In a recent Pennsylvania Supreme Court Case, Toney v. Chester County Hospital, an evenly divided Court permitted a claim for emotional distress to remain even where the plaintiff suffered no physical impact. The Plaintiff, Toney, underwent an ultrasound and was advised that it showed a normal baby. To the contrary, the baby was born with severe deformities that included all four limbs terminating at the elbow or knee. A divided Superior Court held that a claim for Negligent Infliction of Emotional Distress (NIED) could be brought under these facts.
The ancient doctrine that required a physical impact in order for a plaintiff to recover was expanded in 1970, when the Supreme Court implemented the zone of danger theory in Niederman v. Nrodsky, providing NIED compensation to those who are in close proximity to physical danger even if they failed to show physical impact. In Sinn v. Burd, the court once again expanded the NIED claims and added the bystander liability theory, allowing plaintiffs recovery for emotional distress if they had witnessed a serious accident to a family member from outside the “zone of danger”.
In her 2005 Medical Malpractice case, Plaintiff Janelle Antoinette Toney sued Chester County Hospital, the University of Pennsylvania, and Dr. Maheep Goyal, the Penn Radiologist who interpreted Toney’s ultrasound as normal. Toney alleged to have suffered after witnessing the birth of her physically deformed son without having sufficient time to prepare herself for the experience and therefore sought damages for her emotional distress. The defendants filed preliminary objections claiming the Plaintiff did not state a claim for NIED because she did not meet any of the established requirements for NIED – she did not fall under the zone of danger theory or the bystander liability theory.
The Pennsylvania Supreme Court reversed the trial court’s decision and granted an appeal in order to decide whether a cause of action for NIED can exist where the emotional distress results from a “negligent breach of a contractual or fiduciary duty.”
Three justices of the Pennsylvania Supreme Court agreed that the mother does have a cause of action for negligent infliction of emotional distress, while another three justices declined to support the mother’s theory of liability, thus leaving the vote split with Justice Orie Melvin declining to participate. This plurality opinion affirmed the Superior Court’s decision to recognize the extension of NIED, concluding that it was appropriate to expand liability for the infliction of emotional distress to a “limited species of cases.” The Supreme Court reversed the trial court’s order supporting the defendants’ preliminary objections.
The three supporting Justices concluded that recovery for NIED claims should not require a physical impact; rather, judges should decide whether a sufficient duty exists on a case-by-case basis. Justice Max Baer stated that plaintiffs cannot recover for NIED in “garden variety” breach of contract of fiduciary duty cases, emphasizing the need for the law to dispense with the century-old “physical impact” rule for NIED claims.
While Toney v. Chester does not stand as a precedential decision, it is the most significant NIED case to reach the state high court since the adoption of the bystander liability and zone of danger theories.