On June 3, 2009, the Pennsylvania Supreme Court, at 813 MAL 2008, granted allocator in the medical professional liability case of Toney v. Chester County Hospital, 961 A.2d 192 (Pa. Super. 2008), to address the issue of “[w]hether the Superior Court erred in finding a cause of action for negligent infliction of emotional distress exists where emotional distress results from negligent breach of a contractual or fiduciary duty, absent a physical impact or injury.”

The underlying litigation arose from a baby born with substantial physical deformities. Because the mother had been advised during pregnancy that the pelvic ultrasound was normal, she was shocked when she vaginally delivered a baby with devastating fetal anomalies. The mother filed a Complaint alleging negligent and intentional infliction of emotional distress. The Defendant health care providers claimed that Plaintiff failed to plead a physical impact and the complaint was dismissed.

On appeal, the Superior Court reversed, in part, finding that the Plaintiff had pleaded a viable cause of action for emotional distress based on the breach of Defendants’ fiduciary duty to the mother. Plaintiff argued that no assertion of physical impact resulting in physical injuries is required to recover damages for emotional distress when there has been a breach of fiduciary duty. The Superior Court found that a plaintiff can recover for negligent infliction of emotional distress where she can demonstrate immediate and substantial physical harm. Thus, the Superior Court is not requiring that there be a physical impact, for recovery pursuant to this theory as long as the plaintiff suffered substantial physical injury.

If the Pennsylvania Supreme Court holds that a physical impact or injury is not required, many more claims for negligent infliction of emotional distress are likely to be brought by plaintiffs. Once a negligent infliction of emotional distress claim survives summary judgment, it can be difficult to defend due plaintiff’s claimed injuries being intangible, especially where there are no physical injuries. Further, because negligent infliction of emotional distress claims, without attendant physical injury, can be more easily “manufactured”, any loosening of the requirements to bring such claims should be rejected by our highest Court. 

We will follow this case and advise of its outcome.