Tuesday, February 15, 2011

Validity of a Type of Negligent Infliction of Emotional Distress Claims in Medical Malpractice Matters Called Into Question

An ongoing issue generating some conflicting decisions in the trial courts across the Commonwealth of Pennsylvania in medical malpractice cases concerns the ability of family members to pursue a claim for negligent infliction of emotional distress on the grounds that they had to witness the deterioration and eventual demise of their loves one allegedly as a result of the negligence of a medical provider.

Under the general bystander theory of negligent infliction of emotional distress, the required elements of proof mandate that the claimant (1) must have been at the scene of the incident, (2) must have suffered from a sensory and contemporaneous observance of negligent acts or omissions, and (3) that the claimant must have been closely related to the victim of the negligence.

My partner, Timothy E. Foley, Esquire and myself, along with a number of other defense counsel, were successful in having a demurrer sustained against such a claim in the recent Lackawanna County Court of Common Pleas decision of McHale vs. Community Medical Center, et.al., 2010-Civil-3496 (Lacka. Co. January 7, 2011, Thomson, S.J.).

Before I get into that case, here is some background on the issue presented.

Medical malpractice defendants have challenged these types of negligent infliction of emotion distress claims on several grounds, including by arguing that the slow demise of the decedent prevents a finding of any shocking event necessary to support the claim for negligent infliction of emotional distress. Another argument is that lay people are not able to recognize a professional misjudgment or omission by a doctor to support a showing of a sensory and contemporaneous observance of negligent acts or omissions and a resultant jolting shock to one's mental status or emotional well-being.

Several trial court decisions out of Northeastern Pennsylvania over the past year have evidenced a differing opinion by judges as to the validity of this type of a claim.

Back in April of 2010, Judge Carmen Minora of the Lackawanna County Court of Common Pleas squarely addressed the issue in Ward v. Moses Taylor Hospital, 2010 WL 4357308 (Lacka. Co. 2010 Minora, J.). In Ward, the plaintiff-husband entered the hospital to treat for a partial paralysis condition and, allegedly as a result of negligent treatment, ended up a quadriplegic. The plaintiff's wife asserted a bystander claim for negligent infliction of emotional distress in the Complaint.

Judge Minora was constrained to deny the defendant's preliminary objections to the negligent infliction of emotional distress claim. The court found that plaintiff sufficiently pled her cause of action in accordance with the appellate case law existing at the time.

The court noted that, under a literal application of the elements of this cause of action, a plaintiff would be required to observe that the acts or omissions by the medical providers constituted medical malpractice, realize the medical impact of such negligence on the victim, and suffer emotional shock contemporaneously with that realization. In this regard, Judge Minora pointed to Halliday v. Beltz, 356 Pa. Super. 375, 514 A.2d 906 (1986) and Tackett v. Encke, 353 Pa. Super. 349, 509 A.2d 1310 (1986) as support.

Although Judge Minora noted that an understanding the medical significance of alleged negligent medical acts or omissions required a level of medical knowledge and expertise beyond that possessed by a typical layperson, because the case law did not require such an understanding by the lay person plaintiff, the court was "mandated to suspend [its] common sense" and overrule the Defendants' preliminary objections in the form of a demurrer.

A similar decision was handed down in October of 2010 by Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas in the case of Prushinski et al v. Quilo et al., No. 11704 - Civil - 2009 (Luz. Co., Oct. 12, 2010, Cosgrove, J.).

In Prushinski, the decedent was brought to the hospital for treatment of a condition and eventually died nine days thereafter allegedly as a result of medical negligence. Family members pled negligent infliction of emotional distress claims in the Complaint.

Citing Weaver v. Univ. of Pittsburgh Medical Center, 2008 WL 2942139 (W.D.Pa. 2008), Judge Cosgrove allowed the claim to proceed as the plaintiffs had alleged that they were close family members, had been in the presence of the decedent during his treatment and witnessed his demise, all resulting in emotional injuries.

Judge Cosgrove also ruled that, contrary to the defense contentions, "Plaintiffs need not have recognized at the time of [the decedent's] treatment that Decedent was being subjected to Defendants' negligence."

As noted above, last month, a contrary result was secured by my partner, Timothy E. Foley, Esquire and I, along with the other defense counsel in the McHale case out of Lackawanna County.

In his Order, visiting Senior Judge Harold A. Thomson, Jr., ruled that the Plaintiff’s claims for negligent infliction of emotional distress were “[s]tricken based upon [the Plaintiff’s] failure to state a viable claim under Pennsylvania law."

In this regard, the Court cited to Halliday v. Beltz, 514 A.2d 906 (Pa. Super. 1986). In Halliday, the Pennsylvania Superior Court held that a decedent's husband and daughter who brought medical malpractice action alleging negligent infliction of emotional distress did not meet the personal observation requirements of this cause of action where they never actually viewed any of the allegedly negligent surgery or postoperative emergency remedial measures employed thereafter, though they were present in hospital while procedures were performed.

Anyone desiring a copy of the Order issued in the Ward case or my Brief (to assist in research efforts) may contact me at dancummins@comcast.net

I also have a copy of Judge Cosgrove's decision in the Prushinski case if you need it. Judge Minora's decision in Ward is posted on Westlaw but if you do not have access to that I can get you a copy of that Opinion as well.

NOTE: Past results secured by my firm or I are no guarantee of future results and each case must be handled on its own merits.

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