Struthers v. Ho

1

Rebecca Struthers and Carmen Boulton, as Executors of the Estate of Gary Lane, Appellants, v. Samuel Y. Ho, M.D., Amarinder Singh, M.D., and Sound Inpatient Physicians, Inc., Appellees.

No. 123, 289

Court of Appeals of Kansas

January 14, 2022

NOT DESIGNATED FOR PUBLICATION

Appeal from Shawnee District Court; Thomas G. Luedke, judge.

Mark Beam-Ward, of Beam-Ward, Kruse, Wilson & Fletes, LLC, of Overland Park, for appellants.

John Wesley Smith, of Simpson, Logback, Lynch, Norris, P.A., of Overland Park, for appellees.

Before Bruns, P.J., Green and Isherwood, JJ.

MEMORANDUM OPINION

PER CURIAM.

Gary Lane (now deceased) maintains that he suffered emotional injury because healthcare providers did not timely complete his wife's death certificate. A notice of death has been filed in this appeal for Lane. This court has entered an order substituting Rebecca Struthers and Carmen Boulton as executors for the Estate of Gary Lane.

Lane sued Samuel Ho, M.D., Amarinder Singh, M.D., and Sound Inpatient Physicians, LLC (Sound Physicians) for interference with a dead body. At the end of discovery, the defendants moved for summary judgment, which the trial court granted. On appeal, Lane alleges multiple trial court errors. For the reasons discussed later, we reject Lane's arguments and thus, we affirm.

Facts

Lane was the spouse of decedent Patricia Lane. Struthers is Patricia's daughter and was dismissed as a plaintiff in 2019.

Patricia presented to the University of Kansas Health System, St Francis Campus (St. Francis) in Topeka on November 8, 2017. Her diagnosis was that she had suffered an aortic aneurysm. Patricia declined surgical intervention.

Ho and Singh were licensed physicians and healthcare providers who were employed by Sound Physicians to practice as hospitalists at St. Francis. Ho was one of five hospitalists on duty that day at St. Francis. He met Patricia when he made rounds on patients in the morning on November 9, 2017. Patricia died at 6:08 p.m. on November 9, 2017, surrounded by family.

A nurse practitioner, Jeff Black, pronounced Patricia dead. Black also authored a discharge summary in St. Francis' electronic medical records system. Ho was not present when Patricia died because he had gone off duty. A registered nurse created an expired patient summary which listed Singh as the attending provider to sign the death certificate. But on November 11, 2017, Ho cosigned the discharge summary that Black authored. Ho was not aware that he would also be responsible for completing the death certificate because in a large practice the physician who signs the discharge summary may not be the same physician responsible for completing the death certificate.

On November 10, 2017, Penwell-Gabel Cremations, Funerals &amp Receptions- Mid-town Chapel (the funeral home) initiated an electronic case for completing Patricia's death certificate within the Kansas Electronic Death Registration System. Funeral director Heidi Greve was responsible for the cremation arrangements for Patricia. An unknown employee of St. Francis told Greve that Patricia died and that Singh was the physician who should complete the death certificate. Greve began filling out Patricia's death certificate in the registration system, listing Singh as the physician to complete the death certificate.

When a funeral home assigns a death certificate to a physician, the electronic death registration system sends an auto-generated notification to the e-mail address on file for the physician. An auto-generated notification should have been sent to Singh on November 10, 2017. During depositions, Singh did not recall receiving any notification that a death certificate for Patricia was pending and assigned to him. He also looked back through his e-mails before his deposition and did not find any notification related to Patricia's death certificate. Singh testified that he sometimes had issues receiving notifications, stating "a lot of times they can get assigned to different providers." But he could not say how frequently an error occurs.

Diana Baldry, the chief of registration and amendments with the Kansas Department of Health and Environment, Office of Vital Statistics, testified that once or twice a month her office receives phone calls from physicians saying that they did not get an auto-generated notification from the system. According to Baldry, the system does not save auto-generated notifications, so she could not go back and see whether Ho or Singh received e-mail notices. The electronic death registration system shows when the case was assigned to a physician but does not confirm that e-mail notifications were sent.

Carol Munoz was employed by Sound Physicians as the hospitalist coordinator at St. Francis with normal working hours of 7 a.m. to 3:30 p.m., Monday through Friday.

Her responsibilities included answering the hospitalists' phone line. The hospitalists' phone line was directed to Munoz' desk and was not answered by anyone else. If she was not at her desk, calls to the hospitalists' phone line went to voicemail. If someone called for a physician Munoz took a message and then contacted the physician by text, call, or e-mail. If a funeral home did not know who to assign the death certificate to, Munoz told the funeral home which physician was responsible for filling out the death certificate. Munoz would contact a physician if she learned that the physician had not completed a death certificate.

Greve called Munoz on November 14, 2017, because Greve could not proceed with cremation without the physician's portion of the death certificate completed. During the call, Munoz looked up the death certificate and told Greve that it was incorrectly assigned to Singh but should be assigned to Ho. Greve then corrected the certificate to name Ho as the physician assigned to complete it. Munoz did not tell Singh or Ho about this phone call or Patricia's death certificate.

When a death certificate is reassigned to a new physician, an auto-generated email notification should be sent to the new physician. Munoz is also registered to receive notifications about pending death certificates assigned to physicians employed by Sound Physicians. Munoz did not recall ever receiving any notification of a pending death certificate for Patricia. Munoz does not normally delete these notifications. But when she reviewed her e-mail from November 2017, she could not find any notifications of a death certificate for Patricia. Munoz testified that she heard no previous complaints about Singh or Ho completing death certificates stating, "The only time we have a problem is when the State of Kansas doesn't get the notification sent."

Due to medical issues, Lane never personally attempted to call Ho, Singh, or anyone at St. Francis about completing his wife's death certificate. Lane instead relied on Struthers to make all phone calls about her mother's death certificate and arrangements for the cremation and funeral. On November 16, 2017, Struthers tried to reach Ho directly by calling the hospitalists' phone line. Struthers did not reach anyone but left a voicemail asking for a call back. Struthers called the hospitalists' number twice on November 20, 2017, again reaching no one but leaving a voicemail. Struthers made both calls after 3:30 p.m., when Munoz would have been off duty.

After failing to reach anyone on the hospitalists' phone line, Struthers called St. Francis' general phone number and reached someone with whom to speak about Patricia's death certificate. On November 20, 2017, at approximately 4:39 p.m., St. Francis' Clinical Resource Manager, Shari Brockman, sent Munoz an e-mail saying that Struthers called and that Ho needed to sign Patricia's death certificate. Munoz received this e-mail on her arrival at work on November 21, 2017. In response to Brockman's e-mail, Munoz called and e-mailed Ho.

Ho did not recall receiving any e-mail notification from the electronic death registration system about Patricia's death certificate before November 21, 2017. Ho testified that Munoz did not contact him about Patricia's death certificate until November 21, 2017. That morning, Ho told Munoz that he could not see the death certificate and that he was headed out of town, but he would come in as soon as he could to complete the death certificate. Munoz followed up her phone call to Ho by forwarding the e-mail from Brockman about completing the death certificate. Ho came into the office and completed the medical portion of Patricia's death certificate at or about 12:04 p.m. on November 21, 2017.

Meanwhile, on November 20, 2017, Struthers complained to the Kansas Board of Healing Arts (Board) that Ho had not completed her mother's death certificate. She stated her understanding that Ho is required to sign a death certificate within three days and stated that the delay was "'negligence on both his and the hospital's part and is inexcusable.'" Struthers explained her use of "negligence" referred to the fact that "nobody got back with us" and no one signed the death certificate. Struthers did not claim that anyone intended to delay the signing of the death certificate. She also did not allege that Ho had any motive or reason to not sign the death certificate. Similarly, Lane did not know why his wife's death certificate was delayed, but he did not believe that anyone intentionally refused to sign it or intended to delay cremation.

After investigating Struthers' complaint, the Board called her and told her that the delay was caused by a St. Francis employee incorrectly assigning Singh to complete the death certificate and that the Board would take no action against Ho.

Lane testified that he suffered no physical injuries because of the delay in signing the...