On Appeal from Superior Court, Chittenden Unit, Civil Division February Term, 2013 Geoffrey W. Crawford, J.
The opinion of the court was delivered by: Robinson, J.
O'Brien v. Synnott (2012-164)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. 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.*fn1 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.*fn2
¶ 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 non-medical 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 non-medical 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.*fn3 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.*fn4
¶ 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 ...