By Ashlie Keaton
Historically, Indiana had a long-standing rule of law that damages for mental distress or emotional trauma could only be recovered when the distress was accompanied by and resulted from a physical injury caused by an impact to the person seeking recovery — this became known as the “Impact Rule.” In 1991, the Indiana Supreme Court modified the requirement that the plaintiff personally suffer physical injury in order to recover for negligent infliction of emotional distress (“NIED”), noting that the court “perceived no reason under appropriate circumstances to refrain from extending recovery to instances where the distress is the result of a physical injury negligently inflicted on another.” Shaumber v. Henderson, 579 N.E.2d 452, 455 (Ind. 1991).
The Shaumber decision held that a person who sustains a direct impact during an incident causing injury to another is sufficiently involved in the incident to state a claim for NIED. This became known as the “Modified Impact Rule.” Notably, the Modified Impact Rule does not compel a party making a claim for NIED to demonstrate that he or she sustained a contemporaneous physical injury, but it does maintain the requirement that a direct physical impact occur. See Clifton v. McCammack, 43 N.E.3d 213 (Ind. 2015). The kind of impact sufficient to support a claim for NIED has been described as being “properly understood as being ‘physical’ in nature.” Ross v. Cheema, 716 N.E.2d 435, 437 (Ind. 1999).
Indiana courts have subsequently permitted recovery for NIED under narrow circumstances when a person has not sustained a direct impact, but does meet certain bright-line requirements to demonstrate that the party was sufficiently “directly involved” in the incident giving rise to a claim. This became known as the “Bystander Rule.” In Groves v. Taylor, 729 N.E.2d 569, 572 (Ind. 2000), the Indiana Supreme Court set out three factors that must be present in order to bring a claim under the Bystander Rule: 1) A fatal or serious injury must occur; 2) the death or serious injury must be that of a close relative; and 3) the plaintiff must witness the event or “gruesome aftermath” of the event shortly after it occurs without having learned of the death or injury by indirect means.
Indiana’s Bystander Rule sets forth specific requirements for recovery in order to prevent spurious claims, and the Supreme Court recently refused to expand the parameters for recovery under the Bystander Rule in its 2015 holding Clifton v. McCammack.
Is a physical injury required?
Must a physical injury occur before a plaintiff may recover for negligent infliction of emotional distress? Perhaps not. There is no question that in order to recover under the Impact Rule, a plaintiff must sustain a physical injury as a condition precedent to recovery for NIED. Additionally, under the Bystander Rule, a plaintiff must demonstrate that a close relative sustained a severe or fatal injury in order to maintain an NIED claim. Thus, it would seem that a physical injury must occur to someone before a claim for NIED may be brought under the Modified Impact Rule; however, this issue has not been directly addressed by Indiana courts. Indeed, there is at least one Indiana case to support an argument that the Modified Impact Rule does not require a physical injury to occur for recovery under an NIED claim.
In the case of Bader v. Johnson, 732 N.E.2d 1212 (Ind. 2000), the plaintiff parents underwent an amniocentesis and ultrasound at 19.5 weeks gestation to ascertain whether their unborn child had any abnormalities. The amniocentesis was normal, but the ultrasound revealed a larger than expected cavity within the brain and an unusual head shape. Follow-up testing was ordered; however, due to an office error, the testing was not scheduled nor were the plaintiffs or the treating physician informed of the abnormal ultrasound. At 33 weeks gestation, the treating physician performed an ultrasound that revealed the fetus had hydrocephalus, but it was too late to terminate the pregnancy. The child was born with multiple severe birth defects, and died from those defects four months after birth.
The plaintiffs alleged damages for NIED and for the loss of their ability to terminate the pregnancy, thereby avoiding the costs associated with carrying and giving birth to a child with severe defects. Id. at 1219. Despite the fact that there was no physical injury sustained by mother or infant which was causally related to the failure to inform the parents of the ultrasound results, the Indiana Supreme Court held that the plaintiff’s “continued pregnancy and the physical transformation her body underwent as a result” was sufficient to satisfy the direct impact requirement of the modified impact rule. Id. at 1222. This case illustrates a situation where, absent any physical injury caused by the negligence, the courts permitted recovery for NIED.
The Bader decision appears to be an anomaly in Indiana’s NIED jurisprudence that is inconsistent with the subsequent decisions of the Indiana Supreme Court which have repeatedly upheld narrow parameters for recovery on claims for NIED. However, the Bader decision has not been expressly disapproved, which may leave a door open for plaintiffs to challenge the necessity of a physical injury as a condition precedent for recovery on NIED claims under the Modified Impact Rule.
Despite Bader, in the current climate of Indiana’s negligent infliction of emotional distress law, any plaintiff seeking recovery on such a claim absent a showing of physical injury seems unlikely to succeed. As emphasized by the Indiana Supreme Court in its 2011 holding in Spangler v. Bechtel, “Indiana has never recognized an action for emotional distress predicated upon a breach of an alleged duty not to inflict emotional injury on another. Such independent, stand-alone actions for negligent infliction of emotional distress are not cognizable in Indiana.” 958 N.E.2d 458, 466 (Ind. 2011).•
Ashlie Keaton is a partner in the Indianapolis office of Keaton and Keaton P.C. Her primary practice is litigation with a focus on the defense of medical malpractice and complex liability matters. She may be contacted at firstname.lastname@example.org or 317-927-5967. The opinions expressed are those of the author.