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DTCI: Negligent infliction of emotional distress

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There are few torts that have been subject to more expansion and modification in the last 20 years than negligent infliction of emotional distress. Before 1991, Indiana followed the direct-physical-impact rule for nearly a century. The impact rule required that a party could recover for emotional distress or trauma only when that distress was caused by physical injury to the party seeking the recovery. Shuamber v. Henderson, 579 N.E.2d 452, 454 (Ind. 1991). The Shuamber court re-examined this rule in 1991 where a mother and daughter sought recovery for their emotional injuries associated with a car accident in which they were involved and their son and brother was killed. Id. at 453.

lange Lange

While the court refused to abolish the impact rule completely, it determined that, under appropriate circumstances, recovery for emotional distress should be extended to include instances where the claimed emotional damage is the result of physical injury to another person. Id. at 455. In essence, the court no longer required that the plaintiff actually suffer the physical injury. Thus, it adopted the modified impact ruling when it held that:

When, as here, a plaintiff sustains a direct impact by the negligence of another and, by virtue of that direct involvement sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person, we hold that such a plaintiff is entitled to maintain an action to recover for that emotional trauma without regard to whether the emotional trauma arises out of or accompanies any physical injury to the plaintiff. Id.

Impact requirement further diluted

The type or magnitude of the impact necessary to assert a claim for negligent infliction of emotional distress was further diluted by the Indiana Supreme Court in 1999 in Conder v. Wood, 716 N.E.2d 432 (Ind. 1999), a case in which the plaintiff pounded on the defendant’s truck in an effort to prevent it from running over her friend. The court noted the diminished significance of the “contemporaneous physical injuries in identifying legitimate claims” and determined that the direct impact should instead be understood to mean “direct involvement” in the incident that gave rise to the claim. Conder at 435. It held that “it matters little how the physical impact occurs, so long as that impact arises from the plaintiff’s direct involvement in the tortfeasor’s negligent conduct.” Id. Under the direct involvement analysis, it mattered neither that the plaintiff was uninjured nor even that the plaintiff initiated the contact.

In 2000, the court applied the direct involvement test to a medical malpractice claim in Alexander v. Scheid, 726 N.E.2d 272 (Ind. 2000). The plaintiff claimed a failure to diagnose lung cancer. She also made a claim for negligent infliction of emotional distress. The defendant claimed that the failure to diagnose lung cancer was not an impact as required by Shuamber. Alexander at 283. The court determined, however, that the impact had nothing to do with the failure to diagnose lung cancer but rather that the plaintiff allegedly suffered damage to healthy lung tissue. Id. The court went on to find that this physical change was “good enough” to satisfy the modified impact rule. Id. In doing so the court specifically disapproved of an earlier appellate court decision that found that the failure to diagnose lung cancer did not constitute the direct involvement needed to satisfy Shuamber. See Etienne v. Caputi, 679 N.E.2d 922 (Ind. Ct. App. 1997).

Bystander rule

Recovery was further expanded when the court created an exception to the modified impact rule in Groves v. Taylor. There, the minor plaintiff heard a “pop” and turned to see her brother’s body roll off the highway after being struck by a vehicle. Groves v. Taylor, 729 N.E.2d 569, 571 (Ind. 2000). The court reasoned that there are circumstances where a plaintiff can be directly involved enough in the incident that a physical impact is not required. Id. at 572. Accordingly, the court established the “bystander rule,” which permits recovery when the direct impact test is not satisfied. Recovery is permitted under the bystander rule if (1) the plaintiff witnessed or came upon the scene soon after the death or severe injury of (2) a loved one with a relationship similar to that of a parent, child or sibling and (3) that injury was caused by the defendant’s negligence. Id.

In the context of a medical malpractice case, the Supreme Court held that the plaintiff’s physical transformation by way of a continued pregnancy in a “wrongful birth” case satisfied the direct impact rule in Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000). Interestingly, the court left open the issue of whether the husband could recover for emotional damages under the bystander rule. Bader at 1222. The court did not address whether the husband’s claim would be independent or derivative, however.

The appellate court expanded the bystander rule further in Blackwell v. Dykes Funeral Home, 771 N.E.2d 692 (Ind. Ct. App. 2002). Even though the plaintiffs did not witness a death or severe injury to a loved one, the appellate court found the Groves reasoning persuasive and permitted a claim for negligent infliction of emotional distress where the plaintiffs’ son’s cremated remains were misplaced. Despite the absence of any impact and the absence of actually witnessing death or injury of a loved one, the court found that the emotional trauma alleged was unlikely to be speculative or exaggerated. Blackwell at 696.

Continuing this expansion, in Keim v. Potter, 783 N.E.2d 731 (Ind. Ct. App. 2003), the court determined that a patient mistakenly diagnosed with hepatitis C could maintain a claim for negligent infliction of emotional distress despite technically satisfying neither the impact rule, the modified impact rule, nor the bystander rule. Instead, the court determined that the plaintiff, by virtue of alleging medical malpractice, was directly involved to satisfy the modified impact rule. Keim at 735. In a footnote, the court went so far as to say that it need not entertain the idea of not applying the impact rule to medical malpractice cases because “patients who bring medical malpractice claims satisfy the requirements of the modified impact rule.” Id. n.4.

Slowing the expansion of the rule

The Supreme Court seemingly attempted to stop the expansion of negligent infliction of emotional distress and the repeated calls to eliminate entirely the rule requiring an impact in Atlantic Coast Airlines v. Cook, 857 N.E.2d 989 (Ind. 2006). The appellate court initially found that the plaintiffs could proceed with their claim for emotional distress under the modified impact rule based on the smelling of cigarette smoke and the feeling of floor vibrations. Atlantic Coast Airlines at 993, 998. The court, however, was unwilling to go that far and refused to acknowledge an impact based upon “constructive impact.” Id. at 999. The court also reiterated the requirement that a plaintiff satisfy the modified direct impact test to prevail on claim for negligent infliction of emotional distress. In doing so that court stated:

It is our view that the requirements under Indiana’s rule are modest and a less restrictive rule would raise the potential for a flood of trivial suits, pose the possibility of fraudulent claims that are difficult for judges and juries to detect, and result in unlimited and unpredictable liability. We therefore reaffirm that Indiana’s impact rule continues to require a plaintiff to demonstrate a direct physical impact resulting from the negligence of another. Id. at 997.

Likewise, the Supreme Court went on to refuse to expand the bystander rule in Smith v. Toney, 862 N.E.2d 656 (Ind. 2007). The court determined that a fiancé was not analogous to a spouse for purposes of satisfying the Groves test. In addition, the court found that the Groves test carries with it a time and circumstance component that requires that the “scene viewed by the claimant must be essentially as it was at the time of incident [and] the victim must be in essentially the same condition as immediately following the incident.” Id. at 663.

More recently, in medical malpractice cases, attention has turned to whether a plaintiff can bring an independent claim for negligent infliction of emotional distress for purposes of accessing more than one damages cap based upon a single injury. The appellate court addressed the issue in Indiana Patient’s Compensation Fund v. Winkle, 863 N.E.2d 1 (Ind. App. Ct. 2007), a case involving injury to the mother and the stillbirth of the child. There, the plaintiffs settled with defendants for access to the Patient’s Compensation Fund. At the damages hearing, the trial court determined that the plaintiffs were entitled to three separate statutory damage awards. The first was for the mother’s neurological injuries, while the other two were for each of the plaintiffs’ claims for negligent infliction of emotional distress. Winkle at 3.

The appellate court disagreed and, in a lengthy analysis, ultimately held that the plaintiffs were entitled to access only one damages cap. The court determined that under the language of the Medical Malpractice Act, both parents’ claims for negligent infliction of emotional distress were derivative of the malpractice committed on the unborn child. But because the unborn child cannot have a claim under the language of the act, having not been born alive, there was no one from whom the claim of negligence infliction of emotional distress could derive. Id. at 10. Accordingly, only the mother was entitled to a cap for her injuries and any emotional damages would likewise fall under that cap. Id. Interestingly, despite the Supreme Court’s recent holdings in Atlantic Coast Airlines and Toney, the appellate court in Winkle noted that claims for negligent infliction of emotional distress no longer require an underlying physical injury or a physical impact. Winkle at 5.

IED and Medical Malpractice Act

The Supreme Court seemingly affirmed that negligent infliction of emotional distress is available as a derivative claim under the Medical Malpractice Act in Indiana Patient’s Compensation Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010). There, the Supreme Court noted the general availability of the claim in medical malpractice cases. It went on, however, to find that the Medical Malpractice Act does not create new causes of action but simply provides for those that are available at common law or under other applicable statutes. Patrick at 194. Accordingly, because emotional damages were unavailable under the Adult Wrongful Death Act, the claim could not be brought as a derivative claim under the Medical Malpractice Act. Id.

Most recently, the Indiana Supreme Court in Spangler v. Bechtel, 958 N.E.2d 458 (Ind. 2011), a stillborn fetus case, made several important clarifications pertaining to emotional distress in medical malpractice cases. First, despite several previous holdings to the contrary, the court announced negligent infliction of emotional distress is not an independent cause of action. “Such independent, stand-alone actions for negligent infliction of emotional distress are not cognizable in Indiana.” Spangler at 466. Second, the court determined that a claim for emotional distress is not necessarily a derivative claim only. Id. at 471. Finally, the court found that even though a stillborn fetus is not a child as defined by statute and as discussed in Winkle, parents can still maintain a claim for negligent infliction of emotional distress under the bystander rule. The court reasoned that the death of an unborn child is still an injury to a child and as such, it is sufficient to support a claim for negligent infliction of emotional distress. Id. at 468-69. In a footnote, the court clarified that even if separate recoveries for emotional damages are allowed, only one damages cap could be accessed. Id. n.8.

Summary

Negligent infliction of emotional distress continues to develop in Indiana and with it so does the opportunity for recovery for plaintiffs in medical malpractice cases. Fortunately, the Supreme Court seems to have put some limits on the evolution and clarified that the tort is not an independent cause of action under the malpractice act. Whether this trend continues with the new court remains to be seen.•

Mr. Lange is an associate in the Indianapolis office of Stewart & Irwin and is a member of the DTCI. The opinions expressed in this article are those of the author.

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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