Woman May Sue Hospital for Death of Fiance

Published: 1:00 am Mon, March 17, 1997

By admin

Massachusetts Lawyers Weekly

A woman and her child who claimed that they watched the woman’s fiance die as a hospital delayed medical treatment for more than 90 minutes can bring a suit against the hospital for emotional damages, a Superior Court judge has found.The plaintiffs — who had shared a home with the decedent for four years — sued for negligent infliction of emotional distress.The defendant hospital argued that the plaintiffs could not recover for emotional distress because they were not members of the decedent’s family. But Judge Allan van Gestel disagreed.“The degree of [the decedent’s] relationship with [his fiancee and her child], although not legal, was quite strong,” the judge wrote in denying the defendant’s motion to dismiss. “Injury to a loved one and the protracted anguish placed upon witnessing the death of or serious injury to a partner is ‘tangible and predictable’ and should not be considered, as a matter of law, so momentary as not to be reasonably foreseeable.” Van Gestel also ruled that the claim brought by the woman’s son for loss of his mother’s consortium must be dismissed because the hospital owed no duty to him.The eight-page decision is Davin v. Brockton Hospital Inc., Lawyers Weekly No. 12-045-97.

Nontraditional Relationships

Hingham attorney Michael P. Mason, who represented the plaintiffs, said that the decision recognizes that “many people today are in relationships that are not traditional.”The plaintiffs lived with the decedent for four years and operated as a family unit, according to Mason.The amount of emotional distress suffered by the plaintiffs at the death of the decedent was no different than the distress a wife and child would have felt at the death of a husband and father, he stated.Boston attorney Douglas K. Sheff agreed that the decision “heralds a new recognition that those in nontraditional family relationships can suffer equal or greater than a traditional spouse or blood relative. … I applaud the court. Our interpretation of tort law must change as society changes.”Sheff observed that “some nontraditional relationships last a decade. Why should such a couple have less rights than a couple married two weeks and then separated?”The “main catchphrase” in deciding whether there will be a recovery for intentional infliction of emotional distress is foreseeability, he stated.Boston lawyer Nancy L. Watson, who represented the hospital, was unavailable for comment prior to deadline.

Emergency Situation

The decedent, his fiancee and her son shared a home beginning in 1990. The child was not biologically related to the decedent, and was never legally adopted by him. Nevertheless, the child considered the decedent his father in all respects and the decedent considered the child his son.On July 29, 1994, the decedent awoke from his sleep suffering from severe pain and nausea and vomiting blood. The woman and her son — who was then 7 years old — took the decedent to defendant Brockton Hospital at about 2:30 a.m. for medical treatment. According to the plaintiffs, the decedent was unable to walk or talk because of his physical condition. A security guard brought him to the hospital in a wheel chair. The woman registered the decedent while the child remained with him.The plaintiffs claimed that even thought the decedent was ashen, clammy and moaning, he did not receive immediate medical attention after he was registered. The decedent — who was laying on the floor — began vomiting regularly.The decedent’s fiancee was his only caregiver until 4:10 a.m., according to the plaintiffs, when the decedent was taken to an examining room by medical personnel to be screened. During his screening, the woman and her child continued to hear the decedent vomit and moan in pain.At about 5:20 a.m., the woman and her child heard members of the hospital staff yelling along with other “emergency noises” from the decedent’s room.About 30 minutes later, the woman and her son were approached by a physician who informed them that the decedent was very ill and probably would not survive.The decedent died at approximately 6:10 a.m.

Active Labor Act

The woman and her son filed suit against the hospital, alleging that the hospital had violated the Emergency Medical Treatment and Active Labor Act.The act provides that a hospital must give an individual who requests emergency care a screening to determine whether or not an emergency condition exists. Violators of the statute can be held civilly liable by “[a]ny individual who suffers personal harm as a direct result.”The hospital moved to dismiss, arguing that the plaintiffs lacked standing under the emergency-treatment act because they were not patients, but “mere witnesses” and not harmed as a direct result of the hospital’s alleged negligence.The hospital also argued that the plaintiffs could not recover for negligent infliction of emotional distress where they were neither within the “zone of danger” nor immediate family members of the decedent.

Standing Issue

The plaintiffs had standing to sue under the emergency-treatment act, van Gestel found.“The Hospital’s argument that only the actual patient may bring an action under EMTALA is incorrect,” the judge stated. “The term ‘individual’ as used in the Civil Enforcement section of the statute has not been limited to the patient. Rather the statute has not been held to permit an individual who has a special relationship with the patient to also bring suit when she has been harmed in direct consequence of an EMTALA violation.”In the present case, van Gestel pointed out, the woman and her son shared the same address with the decedent during the last four years of the decedent’s life.

Distressing Developments

The judge next turned to the plaintiffs’ emotional-distress claim.“The Hospital maintains that where a plaintiff was not threatened with personal harm, Massachusetts courts have established a ‘family’ prerequisite as a means of limiting recovery,” van Gestel wrote. “Therefore, it argues, [the woman and her son] cannot recover for negligently inflicted emotional distress resulting from a duty allegedly breached to [the decedent] because they lack the required close familial relationship.”For a plaintiff to bring an action for negligent infliction of emotional distress, there must be a substantial physical injury and proof that the injury was caused by the defendant’s negligence, van Gestel wrote, citing the Supreme Judicial Court’s 1977 decision in Dziokonski v. Babineau. “[W]hether there should be liability for the injury sustained depends on a number of factors, such as: where, when, and how the injury, to the third party person entered into the consciousness of the claimant; and what degree there was of familial or other relationship between the claimant and the third person,” the judge explained.In the present case, van Gestel continued, the degree of relationship between the plaintiffs and the decedent “although not legal, was quite strong,” as evidenced by the following facts:

  • the woman and her son lived with the decedent for four years;
  • the decedent reared the child as his own for four years; and
  • the decedent considered the child his son.

“[The plaintiffs] have alleged a set of facts which may allow them to prove their state law claim of emotional distress,” van Gestel found.Mark A. Cohen