Articles Posted in Emotional Distress Cases

Memphis, Tennessee medical malpractice cases always seem to have a more than their fair share of twists and turns.  This health care liability case has more twists and turns than the Cherohala Skyway TN 165 / NC143 from Tellico Plains to Robbinsville ( a great road for our motorcycling friends).

During her third pregnancy, Plaintiff Michelle Rye was under the care of Dr. Diane Long, a physician with Women’s Care Center of Memphis. Because Ms. Rye has Rh negative blood, the standard of care dictated she be given a RhoGAM injection during her pregnancy.   The defendants failed to give Ms. Rye the RhoGAM injection and she developed Rh-sensitization as a result.   Rh-sensitization is a condition in which, if the in utero child has Rh positive blood, the mother’s antibodies attack the baby’s blood cells causing injury to the baby. 

The defendants admitted they failed to comply with the standard of care but denied the plaintiffs had suffered any damage. In particular, in support of their motion for summary judgment, the defendants attached the affidavit of Dr. Stovall who opined it could not be said with any reasonable degree of medical certainty that any Rh-sensitized female would ever sustain any injuries or damage and the same was true even if the woman conceived another child as the child would have to have Rh-positive blood for the condition to be in play.

Negligent infliction of emotional distress is a relatively new tort in Tennessee.  True, the tort existed in the early days of Tennessee tort law (not by that name, but the root concept was out there) but the circumstances giving rise to liability were extremely narrow.

All of that changed a little less than twenty years ago and we know have a nice body of law on negligent infliction of emotional distress claims.  I wrote an article on subject in an article  for the May, 2013 edition of the Tennessee Bar Journal, a publication of the Tennessee Bar Association. Click on the link o get a good grasp on the current Tennessee law of negligent infliction of emotional distress. 

The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a)  the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer’s agent.  

Defendant North American hired a private investigator to determine whether Lawlor, a former employee of North American, had violated a covenant not to compete contained in her employment contract with the company.  The private investigator assessed the Lawlor’s cell and home telephone records without her permission, causing her emotional distress.

The Court first recognized that existence of a tort that had never been expressly recognized by the High Court in Illinois.  The Court adopted Section 652B of the Restatement (Second) of Torts, which  provides as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of  another or his private  affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

It takes a particular type of jerk to project a loogie onto a hamburger that is being served to another person.  (I guess you would never do that to a hamburger you intended to eat yourself.)    And there is a relatively small subset of jerks who would do this to a police officer who ordered the burger for a late-night meal.

Now, what are the odds that the police officer would sense that something was amiss before eating that burger?   Deputy  Bylsma from Clark County, Washington did, and when he pulled the top of the bun off his burger he observed  a “slimy, clear and white phlegm glob” on the meat patty.

Now, the good deputy had one course of action that comes immediately to mind.  He could go into Burger King, identify which of the only two people on the job committed this act, and then proceed to resolve the situation with a good ol’ fashioned ass whipping.  But Bylsma was smarter than that.

The U.S. Supreme Court reversed a Tennessee Court of Appeals case on the proper instruction to the jury in an FELA case when the plaintiff is seeking damages for fear of developing lung cancer.  The worker alleged that his work exposed him to asbestos, which caused asbestosis. He sought pain and suffering damages for fear of developing lung cancer.

The railroad asked that the jury be instructed that the fear must be "serious and genuine" to be compensable.  The Tennessee Court of Appeals upheld the trial judge’s refusal to give such an instruction.  The High Court reversed, saying "the volume of pending asbestos claims and also because the nature of those claims enhances the danger that a jury, without proper instructions, could award emotional distress damages based on slight evidence of a plaintiff’s fear of contracting cancer."  (Interesting rationale, isn’t it?  There are so many people who have been hurt and killed by asbestos that we need to set the bar high on the issue of damages.  The worse the product, the higher the standard, I guess.)

Doesn’t the gatekeeper function of the court in evaluating expert testimony already address this issue?  Not according to the Supreme Court;