Curtis v. MRI Imaging Services II

Decision Date25 June 1997
Citation148 Or.App. 607,941 P.2d 602
PartiesRobert CURTIS, Appellant, v. MRI IMAGING SERVICES II, an Oregon limited partnership, and ABCT, Inc., an Oregon corporation, Respondents, and North Lincoln Hospital Health District, dba North Lincoln Hospital, an Oregon non-profit corporation, Defendant. 941288; CA A92095.
CourtOregon Court of Appeals

J. Michael Alexander, Salem, argued the cause for appellant. With him on the briefs was Burt, Swanson, Lathen, Alexander, McCann & Smith, P.C.

Alexander Gordon, Portland, argued the cause and filed the brief for respondents.

Before DEITS, P.J., and De MUNIZ, and HASELTON, JJ.


Plaintiff appeals, challenging the entry of judgment on the pleadings, ORCP 21 G(3), against his claim for negligence. The dispositive issue is novel: Under Oregon law, can a victim of medical malpractice, who has not suffered physical injury, nevertheless recover damages for negligent infliction of emotional distress? We conclude that the relationship between plaintiff and defendant medical professionals, as framed by the pleadings, gave rise to a "legally protected interest" and that the alleged invasion of that interest was of the sort that would permit plaintiff to recover emotional distress damages without any showing of concurrent physical injury. Accordingly, we reverse and remand.

In reviewing a judgment on the pleadings, we accept all factual allegations in the complaint as true. Withers v. State of Oregon, 133 Or.App. 377, 381, 891 P.2d 675 (1995), rev. den. 321 Or. 284, 896 P.2d 1213. Entry of judgment on the pleadings is proper when the allegations in the pleadings affirmatively show that the plaintiff cannot prevail as a matter of law. Id. at 382, 891 P.2d 675.

Plaintiff's operative fourth amended complaint alleged the following facts: On November 9, 1992, plaintiff arranged through North Lincoln Hospital to undergo an MRI. 1 The test was performed in a mobile unit that was set up in the hospital's parking lot. Defendants MRI Imaging Services II and ABCT, Inc., administered the test. 2

Before and during the MRI procedure, defendants "negligently" failed to:

"1. * * * properly explain the nature of the MRI procedure to the Plaintiff prior to instituting such procedure, particularly in failing to warn the Plaintiff of the possible claustrophobic effects of the MRI;

"2. * * * take an adequate medical and psychological history from the Plaintiff, including the history of pre-existing asthmatic condition;

"3. * * * properly monitor the progress of the Plaintiff during the course of the MRI procedure; and

"4. * * * promptly terminate the MRI procedure when Plaintiff complained of difficulties with breathing, and indicated a desire for the procedure to end."

As a result of that failure, plaintiff experienced severe emotional distress. More particularly,

"[he] became extremely distressed, a condition which was exacerbated by his pre-existing asthma. His emotional status worsened during the entire procedure, and has resulted in continued and permanent psychological damage, including post-traumatic stress disorder, adjustment disorder with anxious mood, major depression, generalized anxiety disorder and panic disorder with agoraphobia. These psychological conditions are severe, continuing, and permanent."

Plaintiff sought damages of $75,000 to compensate him for his "extreme and severe emotional distress, sleeplessness, fear and anxiety, which have significantly interrupted his normal lifestyle and will continue to do so in the future." 3

In their answer, defendants admitted that they had performed the MRI. As an "affirmative defense," defendants asserted:

"The plaintiff has plead a claim for the negligent infliction of emotional distress unaccompanied by either any actual or threatened physical harm or injury to another legally protected interest. Such a claim is not recognized in Oregon. The plaintiff has failed to state ultimate facts constituting a claim."

On the day of trial, defendants moved for judgment on the pleadings. ORCP 21 G(3). Invoking Hammond v. Central Lane Communications Center, 312 Or. 17, 816 P.2d 593 (1991), and Saechao v. Matsakoun, 78 Or.App. 340, 345-48, 717 P.2d 165, rev dismissed 302 Or. 155, 727 P.2d 126 (1986), defendants asserted that Oregon law does not recognize a cause of action for negligent infliction of emotional distress where there is neither physical harm nor injury to a "legally protected interest" distinct from liability based on general foreseeability, and that plaintiff's complaint did not plead either of those conditions.

Plaintiff responded with two arguments. First, the relationship between plaintiff and defendant medical professionals who administered the MRI gave rise to a distinct "legally protected interest" beyond liability grounded in general principles of foreseeability. Second, because he was a "direct," rather than "indirect," victim of defendants' negligence, the bar to recovery in Hammond, Saechao, and related cases was inapposite. As support for the latter proposition, plaintiff relied on our observation in Harris v. Kissling, 80 Or.App. 5, 8, 721 P.2d 838 (1986), that "a physical injury is not necessary to support an award of damages for emotional distress if the person seeking damages is the direct victim of tortious conduct." (Emphasis in original.)

The trial court granted judgment on the pleadings:

"Oregon law at this time does not allow for recovery for negligent infliction of emotional distress where there is no physical injury. That is it. It is really that simple. That is the pleading. If I accept everything in the pleadings as true, we still don't get the elemental requirements of the tort.

"I've got to tell you something, I don't know what the facts are in this case, and believe me I don't want you to take this wrong, but I can see a situation where there ought to be recovery for something like this. I'll be darned if--you know, I can see how someone being left in an environment like that or not being handled expertly the entire time could create some psychic trauma for which there should be compensation, but Oregon law simply doesn't allow it."

On appeal, plaintiff and defendants reiterate their arguments. In their briefs and arguments, counsel posit contending--and equally forbidding--slippery slopes and parades of horribles. Plaintiff, for example, contends that defendants' position, by principled extension, would preclude claims for psychological or psychiatric malpractice, where the only injury suffered as a result of a defendant's negligence is, generally, emotional and not physical. In a similar vein, plaintiff asserts that defendants' analysis would preclude liability for emotional distress damages if a physician negligently diagnosed a healthy patient as having a terminal illness. Defendants counter that plaintiff's position, which emphasizes the special quality of the relationship between a professional and a patient or client, would permit clients to seek emotional distress damages from their attorneys in every legal malpractice claim. Extending plaintiff's principle further, defendants reason, would allow distraught students to recover emotional distress damages from teachers who have misgraded their exams and would permit disappointed investors to obtain psychic, as well as financial, relief from incompetent brokers.

On either side, the abyss beckons: "Hard cases make bad law." Still, we will attempt to mark and tread a principled and practical middle ground.

For at least 60 years, Oregon courts have assumed, albeit implicitly, that emotional distress damages can only be recovered in cases involving physical injury--and then have proceeded to carve out exceptions to that general proposition. 4 The cases have fallen generally, though inexactly, into three categories: (1) claims for emotional distress resulting from the defendant's tortious conduct directed against persons other than the plaintiff; (2) claims for emotional distress resulting from the defendant's tortious conduct directed against the plaintiff; and (3) "hybrid" claims for emotional distress resulting from tortious conduct directed against both the plaintiff and third persons.

Saechao and Norwest v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318 (1982), exemplify the first, "indirect injury" category. In Saechao, we held that two siblings who witnessed an auto accident in which their younger brother was killed, but who were not themselves physically injured, could not recover emotional distress damages. In so holding, we adopted the "impact" rule for such cases and expressly rejected the more broadly remedial "zone of danger" formulation. 5 Similarly, in Norwest, the court concluded that the plaintiff's child could not recover emotional distress/"parental consortium" damages based on the defendants' alleged malpractice in treating the plaintiff's mother. See, e.g., 293 Or. at 560-61, 652 P.2d 318 (noting general "rule that negligence alone, as a reason to shift the burden of a resulting loss, has not been deemed so grievous as to hold the negligent actor liable beyond the immediate victim's injury to others who suffer a loss only in consequence of that injury").

Most reported decisions fall into the second, "direct injury" group. See, e.g., Nearing v. Weaver, 295 Or. 702, 670 P.2d 137 (1983) (sustaining claim for emotional distress damages arising from officers' failure to enforce restraining order); Melton v. Allen, 282 Or. 731, 580 P.2d 1019 (1978) (affirming dismissal of claim seeking emotional distress damages, based on the defendant towing company's trespass to the plaintiff's automobile); Collver v. Salem Insurance Agency, Inc., 132 Or.App. 52, 887 P.2d 836 (1994), rev. den. 320 Or. 598, 891 P.2d 1 (1995) (holding that the plaintiff was not entitled to recover emotional distress damages arising from the defendants' negligent...

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