Opinion of the Court by
The Appellants in this action, Tina Martin, Administratrix of the Estate of Billie Carol Shreve, Deceased, and Donald Ray Shreve, Individually, were granted discretionary review of the Court of Appeals’ reversal of the trial court’s judgment. Two issues are raised: Whether a surviving spouse is entitled to loss of consortium damages beyond the death of the injured spouse for the unlawful acts of a third party; and whether the Appellee, Ohio County Hospital Corporation, was entitled to a directed verdict on a claim under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd. This Court reverses the decision of the Court of Appeals.
I. Background
The decedent in this action, Billie Carol Shreve, was injured in an automobile accident a short distance from the hospital run by Appellee, Ohio County Hospital Corporation. She was properly taken to the hospital’s emergency room, and was first seen by a registered nurse who performed triage. The patient had indications of blunt abdominal trauma and stated that she was uncomfortable, and although she otherwise appeared stable at first, rapidly deteriorated. Her blood pressure began to drop severely and her pulse rate elevated approximately an hour and twenty-five minutes after arriving at the hospital, and she lapsed into unconsciousness some nine minutes later. The nurse and doctor attending her testified that by that time, they believed she had gone into shock, was probably hemorrhaging, and was in need of a surgeon. However, there was no surgeon available to the hospital, or one was not called. The attending physician could not pinpoint the source of bleeding, but ordered blood transfusions. This treatment gave rise to a negligence claim that is not before the Court. Despite no surgeon being available, the patient was not transferred to an appropriate facility at that time. Instead, the attending physician ordered a CT scan, but had to forward the films to another hospital to have a radiologist read them. It was over four hours later before the patient was transferred to another hospital. By the time she arrived, the patient had bled to death.
The medical negligence action against the physician was settled before trial, and the driver who caused the accident was never made a party. The trial court gave an instruction on loss of consortium damages that limited those damages to the
The trial court also gave an apportionment instruction on the fault of the driver, the doctor, and the hospital. The jury awarded no fault against the driver, 50% of fault against the doctor, and 50% against Appellee. On appeal, the Court of Appeals held that Appellee was entitled to a directed verdict both on the claim made by Appellant, Donald Ray Shreve, the spouse of the decedent, for loss of consortium, and on the claim made under the Emergency Medical Treatment and Active Labor Act, (EMTALA), 42 U.S.C. § 1395dd. This Court granted discretionary review.
A. Loss of Consortium after Death
The issue of whether a spouse may claim loss of consortium after the death of her spouse turns on what the silence of the legislature on that issue in KRS 411.145 means.
At common law, loss of consortium was historically a one-way street. A husband could claim loss of consortium with his wife up until her death, but a wife could not claim the same loss with her husband. Then, in 1970, this Court’s predecessor in
Kotsiris v. Ling,
(1) As used in this section “consortium” means the right to the services, assistance, aid, society, companionship and conjugal relationship between husband and wife, or wife and husband.
(2) Either a wife or husband may recover damages against a third person for loss of consortium, resulting from a negligent or wrongful act of such third person.
The statute defines “consortium” in such a way that it does not necessarily include financial support, but can be read to cover only the emotional and physical elements of a relationship between husband and wife such as love, companionship, and sexual relations. As such, it does not cause a double recovery through a wrongful death action claiming economic loss. Also, contrary to the common law up until Kotsiris, either a husband or wife may recover damages for this loss from a culpable third party. On its face, the statute gives equality for loss of consortium to both spouses, and codifies loss of consortium as a cause of action.
However, loss of consortium developed as a common law concept, and under common law it terminated with the death of the spouse. The reasoning was that death terminated any possibility of a spousal relationship, and thus all loss would be covered by a wrongful death action. See generally Thomas Cooley, A Treatise on the Law of Torts 470 (3d ed.1906). Grounded initially on the loss of sexual congress, the common law doctrine evolved to include the “softer” aspects of a relationship, and finally, in Kotsiris, an equal claim for either spouse.
But with the enactment of the statute, the General Assembly made loss of consortium a statutory cause of action, which belongs specifically to a spouse, not to the
Thus the Court is left to construe the statute until the legislature clarifies its meaning by amending the statute or enacts a different statute.
Appellant argues that spouses have a loss of consortium claim extending beyond the death of their spouse because this Court extended such a right to children in
Giuliani v. Guiler,
First, there is a statute which gives spouses a claim for loss of consortium. To date, there is still no statute which gives children a right to parental loss of consortium damages. Contra, KRS 411.135 gives parents damages for loss of consortium with the child. That statute, which this Court in
Guiler
termed as “reciprocal” to a child’s loss of parental consortium claim, does not appear to create a separate cause of action, but instead begins, “In a wrongful death action in which the decedent was a minor child,” and goes on to say that the loss of affection and companionship is an element of damages to be recovered “in addition to all other elements of the damages usually recoverable in a wrongful death action.” This appears to be an additional element of damages within the wrongful death statute, not a separate cause of action for loss of consortium. Nevertheless, this Court has held that the parents of a deceased child do have a claim under this statute for the loss of affection and companionship of their child regardless of whether the personal representative of the child’s estate ever asserts a claim for wrongful death.
Dep’t of Educ. v. Blevins,
KRS 411.145, which was enacted in 1970, the same year the Court issued its opinion in
Kotsiris,
says that a wife or a husband “may recover damages against a third person for loss of consortium” resulting from a negligent or intentional act, clearly establishing a separate cause of action for spousal loss of consortium. Such a recovery is not premised on the spouse’s death, so it is not specifically a part of a wrongful death claim under Ken
But just as the Court did not address whether loss of parental consortium continues after the age of majority in Guiler, the legislature has not addressed specifically in the statute whether loss of consortium damages continue after the death of the spouse in KRS 411.145. This question was not at issue in Guiler, but is the controlling question here. Thus this Court must answer that question, and does so by saying that loss of consortium damages under KRS 411.145 do not cease at death.
The Court reaches this conclusion by first looking at the language of the statute: “a wife or a husband may recover damages.” Those damages, as enumerated in subsection (1), encompass “services, assistance, aid, society, companionship and conjugal relationship....” KRS 411.145(1). When this loss results from a “negligent or wrongful act” of a third person, the legislative intent is clear that this person must compensate the spouse for the loss. The general focus of this statute is compensatory in nature.
The courts have been exhorted that “common sense must not be a stranger in the house of the law.”
Cantrell v. Kentucky Unemployment Ins. Comm’n,
Further, since the statute is intended to be compensatory, full compensation cannot be had if the damages claimed are required to terminate at death. Indeed, in many cases death is so sudden or follows so quickly after the injury that to cut loss of consortium damages off at death is to essentially deny the cause of action to the spouse altogether. In creating the cause of action, the legislature did not indicate in the statute that it applied only when the victims survived. To read the statute that way would be to create a class of plaintiffs whose cause of action depended on the vagaries of fate, rather than an orderly operation of law. Can it reasonably be said that one whose spouse survives suffers more loss of consortium than one whose spouse dies?
Moreover, allowing a loss of consortium claim only if the victim survives would appear to give perverse incentives to potential tortfeasors. Such a rule could create incentives to kill victims instead of leaving them disabled, as only by instantly killing the victim can the tortfeasor be guaranteed to owe no loss of consortium
Twenty-six other states have some form of loss of spousal consortium set forth in a statute, 2 as Kentucky has done, although Kentucky appears to be unique in that our statute does not address whether such damages terminate or continue at death. All of these other states specifically recognize that the types of damages set forth in KRS 411.145 continue after death, usually by including them as elements of damage in their wrongful death statutes. Some states, such as Iowa, include the damages in the wrongful death action, and require that the claim be made by the personal representative of the estate, but on behalf of the spouse who lost consortium. Regardless of the mechanism used, all these states allow post-death claims. Our statute, which makes loss of consortium a personal right which can be claimed directly by the spouse, is in line with the recognition by these other states that the claim is separate from the claim for the injuries to the deceased spouse. It is reasonable to construe our statute as also intending to allow post-death loss of consortium, since there is no express limit on those damages.
For the states that do not expressly include loss of consortium in their wrongful death statutes, fifteen recognize through their case law that loss of consortium damages continue past death,
3
while only seven stop them at the death of the spouse,
4
which is what Kentucky’s common law did.
See Rogers v. Fancy Farm Telephone Co.,
The Appellee has argued that the statutory definition of “marriage” in KRS 402.005 precludes recovery for spousal consortium after death because marriage is defined as a man and a woman being united “for life.” Consequently, they argue, marriage ends at death and thus spousal consortium must end at death. If the Court were looking at the question of the legal effect of marriage laws after death, this might have more merit. However, a loss of consortium claim is grounded on compensation for a third party’s wrong-doing which intervenes in the marital relationship so as to deny spousal consortium. It provides liability for wrongfully depriving or cutting short the marital relationship. This claim is not about whether a marriage has ended, but rather about whether the marital relationship could have continued but for the wrongdoing of the third party. The loss that comes from wrongly depriving a spouse of her relationship with her husband, or vice versa, is definable and measurable. It has little to do with the legal construct of marriage at death, but everything to do with the relationship that was wrongly taken away from the surviving spouse.
At the crux of this claim is compensation for loss of the most compelling of human relationships, other than possibly that of parent and child. Our legislature did not intend, nor does this Court, to devalue that relationship by putting an arbitrary limit on the duration of what can be profound loss. Our statute permits that loss to be evaluated by a jury, and therefore it is the right of bereaved spouses to have such an evaluation. Thus, this Court reads KRS 411.145 as allowing post-death loss of consortium claims. To the extent that
Clark v. Hauck Manufacturing Co.,
The Court of Appeals is therefore reversed on this issue. Because of some unusual procedural elements of this appeal, however, there is some question as to the effect of that reversal. The Court of Appeals held that the Appellee, who was the defendant at trial, was entitled to a directed verdict because Mrs. Shreve had not lived long enough to allow for a loss of consortium claim, since such a claim terminated at her death. This Court is reversing because it reads KRS 411.145 as allowing such claims and damages to extend beyond death, meaning that a directed verdict on that ground would not be proper. However, this also means that the loss of consortium instruction given by the trial court was erroneous, as it limited damages to those during Mrs. Shreve’s life. But the Appellants (the plaintiffs at trial) did not appeal the trial court’s erroneous instruction, which had the effect “to deny [them] something for which [they have] asked,”
Brown v. Barkley,
The only option is to reinstate the judgment of the trial court on this issue, since this Court has concluded that the Court of Appeals improperly reversed it. This is so despite the fact that an instructional error underlies the trial court’s judgment and arguably worked against the Appellants, since their damages were more limited than this Court reads the law as allowing. Reinstating that judgment, however, is not unjust, because it appears that even with the flawed instruction, the Appellants received the maximum damages they requested (and to which they were limited, that being the amount listed in the interrogatories). Because the Appellants did not appeal the denial of a post-death loss of consortium instruction, a reinstatement of the judgment as to loss of consortium damages would amount to giving them all they asked for originally. Moreover, it is not improper to reinstate the trial judgment on a ground not cross-appealed by the Appellants to this Court because this Court would in effect be affirming the trial court but for different reasons, which is acceptable even when there has been no cross-appeal.
See Carrico v. City of Owensboro,
B. EMTALA Claim
The Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, enacted by Congress in 1986, is sometimes referred to as an “anti-dumping” statute because its primary purpose is to prevent hospitals from “dumping” patients who lack insurance or cannot pay for their claims, through refusing treatment or referring them to other hospitals.
Thornton v. Sw. Detroit Hosp.,
Thus, it is arguable that EMTALA does not apply here because there is no record that any actions taken by the hospital were based on the patient’s inability to pay; the patient was indeed given many services. Their efficacy may be questioned as a medical malpractice claim, but not the fact that they were not given. However, assuming that EMTALA does apply here, and because this issue is capable of repetition, it contains a screening requirement, § 1395dd(a), and a stabilization or transfer requirement, § 1395dd(b), and allows a private cause of action directly against hospitals for violation of the duties created by the statute, § 1395dd(d)(2).
However, subsection (c) of EMTALA places three alternative requirements on the hospital, only one of which must be met, before it may transfer a patient: that it get a request to transfer in writing from the patient; that a physician sign a certification that the treatment reasonably expected to be received at the other hospital outweighs the risks of transfer; and that if no physician is physically present, qualified medical personnel as defined in the statute may sign the risk certification if a physician has in fact made the determination and later adopts it by signing it. § 1395dd(c).
These facts are not in dispute: the hospital recognized that a medical emergency existed at least when the patient lost consciousness, if not before (based on the triage nurse’s claim that she was suspicious of a serious injury and thought surgery would be necessary once Mrs. Shreve’s blood pressure dropped and pulse elevated); at some point during the four or so hours the patient was at the hospital, the hospital recognized that the surgeon who was on call was not available; during that wait, the hospital undertook treatment by transfusing the patient to counter her blood loss, and continued further attempts to determine the source of the bleeding, including having a CT scan done; when that was unsuccessful, the physician began the process of transferring the patient to another hospital, and completed and signed the Certificate of Transfer as required by the statute.
While questions may abound as to whether the physician and hospital staff performed all these events within the appropriate standard of care, those questions are not covered by this statute. By its terms, this is a strict liability statute: it asserts what a hospital must do, and creates liability for any failure. If a hospital does not follow the requirements of the statute, it is liable. Any personal harm to an individual will result in damages for personal injury under local state law if caused by the violation, and will result in a fine of up to $50,000 if the violation is negligent, or gross and flagrant, or repeated, and the hospital may also lose its licensing. § 1395dd(d). On the other hand, if the hospital has complied with the statute’s requirements, it is not material under the statute how well it did them — that is a different cause of action, likely for negligence. The Appellee was entitled to a directed verdict on the EMTALA issues of screening and stabilization or transfer because all the requirements of the statute were met.
This Court does not believe that improper motive is an element of the individual EMTALA claim. If a hospital complies
To that end, a general negligence instruction is not appropriate in an EMTA-LA claim. The statute puts an absolute duty on hospitals to do what it requires. Thus, appropriate instructions (if there is a liability question, and assuming that the hospital has an emergency department) would be as follows.
If an emergency medical condition has not been determined, such as when a patient is allegedly improperly screened:
It was the duty of defendant hospital to provide an appropriate medical screening examination of the plaintiff (decedent) within the capability of the hospital’s emergency department whether or not a medical emergency exists.
Do you believe, based on the evidence, that the hospital provided such screening?
Yes -- No ——•
For instance, this instruction would apply when a patient was released without further examination, stabilization or transfer on a determination that there was no emergency medical condition, then later has problems or dies.
If the hospital has determined that the individual has an emergency medical condition:
It was the duty of the hospital, because there was an emergency medical condition, to
A) provide such medical examination and treatment necessary to stabilize the medical condition within the staff and facilities available; or
B) to transfer the plaintiff (decedent) to another medical facility by
1) obtaining informed consent from the plaintiff (decedent) in writing; or
2) issuing and signing a Certificate of Transfer certifying that the medical benefits reasonably expected from the transfer outweigh any increased risks to the individual from transfer; or
3) allowing a qualified medical person to issue the Certificate of Transfer after a physician has made the actual certification, and subsequently signs the certificate.
Do you believe, based on the evidence, that the hospital performed its duty in regard to the plaintiff (decedent)?
Yes-No-
This instruction should be given if a determination that there is an emergency medical condition has been made. After such determination, the screening requirements obviously have no application because regardless of their efficacy, the proper determination has been made that requires further examination and treatment within the hospital’s capabilities, or transfer to an appropriate facility.
There will be necessary variations depending on the facts of each case, and whether there is a liability question or a damages claim only. Since the damages allowed to the individual by the statute are those “available for personal injury under
Despite the above analysis, the fact that the trial court did not give a directed verdict on the EMTALA claim is not grounds for reversal of the jury verdict or judgment in this case. The Court of Appeals reached the same conclusion about the necessity of a directed verdict, but held that a new trial on damages would be required under
Stringer v. Wal-Mart Stores, Inc.,
In making the wrongful death claim in this case, the Appellants alleged multiple tortious acts, and the trial court eventually instructed on three theories against the hospital based on those alleged acts: a policy and procedures claim, a general medical negligence claim, and the EMTA-LA claim. Regardless of the route taken to liability, the injury under all three claims was the same — the death of Mrs. Shreve. Likewise, the proof of damages was the same for all three theories, including the claim under EMTALA, which allows state personal injury damages under 42 U.S.C. § 1395dd(d)(2). The jury found liability under all three theories, two of which were not appealed to this Court. Because the injury and damages under those theories of liability were the same as under the EMTALA claim, this case is distinguishable from Stringer. Stringer involved three separate torts, with overlapping but ultimately different injuries. But the Appellants in this case pleaded alternative theories of liability for a single injury — wrongful death. The jury had to find causation in order to find liability, and here the jury found liability under all three theories. This amounted to a finding that any of the three tortious acts was a sufficient cause of the wrongful death, and the damages that flowed from that injury.
As to the loss of consortium, the directed verdict on the EMTALA statute also has no effect because wrongful death could be established by either of the two theories that were not appealed, and the finding of the wrongful death of Mrs. Shreve was an element of proof of the loss of consortium claim. Either of the surviving findings of liability is sufficient to support the loss of consortium damages award.
Therefore, this Court concludes that while the failure to give a directed verdict on the EMTALA claim in this case was error, it was harmless as to the damages award returned by the jury under the policy and procedures claim or the general negligence claim, which were not appealed.
III. Conclusion
Kentucky’s loss of consortium statute, KRS 411.145, is compensatory in nature, and creates an independent cause of action for the spouse of an injured or deceased person. The statute is silent as to the duration of any damages from the loss, and this Court will not provide a term that is missing by limiting recovery only up to the time of death. On this ground, the Court of Appeals is reversed, and the judgment of the trial court is reinstated on the loss of consortium claim.
For the forgoing reasons, the decision of the Court of Appeals is reversed and the judgment of the Ohio Circuit Court is reinstated in its entirety.
Notes
. The instruction stated that the jury could award money damages for the "[l]oss of Plaintiff, Donald Ray Shreve, of the services, assistance, aid, society, companionship, and conjugal relationship of his wife, not to exceed $250,000.00. Any recovery for loss of consortium ended with the death of M[r]s. Shreve.”
. Alaska Stat. § 09.55.580(c) (2003); Ark. Code Ann. § 16-62-102(0(1) (2006); Colo. Rev.Stat. § 13-21-203(l)(a) (2005); Conn. Gen.Stat. § 52-555a to -555b (2005); Fla. Stat. § 768.21(2) (2003); Haw.Rev.Stat. § 663-3(b)(l)-(2) (2009); Ind.Code. § 34-23-l-2(c)(3)(B) (1999); Kan. Stat. Ann. § 60-1904(a)(2)-(3) (2008); La. Civ.Code Ann. Art. 2315(B) (2001); Me.Rev.Stat. Ann. tit. 18-A, § 2-804(b), amended by 2009 Me. Legis. Serv. 180 (West); Md.Code Ann., Cts. & Jud. Proc. § 3-904(d) (West 2006); Mass. Gen. Laws ch. 229, § 2 (2000); Mich. Comp. Laws § 600.2922(6) (2005 & Supp.2007); Mo.Rev. Stat. § 537.090 (2000); Mont.Code. Ann. § 27 — 1—307(3)(b)(iii) (2008); Nev.Rev.Stat. § 41.085(4) (2008); N.C. Gen.Stat. § 28A-18-2(b)(4)(b)-(c) (2006); N.D. Cent.Code § 32-03.2-04(2) (2008); Ohio Rev.Code Ann. § 2125.02(B)(3) (West 2009); Okla. Stat. tit. 12, § 1053(B) (2000 & Supp.2009); Or.Rev. Stat. § 30.020(2)(d) (2003); R.I. Gen. Laws § 10-7-2 (2008); Va.Code Ann. § 8.01-52(1) (2009); W. Va.Code § 55-7-6(c)(l)(A) (2009); Wis. Stat. § 895.04(4) (2006); Wyo. Stat. Ann. § l-38-102(c) (2009).
.
Boies v. Cole, 99
Ariz. 198,
.Zimmerman v. Lloyd Noland Found., Inc.,