Negligent Infliction of Emotional Distress New Hampshire
In a series of cases beginning with Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979), the Supreme Court has defined the parameters under which it will allow bystander recovery for emotional distress. a plaintiff may recover under this theory if all of the following requirements are met:
(1) the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away from it.
(2) the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
(3) the plaintiff and the victim were closely related, as contrasted with an absence from relationship or the presence of only a distant relationship. Corso, 119 N.H. at 653, 654.
The Corso case arose out of a car crash in which the defendant's car struck the plaintiff's daughter, causing her to receive severe and permanent injuries.
The Court ruled that, parents who "perceive through their senses the fact that their child has been seriously injured and immediately observe the child at the accident scene" are entitled to recover for negligent infliction of emotional distress. Corso, 119 N.H. at 649, 659. the Court permitted recovery even though the parents did not witness the crash itself.
In Corso, the negligent act and the accident were one and the same. Since the parents' injury was "directly attributable to the emotional impact of their observation or contemporaneous sensory perception of the accident and immediate viewing of the accident victim," they were entitled to recovery. Corso, 119 N.H. at 656.
In Nutter v. Frisbie Memorial Hospital, 124 N.H. 791, 474 A.2d 584 (1984), the Supreme Court applied its Corso analysis to a medical malpractice claim.
In Nutter the plaintiffs' three month old daughter, Amanda, was diagnosed with pneumonia. Several days later, while in the care of her babysitter, she developed complications.
The babysitter called an ambulance and the child was brought immediately to the hospital. Shortly after her arrival she died, allegedly as a result of the defendants' malpractice.
The plaintiffs sought to recover for the negligent infliction of emotional distress and claimed that their observation of Amanda in the emergency room immediately after her death entitled them to relief.
The Court ruled that the plaintiffs had not alleged a recognized cause of action and stated that Corso:
clearly limited bystander recovery to those plaintiffs whose injuries were most directly and foreseeably caused by the defendant's negligence... . This means that the parent had to be close enough to experience the accident first hand, and that "recovery will be denied if the plaintiff either sees the accident victim at a later time, or if the plaintiff is later told of the seriousness of the accident."Nutter, 124 N.H. at 795, 796 (quoting Corso, 119 N.H. at 657).
Though Nutter does not appear to require observation of the negligent act to support a claim for negligent infliction of emotional distress, it does suggest that in medical malpractice cases observation of the resulting injury alone is insufficient.
Other jurisdictions considering the issue have determined that, in medical malpractice cases, where a sudden and distinct event is not immediately apparent, there must be "some observation of the defendant's conduct and the ... injury and contemporaneous awareness that the defendant's conduct or lack thereof is causing harm." Ochoa v. Superior Court, 39 Cal.3d 159, 170, 216 Cal. Rptr. 661, 703 P.2d 1 (1985)(court allowed recovery based on shock parents experienced when they actually observed son's medical needs being ignored, not on resulting death of their son);
see also Nelson v. Flanagan, 677 A.2d 545, 548, 549 (Me. 1996) (applying same criteria as described in Corso, court dismissed plaintiffs' claims for negligent infliction of emotional distress in medical malpractice case; court found after-the-fact emotional distress was not result of immediate perception of defendant's misdiagnosis and found lack of contemporaneous awareness that defendant's conduct causing harm).
The court need not determine whether Corso permits recovery for negligent infliction of emotional distress in medical malpractice cases.
Even assuming the Supreme Court recognized such a claim in Nutter, the facts presented here do not state a cause of action.
Corso, requires more than the direct observation of the progression of cancer. Although under Corso a plaintiff need not be present during the misdiagnosis, a plaintiff must witness a definable, perceivable event that ultimately results in injury.
"Corso unqualifiedly requires a contemporaneous sensory perception of the accident, and not, as the plaintiffs argue, a perception of the injury sustained." Wilder v. City of Keene, 131 N.H. 599, 603, 557 A.2d 636 (1989).