When Are Emotional Distress Damages Recoverable?
The traditional rule in Virginia is that emotional distress damages must be associated with some actual touching or some intentional conduct by the defendant.
There are some exceptions to that which have been recognized. In Fairfax Hospital v. Curtis, 254 Va. 437 (1997) the plaintiff sued the hospital for improper release of medical records. The court allowed emotional distress damages based upon that claim.
Likewise the court has allowed damages for emotional distress unaccompanied by an actual physical injury where the cause of action exists independently of the harm. In Sea Landserve v. O’Neal, 224 Va. 343 (1982), the court said that such damages may be allowed in the instance of fraud. In Grey v. Inova, 257 Va. 597, the court held that a parent who witnesses the effect of a negligent, tactile tort committed upon their child does not have a cause of action for the negligent infliction of emotional distress. In this instance the child was given ten times the proper dosage of drugs which caused convulsions and other symptoms. The mother had no cause of action in that instance because the mother was not a patient. If the case was not a medical malpractice case the result might have been different.
In Hughes v. Moore, 214 Va. 27 (1973), the court noted that where the claim is for emotional distress and the physical injury resulting from that emotional distress, then there may be recovery for negligence if there is a clear and unbroken causal chain. Merely witnessing the injury to a third person will not be the basis for a recovery.
In the medical malpractice context, obtaining emotional distress damages to a non-patient probably is not possible.
What Are Other States Allowing As To Emotional Distress?
In a District of Columbia Superior Court action, Seele v. Sibley Memorial Hospital, Civ. Action 25-5328, the court took a somewhat different path. In relying upon Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 811 (2011), the court noted that the three elements of a negligent infliction of emotional distress claim are:
- Defendant has a relationship with the plaintiff or has undertaken an obligation to the plaintiff of a nature that necessarily implicates the plaintiff’s emotional wellbeing.
- There is an especially likely risk that the defendant’s negligence would cause serious emotional distress to the plaintiff.
- Negligent actions or omissions of the defendant in breach of that obligation have in fact caused serious emotional distress to the plaintiff.
To make such a claim, the plaintiff has to be more than simply a bystander. The plaintiff probably also has to allege some special relationship. That special relationship could be husband-wife, could be father-daughter.
Although the Seele case is a District of Columbia case, it provides some guidance that there may be an opening for emotional distress damages not only in the medical malpractice context but also in the context of other types of injuries.
Call, or contact us for a free consult. Also for more info on proving damages see the see the Wikipedia pages. Also see the other posts on this site dealing with proving damages:
proving economic damages.
measuring pain.
Wakole damages.
