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04/16/91 MONICA JONES v. HOWARD UNIVERSITY

DISTRICT OF COLUMBIA COURT OF APPEALS


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 of which Mrs. Jones complains was not an unrevealed risk of the surgical procedure or x-rays that were performed. *fn5 Therefore, Mrs. Jones cannot recover under the informed consent theory. *fn6

III.

We now turn to the question of whether appellant can seek recovery under the zone of danger rule adopted by this court in Williams, supra. Under traditional principles of tort law, a plaintiff who did not suffer direct physical injury as a result of the defendant's negligence could not recover for negligently inflicted emotional distress. See Asuncion, supra, 514 A.2d at 1188; Coughlin v. George Washington Univ. Health Plan, Inc., 565 A.2d 67, 71 (D.C. 1989). Thus, the same lack of a physical injury that rules out application of the informed consent doctrine also precluded Mrs. Jones from recovering under traditional tort principles for appellees' negligence in failing to ascertain whether she was pregnant before subjecting her to the x-ray and surgical procedures. *fn7

In Williams, supra, this court held that a plaintiff may recover for negligent infliction of serious emotional distress, even without an accompanying physical injury, "if the plaintiff was in the zone of physical danger and was caused by defendant's negligence to fear for his or her own safety . . . regardless of whether plaintiff experienced a physical impact as a direct result of defendant's negligence." 572 A.2d at 1067. To avail herself of this zone of danger rule, Mrs. Jones must first establish that the x-rays or surgical procedure did in fact pose a danger to the safety of herself or her non-viable unborn twins. The threat of injury from these sources must have been more than minimal or negligible.

In applying the zone of danger rule we must recognize that its logic requires that the plaintiff's presence in the zone of danger be contemporaneous with her fear for her own safety. See Williams, supra, 572 A.2d at 1067. This requirement will be satisfied in this case if it is established that the x-rays did in fact pose a threat to the unborn twins because, although Mrs. Jones was not aware at the time she underwent the x-rays that she was pregnant, the threat that the radiation could harm the unborn twins continued throughout her pregnancy. The same would be true of the distress, if any, that resulted from the performance of the surgery. As stated in the RESTATEMENT (SECOND), "the fear may be, and usually is, fear of immediate harm, but if the negligence results in a long continued peril, the illness may be caused by the cumulative effects of the anxiety and suspense caused by the other's constant subjection to it." § 436 comment c.

Another issue presented by this case is whether an injury to the unborn twins was an injury to Mrs. Jones herself. With respect to viable unborn children, we held in Greater Southeast Community Hosp. v. Williams, 482 A.2d 394 (D.C. 1984), that they are persons within the meaning of the District of Columbia's wrongful death and survival statutes. In Coughlin, supra, we dealt with an action by a mother against health care providers for negligence that caused her child to be stillborn. 565 A.2d at 70 & n.3. It was not clear from the record whether the unborn child had been viable. We referred to authorities "that would hold that injury to the non-viable fetus, in and of itself, constitutes injury to the woman." Id. We take the view that to authorize the mother to pursue, in her own right, claims for injury to a non-viable fetus represents a more orderly approach to the adjudication of such claims than does a requirement that such claims be pressed as wrongful death and survival claims. For the purpose of a tort action by the mother for injury to a non-viable fetus, therefore, we hold that injury to the fetus is an injury to the mother. *fn8 In this case, as the twins were in their first trimester, it is apparent that Mrs. Jones would be able to press in her own right any claims for injury to the unborn twins. This holding has relevance to our holding in Williams that

if the plaintiff was in the zone of physical danger and was caused by defendant's negligence to fear for his or her own safety, the plaintiff may recover for negligent infliction of serious emotional distress and any resultant physical injury, regardless of whether the plaintiff experienced a physical impact as a direct result of defendant's negligence.

Williams, supra, 572 A.2d at 1067.

A question we left open in Williams, supra, and which we must now address, is whether the zone of danger rule allows recovery only for emotional distress that results in physical injuries or physical manifestations. 572 A.2d at 1068. While noting that the zone of danger rule developed with the requirement that the mental distress results in physical injury, this court in Williams, supra, recognized the problems that inhere in distinguishing between purely mental distress and mental distress resulting in physical injury. Id. Although we were not required to take a position on the issue, we indicated our agreement with the New York approach, as articulated in Bovsun v. Sanperi, 61 N.Y.2d 219, 231, 461 N.E.2d 843, 849, 473 N.Y.S.2d 357, 363 (1984), that "in furtherance of the policy of excluding recovery for trifling distress, the claimed distress must be 'serious' and 'verifiable.'" Williams, supra, 572 A.2d at 1068. We now adopt this requirement. As stated in Williams, supra:

The fact that [the different forms of emotional disturbance] are accompanied by transitory, non-recurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance, as for example in the case of repeated hysterical attacks, or mental aberration, may be classified by the courts as illness, notwithstanding their mental character. This becomes a medical or psychiatric problem, rather than one of law.

572 A.2d a 1068 (quoting RESTATEMENT (SECOND) OF TORTS § 436A comment c (1965)); see also Vance v. Vance, 286 Md. 490, 500, 408 A.2d 728, 733 (1979) (" plaintiff can sustain an action for damages for nervous shock or injury caused without physical impact, by fright arising directly from defendant's negligent act or omission and resulting in some clearly apparent and substantial physical injury as manifested by an external condition or by symptoms clearly indicative of a resultant pathological, physiological, or mental state. " (quoting Bowman v. Williams, 164 Md. 397, 404, 165 A. 182, 184 (1933) (emphasis supplied)).

Thus, if Mrs. Jones's distress was serious and verifiable *fn9 she can recover for the mental distress she has suffered as a result of her fear that the x-ray radiation or surgical procedure had injured her or her unborn children or would cause the children to be born with injuries.

In sum, the absence of an accompanying physical injury does not preclude Mrs. Jones from recovering for serious and verifiable mental distress she has suffered as a result of her fears that exposure to radiation or the surgery would cause harm to herself or her unborn twins. It is clear from our recitation above of the facts of this case as seen in the light most favorable to Mrs. Jones that she has raised genuine issues as to facts material to her right to recover on a zone of danger theory. We therefore remand this case for a trial at which Mrs. Jones will have the opportunity to establish that she is entitled to recover under that theory.

Reversed and remanded.


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