When Is 50/50 Enough To Win?

Pennsylvania – Health Care Liability

Key Points:

  • The Pennsylvania Supreme Court has expanded negligent infliction of emotional distress claims.
  • The decision comes from a severely divided court.


The Pennsylvania Supreme Court recently reached a plurality decision which potentially changes the landscape of Negligent Infliction of Emotional Distress (NIED) claims. Its even three-to-three split in Toney v. The Chester County Hospital Foundation, Inc., 36 A.3d 83 (Pa. 2011) has shifted the playing field.

In Toney, the Pennsylvania Supreme Court considered the case of a mother who, four months before the birth of her child, underwent a pelvic ultrasound study. The study was reported as normal. However, when her child was born, he had profound physical deformities, including the absence of all four extremities below the elbow or knee joints and incompletely developed tongue and jaw. The mother/plaintiff was conscious during the delivery.

The plaintiff averred that, as a result of the delivery, she suffered shock, which manifested itself in nausea, headaches, insomnia, depression, nightmares, flashbacks, repeated hysterical attacks, stress and anxiety. The plaintiff did not allege that the misinterpretation of the ultrasound in any way caused the deformities, however, she alleged that the failure to properly interpret the ultrasound prevented her the "opportunity to brace herself for the shock [of witnessing her child's birth with profound abnormalities], without the benefit of seeking psychiatric, religious, or social counseling, [and] without the benefit of making appropriate arrangements prior to [her child's] birth."

The trial court, relying on decades of case law regarding NIED claims, granted preliminary objections. The trial court pointed out that Pennsylvania only recognizes NIED in four instances: (1) when the defendant has a contractual or fiduciary duty to the plaintiff; (2) when the plaintiff suffers a physical impact; (3) when the plaintiff was in the "zone of danger" and at risk of immediate physical injury; or (4) when the plaintiff has a contemporaneous perception of an injury to a close relative.

On appeal, the Pennsylvania Superior Court overturned the trial court in a 6-2 opinion. The Superior Court ruled that the plaintiff had established duty because she averred that she was a patient of the defendants, which created a pre-existing duty of care pursuant to the doctor-patient relationship. Then Superior Court Justice Orie Melvin wrote the dissenting opinion. By the time the matter made it to the Supreme Court, Justice Orie Melvin had been elected to the Pennsylvania Supreme Court and, thus, had to abstain from participating in the decision at the Supreme Court level, setting the stage for the Supreme Court's eventual even split.

In the Supreme Court, the three supporting justices analyzed NIED claims in sister states and opted to expand the reach of NIED. The Court found that "some negligent breaches of duties in preexisting relationships will give rise to severe emotional distress that should be compensable." Reviewing writings by other authors and courts, the Pennsylvania Supreme Court found that, "[w]hile childbirth cases are one of the prominent examples of a preexisting duty NIED claim, the claim can also be supported in other cases when 'the defendant assumes a duty by contract, or otherwise when the duty encompasses the plaintiff's well being.'" The Court wrote that when a doctor contracts to provide services for childbirth, he is on notice that negligent acts will likely cause emotional harm. Likewise, this type of NIED claim could also extend to psychologists, mortuaries and other unidentified situations "where the defendants are aware that their assumed duty impliedly includes a duty to care for the emotional well being of the plaintiff."

After the above analysis, the Court turned its attention to the physical impact aspect of NIED claims as well as the determination of damages in such claims. As for the physical impact requirement, while recognizing that this has been the rule in the Commonwealth for forty years, the Court went on to state, "[w]e conclude that the physical impact requirement is a flawed tool to distinguish between true emotional distress deserving recovery and the trivial or fraudulent emotional distress claims that should not result in liability." The Court found that severe emotional distress can arise equally from situations without physical impact and, therefore, held that, henceforth, NIED claims do not require physical impact as an element of the tort.

Once the Court dismissed the necessity of physical impact, it turned its attention to how juries are to make a determination of damages. The Court stated that while physical impact is not a necessity, a plaintiff asserting a "special relationship" (the Court specifically adopted this language as opposed to "fiduciary duty") NIED cause of action absent a physical injury, "must still demonstrate the genuineness of the alleged emotional distress, in part, by proving the element of causation." The Court stated that causation would be a jury question, which, if proven by a plaintiff, would necessitate the jury's determination of damages.

The Toney case, albeit a plurality opinion, turns forty years of established precedent on its ear. As noted, had Justice Orie Melvin participated at the Supreme Court level and decided consistently with her opinion in the Superior Court, there would have been no change in the law. Nevertheless, for the time being, defendants in Pennsylvania must now be prepared to deal with the Supreme Court's plurality decision and possibly defend against a much broader class of NIED claims than in the past.

*Jeff, a shareholder in our Philadelphia, Pennsylvania, office, can be reached at 215.575.2629 or jpbates@mdwcg.com.

Defense Digest, Vol. 18, No. 2, June 2012