Thursday, June 4, 2009

Pennsylvania Supreme Court Agrees to Address Negligent Infliction of Emotional Distress Issues

In what some commentators are touting as the first time in twenty (20) years that the Pennsylvania Supreme Court will addressed the issue of negligent infliction of emotional distress and the physical injury requirement, the Court granted allocatur yesterday on the following question in the case of Toney v. Chester County Hospital, No. 813 MAL 2008 (June 3, 2009):

"Whether the Superior Court erred in finding a cause of action for negligent infliction of emotional distress exists where emotional distress results from the negligent breach of a contractual or fiduciary duty, absent a physical impact or injury."

According to the Superior Court opinion in Toney, 961 A.2d 192 (Pa.Super. 2008), the case involves a mother, who gave birth to a son with profound physical deformities, including but not limited to, the child not having any arms below his elbow or legs below his knees, after the mother had been previously told that a pelvic ultrasound revealed no fetal abnormalities. The Plaintiff-mother was awake and coherent during the delivery and was immediately horrified and shocked when she saw the totally unexpected and severe abnormalities of her baby as he was born.

The mother brought professional negligence action against the doctor who the performed and read pelvic ultrasound examination, the hospital where doctor was on staff, a radiological services provider, and the university where doctor was a faculty member.

The Court of Common Pleas, Chester County, No. 05-05122, Cody, J., entered an order sustaining preliminary objections for failure to state a cause of action on behalf of all defendants, except radiological services provider. On appeal, the Superior Court affirmed in part and reversed in part essentially holding that the mother stated a claim for negligent infliction of emotional distress but not intentional infliction of emotional distress.

A key issue in the case, that the Supreme Court will apparently address, is whether a physical impact is necessary to support a claim of negligent infliction of emotional distress particularly where, as here, it is based upon a theory of a breach of a fiduciary duty, i.e. the agreed upon duty of the defendants to provide medical care to the Plaintiff.

In addition to arguing that a physical impact is not necessary, the Plaintiff-mother is also asserting on appeal that the requirement of a physical manifestation, or injury, from the emotional distress can be satisfied under a claim of negligent infliction of emotional distress by pleading grief, rage, hysteria, nervousness, sleeplessness, insomnia, nightmares, flashbacks, depression, humiliation, headaches, nausea, etc.

The Superior Court in Toney held that, with a negligent infliction of emotional distress claim in a case based upon an alleged breach of a fiduciary duty, i.e. a professional negligence case, a physical impact to the plaintiff is not required and the allegations noted above with respect to a physical injury or manifestation of the emotional distress were sufficient.

It remains to be seen how the Pennsylvania Supreme Court will come down on these important issues. Either way, the Court's decision will have a significant impact on medical malpractice cases in Pennsylvania.

I again thank James Beck, Esquire for tipping me off on this development in the law. Attorney Beck is affiliated with the Philadelphia office of the Dechert, LLP law firm and is the co-writer of an excellent legal blog entitled Drug and Device Law found at

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