Snyder v. banner/goel

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

PATRICIA SNYDER, an individual, Plaintiff/Appellant,

v.

BANNER HEALTH, an Arizona corporation; RAMIL GOEL, M.D., an
individual, Defendants/Appellees.

No. 1 CA-CV 13-0630
FILED 10-07-2014

Appeal from the Superior Court in Maricopa County
No. CV 2011-099491
The Honorable David M. Talamante, Judge

AFFIRMED IN PART; REMANDED IN PART

COUNSEL

Philip A. Seplow Attorney at Law, Phoenix
By Philip A. Seplow
Counsel for Plaintiff/Appellant
Campbell Yost Clare & Norell, P.C., Phoenix
By Margaret F. Dean
Counsel for Defendant/Appellee Banner Health

Bradford Law Offices, P.L.L.C., Phoenix
By Michael E. Bradford
Co-Counsel for Defendant/Appellee Goel

Jones Skelton & Hochuli, P.L.C., Phoenix
By Eileen Dennis GilBride
Co-Counsel for Defendant/Appellee Goel

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Andrew W. Gould and Judge Samuel A. Thumma joined.

D O W N I E, Judge:

¶1 Patricia Snyder (“Appellant”) appeals the dismissal of her
claims against Banner Health (“Banner”) and Ramil Goel, M.D.
(collectively, “Appellees”). For the following reasons, we affirm the
dismissal of all claims except the intentional infliction of emotional
distress claim against Banner and the defamation claims against
Appellees.

FACTS AND PROCEDURAL HISTORY1

¶2 In four separate complaints, Appellant has attempted to
articulate actionable causes of action against Appellees. Deficiencies exist
in each of the complaints. In essence, Appellant complains generally

1 Appellant’s statement of facts is highly argumentative and offers only
generic record citations. Accordingly, we rely on facts from Appellees’
properly documented statements of fact, as well as our own review of the
record. See Ariz. Dep’t of Econ. Sec. v. Redlon, 215 Ariz. 13, 15, ¶2, 156 P.3d
430, 432 (App. 2007).

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about actions and omissions that occurred while her late husband, John
Snyder, was a patient at a Banner hospital.2

¶3 Appellant held a medical power of attorney for her
husband, a disabled veteran. Appellant alleges that a “perpetrator of an
earlier assault” requested a welfare check on Mr. Snyder, who was then
“wrongfully removed from his home based on [this] false report.”
According to Appellant, Mr. Snyder was taken to a Banner facility and
“admitted for observation, treated for slight dehydration, and . . . officially
discharged” after two days. Appellant alleges Appellees did not permit
her to take Mr. Snyder home upon discharge but instead “held [him]
unlawfully” for several days, preventing her from having contact with her
husband or receiving information about him. She further contends
Appellees initiated a false report to Adult Protective Services (“APS”) and
provided “[e]rroneous information and defamatory remarks” to police
and medical staff at the VA hospital. Appellant asserts there was no
evidence she abused her husband, who suffered from a “failure to thrive”
and “mental health problems.”

¶4 Appellant filed suit in October 2011, asserting claims on
behalf of both Mr. Snyder and herself. She later dismissed her medical
malpractice and wrongful death claims. At that time, the parties agreed
Appellant could file an amended complaint.

¶5 The first amended complaint purported to allege, in
summary fashion, claims for “intentional and/or negligent infliction of
emotional distress, breach of contract, negligent supervision, defamation,
falsification of records, deliberate indifference, conspiracy to commit false
detention or arrest and invasion of privacy.” Appellees moved to dismiss
the first amended complaint on various grounds. The parties later
stipulated that all claims asserted on behalf of Mr. Snyder would be
dismissed with prejudice and that the only claims remaining were “those
brought by and on behalf of Patricia Snyder.”

¶6 After briefing and oral argument, the superior court
dismissed with prejudice those claims in the first amended complaint
“relating to medical malpractice, breach of contract and false reporting,”
dismissed without prejudice “all other allegations,” and directed that any
future complaints “comply with [Arizona Rule of Civil Procedure] 10(b)

2 Mr. Snyder died several months after being discharged from the
hospital.

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and clearly set forth the basis for each claim and the dates upon which
they are claimed to have [occurred].”

¶7 Appellant then filed a second amended complaint.
Appellees moved to dismiss that complaint under Rule 12(b)(6). The
superior court dismissed with prejudice the claims for negligent
supervision, invasion of privacy, and conspiracy. It also dismissed with
prejudice the intentional infliction of emotional distress cause of action
against Dr. Goel. Additionally, the court dismissed the following claims
without prejudice: intentional infliction of emotional distress as against
Banner, negligent infliction of emotional distress, and defamation. The
court further ruled “there is no cause of action based on the allegations
that Plaintiff characterized as a duty of care based on the power of
attorney.”

¶8 Appellant filed a third amended complaint that re-alleged
the three causes of action dismissed without prejudice. Appellees
answered and then moved for judgment on the pleadings. The superior
court granted Appellees’ motion, dismissing all remaining claims with
prejudice. Appellant filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

¶9 Appellant challenges the superior court’s resolution of the
duty question, as well as its dismissal of her claims for intentional and
negligent infliction of emotional distress, defamation, “conspiracy to
commit false detention or arrest,” invasion of privacy, and negligent
supervision. We confine our review to these identified issues.

I. Standard of Review

¶10 The parties appear to agree that our review should be based
on Rule 12(b)(6) and 12(c) standards. They do not address the rather
extensive extrinsic documentation both sides filed in connection with the
motions to dismiss and the motion for judgment on the pleadings. The
superior court did not state whether it was excluding those documents or
considering them. The inclusion of such documents would typically
convert the motions into motions for summary judgment. See Rule
12(b)(6) (motions to dismiss); 12(c) (motions for judgment on the
pleadings); Frey v. Stoneman, 150 Ariz. 106, 109, 722 P.2d 274, 277 (1986);
Crook v. Anderson, 115 Ariz. 402, 403, 565 P.2d 908, 909 (App. 1977). In this
case, though, the parties and the court repeatedly stated they were not
proceeding under summary judgment standards. We therefore review the

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dismissal orders under Rules 12(b)(6) and 12(c), without considering
documents extrinsic to the pleadings.

¶11 We consider the dismissal of claims under Rule 12(b)(6) de
novo. Coleman v. City of Mesa, 230 Ariz. 352, 355, ¶ 7, 284 P.3d 863, 866
(2012). We also review the grant of a motion for judgment on the
pleadings de novo. Mobile Cmty. Council for Progress, Inc. v. Brock, 211 Ariz.
196, 198, ¶ 5, 119 P.3d 463, 465 (App. 2005). Well-pleaded material
allegations of the complaint are taken as true, but conclusions of law or
unwarranted deductions of fact are not. Yes on Prop 200 v. Napolitano, 215
Ariz. 458, 466, ¶ 19, 160 P.3d 1216, 1224 (App. 2007).

II. Duty of Care

¶12 To the extent Appellant suggests she may prosecute claims
that her husband might have brought simply because she held his medical
power of attorney, we disagree. None of the cited authorities stand for
that proposition. Moreover, Appellant’s arguments about A.R.S.
§§ 36-2221 and -3204 are presented in a vacuum, unlinked to any cause of
action actually alleged. Appellant has not sued Appellees for statutory
violations. As relevant here, she has asserted claims for intentional and
negligent infliction of emotional distress, defamation, “conspiracy to
commit false detention or arrest,” invasion of privacy, and negligent
supervision. Because the dismissal of claims affirmed in this appeal is
based on reasons unrelated to the duty question, and the claims we are
remanding do not require proof of a legal duty, we do not discuss this
issue further.

III. Emotional Distress Claims

A. Intentional Infliction of Emotional Distress

1. Dr. Goel

¶13 Dr. Goel sought dismissal of the intentional infliction of
emotional distress claim, arguing the second amended complaint alleged
no conduct by him in connection with this cause of action. At oral
argument, the superior court focused on that issue, asking Appellant’s
counsel: “Where in the complaint does it allege that Dr. Goel has engaged
in any of th[e] activity” alleged as a basis for intentional infliction of
emotional distress? Counsel responded, “I have to check, Your Honor,”
but offered nothing further on this point, causing the court to state at the
conclusion of the hearing:

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I asked during the course of the hearing as it related to the
intentional infliction of emotional distress as it relates to
Dr. Goel, what specific facts? What – what did he do? And
what has been alleged in the complaint to show that he
committed that tort against Plaintiff? The complaint doesn’t
answer that question and I didn’t get an answer to that
question today in argument. The complaint does have some
additional representations as it relates to Banner on that
issue, and that might need to be flushed out.

But because this is the third bite at the apple, as it relates to
Dr. Goel, the cause of – the allegations with regard to the
intentional infliction of emotional distress are dismissed
with prejudice.

¶14 Based on the record before it, the court properly dismissed
the intentional infliction of emotional distress claim against Dr. Goel with
prejudice.

2. Banner

¶15 An intentional infliction of emotional distress claim requires
proof of: (1) extreme and outrageous conduct; (2) an intent to cause
emotional distress or reckless disregard of the near certainty that distress
would result from such conduct; and (3) severe emotional distress.
Helfond v. Stamper, 149 Ariz. 9, 11, 716 P.2d 70, 72 (App. 1986). In terms of
the first element:

Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, “Outrageous!”

Restatement (Second) of Torts § 46 cmt. d; see also Ford v. Revlon, 153 Ariz.
38, 43, 734 P.2d 580, 585 (1987) (adopting the Restatement articulation of
the standard of liability for intentional infliction of emotional distress
claims).

¶16 The third amended complaint’s allegations against Banner
are minimally adequate to survive dismissal under Rule 12(c), though we

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express no opinion about whether the claim can survive a motion for
summary judgment. See Restatement (Second) of Torts § 46 cmt. h (“It is
for the court to determine, in the first instance, whether the defendant’s
conduct may reasonably be regarded as so extreme and outrageous as to
permit recovery.”). The Arizona Supreme Court decisions Banner relies
on all arise in the context of a motion for summary judgment or a trial,
where there was a developed factual record regarding the intentional
infliction of emotional distress claim. See Ford, 153 Ariz. at 43, 734 P.2d at
585 (analyzing jury verdict against defendant for intentional infliction of
emotional distress); Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76,
80, 716 P.2d 1013, 1017 (1986) (reversing grant of summary judgment on
intentional infliction claim); Watts v. Golden Age Nursing Home, 127 Ariz.
255, 258, 619 P.2d 1032, 1035 (1980) (affirming directed verdict against
plaintiff on intentional infliction claim).

¶17 We disagree with the superior court’s conclusion that the
intentional infliction of emotional distress claim against Banner
“inescapably derived” from the medical malpractice claim, such that its
dismissal was required under the “law of the case” doctrine. Appellant is
not foreclosed from relying on some of the facts previously alleged as
medical negligence or false reporting in asserting her intentional infliction
of emotional distress claim. The gravamen of her intentional infliction
claim is that Banner wrongfully kept her from seeing her husband or
participating in his care and threatened her with arrest, causing her (as
opposed to Mr. Snyder) damages. We vacate the dismissal of the
intentional infliction of emotional distress claim against Banner and
remand that cause of action for further appropriate proceedings.

B. Negligent Infliction of Emotional Distress

¶18 A claim for negligent infliction of emotional distress requires
proof that a defendant’s conduct caused the plaintiff to suffer emotional
distress that manifested itself as physical injury from either witnessing an
injury to a closely related person or suffering a threat to her own personal
security. Keck v. Jackson, 122 Ariz. 114, 115-16, 593 P.2d 668, 669-70 (1979);
Quinn v. Turner, 155 Ariz. 225, 226, 745 P.2d 972, 973 (App. 1987). The
plaintiff must have been in a zone of danger such that the defendant
exposed her to an unreasonable risk of bodily harm. Pierce v. Casas Adobes
Baptist Church, 162 Ariz. 269, 272, 782 P.2d 1162, 1165 (1989); Keck, 122
Ariz. at 116, 593 P.2d at 670.

¶19 Appellant alleged the following in connection with her claim
for negligent infliction of emotional distress:

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 She attempted to remove her husband from the hospital,
but a hospital employee pushed her away, “took
command of the wheelchair, and without the consent of
Plaintiff or the approval of Plaintiff’s husband, wheeled
the Plaintiff’s husband down the hallway and Plaintiff
was prevented from any further contact . . . because large
security men from the hospital surrounded the Plaintiff
at that time.”

 Plaintiff received a call that her husband was being
released “and she was given discharge instructions
advising her to give him the medication she had
specifically said not to give him. Plaintiff was not
informed of any possible danger to her from her
husband’s condition.”

 “Upon releasing John Snyder, Defendants failed to warn
Plaintiff of what was later determined to be hospital
induced delirium, which poses a risk or threat of violent
conduct to him or others. The failure to warn Plaintiff of
her husband’s condition placed her in a reasonably
foreseeable area (zone) of danger from violent conduct
by her husband.”

¶20 The superior court correctly concluded that, based on
Appellant’s own allegations, she was not in a “zone of danger so as to be
subject to an unreasonable risk of bodily harm” created by Appellees.
Pierce, 162 Ariz. at 272, 782 P.2d at 1165. Neither Appellant’s allegations
nor reasonable inferences therefrom suggest Appellant was exposed to an
unreasonable risk of bodily harm or that she suffered concomitant
physical injury. The superior court properly dismissed the negligent
infliction of emotional distress claims against Appellees.

IV. Defamation

¶21 Appellant’s defamation claim is based on statements
Appellees reportedly made to protective services agencies, law
enforcement, and staff at the VA hospital. Appellees contend: (1) the
cause of action is barred by the statute of limitations; (2) they have
immunity and/or a privilege for reports made to adult protective services
agencies and statements included in medical records; and (3) the
statements Appellant has alleged are not defamatory as a matter of law.

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¶22 The statute of limitations for defamation claims is one year.
A.R.S. § 12-541(1). All of the alleged defamatory statements occurred on
or before November 4, 2009, the date of Mr. Snyder’s discharge.
Appellant did not file suit until October 2011, almost two years later. See
Lim v. Superior Court, 126 Ariz. 481, 482, 616 P.2d 941, 942 (App. 1980)
(“An action for defamation accrues and the Statute of Limitations begins
to run upon publication.”). Appellant asserts, however, that she was
unaware she had been accused of abusing her husband and alleged in the
third amended complaint that “many of the false statements have recently
been discovered.”

¶23 The question of when a plaintiff discovered or should have
discovered facts giving rise to a claim is seldom resolved on the pleadings.
Doe v. Roe, 191 Ariz. 313, 323, ¶¶ 32-33, 955 P.2d 951, 961 (1998). There are,
however, cases involving the discovery rule where summary judgment is
appropriate. See id.; Thompson v. Pima Cnty., 226 Ariz. 42, 46-47, ¶¶ 12-15,
243 P.3d 1024, 1028-29 (App. 2010) (summary judgment proper because
plaintiffs had reasonable notice to investigate the cause of the injury). We
express no opinion about whether the statute of limitations defense might
succeed at the summary judgment stage, but without considering extrinsic
evidence, we cannot conclude that it bars Appellant’s defamation claim as
a matter of law.

¶24 We agree with Appellees’ contention that they have
immunity for reporting potential abuse to protective service agencies
unless their reports were made with malice. See A.R.S. § 46-453(A).
Appellant’s counsel conceded at oral argument before the superior court
that Appellees had “a right to call APS” initially, but argued that later
reports to the agency were defamatory. Whether those subsequent
communications are actionable depends on whether Appellant can
establish malice — an issue that must be resolved on a more developed
factual record. For purposes of Rules 12(b)(6) and 12(c), the third
amended complaint sufficiently alleges malice.

¶25 Additionally, Appellees may enjoy a conditional privilege
for factual notes included in medical records. See Restatement (Second) of
Torts §§ 595-96. However, application of this conditional privilege must
be resolved on a more developed factual record.

¶26 Appellees argue that specific statements attributed to them
are not defamatory as a matter of law. Once again, however, we cannot
consider extrinsic evidence to place the alleged statements in context.
Appellees may be correct that some or all of the statements are not

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defamatory as a matter of law, but we cannot definitively so hold at this
juncture.

¶27 Finally, although the defamation allegations against Dr. Goel
appear more limited than those against Banner, they are minimally
adequate to survive dismissal under Rule 12. Certain statements
attributed to Appellees may not be actionable (e.g., “[t]he home is unsafe”
and “there was no food and running water in the home”). But Appellant
has additionally alleged that Appellees collectively “initiated multiple
false reports” of abuse to APS, “provided erroneous information and
made defamatory remarks to police and medical staff at the VA hospital,”
and “perpetuated lies about abuse to other agencies.” Dr. Goel may be
able to demonstrate that these claims fail as a matter of law under Rule 56,
but we cannot affirm the dismissal based on Rule 12(b)(6) and 12(c)
standards.

V. Conspiracy to Commit False Detention or Arrest

¶28 The second amended complaint denominates this cause of
action as “conspiracy to commit false detention or arrest.” It alleges Mr.
Snyder “was denied his right to leave” the hospital and that “defendants
cooperated together to bar [Appellant] from the hospital despite her
legitimate reasons for being there.”

¶29 “[T]here is no such thing as a civil action for conspiracy.”
Perry v. Apache Junction Elementary Sch. Dist. No. 43 Bd. of Trs., 20 Ariz.
App. 561, 564, 514 P.2d 514, 517 (1973). Moreover, Appellant’s first
allegation clearly asserts a claim on behalf of Mr. Snyder and was properly
dismissed. Appellant also failed to state a cognizable claim on her own
behalf. The tort of false arrest is defined as the detention of a person
without consent and without lawful authority. Slade v. City of Phx., 112
Ariz. 298, 300, 541 P.2d 550, 552 (1975); Torrez v. Knowlton, 205 Ariz. 550,
552, ¶ 4, 73 P.3d 1285, 1287 (App. 2003). “The essence of false
imprisonment is the direct restraint of personal liberty or freedom of
locomotion, either by actual force or fear of force.” Deadman v. Valley Nat’l
Bank of Ariz., 154 Ariz. 452, 457, 743 P.2d 961, 966 (App. 1987). Appellant
has not alleged she was arrested or that Appellees confined her in any
manner. Indeed, at oral argument before the superior court, Appellant’s
counsel conceded the “false detention” was of Mr. Snyder, not Appellant.

¶30 The superior court properly dismissed Appellant’s
conspiracy to commit false detention or arrest claims.

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VI. Invasion of Privacy

¶31 The second amended complaint alleges:

Defendants purposefully ignored Plaintiff’s legal power of
attorney, including her medical power of attorney and made
decisions contrary to her wishes and her husband’s desire to
be treated at the VA hospital. False information was
disseminated accusing Plaintiff of abuse and neglect based
on unsubstantiated allegations written into reports.
Defendants continued to act on those allegations even after
being advised of their falsity. The publication of these
statements to outside individuals including Adult Protective
Services, Veteran’s Administration personnel and state and
local agencies subjected Plaintiff to contempt and scorn by
complete strangers in the hospital system. She had to
involve the police for welfare checks on [her] husband and a
civil escort because of the Defendants’ outrageous conduct.
She was forced to share private matters of her life for police
cooperation to assist her in contacting her husband to bring
him home. Defendants used Mr. Snyder’s medical records
to promote their campaign of harm to Plaintiff.

¶32 Appellant does not specify which invasion of privacy theory
she is asserting. Regardless, she failed to properly plead either intrusion
upon seclusion or false light. Indeed, at oral argument before the superior
court, Appellant’s counsel conceded that, of all the remaining claims,
“invasion of privacy is fairly weak.”

¶33 To state a claim for intrusion upon seclusion, a plaintiff must
allege the defendant intentionally intruded on the solitude or seclusion of
another. Restatement (Second) of Torts § 652B. Such an intrusion must be
“into a private place,” such as forcing one’s way into the plaintiff’s home
or, with the use of aids, observing plaintiff’s “private affairs.”
Restatement (Second) of Torts § 625B cmt. b-c; see also Hart v. Seven Resorts,
Inc., 190 Ariz. 272, 279, 947 P.2d 846, 853 (App. 1997). Appellant has not
alleged that any of Appellees’ actions invaded her private space.

¶34 A claim for false light requires the plaintiff to establish: (1)
she was placed in a false light before the public; (2) the false light was
highly offensive to a reasonable person; and (3) the publisher knew of or
acted in reckless disregard to the falsity of the publicized matter and the
false light in which plaintiff was placed. Restatement (Second) of Torts

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§ 652E; see also Godbehere v. Phx. Newspapers, Inc., 162 Ariz. 335, 342, 783
P.2d 781, 788 (1989). Under false light, “public” means the matter is
communicated to “the public at large” or “to so many persons that the
matter must be regarded as substantially certain to become one of public
knowledge.” Restatement (Second) of Torts §§ 652D cmt. a, 652E cmt. a.
Appellant has not alleged that the purportedly actionable statements were
made to the public at large, that they would be highly offensive to a
reasonable person, or that Appellees acted intentionally or with reckless
disregard in making the statements. The superior court properly
dismissed the invasion of privacy claims.

VII. Negligent Supervision

¶35 The second amended complaint alleged negligent
supervision against Banner as follows:

Banner allowed Defendant Goel and others at the hospital to
detain John Snyder and administer unnecessary medication,
a neuroleptic, Risperdal, which [Snyder] as power of
attorney refused as her husband did not tolerate it.
Defendant Banner allowed Defendant Goel to practice
psychiatric medicine on John Snyder without any medical
credentials. Plaintiff, medical power of attorney, disclosed
her husband’s recent medical history on October 23, 2009,
the day of admission, to a psychiatric consult. The consult’s
medical evaluation was ignored by both Drs. Goel and
Varteresian. They forced Risperdal via a gastric tube.

¶36 These allegations purport to assert medical malpractice and
injuries to Mr. Snyder. As pled, the court properly dismissed Appellant’s
cause of action for negligent supervision.

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CONCLUSION

¶37 We affirm the dismissal of all claims against Appellees with
the exception of the intentional infliction of emotional distress claim
against Banner and the defamation claims against both Banner and Dr.
Goel. We remand those causes of action for further appropriate
proceedings, expressing no opinion about their substantive merits if
challenged by a motion for summary judgment. We deny Appellant’s and
Banner’s requests for attorneys’ fees. We make no award of taxable costs,
as each party has partially prevailed on appeal.

:gsh

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