Though claims for “negligent infliction of emotional distress” brought by a patient’s family are difficult to prove, a court recently supported a jury’s award to the relatives of a patient who experienced distress after surgery.
Madeline Knox underwent thyroid surgery at a hospital facility, accompanied by her daughter Phyllis Keys and her sister Erma Smith. According to the facts cited by the court, Knox was transferred from a post-anesthesia unit to a medical-surgical unit. At that time, a nurse noticed that Knox’s breathing was “noisy” and thought it was stridor. The nurse called the hospital’s rapid assessment team — an ICU nurse and a respiratory therapist — to evaluate Knox.
According to the trial testimony of Ms. Keys, the daughter saw her mother on the gurney immediately after surgery. Keys testified that Knox “didn’t look herself” and her skin appeared gray. Knox was sweating, appeared to be in distress, could not speak, and made a gurgling sound when she breathed. Once in the room, the respiratory therapist suctioned Knox twice. Knox nodded when asked if the suctioning made her feel better, but still appeared to be uncomfortable. Keys testified that she asked the nurse to call the surgeon because her mother’s condition was not improving. When the surgeon arrived, Keys watched him begin to examine the surgical site and saw her mother’s eyes roll back and her arm go up as a code blue was called. Knox died several weeks later.
According to Court of Appeal, “Keys was frustrated and upset because she felt there was no sense of urgency among the staff to determine why her mother was in distress; she thought the nurses and others were not moving quickly enough.” Knox’s sister gave similar testimony.
The jury’s award to Keys and Smith on their wrongful death claim was not at issue on appeal in Keys v. Alta Bates Summit Medical Center. But the hospital did challenge a separate award to Keys and Smith for their “bystander injury” claims.
In order for a bystander to pursue a claim for negligent infliction of emotional distress, he or she must satisfy three requirements: The plaintiff must be a close relative to the injured victim, must have been present at the scene of the injury-producing event at the time it occurred and simultaneously aware that it was causing injury to the victim, and as a result, must have suffered serious emotional distress.
In medical professional liability suits, proving negligent infliction of emotional distress is typically a high hurdle because when the alleged injury-producing event is a misdiagnosis, lay bystanders will not, except in in the most obvious cases, have the knowledge to appreciate such an injury while it is happening.
In trial, the plaintiffs’ expert witness testified that the medical staff failed to recognize that Keys’ breathing difficulties were caused by a hematoma, which required an intensivist or anesthesiologist. The hospital argued that the plaintiffs should not have received an award as bystanders because they were not aware of any negligence related to the hematoma.
In reviewing the case, the appellate court said it must accept as true all evidence and inferences tending to support the judgment.
“The evidence here showed that that the plaintiffs were present when Knox, their mother and sister, had difficulty breathing following thyroid surgery,” the court explained. “They observed inadequate efforts to assist her breathing, and called for help from the respiratory therapist, directing him at one point to suction her throat. They also directed hospital staff to call for the surgeon to return to Knox’s bedside to treat her breathing problems. These facts could be properly considered by the jury to demonstrate that the plaintiffs were contemporaneously aware of Knox’s injury and the inadequate treatment provided her by defendants.”
Dissenting, one justice wrote that he could not support the award: “Plaintiffs observed that Knox continued to have trouble breathing, but they could not observe and did not know the surgeon had not correctly diagnosed the cause of the stridor.”
Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc. (CAP).
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