’s analysis begins with the observation that the harsh, old common law rule that
torts die with the person had been so completely legislated away that “now [1863] . . . hardly any
cause of action for damage to either person or property, is allowed to be defeated by the death of
either the party injured or the party liable.” Id. at 481. It then distinguished bodily hurt from
bodily injury. Bodily hurt implies direct force applied to the body. Id. at 482. Bodily injury is
much broader, and encompasses injuries to character and reputation, emotional distress,
aggravation, and pecuniary losses. Id. In other words, between them, they generally describe the
harms caused by torts. The court thus concluded, “We think the clear and plain intent of the

                                                  2
statute was to make all actions survive when the cause of action was for a physical injury to the
person caused in any unlawful manner.” Id. The legislature qualified hurt and injury with body,
the court explained, solely “to carefully exclude certain actions which are sometimes by law
writers included in the class of actions for personal injuries, such as actions of slander, and for
malicious suits or prosecutions.” Id. The Court dismissed the defendant’s argument in favor of a
narrower construction because the statute is “remedial” and should be “liberally construed.” Id.
at 483.

       A loss of consortium claim plainly is within the ambit of “bodily injury,” as construed in
Whitcomb, and the operative statutory language has not changed. Loss of consortium describes
harm to the marital partnership.

       [The marital] partnership with all its attendant and mutual correlatives includes
       and is summed up in the term “consortium.” Reason and experience demonstrate
       that a marriage involving a husband and wife as partners secures to each other not
       only material services, but love, felicity, companionship, the exchange of ideas,
       consultation with respect to the family welfare and the rearing of children, and the
       maintenance of an intimacy abounding in reciprocal acts of kindness. In short,
       consortium includes all of the elements of the conjugal unity deriving from the
       status of husband and wife bound in the closest entity recognized by society.

Albert v. McGrath, 278 F.2d 16, 18 (D.C. Cir. 1960), quoted in 1 Jacob A. Stein, Stein on
Personal Injury Damages Treatise § 2:3 (3d ed.) (WL updated Apr. 2014); see also id. (The loss
of consortium “can be seen as embracing the kinds of mental or emotional interests that are
directly compensable to the injured person for another’s negligence or tortious conduct. The loss
of love, affection, society, comfort, and sexual relations are inseparable and will often be
indistinguishable from the emotional distress resulting from the injury to the spouse.”). Injuries
to these interests are not distinguishable from distress of mind, disgrace, aggravation, and
pecuniary losses. See Whitcomb, 38 Vt. at 482 (including such injuries within the concept of
“bodily injury”). Loss of consortium claims survive under 14 V.S.A. § 1452. Accord Flight
Line, Inc. v. Tanksley, 608 So.2d 1149, 1166–69 (Miss. 1992) (loss of consortium claim survives
death of spouse holding claim); Bryant v. Kroger Co., 570 N.E.2d 1209, 1210–13 (Ill. Ct. App.
1991) (same).

                                            ORDER

       Defendant Lawrence’s Motion for Partial Summary Judgment is denied.
       Plaintiff Wallace’s Petition for Interlocutory Review is denied.
       Defendant Springfield Hospital’s Motion for Partial Summary Judgment is denied.
       Defendant Green’s Motion for Entry of Final Judgment is denied.

       Dated this __ day of October 2014.

                                                     _____________________________
                                                     Mary Miles Teachout
                                                     Superior Court Judge

                                                3
