Eagle, John and Timmons-goodson concur.
The opinion of the court was delivered by: Eagles, Chief Judge.
Appeal by plaintiffs from order entered 18 April 1997 by Judge Henry V. Barnette, Jr. in Durham County Superior Court. Heard in the Court of Appeals 21 April 1998.
Willie R. Massey, Sr. died at Duke University Medical Center on 22 January 1995 from cardiomyopathy at the age of forty-seven years old. Plaintiffs are Mr. Massey, Sr.'s children and next of kin Willie R. Massey, Jr., Felicia Massey, and Daron Massey.
Plaintiffs' evidence tends to show the following: Mr. Massey, Sr. was treated at Duke Medical Center during the final stages of his illness. Dr. Amy Abernethy, M.D., a first-year intern employed by Duke, treated Mr. Massey, Sr. Upon notification of Mr. Massey, Sr.'s death, Willie Massey, Jr. and Felicia Massey, along with Mayola Thornton, a family friend, went to Duke Medical Center. Dr. Abernethy met with the Masseys and arranged for them to view Mr. Massey, Sr.'s body.
Plaintiffs testified that Dr. Abernethy, pursuant to Duke University Medical Center policy, asked them if they would donate Mr. Massey, Sr.'s organs. Specifically, Dr. Abernethy informed the plaintiffs that Mr. Massey, Sr.'s eyes were suitable for donation. Felicia Massey began to cry and Willie Massey, Jr. told Dr. Abernethy that they did not want their father's eyes removed and did not wish to donate them. Felicia then said she did not want to bury her father with any of his body parts missing. Dr. Abernethy recorded in the Duke medical record that she had asked the family about organ donation and that the family had refused.
Plaintiffs testified that Dr. Abernethy then asked the family if they wanted an autopsy performed on Mr. Massey, Sr.'s body. Dr. Abernethy informed them that it would be helpful in determining the cause of death. Ms. Thornton testified that Willie Massey, Jr. asked if an autopsy would require the removal of any organs from his father's body. Ms. Thornton testified that both Willie Massey, Jr. and Felicia Massey reiterated that they did not want to bury their father with any parts of his body missing. Ms. Thornton further testified that Dr. Abernethy assured the Masseys that the autopsy did not require the removal of body parts. Willie Massey, Jr. then signed a blank autopsy form as requested by Dr. Abernethy. Mr. Massey, Jr. also printed his address on the form. The printed portion of the autopsy form stated: "In hope that the above-authorized examination may benefit others, . . . I authorize the examining physician to remove such specimens, tissues and/or organs, and to retain, preserve and/or contribute the same for such diagnostic, therapeutic, or other scientific purposes as may be deemed proper."
Immediately following this sentence was a section to note any limitations that might have been placed by the family on the autopsy. Dr. Abernethy did not record the Masseys' objections in the blank place notwithstanding the Masseys' oral refusal to consent to the donation of any of their father's organs. Dr. Abernethy testified that the autopsy was discussed first before their organ donation Discussion.
Dr. Eri Oshima, M.D., a pathologist employed by Duke, performed the autopsy. Following Duke Medical Center's standard procedure, Dr. Oshima removed Mr. Massey, Sr.'s eyes. In Dr. Oshima's deposition, she noted that there was no medical reason to remove the eyes in order to determine the cause of Mr. Massey, Sr.'s death. Dr. Oshima also noted that she relies on the treating physician to notify her of any limitations on the scope of the autopsy after the physician has conferred with the family.
Following the autopsy, the body was taken to Hanes Funeral Service in Durham where it was examined by the funeral director. The director determined that the eyes had been removed and informed the family.
The plaintiffs instituted this action seeking compensatory and punitive damages for emotional distress and mental suffering. On 7 April 1997, defendants filed a motion for summary judgment. The trial court granted defendants' summary judgment motion and plaintiffs appeal.
The sole issue on appeal is whether the trial court erred in granting defendants' summary judgment motion. Summary judgment is to be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c). While the moving party has the burden of proving there is no genuine issue of material fact:
[t]he movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which could bar the claim. (Citations omitted.) By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.
Plaintiffs' complaint seeks relief for infliction of emotional distress due to mutilation of a dead body because the autopsy performed on their father went beyond the scope authorized by ...