Appeals from the Superior Court of the District of Columbia (CA1673-00 & CA1685-00). (Hon. Cheryl M. Long, Trial Judge).
Before Farrell and Washington, Associate Judges, and Nebeker, Senior Judge.
The opinion of the court was delivered by: Nebeker, Senior Judge
In this timely consolidated appeal, appellant Jane Doe No. 1 and appellants Jane W., Jane X., John Y., and John Z.*fn1 appeal the trial court's order granting summary judgment in favor of appellee, Georgetown University Medical Center ("Georgetown" or "the hospital") on their negligent infliction of emotional distress claims.*fn2 We affirm the grant of summary judgment in favor of Georgetown.
In their respective complaints, appellants allege that while they were undergoing interventional radiology procedures, Jeffrey Royal ("Royal"), a radiologic technician employed by Georgetown, substituted syringes containing pain reducing medications for those containing saline; that the substituted syringes were contaminated with pathogens; and that his use of contaminated medical equipment in administering medication to patients put appellants at risk of contracting infectious diseases. Following discovery, the trial court granted summary judgment in favor of Georgetown on all counts. In its order granting summary judgment, the trial court ruled, inter alia, that appellants failed to establish proximate cause as well as other elements required to prove their various negligence and intentional tort claims. As to appellants' negligent infliction of emotional distress claims, the trial court ruled that they failed to produce evidence that a zone of danger existed or that they were ever in the alleged zone of danger.
The facts established during discovery reveal that Royal was employed by Georgetown from September 15, 1999 to February 2, 2000, as a radiologic technician in the department of internal radiology. His job responsibilities did not include handling or administering narcotic medications or any other substances to patients. On February 2, 2000, Georgetown learned that Royal diverted a narcotic drug -- fentanyl -- from a sedated patient's medication dispensing pump.*fn3 As a result of this conduct, Royal was arrested and charged with Tampering with a Consumer Product in violation of 18 U.S.C. § 1365 (a). At the time of Royal's arrest, which led to his immediate termination from the hospital, Georgetown also discovered that Royal had been attempting to obtain narcotics by removing discarded syringes from a medical waste container.
Upon consulting with the Center for Disease Control ("CDC") and other authorities, Georgetown sent notification letters to hundreds of patients who had undergone internal radiology procedures and who had received either of two narcotic medications -- fentanyl or versed -- during the period of Royal's employment. The notification letter states, in relevant part:
We are writing you because our records show that you recently underwent an interventional [sic] radiology procedure at Georgetown University Medical Center.
We have recently been informed of unauthorized and inappropriate use of medical equipment that raises the unlikely possibility that some interventional [sic] radiology patients, including yourself, could have been exposed to infectious diseases while receiving medication. Although we have no evidence that any patient has been exposed, it is possible that during the procedure certain medical equipment may have been used that had previously come into contact with blood or other bodily fluids, thereby raising the possibility of infection. I want to reassure you that the chance of infection in this situation is extremely low.
Even so, we want to take appropriate precautions for our patients. We urge you to call us as soon as possible (ideally within two weeks) to arrange for testing, at no cost to you . . . .
Upon receiving this notification letter, Jane Doe No. 1 and the other appellants filed separate actions against Georgetown on March 1, 2000.*fn4 Jane Doe No. 1 alleged that Royal replaced syringes containing pain relieving medications intended for her with those containing unauthorized substances, such as saline; that Royal administered unauthorized substances to her using contaminated needles, which exposed her to infectious diseases; and that Royal's actions put her in "reasonable apprehension of imminent bodily injury, including . . . deadly disease," and as a result of his actions she suffered "severe emotional distress, mental anguish, embarrassment, and humiliation."
Jane W.'s complaints lists two counts: negligence, and negligent hiring, training, or supervision. It was brought on behalf of herself, as well as three other individuals, see supra note 1, and alleged that Royal had "deprived patients undergoing interventional [sic] radiology procedures . . . of prescribed medication" and that he "used contaminated medical equipment in administering medication and exposed [them] to infectious diseases . . . ." The complaint further alleged that as a result of Georgetown's negligence, appellants suffered injuries "including the risk of exposure to infectious diseases, severe mental anguish associated with that risk," and "severe physical and mental pain." The gravamen of the Jane W. complaint is that appellants suffered emotional distress due to a fear of contracting an infectious disease as a result of Royal's actions.*fn5
These two actions were consolidated in the trial court. After sentencing in the criminal matter,*fn6 Royal was deposed by appellants. In his deposition testimony, Royal stated that he began stealing narcotics from the hospital in November 1999 -- two months after his employment began; that from November 2, 1999 to February 2, 2000, he diverted narcotics on no more than twenty (20) occasions; that in switching syringes he always used those that were sterile; and that he never engaged in conduct causing a previously used syringe to come into contact with a patient. Royal also testified that he was not sure whether the syringes he substituted had, in fact, been used on any patient. He further testified that he was unable to identify the patients from whom he diverted narcotics, but stated that he was not aware that his conduct had any effect on their treatment.
The uncontested record reveals that when a patient in the Interventional Radiology Department is to receive fentanyl, two syringes are prepared. The patient receives the primary syringe as part of regular treatment and only receives the second syringe if necessary. In cases where a patient does not require a second dose of fentanyl, hospital procedure requires that the unused syringe be disposed of in a medical waste container. In his deposition testimony, Royal explained that in half of the cases in which he replaced a syringe filled with fentanyl with that containing saline, he did so only after that patient's treatment was completed and no longer required ...