The opinion of the court was delivered by
This is аn appeal by Raymond and Mary S. Hoard (plaintiffs-appellants) from a summary judgment and directed verdict entered against them and in favor of Shawnee Mission Medical Center and Overland Park Family Medical Practice, P.A. (defendants-appellees). The issue presented is
This lawsuit arises out of an unfortunate series of events which took place in the early morning hours of August 8,1979. The facts are essentially undisputed. Around 10:30 p.m. on August 7, 1979, the plaintiffs’ seventeen-year-old daughter Lisa, along with five other teenagers, was involved in a serious one-car accident in southern Johnson County. Both Lisa Hoard and the driver of the car, Kathleen Iveson, suffered massive head injuries. Lisa had no identification with her in the car. Three of the teenagers, including Lisa Hoard, were taken to Suburban Medical Center for treatment. Kathleen Iveson and two less seriously injured passengers were taken by ambulance to Shawnee Mission Medical Center.
The ambulance carrying Kathleen Iveson to Shawnee Mission Medical Center arrived at the emergency room of the hospital shortly after midnight on August 8, 1979. Miss Iveson had not yet been identified and was therefore originally admitted as “John Doe,” which was soon thereafter changed to “Jane Doe” when it was determined the patient was female. The patient had been stripped of clothing in the course of emergency procedures performed prior to her arrival at the hospital and thus no clothing or other personal belongings accompanied the patient when she was admitted.
James Pike, an Olathe police officer, was present at the scene of the accident and subsequently went to Shawnee Mission Medical Center to determine the condition of the patients there and assist in identifying the unidentified patient. He arrived shortly after the ambulance carrying Miss Iveson. He talked to one of the teenagers involved in the accident and obtained the names of the six occupants in the car. About this time another officer at Suburban Medical Center also obtained the names of the six occupants from another passenger. He communicated these names along with the names of the three teenagers at Suburban Medical Center to a third officer at police headquarters, Chief Barnes. Among the three patients identified as
Shortly thereafter a representative of Shawnee Mission Medical Center telephoned the appellants, informing them their daughter had been in an accident and they should come to the hospital. Upon their arrival they were told Lisa had suffered critical injuries and other close family members should be contacted. The Hoards asked if the hospital was sure the patient was Lisa and were told that positive identification had been made. Mrs. Hoard asked if there was any clothing, a purse or jewelry brought in with the patient that they could see to make sure it was Lisa. They were informed that no personal belongings had been brought in with the patient. They asked at various times if they could see Lisa, but were told it was not possible because of the severity of her condition and that it would interfere with the lifesaving procedures which were being performed. They were told they could see her after her condition stabilized.
For the next hour or so, the appellants and their family were kept informed on the critical condition of their daughter. At one point in time they were told by the hospital chaplain thаt they couldn’t see Lisa because “as fast as they were pumping blood into her it was gushing out of her head.” During this time Mary Hoard spoke with Officer Pike who had remained at the hospital. Officer Pike described the accident to Mrs. Hoard and indicated to her that Lisa was there at Shawnee Mission Medical Center receiving treatment. Sometime around 2:00 a.m. the appellants were informed their daughter had died. Mrs. Hoard became nauseated and had to be taken to the restroom and Mr. Hoard fell to his knees and began to sob. Medical records indicate the patient arrived at the hospital one hour and forty minutes prior to death, and during that time had been given seven units of blood.
The appellants were asked to select a funeral home and had to sign a form to release the body to the funeral home. As the Hoard
One of the appellants’ sons was then asked to identify the patient and he determined it was not Lisa. About this time relatives of Kathleen Iveson arrived at the hospital and informed the Hoards that Lisa was at Suburban Medical Center.
The Hoards arrived at Suburban Medical Center around 3:30 a.m. and were told their daughter was in critical condition, having suffered severe head injuries. Throughout the night and the next several days the Hoards were informed that Lisa might die, but that if she survived she would not be the same. Lisa remained in intensive care in a coma for the next six weeks. During that time the Hoards were required to authorize lifesaving operative procedures on several occasions. Mrs. Hoаrd stayed at the hospital continually throughout this time, going home only to eat an occasional meal with her family and do laundry, despite advice from her doctor to remain at home and get some rest. Mr. Hoard also spent a great deal of time at the hospital.
Lisa’s condition slowly improved. Although she was able to return home, she required constant care and it was necessary for the appellants to hire nurses to assist with Lisa’s care. Lisa underwent rehabilitative treatment in Kansas City and Denver, Colorado, and relearned to talk. Although confined to a wheelchair, she is also learning to walk again. It is undisputed that the fact of the accident itself and Lisa’s resulting severe injuries, as
Both appellants suffered from various health problems prior to August 7,1979. Mr. Hoard was diagnosed as having heart disease in 1950 when he was discharged from the service. In 1977 he was admitted to a hospital emergency room with chest pains which were diagnosed as angina. At the time of the accident he was overweight and had been advised by doctors that he should lose weight. Mrs. Hoard had suffered from nervousness throughout her adult life and at various times had been treated for depression, hypertension and esophagitis. From 1972 through 1979 she was on medication for her nervousness. Mrs. Hoard had also felt she might have a drinking problem and had joined Alcoholics Anonymous.
Following the accident the emotional health and stability of both appellants suffered. Mr. Hoard became severely distraught and depressed after the accident and had uncontrollаble crying spells. He was hospitalized on October 6, 1979, suffering from severe depression and a nervous breakdown. He testified that he felt his emotional health was “extremely unstable and shattered” after the accident. His doctor testified that he felt the incident on August 8, 1979, at Shawnee Mission Medical Center caused Mr. Hoard to break down and become unable to cope with what was to follow concerning Lisa. Dr. Stanley Butts, a psychologist who evaluated the Hoards in preparation for trial, testified he felt Mr. Hoard could no longer handle a responsible position of employment.
Both appellants had nightmares associated with the incident at the hospital. Acquaintances testified the appellants constantly discussed the events at Shawnee Mission Medical Center in the months following the accident, oftentimes expressing their anger at being told Lisa was dead. Dr. Butts diagnosed both appellants as having “post-traumatic stress disorder.” This is the term used to describe the patient who continues to reexperience a traumatic event, resulting in significant kinds of distress which include recurrent dreams, withdrawal from the outside world, sleep disturbances and difficulty in concentrating. In Dr. Butts’ opinion, this condition was caused by the events on August 8,1979, at Shawnee Mission Medical Center.
Mrs. Hoard was hospitalized for two days in September 1979, with reflux esophagitis, an inflammation of the esophagus. Her doctor testified that this condition was brought on by the emotional stress she was under at the time, the fact that she had increased smoking from one pack to three packs of cigarettes a day following the accident, and because she was not eating properly during this time. In September 1980, Mrs. Hoard was hospitalized for chest pains which occurred when she had to move Lisa or she was emotionally upset. She was diagnosed as having significant narrowing of two coronary arteries. The appellants’ doctor testified that although they were under a great deal of stress at the time as a result of the accident and Lisa’s condition, the incident at Shawnee Mission Medical Center on August 8, 1979, placed a severe amount of stress on the appellants which significantly contributed to their subsequent physical problems.
At the time of the accident Mr. Hoard was a full-time principal in the Shawnee Mission School District. After his hospitalization in October 1979, Mr. Hoard was given a leave of absence and another person was assigned to fill his position as principal. Mr. Hoard returned to work as an assistant principal at a different school in March 1980, and remained there until May 1981, at which time the position was eliminated due to personnel cutbacks. At that time he was not certain he wanted to continue as a principal and elected instead to take an early retirement at half his former salary. He testified at trial this was a financial decision and his intention was to get another job, perhaps in another school district or in business, to supplement his retirement income. Since that time he has made three unsuccessful applications for employment. In addition to his position with the school district, Mr. Hoard worked fifteen to twenty hours a week as a salesclerk at a hardware store from November 1979 until his hospitalization in July 1981.
“The designated physician shall assume full responsibility for the professional conduct of the Emergency Department including supervision and administration of the Department’s professional activities. It also shall include discussions with and education of the Medical Center personnel in matters relating to the Emergency Department.”
On the night of August 7,1979, one of the designated physicians-on duty was Dr. Richard Williams, who treated Kathleen Iveson and communicated to the Hoards, during the early morning hours of August 8, that the patient had died.
The appellants assert they are entitled to damages under two theories of recovery: (1) for emotional and physical injuries caused by the hospital’s negligence in mis identifying the patient as Lisa; and (2) for emotional distress caused by extreme and outrageous conduct. In addition to recovery for all medical expenses incurred since the incident the appellants sought recovery for loss of income, claiming that Mr. Hoard’s emotional condition resulting from the incident required him to take an early retirement at half of his prior salary; reimbursement for additional help hired to care for Lisa, which the appellants contend was only necessary due to the emotional distress and physical disability they suffered from the incident; and punitive damages.
The trial court granted summary judgment in favor of the appellees on the appellants’ cause of action for negligence holding that Kansas does not recognize a cause of action for negligent infliction of emotional distress. However, the court directed that the appellants’ cause of action on the tort of outrage should proceed to trial. At the close of the appellants’ case the trial court directed a verdict in favor of the appellees, finding that the
It has long been the general rule in Kansas that there can be no recovery for emotional distress suffered by the plaintiff which is сaused by the negligence of the defendant unless it is accompanied by or results in physical injury to the plaintiff.
Hough v. Atchison, T. & S. F. Rly. Co.,
“The temporary emotion of fright, so far from serious that it does no physical harm, is so evanescent a thing, so easily counterfeited, and usually so trivial, that the courts have been quite unwilling to protect the plaintiff against mere negligence, where the elements of extreme outrage and moral blame which have had such weight in the case of the intentional tort are lacking.”
A limited exception to the general rule has been recognized in Kansas and other states where a close relative suffers emotional harm from the negligent mishandling of a corpse. See
Alderman v. Ford,
The appellants contend that they have suffered physical injuries as a result of the emotional distress caused from being told their daughter had died, and therefore are entitled to maintain an action against the appellees for the negligent infliction of emotional distress. In the alternative they argue that if their physical injuries were not sufficient to permit reсovery under the general rule, they should be permitted to recover for emotional distress in the absence of physical injury under one of the exceptions to the rule. The appellees contend the physical injuries suffered by the appellants were too remote in time from the incident and too speculative to permit recovery.
In our cases which have allowed recovery for physical injury resulting from emotional harm caused by the defendant’s negligence, the physical injury complained of occurred contemporaneously with or shortly after the incident causing the emotional distress. In
Clemm v. Atchison, T. & S. F. Rly. Co.,
“Here the fright, terror, grief, shock, and the fall with resulting physical injuries were substantially simultaneous, and by the allegations of the petition all of them resulted naturally and directly from the negligence of plaintiff. To say that the mental anguish preceded the physical injuries by a second or two, and therefore that there is no liability for either, is to make too much of a refinement for practical purposes, and one that would tend to defeat justice rather than to promote it.”126 Kan. at 187 .
See also
In
Whitsel v. Watts,
In
Cernes v. Pittsburg Coca Cola Bottling Co.,
The appellants maintain they suffered physical injury at the time they were told of Lisa’s death when Mr. Hoard collapsed and Mrs. Hoard became nauseated and vomited. Mr. Hoard also fainted upon being told a mistake may have been made. However, no evidence was presented concerning the nature or amount of injury from these events. Furthermore, these are not the injuries for which the appellants seek recovery. The injuries for which damages are sought for the hospital’s negligence occurred much later in time. Mr. Hoard first seeks recovery for his hospitalization for severe depression and a nervous breakdown in October 1979,
two months
after the incident at Shawnee
The physical injuries suffered by the appellants occurred a substantial length of time, from six weeks to two years, after the incident. As in all actions for the recovery of damages for negligence, the appellants must show that the physical injuries complained of were the direct and proximate result of the emotional distress caused by the hospital’s alleged negligent conduct.
Whitsel v. Watts,
It cannot be disputed that the appellants suffered a tremendous amount of emotional and physical stress and anxiety as a
Concerning the appellants’ claim for loss of income, however, there is absolutely no evidence in the record that Mr. Hoard’s retirement was necessitated by his physical or emotional health. He worked at full salary in a position similar to the one he had occupied for several years until May 1981 when the position was eliminated. When no similar position was available for him to fill at the time, he elected to retire at half-salary and obtain another full-time position elsewhere, rather than take a teaching position at a much lower salary. This decision was clearly precipitated by financial, rather than health, concerns. Similarly, no evidence was presented by the appellants showing that due to their emotional and physical conditions it was necessary to hire nurses to care for Lisa, which ordinarily would not have been required.
The foregoing issue presеnted a question of law for the trial court and therefore a motion for summary judgment was properly sustained.
Farmers State Bank & Trust Co. of Hays v. City of Yates Center,
The appellants next claim the trial court erred in directing a verdict against them on their action for outrage. In
Dawson v. Associates Financial Services Co.,
“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for suchemotional distress, and if bodily harm to the other results from it, for such bodily harm.”
In
Roberts v. Saylor,
The trial court ruled the evidence presented by the appellants did not show that the appellees’ actions were intentional or in reckless disregard of the appellants, or that the conduct was extreme or outrageous. In reviewing a directed verdict the court will resolve all facts and inferences in favor of the party against whom the ruling is sought and if the evidence is such that reasonable minds could reach different conclusions thereon, the motion should be denied.
Lemley v. Penner,
It is clear from the evidence that the identification of the patient as Lisa Hoard was not intentional. We must therefore first consider whether the hospital’s conduct was in reckless disregard of the appellants. What constitutes “reckless” conduct to establish a cause of action for outrage was discussed at length in
Wiehe v. Kukal,
“Types of reckless conduct. Recklessness may consist of either of two different types of cоnduct. In one the actor knows, or has reason to know ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so. An objective standard is applied to him, and he is held to the realization of the aggravated risk which a reasonable man in his place would have, although he does not himself have it.
“For either type of reckless conduct, the actor must know, or have reason to know, the facts which create the risk. . . .
“For either type of conduct, to be reckless it must be unreasоnable; but to be reckless, it must be something more than negligent. It must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent. It must involve an easily perceptibledanger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.”
After reviewing other definitions of reckless the court concluded:
“Thus we see that recklessness requires knowledge. The person who is reckless must have prior knowledge; he must know or have reason to know of facts which create a high degree of risk of harm to another, and then, indifferent to what harm may result, proceed to act.”225 Kan. at 484 .
See also
Blackburn v. Colvin,
Did the hospital’s actions in this case constitute reckless conduct? Relying upon the testimony of their expert witness, Dr. Bennie Scott, the appellants contend the hospital was reckless in notifying the Hoards of the serious injury and subsequent death of their daughter when there was no basis for identification of the patient as Lisa Hoard. Dr. Scott testified that in his opinion information provided by a police officer concerning the identity of a patient did not constitute positive identification of a patient unless corroborated by other evidence; information regarding the source or basis of the identification should be obtained before the family is notified and informed of the deteriorating condition of the patient. He further testified that where tentative identification has been made the hospital should inform the family of this fact only and request that they come to the hospital and make a positive identification before any further information concerning the patient is released. On cross-examination Dr. Scott explained that his opinion was based on operational guidelines used by hospitals where he has worked. He also admitted he did not know upon what basis the police officers in this case identified Lisa Hoard.
The evidence discloses there are no nationally published standards for procedures to be used in identifying patients. Janice Marr, the hospital’s Emergency and Outpatient Depart
In short, the hospital had no knowledge of the actual circumstances, nor that its conduct could result in such extreme harm to the appellants. The hospital did not proceed to act in total disregard of the knowledge that its information was or could be wrong. Janice Marr testified it is a primary concern of the hospital to notify the family of a critically injured trauma patient as soon as possible. It is difficult to say that the hospital was negligent, much less reckless, in contacting the Hoards under the circumstances and informing them that Lisa had been critically injured. Conversely, if in fact the patient had been Lisa, it may have been negligent conduct for the hospital to fail to contact the Hoards until well after death had occurred: refusing to rely on the information supplied by the police officer and instead insisting on corroboration to establish “positive identification” may have subjected the hospital to a charge of negligence.
The fact the appellants were not given an opportunity to see the patient until after they were notified of the death and that they were repeatedly told that positive identification had been made also does not render the conduct reckless. There is no evidence to suggest the hospital was aware of the error until the appellants’ son-in-law tried to identify the body. Likewise the evidence indicates the hospital was unaware of the necklace worn by the patient until after the patient had died and the family informed. The family was not permitted to see the patient because it would interfere with lifesaving procedures being performed. The plaintiff s expert, Dr. Scott, testified that under such circumstances identification of the patient by family members should not be permitted until after the patient’s condition
It is also necessary to determine whether the appellees’ conduct was extreme and outrageous. In prior cases this court has recognized that to meet this requirement the conduct must be so outrageous in character, and so extreme in degree, as to go beyond the bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Further, liability may be found to exist generally in a case when the recitation of facts to an average citizen would arouse resentment against the actor, and lead the citizen to spontaneously exclaim, “Outrageous!”
Roberts v. Saylor,
Numerous cases involving the tort of outrage have come before this court and the Court of Appeals since our decision in
Dawson;
however, in only one other case has the conduct been held to be extreme and outrageous. In
Dawson
we held that harassment by a creditor knowing the debtor was ill and which worsened the debtor’s condition was sufficient to constitute a cause of action for outrage. In
Gomez v. Hug,
In other cases, however, the conduct complained of has fallen short of the extreme conduct contemplated by the Restatement. In
Roberts v. Saylor,
a doctor expressing his dislike for a patient being prepared for surgery, with whom he had had previous unpleasant encounters, did not go beyond the bounds of decency to be sufficiently outrageous. In
Wiehe v. Kukal,
In line with the foregoing cases, the action of the hospital on the evidence in this case in informing the plaintiffs that their critically injured daughter was being treated at the hospital and that she subsequently died did not constitute extreme and outrageous conduct. The acts of the hospital consist of good-faith reliance on information provided by a police officer which was considеred to be reliable, and notifying the family of a critically injured patient in accord with the hospital’s standard practice. A situation factually similar to the instant case was involved in
Peddycoart v. City of
Birmingham,
“Nothing is contained in the evidence to suggest that the police sergeant whose conduct precipitated the emotional responses did anything but commit a mistake. That is, there is no evidence that he intentionally or recklessly caused the distress which ensued.”392 So. 2d at 540 .
In
Wood v. United Air Lines, Inc.,
In this case, the hospital merely relayed information considered reliable to those thought to be the family of a critically injured patient. The mistake of mis identifying the patient as Lisa Hoard was not made by employees of the hospital. The hospital’s conduct certainly was not tantamount to malice and it cannot be said that reliance by hospitals on information concerning identity of critically injured patients supplied by police officers is utterly intolerable in a civilized society. To hold that a hospital
The actions of Dr. Williams, an employee of Overland Park Family Medical Practice, P.A., were even less culpable. He merely assumed the responsibility of informing those people thought to be the family of the patient of the patient’s death. There is no evidence to show that he was responsible in any way for identifying the patient. He only relied on what he had been told by hospital personnel. The conduct of these defendants does not amount to such extreme and outrageous conduct as to constitute a cause of action for outrage.
Finally the appellants argue that putting aside all legal theory, rules and technicalities it must be remembered that they have suffered severe emotional damage from the events of August 8, 1979, at Shawnee Mission Medical Center, and they should be allowed to recover for these damages. Being told that a child has died is undoubtedly a tragic and traumatic experience for any parent, even though it may later be discovered that the information received was false. Without doubt the appellants here suffered shock, grief and emotional distress at being told their daughter had died and later were confused, angry and distressed upon being told a mistake had been made. Nevertheless, as we recently discussed in
Schmeck v. City of Shawnee,
The judgment of the lower court is affirmed.