Upon a motion for summary judgment, a judge of the Superior Court ruled that the defendant Winifred Render, a primary care physician under contract with Tufts New England Health Maintenance Organization (Tufts HMO), was not contractually liable to a patient for failing (as the complaint alleged) to return telephone calls of a patient over a period of two days. That patient, it developed, was suffering a miscarriage. The judge also decided that Dr. Render was not liable for negligent infliction of emotional distress. Although we decide that the summary judgment materials left open questions of fact bearing on whether a breach of contract had occurred, we affirm the economic elements of the judgment.
In summary, these are the pertinent facts assumed by the parties for purposes of summary judgment. St. Charles had signed up with Tufts HMO in March, 1987. Dr. Render became her primary care physician by designation.
Around mid-day of September 14, St. Charles travelled by cab to Boston City Hospital, where she was diagnosed as having suffered an incomplete spontaneous abortion, i.e., a miscarriage. She was treated with dilation and curettage. St. Charles brought an action against Dr. Render claiming
1. Third-party liability on the contract between the physician and the HMO. Under her contract with Tufts HMO,
“[t]o provide [h]ealth [sjervices for IPA members in [a] manner consistent with professional standards of medical care generally accepted in the medical community at the time.”
There is a threshold question whether a subscriber to a health maintenance organization may maintain a claim based on the contract between the organization and the physician. Putting the question another way: is the subscriber an intended third-party beneficiary of those provisions of the contract which describe the nature of the medical services that the physician is to provide? Among the documents in the record appendix is the handbook issued to persons who enroll in the Tufts HMO. What the HMO provides to a member, it is apparent from that document, is a package of medical services from a roster of approved physicians and health insurance to pay for those services. Providing medical services to plan members, the contractual obligation Dr. Kender (as promisor) assumed in relation to Tufts HMO (as promisee), discharges the obligation of Tufts HMO to St. Charles, the plan member and patient. St. Charles, therefore, is an intended beneficiary of the contract between Tufts HMO and Dr. Kender, and St. Charles may maintain her action. See Choate, Hall & Stewart v. SCA Serv., Inc.,
2. Whether a breach of contract occurred. St. Charles does not make a medical malpractice claim. Rather, the first of the plaintiffs two theories of liability is that Dr. Render undertook to render services and, when called upon so to do, rendered none. The Superior Court judge who acted on the motion for summary judgment thought this aspect of the action failed because the plaintiff had adduced no evidence from an expert that a two-day delay in returning a patient’s telephone call in the circumstances (i.e., a telephone call from a patient whom the physician had never seen before) was inconsistent “with professional standards of medical care generally accepted in the medical community at the time.”
To be sure, literal application of the contractual standard requires knowing what the medical community accepted as a response standard in 1987, but we incline to the view that finding whether a two-day delay is an unreasonable time to get back to a patient is the sort of task that a jury may be expected to discharge without the help of an expert. There is a common sense aspect to the question. See and compare Haggerty v. McCarthy,
3. Damages based on emotional distress. What St. Charles alleges as injury is emotional distress, a form of harm for which damages are not easily recoverable in an action founded on a contract in the absence of physical harm. McClean v. University Club, 327 Mass. 68, 76 (1951)(states the general rule that mental suffering resulting from a breach of contract is not a subject of compensation). Restatement (Second) of Contracts § 353 (1979). 5 Corbin on Contracts § 1076, at 426-427 (1964). So, for example, the apparel retailer who has not received the winter line on time cannot add heartache as an item of damage. If, however, the breach of contract is of a nature particularly likely to produce emotional distress, damages for that emotional distress may be recovered. Restatement (Second) of Contracts § 353. Of this category, an example would be contracting to film persons for a television program upon a promise of protecting the privacy of those persons by not showing their faces and breaking that agreement by broadcasting identifiable front face footage. See Huskey v. National Bdcst. Co.,
Close to the problem before us is Sullivan v. O’Connor,
Similarly, in Stewart v. Rudner,
Recovery on a reliance basis for breach of a physician’s promise, the court observed in the Sullivan case, “tends to equate with the usual recovery for malpractice,” a tort action. Sullivan v. O’Connor,
To establish a link of causation between the unreturned telephone calls and the physical harm St. Charles suffered, the miscarriage, would require evidence from an expert. None was offered and, indeed, St. Charles does not claim that the delay in response caused her miscarriage. That defeats the tort count in the complaint. In the absence of any physical injury related to what Dr. Render is said not to have done, we are of opinion that in circumstances such as these, a claim founded on a contract theory for damages arising from emotional distress also does not succeed. Even in so personal a matter as medical attention, the place of large organizations and communication by telephone or other electronic
On the tort count, summary judgment was rightly allowed and that portion of the summary judgment is affirmed. As to the contract action, a breach could be found but without actual damages. In such a case, the plaintiff is entitled to symbolic nominal damages, King Features Syndicate v. Cape Cod Bdcst. Co.,
So ordered.
Notes
It is not clear from the record whether Tufts HMO designated Dr. Kender as the primary care physician for St. Charles, or whether the latter made the choice. The Tufts HMO Member Handbook, “encourages each member to choose a Personal Care Physician upon enrollment in the plan.”
The plaintiff moved to amend her complaint to add a count for intentional infliction of emotional distress, but was not permitted by the court so to do.
We have simplified the contractual arrangement. The contract which Dr. Kender entered into was with Carney Hospital-St. Margaret’s Hospital I.P.A., Inc., which in turn arranged to provide a roster of physicians who would provide services for subscribers to Tufts HMO. The letters I.P.A. stand for independent practice association.
St. Charles failed to follow the instruction to call Tufts HMO, but that failure does not conclusively absolve a plan physician from making a contractually sufficient response, although it might bear on the damages, if any.
See also Rambola v. Cosindas,