Day on Torts
In Henderson v. The Vanderbilt University, No. M2016-01876-COA-R9-CV (Tenn. Ct. App. May 31, 2017), the Court of Appeals overturned summary judgment on a negligent infliction of emotional distress claim, holding that “the alleged failure of the defendant hospital to provide care to the plaintiffs’ daughter, despite repeated assurances from the hospital that it would occur, constitutes an injury-producing event that was witnessed by plaintiffs.”
Plaintiffs brought their 10-year-old daughter to defendant hospital for septic shock related to the flu. She was admitted to the pediatric ICU on March 23, 2013, and given fluids and other medicines, but “no central line was placed; no echocardiogram was performed; no one called for a cardiology consult.” On the morning of March 24th, plaintiffs “witnessed their daughter go into cardiac arrest.” Plaintiffs were escorted out of the room while defendant spent two hours performing CPR. After the cardiac arrest, plaintiffs allege that the child’s condition deteriorated, and during a procedure on April 4th, she suffered a stroke and was ultimately pronounced brain dead. Care was withdrawn the child passed away on April 5th.
Plaintiffs filed suit for wrongful death and negligent infliction of emotional distress (NIED). Defendant filed a motion for summary judgment on the NIED claim, asserting that plaintiffs “had not witnessed an injury-producing event necessary to sustain their NIED claim,” that “complications” could not form the basis of an NIED claim, and that the event that actually caused the death of the child was the stroke, which was not witnessed by plaintiffs.
Plaintiffs responded by arguing that the stroke was not the sole cause of their daughter’s death, but that “Vanderbilt’s failure to appropriately treat the child’s shock caused a chain reaction that ultimately led to the child’s stroke and death.” According to plaintiffs, the events leading up to and including the cardiac arrest were the basis of their NIED claim. Plaintiffs stated that they “repeatedly asked that the child receive additional care during the approximately twelve hours between her admittance to Vanderbilt and her arrest.” Plaintiff father stated that he asked about a cardiology consult at least five times, and that he was assured one had been ordered, though it never was. Plaintiffs alleged that they were becoming more and more upset in the hours leading up to the arrest, and that the mother was in the room with the daughter when the arrest occurred and the father was just outside the room and could hear his wife screaming and his child’s machines sounding. The father also stated that he saw his child “arch up and urinate during the cardiac arrest.”
Plaintiffs submitted expert testimony regarding the psychological effects this event had caused them, including medication for anxiety and depression, inability to work for several months for the father and at all for the mother, and two suicide attempts by the mother. Plaintiffs’ experts stated that the events leading up to the cardiac arrest were the cause of plaintiffs’ emotional injuries. Further, plaintiffs had an expert who testified that the “child’s death was a result of untreated shock.”
The trial court ultimately granted defendant’s motion for summary judgment on the NIED claim, holding that plaintiffs “were not in sufficient proximity to the injury-producing event and did not meaningfully comprehend the injury producing event.” The Court of Appeals, though, overturned this ruling.
The Court of Appeals went through a lengthy discussion of the history of NIED claims in Tennessee, noting that the “Tennessee Supreme Court addressed the substantive merits of NIED claims on seven occasions” between 1996 and 2008, and that in that time the rules around NIED claims had been relaxed. Beginning with Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996), the Court abolished the rule “requiring that the plaintiff suffer a physical injury in addition to emotional damages as a result of the defendant’s conduct.” In the Camper case, the Court “specifically noted it was rejecting the physical impact rule as ‘an arbitrary and inadequate means of reconciling the competing concerns of the law.’” (quoting Camper). That same year, in Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996), the Court recognized bystander NIED claims, a new class of potential plaintiffs. Later, the Court allowed an NIED claim to “proceed even in the absence of a close relationship between the plaintiff and the victim, where the plaintiff directly observed the death of the victim and perpetrator knew that the plaintiff was in close physical proximity.” (Lourcey v. Estate of Scarlett, 146 S.W.3d 48 (Tenn. 2004)). In 2008, the rules were expanded again when the Court allowed a parent to continue with an NIED when the parent was not actually present when the accident occurred, but arrived soon after the accident and saw the family member “lying in a pool of blood.” (Eskin v. Bartee, 262 S.W.3d 727 (Tenn. 2008)). The Eskin Court specifically noted that two important considerations led to its decision—first, that “emotional injuries to individuals are easily foreseeable where the plaintiff has a close personal relationship with an injured party,” and second, that there was a “lack of a principled basis to differentiate between a parent who sees or hears the accident that seriously injures or kills his or her child and a parent who sees his or her injured or dead child at the scene shortly after the accident.”
Getting back to the instant matter, the Court first addressed defendant’s argument that plaintiffs “failed to show that they witnessed an injury-producing event for purposes of serving as the predicate of their bystander NIED claim.” Defendant asserted that “to qualify as an injury-producing event, the event must be a specific, identifiable injury-producing event…rather than a constellation of care,” and that “an injury-producing event cannot be a drawn-out series of failures but must essentially result from a sudden accident.” The Court rejected this argument, finding that there was no Tennessee law to “support [defendant’s] view that alleged negligence over a period of time in the healthcare context cannot constitute an injury-producing event for purposes of an NIED claim.” The Court stated that defendants were asking for “new limitations on what constitutes an injury-producing event for purposes of an NIED claim,” and it refused to impose such limits.
Next, the Court addressed the argument that the injury-producing event be sudden, an argument advanced by both the defendant and the dissent which was rejected by the majority. The Court conceded that the negligence here was not sudden, and that “many of the cases in which NIED claims have been recognized by the Tennessee Supreme Court involved accidents, often sudden ones.” But the Court ruled that adopting “a sudden occurrence rule would be to impose a new limitation on Tennessee NIED jurisprudence,” and it pointed out that many previous NIED cases were not based on sudden occurrences, such as a case involving a plaintiff who sued when her child died because plaintiff had previously been infected with HIV during a transfusion years earlier and was never warned about the exposure. (See Estate of Amos v. Vanderbilt University, 62 S.W.3d 133 (Tenn. 2001)). The Court stated that “failure to warn over a period of years and wrongful birth due to HIV exposure years earlier simply does not constitute a sudden accident as Vanderbilt suggests.” While rejecting defendant’s argument, the Court also pointed out that New Mexico is the only state that adheres to a sudden occurrence rule and that “the Tennessee Supreme Court has expressly rejected other rules that would limit NIED recovery because they were arbitrary restrictions on otherwise meritorious NIED claims.”
The Court reasoned that applying a sudden occurrence rule would lead to an arbitrary result here:
There can be no dispute that [plaintiffs] were present and witnessed a series of events where Vanderbilt promised to provide specific care to the child, all the while failing to provide the promised care. …[T]he record in this case shows that [plaintiffs] were becoming distressed by what they perceived as Vanderbilt’s failure to care for their daughter over a period of approximately twelve hours. Accordingly, [plaintiffs] did realize at the time that their daughter was going untreated[.]
Based on the facts of this case and the trend in NIED law, the Court strongly rejected the sudden occurrence argument advanced by the dissent, stating:
[P]laintiffs with bystander NIED claims must not only witness injury-producing events, under the dissent’s proposed rule, the injury producing event must ostensibly be singular and occur suddenly. Defendants whose negligence occurs repeatedly or over a period of time before an injury occurs are seemingly shielded from liability under the dissent’s suggested rule, even when the plaintiff is present and witnesses the negligence. Such a rule is clearly contrary to not only the precedent set by the Tennessee Supreme Court… but also our supreme court’s recognition that negligence occurs not only through misfeasance, but also nonfeasance when the defendant has an affirmative duty to act. …[T]he sudden occurrence rule constitutes little more than an attempt to insulate negligent defendants from the foreseeable results of their negligence.
Next, the Court addressed defendant’s argument that Tennessee should adopt the reasoning of a California Supreme Court case which stated “the plaintiff’s presence at the scene of the injury-producing event at the time it occurs and the plaintiff’s awareness that it is causing injury to the victim are absolute prerequisites to NIED recovery in bystander cases.” (internal citation and quotation omitted). The California case found that “unperceived medical errors hidden in a course of treatment could not serve as an injury-producing event for purposes of the NIED claims.” (internal citation and quotations omitted). The Court of Appeals, though, rejected this line of reasoning. First, the Court noted that “Tennessee’s NIED jurisprudence is far more relaxed than that adopted by California courts,” and that the case on which much of the California case cited by defendants was based upon had been specifically rejected by the Tennessee Supreme Court as being too narrow. Second, the Court noted that here, plaintiffs “undisputedly witnessed [the] failure of treatment,” and that plaintiffs were contemporaneously aware of the lack of a cardiology consult, which had been promised various times. Thus, even under the strict limitations suggested by defendant, the Court insinuated that plaintiffs’ claim in this case would still stand.
Finally, the Court rejected defendant’s assertion that public policy supported adopting “a broad rule disallowing NIED claims in the medical negligence context.” Defendant argued that “to allow [plaintiffs’] claims would be to open the flood gates to NIED cases in all healthcare liability cases and to force medical providers to prohibit family members from visiting hospital patients.” In response to this argument, the Court found:
[T]he Tennessee Supreme Court recognized the danger of meritless NIED claims and has adopted explicit rules to address that danger without sacrificing meritorious claims. …The Tennessee Supreme Court has never, however, held that eliminating an entire class of negligence as constituting an injury-producing event was necessary to separate meritorious from meritless claims. Vanderbilt’s suggesting that this Court adopt a broad rule prohibiting all bystander NIED claims based upon medical negligence therefore conflicts with the Tennessee Supreme Court’s stated desire to eliminate arbitrary rules barring otherwise meritorious claims. …In line with this more relaxed standard for NIED claims in Tennessee, were this Court to adopt the rules advanced by Vanderbilt, it would be imposing additional restrictions on NIED claims, contrary to the clear trend to expand the circumstances under which plaintiffs may recover for NIED. …Finally, we note that adopting a blanket rule disallowing NIED claims involving medical negligence…conflicts with prior Tennessee caselaw wherein medical negligence served as the predicate tort for NIED claims.
(internal citations omitted). Having rejected all of defendant’s arguments, the Court held that plaintiffs’ “perception of Vanderbilt’s alleged failure to provide promised care over a period of hours constitutes an injury-producing event for purposes of [plaintiffs’] NIED claim,” and summary judgment was overturned.
As noted above, Judge Gibson wrote a dissent here, stating that she did not believe that “a course of conduct over a period of hours” was “consistent with the Tennessee Supreme Court’s choice of the phrase ‘injury-producing event.’” She reasoned that while “the Tennessee Supreme Court has never specifically required a sudden, traumatic event, the cases considered by that court lead me to the conclusion that an identifiable event is required to state a claim for NIED,” and that NIED was not intended to compensate plaintiffs for “the emotional impact of observing pain and suffering of a loved one.”
The majority opinion here decided this case correctly. As the Court pointed out several times, drawing a distinction between witnessing a sudden accident that injured your child and witnessing the failure of a healthcare facility to provide adequate care to your child would be utterly arbitrary. Especially in a case like this one, where plaintiffs were aware that the hospital was failing to provide adequate care and were becoming more and more distressed by the situation, a claim for NIED should be viable, even without a sudden accident or event.
Also, note that the Plaintiffs’ lawyer did a great job marshalling the evidence here to create a genuine issue of material fact on the NIED claim. In some ways, the main argument here was one of law – could an NIED claim be asserted under the circumstances. But by putting the evidence in the record of what occurred and the consequences of it, Plaintiffs’ counsel helped the Court understand why this claim should be allowed under the asserted facts.