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Emotional distress claims in medical malpractice cases John L. Ropiequet J.D.

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Partner, Arnstein & Lehr , 120 S. Riverside Plaza, Suite 1200, Chicago, IL, 60606 Published online: 23 Jul 2009.

To cite this article: John L. Ropiequet J.D. (1990) Emotional distress claims in medical malpractice cases, Journal of Legal Medicine, 11:1, 59-91, DOI: 10.1080/01947649009510819 To link to this article: http://dx.doi.org/10.1080/01947649009510819

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The Journal of Legal Medicine, 11:59-91 Copyright © 1990 by Hemisphere Publishing Corporation

EMOTIONAL DISTRESS CLAIMS IN MEDICAL MALPRACTICE CASES

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John L. Ropiequet, J.D.*

INTRODUCTION The latest wave of tort reform in the medical malpractice area has resulted, with much fanfare, in a number of procedural changes designed to whittle down malpractice filings and reduce malpractice awards. Certificates of merit, review panels, and caps on recovery are becoming commonplace, even if they do not always survive constitutional challenges. However, one tort development has run counter to this trend. Claims for emotional distress are being filed and pursued in many jurisdictions with significant success. Such claims allow both "bystanders" and "direct victims" of alleged malpractice to recover for psychological injuries, often with no physical harm at all. Thus, whole new classes of claimants are being permitted recoveries apart from what normally would be seen as the true victims of acts of malpractice. Until relatively recently, a medical malpractice plaintiff could not recover damages for emotional distress, no matter how genuine and extreme the psychological harm being suffered, unless there was some physical impact from the defendant's actions on the plaintiff. The physical impact rule required that there must be some physical impact, however slight, to allow recovery for the plaintiffs resulting emotional distress. Most courts now hold this to be an arbitrary and unnecessary restriction in light of modern advances in medicine and psychiatry which allow the courts to screen out frivolous or fanciful claims without resort to such an artificial limitation. However, the varying approaches taken towards a new, more logical rule have produced very different results. This article examines how these changes in the law have affected the medical malpractice field in particular, since emotional distress claims are often raised in medical malpractice actions. The emotions which a major malpractice case ordinarily creates often are well-suited for persuading a * Partner, Arnstein & Lehr, Chicago, IL. Address correspondence to Mr. Ropiequet at Arnstein & Lehr, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606.

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reviewing court that changes are necessary, and the law usually has been changed when courts are presented with striking facts that cry out for new, more liberal rules. As counsel become more familiar with the changes in the rules governing emotional distress claims, such claims may become commonplace in the medical malpractice arena.

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I. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS Under the classical "impact" rule, emotional distress was not compensable unless some physical impact, no matter how slight, was the basis for the tort action. This rule still applies in a few jurisdictions1 and effectively precludes emotional distress claims that do not stem directly from the alleged acts of malpractice. Most jurisdictions now have adopted some form of "modern" rule that permits a recovery for emotional distress if certain conditions are met, even if there has been no physical impact from the tortious act. However, the differing rules produce widely varying results. Generally speaking, actions for intentional infliction of emotional distress must be differentiated from actions for negligent infliction of emotional distress because outrageous intentional or reckless conduct is required as a basis for the former action. As shown in Section II of this article, there have been a few successful intentional infliction cases in malpractice situations, but ordinarily, the facts must be extreme. Much more common are malpractice cases in which the emotional distress arose because of merely negligent conduct. The seminal case for allowing claims for negligent infliction of emotional distress is the 1968 California Supreme Court decision of Dillon v. Legg,2 which announced a foreseeability test for such claims. Every jurisdiction that has addressed emotional distress claims since Dillon has had to determine whether to adopt, reject, or modify its principles. The resulting rules form a continuum of liberality from the old-fashioned impact rule to the limited exceptions provided when a bystander stands in a zone of danger to a foreseeability rule that basically allows the jury to decide whether the distress is genuine and therefore compensable, however it arose. The major rules that now govern claims for negligent infliction of emotional distress can be categorized as follows: (1) the impact rule; (2) the zone of physical danger rule; (3) the Dillon rule of foreseeability; (4) the relaxed foreseeability rule; and, (5) the direct victim rule. The Appen1

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Hahn v. Sterling Drag, Inc., 805 F.2d 1480, 1483 (11th Cir. 1986) (applying Georgia law); Posey v. Medical Center-West, Inc., 184 Ga. App. 404, 361 S.E.2d 505, 506-07 (1987); Wishard Memorial Hosp. v. Logwood, 512 N.E.2d 1126, 1127 (Ind. App. 1987). 68 Cat. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968).

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dix at the conclusion of this article groups leading malpractice and nonmalpractice decisions by jurisdiction under these categories.

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A. The Zone of Physical Danger Rule The first, cautious step away from the classic impact rule has become known as the zone of physical danger rule. It was adopted in California before Dillon was decided,3 and has been a stepping stone to adoption of the Dillon rule elsewhere.4 The leading case adhering to this rule is the Illinois Supreme Court's decision in Rickey v. Chicago Transit Authority.5 The plaintiff in Rickey was an eight-year-old boy who watched in horror as a subway escalator caught the clothing of his five-year-old brother and strangled him. The older brother was left physically untouched but mentally severely shaken. The court held that he could nevertheless recover under a newly announced "zone of physical danger" test if he satisfied the following elements: (1) he had a reasonable fear for his own physical safety; (2) he was in such proximity to the accident which physically injured another that there was a high risk of impact on him; and, (3) his emotional distress resulted in physical injury or illness. Thus, even without a direct and contemporaneous physical injury or impact from the accident, if the eight-year-old was within a zone of physical danger which would satisfy the reviewing court that his claimed emotional injuries were foreseeable, non-frivolous, and non-fraudulent, he could recover.6 The Rickey court stressed that courts traditionally were reluctant to allow recovery for purely emotional injury because of concerns that "the door would be open for fraudulent claims, that damages would be difficult to ascertain and measure, that emotional injuries are hardly foreseeable and that frivolous litigation would be encouraged."7 The court would not accept the foreseeability analysis adopted by the appellate court opinion in the case since it considered such a standard to be too vaguely defined and excessively broad in light of the traditional concerns.8 It therefore adopted the zone of physical danger rule, which required a showing of some resulting physical injury or illness due to the emotional distress, in light of what 3

Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295, 379 P.2d 513, 29 Cal. Rptr. 33 (1963). Compare Jelley v. LaFlame, 108 N.H. 471, 238 A.2d 728 (1968) (zone of danger) and Niederman v. Brodsky, 436 Pa. 392, 261 A.2d 84 (1970) (zone of danger) with Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979) (Dillon rule) and Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (Dillon rule). 5 98 Ill. 2d 546, 457 N.E.2d 1 (1983). 6 Id. at 5. The appellate court in Rickey was careful to point out that the plaintiff specifically had not alleged that he suffered any physical injury or impact or that he was within a zone of danger, as a predicate for its adoption of the California foreseeability rule. Rickey v. Chicago Transit Auth., 101 Ill. App. 3d 439, 428 N.E.2d 596 (1981). The Illinois Supreme Court noted that the allegations were insufficient to determine whether the plaintiff satisfied the requirements of its newly announced zone of physical danger rule, and therefore granted leave to amend. Rickey, 457 N.E.2d at 5. 7 Rickey, 457 N.E. 2d at 5. 8 Id. at 4. 4

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it perceived to be the current majority rule in other jurisdictions that had considered the question.9 The limitations of the zone of physical danger rule quickly became apparent after Rickey was decided in numerous attempts to recover for negligent infliction of emotional distress in medical malpractice cases. The Illinois Supreme Court reaffirmed its holding in Rickey in Siemieniec v. Lutheran General Hospital,™ which involved failure to give genetic counseling about the possibility of hemophilia. It was clear that the plaintiff parents could not satisfy the zone of physical danger test since they were never in any physical danger, so they urged the court to expand bystander recovery for emotional distress. The court stated simply that Rickey had brought Illinois into conformity with the majority rule and the plaintiffs had not provided the court with any reason to expand the right to recover for negligent infliction of emotional distress any further." The Illinois appellate court cases decided since Rickey in the malpractice field also have shown the limits of the zone of danger rule, even where the emotional impact was much more immediate and presumably would be genuine enough. For example, in Gehring v. Butcher,12 the plaintiff found her husband dead in a closed garage with the car motor running after he was seen by his physician and a psychiatrist, who allegedly failed to treat his suicidal depression properly. The court refused to allow any recovery for her emotional distress because the claimed malpractice did not place her in the zone of physical danger. Similarly, in Johnston v. St. Anne's Hospital West, Inc.,13 the plaintiff mother and daughter walked into the hospital room in the morning and found their husband/father dead after they had been assured the evening before that his chest pains were not serious. While their shock and distress were genuine and severe, the alleged misdiagnosis did not place them in physical danger, so they could not satisfy the requirements of Rickey. The plaintiff in Courtney v. St. Joseph's Hospital1* was not permitted to recover for the emotional distress caused her when the defendant hospital had let her husband's body thaw and decompose, making an opencasket wake impossible. No recovery for negligent infliction of emotional distress was permitted since the widow was not in a zone of physical

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Id. at 5. 117 Ill. 2d 230, 512 N.E.2d 691 (1987). 11 Id. at 707. The same result was reached in the "wrongful life" case of Goldberg v. Ruskin, 128 Ill. App. 3d 1029, 471 N.E.2d 530 (1984), aff'd on other grounds, 113 Ill. 2d 482, 499 N.E.2d 406 (1986), where the defendant hospital failed to test for Tay-Sachs disease. 12 138 Ill. App. 3d 976, 487 N.E.2d 75 (1985). 13 146 Ill. App. 3d 763, 497 N.E.2d 408 (1986). 14 149 Ill. App. 3d 397, 500 N.E.2d 703 (1986). 10

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danger, although the court was completely persuaded of the genuineness of her shock and grief and was sympathetic to her claim.15 Some Illinois courts, while adhering to the Rickey rule, have expressed their discomfiture with denying recovery to claimants with such genuine anguish and have searched for a way out. For example, the dissent in Siemieniec would have found the Rickey zone of physical danger analysis inapplicable because the parents were not merely "bystanders" to the alleged negligent failure to provide genetic counseling, but were "direct victims" of the alleged negligence. The dissent found that there was no danger of fraudulent or frivolous litigation or difficulty in measuring emotional injury, and the foreseeability of emotional trauma in such a situation was patent. Thus, the dissent urged that the court focus on "injuries directly flowing from the defendants' negligence" instead of applying artificial limitations like the impact rule or the zone of danger rule.16 More recently, another appellate court decision boldly distinguished Rickey, holding the zone of danger rule inapplicable to a "direct victim" of malpractice. In Corgan v. Muehling," a non-registered psychologist had sex with his patient, causing her psychological injury but no physical harm. The court found her injury compensable since she was a direct victim of his negligent acts, not a mere bystander as in Rickey or Siemieniec. However, a subsequent decision in the same district refused to adopt direct victim analysis and denied recovery to parents who observed their newborn baby fall on its head in the delivery room, causing its death the next day.18 B. The Zone of Physical Danger Rule in Flux New York has followed a zone of physical danger rule since it abandoned the impact rule in 1961,19 but the same tensions that have troubled some Illinois courts have caused courts in New York to bend the rule and create exceptions. The New York Court of Appeals reaffirmed the zone of 15

Id. at 705. Evidently, attorneys are also safe under the zone of physical danger rule from claims for emotional distress stemming from their malpractice. See Maere v. Churchill, 116 Ill. App. 3d 939, 452 N.E.2d 694 (1983). 16 Siemieniec, 512 N.E.2d at 711. 17 167 Ill. App. 3d 1093, 522 N.E.2d 153 (1988). Contra Hammond v. Lane, 162 Ill. App. 3d 17, 515 N.E.2d 828 (1987) (patient who had sex with psychiatrist failed to allege she was in zone of danger). 18 Villamil v. Elmhurst Memorial Hosp., 175 Ill. App. 3d 668, 529 N.E.2d 1181 (1988). Accord Robbins v. Klass, 163 Ill. App. 3d 927, 516 N.E.2d 1023 (1987), appeal dismissed, 522 N.E.2d 1256 (1988) (stillbirth—Siemieniec rejects direct victim analysis); Henry v. St. Johns Hosp., 159 Ill. App. 3d 716, 512 N.E.2d 1042 (1987) (fetal injury from anesthesia); Hunt v. Chettri, 158 Ill. App. 3d 76, 510 N.E.2d 1324, appeal dismissed, 515 N.E.2d 108 (1987) (stillbirth). 19 Battalia v. State, 10 N.Y.2d 237, 176 N.E.2d 729, 219 N.Y.S.2d 34 (1961) (child terrified on ski lift can recover for emotional distress caused by fear of injury without impact). See also Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N. Y.S.2d 554 (1969) (bystander not endangered by defendant may not recover for emotional distress, rejecting Dillon rule).

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danger rule in Tebbutt v. Virostek,20 where the fetus died following a negligently performed amniocentesis, but there was no physical injury to the mother. A majority of the court found that since the mother was not in a zone of physical danger, there could be no recovery for negligent infliction of emotional distress.21 However, two dissenters strongly objected because the ruling would in effect let the physician off scot-free despite his clear malpractice. Since a fetus who was never born alive could not, under New York law, maintain an action for the malpractice that killed it, only a recovery for the mother's emotional distress could produce any recovery.22 Denying such a recovery therefore would work great injustice. The court in McBride v. Brookdale Hospital Medical Center™ applied Tebbutt to deny recovery in a similar situation. The court held that since the fetus was stillborn, it never lived to become a family member for purposes of zone of danger analysis. Absent any injury to the mother from the alleged malpractice that caused the fetus to be stillborn, she would not be permitted to recover for emotional distress.24 Tebbutt was similarly applied in Burgess v. Miller25 to bar a claim for emotional injuries allegedly suffered by the plaintiff mother in witnessing the results of an unsuccessful delivery. The court in Khan v. HIP Hospital, Inc.26 rejected such an analysis. It found the mother to be a "direct victim" of the physician's malpractice by finding that she was in more than ordinary pain before anesthesia was administered and because a cesarean section was not performed.27 Alternatively, the court held that the fetus was indeed a member of the family, that the mother was in a zone of physical danger, and that she was contemporaneously aware of the danger before she was anesthetized.28 A similar analysis was applied in Prado v. Catholic Medical Center of Brooklyn & Queens, Inc.29 The plaintiff was scheduled for a cesarean section, but the operation was delayed to take an EKG even though fetal distress was detected. The court denied recovery for any emotional distress suffered because of the resulting stillbirth, but permitted the mother to recover for her claimed fear of personal injury and death during the proce20 21 22 23 24 25

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65 N.Y.2d 9 3 1 , 483 N . E . 2 d 1142, 493 N.Y.S.2d 1010 (1985). Id. at 1143. Id. at 1148. 130 Misc. 2d 999, 498 N.Y.S.2d 256 (1986). Id. at 2 6 1 - 6 2 . 124 App. Div. 2d 692, 508 N.Y.S.2d 204 (1986). Accord Sceusa v. Mastor, 135 App. Div. 2d 117, 525 N.Y.S.2d 101, appeal dismissed, 72 N.Y.2d 909, 528 N . E . 2 d 1230, 532 N.Y.S.2d 757 (1988) (unsuccessful emergency cesarean section not a physical injury, zone of danger rule inapplicable). 127 Misc. 2d 1063, 487 N.Y.S.2d 700 (1985). Id. at 704. Id. at 706. 145 App. Div. 2d 614, 536 N.Y.S.2d 474 (1988).

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dure due to the possible destruction of her previously repaired rectocystocele. The dissent pointed out that there was no resulting physical injury to the mother and that there was really nothing present except for indirect emotional harm caused by witnessing the stillbirth.30 In Johnson v. Verrilli,31 the court went even further in allowing damages for negligent infliction of emotional distress in a stillbirth situation. The court held that, in view of New York case law that a stillborn fetus was not a person for purposes of bringing suit, the unborn fetus was a part of the mother instead. The alleged damage to the fetus therefore would constitute damage to the mother, providing the "physical injury" to the mother necessary to state a cause of action.32 The court shared the concerns of the Tebbutt dissenters that the defendants' malpractice would provide for a wrong without a remedy so long as the malpractice was sufficiently serious to cause fetal death. It found that permitting neither the fetus nor the mother a cause of action "defies common sense."33 The New York Court of Appeals distinguished its own recent decision in Tebbutt to permit recovery of damages for emotional distress in a brief opinion in Martinez v. Long Island Jewish Hillside Medical Center.™ The plaintiff mother received genetic counseling during the first trimester of her pregnancy and was incorrectly advised that the baby would be born with either microcephaly or anencephaly. This caused her to submit to an abortion despite her deep-seated belief that abortion was sinful except in a true emergency, because of the extraordinary circumstances presented. However, she learned afterwards that the advice was in error and the abortion was unnecessary. The court found that the mother was not a third person bystander as in Tebbutt, but was instead directly injured by defendant's breach of a duty which extended directly to her.35 The New York Court of Appeals expanded its "abortion exception" to the zone of danger rule in Lynch v. Bay Ridge Obstetrical & Gynecological Associates, RC.,36 where the plaintiff was given Provera by the defendant physician after he incorrectly determined she was not pregnant. She elected to abort rather than run the risk of bearing a malformed child, and 30 31 32 33

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Id. at 4 7 6 - 7 7 . 134 Misc. 2d 5 8 2 , 511 N.Y.S.2d 1008 (1987). Id. at 1011. Id. at 1010. Dr. Verrilli fared better in Bauch v. Verrilli, 146 App. Div. 2d 835, 536 N.Y.S.2d 240 (1989), where the parents' emotional distress claims were denied because there was no evidence that they suffered any physical injury from witnessing the baby's respiratory distress at birth and subsequent death. 7 0 N.Y.2d 697, 512 N.E.2d 538, 518 N.Y.S.2d 955 (1987). Id. at 539. The dissenting justice, a member of the Tebbutt majority, scornfully observed that the court was creating a new cause of action for emotional distress caused by violation of ethical principles. Id. 72 N.Y.2d 632, 532 N.E.2d 1239, 536 N.Y.S.2d 11 (1988).

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the court found her emotional distress to be compensable since her claim concerned medical advice given to her rather than injury to a fetus, as in Tebbutt.37 The dissent found fault with this analysis since existing case law would deny the plaintiff any recovery if she decided not to abort and bore either a healthy or a malformed child, thus giving the appearance of rewarding a decision to abort.38 These cases illustrate the difficulties presented to courts that are operating under a zone of physical danger rule, but that would like to be free to award damages because of what they perceive to be extraordinary facts. The Tebbutt dissenters were outraged that a bungling physician could not be held liable for damages because his malpractice was gross enough to kill the fetus rather than damage it and leave it alive. The Khan court twisted the zone of danger rule by using a "direct victim" concept, discussed below, and, for good measure, alternatively by deeming the mother to be in a zone of physical danger although there was no apparent danger to her when all that appeared in the record were reports of pain that the court somehow found to be greater than the normal pain of childbirth. The Johnson court also relied more strongly on its moral outrage than on sound legal reasoning from precedent in permitting a recovery for emotional distress. Finally, facing very difficult sets of circumstances in Martinez and Lynch, the Court of Appeals created a different rule for "direct victims" who are forced to undergo an abortion which presages an eventual erosion and abandonment of the zone of danger rule. C. The Dillon Rule of Foreseeability in California An entirely different approach to the question of when to permit claims for negligent infliction of emotional distress was taken by the California Supreme Court in Dillon v. Legg.*9 Five years earlier, the court had abandoned the impact rule in favor of a zone of physical danger rule, but nonetheless denied recovery for emotional distress to a mother, who watched her infant being run over and killed by a truck, because she was in no danger of physical harm.40 However, when the same facts were presented in Dillon, the court allowed recovery under a foreseeability analysis. The court found that the mother could recover for her reasonably foreseeable emotional distress caused by the defendant's negligent conduct toward her daughter since she met the following criteria: (1) the mother was located near the scene of the accident; (2) there was a direct emotional impact from her sensory and contemporaneous observation of the accident; 37 38 39 40

Id. at 1240-41. Id. at 1243 & n . 3 . 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968). Amaya v. Home Ice, Fuel & Supply C o . , 59 Cal. 2d 2 9 5 , 379 P.2d 5 1 3 , 29 Cal. Rptr. 33 (1963).

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(3) she was closely related to the victim; and, (4) she suffered a physical injury as a result of her emotional distress.41 The rule of foreseeability announced in Dillon has been referred to as the "percipient witness" test, meaning that it is the percipient witness' direct emotional impact that tends to establish the genuineness and seriousness of the emotional injury, thus guarding against spurious and frivolous claims. The rationale for allowing recovery is quite different from the zone of danger rule since the percipient witness need not be in danger of suffering an injury from the physical impact of defendant's negligent conduct. Thus, the rule of foreseeability announced in Dillon allows for a broader spectrum of recovery in tort for negligent infliction of emotional distress. The application of the foreseeability rule to claims for emotional distress in the malpractice field got off to a slow start in California following Dillon, but thereafter produced some startling results. As late as 1977, in Justus v. Atchison,42 two fathers who were in the delivery room and observed emergency treatment for fetuses in distress were not permitted by the supreme court to recover for their emotional distress because they failed to satisfy all the required elements set forth in Dillon. In particular, they were found not to be percipient witnesses because they learned what had gone wrong only when the physicians told them about it later. Learning of the fetal deaths from someone else instead of from their direct "sensory and contemporaneous observation" was enough to disqualify them. However, recovery was allowed in Austin v. Regents of University of California,^ decided just two years later on virtually identical facts. Under the facts of that case, the father in the delivery room testified that he felt "life" in the unborn child and then felt "death" in the mother's body. The physician refused his request to deliver the child immediately. The father therefore was found to have learned of fetal death by his own observation and not from a report by a physician, so the requirement of direct sensory and contemporaneous observation was found to be satisfied.44 More recent malpractice cases in California seemingly did away with most of the formal requirements of Dillon. In Ochoa v. Superior Court,*5 the plaintiffs mother was forced to leave a juvenile detention facility after she watched her son's condition worsen following three days of pain and illness from pneumonia. The juvenile detention authorities refused to release the son for private medical treatment, and he died shortly after she was forced to leave. The California Supreme Court found that she qualified as a "percipient witness" under Dillon despite the fact that there was no 41 42 43 44 45

Dillon, 441 P.2d at 912. 19 Cal. 3d 564, 565 P.2d 122, 139 Cal. Rptr. 97 (1977). 89 Cal. App. 3d 354, 152 Cal. Rptr. 420 (1979). Id. at 422. 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (1985).

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sudden occurrence, and she did not observe the consequences of the refusal to render medical care contemporaneously. The court held that a requirement of suddenness was arbitrary and unnecessary in a situation where there is a high degree of foreseeability of shock from an abnormal event.46 Former Chief Justice Bird, concurring, took pains to caution against a mechanical application of the requirements of Dillon, and applauded the approach of the Hawaii Supreme Court in a case where damages were awarded for emotional distress suffered when the family dog expired as a result of the defendant's veterinary malpractice completely out of the family's view, and the family learned of the occurrence through a subsequent telephone call.47 After Ochoa was decided, California appellate courts argued with each other about whether there were any bounds to the foreseeability rule. In Newton v. Kaiser Hospital,4* a baby born in 1967 developed palsy following excessive forceps traction during delivery. The parents brought suit in 1983 after allegedly learning the truth behind their physician's misrepresentations. Because of the 16-year delay in learning of the malpractice, they could hardly qualify as percipient witnesses who suffered a direct emotional impact from their sensory and contemporaneous observation of the act of malpractice. Nevertheless, the court addressed the question of whether they were "direct victims" of the malpractice. The court found that the mother was in a physician-patient relationship with the defendant obstetrician and that the foreseeability of emotional harm to her was clear and was concretely linked to the relationship. The father presented a somewhat thornier problem for the court since he was not even a patient of the defendant physician. Despite this fact, he was permitted to recover because his wife's physician-patient relationship "implicated the reproductive efforts of the couple," and thus his personal interests were directly affected by the act of malpractice.49 The court in Ramos v. Valley Vista Hospital found that Newton expanded the law of negligent infliction of emotional distress. In Ramos, the plaintiff parents allegedly discovered approximately two years after birth that their daughter's brain damage was the result of negligence in failure to properly monitor the fetus prior to birth. The court found that they clearly were not percipient bystanders under the rules set forth in Dillon and Ochoa, nor were they direct victims of misdiagnosis. The court found, 46

Id. at 7. Id. at 24-25 (citing Campbell v. Animal Quarantine Station, 63 Hawaii 557, 632 P.2d 1066 (1981), and discussing Leong v. Takasaki, 55 Hawaii 398, 520 P.2d 758 (1974); Rodrigues v. State, 52 Hawaii 156, 472 P.2d 509 (1970)). 48 184 Cal. App. 3d 386, 228 Cal. Rptr. 890 (1986). 49 Id. at 894. 50 189 Cal. App. 2d 1244, 234 Cal. Rptr. 608 (1987) (opinion withdrawn). 47

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nevertheless, that Newton had expanded the law to cover serious birth defects caused by negligence. The court held:

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[HJealth care providers engaged for prenatal treatment and childbirth owe a duty to the parents to discharge their responsibilities under the contract in a nonnegligent manner. Where the negligence of the health care provider causes injury to the child, both parents are the direct victims of that negligence and are permitted to recover from the provider for their emotional distress.51

This holding was sufficient for the Ramos court to allow the parents to state a cause of action for negligent infliction of emotional distress by doing away with any requirement for contemporaneous awareness of the negligence.52 The court in Martinez v. County of Los Angeles,^ on the other hand, found that Newton created "boundless liability" for anyone who might contract for medical care despite a lack of fright or shock at the time of the malpractice and it refused to adopt the Newton court's analysis.54 In Martinez, the baby suffered permanent neurological damage from the delivery and the parents alleged that they were "unable to live a normal life" thereafter because the needs of their brain-damaged infant would interfere with their lives. The Martinez court found that the parents qualified as neither percipient witnesses nor direct victims of an act of malpractice. It further refused to countenance what it termed an "end run" around the California Supreme Court's rejection of the theory of loss of parental consortium.55 In Hurlbut v. Sonora Community Hospital,56 perhaps the last case decided before the California Supreme Court announced its decision in Thing v. La Chusa,57 discussed below, the court returned to a fairly mechanical application of the Dillon elements. The plaintiff father first learned about fetal monitors and what they showed at the hospital at the time of delivery. He became worried when the readings started to change, although the experts differed at trial as to whether the heart rate decelerations indicated that fetal brain damage was occurring. The court found that neither mother nor father could recover for their emotional distress because the mother was unconscious during delivery and the father lacked a 51 52 53 54 55

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Id. at 610. Id. 186 Cal. App. 3d 884, 231 Cal. Rptr. 9 6 (1986). Id. at 102. Id. at 103. See also Budavari v. Barry, 176 Cal. App. 3d 849, 222 Cal. Rptr. 446 (1986) (failure to timely diagnose cancer in husband does not make wife a direct victim or a percipient witness). The Ramos court distinguished Martinez on the ground that the Ramos complaint did allege negligent care and treatment to the mother during labor and birth, while the Martinez complaint did not. Ramos, 234 Cal. Rptr. at 611 n . 4 . 207 Cal. App. 3d 388, 254 Cal. Rptr. 840 (1989). 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989).

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contemporaneous awareness that the failure to perform a cesarean section was causing injury to the infant.58

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D. The Dillon Rule in Other States The Dillon rule has been widely accepted. With the exception of the relatively few states like Illinois and New York which adhere to a zone of physical danger rule, the debate has been not whether to adopt the Dillon foreseeability analysis, but rather how strictly to apply its four-element test. One must examine the case law closely to determine how strictly or loosely the test is applied. The Dillon elements were strictly applied by the Kansas Supreme Court in Smelko v. Brinton59 to deny recovery to parents who stood just outside the operating room while their baby suffered burns from a heating pad during surgery. The court noted that even if they were standing next to the operating table, the parents would not qualify as percipient witnesses because the injury did not become apparent to them until after the surgery was completed.60 Similarly, the Massachusetts Supreme Judicial Court stressed the immediacy of the plaintiffs perceptions when it denied recovery in Miles v. Edward O. Tabor, M.D., Inc.6X The plaintiffs baby suffered asphyxia and brain damage, later causing death, because of alleged malpractice during delivery. The court affirmed a directed verdict for the physician because there was no evidence that the plaintiff mother suffered any emotional distress at the time of the negligent acts, only that she suffered distress after the baby died.62 In other states, the Dillon elements have not been applied so rigorously. In New Jersey, the California Supreme Court's analysis in Ochoa influenced the court in Polikoffv. Calabro63 to permit recovery for negligent infliction of emotional distress when strict application of the elements in Dillon would not have permitted recovery. The plaintiff parents were present when their daughter was catheterized for post-operative hyperalimentation, and they witnessed her distress when the catheter perforated the pericardial sac and introduced a cardiac tamponade, but they did not witness her death. The court found that they were nevertheless percipient enough to recover.64 58

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Hurlbut, 254 Cal. Rptr. at 845-46 (citing Justus v. Atchison, 19 Cal. 3d 564, 565 P.2d 122, 139 Cal. Rptr. 9 7 (1977)). 241 Kan. 7 6 3 , 740 P.2d 591 (1987). Id. at 5 9 8 . 387 Mass. 7 8 3 , 443 N . E . 2 d 1302 (1982). Id. at 1305. 2 0 9 N . J . Super. 110, 506 A . 2 d 1285 (1986). Id. at 1288 (citing Ochoa).

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However, recovery was not allowed by the New Jersey Supreme Court in Frame v. Kothari65 even though it endorsed the Ochoa holding. There, a child fell downstairs and slowly died from a cerebral hemorrhage when the physician misdiagnosed a viral syndrome over the phone and persisted in that diagnosis despite additional symptoms indicating a serious head injury. Nevertheless, there was a span of hours between the time of the misdiagnosis and the time when the parents knew that it was in error. After reviewing many misdiagnosis cases in New Jersey and elsewhere, the court concluded that the essential element for a recovery under the Dillon rule is direct observation by a close family member of shocking events that do not occur in daily life.66 It believed that misdiagnosis ordinarily does not involve "gruesome" or "horrifying" events that occur simultaneously with or in rapid sequence after the misdiagnosis, but rather a gradual deterioration of the patient. Therefore, the resulting emotional distress would not be severe enough to be compensable.67 The court found that Ochoa was a rare case where the misdiagnosis was accompanied contemporaneously by shocking events,68 as was the malpractice in Polikoff.m Because of the lapse of time before the plaintiffs realized that the physician's misdiagnosis had injured their child, on the other hand, the element of contemporaneous awareness was absent.70 In the Michigan case of Wargelin v. Sisters of Mercy Health Corp.,11 a stillborn baby was placed on the mother's abdomen in the delivery room immediately after delivery as if it were alive, and then it was snatched away for resuscitation as the father watched. The parents previously had noted and commented on apparent fetal distress indicated by a slowing heartbeat on the fetal monitor. The court found that this series of events presented a more extensive disturbance than normal grief or trauma from a stillbirth.72 It also found that the jury could have inferred that the child might have been saved if a specialist were present instead of an intern, even without expert testimony.73 Thus, even though the proof of underlying malpractice was tenuous, the father's emotional distress claim survived. A later Michigan case denied recovery where the court perceived that 65 66

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115 N . J . 638, 560 A.2d 675 (1989). Id. at 6 7 8 - 8 0 . The court cited its earlier decision in Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980), where the plaintiff mother was present as her son was strangled by an elevator, as an example of shocking events. Frame, 560 A.2d at 677. Id. at 679. Id. at 6 8 1 . Id. at 678. Id. at 6 8 1 . 149 Mich. App. 7 5 , 385 N.W.2d 732 (1986). Id. at 737. Id. at 738.

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events were not sudden enough. In Pate v. Children's Hospital of Michigan,14 the alleged negligence consisted of failing to diagnose pneumonia and admit the patient in a timely fashion. Although the patient suffered a dramatic cardiopulmonary arrest in her sister's arms in the emergency room when she was brought in two days later, the alleged negligent omissions were not contemporaneous enough to sustain the plaintiff sister's emotional distress claim. The court therefore distinguished both Wargelin

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and Ochoa.75

The contemporaneous perception element was construed broadly in the Texas case of City of Austin v. Davis.16 The plaintiff father joined the search for his son when he was reported missing from his room at the city hospital. The father discovered his son at the bottom of a 10-story air shaft. His perception was contemporaneous enough to satisfy the court since the father was intensely involved in the search and his presence at the time of injury was a reasonably foreseeable matter at the time that the hospital negligently failed to take sufficient precautions to keep the son in his hospital room.77 Occasionally, there need not even be an underlying tort for the foreseeability rule to permit recovery for negligent infliction of emotional distress. In the Maine decision of Rowe v. Bennett™ the defendant psychotherapist treated the plaintiff for alcoholism and later treated, befriended, and moved in with the plaintiffs lesbian lover. The Maine Supreme Judicial Court held that recovery would be permitted for the plaintiff's severe mental distress because the harm was reasonably foreseeable, even though the act of appropriating the plaintiff's former lover was not actionable.79 More recently, Maine probably relaxed the requirements for an emotional distress action more than any other state in the case of Gammon v. Osteopathic Hospital.™ The hospital gave the decedent's body and two bags of "personal effects" to a funeral home, which turned over the bags to the plaintiffs son. Upon opening one of the bags, he discovered his father's severed leg. This caused nightmares. The plaintiff later saw that the hospital had labeled the bag as a pathological specimen. The court reversed a directed verdict for the hospital, holding that no physical injury resulting from the emotional distress was necessary to guarantee that the

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158 Mich. A p p . 120, 404 N.W.2d 632 (1986). Id. at 633-34. See Frame, 560 A.2d at 680. 693 S.W.2d 31 (Tex. Civ. A p p . 1985). Id. at 34. 514 A.2d 802 (Me. 1986). Id. at 806. 534 A . 2 d 1282 (Me. 1987).

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claim was not spurious and doing away with all the "arbitrary requirements" of Dillon.*1 Instead, the court decided that general principles of foreseeability applied in the trial process would be a sufficient guaranty of a non-spurious claim. The Texas Supreme Court took a similar approach in St. Elizabeth Hospital v. Garrand?2 where a stillborn baby was buried, without consent, in an unmarked grave. The court abolished the resulting physical injury requirement of Dillon and termed the issue of whether a severe psychological injury occurred merely a "problem of proof."83 In effect, Gammon and Garrand simply ruled that the jury will decide all claims for negligent infliction of emotional distress. Other courts remain troubled by the trend towards elimination of "arbitrary requirements" to state a claim for negligent infliction of emotional distress, even where they were early adherents to the Dillon rule. The Rhode Island Supreme Court, which adopted Dillon in 1975,84 insisted on a resulting physical injury as a guaranty of the genuineness of the claim in Reilly v. United States.85 The plaintiff parents witnessed brain damage to their baby during delivery. The court was leery of the subjective nature of the proof of purely psychological injury without any physical symptomatology and did not want "to impose potentially unlimited and undeserved liability upon a defendant who is guilty of unintentional conduct."86 The Connecticut Supreme Court similarly refused to relax the standards of the Dillon rule, adopted in 1978,87 to follow the California Supreme Court's lead in Ochoa. In Maloney v. Conroy,™ the plaintiffs mother died following an allegedly negligent post-operative course of treatment that plaintiff watched from bedside day by day until death occurred. The court observed that a claim would be stated if it followed Ochoa, but it refused to do so, citing the generally recognized necessity to impose "some rather arbitrary limitations on the right of a bystander to recover for emotional distress that are not applied in other negligence actions."89 The court noted that permitting a bedside bystander like the plaintiff to recover would tend to cause hospitals to exclude visitors and to cause medical personnel to have their medical judgments influenced by having to respond to "the usually uninformed complaints of visitors."90 81 82 83 84 85 86 87 88 89 90

Id. at 1285. 730 S.W.2d 649 (Tex. 1987). Id. at 6 5 1 - 5 4 . D'Ambra v. United States, 114 R.I. 6 4 3 , 338 A.2d 524 (1975). 547 A.2d 894 (R.I. 1988). Id. at 897-98. Montinieri v. Southern New England Tele. C o . , 175 Conn. 337, 398 A.2d 1180 (1978). 208 Conn. 392, 545 A.2d 1059 (1988). Id. at 1063. Id. at 1064.

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The progeny of Dillon in California and elsewhere demonstrate the principal problem with the foreseeability analysis: it is extremely difficult, with the benefit of hindsight, to say that whatever happened was not reasonably foreseeable. While the Dillon court placed what it considered to be suitable limitations on the circumstances to provide guaranties of genuineness of distress and to ensure that the ordinary shocks of daily life would not be actionable, later California cases substantially eroded these limitations. When the foreseeability analysis has followed the California model the entire focus is on the degree of impact the event had on the plaintiff rather than on whether the defendant, as a reasonable person, would have expected physical injury to have occurred as a result of emotional distress. Thus, the debate rages as to where the line should be drawn, and why. E. The Direct Victim Rule A second branch of foreseeability analysis as applied to emotional distress claims was announced by the California Supreme Court in Molien v. Kaiser Foundation Hospitals.91 The husband of a woman who was incorrectly diagnosed as syphilitic underwent treatment for syphilis. The court ruled that he could recover for his consequent emotional distress, even though he was not a percipient witness to the misdiagnosis, since he was a "direct victim" of the malpractice. Since the marital discord and emotional distress that occurred were clearly foreseeable results of this type of malpractice, recovery would be allowed.92 Direct victim analysis was applied and expanded in the controversial NewtonM case. The California Supreme Court reaffirmed the direct victim rule in Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.94 just days before it placed significant restrictions on bystander recovery in Thing v. La Chusa,95 discussed below. Two mothers sued for their emotional distress caused when a psychotherapist molested their sons. The plaintiff mothers also were being treated by him because he was dealing with the mother-son relationship. The court found that they stated a cause of action as direct victims under Molien because the psychotherapist breached duties to them arising out of the parent-child relationships.96 The court noted in passing that the Dillon factors did not apply since they were not suing as percipient or bystander witnesses.97 The direct victim branch of foreseeability analysis offers courts a way 91 92 93 94 95 96 97

27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980). Id. at 817. 184 Cal. App. 3d 386, 228 Cal. Rptr. 890 (1986). 48 Cal. 3d 5 8 3 , 770 P.2d 278, 257 Cal. Rptr. 98 (1989). 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989). Marlene F., 770 P.2d at 282 (citing Rowe v. Bennett, 514 A.2d 802 (Me. 1986)). Marlene F., 770 P.2d at 281 n.4.

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around the obstacles to recovery that are thrown up if the elements of the Dillon rule are strictly applied. A "direct victim" does not have to be a contemporaneous, percipient witness suffering a direct and substantial shock to the nervous system from observation of harm caused to a loved one. Instead, the victim is the "direct" target of the malpractice or other negligent act and accordingly is permitted to recover for his psychological injuries. The most important feature of the direct victim rule is that the plaintiff is no longer considered merely a bystander who, perhaps fortuitously, suffers because of an injury to someone else. In Illinois, this offered an appealing way out of the strictures of the zone of physical danger rule imposed on the Illinois courts under Rickey,9* although Illinois courts are undecided whether to adopt this alternative theory of recovery." Possibly as a result of having more cases with dreadful facts presented to it, the New York Court of Appeals adopted the direct victim rule in Martinez00 and Lynch,m without giving the rule a name, even though it otherwise adheres to the zone of physical danger rule.102 Thus, one of the leading courts which rejects the foreseeability analysis of Dillon for emotional distress claims nevertheless appears to have accepted the reasoning of California's liberalizing Molien decision. New Jersey also applied a form of direct victim rule in Giardina v. Bennett.m The plaintiff parents brought a wrongful death action because of alleged malpractice that caused a stillbirth. The New Jersey Supreme Court found that the wrongful death act was not intended to cover fetal death since a fetus did not come within the statutory definition of a "per98 99

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98 Ill. 2d 546, 457 N.E.2d 1 (1983). If, for example, Poole v. Alpha Therapeutic Corp., 6 9 8 F. Supp. 1367 ( N . D . 111. 1988), were working its way through the state court system, it might change some views about the direct victim rule. T h e plaintiff wife claimed negligent infliction of emotional distress due to negligent blood screening that allowed an antihemophiliac agent given to her husband to be contaminated with HIV virus. H e r husband contracted AIDS and died, with the obvious risks presented to the plaintiff wife causing her considerable emotional distress. However, the court felt constrained by Rickey to dismiss the emotional distress claim. Id. at 1371-73. See also Poole, 6 9 6 F. Supp. 351 ( N . D . Ill. 1988). Martinez v . Long Island Jewish Hillside Medical Center, 10 N.Y.2d 6 9 7 , 592 N.E.2d 5 3 8 , 518 N.Y.S.2d 955 (1987). Lynch v. Bay Ridge Obstetrical & Gynecological A s s o c , P.C., 72 N.Y.2d 632, 532 N.E.2d 1239, 536 N.Y.S.2d 11 (1988). Direct victim analysis may have first been applied in Johnson v. State, 3 7 N.Y.2d 378, 3 3 4 N . E . 2 d 590, 372 N.Y.S.2d 638 (1975), where plaintiff was permitted to recover for the distress caused by a state hospital's mistaken report of her mother's death. See Howard v. Lecher, 42 N.Y.2d 109, 366 N . E . 2 d 6 4 , 6 5 , 397 N.Y.S.2d 363 (1977) (Johnson permitted recovery to plaintiff as subject of defendant's "direct negligence"). 111 N . J . 4 1 2 , 545 A . 2 d 139 (1988). See also Strachan v . John F. Kennedy Memorial Hosp., 109 N.J. 5 2 3 , 538 A.2d 346 (1988) (parents of brain-dead child directly affronted by failure to promptly end life support upon request).

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son" covered by the act.104 It nevertheless held, as a matter of the state's common law, that the acts of malpractice constituted a direct tort against the parents, due to the direct and foreseeable impact of the negligent acts on the family as a unit.105 Thus, they would have had a remedy for their emotional distress if they had pleaded a direct injury to themselves.106 A similar result was reached in Westcott v. Mikkelson.™7 The plaintiffs baby was asphyxiated at birth because the umbilical cord was wrapped around his neck. In reversing a summary judgment in favor of the defendants on the mother's claim for negligent infliction of emotional distress, the Wisconsin Appellate Court found that she came within an exception to Wisconsin's zone of physical danger rule for "participants" in the event. The court found that the rule was limited to barring the claims of mere "observers" of an occurrence who are endangered, and that the mother's status as an "object" of the defendants' activities made her distress actionable.108 While the court's terminology differed from that employed by the courts in California and elsewhere, the result is an exception in favor of uninjured but aggrieved "direct victims" of medical malpractice. Recent Louisiana cases have backed away from the state's continued adherence to the impact rule109 by making use of quasi-contractual principles which in effect convert third parties into direct victims of tortious conduct. In Blackwell v. Oser,m the defendant's alleged malpractice caused brain damage to the child at birth. The court of appeals found that the father's claim for emotional distress was properly dismissed pursuant to long-established case law prohibiting recovery for mental anguish caused by injury to another, even though the rationale for the rule had eroded considerably since it was announced in 1855."' However, the mother's claim fit within an exception to the rule and her recovery of damages was therefore proper. The court found that the defendant obstetrician owed an independent duty to his patient, the pregnant mother, to avoid injury to both mother and child. The defendant's breach of his independent duty to 104 105 106

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Giardina, 545 A . 2 d at 143. Id. at 141-42. Id. at 147. The court simply affirmed summary judgment for the defendant since the plaintiffs had pleaded only a wrongful death action, and did not remand with leave to amend to bring an action in their o w n right. Its discussion of the direct tort against the parents thus seems, technically, to be dictum, although the discussion takes u p several pages of the published opinion. 148 Wis. 2d 2 3 9 , 434 N.W.2d 822 (1988). Id. at 823 (citing Garrett v. City of N e w Berlin, 122 Wis. 2d 2 2 3 , 2 3 2 , 362 N.W.2d 137, 142 (1985)). See Hota v . N M E H o s p s . , I n c . , 6 9 0 F. Supp. 1539 ( E . D . L a . 1988) (parents may not recover under Louisiana law where infant fell from isolette); Mesa v. Burke, 506 S o . 2d 121 (La. A p p . ) , cert. denied, 5 0 6 S o . 2 d 1226 (La. 1987) (no recovery where mother saw daughter injured in accident). Louisiana abandoned the impact rule in LeJeune v. Rayne Branch H o s p . , 5 5 6 So.2d 5 5 9 (La. 1990). 436 So. 2d 1293 (La. App.), cert denied, 442 So. 2d 453 (La. 1983). Id. at 1294 (citing Black v. Carrollton R.R., 10 La. Ann. 33 (1855)).

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the mother provided a basis for her claim even in the absence of any physical danger to her.112 The holding in Blackwell was based in part on a discussion of Dillon and its foreseeability rules. This provided an opening for the court in Skorlich v. East Jefferson General Hospital"3 to extend the obstetrician's duty to the father as well. While the mother had contracted for the physician's services, the court found that the "object of the undertaking" was to deal with a pregnancy "created by the joint efforts of the father and mother,""4 a holding which is remarkably similar to the result in Newton in California. The child's birth injury thus breached an independent duty owed to the father as well as the duty owed to the mother, so both were permitted to recover for their emotional distress. The same result was reached in Bishop v. Callais,"5 where both parents were permitted to maintain emotional distress claims resulting from sexual abuse of their son at a psychiatric hospital. Even where the courts have rejected foreseeability analysis in addressing claims for negligent infliction of emotional distress, the direct victim rule has offered an appealing alternative which is often successful in persuading courts to create exceptions that permit plaintiffs to recover. New formulations of the direct victim rule will undoubtedly continue to arise as more emotional distress claims are presented to the courts. F. The California Counter-Revolution In 1988 and 1989, the California Supreme Court put an end to 20 years of experimentation and disagreement in the lower courts under the Dillon rule by placing tight restrictions on who may recover and the circumstances in which they may recover for negligent infliction of emotional distress in two significant decisions. The court's majority, perhaps affected by the election returns,116 conducted a comprehensive review of the preand post-Dillon history of the tort and found that the guidelines announced by the Dillon court for evaluating matters on a case by case basis had injected substantial uncertainty in the law. The court therefore concluded that bystander recovery must be carefully limited. The court began the process of reining in emotional distress claims in 112 113 114 115 116

Blackwell, 436 So. 2d at 1299. 478 So. 2d 916 (La. App. 1985). Id. at 918. 533 So. 2d 121 (La. App. 1988), cert. denied, 536 So.2d 1214 (La. 1989). Several members of the Ochoa court, prominently including Chief Justice Bird, were not members of the Elden court. This was not the first time a personnel change affected the court's rulings. As pointed out by one dissenter in Thing, the four to three majority in favor of the zone of physical danger rule in Amaya switched to a four to three majority in favor of foreseeability analysis in Dillon when Justice Tobriner, the author of the appellate court opinion in Amaya which favored foreseeability, did not have to recuse himself. Thing, 771 P.2d at 836.

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Elden v. Sheldon.1" The plaintiff was the unmarried cohabitant of a "de facto spouse" who was killed in a car accident in which plaintiff was also injured.118 Noting criticism of the "varying degrees of flexibility" with which the Dillon guidelines had been applied to decide who qualified as a close relation of the victim,"9 the court decided against extending bystander recovery to unmarried cohabitants on grounds of public policy. The court held that granting them the same rights as married couples would inhibit the state's interest in promoting marriage.120 The courts also would bear the difficult burden of determining whether the relationship was "strong and stable" through a massive invasion of privacy.121 Finally, and probably most significantly, the court felt the need to draw a "bright line" to limit the number of persons to whom the defendant owes a duty of care.122 The Elden dissenter found this line-drawing exercise artificial and a departure from the teachings of Dillon concerning foreseeability of harm as the basis for imposing a duty on the defendant.123 He could discern no effect on the state's interest in marriage if other persons were allowed to recover for their genuine emotional distress, nor any great burden on the courts in trying claims of this nature, and he felt that the plaintiff should be the one to decide whether to waive his right of privacy.124 Although he agreed that some lines should be drawn, he would base the decisional process on undefined "functional grounds" corresponding with "real loss."125 Several months later, the court issued its decision in Thing v. La Chusan6 in an attempt to complete its line-drawing, harmonize all previous California Supreme Court decisions on the subject, and disapprove of certain lower court decisions. Thing involved a mother who did not directly witness her child being struck by a car, but rushed to the scene when called by her daughter to find her son bloody and unconscious, possibly dead. The court found this fact situation opportune for a thorough discussion of all of the policy considerations underlying Dillon and its progeny and the 117

4 6 Cal. 3d 2 6 7 , 758 P.2d 582, 250 Cal. Rptr. 254 (1988). The court noted that the plaintiffs physical injury from the accident distinguished the case from Dillon, but that the parties had framed the issues squarely on whether the plaintiff met Dillon's, requirements. Id. at 583 n . 2 . The court did not address whether the plaintiff might recover for his emotional distress under the zone of physical danger rule or the impact rule. 119 Id. at 5 8 3 - 8 5 . 120 Id. at 5 8 6 - 8 7 . 121 Id. at 5 8 7 . 122 Id. at 5 8 8 . 123 Id. at 590-91. 124 Id. at 592-93. 125 Id. at 5 9 3 . 126 4 8 Cal. 3 d 644, 7 7 1 P.2d 814, 2 5 7 C a l . Rptr. 865 (1989). 118

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announcement of "a clear rule under which liability may be determined."127 In its review of post-Dillon cases decided under the Dillon "guidelines" for determining whether a duty of care would be imposed on the defendant on the basis of reasonable foreseeability, the court concluded that the major problem was that no one could determine liability under those guidelines without bringing suit and having a court decide the question. Post-Dillon cases thus failed to define the parameters of liability for negligent infliction of emotional distress, and merely relaxed the standards case by case with little consideration for avoiding limitless liability.128 The cases indicated that a sudden occurrence and direct and contemporaneous observation of the shocking event were not always necessary prerequisites for recovery.129 Molien added the direct victim rule without explaining how to distinguish a "direct victim" from a "bystander."130 Ochoa suggested a generalized loosening of the Dillon requirements without stressing that the plaintiff directly observed a refusal to treat her son.131 The court therefore returned to the concerns voiced in Amaya v. Home Ice, Fuel & Supply Co.,m where it had abandoned the impact rule in favor of the zone of physical danger rule just five years before it handed down Dillon. The court was concerned in Amaya and later cases with "the social cost of imposing liability on a negligent tortfeasor for all foreseeable emotional distress suffered by relatives who witnessed the injury."133 The court therefore drew admittedly "arbitrary lines" in order to "limit liability and establish meaningful rules for application by litigants and lower courts"134 which turned the Dillon "guidelines" into a rule which was designed to leave no room for expansion: We conclude . . . that a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and is not an abnormal response to the circumstances.135 127

Id. at 827. The court noted that Elden was " t o o narrow" to create a "bright line" for all cases involving claims for negligent infliction of emotional distress, which the court dealt with under the somewhat disparaging acronym " N I E D . " Id. 128 Id. at 8 1 9 - 2 1 . 129 Id. at 822. 130 Id. at 822-23. 131 Id. at 824. 132 59 Cal. 2d 295, 379 P.2d 513, 29 Cal. Rptr. 33 (1963). 133 Thing, 771 P.2d at 827. 134 Id. at 828. 135 Id. at 829-30.

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The concurring and dissenting opinions in Thing illustrated a deep ideological split caused by the California Supreme Court's abrupt change of direction from Ochoa. The concurrence believed that the post-Dillon history in California demonstrated that the court was right in Amaya when it adopted a zone of physical danger rule, because the question posed in that case of where to draw the line in a principled fashion was still not answered and could not be by resort to the principles of foreseeability.m The majority's line-drawing simply produced an arbitrary result while a continued "flexible" interpretation of Dillon, desired by the dissenters, would produce only more expedient decisions and no lines at all.137 The concurrence would therefore join the states which have rejected Dillon by overruling it.138 The two dissenters,139 on the other hand, stressed the majority's arbitrariness in cutting off recovery to victims whose emotional distress was very real. They found it particularly unjust that a mother's right to recovery could be eliminated solely because she arrived at the accident scene a few moments too late.140 While they agreed that liability for negligent infliction of emotional distress should not be unlimited, they preferred an analysis of defendant's duty that depended on reviewing many factors, particularly causation.141 Taken with the contemporaneous decision of Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc.,m which reaffirmed the direct victim rule of Molien, the decisions in Elden and Thing clearly represent a conservative reaction to some of the more extreme applications of the Dillon rule which nevertheless accepts the theoretical underpinnings of Dillon without question. Since the principal problem with foreseeability analysis is where to draw the line, courts and commentators alike will be troubled by the California Supreme Court's rather schizophrenic current approach to the issues. While California's lower courts will have to limit their analysis of emotional distress claims by bystander plaintiffs to a rote application of the Dillon-Thing elements, courts elsewhere, which have traditionally looked to California for leadership, will have to struggle anew with these issues. They may well end up with or retain relaxed Dillon-type rules that are more liberal than what California jurisprudence now permits. 136 137 138

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Id. at 8 3 4 . Id. at 8 3 4 - 3 5 . T h e concurring opinion cited approvingly the leading cases which rejected Dillon in favor of a zone of physical danger rule, Rickey v. Chicago Transit Auth., 9 8 Ill. 2d 546, 4 5 7 N . E . 2 d 1 (1983), and Tobin v . Grossman, 2 4 N.Y.2d 6 0 9 , 2 4 9 N . E . 2 d 4 1 9 , 3 0 1 N.Y.S.2d 5 5 4 (1969). Curiously, the majority in Elden also cited Tobin approvingly. Elden, 7 5 8 P.2d at 5 8 7 . T h e single dissenter in Elden w a s joined by t h e author of Elden's majority opinion. Thing, 771 P.2d at 841. Id. at 842-43. 4 8 C a l . 3d 5 8 3 , 7 7 0 P.2d 2 7 8 , 2 5 7 C a l . Rptr. 98 (1989).

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II. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Intentional infliction of emotional distress, known as the tort of outrage, also has been applied in the field of malpractice. However, since most acts or omissions giving rise to claims for malpractice are not deliberate or reckless, there have been relatively few malpractice cases involving successful claims for intentional infliction of emotional distress. Most courts follow the elements set forth in section 46 of the Restatement (Second) of Torts: (1) extreme and outrageous conduct; (2) giving rise to severe emotional distress; (3) which was reckless enough for the defendant to expect that severe distress would result. A typical case allowing recovery under this rule is the Illinois case of Knierim v. Izzo.m In Knierim, the plaintiff widow was allowed to recover for her emotional distress caused when the defendant threatened to kill her husband and then carried out the threat, even though there was no physical impact on her and no threat to her personally. Knierim clearly presented an unusual and extreme set of circumstances, but it had no practical impact on Illinois malpractice litigation thereafter.144 In a pre-Rickey malpractice case where intentional infliction of emotional distress was claimed in order to avoid the restrictions of the impact rule, Neuberg v. Michael Reese Hospital & Medical Center,™5 the hospital's negligent conduct in using x-rays to treat tonsillitis, which caused thyroid problems years later, failed to meet the elements set forth in Knierim. More recently, in Hearon v. City of Chicago,m more extreme circumstances were found insufficient to state a cause of action for intentional infliction of emotional distress. The plaintiffs husband, a stabbing victim, allegedly was subjected to an unnecessary autopsy, and the plaintiff was not told of his death for four months. After she learned of the death, the body was exhumed for her to identify in a state of decomposition, allegedly causing her severe emotional distress, as did the original failure to notify her. However, the court found that no facts were alleged that went "beyond all possible bounds of decency" sufficient to support a contention that the defendants knew that severe emotional distress was substantially certain to result from their acts.147 The result was the same in Koeller v. Cook County,m another corpsemishandling case. The county medical examiner's office misidentified one of 20 victims from an apartment building fire and released the body to the 143 144 145 146 147 148

22 Ill. 2d 7 3 , 174 N.E.2d 157 (1961). See Sabin, Intentional Infliction of Mental Distress—25 6 0 Ill. App. 3 d 679, 377 N . E . 2 d 215 (1978). 157 Ill. App. 3d 6 3 3 , 510 N.E.2d 1192 (1987). Id. at 1192. 180 Ill. App. 3d 425, 535 N.E.2d 1118 (1989).

Years Later, 76 Ill. B.J. 864 (1987).

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wrong family. The mistake was discovered a year later, and the cremated remains were exhumed and returned to the proper family at that time. The court affirmed summary judgment for defendants since there was no evidence of any willful or reckless conduct. The difficulty in satisfying the requirements of section 46 of the Restatement (Second) of Torts may be an inherent problem with the theory of intentional infliction of emotional distress. Truly outrageous and reckless conduct that would otherwise be non-compensable because there was no physical impact would seem to be a rare occurrence, dependent on facts almost as unusual as those in Knierim. However, review of the few reported malpractice cases from other states where the theory of intentional infliction of emotional distress has been successful demonstrates that egregious conduct causing emotional injury can be compensable. In Johnson v. Woman's Hospital,™ a premature baby died shortly after birth. The mother learned from her physician a few weeks later that the baby was "not disposed of as a surgical specimen," and went to the hospital to find out what did happen. A helpful hospital clerk took her across the hall and pulled out a gallon jar with the baby preserved in formaldehyde. The Tennessee Appellate Court affirmed both compensatory and punitive damages for intentional infliction of emotional distress. Boes v. Deschu50 involved a woman who went to a Crisis Pregnancy Center, which advertised free pregnancy testing and abortion counseling, to find out if she was pregnant. She stated that she suffered severe depression after an abortion as a teenager and that she intended to have the baby if she was pregnant. The test was negative, but the results were withheld while she was shown an "educational" pro-life film featuring mutilated advanced stage fetuses and was sternly told that she could only expiate her earlier abortion through religion. She required emergency psychiatric help afterwards. The court found that such actions by the defendants, taken with knowledge of the plaintiffs extreme vulnerability to emotional distress by reawakening feelings of guilt, clearly presented triable issues on a claim for intentional infliction of emotional distress. In the Arizona case of Lucchesi v. Frederic N. Stimmell, M.D., Ltd.,i5i the mother began premature labor with bulging membranes when she was five and one-half months into her pregnancy. A double footling breech delivery was expected. The defendant obstetrician advised that he would assume responsibility for her care upon her transport to the perinatal department at a hospital across town. However, he failed to appear for 149

527 S.W.2d 133 (Tenn. App. 1975). 768 S.W.2d 205 (Mo. App. 1989). 151 149 Ariz. 76, 716 P.2d 1013 (1986). 150

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several hours and left only an intern and a resident on hand to handle the delivery. He advised them over the phone to rupture the membranes and begin delivery. During their efforts to deliver, the cervix closed and decapitated the head of the fetus. The head had to be extracted surgically later, and this was not revealed until the mother's referring physician examined the records some time later. Again, this was enough to support a claim for intentional infliction of emotional distress.152 Another example is the Virginia case of Modaber v. Kelly.153 The defendant physician was aware that the mother had toxemia with a previous pregnancy, and that it showed up again six months into the current pregnancy. He did not send her to the hospital until she began premature labor at seven months with life-threatening convulsions. When he was advised that the fetal monitor showed a slowing heartbeat, he failed to get out of bed to go to the hospital. He arrived after the heartbeat had stopped and then tried to get the mother to sign a consent for an elective sterilization. In the meantime, she delivered the stillborn fetus spontaneously outside the operating room without the physician being present. The plaintiffs medical expert not only found the physician's behavior "reckless, bizarre and callous," but also found that the baby could have been delivered alive with proper care.154 This was enough to support an award for intentional infliction of emotional distress. A more recent Virginia case suggests that where there is less visceral repugnance to the defendant's acts, a claim for intentional infliction of emotional distress is more difficult to win. In Ruth v. Fletcher,155 the defendant led the plaintiff to believe that the child she carried was his. He supported her during the prenatal period, went to Lamaze class, attended the delivery, provided child support voluntarily, visited the child extensively and developed a strong emotional attachment to the child. However, the defendant concealed a blood test showing that the child was not the plaintiffs until she decided to marry someone else. A judgment for the plaintiff was reversed by the Virginia Supreme Court on the ground that there was no evidence that the defendant had a deliberate intention to cause the plaintiff to believe the child was his and develop a loving relationship in order to hurt him later by taking the child away.156 Occasionally, a court may allow such a claim on facts which appear less egregious, but these cases are the exception, not the rule. In Lou v. Smith,151 for example, the defendant pharmacist multiplied the dosage of a 152 153

Id. at 1017.

232 Va. 60, 348 S.E.2d 233 (1986). 154 Id. at 235. 155 237 Va. 366, 377 S.E.2d 412 (1989). 156 Id. at 416. 157 285 Ark. 249, 685 S.W.2d 809 (1985).

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child's prescription by a factor of 10, since he thought that the prescribing physician was in error, but he failed to call the physician to verify it. The child had convulsions until this error was detected. Her mother received an award of $7,000 for both compensatory and punitive damages for intentional infliction of emotional distress, which was affirmed on appeal. A recent Illinois Supreme Court decision, McGrath v. Fahey,m which found that the plaintiff physician had stated a cause of action for intentional infliction of emotional distress, stressed a factor that may make it easier for such claims to succeed in the future. The defendants pursued a scheme to defraud the physician out of certain funds of his which they held. He informed them of his serious cardiac condition and pleaded for his money back, but the defendants refused to return it and threatened financial ruin to him and his medical practice. This caused him to suffer a heart attack. The court found this course of conduct to be sufficiently outrageous to satisfy the requirements of section 46 of the Restatement. In so holding, the court ruled that an important consideration was the degree of power or authority the defendants held over the plaintiff.159 The requirements of section 46 were met in a similar fashion in Rockhill v. Pollard.l60 The defendant physician was called to his office at night to examine an unconscious baby who was obviously in shock after an automobile accident and vomited during the examination. The physician sarcastically stated that there was nothing wrong with the child after a perfunctory examination and ordered her mother out into the cold to wait for the father to pick them up. A subsequent examination at a hospital emergency room revealed a skull fracture requiring a week's hospitalization. The court found that the plaintiff mother was "totally dependent" on the physician to diagnose and treat her baby under his professional obligations to her.161 Putting aside the melodramatic aspects of the facts in McGrath and Rockhill, the concept of abuse of a position of power or authority over the plaintiff is something that clearly can be used against defendants in medical malpractice cases. The exalted status which physicians may have in their patients' minds prior to the occurrence which forms the basis for the claimed malpractice easily can be translated by the courts into a position of substantial power and authority. Indeed, many courts refer to physicians as 158

126 Ill. 2d 78, 533 N.E.2d 806 (1989). Id. at 809-10. 160 259 Ore. 54, 485 P.2d 28 (1971). 161 Id. at 3 1 . Accord Seitz v. Humana of Ky., Inc., N o . 87-CA-2511-S, 1988 Ky. App. Lexis 164 (Nov. 4 , 1988) (nurse turned off intercom and high risk plaintiff delivered fetus into bedpan unassisted). 159

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"fiduciaries" for their patients.162 Nevertheless, the relative paucity of successful reported claims for intentional infliction of emotional distress seems to indicate that there is little opportunity for a recovery of damages except in the most extreme case. While there are opportunities for bystander recovery in the relatively rare case that satisfies the elements of the tort, the theory of negligent infliction of emotional distress presents a much greater opportunity for recovery, particularly if the courts go beyond a zone of danger test to adopt foreseeability analysis. CONCLUSION The law of emotional distress appears to be the product of two conflicting forces. On one hand, courts traditionally have been suspicious of the bona fides of claims for purely psychological injury. Such claims are easy to make and easy to exaggerate, even more than the traditional whiplash or soft tissue injury claims in a rear end collision or slip and fall case. On the other hand, it is well accepted today that severely traumatic events can cause real mental injury despite the lack of any physical impact or injury. Thus, courts want deserving plaintiffs to be compensated, but only in appropriate cases. This conflict has produced a hodgepodge of rules that appear to be quite result-oriented. Courts wishing to hold the line against spurious claims have devised intricate rules, such as the zone of physical danger test or even the original four-element test in Dillon, that would appear to bar all but the most extreme cases. When courts are later presented with shocking facts, these rules have been stretched and exceptions created. The result is a lack of predictability as the rules shift and evolve. While watching a loved one being run over usually will result in a recovery for negligent infliction of emotional distress,163 the results in typi162

See, e.g., Petrillo v. Syntex Laboratories, Inc., 148 Ill. A p p . 3d 5 8 1 , 587, 4 9 9 N . E . 2 d 952 (1986), appeal denied, 113 Ill. 2 d 584, 505 N . E . 2 d 3 6 1 , cert, denied, 4 8 3 U . S . 107 (1987); State ex rel. Stuffelbam v. Appelquist, 694 S.W.2d 882, 885 ( M o . A p p . 1985). 163 Recovery was allowed in: Keck v. Jackson, 122 Ariz. 114, 5 9 3 P.2d 6 6 8 (1979) (zone of danger); Dillon v. Legg, 68 Cal. 2 d 7 2 8 , 441 P.2d 912, 69 Cal. Rptr. 72 (1968); Champion v. Gray, 478 S o . 2d 17 (Fla. 1985); Leong v. Takasaki, 55 Hawaii 3 9 8 , 5 2 0 P.2d 758 (1978) (step-grandmother); Barnhill v . Davis, 3 0 0 N.W.2d 104 (Iowa 1981); Versland v . Caron Transp., 671 P.2d 5 8 3 (Mont. 1983); State v. Eaton, 710 P.2d 1370 (Nev. 1985); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1977); Gates v. Richardson, 719 P.2d 193 (Wyo. 1986). Recovery was denied in: Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295, 379 P.2d 513, 29 Cal. Rptr. 33 (1963) (zone of danger); Mesa v. Burke, 506 So. 2d 121 (La. App.), cert. denied, 506 So. 2d 1226 (La. 1987) (impact); Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 554 (1969) (zone of danger); Guilmette v. Alexander, 128 Vt. 116, 259 A.2d 12 (1969) (zone of danger); Cunningham v. Lockard, 48 Wash. App. 38, 736 P.2d 305 (1987) (zone of danger).

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cal medical malpractice situations are much more difficult to predict with confidence. The presence of a fetal monitor may164 or may not165 provide a father-to-be with a sufficient basis to witness fetal death directly and contemporaneously and thereby suffer compensable distress. Fetal death or injury may166 or may not167 give a mother-to-be a claim for emotional distress. The baby can be dropped on its head in its parents' presence168 or its body mangled in a hospital washing machine169 without giving them a claim, while watching its life ebb slowly away over a period of days may create a claim,170 possibly even for intentional infliction of emotional distress.171 Improper genetic counseling may give rise to large liability172 or no liability at all173 for the parents' emotional distress. The degree to which emotional distress claims are allowed presents fundamental questions of public policy to each state's highest court. Relatively conservative and defense-oriented courts in Illinois and New York have tended to expand the scope of liability cautiously, even grudgingly. 164

Wargelin v. Sisters of Mercy Health Corp., 149 Mich. App. 75, 385 N.W.2d 732 (1986). Cf. Austin v. Regents of Univ. of Cal., 89 Cal. App. 3d 354, 152 Cal. Rptr. 420 (1979) (father felt "life," then "death"). 165 Hurlbut v. Sonora C o m m . H o s p . , 2 0 7 C a l . A p p . 3 d 3 8 8 , 2 5 4 Cal. Rptr. 8 4 0 (1989). Cf. Justus v. Atchison, 19 Cal. 3d 564, 5 6 5 P.2d 122, 139 Cal. Rptr. 9 7 (1977); Vaillancourt v. Medical Center Hosp. of V t . , Inc., 139 V t . 138, 4 2 5 A . 2 d 9 2 (1980). 166 Giardina v. Bennett, 111 N . J . 412, 5 4 5 A . 2 d 139 (1988); Johnson v. Ruark Obstetrics & Gynecology Assoc., 89 N . C . A p p . 154, 365 S.E.2d 9 0 9 , rev. granted, 322 N . C . 6 0 6 , 370 S.E.2d 2 4 6 (1988); Ledford v. Martin, 87 N . C . A p p . 8 8 , 359 S.E.2d 505 (1987), rev. denied, 321 N . C . 4 7 3 , 365 S.E.2d 1 (1988). 167 Henry v. St. John's H o s p . , 159 Ill. App. 3d 716, 512 N . E . 2 d 1042 (1987); Hunt v . Chettri, 158 Ill. App. 3d 7 6 , 510 N.E.2d 1324, appeal dismissed, 515 N . E . 2 d 108 (1987); Tebbutt v. Virostek, 65 N.Y.2d 9 3 1 , 4 8 3 N . E . 2 d 1142, 4 9 3 N.Y.S.2d 1010 (1985). 168 Hota v. N M E Hosps., I n c . , 690 F. Supp. 1539 ( E . D . L a . 1988) (Louisiana law); Villamil v. Elmhurst Memorial Hosp., 175 Ill. A p p . 3d 6 6 8 , 529 N . E . 2 d 1181 (1988); Whetham v. Bismarck Hosp., 197 N.W.2d 6 7 8 (N.D. 1972). But see Hopkins v. McBane, 427 N.W.2d 85 (N.D. 1988) (overruling earlier precedents). 169 Crenshaw v. Sarasota County Public H o s p . B d . , 4 6 6 S o . 2 d 4 2 7 (Fla. A p p . 1985). T h e plaintiff mother w a s not allowed t o recover even though Florida had adopted Dillon foreseeability analysis since s h e did not see t h e baby's body. Cf. Johnson v. Woman's H o s p . , 527 S.W.2d 133 (Tenn. A p p . 1975) (intentional infliction when mother presented with baby in specimen j a r ) ; Campbell v. A n i mal Quarantine Station, 6 3 Hawaii 5 5 7 , 6 3 2 P.2d 1066 (1981) (negligent infliction for phone report of dead dog). 170 O c h o a v. Superior Court, 3 9 C a l . 3d 159, 7 0 3 P.2d 1, 2 1 6 Cal. Rptr. 661 (1985); Purty v. Kennebec Valley Medical Center, 5 5 1 A . 2 d 8 5 8 (Me. 1988); Polikoff v . Calabro, 2 0 9 N . J . Super. 110, 5 0 6 A . 2 d 1285 (1986). Contra Maloney v. Conroy, 2 0 8 Conn. 3 9 2 , 5 4 5 A . 2 d 1059 (1988); Pate v . Children's H o s p . of M i c h . , 158 M i c h . A p p . 120, 4 0 4 N . W . 2 d 632 (1986); Tackett v. Encke, 353 Pa. Super. 3 4 9 , 509 A . 2 d 1310 (1986). 171 Grimsby v . Sampson, 85 Wash. 2d 5 2 , 530 P.2d 291 (1975). 172 Gallagher v. Duke Univ., 852 F.2d 773 (4th Cir. 1988) (North Carolina law); Blake v. Cruz, 108 Idaho 2 5 3 , 698 P.2d 315 (1984). 173 Siemieniec v. Lutheran Gen. Hosp., 117 Ill. 2d 230, 512 N.E.2d 692 (1987); Goldberg v . Ruskin, 128 Ill. App. 3d 1029, 471 N.E.2d 5 3 0 (1984), aff'd on other grounds, 113 Ill. 2d 482, 4 9 9 N . E . 2 d 406 (1986); Howard v . Lecher, 4 2 N.Y.2d 109, 366 N . E . 2 d 6 4 , 397 N.Y.S.2d 363 (1977).

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Relatively liberal and plaintiff-oriented courts in California, Hawaii, Maine, Michigan, and New Jersey have tended to expand the scope of liability sweepingly, although there are occasional surprises that appear to buck the trend towards lower liability thresholds, including an apparent closing of the door in California. Clearly, the process of change from the classic impact rule to a modern rule is far from complete.

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APPENDIX

Emotional Distress Claims in Medical Malpractice Cases

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A. Jurisdictions Following the Impact Rule Georgia: Hahn v. Sterling Drug, Inc., 805 F.2d 1480 (11th Cir. 1986) (Ga. law); OB-GYN Associates of Albany, P.C. v. Littleton, 250 Ga. 663, 386 S.E.2d 146 (1989); Posey v. Medical Center-West, Inc., 184 Ga. App. 404, 361 S.E.2d 505 (1987). Indiana: Wishard Memorial Hosp. v. Logwood, 512 N.E.2d 1126 (Ind. App. 1987). B. Jurisdictions Following the Zone of Physical Danger Rule Arizona: Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979). Delaware: Robb v. Pennsylvania R.R., 58 Del. 454, 210 A.2d 709 (1965). District of Columbia: Williams v. Baker, 540 A.2d 449 (D.C. App. 1988); Asuncion v. Columbia Hosp. for Women, 514 A.2d 1187 (D.C. App. 1986). Illinois: Siemieniec v. Lutheran Gen. Hosp., 117 111. 2d 230, 512 N.E.2d 692 (1987); Rickey v. Chicago Transit Auth., 98 111. 2d 546, 457 N.E.2d 1 (1983). Minnesota: Stadler v. Cross, 295 N.W.2d 552 (Minn. 1980). New York: Tebbutt v. Virostek, 65 N.Y.2d 931, 483 N.E.2d 1142, 493 N.Y.S.2d 1010 (1985); Howard v. Lecher, 42 N.Y.2d 109, 366 N.E.2d 64, 397 N.Y.S.2d 363 (1977). Tennessee: Shelton v. Russell Pipe & Foundry Co., 570 S.W.2d 861 (Tenn. 1978). Vermont: Vaillancourt v. Medical Center Hosp. of Vt., Inc., 139 Vt. 138, 425 A.2d 92 (1980). Wisconsin: Garrett v. City of New Berlin, 122 Wis. 2d 223, 362 N.W.2d 137 (1985). C. Jurisdictions Following the Dillon Rule of Foreseeability California: Thing v. La Chusa, 48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989); Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968). Colorado: Towns v. Anderson, 195 Colo. 517, 579 P.2d 1163 (1978). Connecticut: Maloney v. Conroy, 208 Conn. 392, 545 A.2d 1059 (1988); Montinieri v. Southern New England Tele. Co., 175 Conn. 337, 398 A.2d 1180(1978). Florida: Champion v. Gray, 478 So. 2d 17 (Fla. 1985). Idaho: Blake v. Cruz, 108 Idaho 253, 698 P.2d 315 (1984).

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Iowa: Morgan v. Olds, 417 N.W.2d 232 (Iowa App. 1987); Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981). Kansas: Smelko v. Brinton, 241 Kan. 763, 740 P.2d 591 (1987). Louisiana: LeJeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990). Massachusetts: Stockdale v. Bird & Son, Inc., 399 Mass. 249, 503 N.E.2d 951 (1987); Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 443 N.E.2d 1302 (1982); Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982). Michigan: May v. William Beaumont Hosp., 448 N.W.2d 497 (Mich. App. 1989); Pate v. Children's Hosp. of Mich., 158 Mich. App. 120, 404 N.W.2d 632 (1986); Wargelin v. Sisters of Mercy Health Corp., 149 Mich. App. 75, 385 N.W.2d 732 (1986). Missouri: Asaro v. Cardinal Glennon Memorial Hosp., No. 56454, 1990 Mo. App. Lexis 70 (Feb. 13, 1990); Shelton v. St. Anthony's Medical Center, 781 S.W.2d 48 (Mo. 1989); Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983). Nebraska: James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985). Nevada: State v. Eaton, 710 P.2d 1370 (Nev. 1985). New Hampshire: Nutter v. Frisbie Memorial Hosp., 124 N.H. 791, 447 A.2d 584 (1984); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979). New Jersey: Frame v. Kothari, 115 N.J. 638, 560 A.2d 675 (1989); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980). New Mexico: Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983). North Carolina: Gallagher v. Duke Univ., 852 F.2d 773 (4th Cir. 1988) (N.C. law); Johnson v. Ruark Obstetrics & Gynecology Assoc, 89 N.C. App. 154, 365 S.E.2d 909, rev. granted, 322 N.C. 606, 370 S.E.2d 246 (1988); Ledford v. Martin, 87 N.C. App. 88, 359 S.E.2d 505, rev. denied, 321 N.C. 473, 365 S.E.2d 1 (1987). North Dakota: Hopkins v. McBane, 427 N.W.2d 85 (N.D. 1988). Pennsylvania: Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Rhode Island: Reilly v. United States, 547 A.2d 894 (R.I. 1988); D'Ambra v. United States, 114 R.I. 643, 338 A.2d 524 (1975). South Carolina: Kinard v. Augusta Sash & Door Co., 286 S.C. 579, 336 S.E.2d 465 (1985). Wyoming: Gates v. Richardson, 719 P.2d 193 (Wyo. 1986). D. Jurisdictions Following a Relaxed Foreseeability Rule Alabama: Taylor v. Baptist Medical Center, Inc., 400 So. 2d 369 (Ala. 1981).

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Alaska: Tommy's Elbow Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986). California: Ochoa v. Superior Court, 39 Cal. 3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (1985); Newton v. Kaiser Hosp., 184 Cal. App. 3d 386, 228 Cal. Rptr. 890 (1986). Hawaii: Campbell v. Animal Quarantine Station, 63 Hawaii 557, 632 P.2d 1066 (1981); Leong v. Takasaki, 55 Hawaii 398, 520 P.2d 758 (1974); Rodrigues v. State, 52 Hawaii 156, 472 P.2d 509 (1970). Maine: Purty v. Kennebec Valley Medical Center, 551 A.2d 858 (Me. 1988); Gammon v. Osteopathic Hosp., 534 A.2d 1282 (Me. 1987); Rowe v. Bennett, 514 A.2d 802 (Me. 1986). Montana: Versland v. Caron Transp., 671 P.2d 583 (Mont. 1983). New Jersey: Polikoff v. Calabro, 209 N.J. Super. 110, 506 A.2d 1285 (1986). Ohio: Paugh v. Hanks, 6 Ohio St. 3d 72, 451 N.E.2d 759 (1983). Texas: St. Elizabeth Hosp. v. Garrand, 730 S.W.2d 649 (Tex. 1987); City of Austin v. Davis, 693 S.W.2d 31 (Tex. Civ. App. 1985). E. Jurisdictions Following the Direct Victim Rule California: Molien v. Kaiser Foundation Hosps., 27 Cal. 3d 916, 616 P.2d 813, 167 Cal. Rptr. 831 (1980). Louisiana: Bishop v. Callais, 533 So. 2d 121 (La. App. 1988), cert, denied, 536 So. 2d 1214 (La. 1989); Skorlich v. East Jefferson Gen. Hosp., 478 So. 2d 116 (La. App. 1985); Blackwell v. Oser, 436 So. 2d 1293 (La. App.), cert, denied, 442 So. 2d 453 (La. 1983). New Jersey: Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988); Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 538 A.2d 346 (1988). New York: Lynch v. Bay Ridge Obstetrical & Gynecological Assoc, P.C., 72 N.Y.2d 632, 532 N.E.2d 1239, 536 N.Y.S.2d 11 (1988); Martinez v. Long Island Jewish Hillside Medical Center, 70 N.Y.2d 697, 512 N.E.2d 538, 518 N.Y.S.2d 985 (1987). Wisconsin: Westcott v. Mikkelson, 148 Wis. 2d 239, 434 N.W.2d 822 (1988). F. Jurisdictions Allowing Recovery for Intentional Infliction of Emotional Distress Arizona: Lucchesi v. Frederick N. Stimmell, M.D., Ltd., 149 Ariz. 76, 716 P.2d 1013 (1986). Arkansas: Lou v. Smith, 285 Ark. 249, 685 S.W.2d 809 (1985). Kentucky: Seitz v. Humana of Ky., Inc., No. 87-CA-2511-S, 1988 Ky. App. Lexis 164 (Nov. 4, 1988). Missouri: Boes v. Deschu, 768 S.W.2d 205 (Mo. App. 1989).

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Oregon: Rockhill v. Pollard, 290 Ore. 54, 485 P.2d 28 (1971). Tennessee: Johnson v. Woman's Hosp., 527 S.W.2d 133 (Tenn. App. 1975). Virginia: Modaber v. Kelly, 232 Va. 60, 348 S.E.2d 233 (1986). Washington: Grimsby v. Sampson, 85 Wash. 2d 52, 530 P.2d 291 (1975).

Emotional distress claims in medical malpractice cases.

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