Remembering Professor Frances S. Fendler

Congregation B'nai Israel
Sunday, Sept. 15, 2024, RJ Peltz-Steele CC BY-NC-SA 4.0

At Congregation B'nai Israel in Little Rock, Arkansas, on Sunday, I joined in the celebration of the life of Professor Emerita Frances Shane Fendler.

A native of Blytheville, Arkansas, Frances was a faculty member at the law school at the University of Arkansas at Little Rock, and also an alumna of the school, '82. Always an intellectual, she wrote the top paper on the July 1982 Arkansas bar exam. She clerked for the late Eighth Circuit Judge Richard Arnold and then litigated for (now) WilmerHale in Washington, D.C.

In 1986, Frances joined the faculty at Little Rock, where she taught courses such as business organizations, sales, and contract drafting for more than 30 years. She authored or co-authored articles and books, including a business organizations casebook and the Arkansas practice manual, Private Placements and Limited Offerings of Securities (2010). She served as a member of the bar, twice chairing the state association section on securities law, and she occasionally served as an arbitrator for the Financial Industry Regulatory Authority.

Most importantly, of course, Frances was a dear friend. When I struggled with the academic politics at Little Rock, she was steadfastly personally supportive, even if she did not have the bureaucratic sway to redress the situation. I did my best to be supportive, in turn, of Frances, when she battled breast cancer in the 20-aughts. I say this more because she often thanked me for it than because I deserve any credit; my recollection is rather frustration at my helplessness to do anything for her at that time. Upon her own remarkable strength, she prevailed in that first fight with cancer.

China Doll
Photo © RJ Peltz-Steele

Frances was a passionate dog lover. She was the first guest to visit my first dog, Rocky, when he came home to me, a puppy, in 2001. At the time, she had her precious China Doll, also an Australian shepherd. Frances remained always a trusted adviser on training and caring for Rocky over his nearly 18 years, right to the painful decision to end his life. My wife and I were plan B if a home in Arkansas could not have been found for Frances's beloved Honey Bear. When I visited Frances at her home in Arkansas one last time in October 2023, she gave me her cherished ceramic Aussie, a remembrance of China. The statuette, literally a "china doll," now stands guard over the ashes of my Rocky.

When we were together in 2023, we talked of all things big and small while organizing the papers of her father, the renowned Arkansas attorney Oscar Fendler. Most of Oscar's papers already resided at the archives of the library at the University of Arkansas at Fayetteville (UAF). But Frances had held back some of the more personal items, such as photographs and handwritten notes. She entrusted me with one treasure in particular: Oscar's unpublished memoir. With the help of research assistants, I am in the process of editing the book for publication, in accordance with Frances's wishes.

Many people helped to organize Frances's affairs in the last weeks. I express my especial gratitude to Linda, who took in Honey Bear; to Susan, who, with help from Melissa and Jessie, saw to the final dispatches to UAF; and to Tom and Suzy, who visited Frances often.

When Frances was young, from ages 19 to 21, she lived and was treated for depression at the Austin Riggs Center, a residential facility in Stockbridge, Massachusetts. She long kept that part of her life a secret, she explained to me in 2023, because of the stigma attached to mental illness. But in recent years, and especially contemplating her own end of life, she recognized that there need be no stigma. She had no shame in it, she told me; in fact, she said, those years, when at last she learned how to manage the darkness that had dogged her, and she made friends who understood, were the best two years of her life. She wanted people to know about her experience in the hope of inspiring others who struggle with depression to seek treatment.

Soon after her retirement from teaching, Frances was diagnosed with ovarian cancer. Having gone ten rounds with cancer before, and not having been given a hopeful prognosis, she chose to eschew treatment in favor of home hospice. Some weeks ago, the pain management in Arkansas became ineffective, and Frances relocated to Celia's House Hospice in Medford, Oregon. She was blissfully happy at the beautiful property when I spoke with her by telephone the week before she died. When the cancer reasserted itself, she declared, "Give me the pills," as she told me she would. At age 70, she availed of medical aid in dying (MAID) under Oregon's Death With Dignity Act. As her eulogizer put it Sunday, Frances lived and died on her own terms.

My life is richer for Frances Fendler having been in it.

Court rejects deep-brain-stimulation patient's contract, IIED claims against Boston nonprofit hospital

A patient dissatisfied with deep-brain stimulation (DBS) to treat her depression could not prevail against her nonprofit hospital, the Massachusetts Appeals Court ruled yesterday, in part because she sued in contract rather than medical malpractice.

The plaintiff-patient sued Brigham & Women's Hospital, Inc. (BWH), in Boston over her DBS treatment, which is experimental with respect to depression, but is approved to treat Parkinson's.  BWH paid for the $150,000+ treatment, which the plaintiff's insurance would not cover, with the design of expanding a program in psychosurgery.

CT scan of DBS implants
(Dr. Craig Hacking, A. Prof Frank Gaillard CC BY-SA 4.0)

The plaintiff initially reported favorable results.  But the relationship between patient and hospital "sour[ed]," the court explained.  The plaintiff became dissatisfied with the repeated interventions required to replace batteries and refine the DBS.  She believed that the hospital was short-changing her treatment because the psychosurgery program was not taking off as hoped.  The hospital pledged to do what was needed to support plaintiff's continued treatment, but the fulfillment of that pledge incorporated some cost-benefit analysis.  And the hospital would not accede to the plaintiff's demand that BWH pay for her treatment elsewhere.

The plaintiff sued BWH for breach of contract, promissory estoppel, and intentional infliction of emotional distress (IIED).  The trial court entered summary judgment for the hospital, and the Appeals Court affirmed.

BWH (Jim McIntosh)

The court's opinion spends most of its pages establishing that there was no broken promise to support the breach of contract and promissory estoppel claims.  The hospital promised to treat the plaintiff for free, and it never charged her.

Of salience here, the court also concluded that the plaintiff had misstated a medical malpractice claim as a breach of contract claim, possibly to get around the $100,000 state cap on medmal liability for charitable organizations (not to mention the claims-vetting process of the commonwealth's medical malpractice tribunal).  The plaintiff asserted medmal would not be the appropriate cause of action for an experimental treatment and a dispute over cost.  But the court pointed to the plaintiff's repeated claims of the defendant's failure to comply with "scientific and ethical standards."

Finally, the court's treatment of IIED was instructive, if routine:

To prevail on this claim, [plaintiff] must prove "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was 'extreme and outrageous,' was 'beyond all possible bounds of decency' and was 'utterly intolerable in a civilized community'; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was 'severe' and of a nature 'that no reasonable man could be expected to endure it'" (citations omitted) [gendered references in original] ....

BWH's actions do not constitute the sort of extreme and outrageous conduct that would allow [plaintiff] to recover for intentional infliction of emotional distress. BWH's alleged wrongdoing arose in the context of its oral agreement to provide hundreds of thousands of dollars in free care to a patient who otherwise could not afford treatment. Even putting "as harsh a face on [BWH's] actions ... as the basic facts would reasonably allow" [citation omitted], no jury could find it utterly intolerable in a civilized society for BWH to discuss alternative treatment options with [plaintiff], to take cost into account in determining what treatment to provide, or to refuse to pay for her treatment at another hospital (without interfering with her ability to transfer her care at her own expense).

Thus, the court rejected IIED as a matter of law.

The case is Vacca v. The Brigham & Women's Hospital, Inc., No. 19-P-962 (Mass. App. Ct. Sept. 21, 2020) (oral argument).  Justice Eric Neyman wrote the unanimous opinion for a panel that also comprised Justices Englander and Hand.