175 A.D.3d 1017
N.Y. App. Div.2019Background
- Plaintiff Tammy Cleveland sued Dr. Gregory Perry, FDR Medical Services, P.C., and Kaleida Health/DeGraff Memorial Hospital after her husband (decedent) suffered cardiac arrest, was pronounced dead at the hospital by Dr. Perry, but was later observed alive and transferred to another hospital where he later died.
- Plaintiff alleges medical malpractice, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), and seeks punitive damages among other relief.
- Defendants moved for an order enjoining extrajudicial public statements by the parties and their attorneys; Supreme Court granted that motion.
- Defendants also moved for summary judgment on multiple causes of action; the court granted dismissal of the IIED claims and punitive damages but denied dismissal as to the malpractice and certain NIED claims.
- The Appellate Division (4th Dept.) reversed the gag-order injunction, affirmed dismissal of IIED and punitive damages claims, and reversed the denial of summary judgment on the NIED claims (i.e., held NIED claims must be dismissed as a matter of law).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may impose a prior restraint barring extrajudicial statements | Cleveland asserted the injunction was improper and violated First Amendment protections | Defendants argued media statements risked prejudicing a fair trial and justified a media gag order | Reversed: prior restraint improper; less restrictive measures (voir dire, jury instructions) adequate to protect fair trial rights |
| Whether IIED claim survives summary judgment | Cleveland argued defendants’ conduct (pronouncing dead and failing to examine while family observed signs of life) was extreme and outrageous | Defendants argued their conduct reflected an honest, though mistaken, belief decedent was dead and was not extreme or outrageous | Affirmed dismissal: no material issue as to outrageousness; IIED fails as a matter of law |
| Whether punitive damages are permissible | Cleveland sought punitive damages for alleged reckless or malicious conduct | Defendants contended conduct was negligent at most and fell short of willful/wanton or malicious standard required for punitive damages | Affirmed dismissal of punitive damages: conduct did not meet the high threshold for punitive award |
| Whether NIED claims (mental injury without physical injury) survive summary judgment | Cleveland contended she and decedent’s son suffered genuine emotional injury causally tied to the mispronouncement | Defendants argued plaintiff failed to show a genuine, causally related mental injury (no guarantee of genuineness) | Modified: summary judgment granted to defendants; NIED claims dismissed for failure to demonstrate genuine, causally linked emotional injury |
Key Cases Cited
- National Broadcasting Co. v. Cooperman, 116 A.D.2d 287 (2d Dept 1986) (prior restraints require showing necessity and lack of effective, less-restrictive alternatives)
- Sheppard v. Maxwell, 384 U.S. 333 (U.S. 1966) (pretrial publicity can threaten fair trial rights)
- Nebraska Press Assn. v. Stuart, 427 U.S. 539 (U.S. 1976) (prior restraints on expression face strict scrutiny; consider alternatives)
- In re Application of Dow Jones & Co., Inc., 842 F.2d 603 (2d Cir. 1988) (voir dire and jury instructions as remedies for prejudicial publicity)
- Howell v. New York Post Co., 81 N.Y.2d 115 (N.Y. 1993) (elements of IIED and standards for extreme/outrageous conduct)
- Chanko v. American Broadcasting Cos., Inc., 27 N.Y.3d 46 (N.Y. 2016) (definition and limits of extreme and outrageous conduct for IIED)
- Dupree v. Giugliano, 20 N.Y.3d 921 (N.Y. 2012) (standard for punitive damages requires malicious or evil conduct beyond professional breach)
- Ornstein v. New York City Health & Hosps. Corp., 10 N.Y.3d 1 (N.Y. 2008) (NIED recoverable where emotional injury is direct result of breach and the claim has a guarantee of genuineness)
- Kennedy v. McKesson Co., 58 N.Y.2d 500 (N.Y. 1983) (NIED requires direct causation of emotional harm and guarantee of genuineness)
- Ferrara v. Galluchio, 5 N.Y.2d 16 (N.Y. 1958) (early articulation of guarantee-of-genuineness standard for mental injury claims)