Author: Mary Beth Davis
A plurality opinion from the Pennsylvania Supreme Court came down on December 22, 2011, which expanded the NIED claim (negligent infliction of emotional distress) by adding a fourth category of people who may recover and removing the physical impact element for this category of people. See Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. who sat on the Superior Court when it issued its 2008 opinion did not participate in this opinion).
In the 3-3 split, Justice Baer, writing for the affirming opinion, decided that NIED is available in cases where a “special relationship” exists and there is a foreseeable breach of the relevant duty that would “[r]esult in the emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.” The physician-patient relationship is a special relationship, thus this case has an impact on medical malpractice cases. The Court analyzed the history of the physical impact rule for NIED recovery, which first required physical impact for recovery , then was expanded to allow recovery for those who were in close proximity of physical impact, and then to include those who witnessed a tortfeasor impact a close relative (bystander liability). In Toney, the assenting opinion said that there does not need to be a physical impact to recover for a NIED claim based on a special relationship.
In Toney, the plaintiff gave birth to a baby with several deformities, including all four limbs terminating at the elbow or knee, hypoglossia (incompletely developed tongue), micrognathia (abnormal, small lower jaw). An ultrasound reading by the radiologist from four months earlier said her pregnancy was normal. The plaintiff only alleged that the defendants’ negligence (not detecting the baby’s abnormalities in the ultrasound) prevented her from preparing herself for the “[s]hock [of witnessing her child’s birth with profound abnormalities], without the benefit of seeking psychiatric, religious, or social counseling, [and] without the benefit of making appropriate arrangements prior to [her child’s] birth”. She did not allege that earlier detection of the abnormalities could have prevented any of them. The trial court granted the defendants’ preliminary objections based on the failure to state a legally cognizable claim, but the Superior Court reversed the trial court.
The Justices in favor of reversal of the Superior Court’s decision did not believe that it was the High Court’s place to add to the already “complex and risk-laden” medical malpractice arena, and saw these “social policy judgments” best fit for the General Assembly. They warned of engaging in judicial policy-making, where it can have a broader social impact. The dissenting opinion also pointed out the difficulty in trying to separate the inevitable suffering plaintiff would have undergone upon first learning about the abnormalities from the additional distress caused by the “unpreparedness”.
The Toney decision raises quite a few questions, especially in light of Legislature’s tort reform over the past decade. Doesn’t this expansion of liability in the medical malpractice arena for healthcare providers, who will have these “special relationships”, seem inconsistent with tort reform to reduce frivolous medical malpractice suits? Should a Certificate of Merit be required when filing the Complaint to also show that the emotional harm suffered was worsened due to the “unpreparedness”, to minimize frivolous suits filed based solely on this theory? How does the healthcare provider ever prove that the emotional harm suffered would have been just as devastating if learned earlier, since the outcome could not have been changed? Is this a form of strict liability?
It seems that this decision created more questions and uncertainty. The answers to which will surely unfold in an inconsistent, case-by-case basis in the different counties, or at least until the Legislature steps in… again.
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