This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-611

Jodi Anne Montavon, et al.,
Appellants,

vs.

Wellspring Adoption Agency, Inc.,
Respondent,

Hennepin County Medical Center,
Respondent.

Filed August 24, 1999
Affirmed
Parker, Judge[*]

Hennepin County District Court
File No. 985390

Timothy P. McCarthy, Jeffrey D. Bores, Becky L. Erickson, Mylene A. Peterson, Chestnut & Brooks, P.A., 3700 Piper Jaffray Tower, 222 South Ninth Street, Minneapolis, MN 55402 (for appellants)

Eric J. Magnuson, Mark A. Solheim, Michael M. Lafeber, Rider, Bennett, Egan & Arundel, LLP, Suite 2000, 333 South Seventh Street, Minneapolis, MN 55402 (for respondent Wellspring Adoption Agency)

Amy Klobuchar, Hennepin County Attorney, Michael B. Miller, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent Hennepin County Medical Center)

Considered and decided by Short, Presiding Judge, Harten, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

Appellants Jodi Montavon and Peter Brazerol (the prospective parents) began the adoption process through Wellspring Adoption Agency (the agency) of a child who was born at Hennepin County Medical Center (HCMC) on July 26, 1997. The child died on September 11, 1997; the cause of death was determined by autopsy as Sudden Infant Death Syndrome (SIDS). The child had also tested positive for the HIV antibody shortly before her death. Appellants later sued and, on appeal challenge the trial court's grant of summary judgment, contending that material fact issues exist concerning whether the hospital or the adoption agency knew or should have known that the baby's mother was HIV positive before the baby's release from the hospital and whether the adoption agency made misrepresentations concerning the baby's health. We affirm the trial court's grant of summary judgment.

D E C I S I O N

1. Wellspring Adoption Agency

a. Breach of Contract

The prospective parents argue that Wellspring breached the adoption contract between the parties, but there is no evidence of this in the record. Rather, on the initial form completed by the prospective parents, dated July 24, 1997, the prospective parents indicated that they would accept for adoption "a child whose complete medical and social history [was] unavailable." The parents answered "no" to the question of whether they "would consider a child with major medical problems," but did not provide any details about what this meant to them. The child that the prospective parents accepted had an incomplete medical and social history. And although it appears that the child may have been born with a major medical problem, there is no evidence that Wellspring was aware of any medical problems when the prospective parents took the child home.[1]   From the record, it appears that Wellspring did nothing knowingly short of what the prospective parents agreed to: it provided the prospective parents with a child for whom a complete medical and social history was unavailable.

b. Violation of Statute

The prospective parents contend that the trial court erred in granting summary judgment on their negligence per se claim against Wellspring. The prospective parents rely on Minn. Stat. § 259.43 (1998), which provides that a birth parent or an agency, after reasonable inquiry, must provide a prospective adoptive parent with a detailed social and medical history of the birth families, if known. According to the statute, the social and medical history is to be completed on forms provided by the commissioner of health and human services.

Wellspring used the health and social history forms provided by the commissioner. The forms were completed, in compliance with the statute, by the birth mother (who does not speak English) through her sister who served as a translator. There is no evidence in the record to indicate that the birth mother knew that she was HIV positive or that she knew any more information about her own or the child's father's social and medical history than she provided. There is no evidence that the agency knew anything more about the birth mother's social and medical history than was provided to the prospective parents. Because there is no evidence in the record that, under the circumstances, the information to the prospective parents was anything other than the product of reasonable inquiry, there can be no negligence per se claim based on Minn. Stat. § 259.43.

c. Negligent Misrepresentation

The prospective parents also argue that Wellspring made negligent misrepresentations to them. Appellants contend that Wellspring represented that the baby was healthy and the "birth mother had all of her testing done." But in her deposition, appellant Jodi Montavon admitted that she and Wellspring never discussed HIV testing. Also, she recalled that the information from Wellspring concerning the birth mother's "testing" was in relation to a July 7 prenatal appointment that the mother had undergone. There is no evidence in the record that Wellspring's employees made any untruthful statements about the baby's health or gave appellants incomplete and misleading information. Appellants base their negligent misrepresentation claim on Wellspring's purported assurances to appellants that the child was healthy. However, there is nothing in the record to indicate that Wellspring did not believe this observation to be true. Finally, such a general negligence action is disfavored for policy reasons. M.H. v. Caritas Family Servs., 488 N.W.2d 282, 286-88 (Minn. 1992) (holding that negligent misrepresentation can be the basis of a lawsuit by parents against an adoption agency, but suggesting that breach of a promise of a healthy baby cannot be the basis of such a lawsuit).

2. HCMC

The prospective parents also allege that HCMC owed them a legal duty. But the prospective parents did not identify themselves until the time of the baby's discharge, and then only to the discharging nurse who was on duty on July 29. There was no contractual relationship between the prospective parents and the hospital. However, in a memorandum accompanying the order denying respondents' motions to dismiss, the district court ruled that "HCMC clearly has a duty to inform Plaintiffs and Wellspring of any health issues concerning [the baby] and her birth mother."

Assuming without deciding that a legal duty existed, we conclude that there is no evidence that such a duty was breached. At oral argument, the prospective parents' counsel emphasized that there were lab results that would give concern about the health of the mother from which a duty would arise such that they should have alerted the parents of a possible health issue. But no evidence has been produced to show that the discharge nurse had available to her any evidence other than that the birth mother was HIV negative at the time of her discharge from the hospital. A printed lab report dated July 29 indicates that an antibody screen was reactive for HIV. But the print time of that report was 11:06 p.m., long after the ordinary business hours of the hospital, and there is no evidence that the information from that report was available before that print time.

A lab report dated August 2, 1997, indicates that confirmatory testing of the birth mother for the HIV virus was being performed. The record does not indicate precisely when the hospital became aware of the birth mother's HIV status, but the hospital informed Wellspring of the mother's condition on August 22, 1997.

When the information about the birth mother's HIV status was available, there is no evidence that it was not timely reported. The records indicate that it was only after the child was taken by the prospective parents that the hospital had reason to examine further.

We note that a non-moving party, to defeat summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997). On this record, because there is no evidence of misrepresentation or of a breach of duty to inform, the trial court's grant of summary judgment was appropriate.

The prospective parents' cause of action for intentional infliction of emotional distress likewise fails because there is no evidence of any intentional tortious conduct on the part of the hospital. The only evidence is that prospective parents were informed on August 22 that the birth mother was HIV positive, and they then had the child tested. The child was reactive for HIV antibodies.[2]   The record also indicates that there was a conversation between the prospective mother and Wellspring in which Wellspring offered to find foster placement. The prospective parents, after taking some time to consider whether they wanted to keep the child, decided to keep her, notwithstanding her health problems. On September 11, 1997, the child was found dead. The autopsy report listed the cause of death as SIDS. There is no evidence that her death was related to her HIV status.

Although the prospective parents certainly suffered great emotional distress, there is no evidence that the death of the child was caused by any condition known by HCMC.

The prospective parents have failed to produce evidence of the type of outrageous conduct necessary to give rise to a cause of action for intentional infliction of emotional distress. See Hubbard v. United Press Int'l., Inc., 330 N.W.2d 428, 438-39 (Minn.1983) (intentional infliction of emotional distress requires conduct that is extreme and outrageous, intentional or reckless, and which in fact caused severe emotional distress). Indeed, there is no showing of any tortious conduct by HCMC to the parents.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] While the child was in the custody of appellants, she died at age 11 weeks, before a petition for adoption was filed.

[2] The record also indicates that in a child this young, the presence of HIV antibodies does not conclusively indicate that the child is HIV positive because the antibodies can be passed from the mother to the child without the child contracting the disease.