Judge Nealon of Lackawanna County Allows Bystander Theory NIED Claim to Stand in Medical Malpractice Case

In his recent January 11, 2012 decision in the case of Mellor v. O’Brien and Moses Taylor Hospital, et. al., No. 2011-CV-5741 (C.P. Lacka. Co. Jan. 11, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied Preliminary Objections filed by medical malpractice Defendants seeking to dismiss Plaintiff’s claims for negligent infliction of emotional distress [NIED] and punitive damages.

According to the Opinion, this medical malpractice action arises out of the treatment of the Plaintiff's infant who passed away 45 days following her birth.

Among other claims in her Complaint, the Plaintiff alleged that she personally observed the Defendants’ alleged negligent failure to treat her child in the emergency room, watched her child suffer there and at home, and witnessed the child’s death at the Defendant hospital. Based on these allegations, the Plaintiff asserted a claim for negligent infliction of emotional distress under the bystander theory.

The Defendants challenged the legal sufficiency of the negligent infliction of emotional distress claim on the grounds that the Plaintiff only alleged negligent inaction on their part, rather than a contemporaneous observance of a discrete traumatic event. The Defendants also argued that the lay person Plaintiff additionally failed to allege any contemporaneous understanding that the medical care provided was allegedly negligent.

After reviewing the applicable law on this issue, Judge Nealon ruled that the Plaintiff had indeed stated a cognizable claim for negligent infliction of emotional distress even though the alleged negligence involved acts of omission and even though the Plaintiff may not have realized that the treatment at issue allegedly deviated from the applicable standard of care.

With regards to the Defendants’ demurrer to the Plaintiff’s punitive damages claims, it was the Defendants’ contention that the Plaintiff did not allege sufficient facts demonstrating reckless conduct by the healthcare providers.

Judge Nealon applied the allegations in the Complaint against the applicable law. The Court ruled that, although recent Superior Court precedent in Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009) appeal denied, 989 A.2d 914 (Pa. 2010), suggested that recklessness may be averred generally under Pa. R.C.P. 1019(b) could have supported a denial of the demurrers, the Court in this case of Mellor also found that the Plaintiff did allege specific facts indicating allegedly recklessly indifferent conduct by the healthcare providers as well as with respect to the hospital’s alleged vicarious liability for such alleged recklessness pursuant to 40 Pa. C.S. §1303.505(a)(c) [The Medical Care Availability and Reduction of Error Act (MCare Act)].

Accordingly, the Court overruled the demurrers to the Plaintiff’s claim for negligent infliction of emotional distress and punitive damages.

Anyone desiring a copy of this Opinion may click here.
To view more Tort Talk posts on recent cases concerning the cause of action for negligent infliction of emotional distress, click here.