Are emotional distress claims recognized in a court of law? - Or Nursing Law

AORN Journal,  April, 2002  by Ellen K. Murphy

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Claims for negligent infliction of emotional distress are among the more controversial in modern tort law. (1) For the most part, courts have not allowed successful suit for negligent infliction of emotional distress without some proof of concomitant physical injury. For example, healthy patients tend to lose emotional distress suits if they are told negligently that they have a serious disease. Misdiagnosis of illness, even when negligently made, does not cause physical harm to healthy patients; however, a patient who has a contralateral limb negligently removed could sue for the emotional distress caused by the negligent removal of the healthy limb. The reason for this concomitant physical injury requirement is to afford some guarantee that the mental distress suffered by the patient is genuine.

The law has recognized some exceptions to the general rule. Among them is the "bystander" rule, which allows close relatives to sue for their own emotional distress should they observe severe physical injury being inflicted negligently on a loved one. For example, parents may be able to sue if they observe their child being hit by a negligently driven automobile. Another exception is the "fear of disease" rule, which is the most recently evolved exception. This rule is used by plaintiffs who have been exposed to asbestos or other toxic substances but who may not experience any physical injury until after the time limit for filing suit has passed.

The fear of disease rule varies from state to state, but typically, it requires that the plaintiff actually fear the disease, that he or she be able to prove exposure to the disease-causing agent, and that the fear be considered reasonable. This role has given some plaintiffs who have been exposed to HIV negligently the ability to sue successfully for their emotional distress during the window of time until they learn whether they have acquired HIV, regardless of whether they actually develop AIDS. The requirement that the plaintiff be able to prove that he or she actually was exposed to HIV is intended to prevent opening the floodgates of litigation to spurious claims.

AN EXAMPLE

A recent Oregon appellate court case illustrates an interesting situation with direct relevance to perioperative nurses. In Rustvold v Taylor, 14 P3d 675 (Ore App 2000), a patient sued her anesthesia care provider and the hospital after the anesthesia care provider administered her IV medication with a syringe that might have been used previously.

The plaintiff had undergone a routine rib resection at the defendant's hospital. During the procedure, the anesthesia care provider administered medication directly into her IV tubing. When cleaning up after the procedure, the anesthesia care provider discovered two used syringes on his tray. Both had been used to administer the same medication. He could not tell which one had been used on the plaintiff, nor could he discern whether he had used the same syringe on a previous patient.

The anesthesia care provider informed the patient he could not tell whether the needle he used to administer her medication had been used previously. He suggested that she be vaccinated for hepatitis B and tested for HIV. At first she refused, but ultimately, she began the hepatitis B vaccination schedule and underwent HIV testing on three occasions. Each time, she tested negative, and eventually, physicians concluded she was not infected with either HIV or hepatitis B. Physicians also determined that the patient whose syringe may have been used during the plaintiff's procedure was not infected with either HIV or hepatitis B.

In her suit, the plaintiff alleged that the anesthesia care provider and hospital were negligent in failing to ensure that she was not given medication with a syringe that had been used on another patient and in failing to clean up properly after the previous procedure. She alleged that these failures caused her emotional distress because she feared contracting a bloodborne disease and she also sustained physical injuries to her arm and shoulder associated with subsequent testing and treatment.

Oregon case law requires that to recover damages for purely emotional harm, the plaintiff had to prove that the defendants had a specific duty to avoid causing her to fear that she would become infected with hepatitis B or HIV. The appellate court concluded she had not. This conclusion may be unique to Oregon law because an argument could be made that such a duty

   arises within the ordinary knowledge that a potential exposure to HIV or
   hepatitis B causes emotional trauma to anyone in patient's circumstances.
   (2)

Furthermore, because the plaintiff had offered no evidence that she actually was exposed to either hepatitis B or HIV, her case could not be allowed to proceed.

The court did, however, allow the plaintiff to proceed with her case to determine the value of the injuries to her arm and shoulder. They refused to allow this physical injury to establish her entitlement to damages for emotional distress.