dissenting. The majority concludes that while Dr. Ross’s alcohol and drug abuse and lack of professionalism were disgraceful and without excuse, these circumstances do not rise to the level of outrageous conduct. I disagree.
The jury determined on the facts presented that Dr. Ross was not available to Mrs. Patterson during her time of need, knowing full well that Mrs. Patterson had previously had a miscarriage and was experiencing difficulties in her current-pregnancy. The fact that Dr. Ross was a functional alcoholic and addicted to cough syrup is not the issue here. What is at issue is whether a physician who caused his patient considerable pain and mental anguish by abandoning her during an emotionally wrenching time committed the tort of outrage, taking into consideration the fact that she had previously experienced a complicated pregnancy and was “scared to death” about what was happening to her in her current pregnancy.
On appeal we look to whether substantial evidence exists to support the jury verdict and judgment. I believe that there was sufficient evidence of outrageous conduct on the part of Dr. Ross prior to the baby’s delivery on September 1,1984, which resulted in the mental anguish experienced by Mrs. Patterson. The following facts, for example, support the jury’s award:
a. Dr. Ross did not see or examine Mrs. Patterson during the last month of her pregnancy. His nurse performed the examination. (Dr. Ross denies the extent of his absence, but even according to his testimony and records, he had no contact with her the last ten days of her pregnancy.)
b. Mrs. Patterson was experiencing some problems with the pregnancy. Early in May and June she had complained of low abdominal pain. On August 13, 1984 she reported some spotting. The progress notes show on August 15 that she was not sleeping, that she was hurting a lot, and that she was “leaking.” On August 21 she complained of contractions and nausea.
c. Mrs. Patterson told the jury that in August the baby had quit moving as much, and she was hurting and sick and was losing weight. She was scared to death, she testified. She had an intuition something was wrong and was really upset. She went to the Pine Bluff hospital from her home in McGehee on September 1 after being up all night with more bleeding and leaking. She had telephoned Dr. Ross several times from her home, and he had not returned the calls.
d. Mrs. Patterson continued to have faith in Dr. Ross up until delivery because he had successfully delivered her first child. (He had not been the doctor for the previous pregnancy that resulted in a miscarriage.) As she testified, “He just wasn’t there for me.”
e. Dr. Ross admitted that he usually tried to see pregnant women who had previously lost a baby, as had Mrs. Patterson, more often than others because of their emotional state.
The majority emphasizes that Mrs. Patterson signed the standard form agreeing to delivery by another physician in the event Dr. Ross was unavailable. But uriavailability on the day of delivery is a far cry from abandonment over the last month of a difficult pregnancy, when that woman had previously experienced a miscarriage.
In Arkansas we recognize, the tort of outrage as intentional conduct that results in injury which is so abhorrent that a civilized society cannot condone it. Part of our AMI Instruction 404 reads:
A person acts willfully and wantonly when he knows or should know in the light of surrounding circumstances that his conduct will naturally and probably result in emotional distress and continues such conduct in reckless disregard of the consequences.
The law does not require that Dr. Ross intend to harm Mrs. Patterson personally by his conduct. It only requires that he act “willfully and wantonly” knowing that his conduct will probably cause someone emotional distress. Here, Dr. Ross acted in what he had to know was an impaired state for an extended period of time and then abandoned his patient altogether. Abandoning a woman in her last days of pregnancy without any warning or explanation and with knowledge that some difficulties are associated with the pregnancy and that the woman previously had experienced a miscarriage, easily qualifies as outrageous conduct. Under the evidence presented, the jury could readily have found that Dr. Ross committed the tort. He existed in an impaired state and had for some time during Mrs. Patterson’s pregnancy. He should have made arrangements to care for her — not only on the date of delivery — but for the days or weeks preceding delivery. This he failed to do.
In 1986 the Supreme Court of Arizona found that the trial court had erred in granting summary judgment in favor of an OBG YN physician on a tort of outrage claim involving abandonment by that physician. See Lucchesi v. Stimmell, 716 P.2d 1013 (Ariz. 1986). There, the allegation against the defendant physician was that he had failed to attend the delivery of the child and had failed to inform the parents of the child of the full circumstances of the birth, all of which caused the parents emotional distress. The physician involved was a high-risk specialist who had said that he would assume responsibility for the mother’s care. He made no effort to meet the mother at the hospital, it was a breech delivery, and doctors who had less experience with high-risk deliveries decapitated the child in an effort to extricate the child from the birth canal. The issue in Lucchesi was whether the defendant physician had failed to follow an appropriate practice in deciding when to leave for the hospital and whether that failure constituted outrageous conduct. The court in Lucchesi determined that the intent or state of mind of the doctor was a material fact question for the jury to decide and, accordingly, summary judgment was improper.
In the case before us the majority has decided how this case should be decided. With respect to the factual questions of Dr. Ross’s state of mind or intent, his attitude toward Mrs. Patterson’s particular pregnancy, and his knowledge of his own impaired condition, all of which were presented to the jury for resolution with supporting evidence, it is now improper for this court to usurp that role and reverse a jury verdict. Certainly, Lucchesi v. Stimmell is precedent for the appellee’s position that this case embraces factual matters for a jury to determine. To suggest that insufficient facts illustrative of abandonment and emotional distress were presented to the jury is simply not correct. I would affirm.
Glaze and Corbin, JJ., join.