By Ada Kulesza
A Pennsylvania Supreme Court decision in December set a new precedent in medical malpractice litigation, expanding the claim of “negligent infliction of emotional distress” (known as the NIED claim) to include people who’ve been emotionally harmed but suffered no physical damage due to medical negligence. In other words, people can have their day in court.
The highest court in the Commonwealth said that a doctor’s misinformation caused new mother Jeanelle Toney significant distress when she gave birth to a deformed baby boy, even though knowing about his condition during the pregnancy could never have saved her baby.
In 2005 Toney had a pelvic ultrasound at the Chester County Hospital near Philadelphia. She was in the late stages of a pregnancy with her son, and the radiologist, Maheep Goyal, M.D., told her the pregnancy was normal.
The mother gave birth to a boy with no arms below the elbows, no legs below the knees, and a deformed jaw, tongue, and penis, with an umbilical hernia.
She filed a suit against the radiologist, the hospital, and the University of Pennsylvania, which was immediately thrown out of trial court in its early stages because of lack of legal precedent. Toney appealed and the appellate court said she had a right to a suit.
The defendants appealed that decision to the Supreme Court, which narrowly affirmed the appellate court’s decision.
Now Toney’s case will go back to trial court, says attorney Mary Beth Davis, an associate at McCumber Daniels in Philadelphia.
Extreme Emotional Duress
Davis, who specializes in civil defense litigation, says the radiologist missed the deformities. “It’s not that he knew and didn’t report it. I don’t think he detected it. I think the point is that even if the radiologist had seen the deformities, it would not have changed the outcome.”
In most medical malpractice suits, attorneys try to prove that a deformity could have been prevented “and the baby saved of these defects. That’s not even alleged in this case.”
“[The attorneys] don’t go so far as to say that it was genetic, but there was certainly no claim that the radiologist’s detection would have changed the outcomes. The argument was, had [the doctor] picked up on the deformities, then she could have prepared
herself,” Davis says.
Ms. Toney’s attorney in the case, Stephen Raynesof Raynes McCarthyin Philadelphia, writes in a statement: “The opinion upholding the judgment recognizes that although not every fiduciary relationship will give rise to a claim for damages, where the specific professional responsibility of an attending physician is to convey accurate information, then failure to do so can give rise to liability if the physician’s breach results in unusual and extreme emotional distress on the part of the plaintiff.”
This will create interesting questions about the nature of distress, Davis says. “Would (knowing) have saved the mom from being upset? How do you measure how upset the mother would have been? Do you say, ‘Oh no, she wouldn’t have been equally as upset’? Is it really a strict liability?”
Davis agrees with the three dissentingjudges, who warned against “judicial policy-making” in their opinions. However, three judges were enough to assent with the appellate court’s decision, with one judge withholding, probably because that judge had sat on the appellate court when it made its decision on the case.
Deep Impact
In an article about the case, the National Law Reviewsays precedent required victims of malpractice to prove they were impacted physically to justify recovery for NIED. Interpretations of NIED later expanded to include victims who are nearly physically impacted, and bystanders who witness a person being harmed physically.
The Pennsylvania Supreme Court’s decision expands NIED further, but states, “NIED is not available in gardenvariety ‘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.”
Raynes doesn’t anticipate the court’s decision creating backlog in the legal system. “We do not anticipate any measurable increase in suits. During the three years since the Superior Court’s en bancdecision recognizing a potentially broader scope of liability, the number of medical malpractice filings in Pennsylvania has continued to decline,” he writes.
Davis, however, says it makes medical professionals more vulnerable to frivolous lawsuits. In her law firm’s legal blog, she writes, “The Toney decision raises quite a few questions … How does the healthcare provider ever prove that the emotional harm suffered would have been just as devastating if learned earlier, since the outcome could not have been changed?”
The appellate and supreme courts apparently felt that knowing beforehand would have lessened the shock if the child was still in utero and the mother couldn’t yet see him. It will now be up to Toney’s legal team to prove that Dr. Goyal’s breach of duty resulted in extreme harm that a reasonable person should not be expected to endure. Davis predicts the case won’t see a courtroom for another two years or so, but she expects the it will be
significant. “It’ll be interesting to watch how this unfolds,” she says.
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