Harris v. Kreutzer

PRESENT: All the Justices

NANCY J. HARRIS
OPINION BY
v. Record No. 050715 JUSTICE G. STEVEN AGEE
January 13, 2006
JEFFREY SCOTT KREUTZER, Ph.D.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge

Nancy J. Harris appeals from the judgment of the Circuit

Court of the City of Newport News which granted the demurrer of

the defendant, Jeffrey S. Kreutzer, Ph.D., and dismissed her

motion for judgment with prejudice. For the reasons set forth

below, we will affirm the judgment of the trial court dismissing

Count III of the motion for judgment alleging intentional

infliction of emotional distress, but will reverse that portion

of the judgment which dismissed Count I alleging medical

malpractice.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Harris alleged she sustained a traumatic brain injury as

the result of an automobile accident in 1991. She brought a

personal injury action in 1992 seeking damages resulting from

that accident.1 The trial court in that case granted the

defendant’s request and ordered Harris to undergo a medical

examination pursuant to Rule 4:10 of the Rules of the Supreme

1
In the underlying automobile accident case, the jury
awarded Harris a judgment of $300,000, plus interest of
$113,769.66, for a total of $413,769.66, against the defendant,
John E. Stickler. Stickler is not a party to this appeal.

1
Court of Virginia2 to determine the nature and extent of her

claimed brain injury. The defendant in the automobile accident

case retained Dr. Kreutzer, a licensed clinical psychologist

with a subspecialty in neuropsychology, to conduct the

examination. The case at bar concerns Harris’ claims against

Dr. Kreutzer for his conduct of the court-ordered examination on

January 19, 1996 (“the Rule 4:10 examination”).

On February 7, 2003, Harris filed the present motion for

judgment against Dr. Kreutzer, alleging separate counts of

medical malpractice, defamation,3 and intentional infliction of

emotional distress arising out of the Rule 4:10 examination.4

Harris contends that Dr. Kreutzer, in undertaking the Rule 4:10

examination, owed a duty to her to exercise reasonable and

ordinary care and to avoid causing her harm in the conduct of

the examination. She further contends that Dr. Kreutzer knew of

2
The court-ordered examination is covered by Rule 4:10(a),
which states in pertinent part as follows:
When the mental or physical condition . . . of a party
. . . is in controversy, the court in which the action
is pending, upon motion of an adverse party, may order
the party to submit to a physical or mental
examination . . . .
3
The trial court granted Dr. Kreutzer’s demurrer as to the
defamation count, Count II, and dismissed it with prejudice.
Harris does not appeal that portion of the trial court’s
judgment.
4
Harris originally filed suit against Dr. Kreutzer in
December of 1997 alleging similar complaints to those in the
case at bar. After amending her complaint twice, Harris non-
suited her case at a hearing held on March 27, 2002, and the
final order was entered on August 13, 2002.

2
her pre-existing mental and emotional conditions5 and knew that

she would be susceptible to further harm if treated in an

abusive manner during the examination.

Regarding the medical malpractice claim (“Count I”), the

motion for judgment specifically alleges that Dr. Kreutzer

“verbally abused [Harris], raised his voice to her, caused her

to break down into tears in his office, stated she was ‘putting

on a show,’ and accused her of being a faker and malingerer.”

Harris contends that despite his knowledge of her condition, Dr.

Kreutzer “intentionally aggravated her pre-existing condition

and her post-traumatic stress disorder and her brain injury.”

Further, Harris also contends Dr. Kreutzer breached his

duty to her in the conduct of the Rule 4:10 examination because

he “failed to comply with the applicable standard of care within

his profession in that he: a. failed to appropriately examine

and evaluate the mental status of the plaintiff . . . and d. was

deliberately abusive to plaintiff with disregard for the

consequences of his conduct." As a result, Harris claims her

mental and physical health "drastically deteriorate[d]."

Harris averred in Count III of the motion for judgment that

Dr. Kreutzer’s conduct during the Rule 4:10 examination was

5
Besides allegedly suffering from a traumatic brain injury
due to the automobile accident, Harris had a medical history of
a nervous problem, had been the victim of armed robberies,
suffered from post-traumatic stress disorder, and was suicidal.

3
“intentionally designed to inflict emotional distress upon [her]

or was done with reckless disregard for the consequences when he

knew or should have known that emotional distress would result.”

(“Count III”). Furthermore, Harris contended Dr. Kreutzer’s

conduct was outrageous and the resulting emotional distress she

suffered was severe.

Dr. Kreutzer filed a demurrer to the motion for judgment

specifically arguing that a Rule 4:10 examination did not create

a physician-patient relationship, so he owed no legally

cognizable duty to Harris. Thus, Dr. Kreutzer contended Count I

stated no claim for medical malpractice as a matter of law. In

the alternative, Dr. Kreutzer averred that if, arguendo, a claim

for medical malpractice could exist in a Rule 4:10 context,

Harris nevertheless “fails to allege any facts which constitute

a breach of the standard of care required of a reasonably

prudent clinical psychologist.”

As to Count III, Dr. Kreutzer argued that Harris failed to

allege facts which would support a claim for the tort of

intentional infliction of emotional distress. Specifically, Dr.

Kreutzer contended that the motion for judgment did not show his

conduct was outrageous or that Harris’ injuries were severe.

After a hearing, the trial court granted Dr. Kreutzer's

demurrer as to all counts and dismissed Harris' motion for

judgment with prejudice by an Order entered January 7, 2005,

4
which incorporated its bench ruling. The trial court did not

specifically find, in the bench ruling or in the order, that a

cause of action for medical malpractice was cognizable for

conduct during a Rule 4:10 examination. The trial court opined,

however, that “I understand that there can be situations in

which a cause of action is stated even with an IME. The Court

is of the opinion that this is not such an example.”6 The trial

court then stated, “I don’t see the proper factual allegations

to support . . . either count one or count three.”

We awarded Harris this appeal.

II. STANDARD OF REVIEW

A demurrer tests the legal sufficiency of a motion for

judgment and admits the truth of all material facts that are

properly pleaded. Elliott v. Shore Stop, Inc., 238 Va. 237,

239-40, 384 S.E.2d 752, 753 (1989). The facts admitted are

those expressly alleged, those that are impliedly alleged, and

those that may be fairly and justly inferred from the facts

alleged. Id. at 240, 384 S.E.2d at 753. “The trial court is

not permitted on demurrer to evaluate and decide the merits of

the allegations set forth in a [motion for judgment], but only

may determine whether the factual allegations of the [motion]

6
"IME" is an acronym used in some jurisdictions for the
term "independent medical examination," Black's Law Dictionary
764 (8th ed. 2004), a reference to court-ordered physical or
mental examination of a person.

5
are sufficient to state a cause of action.” Riverview Farm

Assocs. Va. Gen. P’ship v. Board of Supervisors, 259 Va. 419,

427, 528 S.E.2d 99, 103 (2000).

A trial court’s decision sustaining a demurrer presents a

question of law which we review de novo. Glazebrook v. Board of

Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003).

Furthermore, like the trial court, we are confined to those

facts that are expressly alleged, impliedly alleged, and which

can be inferred from the facts alleged. See Elliot, 238 Va. at

240, 384 S.E.2d at 753.

III. ANALYSIS

On appeal, Harris assigns error to the trial court’s grant

of the demurrer to Counts I and III. She avers that the trial

court erred as to Count I because Dr. Kreutzer “owed a duty to

Harris to conduct the examination in a manner not to cause [her]

harm.” In addition, Harris asserts her motion for judgment

alleged sufficient facts to show Dr. Kreutzer “had breached that

duty, that he breached the standard of care, and that Harris

suffered damage as a result.” Harris also contends the trial

court erred in granting the demurrer as to Count III because her

motion for judgment did state “a cause of action for intentional

infliction of emotional distress under Virginia law.” We

address each assignment of error in turn.

6
 A. Medical Malpractice – Count I

The initial issue raised by the assignment of error as to

Count I is a matter of first impression in Virginia: Is there a

cognizable cause of action sounding in medical malpractice for

the conduct of a Rule 4:10 examination? In resolving this

question, we find guidance in our existing malpractice

jurisprudence, the language of the medical malpractice statutes,

Code § 8.01-581.1, et seq., and decisions from other states

which have addressed this issue.

Harris acknowledges that “medical malpractice cases arise
7
out of consensual physician-patient relationships” and that a

Rule 4:10 examination does not involve a “traditional

physician/patient relationship.” Nonetheless, Harris argues

that “[t]he limited relationship between the examiner and the

plaintiff encompasses a duty by the examiner to exercise care

7
Many decisions in Virginia and other states address the
existence of a duty in a medical malpractice context in light of
the physician/patient relationship, although other health care
providers are covered by the medical malpractice statutes. The
definitional provision of Virginia's malpractice statute, Code
§ 8.01-581.1, separately defines the terms “health care
provider”, “patient” and “physician”. A “physician” is included
within the more comprehensive term “health care provider” which
also includes a licensed clinical psychologist such as Dr.
Kreutzer. We use the term “physician” in this opinion to
include Dr. Kreutzer and other health care providers, who are
not "physicians," to maintain continuity with the language of
the parties and that of the cases which address the issue of
malpractice in the context of a Rule 4:10 examination. At a
later point, we will examine the statutory terms in more detail,
addressing the plain language of Code § 8.01-581.1.

7
consistent with his professional training and expertise so as

not to cause physical harm by negligently conducting the

examination.”

Harris cites to other jurisdictions which unanimously hold

that “a physician owes a duty of care to a nonpatient examinee

to ‘conduct [a court-ordered] examination in a manner not to

cause harm to the person being examined.’ ” Harris posits as a

“reasonable rule” in Virginia “that physicians conduct their

Rule 4:10 examinations in a manner not to cause harm to the

people being examined.”

Harris argues that a cause of action for medical

malpractice is properly pled if it is alleged that the defendant

physician breached the duty to cause no harm in the conduct of

the examination by violating the applicable standard of care.

As in any other medical malpractice action, the plaintiff has

the burden to show the standard of care and that the physician's

alleged violation of the standard of care in conducting the

examination proximately caused the alleged injury. See Bryan v.

Burt, 254 Va. 28, 34, 486 S.E.2d 536, 539-40 (1997). Assuming

she has properly pled a cause of action for malpractice, Harris

maintains her motion for judgment stated facts sufficient to

survive a demurrer to Count I.

Dr. Kreutzer responds that Harris’ claim under Count I must

fail as a matter of law because a cause of action for

8
malpractice requires a consensual physician/patient

relationship. He notes that Harris alleged no consensual

relationship. Indeed, Dr. Kreutzer contends that no consensual

physician/patient relationship can exist in a Rule 4:10

examination because it is by its very nature adversarial. In

the absence of such a relationship, Dr. Kreutzer posits that he

owed no duty to Harris in the conduct of the Rule 4:10

examination, and therefore no claim for malpractice can lie as a

matter of law.

Next, Dr. Kreutzer argues that even if one assumes,

arguendo, that a cause of action for malpractice may arise for

the conduct of a Rule 4:10 examination, the trial court

correctly held that the motion for judgment failed to state

facts which would support a claim that he deviated from the

applicable standard of care.

A number of states have addressed the issue whether a

physician owes a duty to the person examined in a court-ordered

medical examination, which if breached, establishes a cause of

action for malpractice. While all the courts addressing this

issue have found a cause of action to exist, the denomination of

the basis of that cause of action has not been uniform.8 As the

8
See, e.g., Keene v. Wiggins, 138 Cal. Rptr. 3 (Cal. Ct.
App. 1977); Martinez v. Lewis, 969 P.2d 213 (Colo. 1998);
Greenberg v. Perkins, 845 P.2d 530 (Colo. 1993); Smith v. Welch,
967 P.2d 727 (Kan. 1998); Hoover v. Williamson, 203 A.2d 861

9
Supreme Court of Colorado noted in Greenberg v. Perkins, 845

P.2d 530, 535 (Colo. 1993), “[t]he cases that consider the duty

of care issue in circumstances where a physician conducts a

medical examination of a person at the request of an employer,

insurer, or other third person are remarkable for the diversity

of their analyses.”

In the case at bar, the trial court made no explicit ruling

that a cause of action sounding in malpractice exists in a Rule

4:10 setting. However, the trial court implied that a cause of

action does exist by its statement that Harris’ motion for

judgment failed to survive the demurrer because insufficient

facts were pled to support it. Therefore, we begin our analysis

with an inquiry as to whether a cause of action for medical

malpractice may be recognized in a Rule 4:10 context in

Virginia. We conclude that such a cause of action can lie under

the appropriate facts.

Dr. Kreutzer is correct that our prior cases have noted

that a physician’s liability for malpractice is predicated upon

(Md. Ct. App. 1964); Dyer v. Trachtman, 679 N.W.2d 311 (Mich.
2004); Henkemeyer v. Boxall, 465 N.W.2d 437 (Minn. Ct. App.
1991); Webb v. T.D., 951 P.2d 1008 (Mont. 1997); Beadling v.
Sirotta, 197 A.2d 857 (N.J. 1964); Ferguson v. Wolkin, 499
N.Y.S.2d 356 (N.Y. Sup. Ct. 1986); Twitchell v. MacKay, 434
N.Y.S.2d 516 (N.Y. App. Div. 1980); Meinze v. Holmes, 532 N.E.2d
170 (Ohio Ct. App. 1987); Ervin v. American Guardian Life
Assurance Co., 545 A.2d 354 (Pa. Super. Ct. 1988); Lotspeich v.
Chance Vought Aircraft, 369 S.W.2d 705 (Tex. Ct. App. 1963);
Judy v. Hanford Envtl. Health Found., 22 P.3d 810 (Wash. Ct.
App. 2001); Rand v. Miller, 408 S.E.2d 655 (W. Va. 1991).

10
an initial finding that a consensual agreement exists between

physician and patient, establishing a relationship from which

flows the physician’s duty of care. “A physician’s duty arises

only upon the creation of a physician-patient relationship; that

relationship springs from a consensual transaction, a contract,

express or implied, general or special . . . .” Lyons v.

Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977); accord

Didato v. Strehler, 262 Va. 617, 626, 554 S.E.2d 42, 47 (2001).

While a physician/patient relationship between Dr. Kreutzer

and Harris did not exist in the traditional sense, that factor

is not dispositive in a Rule 4:10 examination setting. Although

a Rule 4:10 examination will rarely involve an express

consensual contract between the physician and the examinee, the

consensual nature of the physician/patient relationship may be

“express or implied.” Under the facts of this case, Harris’

consent was implied, and Dr. Kreutzer’s consent was express so

as to establish a limited physician/patient relationship for the

Rule 4:10 examination.

By filing her motion for judgment in the automobile

accident case, Harris consented to the requirements of the Rules

of the Supreme Court of Virginia for the prosecution of her

suit. See Rule 3:1. When a plaintiff places her “mental or

physical condition . . . in controversy” by filing suit, she

expresses an implied consent to a medical examination under Rule

11
4:10.9 Under the Rules, a plaintiff must, under proper

circumstances, submit to an examination or her action may be

dismissed. Rule 4:12(b)(2). By bringing her personal injury

action, Harris gave her implied consent to the Rule 4:10

examination and formed a limited relationship with Dr. Kreutzer

for purposes of the examination.

A physician or health care provider, such as Dr. Kreutzer,

who performs a Rule 4:10 examination, expressly consents to a

relationship with the examinee when he agrees to conduct the

examination. Therefore, we conclude there is a consensual

relationship between the physician and the examinee as patient

for the performance of the Rule 4:10 examination.

We next determine, in the context of the Rule 4:10

examination relationship, whether the physician has a duty

cognizable under the malpractice statutes, Code § 8.01-581.1, et

seq., the breach of which establishes a cause of action for

malpractice for the conduct of the examination. We look to the

statutorily defined terms establishing an act of malpractice.

Code § 8.01-581.1 defines malpractice as “any . . . action

for personal injuries . . . based on health care or professional

services rendered . . . by a health care provider, to a

patient.” We conclude that conduction of the Rule 4:10

9
No issue is raised on appeal that good cause was not shown
for the Rule 4:10 examination although Harris did object in the
trial court to being required to submit to the examination.

12
examination is “health care” rendered by a “health care

provider,” in the person of Dr. Kreutzer, to a “patient,”

Harris.

The statute defines “Health care” as “any act . . .

performed . . . by any health care provider for [or] to . . . a

patient during the patient’s medical diagnosis.” The Rule 4:10

examination is an "act" by Dr. Kreutzer for a medical diagnosis

of Harris because her “mental or physical condition . . . is in

controversy.” While a court orders the medical diagnosis for

its own benefit and the benefit of the other parties to the

litigation, neither Rule 4:10 nor Code § 8.01-581.1 limits the

acts constituting "health care" to medical diagnoses undertaken

only for the patient’s benefit. Thus, we find a Rule 4:10

examination is “health care” within the meaning of Code § 8.01-

581.1.

As “a person . . . licensed by this Commonwealth to provide

health care . . . as a . . . clinical psychologist,” Dr.

Kreutzer is a “health care provider” under Code § 8.01-581.1.

Harris is a “patient” because she is a “natural person who

receives or should have received health care [(the Rule 4:10

examination)] from a licensed health care provider.” Id.

Accordingly, under the plain language of the malpractice

statute, Code § 8.01-581.1, a cause of action for malpractice

may lie in the context of a Rule 4:10 examination because

13
“health care” is provided by a “health care provider” to a

“patient” which allegedly resulted in personal injury.

Although a malpractice cause of action may lie for the

conduct of a Rule 4:10 examination, the scope of such a cause of

action is very limited. This is true, in part, because the

nature of the physician/patient relationship in a Rule 4:10

examination is strictly circumscribed. As the Supreme Court of

Michigan noted in its consideration of this issue, the

physician/patient relationship relative to a court-ordered

examination

does not involve the full panoply of the physician’s
typical responsibilities to diagnose and treat the
examinee for medical conditions. The IME physician,
acting at the behest of a third party, is not liable
to the examinee for damages resulting from the
conclusions the physician reaches or reports. . . .

. . . .

The patient is not in a traditional professional
relationship with the physician. Nonetheless, he
places his physical person in the hands of another who
holds that position solely because of his training and
experience. The recognition of a limited relationship
preserves the principle that the IME physician has
undertaken limited duties but that he has done so in a
situation where he is “expected to exercise reasonable
care commensurate with his experience and training.”

Dyer v. Trachtman, 679 N.W.2d 311, 314-15, 316 (2004) (citation

omitted).

The physician’s professional duty in the conduct of a Rule

4:10 examination relates solely to the actual performance of the

14
examination. Unlike a physician in a traditional

physician/patient relationship, a Rule 4:10 examiner has no duty

to diagnose or treat the patient, and no liability may arise

from his report or testimony regarding the examination. Because

the Rule 4:10 examination functions only to ascertain

information relative to the underlying litigation, the

physician’s duty in a Rule 4:10 setting is solely to examine the

patient without harming her in the conduct of the examination.

Cases from other jurisdictions are clear that an examining

physician's only duty is to do no harm in the conduct of the

examination, and any malpractice liability is restricted to a

breach of that duty only. For instance, in Dyer, the physician

conducting the court-ordered examination allegedly knew the

examinee had significant restricted movement in his arm and

shoulder. 679 N.W.2d at 313. Nonetheless, the physician

allegedly rotated the patient's arm and shoulder well beyond

prescribed limits, injuring the patient and breaching the

standard of care. Id. The Michigan Supreme Court found a cause

of action in malpractice rightly accrues when an examining

physician fails to follow the applicable standard of care in the

actual conduct of the examination resulting in actual harm to

the patient. Id. at 317.

By contrast, the Minnesota Court of Appeals in Henkemeyer

v. Boxall, 465 N.W.2d 437, 438-39 (Minn. Ct. App. 1991), found

15
no cause of action in malpractice for the conduct of a court-

ordered examination when the plaintiff alleged that the

physician failed to diagnose and inform the examinee of a

medical condition the physician discovered, or should have

discovered, while conducting the examination. The court in

Henkemeyer concluded the examining physician owed no duty to the

patient to diagnose the patient for the patient’s benefit. Id.

at 439. No action for malpractice existed when the actual

conduct of the examination did not harm the patient. Id.

Limiting Rule 4:10 malpractice liability solely to harm in

the actual conduct of the examination recognizes the policy

imperative that Rule 4:10 malpractice actions not be used to

intimidate physicians from undertaking court-ordered

examinations or to manipulate the outcome of such an

examination. We agree with the cogent analysis by the Court of

Appeals of Arizona on this point:

If an IME practitioner’s evaluations, opinions, and
reports could lead not only to vehement disagreement
with and vigorous cross-examination of the
practitioner in the claims or litigation process, but
also to his or her potential liability for negligence,
the resulting chilling effect could be severe. To
permit such an action by expanding the concept of duty
in this type of case would be, at best, ill-advised.
At worst, the fears expressed in Davis v. Tirrell, 110
Misc. 2d 889, 895-96, 443 N.Y.S.2d 136, 140 (Sup. Ct.
1981) may be realized:

“To permit such an action would make it
impossible to find any expert witness
willing to risk a lawsuit based on his

16
 testimony as to his opinions and conclusions
before any tribunal. And such cause of
action if permitted would lead to an endless
stream of litigation wherein defeated
litigants would seek to redeem loss of the
main action by suing to recover damages from
those witnesses whose adverse testimony
might have brought about the adverse
result.”

Hafner v. Beck, 916 P.2d 1105, 1107-08 (Ariz. Ct. App. 1995).

In summary, we hold that a cause of action for malpractice

may lie for the negligent performance of a Rule 4:10

examination.10 However, a Rule 4:10 physician's duty is limited

solely to the exercise of due care consistent with the

applicable standard of care so as not to cause harm to the

patient in actual conduct of the examination.

Having determined that Harris may bring a cause of action

sounding in malpractice for harm she alleges was done during the

Rule 4:10 examination, we next review whether the trial court

erred in ruling that the factual allegations of her motion for

judgment were insufficient, as a matter of law, to state such a

cause of action. We conclude Harris’ factual allegations were

10
We note that the Rule 4:10 examination cause of action
lies in malpractice and is not one of ordinary negligence in
Virginia. In that regard, we agree with the conclusion of the
Supreme Court of Michigan in Dyer that claims concerning the
actual conduct of the Rule 4:10 examination "raise questions
involving medical judgment" and "more properly fit within the
realm of medical malpractice than ordinary negligence." 679
N.W.2d at 317.

17
sufficient to survive the demurrer, and the trial court erred in

ruling otherwise.

Harris alleged that Dr. Kreutzer “failed to comply with the

applicable standard of care within his profession in that he

failed to appropriately examine and evaluate the mental status

of the plaintiff” and “fail[ed] to provide appropriate

psychological care in performing his examination and

evaluation.” Specifically, Harris averred Dr. Kreutzer

“verbally abused [her], raised his voice to her, caused her to

break down in tears in his office, stated she was ‘putting on a

show’, and accused her of being a faker and malingerer” during

the Rule 4:10 examination, despite his alleged prior knowledge

of her fragile mental and emotional state. If such conduct was

proven at trial, and appropriate expert testimony showed such

conduct breached the applicable standard of care for a

reasonably prudent clinical psychologist in Virginia, then a

trier of fact could conclude that malpractice occurred within

the limited scope of a Rule 4:10 examination as described above.

In short, Harris’ motion for judgment alleged that Dr.

Kreutzer breached the applicable standard of care by his

specific acts during the Rule 4:10 examination. Harris averred

that as a “direct and proximate result” of that breach, she

“sustained severe psychological trauma and mental anguish

affecting her mental and physical well-being.” Specifically,

18
she suffered “nightmares, difficulty sleeping and extreme loss

of self-esteem and depression, requiring additional

psychological treatment and counseling” as a “direct result” of

Dr. Kreutzer’s conduct.

Therefore, we conclude that Harris pled sufficient facts to

sustain a cause of action for malpractice in the conduct of a

Rule 4:10 examination. She pled that the defendant breached the

applicable standard of care “within his profession” by stating

specific acts of conduct which were the alleged proximate cause

of her claimed injuries. Accordingly, her motion for judgment

was sufficient to withstand a demurrer, and the trial court

erred in granting the demurrer and dismissing Count I.

B. Intentional Infliction of Emotional Distress

In Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145,

148 (1974), this Court recognized intentional infliction of

emotional distress as a cause of action in Virginia. This tort

requires four elements to be proved: (1) the wrongdoer’s

conduct was intentional or reckless; (2) the conduct was

outrageous and intolerable; (3) there was a causal connection

between the wrongdoer’s conduct and the emotional distress; and

(4) the emotional distress was severe. Id. Our conclusion in

Womack was reaffirmed in Ruth v. Fletcher, 237 Va. 366, 373, 377

S.E.2d 412, 415 (1989) (quoting Bowles v. May, 159 Va. 419, 438,

166 S.E. 550, 557 (1932)), that “[b]ecause of the risks inherent

19
in torts where injury to the mind or emotions is claimed, such

torts [are] ‘not favored’ in the law.” As a consequence, we

further noted in Russo v. White, 241 Va. 23, 28, 400 S.E.2d 160,

163 (1991), that unlike a claim for negligence, a plaintiff

bringing a claim for intentional infliction of emotional

distress must allege all facts necessary to establish the cause

of action to withstand challenge on demurrer.

Harris claims that Count III sufficiently alleges all four

of the elements set forth in Womack. We disagree. Assuming

Harris has sufficiently pled the first and third elements, it is

clear her motion for judgment fails to correctly plead

outrageous conduct or severe emotional distress.

The outrageousness requirement “is aimed at limiting

frivolous suits and avoiding litigation in situations where only

bad manners and mere hurt feelings are involved.” Womack, 215

Va. at 342, 210 S.E.2d at 148. “[I]t is insufficient for a

defendant to have acted with an intent which is tortious or even

criminal.” Russo, 241 Va. at 27, 400 S.E.2d at 162 (internal

quotation marks and citation omitted). Rather, “[l]iability has

been found only where the conduct has been so outrageous in

character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Id. (citation

omitted). “It is for the court to determine, in the first

20
instance, whether the defendant’s conduct may reasonably be

regarded as so extreme and outrageous as to permit recovery

. . . .” Womack, 215 Va. at 342, 210 S.E.2d at 148.

In her motion for judgment, Ms. Harris claims that Dr.

Kreutzer “verbally abused [her], raised his voice to her, caused

her to break down into tears . . . , stated she was ‘putting on

a show’, and accused her of being a faker and malingerer.”

Harris contends this conduct was outrageous and intolerable.

Assuming Dr. Kreutzer did all Harris alleges, we find his

conduct was not "beyond all possible bounds of decency" or

"utterly intolerable in a civilized community." Russo, 241 Va.

at 27, 400 S.E.2d at 162. Insensitive and demeaning conduct

does not equate to outrageous behavior as set by our caselaw.

See generally id. Harris therefore failed to allege facts

sufficient to meet the Womack standard for outrageous and

intolerable conduct.

Furthermore, Harris failed to plead facts sufficient to

support the severity element. In her motion for judgment,

Harris alleged she suffered severe psychological trauma and

mental anguish affecting her mental and physical well-being.

Symptoms of her anguish include nightmares, difficulty sleeping,

extreme loss of self-esteem and depression, requiring additional

psychological treatment and counseling. In addition, she claims

21
to have suffered mortification, humiliation, shame, disgrace,

and injury to reputation.

As we explained in Russo, liability for intentional

infliction of emotional distress “arises only when the emotional

distress is extreme, and only where the distress inflicted is so

severe that no reasonable person could be expected to endure

it.” 241 Va. at 27, 400 S.E.2d at 163. In that case, we held

that a plaintiff complaining of nervousness, sleep deprivation,

stress and its physical symptoms, withdrawal from activities,

and inability to concentrate at work failed to allege a type of

extreme emotional distress that is so severe that no reasonable

person could be expected to endure it. Id. at 28, 400 S.E.2d at

163. Harris alleges nearly identical symptoms in the case at

bar and fails to allege injuries that “no reasonable person

could be expected to endure.” As a result, she fails to allege

facts sufficient to satisfy the fourth element of the Womack

test.

Because Harris failed to state facts sufficient to

establish that Dr. Kreutzer’s conduct was outrageous or that her

distress was severe, the trial judge properly granted Dr.

Kreutzer’s demurrer as to Count III alleging intentional

infliction of emotional distress.

IV. CONCLUSION

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 We conclude that the trial court erred in granting the

demurrer as to Court I, but properly granted the demurrer as to

Count III. Therefore, we will affirm the judgment of the trial

court dismissing Count III and will reverse the judgment

dismissing Count I. We will remand the case as to Count I for

further proceedings in accord with our opinion.

Affirmed in part,
reversed in part,
and remanded.

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