Sunday, January 1, 2012

Pennsylvania Supreme Court Splits On Extension of Tort of Negligent Infliction of Emotional Distress

The recent December 22, 2011 split decision by the Pennsylvania Supreme Court in the long-anticipated Opinion in the case of Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. not participating) serves to fuel an argument in favor of the extension of the tort of negligent infliction of emotional distress (NIED).

According to previous precedent on this issue, the courts initially required the tortfeasor to impact the victim physically to justify recovery for NIED (“impact rule”). Thereafter, the requirements to state a NIED claim expanded to allow the victim to be in close proximity of physical impact (“zone of impact liability”).  The tort was then further extended to permit recovery if the victim personally witnessed a tortfeasor physically impact a close relative (“bystander liability”).

The above rules constitute three distinct variations of NIED claims.  Now, with Toney v. Chester County Hospital, comes a fourth variation.

In Toney, the Court granted an appeal  to consider whether a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a “negligent breach of a contractual or fiduciary duty,” absent physical impact or injury.

The Toney case involved a medical malpractice claim in which the Plaintiff alleged that her medical providers had read an ultrasound during the Plaintiff's pregnancy as being normal.  Unfortunately, the Plaintiff's child was later born with several profound abnormalities.  The Plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities.

The defendants filed preliminary objections in the nature of a demurrer (motion to dismiss) to the Plaintiff's claim for NIED, arguing that the Plaintiff had failed to state a legally cognizable claim upon which relief could be granted.  The issue was then litigated all the way up to the Pennsylvania Supreme Court (the trial court dismissed the Complaint;  the Superior Court reversed the trial court).

After a detailed review of the development of the tort of NIED under Pennsylvania law and in other jurisdictions, the Pennsylvania Supreme Court concluded that it was "appropriate to extend liability for the infliction of emotional distress to a limited species of cases."

More specifically, the Court held "that NIED is not available in garden-variety 'breach of contractual or fiduciary duty' cases, but only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress."

In his Opinion in support of affirmance, Justice Baer also wrote that he (and the two Justices who joined his opinion) "would hold that if an actor has a particular contractual or fiduciary relationship with a victim and it is foreseeable that the actor's carelessness could cause severe emotional harm to the victim, and that harm occurs, a cognizable tort arises which is, in short-form, referred to as a breach of a 'contractual or fiduciary duty' not to inflict foreseeable emotional distress upon a victim."

The Justices in favor of affirmance further concluded that "recovery for NIED claims does not require a physical impact."

Accordingly, the Justices in support of affirmance noted that they would affirm the result of the Superior Court's decision, which reversed the trial court's order sustaining the defendants' preliminary objections and dismissing the plaintiff's complaint with prejudice.  As noted above, three Justices ruled in favor of a reversal, leading to a 3-3 split with Justice Orie Melvin not participating.

That renders this Supreme Court decision a plurality opinion which serves to affirm the Superior Court's decision to recognize the extension of the tort of negligent infliction of emotional distress.

The Justices in favor of a reversal of the Superior Court's decision to allow for an extension of the tort primarily relied upon a public policy rationale in the context of exposing medical providers with yet another potential liability risk in the "complex and risk-laden" medical malpractice arena.

To read the Opinion in support of affirmance written by Justice Baer and joined by Justice Todd and Justice McCaffery click here and here.

To read Justice Todd's concurring Opinion in support of affirmance, click here.

To read Chief Justice Castille's Opinion in support of reversal, click here.

To read Justice Saylor's Opinion in support of reversal, joined by Justice Eakin, click here.

I send thanks to James Beck, Esq. of the Philadelphia office of Dechert LLP and one of the founders and writers of the excellent Drug and Device Law Blog for bringing this case to my attention.

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