Banyas v. Lower Bucks Hospital

• Citation: 437 A.2d 1236,293 Pa.Super. 122
• Parties: Joseph A. BANYAS, III, Appellant, v. LOWER BUCKS HOSPITAL and Young Kim, M.D. and C.R.N.A. Tanya O'Neill and Alvin Merkin, M.D.
• Decision Date: 04 December 1981
• Court: Pennsylvania Superior Court

Page 1236

437 A.2d 1236

293 Pa.Super. 122

Joseph A. BANYAS, III, Appellant, v. LOWER BUCKS HOSPITAL and Young Kim, M.D. and C.R.N.A. Tanya O'Neill and Alvin Merkin, M.D.

Superior Court of Pennsylvania.

Argued Sept. 10, 1980.

Filed Dec. 4, 1981.

Steven E. Wolfe, Bensalem, for appellant.

Arthur B. Walsh, Doylestown, for Lower Bucks, appellee.

Allan C. Molotsky, Philadelphia, for Kim, etc., appellees.

Before BROSKY, WATKINS and MONTGOMERY, JJ.

BROSKY, Judge:

This suit was instituted by appellant who seeks damages for mental distress which he claims appellees caused him to suffer. The complaint contained counts charging appellees with both intentionally and negligently inflicting emotional distress upon him. The lower court sustained preliminary objections in the nature of a demurrer and dismissed the complaint. We affirm the order as to the negligence counts but reverse as to the count alleging an intentional infliction of mental distress by appellees.

Our Supreme Court has summarized the guidelines we are to follow in determining whether the preliminary objections were properly granted.

It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained. Finally, where the propriety of an order sustaining a demurrer is being reviewed by a court of last resort, the fact that the theory for recovery relied upon has not been previously sanctioned, is not conclusive. It must be remembered that "(e)very cause of action ..., however, was once a novel claim and the absence of Pennsylvania authority for appellant's proposition is not an end to the issue." Papieves v. Kelly, 437 Pa. 373, 376-77, 263 A.2d 118, 120 (1970).

Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

We have paraphrased the complaint's allegation of facts pertinent to this appeal as follows. On July 27, 1977, Thomas Lavin was admitted to the emergency room of Lower Bucks Hospital complaining of facial and jaw injuries which resulted from an altercation with Joseph A. Banyas, III. Mr. Lavin was admitted to the hospital for surgical reduction of what was diagnosed as a fractured jaw. On July 28, 1977, Mr. Lavin was taken to the operating room for the reduction and was placed under the care of Alvin Martin, M.D., Young Kim, M.D., and C.R.N.A. Tanya O'Neill. Mr. Lavin died at that time due to the negligence of the named defendants (the hospital and persons named in previous sentence), their agents, servants or employees acting within the course and scope of their employment. The death of Thomas Lavin was due solely to the acts of the defendants and was due to no act or failure to act on the part of Mr. Banyas.

The complaint alleges three causes of action, all of which incorporate the above recited factual allegations. The first count charges that the defendants knowingly, wilfully, recklessly and intentionally prepared records indicating that Mr. Lavin's death was due solely to the injuries inflicted upon him by Mr. Banyas. Banyas stated in his complaint that as a result of the wrongful preparation of records, he was charged with the crimes of aggravated assault, simple assault, recklessly endangering another person, murder, third degree murder and voluntary manslaughter. He seeks recovery for severe mental anguish and emotional stress which he claims to have suffered as a result of having been charged with the above-mentioned crimes.

The second count charges that Mr. Banyas suffered damages as a result of what he claims was the negligent, reckless and wanton preparation of records by the defendants.

The third count traced the cause of Mr. Banyas' being charged with crimes to the death of Mr. Lavin and sought damages for what the complaint alleged to be the negligence which caused his death.

The intentional infliction of mental distress is an actionable wrong in Pennsylvania. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970); Jones v. Nissenbaum, Rudolph and Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976); Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (1979).

Section 46 of the Restatement (Second) of Torts § 46 (1965) provides in part:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Comment d to Section 46 explains,

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, "Outrageous!"

As the Supreme Court said in Jones, supra, "It is apparent that the gravamen of this tort is that the conduct complained of must be of an extreme or outrageous type." Id. at 383, 368 A.2d at 773.

We have found the Third Circuit Court's opinion in Chuy, supra, helpful in our analysis of this case. In Chuy, a professional athlete sought recourse for mental distress he experienced as a result of the publication of a newspaper article that falsely stated that he suffered from a potentially fatal disease. The plaintiff contended that making such a false statement constituted "extreme and outrageous conduct." The court found sufficient evidence to support his claim and wrote, upholding motions for judgment N.O.V. and for new trial that,

Accepting as we must at this stage Chuy's version of the events, we have a statement to the press by a physician assumed to know the facts that a person is suffering from a potentially fatal disease, even though the physician was aware that the person was not stricken with that condition. This, of course, constituted intolerable professional conduct. 595 F.2d at 1274.

The court continued explaining that

Reckless conduct causing emotional distress renders an actor as liable as if he had acted intentionally... (I)f Dr. Nixon's statements were intentional, he need not have been aware of the natural and probable consequences of his words. It is enough that Chuy's distress was substantially certain to follow Dr. Nixon's rash statements. Intentionally to propagate a falsehood, the natural and probable consequences of which will be to cause the plaintiff emotional distress is equivalent, in the language of the Restatement comment i, to the "deliberate disregard of a high degree of probability that the emotional distress will follow."

595 F.2d at 1265.

If the appellees in the present appeal, defendants below, in fact intentionally propagated a falsehood when they wrote that Mr. Lavin's death was attributable solely to Mr. Banyas, we believe that they could also be found liable for the emotional distress suffered by Mr. Banyas. We would find an intentional misstatement of the cause of death to be intolerable professional conduct and extreme and outrageous. Certainly, Mr. Banyas was substantially certain to suffer emotional distress following such a report. Therefore, if proven, the facts alleged by appellant in this first count would entitle him to relief.

We come to a different conclusion as to the remaining counts,...