Petition for Review from the Superior Court No. 4FA-13-01538
CI of the State of Alaska, Fourth Judicial District,
Fairbanks, Douglas Blankenship, Judge.
Sandra
K. Rolfe and Galen Cook, Stepovich & Vacura Law Office,
Fairbanks, for Petitioner.
John
J. Tiemessen, Clapp Peterson Tiemessen Thorsness &
Johnson, LLC, Fairbanks, for Respondents Northern Hospital
Association; James W. Cagle, D.O.; Golden Heart Emergency
Physicians; and Faye Lee, M.D. No appearance by Respondents
Banner Health, Inc., d/b/a Fairbanks Memorial Hospital;
Interior Aids Association/Project Special Delivery; or Nicole
Fliss, M.D.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
MAASSEN, JUSTICE.
I.
INTRODUCTION
A
mother was in the hospital waiting area when her daughter
died. The mother sued a number of medical care providers for
wrongful death and medical malpractice, as well as for the
emotional distress she suffered upon seeing her
daughter's body. The superior court dismissed the
mother's claim for negligent infliction of emotional
distress, reasoning that the tort was not viable absent
evidence that the plaintiff contemporaneously understood that
her loved one's death had been negligently caused. The
mother petitioned for review of this order; we granted
review.
We
conclude that under our case law, a viable bystander claim
for negligent infliction of emotional distress does not
depend on the plaintiffs contemporaneous realization that the
injuries she observes were negligently caused. We therefore
reverse the superior court's grant of summary judgment.
II.
FACTS AND PROCEEDINGS
One
morning in March 2011, Nixola Doan went to Fairbanks Memorial
Hospital with her adult daughter, Tristana, who was coughing
and having trouble breathing. Doan stayed with Tristana for
much of the day. Around 7:00 p.m. Tristana's condition
worsened, and Doan was "ushered . . . out" of the
room while Tristana was intubated. Doan remained in the
waiting area and did not see Tristana again until
approximately the time of her death at 11:41 p.m.,
[1]
when Doan reentered the room and saw her daughter's body.
In 2013
Doan, as the personal representative of Tristana's
estate, filed suit against a number of medical care
providers, alleging medical malpractice and wrongful death.
Doan also brought her own claim for negligent infliction of
emotional distress (NIED). Several of the defendants
(collectively "the doctors") moved for summary
judgment on the NIED claim, arguing that it was legally
untenable without evidence that Doan understood, while
Tristana was undergoing care, that her caregivers were acting
negligently.
The
superior court granted summary judgment and dismissed the
NIED claim, concluding that Doan failed to satisfy a
requirement of the tort that she have "a contemporaneous
understanding of the cause of Tristana's
death." (Emphasis in original.) Doan sought
reconsideration, which the court denied. Doan filed a
petition asking us to review the dismissal of her NIED claim;
we granted her petition.
III.
STANDARD OF REVIEW
We
review a grant of summary judgment de novo.[2] "When
reviewing a grant of summary judgment, our duty is to
determine whether there was a genuine issue of material fact
and whether the moving party was entitled to judgment on the
law applicable to the established facts."[3] We apply our
independent judgment to questions of law and adopt "the
rule of law that is most persuasive in light of precedent,
reason, and policy."[4]
IV.
DISCUSSION
In its
decision on summary judgment, the superior court concluded
that "[i]nherent in [Alaska's] cases [allowing
recovery for NIED] is the contemporaneous comprehension of
the cause of the injury"; the court held, therefore,
that "in a medical malpractice case, the plaintiff must
have a contemporaneous understanding that the cause of the
injury is the result of the malpractice." The court
acknowledged this effect of its ruling:
[B]ystanders may validly assert bystander NIED claims for
blatant medical errors obvious to laypersons, such as
negligently amputating a healthy limb or neglecting to care
for a patient whose symptoms obviously require immediate
attention. But where the causation is beyond the
understanding of the lay bystander an NIED claim is not
available.
The
doctors argue that the superior court correctly stated Alaska
law: "As a matter of law, [Doan] cannot recover on [an]
NIED bystander claim unless she contemporaneously
comprehended that allegedly negligent medical treatment was
causing injury to her daughter."
That an
injured victim, in order to recover, must contemporaneously
comprehend that her injuries were negligently caused is not a
usual requirement of a negligence claim. Indeed, tort victims
may not know or even suspect that their injuries were
negligently caused until they have had some time to
investigate; our tort law has long recognized
this.[5] Here, the doctors contend that our case
law treats NIED claims differently, but-although we
acknowledge "the policy favoring reasonable limitations
on liability" in this context[6] - we disagree that the
doctors' proposed rule is one such reasonable limitation.
We
first recognized the NIED cause of action in 1986 in
Tommy's Elbow Room, Inc. v. Kavorkian (Kavorkian
III).[7] In that case, a father and daughter
attended a function together but the daughter left first to
ride home with another family.[8] A drunk driver struck the
family's car.[9] Driving home later, the father passed the
scene of the accident without realizing that his daughter was
involved.[10] When he arrived home and his daughter
was not there, he returned to the scene of the accident in
time to see police and medical personnel attempting to remove
her from the wreckage.[11]
Accepting
the viability of NIED claims under Alaska law, we looked to
the guidelines set out by the California Supreme Court in
Dillon v. Legg:
(1) Whether plaintiff was located near the scene of the
accident as contrasted with one who was a distance away from
it. (2) Whether the shock resulted from a direct emotional
impact upon plaintiff from the sensory and contemporaneous
observance of the accident, as contrasted with learning of
the accident from others after its occurrence. (3) Whether
plaintiff and the victim were closely related, as contrasted
with an absence of any relationship or the presence of only a
distant relationship.[12]
We
declined, however, to interpret Dillon as imposing a
"rigid requirement of sensory and contemporaneous
observance of the accident," instead requiring only
"the reasonable foreseeability that the
plaintiff-witness would suffer emotional
harm."[13] After concluding that it was reasonably
foreseeable that the father in Kavorkian III would
appear at the scene of the accident, we allowed his NIED
claim to go forward.[14]
A year
later, in Croft ex rel. Croft v. Wicker, we
reiterated our rejection of the "strict application of
the Dillon guidelines" under which it is
"necessary for the plaintiff to have witnessed the
tortious event."[15] The plaintiffs in Croft
alleged that Wicker molested their teenaged daughter Sarah
while giving her a ride on a three-wheeler; the parents did
not allege that they witnessed the assault itself but only
that they "were in close proximity when Wicker sexually
assaulted Sarah and witnessed their daughter's extreme
emotional distress, and consequently suffered emotional
distress themselves."[16] We explained in Croft
our recognition of the NIED tort in Kavorkian III
and cited several California cases in which parents who did
not witness the tortious event were nonetheless allowed to
recover after coming upon the event's immediate
consequences.[17] We held that the parents in
Croft stated a claim under Alaska law:
[C]oncededly the Crofts did not sensorily and
contemporaneously observe the incident of sexual assault
alleged here. Our discussion of Kavorkian and the
other cases cited makes clear, however, that it is the
reasonable foreseeability to the defendant of harm to the
plaintiff that generates the defendant's duty to exercise
reasonable care.[18]
Because
"the Crofts were in close proximity to Wicker and Sarah
when the alleged incident occurred," because
"[t]hey observed her extreme distress just after the
alleged assault occurred," and because there was some
question as to whether it was "reasonably foreseeable to
Wicker that Sarah's parents would be in close proximity
and therefore harmed by his actions," the Crofts'
claim was sufficiently pleaded to go to the
jury."[19]
In this
case, in a clarifying order on reconsideration, the superior
court focused on a sentence in Mattingly v. Sheldon
Jackson College, in which we said that "the shock
[must] result more or less contemporaneously with the
plaintiffs learning of the nature of the victim's
injury."[20] The superior court interpreted this to
mean that Doan's recovery depended on her subjective
understanding of events; the court read the phrase "the
nature of the victim's injury" to mean that an NIED
plaintiff must understand not just the physical
nature of the injury - traumatic bodily injury or death - but
also the legal nature of the injury - negligence.
Mattingly
concerned the collapse of a trench in which Mattingly's
son had been working.[21] The accident happened in Sitka, but
Mattingly was in Ketchikan when he learned of
it.[22] The facts of Mattingly thus did
not require the court to distinguish between the physical and
the legal nature of an injury-Mattingly was not in a position
to have directly perceived either one. But explaining why
geographical distance precluded Mattingly's NIED claim,
we noted that "it cannot be said that the shock of
observing his injured son . . . followed
'closely on the heels of the accident, '" that
Mattingly "had time to steel himself during his flight
to Sitka," and that "[t]here was no sudden sensory
observation of his injured son.[23] Thus, in the
context of describing "the nature of the victim's
injury," our focus was on the victim-the sight of whom
is likely to cause the emotional harm-rather than the actions
of the tortfeasor. And to support the sentence in
Mattingly that contained the phrase "the nature
of the victim's injury," we cited Croft,
which, as noted above, explicitly rejected a requirement that
the plaintiff observe the tortious act as opposed to its
immediate impact on the victim.[24]
We
reaffirmed this interpretation of the NIED claim in Beck
v. State, Department of Transportation & Public
Facilities, in which we declined to follow the
California Supreme Court's tightening of the
Dillon test.[25] A mother was at home when she learned
that her daughter had been involved in an accident six miles
away.[26] The mother immediately drove to the
scene, but rescue workers prevented her "from
approaching the wrecked vehicle which still contained her
injured daughter."[27] The mother then drove to the
hospital, where she "saw her injured daughter for the
first time."[28] She later sued the State for negligent
maintenance, repair, and signage, alleging that road crews
had negligently left "rain soaked slide debris on the
roadway" which both obscured the lane markings and
caused her daughter to lose control.[29]
The
State in Beck urged us to follow the approach taken
by the California Supreme Court in Thing v. La
Chusa.[30] Decided after Kavorkian III,
Croft, and Mattingly - and concluding that the
Dillon factors were leading "to uncertainty and
'ever widening circles of liability'
"[31] - Thing adopted a
"bright-line" interpretation of Dillon
that required, as its second element, that the plaintiff be
"present at the scene of the injury[-]producing event at
the time it occurs and [be] then aware that it is causing
injury to the victim."[32] In Beck we decided,
however, "that both justice and the policy favoring
reasonable limitations on liability [could] be served with a
less restrictive approach than that taken by the
Thing court": We held
that one who is thrust, either voluntarily or involuntarily,
into such dramatic events and who makes a sudden sensory
observation of the traumatic injuries of a close relative in
the immediate aftermath of the event which produced them is
no less entitled to assert a claim for his or her emotional
injuries than one who actually witnessed the
event.[33]
Because
in Beck the mother's "emotional shock
resulted from her observation of her daughter's traumatic
injuries during the continuous flow of events in the
immediate aftermath of the accident, and because it cannot be
said that she had time to' steel herself as did the
plaintiff in Mattingly," we concluded
"that her injury was foreseeable" and her NIED
claim should be presented to the jury.[34]
None of
these formative cases-Kavorkian III, Croft, Mattingly, ox
Beck -supports the rule the doctors propose here: that
Doan "cannot recover on [an] NIED bystander claim unless
she contemporaneously comprehended that allegedly negligent
medical treatment was causing injury to her daughter."
The father in Kavorkian III brought a dram shop
action against the bar that had served alcohol to the driver
who allegedly caused the accident.[35] The father clearly knew
there had been an accident when he saw his injured daughter
being extricated from the wreckage, but there is no
indication he knew anything about its cause, let alone that
it involved the negligence of a server in a bar some distance
away. The parents in Croft knew that something had
happened when they witnessed their daughter's emotional
distress at the end of her three-wheeler ride, but there is
no indication they "contemporaneously comprehended"
that her distress was caused by Wicker's sexual assault.
The father in Mattingly was denied relief because he
had time to steel himself before viewing his son's
injuries; whether he had any contemporaneous understanding of
the cause of the trench's collapse played no part in our
opinion (though under the doctors' proposed rule it could
have been dispositive). And the mother in Beck, like
the father in Kavorkian III, knew there had been an
accident when she viewed its wreckage and then saw her
daughter at the hospital, but again there is no indication
that she contemporaneously comprehended the allegedly
negligent cause -involving the State's work on the road.
Determinative in each of these cases - entitling the parents
to a possible tort recovery in Kavorkian III, Croft,
and Beck and precluding the father's recovery in
Mattingly-was simply whether there was a
"sudden sensory observation of the traumatic injuries of
a close relative in the immediate aftermath of the event
which produced them."[36]
It is
the emotional impact of the injury that the NIED tort is
intended to address. To require that an emotionally
distressed plaintiff also recognize negligence as it is
occurring is asking too much. As noted above, negligence is
not always obvious; a conclusion that someone was negligent
often follows the acquisition of facts not readily apparent
from the scene itself, e.g., that one driver was under the
influence of alcohol, that he was negligently served at a
bar, that the roadway was poorly maintained, or that a
vehicle's brakes failed. Requiring a contemporaneous
perception of negligence adds an element of caprice that has
no relationship to the harm suffered. When confronted with a
sudden, terrible injury to a loved one, one plaintiff might
retain the clarity of mind necessary to judge the
reasonableness of the tortfeasor's actions, while another
plaintiff might be overwhelmed by the trauma or consumed by
concern for the loved one. Under the doctors' proposed
rule the first plaintiff will recover but the second will
not. Recovery may also depend on the plaintiffs level of
sophistication, particularly in the area of medical
malpractice (as the superior court recognized in limiting
recovery to "blatant medical errors obvious to
laypersons"). A physician who recognizes negligence in
the care of a loved one may recover, whereas a layperson who
suffers the same emotional hurt but lacks a medical education
has no remedy. And the rule raises difficult questions of how
closely the plaintiffs perception of negligence must match
the proof at trial.[37]
The
doctors contend that this court "has never permitted
recovery for negligent infliction of emotional distress in
favor of a non-patient against a medical provider for
treatment provided to a family member/patient," but the
cases they cite do not preclude such a recovery. In
Chizmar v. Mackie, which the doctors cite for the
proposition that NIED claims cannot be based on
"foreseeability alone," we held that "a
plaintiffs right to recover emotional damages caused by mere
negligence should be limited to those cases where the
defendant owes the plaintiff a preexisting
duty."[38]Chizmar was not a bystander
claim but rather involved a patient's claim against her
physician; we held that the superior court erred by directing
a verdict against the plaintiff on the claim.[39] But we also
held that we did not intend to "modify the requirements
for 'bystander' recovery we applied in
Mattingly."[40] Chizmar - and other
"preexisting duty" cases on which the doctors
rely[41]-are largely irrelevant to our discussion
today.[42]
The
doctors also cite M.A. v. United States, in which we
determined, on a certified question from the federal court,
that a mother did not have an NIED claim arising from a
doctor's negligent failure to diagnose the pregnancy of
her minor daughter.[43] But the mother's claim failed for a
number of reasons, none of which are determinative here:
[The mother] was not in close proximity to [the daughter],
either at the time of the alleged misdiagnosis or when [the
daughter] subsequently learned of her pregnancy; [the
mother's] eventual "shock," if any, does not
appear to have occurred contemporaneously with her
daughter's discovery of the injury; and there is no
indication that the immediate "shock" came in
response to the alleged injury-the lateness of the
pregnancy's discovery - rather than to discovery of the
pregnancy itself.[44]
Here,
on the other hand, taking Doan's allegations as true,
[45]
she was in close proximity to her daughter both at the time
of the defendants' negligence and at the time of her
daughter's death; the defendants' negligence caused
the death; and Doan's shock occurred contemporaneously
when she observed her daughter's body.
The
doctors contend that Doan's NIED claim not only is barred
by our existing case law but also contravenes legislative
policy, evident in AS 09.55.530-.560, setting out procedural
and evidentiary rules for medical malpractice cases,
including limitations on damages. But none of the cited
statutes address the viability of a bystander NIED claim. And
although the the doctors predict that allowing NIED claims in
circumstances like these "[will] greatly burden the
medical community," we note that our case law has never
excepted "the medical community" from NIED claims.
Such claims involving medical care providers have been
available since we decided Kavorkian III in 1986,
subject to the same stringent requirements of proof
applicable in other tort contexts, and they have not prompted
a crisis of care or a legislative response.[46]
We
conclude, in sum, that a bystander's claim for NIED
remains as it was explained in Kavorkian III, Croft,
Mattingly, and Beck:
Where, as here, the plaintiff experiences shock as the result
of a sudden sensory observation of a loved one's serious
injuries during an uninterrupted flow of events following
"closely on the heels of the accident," such
emotional injury is foreseeable and the plaintiff is entitled
to assert a claim for NIED.[47]
The
test contains no requirement that the plaintiff
contemporaneously comprehend that the loved one's
injuries were negligently caused. Doan's complaint stated
a claim for relief under a bystander theory of recovery for
...