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Dr. Claimed live fetus dead: suit for emotional distress dismissed.

TANYA CHILDERS, PREGNANT WITH HER FIRST CHILD, WOKE UP AT MIDNIGHT ON NEW YEAR'S EVE IN 2005 TO FIND THAT SHE WAS BLEEDING PROFUSELY. She was taken by ambulance to Mary Chiles Hospital. Dr. Sandra Geile, the emergency room physician on duty, was employed by Marshall Emergency Services Associates. On arrival, Tanya was examined by Dr. Geile. She told Tanya that she was having a miscarriage and had probably already lost the fetus. Both Tanya and her husband, Jeffrey, were upset before and alter the bad news. Dr. Geile maintained that there were several signs which led her to diagnose fetal death; she could feel no movement of the fetus; found no fetal heart tones; noticed loss of the mucus plug; loss of tissue; clots; and significant bleeding. Tanya, stated that Dr. Geile had not checked for fetal heart tones and described her demeanor as very abrupt and matter of fact. After being informed of the miscarriage, Tanya became very distraught. Dr. Geile sent a nurse to the waiting room to get Jeffrey but left before he arrived, leaving Tanya to tell him of their loss. Tanya. continued to be so upset that nurses asked Dr. Geile to order medication to help blunt Tanya's distress about the miscarriage. Dr. Geile ordered Ativan. About an hour later, Dr. Geile reviewed the lab report, which showed that Tanya had normal blood levels of hCG. Dr. Celle later maintained that while a normal hCG is indicative of how advanced a pregnancy is, it does not indicate whether the fetus is alive when the test is taken. Dr. Geile did not report the test results to Tanya. She claimed that she discussed the results with Dr. Eastham, a consulting obstetrician. This was not recorded in Tanya's chart. Dr. Geile stated Dr. Eastham recommended Tanya be given Methergine to stop the bleeding and follow up with her obstetrician. Tanya stated that Dr. Geile did not report this to her, however, a nurse conveyed this to her. She took the Methergine, as prescribed. Tanya notified her obstetrician of what tanspired. He ordered her in for an immediate ultrasound, which revealed a fifteen-week old fetus in the breech position with a heart rate of 102 bpm. Although Tanya and Jeffrey's emotions swung from despair to joy, the obstetrician warned that the Methergine Tanya had taken was contraindicated for a live pregnancy. The fetus was delivered five clays later and did not survive. The Childers sued for medical malpractice and the tort of outrage. The complaint was amended to claim only damages for outrageous conduct. The defendants' motion for summary judgment was granted. The Childers appealed. The Court of Appeals affirmed the judgment of the lower court. The Supreme Court of Kentucky granted a review.

THE SUPREME COURT OF KENTUCKY AF-FIRMED THE JUDGMENT OF THE COURT OF APPEALS. The court held, inter alia, that because the tort of intentional infliction of emotional distress did not apply to the facts in the case, it had no alternative but to affirm the decision of the Court of Appeals. The court cited the Restatement of Torts, which stated in pertinent part: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." The court also cited the leading Kentucky ease regarding intentional infliction of emotional distress, Craft v. Rice 671 S.W.2d 247 (Ky.1984), wherein the Court stated, inter alia, that: "The basis of the cause of action is intentional interference with the plaintiffs [sic] rights causing emotional distress, with or without personal injury in the traditional sense."

THE COURT FOUND THAT THERE WAS NOT A SCIN-TILLA OF EVIDENCE TO SHOW THATTHERE WAS ANY INTENTIONAL INFLICTION OF EMOTIONAL HARM BY DR. GEILE. Accordingly, since the sine qua non of Tanya's cause of action was the intentional infliction of emotional harm, and there was none, the court concluded that the Childers had no viable cause of action. Simply put, the court set forth the three requirements for a viable cause of action for intentional infliction of emotional harm. First, The basis of the cause of action is intentional interference with the plaintiffs [sic] rights causing intentional infliction of emotional distress with or without personal injury in the traditional sense. Second, If there has been physical injury with pain to the body or mind, it is incidental to the emotional distress, rather than essential to the cause of action as is the case in an action for personal injury. Third, the plaintiff may have a cause of action for emotional distress from the intentional and unlawful interference with her rights, regardless of whether she suffers any bodily injury form such interference. The court concluded that clearly the conduct complained of must be extreme, or outrageous and intolerable. It must violate generally accepted standards of decency and morality. Many instances of criminal conduct would likely qualify, but any conduct that shocks the conscience could be unlawful as well because others have the right to be free of such conduct. While the intentional infliction of emotional distress could be pleaded alternatively, a litigant cannot prevail on both a negligence claim and an intentional infliction of harm! Childers v. Geile, -S.W3d-(6/21/2012) -KY
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Publication:Medical Law's Regan Report
Date:Jun 1, 2012
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