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granting defendants summary judgment because plaintiff's headaches, nightmares, loss of sleep, and nausea were not severe as a matter of law
Summary of this case from Aurora v. Burlington Northern R. Co.Opinion
Nos. S-90-740, S-90-984.
Filed August 27, 1993.
1. Mental Distress: Negligence: Proximate Cause. Under appropriate circumstances, recovery may be had for the emotional distress suffered by a bystander who witnesses or gains knowledge of the death or serious injury of another proximately caused by the negligence of a defendant. 2. Mental Distress: Liability. A marital or familial relationship is required in order to bring bystander liability into play. 3. Mental Distress. To be actionable, emotional distress must be so severe that no reasonable person could be expected to endure it. 4. Summary Judgment. Summary judgment is appropriate when the record discloses that there exists no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the movant is entitled to judgment as a matter of law.
Appeal from the District Court for Hall County: JOSEPH D. MARTIN Judge. Affirmed.
Sam Grimminger for appellants.
Mark A. Christensen, of Cline, Williams, Wright, Johnson Oldfather, for appellees William Gomes, M.D., and Grand Island Clinic, Inc.
David A. Svoboda, of Kennedy, Holland, DeLacy Svoboda, for appellees Gary Settje, M.D., and Family Practice of Grand Island, P.C.
BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.
Mike and Tina Andreasen and their two children, Micki Lea and Amy Marie, instituted separate actions against two doctors and their respective employers for emotional injuries resulting from the stillbirth of Mike and Tina's baby. These two cases have been consolidated for purposes of briefing and argument. The petitions allege that the negligent conduct of the defendants, William Gomes, M.D.; Gary Settje, M.D.; and their respective employers, caused the stillbirth. In each instance, the trial court sustained motions for summary judgment in favor of the defendants. The plaintiffs contend that the trial court erred because the record indicates that genuine issues of material fact exist. We affirm each of the judgments.
Settje, a general practitioner, provided Tina with prenatal medical care throughout her pregnancy. After experiencing severe abdominal pains, Tina, at approximately 7 a.m. on January 3, 1989, was admitted to a hospital. She was concerned because when she awoke that morning, she did not feel the fetus move. Although the birth was not to occur for another month, she believed she was in labor.
Settje arrived at the hospital between 8 and 8:15 a.m. An external fetal heart monitor was installed, and shortly thereafter, Settje came in. After looking at the monitor, he notified the expectant parents that the fetus might be losing some oxygen. At approximately 8:26 a.m., complications developed. Settje informed Mike and Tina that he would send a fetal monitoring strip to Omaha to Dr. Michael G. Levine, a specialist in maternal fetal medicine. Unknown to Mike and Tina, Levine, after reviewing the monitoring strip, recommended a cesarean section between 9:33 and 9:37 a.m. Outside the room, Settje also consulted with Gomes, an obstetrical gynecologist. Gomes then entered the labor room wanting to know why everyone was so "excited." Settje did not return to the room, and Mike and Tina did not see him until after the delivery.
Mike and Tina became concerned over the apparent disagreement between the doctors, but did not question their actions. According to Mike and Tina, there also appeared to be some disagreement in the interpretation of the monitor readings between Gomes and the attending nurse, Janet Spale. In order to obtain improved readings, Gomes decided to place an internal monitor on the fetus. Because of unclear readings, and after an attempt to replace a component, the internal monitor was replaced. After this was done, Gomes left, and Spale continued to monitor the readings.
After a short while, Spale stated she had to "go get" Gomes. Upon his arrival, Gomes glanced at the monitor and said, "[L]et's go." Mike stated he noticed the fetal heart monitor stop immediately prior to his wife being wheeled into the operating room. He signed the consent forms needed to perform surgery and waited in the labor room.
The cesarean section was performed at approximately 10:49 a.m., and the stillborn fetus was delivered at approximately 10:50 a.m. When Settje notified Tina of the stillbirth approximately 1 1/2 hours after the delivery, she stated she already knew because she had heard the baby's heart stop prior to going into surgery.
Mike was notified of the stillbirth soon after the delivery. Later that evening, he went to pick up his children from the babysitter's home and told them of the stillbirth.
Approximately 6 weeks later, while on a scheduled visit with Gomes, Tina learned of Levine's recommendation. When Tina questioned Gomes about his failure to follow Levine's recommendation, Gomes responded, "[B]ut who was Mike Levine? Does he think he's God? Am I supposed to listen to everything that he says?"
Dr. Richard Fields, a specialist in obstetrics and gynecology, stated that the need for a cesarean section was identifiable by 8:10 a.m. By 9:50 a.m., when Gomes arrived, the operation should have been performed.
Haselhorst v. State, 240 Neb. 891, 485 N.W.2d 180 (1992), and James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985), permit recovery under appropriate circumstances for the emotional distress suffered by a bystander who witnesses or gains knowledge of the death or serious injury of another proximately caused by the negligence of a defendant.
The manner in which the stillbirth came about is such that a finder of fact could, if it so wished, reasonably find that the defendants were negligent. We thus direct our attention to other matters.
Turning first to the children's claim, we note that among the factors to be considered in bystander liability cases is the relationship between the party harmed and the party claiming to have been distressed by the harm. Haselhorst, supra; James, supra. We have also said that a marital or familial relationship is required in order to bring bystander liability into play. Id.
Although the children knew of the impending birth of a sibling, given their ages, 4 and 7, the relationship between them and the fetus was, as a matter of law, not sufficiently developed to be regarded as an intimate familial one. The children simply lacked the life experiences required to enable them to appreciate the consequences of a stillbirth.
That brings us to Mike and Tina's claim. They claim that they have suffered emotional distress manifested by headaches, nightmares, loss of sleep, and nausea, which an expert characterized as constituting "severe emotional distress." But to be actionable, the emotional distress must have been so severe that no reasonable person could have been expected to endure it. Sell v. Mary Lanning Memorial Hosp., 243 Neb. 266, 498 N.W.2d 522 (1993); Parrish v. Omaha Pub. Power Dist., 242 Neb. 731, 496 N.W.2d 914 (1993); Schleich v. Archbishop Bergan Mercy Hosp., 241 Neb. 765, 491 N.W.2d 307 (1992).
In Parrish, the plaintiff's emotional distress manifested itself in crying and headaches. We ruled that the plaintiff had failed to establish a prima facie case because there was not "'emotional distress' sufficiently severe and medically significant to be actionable under Nebraska law" and noted that "[n]othing indicates that Eldon Parrish's death had an extraordinary effect, either psychological or physical, on Julie Parrish." (Emphasis supplied.) 242 Neb. at 734, 496 N.W.2d at 916.
"'Emotional distress passes under various names such as mental suffering, mental anguish, nervous shock, and includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, embarrassment, anger, chagrin, disappointment, and worry. However, it is only when emotional distress is extreme that possible liability arises.'" Hassing v. Wortman, 214 Neb. 154, 160, 333 N.W.2d 765, 768 (1983).
Inasmuch as the record discloses that there exists no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the defendants are entitled to judgment as a matter of law, the summary judgments entered by the district court were correct. See Howard v. Blue Cross Blue Shield, 242 Neb. 150, 494 N.W.2d 99 (1993).
AFFIRMED.
HASTINGS, C.J., not participating.