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Court of Appeals Adopts Supplemental Test for Negligent Infliction of Emotional Distress Claims

On June 30, 2011, the District of Columbia Court of Appeals, sitting en banc, decided Hedgepeth v. Whitman Walker Clinic, No. 07-CV-158, slip op. (D.C. June 30, 2011) (en banc), in which it unanimously ruled that a patient who was allegedly negligently misdiagnosed by a doctor at a health clinic as having HIV, and who allegedly suffered severe and verifiable emotional distress as a direct result, had a viable claim for negligent infliction of emotional distress. Id. at 2-4, 59-63. In deciding this case, the Court adopted a “supplemental” test for determining whether a claim for negligent infliction of emotional distress is viable under District of Columbia law. Id. at 3, 41-42.

By way of background, more than twenty years ago in Williams v. Baker, 572 A.2d 1062 (D.C. 1990) (en banc), the Court adopted a “zone of physical danger” test for determining whether a claim for negligent infliction of emotional distress is viable. That test provides that such a claim is permitted “if the defendant’s actions caused the plaintiff to be ‘in danger of physical injury’ and if, as a result, the plaintiff ‘feared for his own safety.’” Hedgepeth, slip op. at 12 (quoting Williams, 572 A.2d at 1066). Additionally, the test requires that the plaintiff’s emotional distress be “serious and verifiable.” Id. at 12-13 (internal quotation marks omitted).

This “zone of physical danger” test appeared to be a total bar to recovery by the patient in Hedgepeth v. Whitman Walker Clinic (the “Plaintiff”). Relying on the Court’s decision in Williams v. Baker, supra, the trial court granted summary judgment to the doctor and health clinic (the “Defendants”) because the Plaintiff could not show that the alleged negligent misdiagnosis of HIV placed him in a “zone of physical danger.” Id. at 2. The trial court’s decision was upheld on appeal by a division of the Court. Id. The Plaintiff then filed a petition for rehearing en banc which was granted by the Court “to decide whether the ‘zone of physical danger test’ should be applied to preclude” the Plaintiff’s claim for negligent infliction of emotional distress. Id.

In reviewing the case en banc, the Court was persuaded by case law from other jurisdictions, the draft Restatement (Third) of Torts, and the views expressed by commentators that the “zone of physical danger” test is not always appropriate and should not be applied indiscriminately. Id. at 3, 18-55. Following an extensive discussion of these and other authorities and prior District of Columbia case law, id. at 4-55, the Court adopted a “supplemental” test for determining whether a claim for negligent infliction of emotional distress is viable under District of Columbia law; specifically, the Court held that, in addition to situations where a plaintiff may recover under the “zone of physical danger” test:

a plaintiff may recover for negligent infliction of emotional distress if the plaintiff can show that (1) the defendant has a relationship with the plaintiff, or has undertaken an obligation to the plaintiff, of a nature that necessarily implicates the plaintiff’s emotional well-being, (2) there is an especially likely risk that the defendant’s negligence would cause serious emotional distress to the plaintiff, and (3) negligent actions or omissions of the defendant in breach of that obligation have, in fact, caused serious emotional distress to the plaintiff.

Id. at 41-42. Consistent with prior case law, a plaintiff must also show that his emotional distress is “serious and verifiable.” Id. at 42.

Applying this new test, the Court ruled that the Plaintiff was entitled to proceed with his claim of negligent infliction of emotional distress. Id. at 3, 59-63. The Court specifically ruled that the record adequately evidenced that the doctor-patient relationship at issue in the case necessarily implicated the Plaintiff’s emotional well-being and that there was an especially likely risk that a misdiagnosis of HIV would cause serious emotional distress to the Plaintiff. Id. at 3, 62. It further ruled that the record adequately evidenced that the Plaintiff suffered serious and verifiable emotional distress as a result of the misdiagnosis (as demonstrated by, inter alia, the Plaintiff’s alleged suicidal thoughts and problems with employment, family relations, and substance abuse). Id. at 3, 62-63. Accordingly, the Court reversed the trial court’s grant of summary judgment and remanded the case for further proceedings. Id. at 3-4, 63.

To view the Court of Appeals’ opinion, click here.