Margaret TAYLOR, Parent and Natural Guardian of the Estate of Ka-Rin Alise Taylor, a minor, and Kathy Mapp, Administratrix of the Estate of Louis T. Mapp, Deceased, Plaintiff-Appellees, v. ALBERT EINSTEIN MEDICAL CENTER, Peter Trinkaus, M.D., John Wertheimer, M.D., Defendant-Appellants, and Owen Williamson, M.D.
754 A.2d 650
Supreme Court of Pennsylvania
Argued Jan. 31, 2000. Decided May 17, 2000.
Basil G. Rusin, Public Defender, William Ruzzo, Asst. Public Defender, Public Defender‘s Office, for Carl Davis.
Peter Paul Olszewski, Dist. Atty., Frank P. Barletta, Asst. Dist. Atty., Dist. Attorney‘s Office, for Com.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
ORDER
PER CURIAM:
Appeal dismissed as having been improvidently granted.
Justice NIGRO dissents.
Robert G. Yosua, David J. Griffith, Andrew K. Worek, Philadelphia, for Albert Einstein Medical Center, Peter Trinkaus, M.D. and John Wertheimer.
Frank McClellan, for Margaret Taylor and Lewis T. Mapp.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
FLAHERTY, Chief Justice.
This is an appeal from an order of Superior Court which vacated a judgment of
In the early morning hours of June 1, 1989, Ka-Rin Taylor, a sixteen-year-old girl who was suffering from fever and shortness of breath, was brought to the emergency room of the Albert Einstein Medical Center (Einstein) in Philadelphia. Approximately six hours later she was admitted to the pediatric intensive care unit with a tentative diagnosis of pneumonia. Her condition deteriorated, and, at approximately 10 a.m. she was intubated and placed on a ventilator. A chest x-ray taken at 11 a.m. revealed that the endotracheal tube inserted earlier had been misplaced into her right main stem bronchus. Another x-ray, taken at 1:30 p.m. showed that the tube had been properly repositioned. The tube had been in an improper position for somewhere between one and three hours.
Later that day, Dr. Peter Trinkaus, the physician in charge of Ka-Rin‘s care at Einstein, determined that in order to provide proper treatment it would be necessary to gain information obtainable only through an invasive diagnostic procedure known as a Swan-Ganz catheterization of the heart. Dr. Trinkaus consulted a cardiologist, Dr. John Wertheimer, who agreed that such a procedure was warranted. Drs. Trinkaus and Wertheimer spoke with the patient‘s mother, Margaret Taylor, who then consented orally to performance of the catheterization. Testimony at trial differed as to whether she consented only to having Dr. Wertheimer perform the procedure, or whether her consent included Dr. Trinkaus, who admittedly had less experience with the procedure than Dr. Wertheimer. The procedure was in fact performed by Dr. Trinkaus, but Ka-Rin died at approximately 6:25 p.m. while the procedure was in progress.
Kathy Mapp, as administratrix of the estate of the patient‘s father Louis T. Mapp, and Margaret Taylor commenced the present action against Einstein, Dr. Trinkaus, and Dr. Wertheimer.1 The complaint alleged negligence in the mispositioning of the endotracheal tube and in the performance of the Swan-Ganz catheterization, misrepresentation and lack of informed consent with respect to Dr. Trinkaus performing the catheterization, and infliction of emotional distress.
Prior to the case going to the jury, the trial court granted defense motions for directed verdicts on the claims related to informed consent, misrepresentation, and punitive damages.
In response to special interrogatories, the jury found that Dr. Trinkaus had been negligent, but that his negligence had not been a substantial factor in causing the death of the patient. The jury also found that the conduct of Dr. Trinkaus had been outrageous and that it had been a substantial factor in causing emotional distress to Margaret Taylor. The jury awarded Margaret Taylor $500,000 in compensatory damages for emotional distress. Judgment on the verdict was entered by the trial court. An appeal was taken to Superior Court. That court held that the trial court erred in refusing to submit to the jury the issues of lack of consent, misrepresentation,
At issue is whether Superior Court properly upheld the trial court‘s denial of a motion for judgment n.o.v. filed by Dr. Trinkaus with respect to the claim for intentional infliction of emotional distress. Superior Court held that Margaret Taylor could recover damages for intentional infliction of emotional distress for conduct directed at her daughter even though she did not observe the conduct at the time it occurred. During the allegedly wrongful performance of the catheterization, Margaret Taylor was in another room of the same hospital building. In that sense, she was not “present” when the procedure was performed. The issue of “presence” arises from a requirement expressed in the
§ 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person‘s immediate family who is present at the time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in bodily harm.
(Emphasis added). Although we have never expressly recognized a cause of action for intentional infliction of emotional distress, and thus have never formally adopted this section of the Restatement, we have cited the section as setting forth the minimum elements necessary to sustain such a cause of action. Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987). Accord Hoy v. Angelone, 554 Pa. 134, 151 n. 10, 720 A.2d 745, 753 n. 10 (1998); Johnson v. Caparelli, 425 Pa.Super. 404, 625 A.2d 668, 671-73 (1993), allocatur denied, 538 Pa. 635, 647 A.2d 511 (1994).
Superior Court, relying on
Superior Court completely disregarded the language in
The rationale for the requirement of presence was well explained in Johnson v. Caparelli, 625 A.2d at 673:
Presence is a crucial element of the tort because an individual who witnesses outrageous or shocking conduct directed at a third-party has no time in which to prepare himself / herself for the immediate emotional impact of such conduct. Moreover, the actor can reasonably be expected to know of the emotional effect which his or her conduct is likely to produce where the person is present. By way of comparison, the emotional effects are generally lessened where the individual learns of the outrageous conduct long after its occurrence and by means other than through his or her own personal observations. Presence is therefore an essential element which must be established to successfully set forth a cause of action for intentional infliction of emotional distress.
A comment to
Where the extreme and outrageous conduct is directed at a third person, as where, for example, a husband is murdered in the presence of his wife, the actor may know that it is substantially certain, or at least highly probable, that it will cause severe emotional distress to the plaintiff. In such cases the rule of this Section applies. The cases thus far decided, however, have limited such liability to plaintiffs who were present at the time, as distinguished from those who discover later what has occurred. The limitation may be justified by the practical necessity of drawing the line somewhere, since the number of persons who may suffer emotional distress at the news of an assassination of the President is virtually unlimited, and the distress of a woman who is informed of her husband‘s murder ten years after-ward may lack the guarantee of genuineness which her presence on the spot would afford.
Restatement (Second) of Torts § 46 , comment L.
The “presence” requirement of
Inasmuch as Margaret Taylor had no contemporaneous observation of the tort allegedly committed to her child, recovery on the theory of liability set forth in
Order reversed in part.
Justice CASTILLE files a Concurring Opinion in which Justice NIGRO joins.
Justice ZAPPALA and Justice SAYLOR concur in the result.
CASTILLE, Justice, concurring.
While I agree with much of the analysis in the majority opinion, I write separately to address the following points.
First, although it is certainly true, as the majority notes, that we have never formally adopted
The tort recognized in Papieves is sui generis; indeed, it is the subject of a different, specific subsection of the Restatement. Papieves relied upon § 868, not the general provisions contained in § 46. Papieves, supra (citing
A key difference between the mistreatment of a corpse tort recognized in Papieves and the general outrageous conduct/severe emotional distress tort governed by subsection 46(2) at issue here involves the element of presence. As the majority correctly notes, subsection 46(2) requires that the person complaining of emotional distress arising from outrageous conduct directed at an immediate family member must actually be present at the time of the outrageous conduct.1 The reasons for the presence requirement are accurately set forth in the majority opinion‘s quotations from Comment L to the Rule and the Superior Court‘s opinion in Johnson v. Caparelli, 425 Pa.Super. 404, 625 A.2d 668, 673 (1993), allocatur denied, 538 Pa. 635, 647 A.2d 511 (1994). The mistreatment of a corpse tort has no such requirement, under either the Restatement or the caselaw. This is not surprising given the nature of the conduct at issue when mistreatment of a corpse is alleged. Such mistreatment is extremely unlikely to occur in the presence of the deceased‘s family.2 In short, presence is not required because, as a practical matter, such a requirement would almost always nullify the tort itself.
Second, I would elaborate on the reasons why appellee Margaret Taylor cannot be deemed to have been “present” for purposes of subsection 46(2). I agree that, as in the case of negligent infliction of emotional distress torts, presence requires, at a minimum, a contemporaneous sensory perception of the outrageous act. See Mazzagatti v. Everingham, 512 Pa. 266, 279-80, 516 A.2d 672, 679 (1986). Appellees claim that Mrs. Taylor was “present,” even though she was not in the room where the surgical procedure occurred, because she could hear the electronic tone of the defibrillator from the nearby waiting room while the surgical procedure was being performed. But, as the majority notes, the outrageous conduct that was alleged to have caused Mrs. Taylor severe emotional distress consisted of Dr. Trinkaus operating on Ka-Rin in violation of the consent to operate provided by Mrs. Taylor to the more experienced Dr. Wertheimer. As distressing as it undoubtedly must have been for Mrs. Taylor to hear the defibrillator alarm sound as Ka-Rin‘s heart stopped beating, neither that sensory perception, nor her learning the devastating fact that Ka-Rin had died, conveyed the identity of who performed the procedure. There was no way to discern by any sensory perception, from outside the room, which doctor had performed the procedure. The primary tragedy here was Ka-Rin‘s death. Mrs. Taylor did have time to steel herself to that tragedy before learning the entirely separate and, at least for purposes of this tort, unrelated fact that Dr. Trinkaus performed the procedure. Accordingly, appellees failed to establish that Mrs. Taylor was present when the alleged outrageous conduct occurred.
Finally, the majority does not state one way or other whether it would adopt § 46, noting only that the section sets forth “the minimum elements” necessary to sustain such a cause of action. I must admit to having some reservation about the section, a reservation only heightened by the facts of this case. Although the fact that Dr. Trinkaus performed the procedure may have been distressing to the plaintiffs, I am uneasy with the notion, accepted by the jury here under the Restatement test, that that conduct can be deemed “outrageous” conduct which “intentionally or recklessly” caused “severe emotional distress” to Ka-Rin‘s mother. The propriety of the jury‘s findings on these points, however, is not before us. Thus, I would leave to another day the question of the adoption, and contours, of the tort described in section 46(2).
Justice NIGRO joins this concurring opinion.