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June 2011
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August 2011

Howard Bashman at Fourth Judicial Circuit Conference

Last night on CSPAN, I happened to catch most of Howard Bashman's fine speech to the Fourth Judicial Cicuit Conference.  He presented a survey that he had done of the inconsistent approaches of the various courts in the Fourth Circuit as to how they make their opinions available to the public, and also commented on inconsistencies in the way the courts sometimes identify judicial opinions as "orders", which results in the opinion not being available free of charge to the public. He cited one example of an opinion over ninety pages that was categorized as an "order."  He has a link to online video of the program.   I was somewhat surprised that he did not bring up the "Recap" service, but I suppose that would have been impolitic in that setting.  However, Recap is an easy way to make those 80 and 90 page "Orders" available to the public, and will not consume your own bandwith.


D.C. Court of Appeals creates a new basis for recovery for emotional distress

In Hedgepath v. Whitman Walker Clinic, No. 07-CV-158 (D.C. June 30, 2011), the D.C. Court of Appeals, sitting en banc, held that the plaintiff, who was negligently informed by a doctor at the Whitman Walker Clinic that he was HIV positive, when in fact he was not, could sue for negligent infliction of emotional distress, even though the alleged negligence did not place the plaintiff within a "zone of physical danger."  The Court reversed the trial court's summary judgment in favor of the defendants, and remanded the case for further proceedings.

The Court recognized a duty to avoid negligent infliction of serious emotional distress will be recognized only where the defendant has an obligation to care for the plaintiff's emotional well-being or the plaintiff's emotional well-being is necessarily implicated by the nature of the defendant's undertaking to or relationship with the plaintiff, and serious emotional distress is especially likely to be caused by the defendant's negligence.  

The Court concluded that in this case, the defendants, in the context of a doctor-patient relationship, undertook to test and treat the plaintiff for HIV, an undertaking that would necessarily implicate the patient's emotional well-being and entailed a specially likely risk of serious emotional distress.  The plaintiff did not find out that he was misdiagnosed as being HIV positive for five years, and presented evidence of serious emotional distress as a result of the misdiagnosis.

The new rule does not replace the prior "zone of danger" rule, but is a supplement to it.  The Court quoted Restatement (Third) of Torts, sec. 46, with approval:

§ 46 Negligent Conduct Directly Inflicting Emotional Disturbance on Another
An actor whose negligent conduct causes serious emotional
disturbance to another is subject to liability to the other if the
conduct:


(a) places the other in immediate danger of bodily harm and the
emotional disturbance results from the danger; or


(b) occurs in the course of specified categories of activities,
undertakings, or relationships in which negligent conduct is
especially likely to cause serious emotional disturbance.

 To sum up, emotional distress damages can be recovered in a variety of cases.

  • District of Columbia courts routinely allow recovery for pain and suffering as parasitic damages when the plaintiff's emotional distress is caused by the defendant's invasion of a legally-protected interest, such as freedom from physical injury.
  • Damages for emotion distress are also awarded as part of compensation for violation of statutory and common law rights that result in foreseeable emotional distress.
  • A plaintiff may recover for loss of consortium that results from negligent conduct toward his or her spouse, even where the spouse was not physically injured and the plaintiff's injuries are purely emotional.
  • The "zone of physical danger" rule allows a plaintiff to recover for mental distress if the defendant's actions caused the plaintiff to be "in danger of physical injury", and if, as a result, the plaintiff "feared for his own safety."
  • Under the new rule, a plaintiff can recover for emotional distress from a defendant who has breached a duty to avoid negligent infliction of serious emotional distress based on an obligation to care for the plaintiff's emotional well-being or where the plaintiff's emotional well-being is necessarily implicated by the nature of the defendant's undertaking to or relationship with the plaintiff, and serious emotional distress is likely to be caused by the defendant's negligence.
  • A plaintiff can also recover damages for emotional distress that results from a defendant's intentional or reckless conduct that is "extreme and outrageous."

The adverse impact of this decision will fall most directly on physicians who diagnose dread diseases, on psychiatrists and psychologists, and on funeral homes.  However, the ramifications of this decision will not end there, and it can be expected that the limits of this decision will be tested in the courts for the next decade.