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Doan v. Banner Health, Inc.

Supreme Court of Alaska

May 31, 2019


          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.




         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.


         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.


         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]


         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 ...

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