Question: Mary visited her twin sister, Cecilia, in the hospital where she had recently undergone brain surgery. During the visit and in full view of Mary, Cecilia developed status epilepticus after a nurse erroneously gave her Dilaudid instead of Dilantin. Mary was petrified by the incident and developed insomnia, nightmares, and depression, which required psychiatric treatment. Which of the following choices is best?
A. Mary can sue for negligent infliction of emotional distress.
B. Mary can sue irrespective of whether she is a close family member.
C. Mary can sue even if she had learned of the events via telephone, so long as she can prove she suffered diagnosable mental distress as a result.
D. A and B are correct.
E. All are correct.
Answer: A. Negligent infliction of emotional distress (NIED) is a tort in which the plaintiff, usually a bystander, develops significant emotional distress after observing shocking injuries to a primary victim. For a NIED lawsuit to be successful, courts insist that the bystander-claimant meet rather strict criteria, which include being a close relative and having directly observed the injuries contemporaneously with the tortious conduct. New York, for example, permits only spouses and immediate family members to sue.
At common law, there was no recovery for NIED, the rationale being that psychiatric complaints are often minor and transient, and symptoms are susceptible to falsification or magnification. Furthermore, it was feared that such recovery will open the floodgates to litigation, with claims being filed by assorted victims for alleged mental distress brought about by property damage and work stress.
However, over the past 50 years, NIED has emerged as a specific compensable tort. Bystanders, so-called “secondary victims,” can file lawsuits when they suffer mental harm as a result of having observed the primary victim’s injuries, but who were themselves not the direct object of the tortfeasor’s negligence.
Courts may require the plaintiff to sustain some physical injury in addition to mental anguish, to have experienced an “impact,” or to be in the “zone of danger.” These limitations have sometimes proved awkward in practice. For example, Georgia was once asked to decide whether the requirement of impact was satisfied where a circus horse evacuated his bowels onto the plaintiff’s lap. (It answered in the affirmative!) The impact rule has since been abandoned in most jurisdictions, although Illinois continues to require the plaintiff to establish a concomitant physical injury or impact in malpractice cases. It also has ruled that expert testimony was unnecessary to prove the element of emotional distress where an obstetrician allegedly did not arrive for more than an hour and the baby died with its head stuck in the birth canal.
Many jurisdictions have adopted a variant of the so-called California or Dillon test, which focuses on bystander foreseeability and satisfying three “proximities”: 1) physical proximity, that is, the bystander is located at the scene; 2) temporal proximity, that is, personally observes the accident; and 3) relational proximity, denoting the bystander’s close relationship to the primary victim. These criteria stemmed from the seminal California decision of Dillon v. Legg, where a mother witnessed the tragic death of her infant daughter at the scene of a traffic accident, and then experienced severe emotional distress thereafter. At no time did the mother sustain an impact, nor was she in any zone of danger. California has subsequently imposed the additional requirement that the claimant must be contemporaneously present at the event scene and aware of the resulting harm.
NIED is best understood as a duty inquiry, that is, when the tortfeasor owes a duty to someone other than the primary injured victim. Absent a finding of duty, the plaintiff’s cause of action will fail. This explains the court’s findings in a malpractice case where a mother was successful in her suit against an obstetrician after her baby sustained anoxic encephalopathy during delivery. The court chose to characterize her as a direct victim rather than a bystander, to whom a duty of care was already owed as part of the doctor-patient relationship. This nullified the defendant’s argument that she did not contemporaneously observe the baby’s injury, a requisite element under California law.
In the medical setting, whether a duty exists is also linked to the relationship of the bystander to the patient. This became an issue in a New Jersey case of negligent medical care and wrongful death. The patient died of complicating infections after a long hospital stay. The plaintiff, engaged but unmarried to the decedent, advanced a bystander claim for NIED, asserting that he shared an intimate familial relationship. The court ruled against him, holding that his relationship with the decedent patient failed to meet the “marital or intimate familial relationship” requirement. Furthermore, for liability, the plaintiff must have contemporaneously observed the act of malpractice and its fatal effect on the patient, which the court decided he did not. The court referenced its earlier holding that a misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite for recovery.