Gray v. INOVA Health Care Services

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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