Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and
Kinser, JJ., and Poff, Senior Justice
HOLLY GRAY
OPINION BY
v. Record No. 981387 SENIOR JUSTICE RICHARD H. POFF
April 16, 1999
INOVA HEALTH CARE SERVICES
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
F. Bruce Bach, Judge
The dispositive issue raised in this appeal is whether a
parent who witnesses the effects of a negligent tort committed
upon a child in the presence of the parent has a cause of action
in tort against the tortfeasor for negligent infliction of
emotional distress and its symptomatic effects. We think not,
and we will affirm the judgment of the trial court sustaining
the tortfeasor's demurrer.
The motion for judgment alleged that Mrs. Holly Gray's
three-year old daughter, Kira, was admitted to a hospital owned
and operated by INOVA Health Care Services (INOVA) to undergo a
lumbar puncture test for meningitis; that "the health care
providers . . . negligently administered 160 mg. of the drug
Fentanyl . . . [which] was ten times the proper dosage;" that
Kira's "body convulsed, her breathing stopped, and her face
turned blue;" that when Mrs. Gray, "standing next to her
daughter . . . observed the condition of her daughter, she
experienced extreme fright and shock, temporarily blacked out,
fell to the floor, and became physically sick and vomited;" and
that she "still suffers from mental anguish and emotional
trauma."
As her principal assignment of error, Mrs. Gray asserts
that the trial court erred in sustaining the demurrer "because
[her] motion for judgment states a cause of action . . . for
physical injury directly resulting from the negligent infliction
of emotional stress." In the alternative, she contends that her
motion for judgment "states a cause of action for negligent
infliction of emotional distress, independent of physical impact
or injury."
The initial, and crucial, question before us is whether the
tortfeasor, INOVA, owed a duty to Mrs. Gray, a third-party
bystander. This Court has consistently held that "[t]here can
be no actionable negligence unless there is a legal duty, a
violation of the duty, and a consequent injury." Chesapeake and
Potomac Telephone v. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754
(1988) (quoting Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780,
66 S.E.2d 441, 443 (1951)).
Mrs. Gray relies upon our decision in Naccash v. Burger,
223 Va. 406, 290 S.E.2d 825 (1982). There, this Court
recognized a parental cause of action for emotional distress
when blood samples withdrawn from the parents were mishandled,
blood test results were incorrectly reported as negative, and a
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fetus, born alive, died two years later of Tay-Sachs disease.
Unlike Mrs. Gray, however, the plaintiffs in Naccash were not
third-party bystanders. It was their own blood that was tested
and mishandled. Upholding their motion for judgment, this Court
said:
Essential to the recognition of a cause of action in
favor of the Burgers is the existence of a duty owed them.
Clearly, when the Burgers presented themselves to the
Cytogenetics Laboratory at Arlington Hospital for Tay-Sachs
testing, they were owed a duty of reasonable care in the
handling of the blood withdrawn for the tests; this duty
encompassed the obligation to provide them with reasonably
accurate information concerning the condition of their
unborn child so they could make an informed decision
regarding abortion.
Id. at 414, 290 S.E.2d at 829.
Mrs. Gray also relies upon Hughes v. Moore, 214 Va. 27, 197
S.E.2d 214 (1973). There, the plaintiff's injuries were
"sustained . . . as a consequence of fright and shock caused
when an automobile driven by the defendant . . . crashed into
the front porch of her home." Id. at 28, 197 S.E.2d at 215.
Clearly, the tortfeasor owed the homeowner a duty not to damage
her property.
Here, INOVA owed Mrs. Gray no duty. She was not the
patient upon whom medical tests were being performed. Kira was
the patient undergoing those tests, and it was Kira to whom
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INOVA owed a duty of care. Any negligence in administering the
tests was a breach of the duty owed to Kira, not her mother. *
Because Mrs. Gray had no cause of action against INOVA, we
will affirm the judgment of the trial court sustaining the
demurrer to the Motion for Judgment.
Affirmed.
*
We have held that a tortfeasor whose negligence has caused
an injury to a child in utero owes a duty to the mother of that
child. Specifically, we have said that "an unborn child is a
part of the mother until birth" and, accordingly, that "injury
to an unborn child constitutes injury to the mother and that she
may recover for such medical injury and mental suffering
associated with a stillbirth." Modaber v. Kelley, 232 Va. 60,
66, 348 S.E.2d 233, 236-37 (1986). See also, Bulala v. Boyd,
239 Va. 218, 389 S.E.2d 670 (1990); Fairfax Hospital System v.
McCarty, 244 Va. 28, 419 S.E.2d 621 (1992).
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