Chamley v. Khokha , 2007 N.D. LEXIS 69 ( 2007 )

MARQUART, District Judge.

[¶ 1] William Chamley appeals from summary judgments dismissing with prejudice his claims against Dr. Inder V. Khokha and Mercy Medical Center for the wrongful death of Rosie Chamley. The issue on appeal is whether the district court erred in granting Dr. Khokha’s and Mercy Medical Center’s motions for summary judgment on the basis of Dr. Khok-ha’s immunity from suit and from liability under the Good Samaritan law. We reverse and remand, concluding the district court erred in granting summary judgment on the issues of Dr. Khokha’s expectation of remuneration. We are of the opinion that Dr. Khokha, as a matter of law, had an expectation of remuneration under N.D.C.C. § 32-03.1-04 and is precluded from claiming immunity under the Good Samaritan Act.

I

[¶ 2] On February 2, 2004, Rosie Chamley was admitted to Mercy Medical Center to undergo a surgical procedure to remove kidney stones. This surgery was performed by her longtime urologist, Dr. Salem S. Shahin. Dr. Shahin is not an employee of Mercy Medical Center but had privileges to perform surgeries on his patients at the hospital. Following the surgery, Rosie Chamley experienced excessive bleeding to the point that her condition became life-threatening. Dr. Shahin returned her to the operating room for renal exploration to determine the cause of the bleeding. During renal exploration, Dr. Shahin concluded that the kidney would need to be removed. Dr. Shahin had difficulty visualizing the blood vessels both to and from the kidney. He requested Dr. Khokha to assist with the kidney removal. Dr. Khokha, a Mercy Medical Center general surgeon with vascular credentials, was in the doctors’ lounge waiting for surgical personnel so he could perform a scheduled surgery on his own patient. At the time, Dr. Khokha was a salaried hospital employee and staff physician at the hospital. When Dr. Khokha was told Dr. Shahin needed his help, he went immediately into the operating room and assisted with Rosie Chamley’s kidney removal. At some point during the kidney removal, Rosie Chamley’s vena cava was damaged and had to be repaired by Dr. Khokha. This repair stopped Rosie Chamley’s internal bleeding, but the following day she was transferred to a Bismarck hospital where she later died.

[¶ 3] In a complaint dated February 9, 2005, Rosie Chamley’s son, William Cham-ley, alleged Dr. Khokha and Mercy Medical Center, Dr. Khokha’s employer, were responsible for Rosie Chamley’s wrongful death under chapter 32-21, N.D.C.C. William Chamley also sued Dr. Shahin, but these parties have settled, and Chamley dismissed the lawsuit against Dr. Shahin. Dr. Khokha and Mercy Medical Center filed motions for summary judgment, which the district court granted, concluding Dr. Khokha was a “Good Samaritan” as defined by chapter 32, N.D.C.C., and therefore immune from suit. William Chamley concedes that if the court finds Dr. Khokha immune under the Good Samaritan statutes, Mercy Medical Center, as the doctor’s employer, is also immune. The district court dismissed William Chamley’s lawsuit with prejudice.

II

[¶ 4] On appeal, William Chamley argues the district court erred in granting summary judgment under the Good Samaritan statutes, because Dr. Khokha was employed to provide hospital patients with vascular surgical skills he was authorized to use. Chamley also argues Dr. Khokha was paid for these services and therefore had an “expectation of remuneration” that exempts him from civil immunity under N.D.C.C. § 32-03.1-04. Chamley claims that as a matter of law, the only conclusion that can be reached is that the hospital and its employee, Dr. Khokha, cannot be considered a “Good Samaritan” or, at the very least, that the issue was one of fact, precluding summary judgment.

[¶ 5] Dr. Khokha and Mercy Medical Center argue they are immune from suit under chapter 32-03.1, N.D.C.C., as a matter of law. They argue Dr. Khokha had no duty to care for Rosie Chamley, a patient not his own, and on whom he operated only because he was asked to help in an emergent, life-threatening situation. Dr. Khokha also argues that his reimbursement for his surgical services does not render him open to suit since doctors are entitled to receive reasonable remuneration under N.D.C.C. § 32-03.1-04 for professional services given in an emergency. Dr. Khokha argues he was not an emergency room physician and therefore was not required to assist Dr. Shahin.

Ill

[¶ 6] The three applicable Good Samaritan statutes are found in chapter 32-03.1, N.D.C.C. First, section 32-03.1-02, N.D.C.C., provides immunity from suit for “Good Samaritans”:

Actions barred. No person, or the person’s employer, subject to the exceptions in sections 32-03.1-03, 32-03.1-04, and 32-03.1-08, who renders aid or assistance necessary or helpful in the circumstances to other persons who have been injured or are ill as the result of an accident or illness, or any mechanical, external or organic trauma, may be named as a defendant or held liable in any personal injury civil action by any party in this state for acts or omissions

arising out of a situation in which emergency aid or assistance is rendered, unless it is plainly alleged in the complaint and later proven that such person’s acts or omissions constituted intentional misconduct or gross negligence.

[¶ 7] Second, physicians or surgeons have the right to collect reasonable fees under N.D.C.C. § 32-03.1-04. This section provides:

Physicians or surgeons. Nothing in this chapter may be construed to deprive any physician or surgeon licensed in this state of the right to collect reasonable fees for any acts of aid, assistance or treatment ... in the course of such aid or assistance under this chapter, of the right to reimbursement, from the injured or ill person or that person’s estate for any expenses or damages which appeared reasonable and necessary to incur under the circumstances....

But section 32-03.1-04, N.D.C.C., also provides: “Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.”

[¶ 8] Third, section 32-03.1-05, N.D.C.C., provides exceptions:

This chapter does not encompass a person who, at the time of the emergency, was employed expressly or actually for the purpose of providing emergency medical aid to humans, either within or outside of a hospital or other place or vehicle with medical equipment, for emergency medical aid or other assistance rendered in the regular course of their employment. Such persons and their employers are liable for their acts and omissions in rendering emergency medical aid in the regular course of their employment, according to the prevailing law in this state.

[¶ 9] We first consider whether Dr. Khokha’s defense is barred because he had the expectation of payment for providing Rosie Chamley with medical service. William Chamley relies on the statute providing, “Any person rendering aid or assistance with an expectation of remuneration shall not be covered by the provisions of this chapter.” N.D.C.C. § 32-03.1-04; see also Danny R. Veilleux, Annotation, Construction and Application of “Good Samaritan” Statutes, 68 A.L.R.4th 294, 301 (1989) (some statutes provide immunity only for persons who give emergency care without expecting payment). Dr. Khokha responds he is not precluded from claiming protection under the Act because “[n]oth-ing in this chapter may be construed to deprive any physician or surgeon licensed in this state of the right to collect reasonable fees for any acts of aid, assistance or treatment.” N.D.C.C. § 32-03.1-04.

[¶ 10] We agree with Dr. Khokha that N.D.C.C. § 32-03.1-04 does not prevent a surgeon from recovering a reasonable fee for services rendered in an emergency. However, that leaves at least one question unanswered: namely, whether the doctor or the hospital can have protection under the Act because of an expectation of payment when services were rendered. Id. Here, William Chamley argues Dr. Khokha must have expected remuneration when he entered the operating room because Dr. Khokha billed for his services to Rosie Chamley and because Dr. Khokha is a hospital employee who expects to be paid for medical services rendered in the hospital. William Chamley also argues Dr. Khokha’s employment contract required a minimum of 40 hours per week at the hospital, with 36 hours or more of patient contact. The contract prohibited Dr. Khokha from having any other employment in the medical field. Under terms of the contract, Dr. Khokha was required to provide surgical services to hospital patients, as directed by the hospital. He was compensated by the hospital, on both a salary and an incentive basis. In turn, Dr. Khokha assigned to the hospital all rights to bill and collect fees from patients.

[¶ 11] On the basis of these facts and others in the record, we believe as a matter of law that Dr. Khokha had an expectation of remuneration and that he is not immune from liability under the Act.

[¶ 12] “Statutory interpretation is a question of law, fully reviewable on appeal.” Ballensky v. Flattum-Riemers, 2006 ND 127, ¶ 22, 716 N.W.2d 110. The words “expectation of remuneration” as used in § 32-03.1-04, N.D.C.C., are not defined in the statute. In ascertaining legislative intent, the Court looks first to the language of the statute as a whole and construes the statute’s words in their plain, ordinary, and commonly understood sense. State v. Ulmer, 1999 ND 245, ¶ 6, 603 N.W.2d 865. To “expect” is “to anticipate the coming or receipt of.” Webster’s Third New International Dictionary 799 (3d ed.1993).

[¶ 13] Justice Crothers, in his concurring and dissenting opinion, states that the majority has failed to harmonize the words of the entire statute, specifically that part which allows a physician to collect reasonable fees for acts of assistance. Justice Crothers suggests that the majority has failed to recognize the tension between that language and the language regarding expectation of remuneration. This Court must harmonize any apparent conflicting provisions in a statute, if possible. Frey v. City of Jamestown, 548 N.W.2d 784, 788 (N.D.1996). These provisions can be harmonized. There is no ambiguity. They are in different tenses. One is speaking to the actor’s expectation of remuneration at the time of the rendering of aid, and the other is speaking of collecting a fee which appeared reasonable. A physician who encounters an emergency outside the hospital setting could volunteer his or her services, with no expectation at that time to collect a fee. Later, on reflection, the physician could send a bill for services, and still benefit from the immunity-

[¶ 14] The record below establishes that Dr. Khokha was a salaried hospital employee who performed a medical service in his employer hospital. He was being “remunerated” by the hospital when he performed the procedure on Rosie Cham-ley. Because he was being remunerated, as a matter of law, Dr. Khokha anticipated being compensated for his services. Dr. Khokha testified in his deposition that at the time he was “trying to save the patient’s life ... and wasn’t thinking of anything else.... ” This testimony, however, does not create an issue of fact that would preclude summary judgment on this issue.

[¶ 15] In McIntyre v. Ramirez, 109 S.W.3d 741 (Tex.2003), the Court addressed a case in which a physician was seeing one of his patients in a hospital where he did not work, when he was called to give assistance to another physician. The Court there held that the physician, who was not employed by the hospital, had no expectation of remuneration because of his deposition testimony as follows: “I did not charge the patient for my services nor did I render my services in expectation of compensation. This was not a situation for which I would ever charge.” Id. at 749. Dr. McIntyre also testified that he did not bill Ramirez and that it would not be ethical to do so. He further testified that he was not aware of anyone in Travis County who would send a bill when they provided emergency care under the circumstances of that case. Id.

[¶ 16] Here, Dr. Khokha did not testify that he was not planning to charge a fee for his work. This is not at all surprising, given his status as a salaried physician performing a procedure in the hospital that employed him.

[¶ 17] The doctor’s testimony that he was thinking about saving the woman’s life and nothing else does not “set forth specific facts showing that there is a genuine issue for trial.” N.D.R.Civ.P. 56(e). Construing Dr. Khokha’s testimony as saying that he was not anticipating being compensated for his services is mere speculation and is not sufficient to resist a motion for summary judgment. See BTA Oil Producers v. MDU Resources Group, Inc., 2002 ND 55, ¶ 49, 642 N.W.2d 873.

[¶ 18] It is important to note that it is the combination of Dr. Khokha’s being a salaried employee of the hospital and performing the procedure in the hospital that caused him to have an expectation of remuneration when he was rendering the aid. If, for example, Dr. Khokha was not employed by the hospital, but was simply there seeing his patient when he was called to assist, he may be able to claim the immunity if he testified similarly to the doctor in Ramirez. One would also believe that if Dr. Khokha, a salaried employee of the hospital, came upon an emergency outside the hospital setting, he could claim immunity if he testified similarly to the doctor in Ramirez. We do not, however, need to, nor do we, decide these issues today.

[¶ 19] We reverse and remand, concluding that the district court erred in granting summary judgment on the issue of Dr. Khokha’s expectation of remuneration, and further concluding that, as a matter of law, Dr. Khokha had an expectation of remuneration. The Good Samaritan Act provides no immunity to Dr. Khokha or Mercy Medical Center.

[¶ 20] DALE V. SANDSTROM and MARY MUEHLEN MARING, JJ., concur. [¶ 21] The Honorable STEVEN L. MARQUART, D.J., sitting in place of KAPSNER, J., disqualified.