Toney v. Chester County Hospital

CONCURRING AND DISSENTING OPINION BY

ORIE MELVIN, J.:

¶ 1 While I have no hesitation in joining the Majority’s disposition of the jurisdictional questions and Appellant’s claims for intentional infliction of emotional distress and misrepresentation, I am compelled to disagree that Appellant has set forth a valid cause of action for negligent infliction of emotional distress. I acknowledge, as the Majority implies, that the facts of this case are nothing short of heartbreaking. Nevertheless, based on my review of the law of Pennsylvania on negligent infliction of emotional distress, I must respectfully dissent as to the Majority’s disposition on that single issue.

¶ 2 I find Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863 (Pa.Super.2000), appeal denied, 566 Pa. 632, 781 A.2d 137 (2001), to be instructive. There, the plaintiffs filed suit against the hospital alleging negligence and negligent infliction of emotional distress after the hospital erroneously reported that their newborn daughter tested positive for sy*204philis. The plaintiffs sought to recover damages for their subsequent marital breakdown and the plaintiffiwife’s emotional distress, as well as the plaintiffiwife’s loss of her job after a physical altercation with the plaintiffihusband more than two months after the child’s birth. A jury returned a verdict in favor of the plaintiffs. On appeal, however, this Court reversed and remanded for entry of judgment in favor of the hospital. We noted that both of the plaintiffs’ claims required the existence of all four elements of negligence: a duty of care, a breach of that duty, resultant injury, and damages. Id. at 868. Assuming that the elements of duty and breach were established, we turned to the question of causation. We reasoned in relevant part as follows.

¶ 3 “It is not sufficient, however, that a negligent act may be viewed, in retrospect, to have been one of the happenings in the series of events leading up to an injury. Even if the requirement of actual causation has been satisfied, there remains the issue of proximate or legal cause.” Id. at 868. Proximate cause is a question of law. Id.

To determine whether an actor’s conduct constitutes the proximate cause of an injury, the courts of the Commonwealth have adopted and relied upon the factors set forth in Section 433 of the Restatement (Second) of Torts. See, e.g., Vattimo [v. Lower Bucks Hosp., Inc.], 502 Pa. [241,] 246-47, 465 A.2d [1231,] 1233-34. This section provides:

§ 433. Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm
The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing harm to another:
(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
(c) lapse of time.

Restatement (Second) of Torts, § 433 (1965).

Id. at 869. Applying Section 433 in Brown, we concluded that none of the three factors led to the conclusion that the negligence of the hospital was a substantial factor in causing the plaintiffs’ harm.10 Although Brown’s procedural posture differs from that in the instant matter, I would nonetheless note that this Court has also applied Section 433 of the Restatement (Second) of Torts in reviewing a ruling that a plaintiffs complaint failed to establish proximate cause at the preliminary objection stage of the proceedings. See Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d 1281 (Pa.Super.2005) (affirming dismissal of complaint based on absence of *205proximate cause), appeal denied, 587 Pa. 731, 901 A.2d 499 (2006).

¶ 4 Similarly, I conclude here that Appellant’s complaint fails to establish that Appellees’ conduct was a substantial factor in causing her emotional distress. It is not insignificant that Appellant’s brief contains little argument on the element of causation and instead merely refers us to paragraphs 42-71 of her complaint. Appellant’s brief at 21. My review of those paragraphs reveals that Appellant’s claim for emotional distress is premised solely upon her shock at observing her newborn son’s significant physical disabilities at the time of his birth, rather than resting upon anything Appellees did or failed to do some four months prior. Even if one were to read Appellant’s complaint more liberally as alleging that Appellees had a role in causing her emotional distress, “it is abundantly clear that factors other than the negligence of [the hospital] had a far greater effect in producing the harm complained of’ in this case. Brown, supra, 760 A.2d at 869.

¶ 5 Hence, as did the trial court, I am compelled to conclude that Appellant’s complaint fails, as a matter of law, to set forth a valid cause of action for negligent infliction of emotional distress. Accordingly, I would affirm the trial court’s order in its entirety.

. We also opined that "[t]he only physical harm suffered by [plaintifflwife] that was the actual and proximate result of receiving the erroneous test result was her receipt of a single injection to treat a disease that she, in fact, did not have.” 760 A.2d at 871. We found that this claim also failed because the plaintiffs did not establish the requisite physical impact for a negligent infliction of emotional distress claim. Id. at 871-72. In the case at bar, Appellant does not allege any emotional distress resulting from the reading of the ultrasound which might arguably require us to proceed to the physical impact step.