Does a parent have a medical malpractice claim for witnessing the suffering of his child?

In Virginia, a parent does not have a claim for seeing his child suffer due to the negligence of another.

One of the more interesting cases in this regard involved INOVA Fairfax Hospital:
Gray v. Inova Health Care Services, 257 Va. 597, 514 S.E.2d 355 (1999)

IN THE SUPREME COURT OF VIRGINIA

HOLLY GRAY
v.
INOVA HEALTH CARE SERVICES

Record No. 981387
Decided: April 16, 1999

Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice

A parent who witnesses the effects of a negligent, tactile tort committed upon a child in the presence of the parent does not have a cause of action in tort for negligent infliction of emotional distress and its symptomatic effects. The judgment of the trial court sustaining the tortfeasor's demurrer is affirmed.

Torts - Negligent Infliction of Emotional Distress - Parent and Child - Witnessing Tort Committed Upon a Child - Duties of Care

A young child was admitted to a hospital for tests and was given ten times the proper dose of a drug, which caused her to convulse, stop breathing, and turn blue. The motion for judgment alleges that her mother, standing next to the child during the testing, observed the condition of her daughter and experienced extreme fright and shock, temporarily blacked out, fell to the floor, and became physically sick and vomited. It is alleged that she still suffers from mental anguish and emotional trauma. The trial court sustained defendant's demurrer, and plaintiff appeals.

1. The initial, and crucial, question is whether the tortfeasor owed a duty to the mother, a third-party bystander. It has consistently been held that there can be no actionable negligence unless there is a legal duty, a violation of the duty, and a consequent injury.

2. In a prior decision a parental cause of action for emotional distress was recognized when blood samples withdrawn from the parents were mishandled, blood test results were incorrectly reported as negative, and a fetus, born alive, died two years later of an hereditary disease. The plaintiffs in that litigation, however, were not third-party bystanders. It was their own blood that was tested and mishandled. They were owed a duty of reasonable care in the handling of the blood withdrawn for the tests.

3. In another case, the plaintiff sustained injuries as a consequence of fright and shock caused when an automobile driven by the defendant crashed into the front porch of her home. There, however, the tortfeasor clearly owed the homeowner a duty not to damage her property.

4. Here, defendants owed the mother no duty. She was not the patient upon whom medical tests were being performed. The child was the patient undergoing those tests, and it was the child to whom defendant owed a duty of care. Any negligence in administering the tests was a breach of the duty owed to the child, not her mother.

Appeal from a judgment of the Circuit Court of Fairfax County. Hon. F. Bruce Bach, judge presiding.

Affirmed.

Brian M. McCormack (Dunn, McCormack & MacPherson, on briefs), for appellant.

John E. Coffey (Matthew R. Sheldon; Hazel & Thomas, on brief), for appellee.

SENIOR JUSTICE POFF delivered the opinion of the Court.

The dispositive issue raised in this appeal is whether a parent who witnesses the effects of a negligent tort committed upon a child in the presence of the parent has a cause of action in tort against the tortfeasor for negligent infliction of emotional distress and its symptomatic effects. We think not, and we will affirm the judgment of the trial court sustaining the tortfeasor's demurrer.

The motion for judgment alleged that Mrs. Holly Gray's three-year old daughter, Kira, was admitted to a hospital owned and operated by INOVA Health Care Services (INOVA) to undergo a lumbar puncture test for meningitis; that "the health care providers . . . negligently administered 160 mg. of the drug Fentanyl . . . [which] was ten times the proper dosage;" that Kira's "body convulsed, her breathing stopped, and her face turned blue;" that when Mrs. Gray, "standing next to her daughter . . . observed the condition of her daughter, she experienced extreme fright and shock, temporarily blacked out, fell to the floor, and became physically sick and vomited;" and that she "still suffers from mental anguish and emotional trauma."

As her principal assignment of error, Mrs. Gray asserts that the trial court erred in sustaining the demurrer "because [her] motion for judgment states a cause of action . . . for physical injury directly resulting from the negligent infliction of emotional stress." In the alternative, she contends that her motion for judgment "states a cause of action for negligent infliction of emotional distress, independent of physical impact or injury."

[1] The initial, and crucial, question before us is whether the tortfeasor, INOVA, owed a duty to Mrs. Gray, a third-party bystander. This Court has consistently held that "[t]here can be no actionable negligence unless there is a legal duty, a violation of the duty, and a consequent injury." Chesapeake and Potomac Telephone v. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754 (1988) (quoting Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 66 S.E.2d 441, 443 (1951)).

[2] Mrs. Gray relies upon our decision in Naccash v. Burger, 223 Va. 406, 290 S.E.2d 825 (1982). There, this Court recognized a parental cause of action for emotional distress when blood samples withdrawn from the parents were mishandled, blood test results were incorrectly reported as negative, and a fetus, born alive, died two years later of Tay-Sachs disease. Unlike Mrs. Gray, however, the plaintiffs in Naccash were not third-party bystanders. It was their own blood that was tested and mishandled. Upholding their motion for judgment, this Court said:

Essential to the recognition of a cause of action in favor of the Burgers is the existence of a duty owed them. Clearly, when the Burgers presented themselves to the Cytogenetics Laboratory at Arlington Hospital for Tay-Sachs testing, they were owed a duty of reasonable care in the handling of the blood withdrawn for the tests; this duty encompassed the obligation to provide them with reasonably accurate information concerning the condition of their unborn child so they could make an informed decision regarding abortion.

Id. at 414, 290 S.E.2d at 829.

[3] Mrs. Gray also relies upon Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973). There, the plaintiff's injuries were "sustained . . . as a consequence of fright and shock caused when an automobile driven by the defendant . . . crashed into the front porch of her home." Id. at 28, 197 S.E.2d at 215. Clearly, the tortfeasor owed the homeowner a duty not to damage her property.

[4] Here, INOVA owed Mrs. Gray no duty. She was not the patient upon whom medical tests were being performed. Kira was the patient undergoing those tests, and it was Kira to whom INOVA  owed a duty of care. Any negligence in administering the tests was a breach of the duty owed to Kira, not her mother.*

Because Mrs. Gray had no cause of action against INOVA, we will affirm the judgment of the trial court sustaining the demurrer to the Motion for Judgment.

Affirmed.

FOOTNOTES

* We have held that a tortfeasor whose negligence has caused an injury to a child in utero owes a duty to the mother of that child. Specifically, we have said that "an unborn child is a part of the mother until birth" and, accordingly, that "injury to an unborn child constitutes injury to the mother and that she may recover for such medical injury and mental suffering associated with a stillbirth." Modaber v. Kelley, 232 Va. 60, 66, 348 S.E.2d 233, 236-37 (1986). See also, Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670 (1990); Fairfax Hospital System v. McCarty, 244 Va. 28, 419 S.E.2d 621 (1992).

Ben Glass
Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney