United States District Court, D. South Dakota, Western Division
VERNON R. TRAVERSIE, an enrolled member of the Cheyenne River Sioux Tribe and citizen of South Dakota, Plaintiff,
RAPID CITY REGIONAL HOSPITAL INC.; REGIONAL HEALTH INC.; REGIONAL HEALTH PHYSICIANS INC.; TRS SURG ASSIST, INC.; and JOHN and JANE DOE NOS. 1-100, Defendants.
JEFFREY L. VIKEN, Chief District Judge.
On July 16, 2012, plaintiff Vernon R. Traversie filed a complaint against Rapid City Regional Hospital, Inc., Regional Health, Inc., Regional Health Physicians Inc., TRS Surg Assist, Inc., and John and Jane Doe Nos. 1-100 (collectively referred to as "defendants"). (Docket 21). The complaint alleges four causes of action against defendants: (1) a violation of Mr. Traversie's civil rights; (2) medical negligence; (3) battery; and (4) intentional infliction of emotional distress. Id . Pending before the court is a motion for summary judgment filed by defendants Rapid City Regional Hospital, Inc., Regional Health, Inc. and Regional Health Physicians Inc. (Docket 38). Defendant TRS Surg Assist, Inc. joined in the motion for summary judgment. (Docket 51). Based on the court's analysis, Rapid City Regional Hospital, Inc., Regional Health, Inc. and Regional Health Physicians Inc.'s, motion for summary judgment is granted in part and denied in part and TRS Surg Assist, Inc.'s motion for summary judgment is granted.
The parties submitted statements of material facts. (Dockets 40 & 54). Plaintiff filed a response disputing nearly every fact set forth in defendants' statement. (Docket 58). A description of the conflicting material facts is as follows:
On August 22, 2011, plaintiff Vernon Traversie, a Native American, was admitted to the Rapid City Regional Hospital complaining of chest pains. (Docket 54 at ¶ 4). On August 26, 2011,  Dr. Paul Orecchia performed open heart surgery on Mr. Traversie. (Docket 43-1 at p. 11). After his surgery, Mr. Traversie was transferred to Regional Hospital's Surgical Intensive Care Unit where George Sazama, a nurse, provided care. (Docket 45-2, 11:7-10). On August 28, 2011, Mr. Traversie was transferred to a regular hospital room and remained there until he was discharged on September 8, 2011. (Docket 43-1 at p. 70).
Mr. Traversie claims that sometime between August 27 and September 8, he was verbally abused by a nurse named "George." (Docket 54 at ¶ 5). According to Mr. Traversie, he awoke in the middle of the night in extreme pain and asked George for more medication and George refused. Id . Mr. Traversie then asked a female nurse for medication. Id . Mr. Traversie alleges the female nurse found George watching TV. Id . George returned to Mr. Traversie's room and threatened Mr. Traversie by saying, "You f***ing son of a bitch, he said, I'll teach you a "f***ing lesson you'll never forget you dumb f***ing Indian." Id . Mr. Traversie claims George slammed his arm down four times causing pain and injury to his shoulder and arm. Id . Mr. Traversie claims he began feeling drowsy and fell asleep while George began doing something to his stomach. Id . Mr. Traversie claims that during his stay at the hospital, "KKK" was scratched, carved or burned onto his stomach. (Docket 1).
Defendants dispute these allegations in their entirety. Defendants contend George Sazama, Mr. Traversie's nurse, was never watching television while caring for Mr. Traversie, never slammed his arm down, never spit in his face, and did not refuse Mr. Traversie medication. (Docket 40 at ¶¶ 21-24). Mr. Traversie disputes these facts, arguing his version of events is what actually happened. (Docket 58 at pp. 7-8).
Mr. Traversie asserts he immediately reported the event to a nurse supervisor. (Docket 58 at p. 8). Defendants contend there is no record indicating Mr. Traversie ever complained about this event to JoAnn Stock, Mr. Sazama's supervisor, or Angie Mills, the director of intensive care. (Docket 40 at ¶¶ 25-26).
Mr. Traversie also claims that sometime on September 7 or 8, 2011, an unknown female employee at Rapid City Regional Hospital slipped into his room and told him that something had been done to him that she disapproved of and as soon as he got home he needed to have his stomach photographed. (Docket 54 at ¶ 7). This unknown female allegedly told Mr. Traversie he would never know her by name and then slipped out of his room. Id . Mr. Traversie has not identified this unknown female.
On September 9, 2011, Bobbie Pearman, Mr. Traversie's home health nurse, resumed caring for Mr. Traversie. (Docket 40 at ¶ 7). Mr. Pearman observed Mr. Traversie's stomach and was shocked by the surgical scars and cuts. Id .; see also Docket 46-2, 10:4-14. Mr. Pearman testified at his deposition that when he examined Mr. Traversie's stomach he "didn't see any writing or initials or no KKK or whatever." (Docket 46-2, 12:2-4). Mr. Pearman testified he "saw a lot of scars and cuts" that "just didn't look appropriate." (Docket 46-2, 12:4-5).
Mr. Pearman called the police and the police came and took photographs. (Docket 46-2, 11:18-20). Mr. Pearman also took photographs and sent them to the Indian Health Services ("IHS") hospital. (Docket 46-2, 11:1-15). Dr. Kernizan, a doctor with IHS, saw the photographs and told Mr. Pearman that Mr. Traversie needed to come in for an examination. Id . A nurse at IHS saw the photographs and thought she read "OINK" in the scarring. (Docket 49-1 at p. 2). Lisa Veit, a nurse at the IHS hospital, saw the photographs of Mr. Traversie's stomach and personally observed Mr. Traversie's stomach when he arrived at the hospital on September 9, 2011, and testified during her deposition that what she observed was "some scars and some tape burns." (Docket 47-2, 8:11-24).
Defendants claim the scarring on Mr. Traversie's stomach is not "KKK" but is the result of bandages and tape being placed in slightly different positions each time a bandage was re-dressed to avoid tape irritation in the same area. (Docket 40 at ¶ 3). The defendants point to medical records which contain notations from various nurses about tape irritation on Mr. Traversie's stomach. Id. at ¶ 4.
Defendants claim Dr. Rommel Brandt cared for Plaintiff during his emergency room visit on September 9, 2011. (Docket 40 at ¶ 12). Dr. Brandt observed photographs of Mr. Traversie's stomach and also personally observed Mr. Traversie's stomach during his emergency room visit. Id. at ¶ 13. Dr. Brandt testified during his deposition that Mr. Traversie expressed concern that someone had carved three Ks into his stomach during his stay at the Rapid City Regional Hospital. Id. at ¶ 14. Dr. Brandt told Mr. Traversie the marks could just be superficial lacerations from the constant taping and re-taping of bandages. Id. at ¶ 15.
Later on September 9, 2011, during Mr. Traversie's emergency room visit, Dr. Yeisabeth Almeyda, a doctor at the IHS hospital, assumed care of Mr. Traversie. Id. at ¶ 16. Dr. Almeyda explained to Mr. Traversie, his pastor, Ben Farrar, and Karen Townsend, the irritation on Mr. Traversie's stomach appeared to be tape burns from frequent dressing changes on his surgical incision sites, which created macerations and scarring. Id. at ¶ 17; see also Docket 47-4, 13:16-24, 14:10-17.
As a result of these events, Mr. Traversie filed a complaint alleging four causes of action against defendants: (1) a violation of his civil rights; (2) medical negligence; (3) battery; and (4) intentional infliction of emotional distress. (Docket 21).
A. Summary Judgment Standard
Under Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment if the movant can "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing that a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986); Fed.R.Civ.P. 56(e) (each party must properly support its own assertions of fact and properly address the opposing party's assertions of fact, as required by Rule 56(c)). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at 248. Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id . (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id . However, the moving party is entitled to judgment as a matter of law if the nonmoving party fails to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). In such a case, "there can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587-88 (1986). The key inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it ...