In injury cases, a claim of negligent infliction of emotional stress alleges defendant failed to use reasonable care to avoid causing emotional distress to another, and for this is liable for monetary damages. While claim may also be made for intentional infliction of emotional distress, negligent infliction of emotional distress does not require plaintiff to prove intent.
Many jurisdictions limit negligent infliction of emotional distress claims, as they have historically been controversial.
Florida, for example, follows the the “impact rule” for those who wish to make such a claim. It requires plaintiff prove:
- Plaintiff suffers a physical injury
- Caused by emotional trauma
- Of seeing, witnessing or otherwise being involved in some way in the event causing negligent injury to another, and
- Plaintiff must have a close personal relationship directly to the injured person.
The state necessitates a discernible physical injury in order to make a claim for negligent infliction of emotional distress. Although several appellate courts have ruled that rule should be abolished, they are nonetheless bound by the Florida Supreme Court’s adherence to it, which was reaffirmed again most recently in 1995 in Zell v. Meek, though it did expand the time-and-place requirements to allow for delayed physical responses.
Different states adhere to different rules of recovery for negligent infliction of emotional distress. In the recent California case of Keys v. Alta Bates Summit Med. Ctr., a daughter and sister of a woman who died during post-surgical treatment sought damages for negligent infliction of emotional distress, which the trial court awarded and appellate court affirmed.
Defendant hospital had appealed on grounds plaintiffs could not have had a meaningful comprehension of the negligent medical care that led to the death of their loved one at the time the alleged negligence was happening.
According to court records, patient underwent thyroid surgery in September 2008, and she was accompanied to the appointment by her sister and daughter. After surgery, a nurse noted patient’s breathing appeared labored. Specifically, it seemed her airway was obstructed. Nurse contacted a rapid assessment team for evaluation, and within five minutes, the doctor was called and came to assess. He tried repositioning her and suctioning her mouth and nose. He removed bandages and sutures on the incision to help relieve the pressure. But the patient stopped breathing. A code blue was called. Patient was without a pulse for several minutes. She suffered permanent brain injury, and was transferred to the ICU where she died several days later after being taken off life support.
Throughout, patient’s daughter and sister were present. They say they were frustrated that the nurses at least initially weren’t moving fast enough. There seemed to be no sense of urgency, they would later testify.
After the death, patient’s two daughters and her sister filed a wrongful death lawsuit, with claims of negligent infliction of emotional distress for the daughter and sister who had witnessed patient’s care.
At trial, jurors awarded the sisters $1 million on the wrongful death claim and $175,000 and $200,000 respectively for negligent infliction of emotional distress to the family members who were present in the hospital.
Hospital appealed on the negligent infliction of emotional distress claims (not on the wrongful death finding), alleging the finding was unsupported by evidence because there was no proof the daughter or sister knew what was happening as it was happening. The California Court of Appeal, First Appellate District, Division Three, disagreed, and affirmed the award.
There is no “impact rule” requirement in California, so the pair did not need to show they had suffered a physical injury of their own in order to collect on these claims.
Witnessing the final moments of a loved one can be agonizing, particularly when the death is the result of negligence. Our experienced Fort Myers wrongful death lawyers are prepared to answer all of your questions about compensation for medical bills, lost wages, pain and suffering and negligent infliction of emotional distress.
If you have been injured in Fort Myers, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Keys v. Alta Bates Summit Med. Ctr., March 25, 2015, California Court of Appeal, First Appellate District, Division Three
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