January 24, 2012

On December 22, 2011, an equally divided Pennsylvania Supreme Court dramatically extended liability for negligent infliction of emotional distress (“NIED”) to “special relationship” breach of contract or breach of fiduciary duty cases, in Toney v. Chester County Hospital, —A.3d— (Pa. 2011), 2011 WL 6413948. The decision exposes health care providers to liability where there is a breach of an implied duty to care for the emotional well-being of their patients.

In Toney, the pregnant plaintiff underwent a pelvic ultrasound at defendant hospital on March 3, 2003.  Plaintiff’s providers, including the radiologist, interpreted and reported the ultrasound results as normal. Four months later, however, plaintiff gave birth to her son who had profound physical abnormalities. Plaintiff, conscious for her child’s delivery and birth, alleged that the defendants’ negligent ultrasound misinterpretation prevented her from preparing herself for the shock of witnessing her child’s birth with such significant physical deformities. Plaintiff claimed that she suffered emotional distress due to shock which manifested itself in nausea, headaches, insomnia, depression, nightmares, flashbacks, repeated hysterical attacks, stress and anxiety.

The Supreme Court held that the long-standing 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” and that NIED claims do not require a physical impact as an element of the tort. Instead, it extended NIED liability to cases, such as this one, involving pre-existing relationships, where the duties obviously and objectively hold the potential for deep emotional harm in the event of a breach. Such “special relationships must encompass an implied duty to care for the plaintiff’s emotional well-being” and the “potential emotional harm must not be the type that a reasonable person is expected to bear.” The court, for instance, found that relationships involving life and death fall within this category.

Although the Supreme Court declined to create an inclusive list of such relationships, it did state that some doctor-patient relationships, as in “the emotionally charged field of obstetrics,” involve the “implied duty to care for a plaintiff’s emotional well-being.”

While the Court left open, to future cases, the decision as to what additional “special relationships” would give rise to a NIED claim, healthcare providers must anticipate that a relationship with a patient may be considered a “special relationship” that creates potential liability for an emotional distress claim.