Toney v. Chester Cnty. Hosp.

• Decision Date: 22 December 2011
• Citation: 36 A.3d 83
• Parties: Jeanelle Antionette TONEY v. CHESTER COUNTY HOSPITAL, the Chester County Hospital Foundation, Inc., Maheep Goyal, M.D., East Marshall Street Radiology, the University of Pennsylvania d/b/a the University of Pennsylvania Health System a/k/a the Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania, and the Trustees of the University of Pennsylvania.Appeal of Chester County Hospital and Chester County Hospital Foundation, Inc.Jeanelle Antionette Toney v. Chester County Hospital and the Chester County Hospital Foundation, Inc., Maheep Goyal, M.D., East Marshall Street Radiology and the University of Pennsylvania d/b/a the University of Pennsylvania Health System a/k/a the Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania, and the Trustees of the University of Pennsylvania.Appeal of Maheep Goyal, M.D., the University of Pennsylvania d/b/a the University of Pennsylvania Health System a/k/a the Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania, and the Trustees of the University of Pennsylvania.
• Court: Pennsylvania Supreme Court

36 A.3d 83

Jeanelle Antionette TONEY

v.CHESTER COUNTY HOSPITAL, the Chester County Hospital Foundation, Inc., Maheep Goyal, M.D., East Marshall Street Radiology, the University of Pennsylvania d/b/a the University of Pennsylvania Health System a/k/a the Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania, and the Trustees of the University of Pennsylvania.Appeal of Chester County Hospital and Chester County Hospital Foundation, Inc.Jeanelle Antionette Toney

v.Chester County Hospital and the Chester County Hospital Foundation, Inc., Maheep Goyal, M.D., East Marshall Street Radiology and the University of Pennsylvania d/b/a the University of Pennsylvania Health System a/k/a the Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania, and the Trustees of the University of Pennsylvania.Appeal of Maheep Goyal, M.D., the University of Pennsylvania d/b/a the University of Pennsylvania Health System a/k/a the Clinical Practices of the University of Pennsylvania a/k/a Hospital of the University of Pennsylvania, and the Trustees of the University of Pennsylvania.

Supreme Court of Pennsylvania.

Argued March 10, 2010.Decided Dec. 22, 2011.

Nos. 60 MAP 2009, 61 MAP 2009, Appeal from the Order of the Superior Court at No. 1191 EDA 2007 Striking the Application for Reargument dated 12–02–2008 of the Order dated 11–12–2008 Reversing in Part/Affirming in Part and Remanding the Order of Chester County at No. 05–05122 dated 4–19–2007. 961 A.2d 192 (Pa.Super.2008), Jaqueline C. Cody, J.Benjamin A. Post, Daniel Jay Rovner, Berwyn, Kristen JoAnn Loerch, Kristi Lynn Thomas, Philadelphia, Post & Post, L.L.C., Jessica Kelly Webb, for Chester County Hospital and the Chester County Hospital Foundation.

Robert B. Hoffman, Elizabeth Kreder McCoy, Eckert Seamans Cherin & Mellot, LLC, Harrisburg, for Appellant Amicus Curiae, Pennsylvania Medical Society.

Arthur B. Keppel, Charles A. Fitzpatrick, Rawle & Henderson, L.L.P., Philadelphia, for M. Goyal, MD; University of PA; Trustees of the University of PA.Daniel Bencivenga, Stephen Edward Raynes, Philadelphia, Raynes McCarty, for Jeanelle Antionette Toney.BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

ORDER

PER CURIAM.

AND NOW, this 22nd day of December, 2011, the Court being equally divided, the Order of the Superior Court is AFFIRMED.

Justice ORIE MELVIN did not participate in the consideration or decision of this case.

Justice BAER files an opinion in support of affirmance in which Justice TODD and McCAFFERY join.

Justice TODD files an opinion in support of affirmance.

Chief Justice CASTILLE files an opinion in support of reversal.

Justice SAYLOR files an opinion in support of reversal in which Justice EAKIN joins.

Justice BAER, in support of affirmance.

We granted review of this case to consider whether a cause of action for negligent infliction of emotional distress, hereinafter NIED, exists where the emotional distress results from a “negligent breach of a contractual or fiduciary duty,” absent physical impact or injury. After review of the development of the tort of NIED under Pennsylvania law and that of our sister states, we conclude that it is appropriate to extend liability for the infliction of emotional distress to a limited species of cases. As more fully defined below, we would hold that NIED is not available in garden-variety “breach of contractual or fiduciary duty” cases, but only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.¹ We further conclude that recovery for NIED claims does not require a physical impact. Accordingly, we would affirm the result of the Superior Court's decision, which reversed the trial court's order sustaining the defendants' preliminary objections and dismissing the plaintiff's complaint with prejudice.

The parties do not dispute any factual issues relevant to our decision. All agree that the above-captioned defendants, hereinafter Defendants, either directly or vicariously, performed a pelvic ultrasound study on Plaintiff Jeanelle Antionette Toney and her unborn child on March 3, 2003. Defendants interpreted and reported the results to Plaintiff as normal. On July 3, 2003, however, Plaintiff gave birth to her son who had several profound physical abnormalities.² Plaintiff, who was conscious during the birth, alleges that Defendants' negligent misinterpretation of the March 2003 ultrasound prevented her from preparing herself for the shock of witnessing her son's birth with such substantial physical deformities.

Plaintiff avers that she suffered emotional distress due to the shock, which manifested in, inter alia, nausea, headaches, insomnia, depression, nightmares, flashbacks, repeated hysterical attacks, stress, and anxiety. Equally important, Plaintiff does not allege that the misinterpretation of the ultrasound was, in any way, causally related to the deformities presented, nor did it alter or delay the treatment of the deformities. Instead, Plaintiff seeks remuneration solely for the emotional distress she claims she continues to suffer from witnessing the birth of her physically deformed son without prior knowledge of the deformities.

Plaintiff filed a medical malpractice action on June 29, 2005 in the Chester County Court of Common Pleas, alleging that the Defendants, as health care providers for Plaintiff and her child, had a duty to provide them with skilled and competent medical care, diagnosis, treatment, and attention. Plaintiff alleged that Defendants breached this duty when they negligently misinterpreted and misreported the ultrasound as normal, causing her to suffer emotional distress because they did not provide her with the “opportunity to brace herself for the shock [of witnessing her child's birth with profound abnormalities], without the benefit of seeking psychiatric, religious, or social counseling, [and] without the benefit of making appropriate arrangements prior to [her child's] birth.” (Compl. at 11–12).

Defendants filed preliminary objections claiming that Plaintiff failed to state a claim for NIED, because, inter alia, Plaintiff's claim did not meet any of the established tests for NIED, such as the zone of danger or bystander theories of liability, discussed infra, and because Defendants' actions in no way caused the deformities suffered by Plaintiff's child. ³ Plaintiff responded by claiming that the Pennsylvania Superior Court in Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25, 27 (Pa.Super.2000); Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 633 A.2d 605 (Pa.Super.1993); and Crivellaro v. Pennsylvania Power and Light Co., 341 Pa.Super. 173, 491 A.2d 207 (1985), recognized that NIED can be based upon a pre-existing fiduciary or contractual relationship, in addition to the more common zone of danger and bystander theories of NIED liability discussed in detail below.

The trial court dismissed Plaintiff's complaint on April 19, 2007.⁴ Relying upon Doe, 745 A.2d at 27, the trial court stated that a claim of NIED requires one of the following four elements:

(1) that the Defendant had a contractual or fiduciary [relationship with Plaintiff]; (2) that Plaintiff suffered a physical impact; (3) that Plaintiff was in a “zone of danger” and at risk of an immediate physical injury; or (4) that Plaintiff had a contemporaneous perception of tortious injury to a close relative.Tr. Ct. Slip Op. at 3. The court added that Plaintiff must also prove bodily harm resulting from the emotional distress. The trial court observed that the first category of NIED, involving a preexisting fiduciary or contractual relationship, has only been recognized in two Pennsylvania appellate court cases. The court first reviewed Crivellaro, in which a plaintiff claimed that she was wrongly subjected to thirty-three days of an intensive and abusive alcohol and drug detoxification program on threat of termination from her employer. Crivellaro claimed that she suffered physical symptoms resulting from emotional distress allegedly caused by the negligent operation of the detoxification program that the defendant-employer ordered her to attend. The trial court in the case at bar noted that the Superior Court in Crivellaro found that the plaintiff had sufficiently alleged a duty, a breach, and a causal connection between the alleged breach and the plaintiff's injuries, and reversed the prior order sustaining the preliminary objections in the nature of a demurrer.

The trial court sub judice also reviewed Armstrong, 633 A.2d 605, which involved a defendant-hospital that informed a plaintiff that her husband had been in a severe accident. The plaintiff suffered emotional distress when it was revealed that her husband was not involved in the crash. The Superior Court concluded that the hospital was not liable, in part, because the hospital did not owe the plaintiff a pre-existing duty of care because neither she nor her husband was a patient. Without the pre-existing duty, no liability existed according to the court in Armstrong.

Applying this law to the case at bar, the trial court noted that NIED liability was viable in this case only under the fiduciary or contractual relationship theory of NIED liability, because Plaintiff did not allege facts that would bring her claim within the traditional physical impact, zone of danger, or bystander theories of NIED liability. The court acknowledged Plaintiff's argument that a doctor-patient relationship existed, but disagreed with Plaintiff that she suffered physical symptoms as a result of Defendants' misreading of the ultrasound. Instead, the court found that the emotional distress suffered by Plaintiff was due to her child's deformities, which she did not...