Harnicher v. University of Utah Medical Center

• Decision Date: 31 July 1998
• Docket Number: No. 960204,960204
• Parties: 349 Utah Adv. Rep. 3 David HARNICHER and Stephanie Harnicher, Plaintiffs and Appellants, v. UNIVERSITY OF UTAH MEDICAL CENTER, Defendant and Appellee.
• Court: Utah Supreme Court

Page 67

962 P.2d 67

349 Utah Adv. Rep. 3

David HARNICHER and Stephanie Harnicher, Plaintiffs and Appellants, v. UNIVERSITY OF UTAH MEDICAL CENTER, Defendant and Appellee.

No. 960204.

Supreme Court of Utah.

July 31, 1998.

Jerome H. Mooney, Wendy M. Lewis, Salt Lake City, for plaintiffs.

David G. Williams, Brian P. Miller, Salt Lake City, for defendant.

HOWE, Chief Justice:

Plaintiffs David and Stephanie Harnicher, parents of triplets born after in vitro fertilization using donor sperm, brought this action for medical malpractice alleging negligent infliction of emotional distress against defendant University of Utah Medical Center for using sperm from a donor other than the one that the couple had allegedly selected. The trial court found no evidence of physical injury or illness to support an action for negligent infliction of emotional distress and granted summary judgment in favor of the Medical Center. The Harnichers appeal.

FACTS

David and Stephanie Harnicher sought treatment for infertility at the University of Utah Medical Center Fertility Clinic. Artificial insemination using David's sperm yielded no results. The Harnichers then contacted Dr. Ronald L. Urry of the Fertility Clinic regarding the possibility of in vitro fertilization. Dr. Urry suggested a procedure known as "micromanipulation" wherein holes are drilled in the mother's harvested ova to facilitate fertilization. The ova are then placed in a petri dish with harvested sperm and the fertilized ova are subsequently implanted in the uterine wall, enabling the mother to bear her own child. Dr. Urry recommended using a mixture of the husband's sperm and donor sperm.

The Harnichers agreed. The micromanipulation method increased the chances that Stephanie would bear David's biological child. Additionally, the "mixed sperm" procedure potentially allowed the couple to believe and represent that any child born would be David's because if the donor closely matched David in physical characteristics and blood type, the parents would never be sure which sperm actually fertilized the ovum. Therefore the Harnichers evaluated the donor information provided by the Medical Center on that basis. The Medical Center maintains that the couple narrowed the selection to four donors and signed consent forms acknowledging that their doctor would make the final selection. The Harnichers assert, however, that they specifically and exclusively selected donor # 183. Stephanie testified that when clinic employee Doug Carroll informed her that only frozen sperm, which has a lower success rate than fresh, was available from donor # 183 and asked her if she still wanted to do the donor backup, she replied, "Only if you can get 183.... I'll take my lower chances. Let's just go with 183."

The procedure was performed, and Stephanie gave birth to triplets, two girls and one boy. Shortly after their birth, one of the babies became ill, requiring blood tests. Two of the children's blood type revealed that they could not possibly have been the children of either David or donor # 183. A DNA test on one of the children established that the father was actually donor # 83, another donor on the Harnichers' list.

Donor # 183, like David, had curly dark hair and brown eyes. Donor # 83 had straight auburn hair and green eyes. One of the triplets has red hair. The Harnichers maintain that the Medical Center's mistaken use of the wrong donor thwarted their intention of believing and representing that David is the children's biological father. They brought this action against the Medical Center alleging that they have "suffered severe anxiety, depression, grief, and other mental and emotional suffering and distress which has adversely affected their relationship with the children and with each other." However, both David and Stephanie testified in their depositions that they had not experienced any bodily harm as a result of the mistake.

After the Medical Center moved for summary judgment, the Harnichers consulted a psychologist, Jeff Kocherhans, Ph.D., who administered various psychological tests and concluded that David suffered from a variety of symptoms of depression and anxiety, including The trial court concluded that "there has been no physical harm or injury sustained by the plaintiffs that would enable them to maintain an action for negligent infliction of emotional distress" and that the plaintiffs' alleged physical symptoms "are transitory, temporary, and not the kind of physical manifestations of a mental illness that provide the basis for a claim of negligent infliction of emotional distress." The Harnichers contend that their disappointment in the results of the donor mixup has resulted in mental illness accompanied by physical symptoms. They ask this court to hold that a diagnosed mental illness in and of itself is sufficient to support a cause of action for negligent infliction of emotional distress.

sleep disturbance, fatigue, impaired concentration, and diminished work productivity. Kocherhans diagnosed Stephanie with "major Depressive Disorder, recurrent, severe, Panic Disorder and Generalized Anxiety Disorder," manifested by low mood, fatigue, crying spells, decreased appetite and weight loss, difficulty concentrating, pounding heart, shaking, cold flashes, shortness of breath, choking sensation, teeth grinding, muscle tension, and fingernail biting. Prior to seeking treatment at the Medical Center, Stephanie had counseled with a psychologist for some of the same symptoms and had also received stress medication from a medical doctor. Kocherhans' diagnoses appeared in an affidavit which the Harnichers filed more than a month after the Medical Center moved for summary judgment.

ANALYSIS

In order to properly grant summary judgment, the court must view the facts in the light most favorable to the non-moving party, see Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), and find that there are no disputed issues of material fact and that the moving party is entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c); DOIT, Inc. v. Touche, Ross & Co., 926 P.2d 835 (Utah 1996). We review the trial court's conclusions of law for correctness, granting them no deference. See Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993).

I. BACKGROUND

In Johnson v. Rogers, 763 P.2d 771 (Utah 1988), we first recognized negligent infliction of emotional distress as a cause of action in Utah. In that case, a father and his eight-year-old son were waiting to cross the street at an intersection when a truck jumped the curb and struck them, killing the child and injuring the father. Justice Durham, in the lead opinion, reviewed the history and theoretical foundations of the action for negligent infliction of emotional distress and determined that such an action exists in Utah. Id. at 782. A majority of the court recognized the need to establish a clear standard. Id. at 785 (Zimmerman, J., concurring in part). The majority selected language mirroring the rule proffered in section 313 of the Restatement (Second) of Torts. This standard provides:

"(1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor

(a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and

(b) from facts known to him, should have realized that the distress, if it were caused, might result in illness or bodily harm.

(2) The rule stated in Subsection (1) has no application to illness or bodily harm of another which is caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the other."

Id. at 780 (emphasis omitted) (quoting Restatement (Second) of Torts § 313 (1965)). Subsection (2) constitutes the zone of danger test. ¹ "Simply stated, the zone of danger rule 'allows one who is himself or herself threatened with bodily harm in consequence Because the instant case does not involve injury to a third party, we address only the application of subsection (1). We addressed similar circumstances in Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993). In that case, construction workers who had unknowingly inhaled asbestos sought to recover damages for negligent infliction of emotional distress due to fear of cancer. We observed that "[i]n Johnson, we were primarily concerned with application of the rule outlined in [section 313] subsection (2). In the instant case, plaintiffs are not seeking recovery for trauma inflicted on them because of harm or peril to one nearby; plaintiffs allege that they themselves inhaled asbestos." Id. at 974. We applied the section 313(1) requirement for "illness or bodily harm" and found that the plaintiffs had neither offered evidence of symptoms so severe as to constitute mental illness, nor shown that they had suffered physical symptoms as a result of their distress. Id. at 975. We emphasized that "the emotional distress suffered must be severe; it must be such that 'a reasonable [person,] normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.' " Id. (quoting Rodrigues v. State, 52 Haw. 156, 472 P.2d 509, 520 (1970)). Consequently, we held that "[p]laintiffs' mere unsubstantiated opinions that they have suffered severe anxiety as a result of their exposure do not create a triable issue of fact that would withstand summary judgment." Id. Justice Zimmerman, joined by the majority, explicitly declined to postulate whether "mental illness, in the absence of physical manifestation, is sufficient to support a claim." Id. at 982 (Zimmerman, J., concurring in part and concurring in the result).

of the defendant's negligence to recover for emotional distress...