Delk v. Columbia/HCA Healthcare Corp.

Present: All the Justices

LILLIAN PARKER DELK
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 990175 January 14, 2000

COLUMBIA/HCA HEALTHCARE CORP., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge

In this appeal of a judgment sustaining a demurrer in a

medical negligence action, we consider, among other things,

whether the plaintiff pled causes of action in her third

amended motion for judgment for the defendants' negligent

failure to protect her from the intentional acts of a third

person, the defendants' negligent failure to control the acts

of a third person, negligent infliction of emotional distress,

and intentional infliction of emotional distress.

I.

The plaintiff, Lillian P. Delk, filed her third amended

motion for judgment against Columbia/HCA Healthcare

Corporation and Virginia Psychiatric Company, Inc., d/b/a

Columbia Peninsula Center for Behavioral Health. She alleged

that the defendants breached certain duties owed to her when

she was a patient at Columbia Peninsula Center for Behavioral

Health, a psychiatric hospital. The defendants filed

demurrers to the amended motion and asserted that the

plaintiff failed to allege viable causes of action against
them. The circuit court sustained the demurrers and entered a

judgment in favor of the defendants. Delk appeals.

II.

A.

Our inquiry is governed by settled principles that

control a circuit court's consideration of a demurrer. A

demurrer "admits the truth of all material facts that are

properly pleaded, facts which are impliedly alleged, and facts

which may be fairly and justly inferred from alleged facts."

Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394,

397, 410 S.E.2d 652, 653 (1991); accord Plummer v. Center

Psychiatrists, Ltd., 252 Va. 233, 234, 476 S.E.2d 172, 173

(1996). A demurrer, however, does not admit the correctness

of the pleader's conclusions of law. Ward's Equip., Inc. v.

New Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d

516, 518 (1997).

When a circuit court sustains a demurrer to an amended

pleading which is complete in itself and fails to incorporate

by reference allegations in earlier pleadings, we will

consider only the allegations contained in the amended

pleading that was the subject of the demurrer sustained by the

judgment appealed from. Bell Atlantic-Virginia, Inc. v.

Arlington County, 254 Va. 60, 63 n.2, 486 S.E.2d 297, 299 n.2

(1997); Norfolk & W.Ry. Co. v. Sutherland, 105 Va. 545, 549-

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50, 54 S.E. 465, 466 (1906); see also Breeding v. Hensley, 258

Va. 207, 212, 519 S.E.2d 369, 371 (1999); Trotter v. E.I.

Dupont de Nemours & Co., 124 Va. 680, 682-83, 98 S.E. 621, 622

(1919). Thus, we will recite only those facts contained in

Delk's third amended motion for judgment, and we will consider

only her assignments of error that relate to that pleading.

Delk assigned error to several rulings by the circuit

court that are contained in orders sustaining the defendants'

demurrers to her earlier motions for judgment: "the [t]rial

[c]ourt erred in ruling that all of the plaintiff's claims

were medical malpractice"; "the [t]rial [c]ourt erred in

holding that plaintiff had not sufficiently alleged actual

fraud"; and "the [t]rial [c]ourt erred in holding that

plaintiff had not sufficiently alleged punitive damages."

Delk failed to incorporate by reference in her third amended

motion for judgment allegations in her prior motions for

judgment and, therefore, we cannot consider these assignments

of error because they were not the subject of the circuit

court's judgment sustaining the demurrers to her third amended

motion for judgment.

B.

Delk, a married woman, was admitted as a patient to

Columbia Peninsula Center for Behavioral Health. The Virginia

Psychiatric Company, Inc., which operated the hospital under

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the assumed name of Columbia Peninsula Center for Behavioral

Health, was "an affiliated partnership or wholly-owned

subsidiary of Columbia/HCA Healthcare Corporation."

Delk was admitted to the hospital because of exacerbation

of her bipolar condition. * "[A]t the time of her

hospitalization, [Delk] was identified as being a potential

danger to herself, others, and property. [She] was further

deemed unable to meet the capacity of the ordinary demands of

her familial, occupational, and social environment.

Hospitalization was necessary for continued skill observation,

structured intervention, as well as medical and psychological

support."

Delk had a "history of mood disorders and

hospitalizations." She also had "a long-standing history of

psychiatric problems since the age of seventeen (17),

associated with sexual molestation as a young child and a gang

rape while a teenager." This information was "disclosed to

relevant staff." During "her hospitalization . . . [Delk] was

deemed by Columbia Peninsula Center for Behavioral Health to

be a high risk to herself and others and in need of constant

24-hour supervision and surveillance."

*
Bipolar disorder is a chronic disease which causes
patients to experience recurrent episodes of elation and
depression. Robert Jean Campbell, M.D., Psychiatric
Dictionary 97 (7th ed. 1996).

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 According to Delk's allegations, "[o]n or about February

26 or February 27, 1997, [a] male who is believed to have been

a patient at the Defendants' psychiatric facility at the time

of the sexual assault, and who was also believed to be HIV

positive, entered [Delk's] room on the acute care unit of

Columbia Peninsula Center for Behavioral Health and sexually

assaulted her. Although members of the nursing staff . . .

observed and documented the presence of this unauthorized

adult male in [Delk's] room, no further actions occurred from

the staff or management of Columbia Peninsula Center for

Behavioral Health . . . . No notation was made in [Delk's]

medical records regarding the sexual assault."

The hospital's "staff and administrators were under a

duty of care to supervise and control the assailant, who was

believed to be a patient in the acute care wing of the

Defendants' psychiatric facility at the time of the sexual

assault." Delk pled that the defendants "were well aware of

the assailant's troubled history, predisposition, disturbing

interaction with other patients and medical condition, yet

took no steps to protect [her] or the other potential victims.

Defendants breached this duty of care by allowing the

assailant to enter [Delk's] room on the acute care unit and

thus, allowing sexual misconduct to take place."

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 Delk alleged that the sexual assault upon her was

foreseeable and avoidable. She pled that the defendants

committed acts of ordinary negligence by failing to adequately

protect her. She also alleged that the defendants committed

acts of ordinary negligence because they failed to control her

assailant.

Delk pled that "[d]efendant, Columbia Peninsula Center

for Behavioral Health, by and through its agents, employees,

and assigns, failed to undertake any actions although the

Defendant had knowledge that the alleged assailant adult male

patient was HIV positive. Further, Defendant, Columbia

Peninsula Center for Behavioral Health, did not relate

information to [Delk] . . . or any criminal authorities

concerning the sexual assault or her exposure to the HIV

virus. Defendant's conduct showed an utter disregard of

prudence and such conduct amounted to the complete neglect for

the safety of [Delk]. As a direct and proximate result of

Defendant's gross negligence . . . [Delk], and possibly other

members of her immediate family, have been exposed to the HIV

virus."

The plaintiff further alleged that as "a direct and

proximate result of Columbia Peninsula Center for Behavioral

Health's outrageous conduct, negligence and attempt to cover

up its negligence (through misleading and faulty notations in

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the medical records) in failing to adequately supervise the

Plaintiff, [Delk] suffered physical and bodily harm." She

claimed that as a result of defendant's "reckless, outrageous

and negligent infliction of emotional distress," she "suffered

severe mental, emotional and physical trauma." She alleged

that, as a result of "[d]efendant's extreme, reckless,

outrageous and intentional infliction of emotional distress,"

she "has suffered severe mental, emotional and physical

trauma."

III.

A.

Delk contends that she pled a cause of action for

negligence against the defendants arising out of their failure

to protect her and, therefore, the circuit court erred in

sustaining the defendants' demurrer to this claim.

Continuing, she asserts that the defendants had a duty of care

to supervise her on a 24-hour basis to insure her safety and

that a special relationship existed between her and the

defendants which created this duty of protection. Responding,

defendants assert that they had no duty to prevent any

criminal attack upon Delk because they claim that they did not

have a special relationship with her. Additionally, the

defendants contend that the criminal attack upon Delk was not

reasonably foreseeable.

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 A plaintiff who seeks to establish actionable negligence

must plead the existence of a legal duty, violation of that

duty, and proximate causation which results in injury.

Marshall v. Winston, 239 Va. 315, 318, 389 S.E.2d 902, 904

(1990); Fox v. Custis, 236 Va. 69, 73-74, 372 S.E.2d 373, 375

(1988). Generally, a person does not have a duty to protect

another from the conduct of third persons. Burdette v. Marks,

244 Va. 309, 311, 421 S.E.2d 419, 420 (1992); Marshall, 239

Va. at 318, 389 S.E.2d at 904. This general rule, however,

does not apply when a special relationship exists (1) between

the defendant and the plaintiff which gives rise to a right to

protection to the plaintiff, or (2) between the defendant and

the third person which imposes a duty upon the defendant to

control the third person's conduct. A.H. v. Rockingham

Publishing Co., 255 Va. 216, 220, 495 S.E.2d 482, 485 (1998);

Burdette, 244 Va. at 312, 421 S.E.2d at 420; Dudley v.

Offender Aid & Restoration, 241 Va. 270, 276, 401 S.E.2d 878,

881 (1991); Fox, 236 Va. at 74, 372 S.E.2d at 375; Klingbeil

Management Group Co. v. Vito, 233 Va. 445, 447-48, 357 S.E.2d

200, 201 (1987).

We hold that the allegations contained in Delk's third

amended motion for judgment are sufficient to permit her to

fall within the limited exception to the general rule and,

thus, she pled a cause of action for negligence against the

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defendants. Delk's amended motion contains sufficient

allegations which, if proven, would establish the existence of

a special relationship between her and Columbia Peninsula

Center for Behavioral Health and, thus, would give rise to a

duty on the part of the defendants to protect her from third

persons. For example, Delk alleged that the defendants knew

that: she was a danger to herself and others; she had a long

history of psychiatric problems associated with sexual

assaults upon her; Columbia Peninsula Center for Behavioral

Health deemed Delk to be a high risk to herself and others;

and she was in need of constant 24-hour supervision and

surveillance.

The defendants, relying principally upon A.H. v.

Rockingham Publishing Co., supra, assert that the sexual

assault upon Delk was legally unforeseeable. We disagree.

In Rockingham Publishing, we considered whether a

newspaper publishing company had a duty to warn a 13 or 14-

year old newspaper carrier of the danger of a criminal assault

by a third person while the carrier was delivering newspapers

in the early morning hours. The carrier, identified as A.H.,

delivered newspapers in the City of Harrisonburg on an

assigned route. A.H. was sexually assaulted by a man while

A.H. was delivering newspapers between 6:00 and 6:30 a.m. on

November 7, 1989. There had been three prior pre-dawn

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assaults of a sexual nature upon other Rockingham Publishing

carriers while they were delivering their newspapers, but none

of the prior assaults had occurred on or near A.H.'s route.

Rockingham Publishing knew about the prior assaults before the

assault on A.H. The first assault occurred about five years

before the assault on A.H., the second about four and a half

years before, and the third about four months earlier.

Rockingham Publishing, 255 Va. at 219, 495 S.E.2d at 484.

Even though we held that a special relationship existed

between A.H. and Rockingham Publishing, we stated:

"A court must still determine whether the danger of
a plaintiff's injury from such conduct was known to
the defendant or was reasonably foreseeable.
'[W]here the duty does exist [arising from a
requisite relationship], the obligation is not an
absolute one to insure the plaintiff's safety[;]
. . . . [t]here is . . . no liability . . . where
the defendant neither knows nor has reason to
foresee the danger or otherwise to know that
precautions are called for.' W. Page Keeton, et
al., Prosser & Keeton on the Law of Torts § 56, at
385 (5th ed. 1984)."

Id. at 220-21, 495 S.E.2d at 485. We concluded that the

assault upon A.H. was not foreseeable. We observed that

"the three prior sexual assaults on Rockingham
carriers in various locations in the City of
Harrisonburg in the five years preceding the assault
on the plaintiff were insufficient to raise a jury
issue of whether a sexual attack on the plaintiff
was reasonably foreseeable. This is not a case in
which it was shown that the prior assaults were at
or near the location of the plaintiff's assault, or
that they occurred frequently or sufficiently close

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 in time to make it reasonably foreseeable that the
plaintiff would be similarly assaulted."

Id.. at 222, 495 S.E.2d at 486.

Here, unlike the plaintiff in A.H. v. Rockingham

Publishing, Delk pled sufficient facts which, if established

at trial, would create a jury issue on the question whether

the assault upon her was reasonably foreseeable. Delk

essentially alleged that she was especially vulnerable to a

sexual assault because of her psychiatric problems and her

need for "constant 24-hour supervision and surveillance." The

defendants were aware of her particular vulnerabilities and

her psychiatric history. She also alleged that the defendants

were well aware of the assailant's troubled history,

predisposition, disturbing interaction with other patients,

and medical condition, and that "members of the nursing staff

of Columbia Peninsula Center for Behavioral Health observed

and documented the presence of this unauthorized adult male in

[Delk's] room," but took no action. She further alleged that

because of her "sexual abuse history and bipolar condition,

[she was placed] at an additional high risk to such

incidents."

B.

Delk contends that she pled a separate cause of action

against the defendants for their "negligent failure to control

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the assailant." Continuing, she asserts that the defendants

had a duty to control the assailant and, as a result of their

breach of this duty, she was assaulted by him. Responding,

the defendants assert that the circuit court properly

sustained their demurrers to Delk's claim that they failed to

control the assailant because Delk failed to plead in her

amended motion that the defendants had "taken charge" of the

assailant. We disagree with the defendants.

Section 315(a) of the Restatement (Second) of Torts

(1965), states in part:

"There is no duty so to control the conduct of a
third person as to prevent him from causing physical
harm to another unless
(a) a special relation exists between the actor
and the third person which imposes a duty upon the
actor to control the third person's conduct . . . ."

Section 319 of the Restatement (Second) of Torts provides as

follows:

"One who takes charge of a third person whom he
knows or should know to be likely to cause bodily
harm to others if not controlled is under a duty to
exercise reasonable care to control the third person
to prevent him from doing such harm."

We have held that the aforementioned provisions of the

Restatement give rise to a duty in tort only if a special

relationship exists between a defendant who is charged with

negligence and the actor, and that this special relationship

is established when the defendant has taken charge or

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exercised control over the actor. Fox, 236 Va. at 75, 372

S.E.2d at 376. We recently stated that "[i]t is a settled

rule of decision in this Court . . . that, in order to

establish a 'special relation' under Restatement § 315(a)

. . . a plaintiff must allege facts which, if proven, would

show that the defendant had 'take[n] charge' of a third person

within the meaning of § 319." Nasser v. Parker, 249 Va. 172,

179-180, 455 S.E.2d 502, 505 (1995). In Nasser, a plaintiff

filed an amended motion for judgment against a psychiatrist

and a psychiatric hospital and sought to recover damages for

intentional torts committed by a patient against a third

party. We held that the circuit court properly sustained the

defendants' demurrers to the plaintiff's amended motion

because the plaintiff failed to allege facts, which if proven,

would have shown that the defendants had taken charge of the

patient. Id. at 181, 455 S.E.2d at 506.

Here, we hold that the circuit court erred in sustaining

the demurrers to Delk's claim that the defendants were

negligent because they failed to control her assailant. As we

have already stated, Delk alleged that her assailant was

"believed to be a patient in the acute care wing of the . . .

psychiatric facility" and that the hospital staff was aware of

"assailant's troubled history, predisposition, disturbing

interaction with other patients and medical condition." There

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is no allegation here, as there was in Nasser, that the

assailant was in the hospital on a voluntary basis.

Because we are required at the demurrer stage of the

proceedings to view the allegations and the inferences

therefrom in the light most favorable to Delk, we must infer

from her allegations that the defendants exercised control

over her assailant and, thus, had taken charge of him because

he was a resident in the acute care wing of a psychiatric

hospital. Of course, at a subsequent trial, Delk will be

required to prove, with evidence, that the defendants had

taken charge of her assailant and that he was not in the

hospital on a voluntary basis.

IV.

Defendant Columbia/HCA Healthcare argues that it has no

legal duty to Delk because "Columbia/HCA is only alleged to be

a corporate affiliate of [Columbia Peninsula Center for

Behavioral Health] with no direct dealings with" Delk. We

will not consider this contention.

Code § 8.01-273(A) states in part that "[i]n any . . .

action at law, the contention that a pleading does not state a

cause of action or that such pleading fails to state facts

upon which the relief demanded can be granted may be made by

demurrer. . . . No grounds other than those stated

specifically in the demurrer shall be considered by the

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court." Defendant Columbia/HCA Healthcare failed to assert

this contention in its demurrer and, thus, may not make this

assertion on appeal.

V.

A.

Delk argues that she pled a cause of action for

intentional infliction of emotional distress and, therefore,

the circuit court erred by sustaining the demurrer to that

claim. Responding, the defendants argue that Delk failed to

plead facts which would permit a jury to infer that they acted

with an intent to cause her emotional distress. We disagree

with the defendants.

In Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160, 162

(1991), we stated that a plaintiff who seeks to recover

damages for intentional infliction of emotional distress must

plead, and subsequently prove by clear and convincing

evidence, that: the wrongdoer's conduct is intentional or

reckless; the conduct is outrageous and intolerable; the

alleged conduct and emotional distress are causally connected;

and the distress is severe. A plaintiff must allege each of

these elements with the requisite degree of specificity.

Jordan v. Shands, 255 Va. 492, 499, 500 S.E.2d 215, 219

(1998); Ely v. Whitlock, 238 Va. 670, 677, 385 S.E.2d 893, 897

(1989).

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 We hold that Delk pled sufficient facts which if proven

at trial, would permit a finder of fact to find that the

defendants acted recklessly. It is common knowledge that HIV,

which can be transmitted sexually or through an exchange of

bodily fluids, can develop into AIDS, a fatal disease.

Certainly, a finder of fact could conclude that the defendants

acted recklessly if Delk presents evidence at a trial that the

defendants knew she may have been exposed to HIV, but failed

to inform her so that she could have taken preventive measures

to avoid transmission of the potentially fatal disease to her

husband.

We reject the defendants' contention that Delk failed to

assert a legally sufficient claim for damages. Delk

specifically alleged that "she has incurred and will incur in

the future hospital, doctors' and related bills in an effort

to be cured of [her] injuries." We must infer from this

allegation that Delk incurred medical treatment in the past

and will incur medical treatment in the future as a result of

her exposure to HIV. See Russo, 241 Va. at 28, 400 S.E.2d at

163.

B.

Delk argues that the circuit court erred in sustaining

the defendants' demurrer to her claim for negligent infliction

of emotional distress. She contends that she pled facts

16
which, if proven, would be sufficient to establish the

elements of this cause of action. Responding, the defendants

contend that Delk failed to state a claim of negligent

infliction of emotional distress because she failed to allege

a physical injury in her amended motion. We agree with the

defendants.

In Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973), we

discussed the elements of a cause of action for negligent

infliction of emotional distress. We stated:

"We adhere to the view that where conduct is merely
negligent, not willful, wanton, or vindictive, and
physical impact is lacking, there can be no recovery
for emotional disturbance alone. We hold, however,
that where the claim is for emotional disturbance
and physical injury resulting therefrom, there may
be recovery for negligent conduct, notwithstanding
the lack of physical impact, provided the injured
party properly pleads and proves by clear and
convincing evidence that his physical injury was the
natural result of fright or shock proximately caused
by the defendant's negligence. In other words,
there may be recovery in such a case if, but only
if, there is shown a clear and unbroken chain of
causal connection between the negligent act, the
emotional disturbance, and the physical injury."

Id. at 34, 197 S.E.2d at 219; accord Myseros v. Sissler, 239

Va. 8, 9, 387 S.E.2d 463, 464 (1990).

Delk's conclusional allegation that she incurred "severe

mental, emotional and physical trauma" is not sufficient to

support a cause of action for negligent infliction of

emotional distress. Delk failed to plead with specificity

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that she incurred a physical injury which was the natural

result of fright or shock proximately caused by the

defendants' alleged negligence. Delk fails to provide any

description of her physical injury in her amended motion.

Therefore, we hold that the circuit court did not err in

dismissing this claim.

VI.

We will affirm that portion of the circuit court's

judgment which sustained the defendants' demurrers to Delk's

cause of action for negligent infliction of emotional

distress. We will reverse the remaining portions of the

judgment, and we will remand this case to the circuit court so

that Delk may proceed on her claims for the following causes

of action: the defendants breached a duty of care owed to her

in that they failed to protect her from the assailant; the

defendants breached a duty of care owed to her because they

failed to control the assailant; and the defendants committed

acts which constituted intentional infliction of emotional

distress. We express no opinion on Delk's assignments of

errors which were not the subject of the demurrers to her

third amended motion for judgment.

Affirmed in part,
reversed in part,
and remanded.

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