concluding plaintiffs’ emotional distress was “direct result of wrongful conduct”; “it would be wholly unrealistic to say that the [plaintiffs] were mere witnesses to the consequences of the tortious conduct involved in this case”
How later courts described this case
- concluding plaintiffs’ emotional distress was “direct result of wrongful conduct”; “it would be wholly unrealistic to say that the [plaintiffs] were mere witnesses to the consequences of the tortious conduct involved in this case”
- holding that the evidence supporting the fourth factor, power of control, was sufficient to support the jury’s finding that a master-servant relationship existed between a physician and a laboratory technician
- holding that, in a misdiagnosis case, where the misdiagnosis was a breach of duty and caused an actionable injury, the victims are entitled to damages that are the “reasonable and proximate consequences,” which a reasonable person could have foreseen
- finding that a laboratory owed a duty of reasonable care to the plaintiffs in the handling of blood withdrawn for Tay-Sachs testing on grounds different from § 323
Written by the judges who cited it.
Distinguished
Distinguished by Santowasso v. Zedler, 44 Va. Cir. 365 (1998)
The cases offered by the defendant as limiting the scope of Naccash are inapposite to the instant action.
The opinion
COCHRAN, J.,
dissenting in part.
I agree that, under the “wrongful birth” concept, the Burgers had a justiciable cause of action for medical malpractice against Dr. Naccash. There was evidence from which the jury reasonably *420 could find, as authorized by Instruction 10, that Rosalie Green was the servant or agent of Dr. Naccash, that she was working within the scope of his employment, that she was negligent, and that her negligence was the proximate cause of the mislabeling of the vial containing Burger’s blood sample. Accordingly, under the instruction, the jury could find, and it did, that Dr. Naccash was liable for Green’s negligence.
I do not agree, however, with the measure of damages approved by the majority. In my view, damages for the Burgers’ emotional distress cannot be justified under Hughes v. Moore, 214 Va. 27 , 197 S.E.2d 214 (1973) or Womack v. Eldridge, 215 Va. 338 , 210 S.E.2d 145 (1974). In Hughes , we permitted recovery of damages for emotional distress if accompanied by physical injury only upon proof by clear and convincing evidence of the causal connection between the negligence, the emotional distress, and the injury. In Womack , we approved the allowance of damages for emotional distress, unaccompanied by physical injury, only where the following elements are shown:
One, the wrongdoer’s conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. Four, the emotional distress was severe.
Id. at 342 , 210 S.E.2d at 148 .
There was no physical injury to the Burgers accompanying their emotional distress, to bring them within the purview of the Hughes rationale, and the evidence shows that the conduct of Naccash’s servant did not meet either of the first two prerequisites mandated by Womack . As I understand it, the majority would simply remove those two requirements of Womack and permit recovery for mental suffering proximately caused by the defendant’s negligence.
*421 The majority rely heavily upon Berman v. Allan, 80 N.J. 421 , 404 A.2d 8 (1979), in which the New Jersey Supreme Court reversed an earlier decision and permitted parents to recover damages for emotional distress caused by a “wrongful birth.” Nevertheless, the court declined to permit recovery for the medical and other expenses incurred in maintaining the defective child.
I prefer the reasoning of the New York Court of Appeals in Becker v. Schwartz, 46 N.Y.2d 401 , 386 N.E.2d 807 (1978), that pecuniary loss is compensable but that emotional distress is too speculative to permit recovery and is a matter best left for legislative determination. See Howard v. Lecher, 42 N.Y.2d 109 , 366 N.E.2d 64 (1977). The effect of the majority opinion in the present case is to remove all restrictions upon the award of damages, except to eliminate those expenses allowable only in a wrongful death action, thus venturing into a position far behond that approved in either Berman or Becker .
No one can fail to deplore the anguish experienced by these unfortunate parents. A pecuniary award, regardless of its size, cannot compensate them for their sorrow. But to permit recovery for emotional distress, embarrassment, and humiliation in the birth and deterioration of their afflicted child is legally unwarranted. The majority is making a policy decision that not only may have a chilling impact upon members of the medical profession but, by making the practice of defensive medicine more widespread, may indeed have an adverse effect upon the public. It is better to have the General Assembly, rather than this Court, provide a forum for opposing views, and, after weighing the conflicting societal interests, make the necessary policy decision. Absent legislative sanction, I would not extend the measure of damages beyond that approved in Womack . Accordingly, I would reverse the judgment, deduct from the total expenses of $30,948.06 the sum of $2,274.26 for expenses incident to the child’s burial and enter judgment for the Burgers in the amount of $28,673.80.
THOMPSON, J., joins in dissent.