requiring “medically verifiable manifestations of severe emotional distress” to limit false or magnified claims and concluding that plaintiff’s reasonable fears were “not severe enough to justify compensation through the courts”
How later courts described this case
- requiring “medically verifiable manifestations of severe emotional distress” to limit false or magnified claims and concluding that plaintiff’s reasonable fears were “not severe enough to justify compensation through the courts”
- direct victim's manifestation of severe emotional distress caused by a doctor's negligence must be medically verifiable
Written by the judges who cited it.
The opinion
PRESIDING JUSTICE DiVITO, specially concurring:
I agree with the result reached by Justice McNulty in this case. I disagree, however, with her discussion of the standard for determining whether a fear of HIV infection is compensable First, this discussion is unnecessary given our decision that there was no "window of anxiety” in this case.
In addition, I find the standard Justice McNulty proposes confusing. She states that plaintiffs cannot recover for negligent infliction of emotional distress claims because their "reasonable fears were never so severe as to warrant tort compensation” (289 Ill. App. 3d at 761; see also 289 Ill. App. 3d at 763, 766). Although it is true that for the tort of intentional infliction of emotional distress a plaintiff must show severe emotional distress (see Doe v. Calumet City, 161 Ill. 2d 374, 392 , 641 N.E.2d 498 (1994)), severity is not a requirement for negligent infliction of emotional distress. To recover for negligent infliction of emotional distress, direct victims must plead only the elements of negligence. Corgan v. Muehling, 143 Ill. 2d 296, 306 , 574 N.E.2d 602 (1991); Hayes v. Illinois Power Co., 225 Ill. App. 3d 819, 825 , 587 N.E.2d 559 (1992). In this case, therefore, I believe the question is not whether plaintiffs’ fears were severe but whether they were proximately caused by defendants’ negligence. See Bain v. Wells, 936 S.W.2d 618, 624-26 (Tenn. 1997) (absent proof of actual exposure, plaintiff failed to establish proximate cause, which is an essential element of negligent infliction of emotional distress). Because plaintiffs have failed to show actual exposure, there is no proximate cause, and their claim for negligent infliction of emotional distress must fail.
Furthermore, as I explained in Doe v. Northwestern University, 289 Ill. App. 3d 39 (1997) (DiVito, P.J., specially concurring), an actual exposure requirement is easier to understand and to apply than the standard Justice McNulty proposes.
According to the opinion authored by Justice McNulty, application of the actual exposure standard in this case would require reversal because plaintiffs have presented adequate evidence of actual exposure. 289 Ill. App. 3d at 762 . I disagree because any conclusion that there was actual exposure in this case is based on speculation. For example, plaintiffs’ allegation that there was dried blood on the scalpel does not establish actual exposure. Not only is the source of this blood uncertain, it is unlikely that the blood on the scalpel was Dr. Lacher’s rather than that of one of his patients.
For these reasons, I specially concur.