The Supreme Court of Pennsylvania opened the door to allowing patients to sue for negligent infliction of emotional distress. No physical injury needs to accompany the claim.
Here’s the background. In March, 2003 (yes, 9 years ago), Jeanelle Toney was pregnant and had a pelvic ultrasound. She was assured the results were normal and no fetal abnormalities were identified.
In July, 2003, Toney delivered a boy with significant abnormalities – including partial arms and legs. Toney sued the radiologist who read the scan for negligent infliction of emotional distress. The lawsuit alleged the radiologist had not prepared her for the inevitable shock of witnessing the birth. The experience left her with ongoing grief, rage, nightmares, insomnia, etc. Of note, the suit did not include any medical negligence claim. A typical medical negligence claim must assert physical damages.
A lower court dismissed the lawsuit. It was reversed on appeal. And the Supreme Court of Pennsylvania agreed in December, 2011 that the mother could indeed sue for emotional distress only.
Typically, there are only two ways one can sue for emotional distress without any physical injury. One is the plaintiff is in a zone of potential injury when a defendant is negligent– for example a car swerves at the last second avoiding any physical damage. But, the patient was within milliseconds of death or injury. Next, is if a plaintiff witnesses a negligent event on a family member – such as a surgeon negligently operating on a relative. Both of these scenarios are uncommon.
Texas allowed a similar claim to progress for emotional distress absent any physical injury. There, Harris County medical Examiner’s Office lost a baby’s body during an autopsy. New York, New Jersey, and Wyoming have also allowed for recovery based on emotional injury alone.
The radiologist’s defense attorney concluded:
The impact is: Not only are doctors going to get sued [by patients], but family members who are surprised by a loved one’s condition are going to sue. It’s expanding who can sue over these things.”