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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. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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