Simons v. Beard

• Decision Date: 26 June 2003
• Citation: 188 Or. App. 370,72 P.3d 96
• Parties: Tess SIMONS, Appellant, v. Duane BEARD, M.D.; and Salem Hospital, an Oregon nonprofit corporation, Respondents.
• Court: Oregon Court of Appeals

72 P.3d 96

188 Or. App. 370

Tess SIMONS, Appellant, v. Duane BEARD, M.D.; and Salem Hospital, an Oregon nonprofit corporation, Respondents.

00C-13519; A114365.

Court of Appeals of Oregon.

Argued and Submitted April 8, 2003.

Decided June 26, 2003.

Kathryn H. Clarke, Portland, argued the cause for appellant. With her on the briefs was Gregory A. Smith.

Ruth Casby Rocker, Portland, argued the cause for respondent Duane Beard, M.D. With her on the brief were Janet M. Schroer and Hoffman, Hart & Wagner, LLP, Portland.

Keith J. Bauer, Salem, argued the cause for respondent Salem Hospital. With him on the brief was Parks, Bauer, Sime & Winkler, LLP, Salem.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.

HASELTON, P.J.

Plaintiff appeals from the dismissal, pursuant to ORCP 21 A(8) and B, of her amended complaint seeking damages for emotional distress that she experienced as a result of defendants' allegedly negligent provision of obstetrical care. In reviewing that dismissal, we assume the truth of all well-pleaded facts in the amended complaint and give plaintiff the benefit of all reasonable inferences that can be drawn in her favor. See Greene v. Legacy Emanuel Hospital, 165 Or.App. 543, 545, 997 P.2d 265 (2000),

aff'd,

335 Or. 115, 60 P.3d 535 (2002). Applying that standard, we conclude that the amended complaint stated a claim for recovery of emotional distress damages under the "physical impact" rule. Accordingly, we reverse and remand.

Plaintiff's amended complaint alleged the following material facts: On May 30, 1998, plaintiff went into labor at full term and entered defendant Salem Hospital. Electronic fetal monitoring showed that plaintiff's fetus had borderline tachycardia (a high pulse rate), which alternated with abnormal decreases in the fetus's heart rate. Defendant Dr. Duane Beard, plaintiff's treating obstetrician, examined her and determined that the fetus was in a "transverse lie" position. That is, that, instead of being in the normal "head down" position, the fetus was lying sideways to the birth canal.

As alleged in the amended complaint, defendants knew or should have known that

"such a transverse lie makes spontaneous delivery of a fully developed infant impossible and that such a position greatly increases both maternal and fetal risk of death if not corrected prior to the onset of active labor."

Given those circumstances, defendants knew, or should have known that

"attempts to `tip' the baby into a head-down position (i.e., version) were mandatory * * * [and] continued observation of both mother and unborn child in the hospital with continuous fetal monitoring was necessary to determine if and when the unborn child went into fetal distress, thus requiring immediate medical and/or surgical (i.e., Cesarean section) care."

Notwithstanding those risks, defendant Beard discharged plaintiff from the hospital without ordering further tests or monitoring and without attempting to reposition the fetus into a position that would permit spontaneous vaginal delivery.

Several hours later, in the early morning of May 31, plaintiff called the hospital to inform the obstetrical nurses that her membranes had ruptured and her mucous plug had become dislodged. The nurses told plaintiff not to return to the hospital until her contractions became stronger or more frequent. Plaintiff returned to the hospital several hours later. At that time, an ultrasound examination revealed that the fetus had died. Defendant Beard subsequently returned to the hospital and repositioned the fetus to correct the transverse lie, and plaintiff then vaginally delivered the dead child.

In April 2000, plaintiff brought this action. In her amended complaint, plaintiff alleged that, as a result of defendants' negligence described above, she

"was caused to suffer the continued impact of her unborn child's transverse lie across the upper part of her birth canal which caused severe apprehension as to the safety and well being of herself and her child [resulting] in Plaintiff suffering extreme emotional trauma * * *."

Plaintiff further alleged that defendants' negligence "was a substantial and foreseeable factor in causing the prolonged and improper impact (transverse lie) of Plaintiff's baby upon her birth canal, her emotional distress and the loss of her baby."¹

Defendant Beard moved to dismiss for failure to state a claim, ORCP 21 A(8), and defendant Salem Hospital moved for judgment on the pleadings, ORCP 21 B. Defendants advanced three alternative, but related, arguments: (1) Plaintiff's action was barred under Oregon's wrongful death statutes. That was so because, however styled, plaintiff's claim sought to recover emotional distress damages for the alleged wrongful death of her unborn child, and Oregon law does not permit such a recovery. See ORS 30.020(2)(d); Horwell v. Oregon Episcopal School, 100 Or.App. 571, 574-75, 787 P.2d 502 (1990).² (2) Plaintiff's amended complaint failed to allege a legally sufficient basis for the recovery of emotional distress damages under the "physical impact" rule. See, e.g., Saechao v. Matsakoun, 78 Or.App. 340, 717 P.2d 165,

rev. dismissed, 302 Or. 155, 727 P.2d 126 (1986).(3) Plaintiff's amended complaint failed to allege a legally sufficient claim for medical malpractice permitting the recovery of emotional distress damages. See generally Curtis v. MRI Imaging Services II, 327 Or. 9, 956 P.2d 960 (1998); Rustvold v. Taylor, 171 Or.App. 128, 14 P.3d 675 (2000),

rev. withdrawn, 332 Or. 305, 37 P.3d 147 (2001).³

Plaintiff responded by acknowledging that, under Horwell, she could not recover emotional distress damages for "the loss of her baby." She argued, however, that she had adequately pleaded a distinct claim for her own suffering and emotional distress, based on the alternative theories that she was a direct victim of defendants' professional negligence or that she had suffered a physical impact as a result of that negligence sufficient to permit her to recover for negligent infliction of emotional distress. In that regard, plaintiff's counsel offered the following explanations during colloquy with the trial court:

"[The claim is] for the miscarriage. It's emotional distress based on a miscarriage. It is clearly not, nor could it be for the loss of the baby * * *.

"* * * * *

"[The claim] brought by the mother regarding the negligent care provided to her directly by Dr. Beard in the hospital seeks a claim not for loss of the child, but for emotional distress damages as a result of her suffering a miscarriage caused by medical negligence."

As support for the proposition that plaintiff could recover damages for emotional distress associated with the "miscarriage," counsel invoked Saechao and Sherwood v. ODOT, 170 Or.App. 66, 11 P.3d 664 (2000), rev. den., 331 Or. 692, 26 P.3d 149 (2001). Plaintiff's counsel then concluded, "[T]he Oregon law, even cited by the defendants, show[s] that an action for miscarriage is appropriate. We've alleged all along that plaintiff seeks emotional harm damages relating to the termination of this pregnancy."⁴

The trial court agreed with defendants, concluding that the pleadings contained no allegations that plaintiff "suffered an injury causing a miscarriage." The court also referred to a dictionary definition of "miscarriage" as "expulsion of a human fetus before it is viable and esp. between the 12th and 28th weeks of gestation"⁵—and, at least implicitly, determined that, because plaintiff had not suffered a "miscarriage" under that definition, she could not recover damages for her apprehension about the well-being of her unborn child.

On appeal, plaintiff asserts that her amended complaint is legally sufficient to support the recovery of emotional distress damages under either of two alternative theories. First, and more broadly, plaintiff contends that her pleadings state a claim under the "physical impact" rule. Second, even if the amended complaint does not allege an actionable "physical impact," its allegations of medical negligence are nevertheless sufficient under Curtis to support the recovery of emotional distress damages.

We begin with plaintiff's "physical impact"-related theory of recovery. In general, albeit subject to limited exceptions, e.g., Curtis, Oregon courts do not permit the recovery of damages for negligently inflicted emotional distress in the absence of evidence of some related physical injury. See generally Hammond v. Central Lane Communications Center, 312 Or. 17, 816 P.2d 593 (1991)

. In Chouinard v. Health Ventures, 179 Or.App. 507, 514-15, 39 P.3d 951 (2002), we explored the contours of the "physical impact" requirement:

"Neither the Supreme Court nor we have sought to define the minimum amount of bodily harm necessary to constitute a physical impact. See Shoemaker v. Management Recruiters International, 125 Or.App. 568, 573-74, 865 P.2d 1331 (1993)

. In Hammond, however, the Supreme Court declined the plaintiff's invitation to depart from its cases requiring a physical impact as a prerequisite to recovery for negligently inflicted emotional distress. 312 Or. at 26-27,

816 P.2d 593. The court's adherence to its precedent suggests that its earlier opinions, which required some form of physical injury, remain good law. See Fehely v. Senders, 170 Or. 457, 461, 135 P.2d 283 (1943). Consistently with Fehely, we have referred to the physical impact rule as requiring a `physical injury' that gives rise to emotional distress. See Rustvold v. Taylor, 171 Or.App. 128, 137, 14 P.3d 675 (2000); Curtis v. MRI Imaging Services II, 148 Or.App. 607, 612, 941 P.2d 602 (1997),

aff'd on other grounds

327 Or. 9, 956 P.2d 960 (1998). We have recognized, however, that the notion of a physical injury also includes offensive sexual touching that gives rise to emotional distress. Wilson v. Tobiassen, 97 Or.App. 527, 532, 777 P.2d 1379,

rev. den. 308 Or. 500, 784 P.2d 441 (1989); see Shoemaker, 125...