¶ 36. (concurring). In Wisconsin, medical malpractice is a distinct area of tort law whose principles are dictated, in large part, by detailed provisions of the Wisconsin Statutes. One of the most critical of these statutes is Wis. Stat. § 655.007 entitled "Patients' claims." It provides: "On and after July 24, 1975, any patient or the patient's representative having a claim or any spouse, parent, minor sibling or child of the patient having a derivative claim for injury or death on account of malpractice is subject to this chapter." (Emphasis added.)
*102¶ 37. This statute governs claims "for injury or death on account of malpractice," including direct claims by a patient or a patient's representative and derivative claims by specified family members.
¶ 38. The facts in this case are different and distinguishable from the facts in Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682 N.W.2d 866, and Finnegan v. Wisconsin Patients Compensation Fund, 2003 WI 98, 263 Wis. 2d 574, 666 N.W.2d 797, because the family members in Maurin and Finnegan had only derivative claims. All three cases involve medical malpractice and the death of a minor child. All three cases involve a legitimate wrongful death claim. But only this case involves direct medical malpractice against two patients, a mother and a child. The mother's claim for negligent infliction of emotional distress must be rationalized and analyzed as a direct claim, not a derivative claim, in order to be separate and to comply with Wis. Stat. § 655.007.
¶ 39. Insofar as the wrongful death claim is concerned, this court ruled in 1967 that an eighth-month, viable unborn child whose later stillbirth is caused by the wrongful act of another is a "person" within the meaning of the wrongful death statute. Kwaterski v. State Farm Mut. Automobile Ins. Co., 34 Wis. 2d 14, 148 N.W.2d 107 (1967). This rule, that a viable unborn child is a "person" under the wrongful death statute, is not here in dispute.1
¶ 40. That a mother may bring a claim for negligent infliction of emotional injuries sustained during the delivery of her child, in addition to a claim for *103wrongful death, was decided in Westcott v. Mikkelson, 148 Wis. 2d 239, 434 N.W.2d 822 (Ct. App. 1988).
¶ 41. One puzzle in this case is whether this court's subsequent decision in the case of Bowen v. Lumbermens Mutual Casualty Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), limited claims for the negligent infliction of emotional distress to "bystander" claims. Clearly, the answer is "no." Sharon Bowen was a "bystander," a plaintiff who alleged emotional distress from viewing the immediate aftermath of a tortfeasor's negligent infliction of physical harm on a third person, her son. Id. at 631-32. In upholding her claim, the court did not repudiate Westcott. In fact, it stated that a bystander situation was not the only circumstance that could give rise to a claim for negligent infliction of emotional distress. Id. at 631, 632-33.
¶ 42. The majority opinion determines that Bonnie Pierce has a separate direct claim for negligent infliction of emotional distress, but it does not delineate what she must prove, as a matter of law, to recover on this claim. The court has not said before and the court does not say now what elements must be present for the tort of "negligent infliction of emotional distress" when the claim is not a bystander claim. In addressing this question, the central problem is "the difficulty in setting limits on recovery for this common, but intangible, category of harm." Terrence F. Kiely, Modern Tort Liability: Recovery in the '90s 109 (1990).
¶ 43. Wisconsin Jury Instruction — Civil 2725 sets out the elements of Intentional Infliction of Emotional Distress. The instruction reads in part:
A person may recover damages for the intentional infliction of severe emotional distress upon him or her by another.
*104A person who by extreme and outrageous conduct intentionally causes emotional distress to another is liable to that person if the resulting emotional distress is severe.
Four factors must be established for an injured person to recover:
1. That the conduct was intended to cause emotional distress,
2. That the conduct was extreme and outrageous,
3. That the conduct was a cause of the person's emotional distress, and
4. That the emotional distress was extreme and disabling.
For a person's emotional response to be extreme and disabling, you must find that the person was unable to function in other relationships because of the emotional distress caused by the conduct. Temporary discomfort is not extreme and disabling and cannot be the basis of recovery.
Wis JI — Civil 2725.
¶ 44. It goes without saying that this case does not involve "extreme and outrageous" conduct or an "intention" to cause emotional distress. However, the plaintiff did allege in her complaint that she "suffered severe emotional distress and injury" and that she "sustained physical injury." She did not allege that she "was unable to function in other relationships because of the intentional distress caused by the" defendant's medical negligence.
*105¶ 45. Wisconsin Jury Instruction — Civil 1510 sets out the elements of Negligent Infliction of Severe Emotional Distress (Bystander Claim). This instruction is based on Bowen's explicit delineation of elements:
First, the injury suffered by the victim must have been fatal or severe. Second, the victim and the plaintiff must be related as spouses, parent-child, grandparent-grandchild or siblings. Third, the plaintiff must have observed an extraordinary event, namely the incident and injury or the scene soon after the incident with the injured victim at the scene.
Bowen, 183 Wis. 2d at 633.
¶ 46. The Bowen court also stated that "borrowing concepts from the tort of intentional infliction of emotional distress," a plaintiff must prove "severe emotional distress; but the plaintiff need not prove physical manifestation of that distress." Id. at 632. The resulting jury instruction explains:
Emotional distress may arise from the natural shock and grief of directly observing an (incident) which results in the (death) to a family member .... Emotional distress includes mental suffering, anguish, and shock, "it can include fright, horror, grief, and worry. It need not include physical manifestations of injury, although these may also be present.
In order for (plaintiff) to recover, however, (her) emotional distress must be severe. This means it must be more than temporary discomfort or a minor psychic or emotional shock. It must be an extreme emotional response.
Wis JI — Civil 1510.
¶ 47. The Bowen court opined that claimants and courts:
*106need a framework for evaluating a bystander's claims of negligent infliction of emotional distress....
We conclude that the traditional elements of a tort action in negligence — negligent conduct, causation and injury (here severe emotional distress) — should serve as the framework for evaluating a bystander's claim of negligent infliction of emotional distress.
Bowen, 183 Wis. 2d at 652-53.
¶ 48. If this same framework is also applied to direct claims such as the present case, we have a formula of: (1) negligent conduct (namely, medical malpractice); (2) causation; and (3) injury (severe emotional distress), without any need for either physical injury or "physical manifestations" of emotional injury. Such a formulation requires comment.
¶ 49. First, the plain truth is that "the physical manifestations" of emotional injury were viewed as an "essential requirement of this type of claim" in Westcott. 148 Wis. 2d at 242 n.2.2 In presenting the case to the court of appeals, Karla Westcott's attorney, Jerome Maeder, stated in his brief:
What Karla Westcott observed during the last minutes of the birthing process and the shock of then observing and feeling the issuance of her dead child caused her mental illness.
*107Karla Westcott was in prior good physical and mental health before this but as a result of witnessing her own child's strangulation she has been severely psychiatrically damaged. She now goes from one major depression to another and has had over 200 contacts with the Health Care Center since the birth of her child, frequently attempting suicide or idealizing such thoughts. She has been on various medications, has experienced insomnia, and then episodes where she has not been able to get up out of her sleep. Her personality has changed and today she still periodically experiences a frightening and overwhelming episode of having her unborn child kicking her inside so that she actually feels the child kicking within her.
She has been treated at the Health Care Center as an inpatient and has seen other psychiatrists. She was evaluated by Dr. Bruce Rhoades, the clinical head of the North Central Health Institute, and his affidavit has been filed with this court. This affidavit and the affidavit of Karla Westcott shows that she has many physical manifestations of her psychiatric problem and that the diagnosis is not one of "grief1 as is implied by the respondents but is an illness readily perceived and categorized by psychiatry and directly resulting from the negligent conduct of the defendant doctor.
She has a "post traumatic stress disorder" together with "major depressive disorder" and "dysthymic disorder" (Diagnostic and Statistical Manual of Mental Disorders III and IIIR). (Emphasis added).
¶ 50. This powerful representation was paralleled in Bowen, where the court stated: "The complaint asserts that these experiences caused Sharon Bowen extreme emotional and psychic injuries with accompanying physical symptoms including hysteria, insomnia, *108nausea and the disruption of work and family relationships." Bowen, 183 Wis. 2d at 635 (emphasis added).
¶ 51. Thus, in a very real sense, the presence of physical symptoms of emotional distress in Bowen's claim meant that the court's blunt disavowal of any requirement for physical injury or physical manifestation of emotional distress was not necessary to its decision.
¶ 52. If there is no requirement of physical manifestation of emotional distress, the concerns expressed by Justice Wilcox in Bowen about assuring the validity of claims for emotional distress become more urgent. See Bowen, 183 Wis. 2d at 663 (Wilcox, J., concurring). He asserted that claimants should be required to produce "some extrinsic, verifiable evidence to support their claims." Id. at 664.
¶ 53. At the very least, a fact-finder reviewing the merits of a claim for negligent infliction of emotional distress should be permitted to consider the presence or absence of physical injury or physical manifestations of distress.3 In a legitimate claim, the absence of any physical manifestations of distress may be explained by expert testimony, which would be helpful, in any event, in describing and categorizing the patient's mental health.
¶ 54. Second, there should be little dispute that the stillbirth of a child as a result of medical negligence will be deeply hurtful to the mother, producing extraor*109dinary grief and anguish. Nonetheless, I do not understand the court's decision to approve a claim for negligent infliction of emotional distress in every such case. A claimant will necessarily be required to meet some threshold of proof for emotional injury, and I do not see why the burden of proving severe emotional distress should be less in a negligence case than in an intentional tort.
¶ 55. Third, severe emotional distress should not, at least in this case, encompass the mother's loss of society and companionship of her child. Loss of "companionship, society and the like .. . are usually viewed as something distinct from anguish or grief." Dan B. Dobbs, 2 The Law of Torts 812 (2001). Wisconsin's present wrongful death statute authorizes up to $500,000 for "loss of society and companionship," for the death of a child from medical malpractice or other tortious causes. Wis. Stat. § 895.04(4). A mother seeking damages for negligent infliction of emotional distress from medical malpractice is making a separate claim governed by the cap under Wis. Stat. § 893.55(4)(d). The two claims may be stacked but they must not he permitted to overlap. Courts "can and should preclude double recovery by an individual." EEOC v. Waffle House, 534 U.S. 279, 297 (2002).4 Here *110the plaintiff has already settled for an award under the wrongful death statute. The specific injury compensated under the wrongful death statute may not be compensated again through a tort claim for negligent infliction of emotional distress.
¶ 56. These observations about the requisite elements for negligent infliction of emotional distress are not exhaustive. Circuit courts may develop other criteria for claims and may in some cases invoke familiar public policy limitations on liability. See, e.g., Smaxwell v. Bayard, 2004 WI 101, ¶¶ 33, 40, 274 Wis. 2d 278, 682 N.W.2d 923.
¶ 57. For the foregoing reasons, I respectfully concur.
¶ 58. I am authorized to state that Justice JON E WILCOX joins this concurrence.
The principle that an unborn child is a separate entity whose interests are protected is reflected in a number of Wisconsin statutes. See the statutes listed in Wis. Stat. § 939.75(3).
Other jurisdictions are divided on the question of whether the plaintiff must suffer some physical injury or physical manifestation of an emotional injury to successfiilly prosecute tort claims for emotional injuries. Compare, e.g., St. Charles v. Render, 646 N.E.2d 411, 414 (Mass. App. Ct. 1995) (physical injury required) and Sceusa v. Mastor, 525 N.Y.S.2d 101, 102 (N.Y. App. Div. 1988) (same) with Giardina v. Bennett, 545 A.2d 139, 140, 142-43 (N.J. 1988) (physical injury not required) and Johnson v. Ruark Obstetrics & Gynecology Assoc., P.A., 395 S.E.2d 85, 97 (N.C. 1990) (same).
Other courts have struggled to find tests to discern the legitimacy of a plaintiffs claim for emotional distress in the absence of physical injury. The Nebraska Supreme Court requires the plaintiff to show that the emotional distress was "medically diagnosable and ... of sufficient severity that it is medically significant." Hamilton v. Nestor, 659 N.W.2d 321, 329 (Neb. 2003).
As another court summarized the difficulty,
The major issue with which [courts considering emotional distress arising from a miscarriage or stillbirth] have wrestled is defining the kinds of damages that are allowable in the mother's action so as neither to duplicate damages afforded in a wrongful death action nor to permit damages that, under the State's law, clearly are not allowed, even in a wrongful death action. The demarcation lines drawn by the courts are not always consistent and they are not always clearly articulated.
Smith v. Borello, 804 A.2d 1151, 1159 (Md. 2002).