Medical Malpractice and Negligent Infliction of Emotional Distress
In most states, the tort of negligent infliction of emotional distress (NIED) has been severely curtailed from its earlier expansiveness, or in some areas, entirely eliminated. In California, however, there still remains a set of circumstances under which NIED is a valid cause of action, most notably in medical malpractice cases. It is plausible, though uncommon, that a successful NIED claim can be made by family members of a victim of medical malpractice.Infliction of Emotional Distress as a Tort
California is one of a small handful of states that still recognizes the tort (a civil wrong committed against another person) of intentional infliction of emotional distress (IIED) and its cousin NIED. Someone may sue another person for IIED or NIED, alleging that they suffered significant emotional distress upon witnessing something that could be reasonably interpreted as traumatic. Occasionally, IIED/NIED are also folded into larger torts; for example, a passenger injured in a car accident may bring suit against both drivers, alleging they both contributed to her severe emotional distress by causing her personal injury.
Essentially, the fundamentals of a NIED case are the following:
- The defendant must have committed a negligent act or willfully violated statutory law;
- The plaintiff or their family members must have suffered severe emotional distress; and
- It must be proven (to the appropriate standard) that the defendant’s conduct was the direct cause of this distress.
In California, only certain individuals may recover for NIED in a medical malpractice context. The plaintiff may recover in certain situations, obviously, but close family members may as well. When someone who was nearby, but not being directly acted upon, recovers, this is called bystander liability.
The case of Thing v. La Chusa, 48 Cal. 3d 644 (1989), states that someone may recover for NIED as a bystander in a medical malpractice situation if the individual is (1) closely related to the patient (usually, a spouse, parent or child); (2) present at the scene of the traumatic event, and is aware that their loved one is experiencing pain or injury; and (3) sustains emotional distress on a more severe scale than would a disinterested witness.
Most of the issues surrounding the proving of this claim involve debating whether or not someone is sufficiently “present” during the event. Must a family member be in the hospital room when their loved one experiences injury? Or is being in the hospital enough? Depending on the fact pattern, either is possible, and it is important that your case be presented the right way in order to receive compensation for your situation.Contact an Experienced Medical Malpractice Attorney
Not only the patient suffers when medical malpractice happens. The entire family goes through an extremely difficult time that can be aided immeasurably by the help of a compassionate attorney. The dedicated San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. understand how frightening and painful it can be when someone you love suffers needlessly. We will do our best to help. Contact us today for a free consultation. We serve San Jose, the Bay Area, and the counties of Santa Clara, San Mateo, San Benito, Alameda and Monterey.