Donna Reilly v. United States

547 A.2d 894, 1988 R.I. LEXIS 120, 1988 WL 80015

• Court: Supreme Court of Rhode Island
• Decided: August 5, 1988
• Docket: 87-468-Appeal
• Status: Published

Opinions

OPINION

SHEA, Justice.

This matter comes before the Supreme Court from the United States District Court for the District of Rhode Island. Two questions have been certified to us by the Honorable Raymond J. Pettine, senior judge of that court. The questions were certified following a trial in that court of a medical-malpractice action brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 through 2680 (West 1965).

The factual basis for the questions before us has been adjudicated in the case of Donna Reilly, Peter Reilly, and Heather Reilly, p.p.a. Donna Reilly and Peter Reilly. Heather Reilly was born at the Newport Naval Hospital in Newport, Rhode Island, on November 11, 1986, with severe brain damage.

Heather’s parents brought claim against the United States of America. They not only claimed Heather’s injuries and resulting damages including past and future care as well as pain and suffering but also made claims on their own behalf for emotional distress, loss of love, society, and affection of their daughter, and loss of each other’s consortium.

The trial judge found that Heather’s injury resulted from the negligent treatment given to her and her mother, Donna, during labor and delivery at the naval hospital. He awarded damages to Heather in an amount in excess of $11 million but reserved ruling on the parents’ claims for negligent infliction of emotional distress pending our decision on the two certified questions. They are as follows:

1. “Must a mother who has suffered psychic injury and who meets the criteria of D’Ambra v. United States, 114 R.I. 643, 658, 338 A.2d 524, 531 (1975) (i.e., physical proximity, actual witnessing of the negligent act, and close personal relationship with the victim) in that she was present throughout and participated in her daughter’s traumatic and negligent delivery, was aware of all the difficulties encountered by the attending physician, saw and heard the devastating results of the negligence of the attending obstetrician, and experiences and will continue to experience the constant stress inherent in caring for a child who has suffered a nearly total devastation of her mind and body, also suffer physical symptomatolo-gy in order to recover damages for negligent infliction of emotional distress?”

2. “Must a father who has suffered psychic injury and who meets the criteria of D’Ambra v. United States, 114 R.I. 643, 658, 338 A.2d 524, 531 (1975) (i.e., physical proximity, actual witnessing of the negligent act, and close personal relationship with the victim) in that he was present throughout and participated in his daughter’s traumatic and negligent delivery, was aware of all the difficulties encountered by the attending physician, saw and heard the devastating results of the negligence of the attending obstetrician, and experiences and will continue to experience the constant stress inherent in caring for a child who has suffered a nearly total devastation of her mind and body, also suffer physical symptomatolo-gy in order to recover damages for negligent infliction of emotional distress?”

Although this precise question has not to date been answered directly by this court, the issue has been addressed in Rhode Island case law and in prior federal-court cases that have interpreted Rhode Island law.

In D'Ambra v. United States, 114 R.I. 643, 657-58, 338 A.2d 524, 531 (1975), this court responded to a certified question from the First Circuit Court of Appeals and held that

“a nonnegligent mother, who although suffering no physical impact suffers serious mental and emotional harm accompanied by physical symptoms from actually witnessing the death of her nonnegligent minor child as a direct result of the defendant’s negligence, may maintain an action for negligent infliction of emotional distress, despite the fact that she herself was never in physical danger.”

In expanding the zone-of-physical-danger rule, this court listed three factors as being relevant to the scope of potential liability that would allow a bystander-plaintiff to recover for negligent infliction for mental and emotional injury: “physical proximity, the actual witnessing of the accident, and the personal relationship existing between the bystander-plaintiff and the victim.” Id. at 656, 338 A.2d at 531. Although physical symptomatology of emotional distress was not included as one of the factors to recover damages for negligent infliction of emotional distress, it was inherent in this court’s analysis and specific to its holding that the “serious mental and emotional harm [was] accompanied by physical symptoms.”

Furthermore this court addressed in D'Ambra the concept that there must be a physical manifestation of an emotional injury in order to recover damages for the negligent infliction of emotional distress. “Despite the admitted artificiality of linking recovery for mental distress to the possibility of physical injury, this limitation does reflect the core notion of some reasonable relation or nexus between the negligent conduct and the injury sued upon. Moreover, being a rule that is relatively easy to administer, it has the virtue of predictable application.” Id. at 656, 338 A.2d at 530-31.

Therefore, although the requirement of physical manifestation of an emotional injury was not one of the criteria listed in D'Ambra for bystander recovery, it is quite evident that when read in the context of this court’s analysis of the issue and the holding on the certified question from the First Circuit Court of Appeals, the fact that the plaintiff’s mental and emotional harm was accompanied by physical symptoms was an essential prerequisite to the determination of the issue.

Second, while D'Ambra was being litigated in the Federal Court, prior to our answer to the certified question presented by the First Circuit Court of Appeals, the United States District Court for the District of Rhode Island in two separate opinions determined that under Rhode Island law, recovery for mental distress required a manifestation of physical illness.¹

In D’Ambra v. United States, 354 F. Supp. 810 (D.R.I. 1973), the District Court denied the defendant’s motion to dismiss for failure to state a cause of action. It held that a cause of action for the negligent infliction of psychic injury exists under Rhode Island law. In discussing the law of Rhode Island the court noted,

“The ‘sifter’ established under Simone to ferret out the claims most amenable to fraud is the requirement that no recovery can be had for mental distress that has not manifested itself in physical symptoms.” Id. at 818.

Six months later the court awarded damages to the plaintiff. It again noted,

“One apparent intent of the Simone doctrine is to ferret out those claims of injury caused by fright which are most amenable to fraud. It therefore is the objective manifestation of the injury which is crucial, not whether the injury is, in conventional terms, physical or mental.” D'Ambra v. United States, 396 F. Supp. 1180, 1183 (D.R.I. 1973).

The case upon which that analysis was based is Simone v. Rhode Island Company, 28 R.I. 186, 66 A. 202 (1907). In Simone this court rejected the impact rule that states a plaintiff could not recover for physical injuries resulting from a mental disturbance unless the mental disturbance was caused by a physical impact to the plaintiff. In abandoning the impact rule, this court decided that a plaintiff may recover for bodily injury caused by fright, when the fright was caused by the negligence of the defendant even though there was no actual physical impact at the time of the accident, if the fright was followed by physical ills or gave rise to nervous disturbances that in turn led to physical ills.

Recent Rhode Island case law has affirmed that the Federal Court’s interpretation of Simone was correct. In Champlin v. Washington Trust Co. of Westerly, 478 A.2d 985 (R.I. 1984) (finding no intentional infliction of emotional distress in a debtor-creditor relationship), we stated, in dicta, “In days gone by, this court has recognized the right to recover damages by one who has been subjected to the intentional or the negligent infliction of mental distress as long as the distress was accompanied by physical ills. Bedard v. Notre Dame Hospital, 89 R.I. 195, 151 A.2d 690 (1959) (intentional) and Simone v. Rhode Island Co., 28 R.I. 186, 66 A. 202 (1907) (negligent).” 478 A.2d at 988.

We continue to agree with both the federal and the Rhode Island interpretation of Simone. Therefore, we must answer the questions certified to us by the District Court in the affirmative and find that under the law of the State of Rhode Island a plaintiff must suffer physical symptomatology to recover damages for negligent infliction of emotional distress. In so answering we adhere to the law that has been adopted by a persuasive majority of states that have confronted the issue.² The law is stated in the Restatement (Second) Torts § 436A (1965):

“If the actor’s conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.”

We base our adherence to this rule on two of the explanations listed in comment b to this section. First, “in the absence of the guarantee of genuineness provided by resulting bodily harm, such emotional disturbance may be too easily feigned, depending, as it must, very largely upon the subjective testimony of the plaintiff; and that to allow recovery for it might open too wide a door for false claimants who have suffered no real harm at all.” Second, “is that where the defendant has been merely negligent, without any element of intent to do harm, his fault is not so great that he should be required to make good a purely mental disturbance.” Id. at comment b.

The first explanation deals with the essential problem concerning claims for emotional distress: the inherent difficulty of proof. Emotional distress is an injury with vague and ambiguous symptoms. The evidence of the illness is in the subjective control of the sufferer. We recognize that a mental injury may not be less genuine absent physical symptomatology. However, we believe that because of the nature of the illness it is too difficult to substantiate absent objective physical symptomatology. We agree with the following observation made by the late Justice Samuel Roberts of the Pennsylvania Supreme Court in his dissenting opinion in Sinn v. Burd, 486 Pa. 146, 177-78, 404 A.2d 672, 688 (1979):

“[I]f there is no reasonable measure of plaintiff’s pain, then any recovery will be essentially speculative. Then, too, the nature of our society requires of each of us a remarkable degree of emotional fortitude. It is not unreasonable to draw the line between that degree which is required and that which is not by reference to that emotional distress which causes serious physical injury or harm. And it cannot be denied that if not the genuineness, then at least the intensity and thus the nature of the injury, may be difficult to assess where it causes no physical injury.”

We acknowledge that this court has recognized the advancements made in the field of psychiatry, State v. Correra, 430 A.2d 1251 (R.I. 1981), as well as the ability of our legal system adequately to defend itself against the prospect of an onslaught of fraudulent law suits. Digby v. Digby, 120 R.I. 299, 388 A.2d 1 (1978).

However, in requiring physical sympto-matology as an element of a claim for the negligent infliction of emotional distress, we focus our attention and our concern on the subjectivity inherent in a claim for purely emotional distress. Accordingly we adopt the reasoning applied by the Supreme Judicial Court of Massachusetts when faced with the same problem. It stated:

“The task of determining whether a plaintiff has suffered purely emotional distress, however, does not fall conveniently into the traditional categories separating the responsibilities of the judge from those of the jury. A plaintiff may be genuinely, though wrongly, convinced that a defendant’s negligence has caused her to suffer emotional distress. If such a.plaintiff’s testimony is believed, and there is no requirement of objective corroboration of the emotional distress alleged, a defendant would be held liable unjustifiably. It is in recognition of the tricks that the human mind can play upon itself, as much as of the deception that people are capable of perpetrating upon one another, that we continue to rely upon traditional indicia of harm to provide objective evidence that a plaintiff actually has suffered emotional distress.” Payton v. Abbott Labs, 386 Mass. 540, 547, 437 N.E.2d 171, 175 (1982).

The second reason for denying recovery for negligent infliction of emotional distress absent physical symptomatology listed under comment b that we find instructive is that when a defendant’s actions have been negligent, as opposed to intentional, his or her fault is not so great that he or she should be held responsible for a purely mental disturbance. We are focusing “not on the nature of the plaintiff’s loss, but on the source and scope of the defendant’s liability.” Norwest v. Presbyterian Inter-community Hospital, 293 Or. 543, 558, 652 P.2d 318, 327 (1982). We are reluctant to impose potentially unlimited and undeserved liability upon a defendant who is guilty of unintentional conduct. See generally Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort, 59 Geo. L.J. 1237, 1244 (1971).

By way of comparison, many states presently allow recovery for intentional infliction of emotional distress absent any physical manifestation of the injury. See Annot. Modern Status of Intentional Infliction of Mental Distress as Independent Tort; “Outrage” 38 A.L.R. 4th 998 (1985). In so doing they have adopted the Restatement (Second) Torts § 46 (1965) which states:

“Outrageous Conduct Causing Severe Emotional Distress

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to another results from it, for such bodily harm.”

Generally, liability will be imposed for this tort only when the defendant’s conduct has been “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) Torts § 46, comment d (1965); see also Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976).

The lack-of-bodily harm requirement for intentional infliction of emotional distress has been explained in that it is “[t]he outrageous and reckless or intentional nature of a defendant’s conduct [that] permits a jury to infer that the plaintiff suffered genuine emotional distress.” Payton, 386 Mass, at 547, 437 N.E.2d at 176. See also Restatement (Second) Torts § 46, comment k (1965). We do not necessarily agree with this reasoning. Emotional distress “ ‘does not become more real simply because it was intentionally inflicted.’” See Comment, Negligent Infliction of Emotional Distress: Proposal for a Recognized Tort Action, 67 Marq. L. Rev. 557, 600 (1984). Rather we believe that it is the outrageous and reckless or intentional nature of a defendant’s conduct that encourages courts, for public-policy reasons, to impose liability on defendants for plaintiffs’ emotional distress without requiring the indicia of objectivity provided by physical symptomatology. As Professor Prosser has noted in discussing the reasons for the physical manifestation requirement, “the courts have been quite unwilling to protect the plaintiff against mere negligence where the elements of extreme outrage and moral blame which have had such weight in the intentional tort context are lacking.” Prosser & Keeton, The Law of Torts, § 54 at 361 (5th ed. 1984). In contrast, when a defendant’s conduct is negligent, the justification for tort recovery is not so strong and recovery of damages should require objective proof of the illness.

In Rhode Island the most recent case dealing with intentional infliction of emotional distress is Curtis v. State Department for Children and Their Families, 522 A.2d 203 (R.I. 1987). In that case we upheld the grant of a directed verdict on a claim for intentional infliction of emotional distress. In so doing, we cited Bedard v. Notre Dame Hospital, 89 R.I. 195, 151 A.2d 690 (1959), for the proposition that mental anguish could not be considered an element of damages in the absence of allegations that it was accompanied by physical ills. Id. at 198-99, 151 A.2d at 692. We further cited Champlin v. Washington Trust Co. of Westerly, 478 A.2d 985, 989 (R.I. 1984), which adopted Restatement (Second) Torts § 46 (1965), and held that a claim for intentional infliction of emotional distress also requires proof of the defendant’s extreme and outrageous conduct. See also Elias v. Youngken, 493 A.2d 158 (R.I. 1985). We concluded that the plaintiffs did not state a claim for the intentional infliction of emotional distress because they “neither alleged nor presented evidence of physical ills suffered as a result of [their daughter’s] detention, nor did they present any evidence of conduct on the part of the defendants that could be considered extreme or outrageous.” Curtis, 522 A.2d at 208.³

If physical symptomatology is a requirement for a claim of intentional infliction of emotional distress, the public-policy argument requiring evidence of physical symp-tomatology when a defendant’s negligent conduct has allegedly inflicted emotional distress applies with even greater force. We hesitate to allow recovery for emotional distress absent physical symptomatology in a situation in which a defendant acts negligently when we do not allow recovery for emotional distress absent physical sympto-matology when a defendant has acted in an extreme or outrageous manner.

In conclusion we note that we are not attempting to trivialize the severe emotional distress the plaintiffs claim to have sustained. However, based upon prior Rhode Island case law and public policy concerns, we hold that a plaintiff must suffer physical symptomatology to recover damages for negligent infliction of emotional distress.

1 . See also Plummer v. Abbott Laboratories, 568 F. Supp. 920 (D.R.I. 1983) (granting a motion for summary judgment on the claim of negligent infliction of emotional distress in a product-liability action brought against the manufacturers of DES; in a well reasoned decision Judge Selya predicted that under Rhode Island law plaintiffs could not recover for the negligent infliction of emotional distress when there was no accompanying physical symptomatolo-gy); cf. Seitz v. L & R Industries, Inc., 437 A.2d 1345 (R.I. 1981) (denying compensation under the workers’ compensation statute for worker’s mental injury produced by mental stimulus in which there are neither physical causes nor physical results).

2 . Prosser and Keeton, The Law of Torts § 54 at 361 (5th ed. 1984).

3 . Therefore, the law in Rhode Island still requires physical symptomatology as an element of a claim when a defendant's intentional conduct has allegedly inflicted emotional distress. In so doing, we have applied a stricter standard of proof for this cause of action than that applied by the Restatement and many other states.