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Someone who does not witness tortious conduct being inflicted upon a family member cannot recover damages for the intentional infliction of emotional distress, the Pennsylvania Supreme Court ruled in a long-awaited decision. The Pennsylvania Superior Court in Taylor v. Albert Einstein Medical Center had let stand the jury’s award of damages for a mother who did not actually witness the conduct allegedly causing the death of her teenage daughter. The intermediate appeals court said the finding of “outrageous intentional conduct” was sufficient to support the award. But now the Supreme Court, while it still has not officially adopted Section 46(2) of the Restatement (Second) of Torts, has made it clear that actually witnessing the conduct is crucial to the claim. Chief Justice John P. Flaherty wrote the opinion announcing the judgment of the court. Justice Ronald D. Castille wrote a concurring opinion, with which Justice Russell Nigro joined. Justices Stephen Zappala and Thomas Saylor concurred in the result only. Ka-Rin Taylor, a 16-year-old girl, went to the hospital and was tentatively diagnosed with pneumonia. She was incorrectly intubated for at least one and perhaps as long as three hours as she was being treated at Albert Einstein Medical Center. To refine the diagnosis, doctors wanted to perform a Swan-Ganz catheterization. The attending physician, Peter Trinkaus, checked his decision with cardiologist John Wertheimer. Margaret Taylor, Ka-Rin’s mother, consented orally to a catheterization, according to the opinion. “Testimony at trial differed as to whether she consented only to having Dr. Wertheimer perform the procedure, or whether her consent included Dr. Trinkaus, who admittedly had less experience with the procedure than Dr. Wertheimer,” the court said. Margaret Taylor testified at trial that Trinkaus told her that Wertheimer would perform the catheterization. Two family members corroborated her testimony. And a social worker backed up the mother’s statement that Trinkaus himself admitted that he had “very little experience” performing catheterizations. Ka-Rin died of cardiac arrest during the procedure. The defendants said her death was not caused by the catheterization procedure but was an inevitable result of her condition, viral myocarditis. But the plaintiffs had two medical experts who linked the girl’s death to the inadvertent placement of the catheter in an arterial vessel. The jury found that Trinkaus was negligent but that his negligence was not a substantial factor in causing the death of Ka-Rin. But the jury also found that Trinkaus’ conduct was outrageous and awarded $500,000 to Margaret Taylor for intentional infliction of emotional distress. The Superior Court panel, consisting of President Judge Stephen McEwen and Senior Judges William Cercone and Phyllis Beck, split over the emotional distress issue. The majority said Margaret Taylor made out the elements of the tort of intentional infliction of emotional distress under Section 46 of the Second Restatement. An intentional infliction of emotional distress claim is available to plaintiffs “who suffer severe emotional distress as a result of … outrageous intentional conduct,” the court said. Ka-Rin’s mother “reasonably believed that Dr. Trinkaus purposefully misled her as to who would perform the procedure and then caused or contributed to Ka-Rin’s death when he performed the procedure himself, despite his previous assurances to her to the contrary,” McEwen wrote. But Beck dissented, stating that Ka-Rin’s mother did not know of the substitution of doctors while her daughter was being catheterized and that she was not a witness to the tortious conduct. Therefore she could not recover damages for the intentional infliction of emotional distress under Section 46(2), she said. The Supreme Court agreed with Beck, reversing the majority. “Superior Court completely disregarded the language in Section 46(2) requiring that the family member, who claims emotional distress, have been ‘present at the time’ when the extreme and outrageous conduct occurred,” the court said. PRESENCE CRUCIAL In this case of first impression, Flaherty noted that the Supreme Court had never addressed the requirements for an intentional infliction of distress claim under the restatement. “Although we have never expressly recognized a cause of action for intentional infliction of emotional distress, and thus have never formally adopted this section of the restatement, we have cited the section as setting forth the minimum elements necessary to sustain such a cause of action.” “Presence” seems to be one of the minimum elements under Section 46(2), the court said. “The issue of ‘presence’ arises from a requirement expressed in the Restatement (Second) of Torts Section 46(2) that, where distress caused by wrongful conduct directed at a third person is claimed, the plaintiff must have been ‘present at the time’ of the conduct in order to recover damages for intentional infliction of emotional distress,” the judge said. Ka-Rin’s mother did not satisfy this element of the Section 46(2) claim, the court concluded. “Margaret Taylor remained in a hospital waiting room and a hallway while physicians worked on her daughter in an intensive care unit. She did not learn of the alleged outrageous conduct, to wit, that Dr. Trinkaus performed the catheterization despite his alleged representation that Dr. Wertheimer would do so, until afterwards,” Flaherty wrote. “Inasmuch as she was not present when the procedure was performed and did not observe Dr. Trinkaus’ conduct, she cannot maintain an action under Section 46(2).” The court said the requirement of presence is a “crucial element of the tort” because the impact of the intentional act differs depending on whether the plaintiff actually witnessed the act. “When one is not present at the scene of tortious conduct, but instead learns of it later from a third party, he is buffered against the full impact that presence and observation would have entailed,” the court said. “By contrast, the relative who contemporaneously observes the tortious conduct has no time span in which to brace his or her emotional system,” Flaherty wrote. Further, turning to the comment to Section 46, the court said, “the limitation may be justified by the practical necessity of drawing the line somewhere.” CONCURRENCE Castille wrote separately to state that “although it is certainly true, as the majority notes, that we have never formally adopted Section 46(2) …, I cannot agree with the broader proposition that ‘we have never expressly recognized a cause of action for intentional infliction of emotional distress.’” According to Castille, “30 years ago, this court recognized a cause of action for serious mental or emotional distress resulting from intentional or wanton conduct in Papieves v. Kelly.” However, the tort recognized in Papieves is the subject of Section 868 of the Restatement, not the general provisions contained in Section 46, the judge noted. The tort governed by Section 868 does not involve the element of “presence.” “As the majority correctly notes, subsection 46(2) requires that the person complaining of emotional distress arising from outrageous conduct directed at an immediate family member must actually be present at the time of the outrageous conduct.” Castille also wrote to “elaborate on the reasons why appellee Margaret Taylor cannot be deemed to have been ‘present’ for purposes of subsection 46(2).” Taylor had claimed that the tort occurred when Trinkaus obtained her consent by giving her the impression that Wertheimer would be performing the catheterization, when he actually intended to do it. Castille said that was a mischaracterization of the conduct underlying Taylor’s claim. “The primary tragedy here was Ka-Rin’s death. Mrs. Taylor did have time to steel herself to that tragedy before learning the entirely separate and, at least for purposes of this tort, unrelated fact that Dr. Trinkaus performed the procedure,” he said. Finally, Castille noted that while it wasn’t the court’s place in this case to determine the propriety of Section 46(2), he had some misgivings about whether it should be formerly adopted. “The majority does not state one way or other whether it would adopt Section 46, noting only that the section sets forth ‘the minimum elements’ necessary to sustain such a cause of action. I must admit to having some reservation about the section, a reservation only heightened by the facts of this case,” he said. “I am uneasy with the notion, accepted by the jury here under the Restatement test, that [Trinkaus'] conduct can be deemed ‘outrageous’ conduct which ‘intentionally or recklessly’ caused ‘severe emotional distress’ to Ka-Rin’s mother.” However, Castille said, since the question was not before the court in this case, “I would leave to another day the question of the adoption, and contours of the tort described in section 46(2).”

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