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.”
Does this mean she would have not had any distress if she had known the child had significant defects!
I guess this means if the patient missunderstand what a doctor says they can sue the doctor for failure to completely clarify a condition.
One question is this judge a relative of this countries president???
This is the reason I moved from Pennsylvania to practice in another state, after 6500 physicians had already left Pennsylvania. It is also the reason that the local trauma unit at Brandywine Hospital had closed, due to lack of local neurosurgeons who had all evacuated the state. Who will the lawyers sue when there are no doctors left in PA? When will the local population realize there is no one left to provide them with medical care?
Does this now mean that physicians can sue plaintiffs and there council after the plaintiff loses a malpractice case for the same emotional injury?
If someone lost the body of my dead child, I’d sue them too.