Moore v . Rockwood, et a l . 09-CV-329-SM 04/05/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Winter Moore, Plaintiff

v. Civil N o . 09-cv-329-SM Opinion N o .

Mark J. Rockwood and Southern New Hampshire Medical Center, Defendants

O R D E R

Winter Moore brings this civil action against Southern New

Hampshire Medical Center (the “Medical Center”) and Mark

Rockwood, claiming Rockwood, a phlebotomist employed by the

Medical Center, assaulted her while she was a patient at the

Medical Center. Defendants move the court to refer plaintiff’s

claims to the New Hampshire medical screening panel. See

generally N.H. Rev. Stat. Ann. (“RSA”) ch. 519-B. Plaintiff

objects. For the reasons discussed below, that motion is denied.

Background

According to Moore, she was admitted to the Medical Center

on February 1 1 , 2007, for treatment of severe colitis. Although

the Medical Center denies this, Moore says that upon her

admission she asked that “only female hospital personnel (with

the exception of physicians) attend to her.” Complaint at para. 11. She claims a sign to that effect was posted on the door to

her room.

at para. 1 2 .

The day after her admission, Moore says Rockwood came into

her room, and neither introduced himself nor responded when Moore

asked who he was. When Moore asked if he was a doctor, she says

Rockwood was unresponsive and said, simply, that he was going to

perform a pelvic examination. Moore claims he then pulled her

blanket down from her chest to below her waist, “poked and

pressed [her] stomach and pelvis hard with his hand,” and then

“reached up and squeezed her left breast very hard.” Complaint

at para. 1 8 . Rockwood apparently took a sample of Moore’s blood

but, as he was leaving, Moore claims he “pressed his thumb hard

against her right breast and gruffly rubbed it,”

at para. 2 2 ,

and then “stood u p , using [her] right breast as leverage,”

at

para. 2 4 .

Moore says she was so traumatized by the incident, she

immediately telephoned her sister, who is a nurse. She also says

she subsequently reported the incident to the Nashua Police

Department. Concerned that Rockwood might return to her room

later that evening, Moore says she repeatedly asked the Medical

Center nurses if he was still working in the hospital. According

to Moore, the nurses refused to answer her inquiries. Afraid to

2 remain in her room alone, Moore says she had a friend stay with

her from 8:00 pm until 2:00 am the following morning. She also

says she asked that the lights in her room be left on for the

entire night. As a result of the alleged incident with Rockwood,

Moore asked to be transferred to the Lahey Clinic, in

Massachusetts.

At the Lahey Clinic, Moore says she received counseling

concerning the alleged incident with Rockwood and says she later

“attended private counseling sessions with a psychiatrist to deal

with her trauma and resulting emotional and physical distress,

including insomnia.” Complaint at para. 3 4 . She claims she “has

never fully recovered from this assault and continues to suffer

emotional distress.”

at para. 3 5 .

Discussion

I. RSA ch. 519-B and New Hampshire’s Medical Screening Panel.

In her complaint, Moore advances two common law claims

against Rockwood and eleven statutory and common law claims

against the Medical Center. Among Moore’s numerous causes of

action against the Medical Center are claims for negligence,

negligent supervision, negligence per s e , and breach of contract.

3 She seeks damages for the emotional harm she suffered as a result

of Rockwood’s alleged conduct.1

New Hampshire law provides that whenever a person files a

civil suit against a “medical care provider,” seeking

compensation for a “medical injury,” his or her claims shall

first be presented to a medical screening panel. RSA 519-B:4.

There is no dispute that both Rockwood and the Medical Center are

medical care providers under the statute. The parties d o ,

however, disagree as to whether Moore is seeking to recover for a

“medical injury,” as that term is defined in the statute. Moore

insists that her claims are garden-variety tort claims having

nothing to do with discrete standards of care applicable to

medical care providers (while at the same time arguing that

standards of care unique to medical providers are applicable in

this case). Defendants contend that Moore’s claims are

1 Against Rockwood, Moore advances claims for negligent and intentional infliction of emotion distress (counts 10 and 1 1 ) . She does not, however, assert a common law claim for assault or battery.

Against the Medical Center, she advances the following claims: violation of Title 18 of the Social Security Act and

(count 1 ) ; violation of RSA 151:21 (count 2 ) ; negligence per se (count 3 ) ; negligence - direct liability (count 4 ) ; negligence - vicarious liability (count 5 ) ; negligent supervision (count 6 ) ; breach of contract (count 7 ) ; promissory estoppel (count 8 ) ; equitable estoppel (count 9 ) ; negligent infliction of emotional distress (count 1 0 ) ; and negligent misrepresentation (count 1 2 ) .

4 necessarily claims for “medical injury,” since the alleged tort

feasors are unquestionably “medical care providers” and the

claimed injuries were sustained in the course of providing

medical services to Moore.

The parties’ disagreement stems from the fact that the

statute is ambiguous (or, at a minimum, unclear). On one hand,

its stated purpose is to reduce medical malpractice insurance

rates by quickly identifying and resolving “claims of

professional negligence.” RSA 519-B:1 I I . To that end, a

screening panel is charged with making “findings regarding

negligence and causation,” and determining “whether the acts or

omissions complained of constitute a deviation from the

applicable standard of care.” RSA 519-B:6. The purpose of the

statute (and the screening panel) would, then, appear to be the

review of claims for medical malpractice or professional

negligence.

But, on the other hand, the statute defines the phrase

“medical injury” in extremely broad terms - terms that do not

limit “medical injuries” to the product of professional

negligence or medical malpractice.

“Medical injury” or “injury” means any adverse, untoward or undesired consequences arising out of or sustained in the course of professional services

5 rendered by a medical care provider, whether resulting from negligence, error, or omission in the performance of such services; from rendition of such services without informed consent or in breach of warranty or in violation of contract; from failure to diagnose; from premature abandonment of a patient or of a course of treatment; from failure properly to maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

RSA 519-B:2 III (adopting the definition of “medical injury”

provided in RSA 507-E:1 III) (emphasis supplied). The statute’s

broad definition of “medical injury” includes within its scope

injuries that are the product of both negligent and intentional

conduct, and, literally, “errors” that do not necessarily deviate

from the expected standard of reasonable care applicable to

medical professionals. And, contrary to Moore’s suggestion, it

does not provide that a “medical injury” must, necessarily,

result from professional negligence or medical malpractice.

Instead, “medical injury” can be the result of a wide array of

wrongful conduct, such as a breach of contract, a breach of

warranty, a failure to obtain informed consent, o r , conceivably,

an intentional tort, such as an assault. Similarly, the

statutory definition of “action for medical injury” makes clear

that the phrase reaches beyond negligence actions, and includes

“any action against a medical care provider, whether based in

tort, contract or otherwise, to recover damages on account of

medical injury.” RSA 519-B:2 I .

6 In this case, one might plausibly think that the injuries

for which Moore seeks compensation literally fit within the scope

of “medical injury,” as that phrase is defined in the statute.

The alleged assault took place while Moore was receiving medical

care and professional services from the Medical Center and its

employee, Rockwood. As to Rockwood, Moore claims the assault

took place while he was in her hospital room to perform

professional services as a blood technician or phlebotomist.

Similarly, that alleged assault took place while Moore was

receiving a broad range of professional medical services from the

Medical Center related to the diagnosis and treatment of her

illness. And, in support of her negligence claims, Moore invokes

duties of care unique to medical care providers, including those

arguably embodied in both a state and federal patient’s bill of

rights - again suggesting that she is seeking compensation for

“medical injury.”

The opposing view i s , however, equally plausible. After

all, Moore seeks damages for injuries arising out of an

intentional tort; she does not claim that she was the victim of

professional negligence or medical malpractice (at least not as

those phrases have been traditionally understood). In fact,

courts that have addressed the issue have often concluded that an

assault - particularly a sexual assault - upon a patient by a

7 medical care provider (other than a psychiatrist or gynecologist)

does not constitute medical malpractice and does not arise out of

the provision of professional medical services. See, e.g., Roe

v . Federal Ins. Co.,

(1992) (concluding that a

dentist’s sexual assault of a patient did not arise out of the

rendering of “professional services”). If that is the law in New

Hampshire, there would seem to be little sense in asking the

medical review screening panel to determine whether the conduct

of either the Medical Center or Rockwood amounted to medical

malpractice or whether such malpractice proximately caused

Moore’s injuries. See RSA 519-B:6 (“At the conclusion of the

presentations, the panel shall make its findings regarding

negligence and causation in writing.”).

II. The Act’s Constitutionality.

In further support of her view that her claims should not be

sent to the screening panel, Moore asserts that RSA ch. 519-B is

unconstitutional. Specifically, she claims the statute violates

the equal protection and/or separation of powers provisions of

the New Hampshire Constitution. And, at least one state superior

court judge has agreed that the statute i s , at least in part,

unconstitutional. Eaton v . Fleet, Carroll County Sup. C t . Docket

No. 2008-cv-074 (N.H. Sup. C t . Nov. 3 , 2009) (holding that the

provisions of RSA 519-B:8, 9, and 10 are unconstitutional under

8 Part I , Article 37 (the separation of powers clause) of the New

Hampshire Constitution). Other superior court judges, it would

seem, have disagreed. See Plaintiff’s memorandum (document n o .

58) at 19 (citing, as contrary authority, Phillips v . Pascal,

Coos County Sup. C t . Docket N o . 07-c-60, Order on Motion in

Limine (Vaughan, J . ) ; Krakie v . Catholic Med. Ctr., Hillsborough

County Sup. C t . Docket N o . 06-c-717, Order (O’Neill, J . ) ) .

To date, the New Hampshire Supreme Court has addressed

neither the statute’s constitutionality nor the scope of its

definition of “medical injury” or “action for medical injury.”

III. Certification to the New Hampshire Supreme Court.

When, in situations such a this, a federal court is called

upon to apply state law, it must “take state law as it finds i t :

‘not as it might conceivably b e , some day; nor even as it should

be.’” Kassel v . Gannett Co.,

(1st Cir. 1989)

(quoting Plummer v . Abbott Laboratories,

(D.R.I. 1983)). When state law has been authoritatively

interpreted by the state’s highest court, this court’s role is

straightforward: it must apply that law according to its tenor.

See Kassel,

. When the signposts are somewhat

blurred, the federal court may assume that the state court would

adopt an interpretation of state law that is consistent with

9 logic and supported by reasoned authority. See Moores v .

Greenberg,

, 1107 n.3 (1st Cir. 1987). But, this

court is and should be hesitant to blaze new, previously

uncharted state-law trails. Accordingly, when a dispositive

legal question is novel and the state’s law in the area is

unsettled, certification is often appropriate. See Lehman Bros.

v . Schein,

(1974); Arizonans for Official

English v . Arizona,

3 , 76 (1997). See also Acadia Ins.

Co. v . McNeil,

(1st Cir. 1997).

Initial construction of New Hampshire’s statutory law (and a

determination as to whether a statute conflicts with the State’s

Constitution), particularly when the statute in question

implicates substantial public policy concerns, is a realm best

occupied by the New Hampshire Supreme Court. Because that court

has yet to address the discrete issues presented in this case,

and because it is unclear how it would likely resolve those

issues in the context of the facts as pled, the fairest and most

prudent course of action at this stage is to certify those

questions.

10 Conclusion

The Medical Center’s motion to refer plaintiff’s claims to

the New Hampshire medical malpractice screening panel (document

no. 47) is denied, without prejudice.

The court proposes to certify the following questions of law

to the New Hampshire Supreme Court:

Whether one or more of plaintiff’s claims against Southern New Hampshire Medical Center seeks compensation for “medical injury,” as defined by New Hampshire Rev. Stat. Ann. (“RSA”) ch. 519-B (the “Act”) and, therefore, must be referred to New Hampshire’s medical review screening panel; and

Whether one or more of plaintiff’s claims against Mark J. Rockwood seeks compensation for “medical injury,” as defined by the Act and, therefore, must be referred to New Hampshire’s medical review screening panel; and

Whether all or part of the Act i s , as plaintiff claims, unconstitutional because it violates the equal protection and/or the separation of powers provisions of the New Hampshire Constitution.

See generally N.H. Supr. C t . R. 3 4 . If any party objects to the

form of the questions the court proposes to certify, a written

objection, along with suggested alternative language, shall be

filed on or before April 2 6 , 2010. The court proposes to submit

to the Supreme Court, as its statement of facts, the facts as

presented in this order. If any party objects or wishes the

court to supplement that statement of facts, that party shall

submit an objection and/or proposed statement of supplemental

11 facts by the same date. The parties should, of course, bear in

mind that at this stage of the litigation, the court must assume

that all properly alleged facts in plaintiff’s complaint are

true.

SO ORDERED.

April 5 , 2010

cc: Rosanna Sattler, Esq. Laura A . Otenti, Esq. Nancy J. Puleo, Esq. W . Kirk Abbott, Jr., Esq. Kevin M. O’Shea, Esq. Michael A . Pignatelli, Esq. Rose M. Joly, Esq.

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