NIED claims- Given new life by a split Pennsylvania Supreme Court

In Toney v. Chester County Hospital, an evenly divided Pennsylvania Supreme Court recently held that a plaintiff in a medical malpractice action may proceed with a negligent infliction of emotional distress cause of action without having sustained any physical impact, "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."  This is a change from prior case law which required that some physical harm have been suffered by the plaintiff, not just a purely emotional or psychic injury.

In the underlying case, the plaintiff-mother received an ultrasound while pregnant and was told her child was fine.  However, she later gave birth to a child with severe abnormalities.  Plaintiff-mother filed suit against her care providers, with her sole claim being that she suffered severe emotional distress as a result of being incorrectly informed that her fetus was fine based upon the ultrasound, as she was not prepared to see her child born with congenital abnormalities.                                                                                                                                                                                                                                            

The Chester County CCP dismissed the claim on PO’s, which was reversed by the Superior Court en banc.  In affirming the Superior Court, the three Justices in favor of affirmance wrote that an NIED cause of action can exist without any physical impact where a duty exists out of a particularly special relationship, such as a physician-patient relationship, and emotional distress is foreseeable.  These three Justices looked to the jurisprudence of other states that have reached a similar result, and noted that the NIED cause of action has evolved over time in Pennsylvania out of “humanitarianism.”   

Notably, Justice Orie Melvin did not participate in the case, as she sat on the Superior Court’s en banc panel and had authored a dissenting opinion, i.e. she was not in favor of the ruling which was affirmed by three of her Supreme Court colleagues. Additionally, the three dissenting justices believed that the Supreme Court should not be creating new causes of action in medical malpractice litigation, as the General Assembly is the proper body to do so.  Accordingly, should this issue reach the Supreme Court again, as presently constituted, there is a basis to conclude that a four justice majority may reverse the Toney decision.  (Thanks to Frank Camarota, Esq. of Christie Pabarue and Young, for help with the case analysis.)

 Here is a link to the Opinion of the Court: 

http://www.aopc.org/OpPosting/Supreme/out/J-7-2010pco.pdf