Owens v. Childrens Memorial Hospital, Omaha, Nebraska

• Decision Date: 05 September 1972
• Docket Number: Civ. No. 72-0-201,72-0-202.
• Parties: Lonnie LeRoy OWENS, Sr., Plaintiff, v. CHILDRENS MEMORIAL HOSPITAL, OMAHA, NEBRASKA, a corporation, et al., Defendants. Ida Ruth OWENS, Plaintiff, v. CHILDRENS MEMORIAL HOSPITAL, OMAHA, NEBRASKA, a corporation, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

347 F. Supp. 663

Lonnie LeRoy OWENS, Sr., Plaintiff, v. CHILDRENS MEMORIAL HOSPITAL, OMAHA, NEBRASKA, a corporation, et al., Defendants.

Ida Ruth OWENS, Plaintiff, v. CHILDRENS MEMORIAL HOSPITAL, OMAHA, NEBRASKA, a corporation, et al., Defendants.

Civ. Nos. 72-0-201, 72-0-202.

United States District Court, D. Nebraska.

September 5, 1972.

James R. Welsh, Omaha, Neb., and Martin E. Spellman, Perry, Iowa, for plaintiffs.

David A. Johnson, John Grant, and Charles F. Gotch, Omaha, Neb., for defendants.

MEMORANDUM AND ORDER

DIER, District Judge.

This matter comes before the Court upon defendants' motions to dismiss the above-entitled actions on the grounds of failure to state a claim upon which relief can be granted. Rule 12(b)(6), Federal Rules of Civil Procedure. The basis of defendants' motions is that the cause of action herein invoked does not exist in Nebraska, either at common law or pursuant to statute.

The allegations are that on March 2, 1970, plaintiffs admitted their son, Lonnie Leroy Owens, Jr., to Childrens Memorial Hospital, Omaha, Nebraska, the defendant, and that their son remained under care and treatment of this hospital until he expired on April 2, 1970. The plaintiffs allege that Childrens Memorial Hospital, by and through its nurses, interns, physicians, agents and employees, together with defendants A. J. Lombardo, M. D., and Delbert D. Neis, M. D., negligently failed to properly diagnose, treat and care for their son by failure to employ ordinary skill and diligence and by failure to apply available methods of diagnosis ordinarily used by hospitals and physicians of ordinary skill and learning. Plaintiffs allege that they were in close proximity to their son throughout the period of his hospitalization, spending many hours at the hospital and personally witnessing the alleged negligence and malpractice of the defendants and the physical and mental suffering of their son. Plaintiffs allege that as a direct and proximate result of the defendants' negligence, they suffered, and continue to suffer, physical and mental anguish, great emotional disturbance, shock, and injury to their nervous systems, all of the injuries being of a permanent and continuing nature.

The defendants base the motions to dismiss this matter on primarily three grounds: (1) the Nebraska Wrongful Death Act, Section 30-809 et seq., R.R. S.1943, does not allow the recovery of damages for the mental anguish and suffering of the deceased child's parents; (2) the plaintiffs lack legal capacity under said Act to sue defendants in this matter; and (3) the cause of action upon which the plaintiffs base their claim is not allowed in the State of Nebraska.

As to defendants' first ground for dismissal, the Court agrees that under Nebraska's Wrongful Death Act, the elements of pain, anguish, loss of companionship, and other mental sufferings of the deceased's beneficiaries are not recoverable. The loss under that statute speaks generally to a pecuniary loss as the Nebraska law abundantly reflects. Ensor v. Compton, 110 Neb. 522, 194 N.W. 458 (1923); Elliot v. City of University Place, 102 Neb. 273, 166 N. W. 621 (1918); Mabe v. Gross, 167 Neb. 593, 94 N.W.2d 12 (1959). What defendants' position fails to consider, however, is that the above "pecuniary loss" limitation is one associated with actions brought under the Wrongful Death Act (hereinafter referred to as the "Act") and the plaintiffs sue, not pursuant to this Act, but rather under general tort law as a separate cause of action on their own behalf. The fact that plaintiffs are attempting to do indirectly what the law forbids them to do directly may be of serious import. In addition, the law forbidding recovery for such mental distress under the Act may be of benefit in ultimately determining the Nebraska Court's receptiveness to plaintiffs' cause of action in this case. See, infra. However, this particular objection lacks vitality in light of the above distinction.

Secondly, defendants maintain that plaintiffs lack the legal capacity to sue in this action. The objection is based on the requirement, under the Act, that only the "personal representative" of the deceased may maintain a suit to recover for the death of the deceased. Again, the defendants fail to recognize that this objection is without application in the absence of the suit being brought under the Act. Granted, if such were the case, a dismissal or leave to amend would be in order, as to the mother's cause of action as she has not been so appointed. Russell v. New Amsterdam Casualty Company, 303 F.2d 674 (8 Cir., 1962). However, as stated in response to defendants' first objection, the plaintiffs in this matter are not proceeding under the Nebraska Wrongful Death Act, but have instituted an action independent of that Act, for their own suffering and injury allegedly incurred as the proximate result of the defendants' negligence. In such case, the Wrongful Death Act is of no consequence—it is the parents' cause of action, not that of the deceased child.

Defendants' third and most ominous ground for their motion to dismiss, is that Nebraska law does not allow recovery in the present situation. The issue thus presented is whether, under the applicable law, the father and mother of a deceased child should be allowed recovery for mental and emotional disturbance, resulting in physical injuries suffered as a result of their witnessing the mental and physical pain and suffering of their hospitalized child allegedly caused by the malpractice of the defendants. To determine this issue, Nebraska law must be considered. Erie Railroad Co. v. Tompkins, 304 U. S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Supreme Court of Nebraska has never been presented with the precise issue now before this Court.

The question presented here has been the subject of not a few interesting cases and articles. In the annotation found at 29 A.L.R.3d 1337, the text states:

"In determining this question, the courts have expressed several views, ranging from a traditional view that such damages are generally not recoverable, to the view that such damages are recoverable if the plaintiff's emotional disturbance was reasonably foreseeable; . . ." id at 1345.

Within the extremes mentioned in the foregoing statement are numerous qualifications and limitations representing gradual and marked departures from the traditional view of non-recovery.

In support of their contention that Nebraska does not recognize the present cause of action, the defendants direct this Court to the cases holding that in the absence of contemporaneous physical impact, recovery is denied for mental anguish and suffering caused by the witnessing of the injury of another due to the ordinary negligence of the defendant.

Although there are courts that have so held, generally their finding is based on the rule that a contemporaneous impact must accompany the negligence of the defendant before recovery is allowed in any case. See Beaty v. Buckeye Fabric Finishing Co., 179 F.Supp. 688 (D.Ark.1959); Preece v. Bauer, 143 F.Supp. 804 (D.Idaho, 1956); Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966), overruled as to "impact doctrine"; Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84.

The "impact" rule has been abrogated in Nebraska as to actions by plaintiffs to recover damages for physical injuries resulting from their own fear or fright which was negligently induced. Hanford v. Omaha & Council Bluffs Street R. Co., 113 Neb. 423, 203 N.W. 643 (1925); Netusil v. Novak, 120 Neb. 751, 235 N.W. 335 (1931); Rasmussen v. Benson, 133 Neb. 449, 275 N. W. 674 (1937), rehearing denied 135 Neb. 232, 280 N.W. 890 (1938).

Although the Hanford and Netusil cases were concerned more with the issue of recovery for physical injuries due to mental suffering than with the "impact" rule, they certainly provided a sound basis for the Court's specific abrogation of the "impact" rule in Rasmussen v. Benson, supra. In that case involving a farmer's physical degeneration and ultimate death from the emotional upset due to defendant's negligently selling him poison bran which he fed to his dairy herd, the Court expressly declared that the requirement of a physical impact was no longer viable in Nebraska after the Hanford and Netusil cases.

Two questions seem to arise due to the present Nebraska rule of "no impact:" (1) What type of physical injuries are required to follow the emotional disturbance to allow recovery; and (2) What effect does the rule that one may recover for an injury resulting from emotional disturbance caused, without impact, by the negligent act directed to him, have on the allowance of such recovery for injury resulting from fear or shock at the peril of another. Both of these questions are relevant to the disposition of the matters before this Court.

As to the first question, it is clear that, even though Nebraska has abrogated the "impact" rule, there is still a requirement that some type of "physical injury" result from the negligently inflicted emotional suffering. Nebraska law still does not allow recovery without "impact" for mental anguish alone, unless caused by a wilful, active or wanton act on the part of the defendant, such denial based on the intangible nature of mental suffering. Hanford, supra; Kurpgeweit v. Kirby, 88 Neb. 72, 129 N.W. 177 (1910); LaSalle Extension University v. Fogarty, 126 Neb. 457, 253 N.W. 424 (1934). The plaintiffs base their causes of action on negligence, not on an intentional act. Therefore, a "physical injury", as that term applies, must be found before the necessity of deciding the second issue arises.

The Hanford case gives this Court some flavoring of what a "physical injury" must entail for the purposes of applying this rule. In framing the issue in that case, the Court referred to such elements as ". . . nervous prostration and its attendant ills . .". id. 113 Neb. at 427, 203 N.W. at 645.

In Hanford, the "physical injury" was a...