January 2012 NIED Update
A split panel of the Pennsylvania Supreme Court has ruled that a mother may proceed with a cause of action for negligent infliction of emotional distress after a doctor interpreted her ultrasound during pregnancy as normal and her child was subsequently born with serious birth defects.
Due to the fact the decision was split (3-3) the lower court decision rendered by the Superior Court in favor of the plaintiff was upheld by operation of law.
In this case the plaintiff sued the radiologist who interpreted her ultrasound as normal just 4 months prior to giving birth because the child was born without extremities beyond the knees and elbows. The plaintiff is seeking damages for the emotional distress she suffered after seeing the birth of her catastrophically deformed child when the obvious expectation was that the baby would be structurally intact based upon the ultrasound interpretation. The defendants had argued there was no cause of action because the plaintiff was not in the “zone of danger” or a “bystander” and that the improperly interpreted ultrasound did not cause the deformities.
Historically, some form of physical impact has been an element of impact rule negligent infliction of emotional distress claims. Indeed, zone of danger cases require the plaintiff to be in personal danger of a physical impact. For bystander cases, liability will only be found if a very close relative suffers a physical impact.
The court framed the issues on appeal as: “whether a negligent infliction of emotional distress claim can be sustained based on a contractual or fiduciary relationship, and whether a physical impact is required for this type of NIED claim.”
The three justices that found in favor of allowing the case to proceed held that although a plaintiff cannot recover for negligent infliction of emotional distress in “garden variety” breach of contract or fiduciary duty cases, in claims for negligent infliction of emotional distress where a “special relationship” exists and the breach is so extreme that it could not be expected and the resulting distress is foreseeable, the case may go forward. Here, the plaintiff argues that the special relationship is that of doctor-patient, the breach was indeed extreme and it is foreseeable that a parent would be distressed in this situation.
Over the years the Supreme Court has created exceptions to the physical impact rule but, all of those exceptions still required some form of physical force. The court went on to note that this type of claim faces a much more difficult legal challenge without the physical impact aspect but, should be permitted to be heard by a jury. The three justices in opposition to allowing the case to proceed found that permitting this type of claim to go forward is creating a new cause of action or category within these types of claims for breach of a contractual or fiduciary duty.
Clearly this represents an important departure from past precedent and an expansion of negligent infliction of emotional distress claims. Hopefully, this will allow plaintiffs who go through such a tragedy as this one to obtain the justice they deserve. To read the full opinion please click here.