Unfortunately, there are numerous circumstances in which psychological injury can occur in medical contexts. For example, fear of HIV infection as a form of phobia or psychological injury has been compensated in our courts. In 1997 an Illinois appellate panel determined that a cause of action for negligent infliction of mental distress[1] was recognized for physician’s failure to disclose the fact that he had been infected with human immunodeficiency virus (HIV) to a patient when seeking patient’s consent to perform an invasive medical procedure. The panel reasoned that even where there is no allegation of actual HIV transmission during course of the procedure, the lack of informed consent and the resulting anxiety in the patient was compensatable.[2]
In the context of psychiatric treatment, a California court discussed the psychological injury to a mentally impaired and chronically schizophrenic girl in Adams v Murakami. [3] In this case, the defendant physician treated the plaintiff, in a locked psychiatric unit over a span of many months. The unit had both male and female patients with free access to each other. The hospital permitted consensual sexual relations between patients and the staff knew that such activity was common. The defendant prescribed birth control for some of his patients, but not to plaintiff despite her requests.[4] The court also found that the defendant made only monthly visits to see his patients, and he did not make examinations of his patients on those visits. The defendant also ignored the plaintiff’s symptoms of pregnancy until the plaintiff was in her seventeenth week of pregnancy. He then ordered an abortion, which was blocked by the plaintiff’s brother-in-law. The defendant did not take the plaintiff off of the psychotropic medications she was receiving, and did not inform her that they were contraindicated for pregnancy. A son was born who was severely retarded and autistic. The plaintiff experienced two acute psychotic breaks within a year of the birth. The court held that the defendant’s conduct was sufficiently outrageous to sustain substantial awards of both compensatory and punitive damages.[5]
At PsychLaw.net we find that even the practice of radiology can bring about psychological injury. In Curtis v MRI Imaging Services II, [6] an Oregon court determined that a patient who sustained permanent psychic injures as result of MRI procedure stated viable claim for negligent infliction of emotional distress. The patient did not allege any physical injury but was harmed when the professionals failed to warn him of the claustrophobic effects of an MRI. This was particularly important because the defendant professionals also failed to learn beforehand of the patients’ asthma, and failed to stop the MRI procedure when he reported fear and trouble breathing.
In addition, numerous courts have sustained psychological injury claims when treatment was being delivered to others. In Love v Cramer [7] a Pennsylvania court determined that the daughter of a woman whose death from a heart attack was caused by doctor’s negligence, had alleged sufficient harm to sustain an action against doctor for negligent infliction of emotional distress. This was so even though the doctor’s negligence did not take place at time of mother’s death and daughter’s trauma. The essential issue for recovery on the N.I.E.D. theory was that the daughter witnessed discrete and identifiable traumatic events in her mother’s deterioration and thereby suffered depression, nightmares, stress, and anxiety that required psychological treatment.
In Crippens v. Sav on Drug Stores, [8] a Nevada court determined that a pharmacy could reasonably have foreseen that its pharmacist’s negligent dispensation of wrong prescription drug to a daughter who provided care for her mother, (to whom drug was prescribed), would result in harm to daughter. Because the daughter witnessed her mother’s extreme adverse reaction to the wrong prescription drug, the court held the daughter could bring a negligent infliction of emotional distress claim against the pharmacy.
In what we at PsychLaw.net believe is an equally tragic case, an Ohio court reasoned that a proper claim for N.I.E.D. could be sustained by a husband who witnessed his wife, covered in blood and under cardiac arrest, being brought to a hospital emergency room from the provider’s facility. The hospital failed to fulfill the surgical services provider’s emergency request for four units of blood during surgery, and the woman died.[9]
Some of the most difficult circumstances of medical practice can lead to sustainable claims for Intentional infliction of emotional distress. The Restatement (Second) of Torts, provides that the elements of a cause of action for Intentional Infliction of Emotional Distress are:
- Extreme and outrageous conduct;
- That gives rise to severe emotional distress; and
- That was so reckless that the defendant expected or should have expected that severe emotional distress would result.[10]
In an older Tennessee case, a mother, some weeks after her premature baby died, asked her physician what had happened to the baby’s remains. The physician could only find that the baby was not disposed of as a surgical specimen. The bereft mother went to the hospital to find out about her child and a clerk took her across the hall and pulled out a large jar that contained the baby preserved in formaldehyde. The Tennessee court ruled that these facts were sufficient to sustain an award for both compensatory and punitive damages for intentional infliction of emotional distress.[11]
In addition, in 1990, the Iowa courts took up a claim for “outrage”. In Oswald v LeGrand [12] the court noted that a plaintiff began to bleed heavily after being examined by a defendant obstetrician in his office, whereupon she was taken by ambulance to the hospital. She was then discharged, but the cramping and bleeding got worse the next day. Her husband took her to the emergency room but the defendant physician said there was nothing to be done and wrote discharge orders again. The plaintiff’s husband insisted that she be admitted and she was admitted despite the physician’s objection. The first nurse plaintiff saw told her she should have stayed at home. Next, another nurse told plaintiff that if she miscarried, she would not have a baby but “a big blob of blood.” The following day, one of the defendant doctors got into an argument with the family, insisting that he did not want to care for the plaintiff. He then neglected her complaints of pain, and left to go on vacation. Minutes after he left, plaintiff began delivering her baby in the hallway and her husband had to kick open a door to get the attention of the nurses.
Providing clearly substandard care, the nurses only examined the baby visually and announced that it was stillborn. Another defendant physician then delivered the placenta but did not examine the infant and went back to his office. The father in the meantime touched the infant’s finger, had the grasp returned and advised a nurse. The nurse determined that the baby was alive and transferred it to neonatal intensive care, where it died about twelve hours later. The Iowa court found that these facts were sufficient to state a cause of action for intentional infliction of emotional distress, even without expert testimony that would have been necessary to establish that any of the defendants committed malpractice.[13]
There are additional contexts in which extreme and outrageous behavior can lead to psychological injury. In Andrews v Bruk ,[14] the Court determined that when a staff physician improperly accessed a patient’s confidential hospital records and annexed them, without consent, as exhibit to physician’s own divorce action, the plaintiff properly stated a cause of action in I.I.E.D. In Macsenti v. Becker,[15] the Tenth Federal Circuit Court determined that when an Oklahoma dentist performing a delicate implant procedure, lost consciousness as many as ten to fifteen times during the process but nevertheless continued his attempt to complete the surgery, (heedless of any danger posed by keeping patient sedated for an unreasonably long procedure); the patient properly stated a cause of action for I.I.E.D.
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[1] Section 436A of the Restatement (Second) of Torts: “Negligence Resulting in Emotional Disturbance Alone,” provides:
If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.
[2] Doe v. Noe, 228 Ill. Dec. 937, 690 N.E.2d 1012 (App. Ct. 1st Dist. 1997); See, also: Harris v. State, 187 Misc. 2d 512, 723 N.Y.S.2d 824 (Ct. Cl. 2001): A plaintiff can objectively establish actual exposure to HIV virus, as element of cause of action for phobia of acquired immune deficiency syndrome (AIDS), by proving (1) a means of transmission that is scientifically accepted as capable of conveying the virus and (2) the presence of blood or other fluid that is HIV-positive. See, also: Monaco v. Health Partners of Southern Arizona, 196 Ariz. 299, 995 P.2d 735 (Ct. App. Div. 2 1999), review denied, (Feb. 8, 2000): Erroneous treatment that increased patient’s risk of leukemia resulted in substantial, long-term emotional disturbances sufficient to support claim for negligent infliction of emotional distress. Patient was diagnosed with post-traumatic stress disorder (PTSD), had trouble sleeping, had nightmares about disease, woke up in sweat, and could no longer enjoy visits from children and grandchildren.
[3] 228 Cal App 3d 885, (2nd Dist., 1990) revd in part on other grounds 54 Cal 3d 105, 284 Cal Rptr 318, 813 P2d 1348 (1991).
[4] Her chart indicated that she had been seen in bed with numerous men.
[5] Id. See also: Jacoves v United Merchandising Corp. 9 Cal App 4th 88, 11 Cal Rptr 2d 468 (2nd Dist. 1992): A hospital or doctor may be liable to the parents of a psychiatric patient for negligent infliction of emotional distress damages caused by the breach of a duty to the parents arising out of a physician-patient. An assumed duty may arise from the utilization of the parents as active instrumentalities in the patient’s treatment. And similarly, see: Moczydloski v First Hosp. Corp., 19 D & C 4th 259 (Pennsylvania, 1993): In an action arising from the suicide of a psychiatric patient after 21 days of treatment at the defendant hospital, a cause of action for negligent infliction of emotional distress lay where the patient’s widow participated in therapy sessions with the decedent and his physician and watched his continual deterioration in the 21 days before his death.
[6] 148 Or. App. 607, 941 P.2d 602 (1997).
[7] 414 Pa Super 231, 606 A2d 1175 (1992).
[8] 961 P.2d 761 (Nev. 1998).
[9] McGill v. Newark Surgery Ctr., 113 Ohio Misc. 2d 21, 756 N.E.2d 762 (C.P. 2001).
[10] Restatement (Second) Torts, § 46, pp. 71-72.
[11] Johnson v Woman’s Hospital, 527 SW2d 133 (Tenn App. 1975).
[12] 453 NW2d 634 (Iowa, 1990).
[13] Id. The court took pains to observe that it was not holding that there was a tort of rudeness, but that extremely rude behavior or crass insensitivity coupled with an unusual vulnerability in a person who is receiving professional services would be sufficient to sustain a recovery. See, also: McAlpin v Sokolay, 596 So 2d 1266, 17 FLW D1012 (Florida App 5th Dist. 1992): The Appellate Court ruled that the trial court erred by dismissing a patient’s complaint against physician for failure to state a cause of action, where the patient went to the doctor to receive a diagnostic x-ray for her medical problems. Instead of the x-ray, the patient received verbal abuse which worsened her condition. The court ruled that because a jury could find that the doctor’s conduct was not only unprofessional but also actionable for intentional infliction of emotional distress (deliberate or reckless, outrageous, and causally related to the emotional distress) the summary judgment was error. See, also: Williams v Voljavec 202 Ga App 580, 415 SE2d 31(1992): Testimony by a patient, who suffered from chronic diabetes and was admitted to hospital’s coronary care unit after complaining of chest pains, that her physician relentlessly vented anger against her while she was in the hospital; and that he was aware of her potentially fragile physical condition. Further, testimony that her physical condition deteriorated after his conduct, was sufficient to sustain a cause of action against the physician for intentional infliction of emotional distress. And see: Gragg v. Calandra, 297 Ill. App. 3d 639, 231 Ill. Dec. 711, 696 N.E.2d 1282 (2nd Dist. 1998), reh’g denied, (Aug. 4, 1998): Allegations that hospital staff and physicians knew patient’s wife and adult daughter were extremely distraught but they accused the wife and daughter of trying to kill patient by requesting discontinuance of life support, stated claim for intentional infliction of emotional distress.
[14] 160 Misc 2d 618, 610 NYS2d 752 (1994).
[15] 237 F.3d 1223 (10th Cir. 2001).