Hospital's radiology contractor must answer negligence claim over patient death, per third-party doctrine

Saint Vincent Hospital, Worcester, Mass.
Terageorge~commonswiki via Wikimedia Commons CC BY-SA 4.0

A hospital's radiology contractor may be on the hook for failure to provide emergency medical treatment to a patient who died, the Massachusetts Appeals Court ruled last week.

The decision offers a solid analysis of third-party beneficiary doctrine in tort law. Under the doctrine, a duty in common law tort can arise from a contract that benefits a third party. So if B and C contract for the protection of A, an injured A may sue C for for its failure under the contract, even though C had no contract with A and would not otherwise have owed any common law duty to A.

In the instant case, Saint Vincent Hospital (SVH) in Worcester, Massachusetts, had contracted with Saint Vincent Radiological Associates, Inc., (SVRA) for radiology services for SVH patients. The plaintiff-decedent was an SVH patient suffering from an acute gallbladder infection requiring an emergency procedure. SVH did not have staff to do the procedure and transferred the patient to another hospital. The patient died before the procedure could be completed. 

The plaintiff-representative discovered later that an SRVA physician on call for SVH was able to do the procedure. The representative sued SVH and SVRA. The representative settled with SVH, but the representative's negligence claim against SVRA was dismissed for want of duty.

The trial court erred, the Appeals Court decided. Ordinarily, an SVRA doctor might have owed no duty to an SVH patient, any more than any doctor who was a stranger to the patient. However, SVRA had contracted with SVH for the benefit of third parties, namely, patients, such as the decedent. The plaintiff therefore could pursue a negligence claim against SVRA, the Appeals Court agreed, remanding and reinstating the claim.

There remains a question of fact in the case, which might have confused the issue in the trial court, over whether the SVH-SVRA contract provided for SVRA doctors to do emergency procedures, if needed, more than mere radiology consultations. If the scope of the contract was so limited, then there is no basis in the contract for the duty to perform the procedure that could have saved the patient's life. The parties had settled contract claims in the case below, so the courts never had occasion to opine on the scope of the contract.

Another question that will have to be resolved on remand, if the case is tried, is whether the defendant was negligent, that is, breached the standard of care. Even breach of contractual obligation, if that were the case, is not negligence per se under the third-party beneficiary doctrine.

In working out its conclusion, the Appeals Court noted an important additional feature of the doctrine, which is that a contract can only support a duty familiar to common law, assuming there were a social-contractual link between A and C. If a contract imposes some exotic obligation, then the only remedy for breach arises between the contracting parties, B and C, in contract law. Here, though, this requirement is not an impediment. C is a doctor, and A is a patient. The duty relationship is easily recognizable once the contract bridges the social gap.

The case is Brown v. Saint Vincent Radiological Associates, Inc., No. 23-P-771 (Oct. 24, 2024). Justice Gregory I. Massing wrote the opinion of the unanimous panel, which also comprised Justices Shin and D'Angelo.

Hospitals may track patients online and sell their data without violating state wiretap law, high court rules

Mike MacKenzie (via Flickr) CC BY 2.0

State wiretap law does not prevent hospitals from tracking patients on the web and selling their data, the Massachusetts Supreme Judicial Court ruled last week.

The plaintiff is a patient at two hospitals in the Beth Israel Lahey Health network. As the court explained the facts, the plaintiff "reviewed information available to the public on the hospitals' websites regarding doctors (including their credentials and backgrounds) and medical symptoms, conditions, and procedures." Without her consent, the hospitals shared the plaintiff's browsing data with third parties to generate revenue from targeted advertising.

The plaintiff sued under state wiretap law and got some traction in the lower courts, where the theory has bubbled up in other cases, too. The high court ended the trend, though, ruling that the state wiretap law, which threatens criminal penalties such as imprisonment, while reaching interpersonal communications such as telephone calls and email and text exchanges, was not intended to reach persons' interactions with websites.

The 47-page majority opinion by Justice Scott L. Kafker, drew a vigorous and almost as lengthy dissent from Justice Dalila Argaez Wendlandt, who accused the hospitals of lying to patients in their pledges of confidentiality and argued that the alleged misconduct falls squarely within legislative intent in prohibiting the interception of electronic communication.

I won't belabor the back and forth, as ample commentary already has been published about the case (e.g., JD Supra, Commonwealth Beacon, Bloomberg, National Law Review, Law360 (subscription), Massachusetts Lawyers Weekly (subscription)), and there is plenty more to come. Rather, I will comment only that the decision reflects the sorry state of privacy law in the United States.

The majority and dissent both make defensible arguments. I come down with the dissent on the technical merits of what the wiretap law was designed to prevent, i.e. "the spirit of the law," regardless of whether the legislature could have foreseen web surveillance. At the same time, the majority is right that the legislature likely would not have wanted to imprison every actor engaging in the kind of web surveillance that has become pervasive in our online society.

The missing link between the two positions is the meaningful data protection law that the United States still doesn't have, and which Americans want and expect, while almost three decades have passed since the European Union Data Protection Directive. The later General Data Protection Regulation (GDPR) has been in force for six years.

Wiretap law was once the stuff of political intrigue, à la Watergate. The Massachusetts statute characteristically dates to the 1960s. Just as the advent of the internet made media law again hotly relevant to society, so wiretap law found new life in the electronic era. Courts had little difficulty transposing the law of wired telephone surveillance to wireless cell phones and electronic communication media such as email and texts. Even the U.S. Supreme Court got in on the action.

That's why I think Wendlandt has the better argument on the technical merits, by the way. The majority's distinction of interaction with a person or a website, when there are persons receiving surveillance data from the website, seems meaninglessly formalistic.

With electronic communication burgeoning in the internet era and electronic interception easier to accomplish without the need for specialized hardware, wiretap laws have been repurposed to do more work than they were designed for, becoming a key tool in the personal privacy arsenal.

The problem in tort law, to oversimplify modestly, always has been what Professor Daniel Solove termed "the secrecy paradigm." The common law of privacy torts, which also emerged largely in the 1960s, was not designed to handle the nuances of an online world. Rather, tort law, like the Fourth Amendment right against search and seizure, focused on secrets kept. A person might resort to the law to protect an intimate secret shared with a spouse. But the person who discloses financial information to a bank has forfeit legal privacy. 

Intimate space is not the theory of privacy that animates data protection in Europe and most of the rest of the world. In the theory abroad, the human right of privacy flows forward with personal data as they are handed off from person to person and corporation to corporation. In the United States, the Health Insurance Portability and Accountability Act (HIPAA) provides a modicum of privacy protection in this vein, but the circumstances in which it pertains are extremely narrow—web activity is not protected health information, and a web host is not a healthcare provider—and it authorizes no private right of action for violation.

In the absence of a legal model of downstream privacy preservation in the United States—notwithstanding a perplexing emerging plethora of competing state laws, if usually limited to commercial contexts; Massachusetts has been working on joining the pack, but has not yet—wiretap law has been unexpectedly instrumental to protect personal privacy in a narrow class of cases, because wiretap law focuses on the misconduct of clandestine surveillance rather than on the purportedly private nature of the intercepted content.

To be fair to the Massachusetts majority, though, such use of anachronistic wiretap law takes us down a road of ever more speculative application as the electronic avatar increasingly becomes an embodiment of personal identity. Electronic tools such as Google Analytics watch our every word. And we don't necessarily want to stop that wholesale. The other day, I watched a dated TV movie that Amazon thought I would like, and it was right. Time travel, Ireland, and Jane Seymour? Drop everything.

Notwithstanding which side in the instant case has the better argument in statutory interpretation, the legal response to the problem presented, that is, surveillance of web usage for the relatively innocuous if mercantile purpose of advertising, would arise better from business regulation than from common law or statutory torts.

Alas, if I had the magic potion that would make our broken Congress favor consumer protection over corporate profits, I would be running for President.

The case is Vita v. New England Baptist Hospital, No. SJC-13542 (Mass. Oct. 24, 2024).

Transparency never goes out of style

This autumn, I am privileged to serve as a new member of the Freedom of Information Act (FOIA) Advisory Committee, a U.S. federal entity constituted under the Federal Advisory Committee Act (FACA) and administered by the Office of Government Information Services (OGIS), within the National Archives and Records Administration (NARA).

If that alphabet soup has your head spinning, then you have some sense of what it's been like for me to get up to speed in this role. That said, I'm thrilled to have the opportunity and humbled by the expertise of the committee members and OGIS staff with whom I'm serving.

I'll have more to say in time, as we have accomplishments to report. Meanwhile, though, a bit of parody art. At a meeting yesterday of the Implementation Subcommittee, ace OGIS compliance officer and former journalist Kirsten B. Mitchell related an anecdote.

A youthful person had wondered aloud that Fresca is quite old, perhaps dating to the 1980s! And Mitchell said she felt compelled to note that it is even older. In fact, the niche-beloved Coca-Cola Co. soft drink dates to the same year the FOIA was signed into law: 1966. That modest revelation prompted me to generate the above art, based on a contemporary Fresca ad that capitalizes on the drink's age ("Delicious Never Goes Out of Style"). (Above art by RJ Peltz-Steele CC BY-NC-SA 4.0 with no claim to underlying work of Coca-Cola Co.)

The inaugural public meeting of the 2024-2026 FOIA Advisory Committee, at NARA in September, is posted on YouTube.

Niagara conference on workplace mobbing examines failure of academic freedom to prevent abuse

NCWM participants at Niagara University in July
© used with permission

With colleagues from around the world, I participated, as chair of the scientific committee, in the inaugural Niagara Conference on Workplace Mobbing (NCWM) on July 22-24, 2024, at Niagara University in New York (Savory Tort, Feb. 27, 2024).

Videos from the conference are now posted on a new NCWM YouTube channel and NCWM 2024 playlist.

Here is my introduction to the program, moderating the opening session.

For reasons investigated in the literature, academic workplaces are especially prone to mobbing. Here is my own presentation on academic freedom relative to workplace mobbing.

Here is another contribution to the academic freedom panel from my friend and colleague, Prof. Robert Ashford, Syracuse Law (pictured).

And here is the panel Q&A with Prof. Frances Widdowson (Woke Academy), Prof. Ashford, and me.

I will feature more programs from the conference in subsequent posts.

Enríquez disputes impact of marijuana offenses on federal sentencing since legalization in Missouri

The extraordinary scientist-lawyer Paul Enríquez argued an intriguing problem on the effect of legalization on federal sentencing in the Eighth Circuit Friday.

I wrote in 2021 about Rewriting Nature (Cambridge U. Press 2021), the remarkable book by Enríquez, J.D., LL.M., Ph.D. (LinkedIn, SSRN), on the law and science of genome editing. On Friday, Enríquez showed that he has the chops in the courtroom, too. Court Listener has the oral argument.

Enríquez's brief states the straightforward problem:

Mr. Brandon Phillips pleaded guilty to a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 10 years' imprisonment and three years of supervised release based on his criminal history. An amendment to the Missouri Constitution, which was in effect at the time of sentencing, legalized the use of limited amounts of marijuana and mandated the retroactive expungement of most prior marijuana-related convictions in Missouri. The district court failed to consider the effects of the Missouri Constitution on Mr. Phillips's case.

Missourian approved legalization 53%-47%.
Wikipedia CC BY-SA 4.0

As Enríquez told the court, Phillips would have fared much better in sentencing on the firearm violation, perhaps a third as many years, in prison, had he been credited with expungement pursuant to the Missouri constitution as amended in 2022. Ripe for someone to grab for moot court, the case also presents a procedural dispute over preservation of objection.

To my mind, Enríquez has the better argument on the merits and made the better argument in the courtroom, forensically. (I don't say that because he's a friend, colleague, and long-ago student, but I do mention that he's a former student in the hope that some of his shine will rub off.) To my mind, this seems the sort of case where the just outcome is obvious, even if legal formalism points the other way. Doing the right thing upon such a dichotomy is why we pay judges the big bucks and why we won't, I hope, commit justice to AI anytime soon.

What the court will do, though, remains to be seen. Getting hung up on formalism is a signature move for the federal bench. To my estimation, the judges' questions point to a split with the deciding third vote as yet inscrutable.

The case is United States v. Phillips, No. 23-2678 (8th Cir. oral argument Sept. 27, 2024) (Justia). Enríquez practices with Convington.

Remembering peaceful times in Tyre

I'm saddened by the expansion of the war in the Middle East into Lebanon upon yesterday's attacks by Israel on Hezbollah. To be clear, I'm not (here and now) meaning to make a political statement nor favor a side. Rather, I am remembering time I spent in the south of Lebanon and praying for the safety of civilians I met there. In contrast with the latest images from Tyre (Reuters), I took this photo of kids playing at the Tyre Coast Nature Reserve in May of 2018. I wonder where these boys are now, as thousands flee the south of Lebanon for Beirut and points north. Photo by RJ Peltz-Steele CC BY-NC-SA 4.0.

IP, business stories of Tupperware bankruptcy minimize female marketing pioneer, dangers of plastics

Brownie Wise on Business Week in 1954
via America Comes Alive; © fair use

The Tupperware bankruptcy has been much in the news, though the coverage has underplayed "the rest of the story" in regard to women in business and product liability.

Headlines about the bankruptcy of Tupperware suggest various takeaways for business and law. Most stories highlight the inevitable expiry of novelty in business, with the corollary imperative to innovate (Atlantic, Sept. 20). Legal angles complement coverage with intellectual property lessons on the limited life of patents (Slate) and the problem of genericization in trademark (N.Y. Times). The history and nostalgia of Tupperware is a consistent theme (Atlantic, Apr. 12).

Less often told is the story of women in business. The CBS Evening News Saturday night credited Tupperware founder Earl Tupper with having come up with the Tupperware party as a sales strategy. That's not accurate, except in a "buck stops here" sense. The role of the remarkable Brownie Wise is less often told (mentioned: Atlantic, N.Y. Times). Rachel's Vintage & Retro has the more nuanced inside story. The National Women's History Museum and Smithsonian have more. Wise, from Buford, Georgia, graced the cover of Business Week in 1954 (pictured, via America Comes Alive). PBS recounted:

While Earl Tupper hated the limelight, Brownie Wise loved it. With Tupper's blessing, the company's public relations staff promoted Wise extensively. Female executives were rare, and the strategy worked. As the company grew, Wise was on talk shows, quoted by newspapers, and pictured on the cover of numerous magazines (she was the first woman to make the cover of Business Week). But when the press suggested Wise was responsible for Tupperware's success, and that she could be equally successful selling any product, Earl Tupper grew jealous. Over time, Wise became increasingly high-handed, and she was less patient with Tupper's micro-management and unpredictable temper. In 1958, Earl Tupper unceremoniously and abruptly fired her, booting her from the multi-million dollar company she had helped build; she held no company stock and was given just one year's salary.

Journalist Bob Kealing published a book about Wise if you want to go all in. Life of the Party (2016) followed up Kealing's Tupperware, Unsealed (2008). The Takeaway at WNYC interviewed Kealing in 2016.

With regard to women in business, by the way, CBS Sunday Morning just featured GM CEO Mary Barra, who appears to be going strong in the role ten years on. I remember when Jon Stewart on The Daily Show made fun of GM's ham-fisted introduction of a first female CEO ("a car gal, an auto dame, a jalopy broad"). It seemed that Barra was practically set up to fail amid GM's embarrassing ignition-switch recall.

Phillip Pessar via Flickr CC BY 2.0

Further in the vein of product liability, another angle on Tupperware that gets little play lies at the intersection of tort law and environmental protection. Stories of Tupperware tend to hail Tupper's inventiveness in converting DuPont's wartime development of polyethylene to post-war market ubiquity. But in the last decade, revelations of risky chemical seepage from microwaved containers did untold damage to a business built on plastic food storage.

BPA is just one chemical contaminant from plastics. Its use in manufactured products has spawned EU regulation and American litigation over baby bottles and activewear, as well as consumer protection litigation over "BPA-free" green-washing. Tupperware stopped using BPA in 2010 and developed a purportedly microwave-safe line of products under the brand name "Tupperwave" (not to be confused with Australian musician Dean Terry). But the safety of any plastic in the microwave remains uncertain. And microwave ovens notwithstanding, there's plenty of justified public concern over microplastic waste in the environment, animals, and people. 

So maybe Tupperware was always destined for only finite fame. Or maybe it will reinvent itself like Teflon, another DuPont invention that seems likely to survive an accountability assault.

Possibility that 'Titan' victims died instantly works curious disadvantage in tort claims over disaster

Still image of Titan wreckage from USCG video (below).

Hearings over the Titan submersible disaster point to the problem of compensation for instant death in tort law.

As The New York Times reported yesterday (subscription), a U.S. Coast Guard (USCG) inquiry into the underwater implosion of the Titan submersible (60 Minutes Austl.) has raised doubts over whether the five persons who died on the voyage knew they were in trouble. The family of one crew member filed a $50 million lawsuit against the sub manufacturer in August (N.Y. Times).

Titan was capable of dropping all of its weights to surface rapidly in an emergency. It was known before the present inquiry that Titan had dropped weights before the implosion, and experts read that as a sign that the crew knew they were in trouble. The inquiry so far has revealed, though, that Titan might have dropped only some weights as part of its routine surfacing procedure, and that communications with the surface suggested no cognizance of the impending disaster.

The rapid compression resulting from compromise of the Titan's hull at a depth of 3,346 meters (10,978 feet) would have raised the temperature in the sub so quickly as to incinerate the interior in a split second. So if the crew did know there was trouble, they did not know for long.

 Remotely-operated-vehicle video of Titan tail cone on seafloor (USCG).

Besides the natural desire of victims' families to understand what their loved ones experienced in their last moments of consciousness, the question of conscious awareness of impending death points to a curious problem of damages doctrine in tort law.

In its long history, Anglo-American common law has struggled with the problem of compensation in event of accidental death. The conventional approach to calculate damages in tort law asks what it would take to restore a plaintiff to status quo ante, as if the accident had not occurred. When a loss is non-economic, such as physical injury or emotional distress, the loss is nonetheless quantified as financial compensation.

The problem in a death case, besides the obvious difficulty of quantifying life itself, is that there is no plaintiff to compensate. The person who experiences loss of life can in no sense be made to feel restored; she or he can derive no satisfaction from a financial award, nor even spend it. So what is the social utility in transferring wealth from a responsible defendant to a non-corporeal estate?

Tort law does mean to accomplish more than mere compensation. Tort awards set norms for socially acceptable conduct, deter others from misconduct, and keep the peace by cooling the vengeful desires of a victim's kin. So the law of accidental death came around in the 19th and 20th centuries to compensate surviving family for at least some of the losses that they suffer upon the death of a loved one; and also to compensate a decedent's estate for what the decedent suffered while alive.

That latter measure incorporates a serious limitation: the decedent's suffering necessarily ended at the time of death. Compensation of an estate thus poses a peculiar problem in a narrow class of cases. Should the estate receive anything at all when a person dies instantly? If so, what is the measure of suffering?

In modern times, airline disasters especially added another twist to the problem. One could imagine that airplane passengers sometimes are conscious of an impending crash. They therefore suffer emotionally. But they suffer before the crash. American law on negligence and strict liability compensates emotional distress only when it is a consequence of physical injury. The doomed airline passengers experienced physical injury and death simultaneously; there was no consequential emotional distress. So there is, again, no basis on which a tort award can be measured out.

Is there really, though, a legally significant difference between, on the one hand, suffering for moments after impact and before death, and, on the other hand, suffering for moments before impact and before death? Personally, I'd like to avoid both. And the toll on kin, the revelation of a loved one's suffering for moments in anticipation of death, seems about the same whether before or after impact.

Accordingly, many courts faced with such cases have been willing to suspend the usual rule of causation and award an estate damages for "pre-impact fear," if only in this narrow class of cases when it could be proved, at least by circumstantial evidence, that the decedent suffered emotional trauma upon an awareness of impending death.

The solution creates collateral problems, namely: in evidence, as to how one proves the pre-impact state of mind of a person who perished; and in torts, in the valuation of damages, for fear that jurors might let the fact of physical fatality improperly amplify their assessment of only momentary and purely emotional suffering. These problems are surmountable, if one decides they should be, through adversarial process, careful jury instructions, and court supervision.

American jurisdictions remain reluctant, though, to compensate for life itself. So damages awarded to wrongful death complainants, the kin of decedents, still are measured according to their losses, such as financial support and loss of companionship. However remunerative, that approach can leave victims' families feeling like the lives of their loved ones were undervalued by the legal system, and the loss of life was insufficiently impressed upon the defendant. After all, if there were no kin, there would be no liability.

An award for pre-impact fear usually is small, because of the short time frame in which the harm occurs. But the award can be important symbolically to victims' families, because, in the absence of compensation for life itself, the modest award for pre-impact fear at least recognizes suffering in the decedent's confrontation with mortality.

In the Titan case, then, a revelation of instant death might bear a bittersweet edge for families. Certainly, they would like to know that their loved ones did not suffer at all and had no cognizance of their fate aboard the sub. At the same time, a revelation of instant death will mean that the victims bore no compensable suffering, even pre-impact. In tandem with a failure to compensate for life itself, victims' families might well conclude that the legal system failed to recognize the fullness of their loss.

There are, by the way, better ways to handle wrongful death. The gold standard for my money was articulated by my friend and former colleague Andrew McClurg in his Dead Sorrow: A Story About Loss and a New Theory of Wrongful Death Damages, 85 B.U. L. Rev. 1 (2005).

Spoliation risk shows ill wisdom of state awarding contract to defendant in lawsuit over same project

The eastbound span of the Washington Bridge remains functional.
Jef Nickerson via Flickr CC BY-SA 2.0

The state of Rhode Island has found itself in an awkward spot trying to prevent the spoliation of evidence in civil litigation.

In my recent screed against, inter alia, corruption in contracting, I mentioned that Rhode Island had awarded the nearly $50 million contract for a major bridge demolition to a company that also is among the 13 defendants Rhode Island has sued for failing to diagnose the defective bridge in the first place.

I suggested, and maintain, that the state's simultaneously friendly and adversarial relationship with Aetna Bridge Co. is symptomatic of problematically cozy ties between government and contractors. These relationships cost taxpayers in Rhode Island and elsewhere tens of millions of dollars in overpriced projects, I believe, effecting a form of what I call "lawful corruption."

In a schadenfreude-inducing twist in the case, demolition of the I-195 Washington Bridge in Providence was halted this week for fear that evidence in the state's civil suit would be lost. "[R.I. Attorney General (AG) Peter] Neronha told WPRO radio he had spent two days working to safeguard bridge evidence from the wrecking ball and jackhammer," The Providence Journal reported Tuesday (subscription).

Spoliation of evidence occurs in a civil action or potential civil action when (1) an actor has a legal or contractual duty to preserve evidence relative to the civil action; (2) the spoliation defendant negligently or intentionally fails to preserve evidence in accordance with the duty; (3) absence of the evidence significantly impairs the complaining party's ability to prove the civil action; and (4) the complaining party accordingly suffers damages for inability to prove the civil action (1 Tortz 335 (2024 ed.)). Though a wrongful act, most states, including Rhode Island to date, regard spoliation as a doctrine of evidence, subject to procedural remediation within the four corners of a case, rather than a separate liability theory in tort law.

The instant case puts Aetna Bridge Co. and its partners in the bizarre position of being contractually bound to destroy parts of the Washington Bridge and to dispose of the debris in accordance with state law, while also being vulnerable to state accusations of spoliation if contract performance results in the destruction of evidence. The contradiction is yet more reason that the contract award was improper.

I'm doubtful that the state on its own even realized the problem. It was Wednesday last week that the Journal asked the AG's office whether parts of the bridge would remain available as evidence in the litigation. An AG spokesman had no "comment on ongoing litigation" on Thursday, and demolition stopped abruptly this week on Tuesday, after what Neronha described as "two days" of efforts.

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.