Harris v. Kissling

Decision Date18 June 1986
Citation80 Or.App. 5,721 P.2d 838
PartiesJill HARRIS and Richard Harris, M.D., Respondents, v. Ernest W. KISSLING, Appellant. A8308-04873; CA A33523.
CourtOregon Court of Appeals

Thomas W. Brown, Portland, argued the cause for appellant. With him on briefs was Cosgrave, Kester, Crowe, Gidley & Lagesen, Portland.

Margaret H. Leek Leiberan, Portland, argued the cause for respondents. With her on brief was Kell, Alterman & Runstein, Portland.

Before RICHARDSON, P.J., and JOSEPH, C.J., and WARDEN, J.

JOSEPH, Chief Judge.

Defendant challenges only the award of damages in this legal malpractice action. He admits his negligence in failing to file a medical malpractice action on behalf of plaintiffs and, for purposes of this case, he admits that the putative defendant hospital was negligent. See Sola v. Clostermann, 67 Or.App. 468, 679 P.2d 317, clarified 68 Or.App. 381, 681 P.2d 178, rev. den. 297 Or. 547, 685 P.2d 997 (1984). In our review, we look at the evidence most favorable to plaintiffs.

The underlying claim arose when Mrs. Harris (hereafter plaintiff 1) gave birth to her first child at Emanuel Hospital. Her Rh negative blood had combined with the unborn child's Rh positive blood, causing Rh antibodies to form in her blood. The hospital failed to conduct proper blood tests and to inoculate plaintiff following the birth to stop the production of antibodies. The antibodies affected the blood of her unborn child during her second pregnancy. To determine the extent of harm to the fetal blood, she had to undergo amniocentesis, which involved having a needle inserted into her uterus through the abdomen to withdraw fluid four times during her pregnancy. She was told that, if the fetus were very ill, an intrauterine transfusion might have to be done and that she might have to go to Denver for that procedure. She monitored the fetus' movements three times a day at her physician's direction. On two occasions, no movement was detected, which caused her to fear that the baby was dead. She had to rush to the hospital for tests to determine if the fetus were dead or in distress. Tests showed no fetal problems on those occasions.

Twice plaintiff had to undergo a stress test in which fluid was dripped into her arm intravenously to stimulate contractions; the tests had to be monitored carefully to avoid putting her into premature labor. The doctors observed the baby's heartbeats to determine how it would cope with the stress of contractions. During the eighth month of pregnancy, the baby stopped moving again, and the parents' efforts to get it to move failed. The baby was not dead, but the physicians felt that it was not moving as much as it should and that it might be better off if born prematurely. The child was delivered by Caesarean section the next day. Very soon after its birth, the baby exhibited respiratory distress, even though plaintiff had been given steroids during the pregnancy to develop the baby's lungs in anticipation of a premature delivery. On the third day of his life, the infant required a blood transfusion, and the mother was unable to see her child for three days. The baby also developed anemia and jaundice, but he was released from the hospital after two weeks and apparently suffered no permanent damage.

Physicians testified that plaintiff will always be at very high risk in a pregnancy and that Rh problems generally get worse with each succeeding birth. At least one physician recommended that she not get pregnant again. Another testified, and defendant admits, that there is a 75 percent chance that the next baby would be at least as severely affected as the last one. That physician also explained that, if plaintiff got pregnant again, he would recommend amniocentesis every two weeks during the last four months of her term. He testified that there was a ten percent chance that intrauterine transfusions would be required every two weeks in the last two months of pregnancy. There is extensive expert testimony about health problems, their severity and their likelihood.

Defendant asserts six assignments of error. First, he argues that the judge should not have submitted plaintiff's claim for damages for negligent infliction of emotional distress, because she did not plead or prove that she suffered any physical injury or any independent basis of liability. We disagree. Plaintiff did plead that, as a result of the hospital's failure to immunize her, her body produced antibodies which attacked the blood of her unborn child. The failure to immunize resulted in an irreversible physical change in her blood, which has permanently impaired her ability to have a normal pregnancy. We point out, however, 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. See McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977); Macca v. Gen. Telephone Co. of N.W., 262 Or. 414, 495 P.2d 1193 (1972); Saechao v. Matsakoun, 78 Or.App. 340, 344, 717 P.2d 165 (1986). In this case, defendant admits that plaintiff received negligent medical care. As the direct victim of the hospital's negligence, she was entitled to plead a claim for the emotional distress which directly flowed from that conduct.

In Fehely v. Senders, 170 Or. 457, 474, 135 P.2d 283 (1943), the Supreme Court concluded that the apprehension of a pregnant woman that her unborn child might be caused harm from the injury to her by the negligence of another was properly taken into account in estimating her damages. Defendant in this case argues that the Fehely reasoning does not apply, because the woman in that case suffered a physical blow to the abdomen which gave rise to her fear and that, in this case, plaintiff's claim arose from the hospital's omission to act, not from an "objective physical injury." We do not accept that distinction. The emotional distress suffered on account of the potential effects on her unborn child's health was a natural consequence of the hospital's negligence, just as the plaintiff in Fehely feared the consequences to her unborn child. The trial court properly submitted the emotional distress claim to the jury.

Defendant next argues that the trial court erred in denying his motion for a directed verdict, because plaintiff failed to introduce sufficient evidence to establish that the hospital's negligence deprived her and her husband of the chance of having healthy children in the future. Again, we disagree.


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12 cases
  • Smith v. Providence Health & Services—oregon
    • United States
    • Oregon Supreme Court
    • May 11, 2017
    ...theory conflicted with pleading requirements for the element of causation in a professional negligence claim. Citing Harris v. Kissling , 80 Or.App. 5, 721 P.2d 838 (1986), and distinguishing Joshi , plaintiff argued that Oregon recognizes loss of chance "in medical negligence actions for i......
  • Curtis v. MRI Imaging Services II
    • United States
    • Oregon Court of Appeals
    • June 25, 1997
    ...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 dama......
  • Hall v. Baxter Healthcare Corp.
    • United States
    • U.S. District Court — District of Oregon
    • December 18, 1996
    ...between breast implants and the alleged systemic disease, but the medical probability of a causal connection. See Harris v. Kissling, 80 Or. App. 5, 9, 721 P.2d 838 (1986); see also Griffin v. K.E. McKay's Market of Coos Bay, Inc., 125 Or.App. 448, 451-52, 865 P.2d 1320 (1993), in which the......
  • Joshi v. Providence Health System of Oregon
    • United States
    • Oregon Court of Appeals
    • March 30, 2005
    ...evidence that defendants' negligence probably caused Joshi's death. She relies on several Oregon decisions, including Harris v. Kissling, 80 Or.App. 5, 721 P.2d 838 (1986), that have allowed recovery of damages for potential physical injuries the future occurrence of which was merely In Har......
  • Request a trial to view additional results

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