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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