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04/16/91 MONICA JONES v. HOWARD UNIVERSITY

April 16, 1991

MONICA JONES, APPELLANT
v.
HOWARD UNIVERSITY, INC., AND VICTOR F. SCOTT, M.D., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Gladys Kessler, Trial Judge

Rogers,* Chief Judge, Belson and Schwelb, Associate Judges.

The opinion of the court was delivered by: Belson

On this appeal from an order granting summary judgment in favor of defendant hospital and physician, the issue is whether a mother who underwent a diagnostic x-ray and surgery during the first trimester of her pregnancy can recover for the mental distress she experienced out of concern for her health and the health of her unborn twins where the treating physician and hospital were negligent in failing to ascertain and inform her that she was pregnant and in failing to warn her of potential consequences of those procedures before performing them but where the twins were in fact born healthy. We hold that summary judgment was inappropriate because it is far from clear on this record that Mrs. Jones will not be able to satisfy the requirements of the zone of danger rule recently adopted by this court in Williams v. Baker, 572 A.2d 1062 (D.C. 1990) (en banc). *fn1

I.

Because we are reviewing the trial court's grant of a summary judgment, we must construe the facts in the light most favorable to the appellant. See Burt v. First Am. Bank, 490 A.2d 182, 185 (D.C. 1985). Appellant Monica Jones was admitted to Howard University Hospital under the care of appellee Victor Scott, M.D. Mrs. Jones, who had a history of gastro-intestinal problems, was suffering from nausea, vomiting, and dehydration. [R. 598] A variety of radiology studies, including abdominal x-rays and upper GI and small bowel series, were performed on Mrs. Jones. Although Mrs. Jones had informed the hospital staff that she was 25 years old, had not had a menstrual period in about two months, had ceased using birth control pills, and had breast tenderness, she was not given a pregnancy test before being x-rayed. After being diagnosed as suffering from cholecystitis (diseased gall bladder), Mrs. Jones underwent surgery for removal of her gall bladder.

Approximately two weeks after the surgery and while Mrs. Jones was still a patient in the hospital, she was informed that she was pregnant with twins of fourteen to fifteen weeks gestation. The twins were born healthy and normal, and since birth have demonstrated no physical or mental problems that their physicians have related to exposure to radiation.

The realization that she had been pregnant when she underwent the x-rays and surgery caused Mrs. Jones to suffer emotional distress and anxiety over the potential injury to her twin unborn children. She also became concerned over the prospect that she might experience a spontaneous abortion or other complications. The procedure that was performed in fact created a risk of spontaneous abortion. A clinical psychologist diagnosed Mrs. Jones as suffering from post-traumatic stress disorder, symptoms of which included depression, anxiety, sleep disturbance, guilt, mistrust of authority figures, denial, and avoidance. Mrs. Jones's emotional distress lasted throughout her pregnancy, and she continues to have profound fears regarding her children's health and well being, both present and future.

Mrs. Jones filed suit against Howard University and Dr. Scott on two counts: 1) that appellees were negligent in subjecting her to radiation without first performing appropriate tests for pregnancy or taking an adequate history that would have revealed that she was pregnant; and 2) that appellees failed to obtain her informed consent to the x-rays and surgery. *fn2 According to Mrs. Jones, she would not have consented to either the x-rays or the surgery had she known that she was pregnant and instead would have continued with the antibiotic treatment to which she was responding. Her own medical expert, however, stated at deposition that eventually her gall bladder would have to have been removed.

The trial court granted summary judgment in favor of defendants consistent with the then-controlling law that there could be no recovery for emotional distress absent an accompanying physical injury. See Asuncion v. Columbia Hosp. for Women, 514 A.2d 1187, 1188 (D.C. 1986). Since then, this court has gone beyond the limitations of the so-called "impact rule" to allow recovery to a plaintiff for negligent infliction of serious emotional distress and any resultant physical injury as long as "the plaintiff was in the zone of physical danger and was caused by defendant's negligence to fear for his or her own safety." Williams, supra, 572 A.2d at 1067. *fn3 We reverse the trial court's ruling and hold that Mrs. Jones can recover if she can convince the trier of fact upon remand that the amount of radiation to which she was exposed or the surgical procedure presented a threat to her own health or that of her unborn twins and that as a result she experienced mental distress that was "serious and verifiable."

II.

We first address appellant's claim that the doctor and the hospital are liable for damages to her because they failed to obtain her informed consent, and explain why we reject it. In the context of medical malpractice cases based on a lack of informed consent, a physician's breach of duty to disclose is actionable in negligence only if "it induces a patient's uninformed consent to a risky operation from which damages actually result." Gordon v. Neviaser, 478 A.2d 292, 295-96 (D.C. 1984); Kelton v. District of Columbia, 413 A.2d 919, 922 (D.C. 1980). *fn4 As the court stated in Canterbury v. Spence:

No more than breach of any other legal duty does non-fulfillment of the physician's obligation to disclose alone establish liability to the patient. An unrevealed risk that should have been made known must materialize, for otherwise the omission, however unpardonable, is legally without consequence.

150 U.S. App. D.C. 263, 281, 464 F.2d 772, 790, cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L.Ed.2d 518 (1972); accord, Downer, supra note 5, 322 A.2d at 92.

Here, assuming that Dr. Scott and the hospital were negligent in failing to inform Mrs. Jones that she was pregnant before obtaining her consent to the x-rays and surgery, Mrs. Jones still cannot recover on a malpractice claim grounded upon lack of informed consent because the unrevealed risk that her unborn twins would be physically harmed did not materialize. The x-rays and surgery of themselves cannot be viewed as supplying the physical injury necessary for recovery under an informed consent theory because, having served their intended purpose, they did not constitute the realization of an undisclosed risk. Cf. Kelton, supra, 413 A.2d at 922-23 (distinguishing between negligent failure to disclose and unconsented-to surgical procedure). The emotional harm ...


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