Thorpe v. State, Dept. of Corrections, 89-422
| Decision Date | 24 May 1990 |
| Docket Number | No. 89-422,89-422 |
| Citation | 575 A.2d 351,133 N.H. 299 |
| Parties | James THORPE v. STATE of New Hampshire, DEPARTMENT OF CORRECTIONS, et al. (New Hampshire Board of Claims). |
| Court | New Hampshire Supreme Court |
Backus, Meyer & Solomon, Manchester (Jon Meyer, on the brief and orally), for plaintiff.
John P. Arnold, Atty. Gen. (Claire L. Gregory, Asst. Atty. Gen., on the brief, and Douglas Jones, Asst. Atty. Gen., orally), for State.
The plaintiff, James Thorpe, brought an action against the New Hampshire Department of Corrections and the New Hampshire Division of Public Health Services (the defendants), alleging they were negligent in erroneously diagnosing, treating and counseling him for syphilis, and claiming, inter alia, damages for emotional distress. Following a hearing before the New Hampshire Board of Claims (the Board), the plaintiff was awarded $2,000 for unnecessary treatment and counseling and $4,000 for emotional distress. The defendants appeal the emotional distress award, arguing that the Board erred as a matter of law in awarding the plaintiff damages where he did not claim any physical injury and did not present expert testimony on the issue of proximate cause or physical manifestations of emotional distress. For the following reasons, we reverse.
The facts are as follows. James Thorpe was arrested in August, 1987, and was incarcerated in the New Hampshire State Prison. On August 9, 1987, he was given a routine test for syphilis that the prison administers to all new inmates or detainees. On August 20, 1987, a physician's assistant informed Mr. Thorpe that he had tested positive for syphilis, and that same evening the plaintiff was brought to the infirmary and treated for the disease. The treatment consisted of two penicillin shots, along with oral medication to facilitate the absorption of the penicillin. On September 2, 1987, Ms. Percival, a disease intervention specialist, met with the plaintiff to discuss the manifestations of syphilis, the means of transmittance and the treatment for the disease. She told him that his wife would have to be notified that she may have been exposed to syphilis, and that either Mr. Thorpe or the division of public health services could contact her. The plaintiff attempted to call his wife himself, despite court orders prohibiting such contact. He was unable to inform her that he had been diagnosed as having syphilis because she hung up on him. He then contacted other members of his family, however, and asked them to advise his wife to get tested. The division of public health services did not notify Mr. Thorpe's wife of her possible exposure.
About an hour after meeting with Mr. Thorpe on September 2, Ms. Percival was informed that he did not in fact have syphilis. She immediately instructed the prison to convey this information to the plaintiff. Mr. Thorpe testified, however, that he was not told he did not have syphilis for up to a week after he met with Ms. Percival.
The plaintiff brought suit in the board of claims, alleging inter alia, that he suffered emotional distress as a result of the defendants' erroneous diagnosis, treatment and counseling for syphilis. During the hearing before the Board, Mr. Thorpe testified that he was "devastated" and "very depressed" after he was told he had syphilis because he had "never had a social disease in [his] life." This was the only testimony offered by the plaintiff concerning the emotional distress he had suffered as a result of the defendants' errors. On cross-examination, Mr. Thorpe was asked whether he "had suffered any ... physical manifestations or symptoms as a result of the episode involving syphilis...." The plaintiff answered "no." He was then asked whether he had filed any request slips with the prison indicating he was suffering any physical manifestations or symptoms. Mr. Thorpe responded that he had filed request slips indicating he was suffering from "severe stomach problems and psychological problems." These request slips were not included in the record, and the plaintiff testified that he was not sure of the date when the stomach problems began. He conceded that no definitive diagnosis has ever been made establishing the source of his stomach problems.
In response to two separate questions, Mr. Thorpe testified that stomach problems were the only physical manifestations he claimed to be suffering as a result of the misdiagnosis, treatment and counseling. However, in answer to questions posed by the Board, the plaintiff also indicated that he had a hiatal hernia which he believed was partly related to the stress he was suffering from being told he had syphilis. Mr. Thorpe also said that, in his opinion, the hernia may have been caused by the treatment he had received.
The plaintiff offered no expert testimony that the misdiagnosis, treatment and counseling proximately caused him to suffer emotional distress. In addition, he offered no expert testimony that he experienced any physical manifestations from the emotional distress.
Following the hearing, the board of claims awarded Mr. Thorpe $4,000 in damages for emotional distress. The Board found that The defendants duly filed a motion for reconsideration, see RSA 541-B:10, IV (Supp.1989); RSA 541:3, which the Board denied, see RSA 541:5. Pursuant to RSA 541:6, the defendants appealed the decision of the board of claims to this court.
The first issue we will address is whether or not the plaintiff must prove that the mental distress manifested itself through physical symptoms. The law in New Hampshire is well established that the specific circumstances under which a plaintiff may recover damages for emotional distress are limited by the doctrine of foreseeability. See Corso v. Merrill, 119 N.H. 647, 651-52, 406 A.2d 300, 303 (1979); Chiuchiolo v. New England, etc., Tailors, 84 N.H. 329, 337, 150 A. 540, 544 (1930). In Chiuchiolo we determined that a plaintiff could recover damages for mental distress under a theory of negligence only if he or she suffered physical symptoms as a result of the emotional distress. Chiuchiolo, 84 N.H. at 337-38, 150 A. at 544-45. This court expounded on the negligence theory in Corso, wherein we stated:
Corso, 119 N.H. at 652-53, 406 A.2d at 304 (citations omitted). Mr. Thorpe argues, based on Chiuchiolo, that damages for mental distress are given in all cases of liability for personal injury where there is impact, and that it is unnecessary to prove he suffered physical consequences from the distress. He alleges that the penicillin injections constituted unwarranted impact, rendering the physical manifestations requirement irrelevant. While the plaintiff may be correct that the shots established impact, he did not charge the defendants with liability for personal injury; hence, he cannot recover based on the rule enunciated in Chiuchiolo. See Chiuchiolo, 84 N.H. at 334, 150 A. at 543. Mr. Thorpe also makes alternative arguments that he is entitled to recover damages for emotional distress without having to prove that he suffered physical consequences. In light of our holding that he is required to prove physical manifestations of his distress, we need not address each argument.
The plaintiff points out that while he is claiming emotional distress as an element of damages under a traditional negligence theory, the Corso case involved a claim for negligent infliction of emotional distress suffered by a bystander in response to the occurrence of physical injury to another person. Corso, 119 N.H. at 650, 406 A.2d at 302. The analysis in Corso, however, was based on traditional negligence principles, id. at 657, 406...
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