Articles Posted in Emotional Distress Cases

A recent Tennessee Court of Appeals case serves as a reminder that the bar for proving outrageous conduct is high for plaintiffs attempting to make a case for intentional infliction of emotional distress (“IIED”). In Kindred v. Nat’l College of Bus. and Tech., Inc., No. W2014-00413-COA-R3-CV (Tenn. Ct. App. March 19, 2015), plaintiff sued her former college for, among other things, IIED related to the cancellation of her classes for one term. Plaintiff had her GED, and at the time of her initial enrollment the school did not require students to have an official copy of their equivalency certificate in their file. That policy later changed. Two weeks prior to the start of term 107, plaintiff went to the college to get a copy of that term’s schedule and was informed that her file did not have an official copy of her GED and that she was thus not in compliance with the school’s requirements. Plaintiff alleged that she presented the school with her GED equivalency card, but she did not dispute that she took no steps to get an official copy of her GED into her file.

Plaintiff started attending classes at the beginning of term 107, but after one week the director of the campus cancelled plaintiff’s schedule because her file did not comply with the official copy requirement. The director told plaintiff that she would not be charged tuition for that term and that she could return to classes the next term as long as she had provided an official copy of her GED. Plaintiff provided the school with her GED on the same day she was informed about her schedule cancellation, but the director refused to reinstate her for that term. Two months later, plaintiff enrolled in another term (term 111) at the same college. She was not allowed to enroll until she paid an outstanding balance for textbooks from term 107 (the cancelled term), which she paid after protest. Plaintiff attended two additional terms at the school, but at the end of term 113 she received a failing grade, which she unsuccessfully challenged. After that, plaintiff alleged that “she could no longer suppress her pain and distress that began with [defendant’s] degrading termination of her enrollment eight months earlier. Plaintiff further allege[d] that this forced her to cease her attendance at [the school] and abandon her educational/professional goals.”

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Memphis, Tennessee medical malpractice cases always seem to have a more than their fair share of twists and turns.  This health care liability case has more twists and turns than the Cherohala Skyway TN 165 / NC143 from Tellico Plains to Robbinsville ( a great road for our motorcycling friends).

During her third pregnancy, Plaintiff Michelle Rye was under the care of Dr. Diane Long, a physician with Women’s Care Center of Memphis. Because Ms. Rye has Rh negative blood, the standard of care dictated she be given a RhoGAM injection during her pregnancy.   The defendants failed to give Ms. Rye the RhoGAM injection and she developed Rh-sensitization as a result.   Rh-sensitization is a condition in which, if the in utero child has Rh positive blood, the mother’s antibodies attack the baby’s blood cells causing injury to the baby. 

The defendants admitted they failed to comply with the standard of care but denied the plaintiffs had suffered any damage. In particular, in support of their motion for summary judgment, the defendants attached the affidavit of Dr. Stovall who opined it could not be said with any reasonable degree of medical certainty that any Rh-sensitized female would ever sustain any injuries or damage and the same was true even if the woman conceived another child as the child would have to have Rh-positive blood for the condition to be in play.

The plaintiffs countered that the defendants’ malpractice had caused them to alter their family planning. Specifically, following the birth of their third child, the defendants referred the plaintiffs to Dr. Schneider, a doctor who specialized in high risk pregnancies. Dr. Schneider advised the plaintiffs that any future surgery would be high risk and the risks would increase for every successive pregnancy because of Mrs. Rye’s immune system response. According to the plaintiffs, Dr. Schneider actually discouraged the plaintiffs from having any additional children. Because of their religion, the plaintiffs used natural family planning methods. Since natural methods are not completely effective at preventing pregnancy, the plaintiffs had tremendous anxiety about the possibility of future pregnancies and the complications that would result, although neither plaintiff ever sought any psychological counseling for the anxiety. However, the anxiety was such that the plaintiffs approached their church seeking permission for Mrs. Rye to undergo voluntary sterilization but the request was denied. 

Further, even the defendant doctor admitted in her deposition that the decision of whether to have a child was a "huge deal" and the plaintiffs’ decision to alter their family planning was reasonable. And finally, the plaintiffs presented an expert affidavit that Ms. Rye now has diseased blood and there was a 70% chance that if she became pregnant again her fetus would have Rh-positive blood and the complications could be moderate to severe and may require blood transfusions for the mother and invasive procedures for the infant. 

The procedural history of the motion for summary judgment is rather complicated and both parties filed competing applications for interlocutory appeal. But the issues were succinctly distilled by the Court of Appeals when they granted the application for interlocutory appeal and limited review to the following issues:  

1. Since the defendants admitted they failed to comply with the standard of care, did the trial court err in finding the damages were too speculative and subsequently granting summary judgment on the plaintiffs’ claims that their future children are at risk for complications and Mrs. Rye is at risk for blood transfusions?

2. Did the trial court err by denying summary judgment to the defendants on Mrs. Rye’s claim that she now has diseased blood and therefore has an injury in the form of altered health status?

3. Did the trial court err in failing to grant summary judgment on Mrs. Rye’s emotional distress claim since it was not a "stand alone" claim?

4. Did the trial court err in granting summary judgment on Mr. Rye’s claim for emotional distress since it was a "stand alone" claim?

5. Is disruption of family planning a cause of action under Tennessee law? If it is, does it belong to a woman, a man or both?

As for the first issue, the Court found the trial court properly denied summary judgment to the defendants on whether Mrs. Rye had suffered an actual injury. The plaintiffs’ expert affidavit unequivocally opined Mrs. Rye had an irreversible altered body status in the form of an autoimmune disorder and the risk of the disorder to future pregnancies was not disputed. While the defendants pointed to the fact that Mrs. Rye had not received any medical treatment for her condition, the Court of Appeals relied upon the broad definition of "injury" and "impair" found in Black’s Law Dictionary and noted that neither required a party to actually undergo any medical treatment to have an injury.

After a lengthy discussion about speculative damages, the Court of Appeals concluded that "regardless of whether any complications resulting from Mrs. Rye’s Rh-sensitization actually occur in the future, we conclude the [defendants] have failed to show that Mrs. Rye cannot prove that she has suffered from an injury in this case." Since there was conflicting proof in the record, the Court of Appeals reversed the trial court’s grant of summary judgment on the issue of future medical expenses for Mrs. Rye’s future pregnancies. 

On the issue of future blood transfusions, the Court of Appeals held the future damages related to Mrs. Rye’s blood transfusions were too speculative finding plaintiff’s expert affidavit had not opined to a reasonable degree of medical certainty that Mrs. Rye would need future blood transfusions. Instead, that element of damage had been couched as merely a possibility. As such, the Court of Appeals affirmed the trial court’s dismissal of that portion of plaintiffs’ claims.

Next up was the claim related to disruption of family planning. The plaintiffs asserted the Tennessee Supreme Court’s decision in Davis v. Davis was dispositive and permitted the claim. Davis involved a dispute between a divorcing couple about how to dispose of frozen embryos. The Court of Appeals disagreed distinguishing Davis on the basis that it involved the issue of unwarranted governmental intrusion into the decision of whether or not to have children. The Court of Appeals declined to extend the holding in Davis to cases involving non-governmental entities. Since Tennessee law does not recognize an independent claim for disruption of family planning, the trial court’s grant of summary judgment on that claim was affirmed. However, the Court of Appeals did rule that the Ryes could present evidence of the disruption of their family planning as part of the damages for the negligent infliction of emotional distress claim, to the extent the claim survived.

Finally, the last issue is the aforementioned negligent infliction of emotional distress claim. The central issue was whether Mr. and Mrs. Ryes’ NIED claims were stand-alone and thus required expert proof of which plaintiffs had offered none.   The opinion offers a nice history of the law on this issue. Ultimately, the Court of Appeals concluded Mrs. Rye’s claim was not stand-alone but instead "parasitic" to her medical malpractice claim. Thus, expert medical proof was not necessary to proceed on her claim.

As for Mr. Rye, it was undisputed he did not suffer any physical injury nor did he have an independent basis for tort liability. Therefore, expert proof would be necessary. However, the Court of Appeals did not affirm the grant of summary judgment. Instead, the trial court was reversed under Hannan, i.e, "a party who moves for summary judgment cannot ‘negate’ an element of the nonmoving party’s claim simply by noting the nonmoving party has no evidence to prove the element." 

The case is Rye v. Women’s Care Center of Memphis, W2013-00804-COA-R9-CV (Tenn. Ct. App. March 10, 2014).

Out of a surprisingly ugly set of circumstances (only some of which I’ve mentioned here), we get an opinion on emotional distress claims that clarifies and progresses the law forward. 

In Coleman v. The Humane Society of Memphis and Shelby County, Plaintiff was a veterinarian who was hired by Defendant Humane Society to serve as its new staff veterinarian.  Plaintiff had run-ins with Defendant’s executive director about the conditions in which animals were kept at the Humane Society. Plaintiff later discovered that an employee at the Humane Society was illegally euthanizing cats without permission or a license using controlled drugs purchased with Plaintiff’s DEA license.

Plaintiff complained to the executive director and asked that the employee be fired, but the executive director did not terminate the employee. Plaintiff then complained to the Humane Society’s board of directors.  Within two months, Plaintiff’s hours, pay, and ultimately her job were cut.

Plaintiff sued for retaliatory discharge and negligent infliction of emotional distress. The trial court denied Defendant’s summary judgment motion as to the retaliatory discharge claim, but granted Defendant summary judgment on the emotional distress claim. Both parties were granted interlocutory appeal of the summary judgment decisions.

Preliminarily, the Court of Appeals found this case was to be judged under the Hannan standard because it was pending before the statutes modifying summary judgment standards were enacted.

Negligent Infliction of Emotional Distress

The key question was whether Plaintiff’s negligent infliction of emotional distress claim was parasitic, or whether it was a standalone claim requiring expert proof.

The Court of Appeals held that a parasitic claim is anyone where the individual claimant has brought another basis for tort liability in the same case.  Because Plaintiff also filed a retaliatory discharge claim out of the circumstances that led to her termination, the Court of Appeals found Plaintiff’s claim was parasitic and did not require expert proof.

The court distinguished Flax v. DaimlerChryslter Corp., 272 S.W.3d 521 (Tenn. 2008). In Flax, the plaintiff bringing the emotional distress claim had suffered bodily injuries in the auto accident at issue, but did not sue for those physicial. The plaintiff only filed suit as a wrongful death beneficiary, and wrongful death claims are owned by the decedent, not the beneficiaries. Because the Flax plaintiff had not brought suit with a basis for tort liability to that plaintiff other than the wrongful death claim, it was parasitic.

The Court of Appeals also held that a negligent infliction of emotional distress claim can be parasitic of an intentional tort. Defendant contended that Plaintiff’s negligent infliction of emotional distress claim could not be parasitic of the retaliatory discharge claim because retaliatory discharge is an intentional tort. The Court of Appeals rejected that argument outright.

Finding Plaintiff did not need expert proof, the court reversed summary judgment for Defendant on the negligent infliction of emotional distress claim.

Retaliatory Discharge

The Court of Appeals began by noting Plaintiff was bringing three types of retaliatory discharge claims, all with unique elements and considerations: (1) common law retaliatory discharge for an employee’s refusal to participate in illegal activities; (2) common law retaliatory discharge for an employee’s reporting of illegal activities; and (3) statutory “whistleblower act” retaliatory discharge for an employee’s reporting of illegal activities.  

Retaliatory Discharge – Employee’s Subjective Intent

The Court of Appeals held that an employee’s subjective intent in refusing to participate in illegal activities is irrelevant to that type of claim. An employee who refuses to go along with illegal activity merely to avoid prosecution of the employee herself is entitled to bring a retaliatory discharge claim.

With the common law and statutory claims for reporting illegal activity, however, subjective intent is relevant. The Court of Appeals held that the employee’s motivation for making the report must not be solely in the employee’s self-interest, but must be at least partly for concerns about the public good.

Retaliatory Discharge – Reporting to Outside Agency

The Court of Appeals held that an employee does not have to report illegal activity to anyone outside the company in order to qualify for a retaliatory discharge claim, but must report the illegal activity to someone other than the person(s) engaging in the illegal activity. In this case, Plaintiff complained to the executive director and the board of directors about the other Humane Society employee illegally using drugs to euthanize animals. Plaintiff did not, however, report the activity to anyone outside the Humane Society. The Court of Appeals held that Plaintiff’s report to Humane Society directors was sufficient for common law retaliatory discharge for reporting of illegal activities, as well as statutory “whistleblower act” retaliatory discharge for reporting of illegal activities. 

Retaliatory Discharge – Plaintiff’s Duty to Oversee the Activities at Issue

Defendant contended that Plaintiff should not be able to recover because Plaintiff was Defendant’s staff veterinarian, and was legally required to oversee all of the purchasing and dispensing of controlled substances.  The Court of Appeals rejected Defendant’s argument that an employee who has supervisory authority over an area can bring a retaliatory discharge claim if the employer continues to engage in the activity despite the employee’s protests.

Click on the link to read more about the law of negligent infliction of emotional distress in Tennessee.

A Texas police officer has sued a 9-1-1 caller for failing to warn the 9-1-1 official (and thus the police officer) that the police responding to the call would be walking into a dangerous situation.  The responding officer was attacked by a man at the home who had allegedly been using bath salts for several days.

That dog would not hunt in Tennessee. Tennessee (and most states) have what was historically known as the "policemen and firemen’s" rule which, by the way, applies to female police officers and firefighters as well.

Here is a general statement of the rule from Tennessee’s leading case on point, Carson v. Headrick , 900 S.W.2d 685 (Tenn. 1995):

It is beyond peradventure that the maintenance of organized society requires the presence and protection of firefighters and police officers. The fact is that situations requiring their presence are as inevitable as anything in life can be. It is apparent that these officers are employed for the benefit of society in general, and for people involved in circumstances requiring their presence in particular. The court in Calvert v. Garvey Elevators, Inc., [694 P.2d 433 (Kan. 1985)]] noted that ‘[f]irefighters enter on the premises to discharge their duties. Fire fighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole.’ Calvert, supra, [694 P.2d 433]." 

[W]e conclude as a matter of public policy that a citizen owes no duty of reasonable care to police officers responding to that citizen’s call for assistance and join the majority of other jurisdictions who have reaffirmed the policemen and firemen’s rule on public policy grounds.

Id. at 689.

This does not mean that the public owes no duty to police officers and firefighters.  The same court opinion cited above makes it clear that Tennessee law provides that a citizen has a duty to refrain from intentionally, maliciously, or recklessly causing injury to police officers responding to the citizen’s call for assistance.   In addition, the law does not prohibit a police officer or firefighter from bringing claims in other situations, such as claims arising in car wrecks caused by the negligence of others while the public servant is on duty.

By the way, this rule also applies to "animal control officers" who, while on duty,  are bitten by dogs. Jamison v. Ulrich, 206 S.W.3d 410 (Tenn. Ct. App. 2006).

Thanks to Overlawyered for bringing this lawsuit to my attention.

 

Negligent infliction of emotional distress is a relatively new tort in Tennessee.  True, the tort existed in the early days of Tennessee tort law (not by that name, but the root concept was out there) but the circumstances giving rise to liability were extremely narrow.

All of that changed a little less than twenty years ago and we know have a nice body of law on negligent infliction of emotional distress claims.  I wrote an article on subject in an article  for the May, 2013 edition of the Tennessee Bar Journal, a publication of the Tennessee Bar Association. Click on the link o get a good grasp on the current Tennessee law of negligent infliction of emotional distress

 

The Illinois Supreme Court has issued an opinion in Lawlor v. North American Corporation of Illinois, Case No. 112530 (Oct. 18, 2012), holding that (a)  the tort of intrusion upon seclusion is recognized in Illinois and (b) held that an employer liable for the torts of a non-employee private investigator because the investigator was acting as the employer’s agent.  

Defendant North American hired a private investigator to determine whether Lawlor, a former employee of North American, had violated a covenant not to compete contained in her employment contract with the company.  The private investigator assessed the Lawlor’s cell and home telephone records without her permission, causing her emotional distress.

The Court first recognized that existence of a tort that had never been expressly recognized by the High Court in Illinois.  The Court adopted Section 652B of the Restatement (Second) of Torts, which  provides as follows: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of  another or his private  affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.”

The Court also held that under the facts of this case the employer could be held liable for the acts of the private investigator.   After discussing the general rules that permit employers to be held liable for the acts of independent contractors, the Court said as follows:

we cannot say when all of the evidence is considered, together with all reasonable inferences from the evidence in the light most favorable to Lawlor, that there was a total failure or lack of evidence to support the jury’s determination that Probe was
acting within its scope of authority as North American’s agent when Probe requested that Discover, as a subagent, obtain Lawlor’s phone records. We recognize that there was no direct evidence that North American knew how the phone records were acquired by investigators. The jury could reasonably infer, however, that North American was aware that Lawlor’s phone records were not publicly available, and that by requesting such records from Probe and providing DiLuigi, Probe’s president, with Lawlor’s personal information, North American was setting into motion a process by which investigators would pose as Lawlor to obtain the material.

The discussion about the liability of independent contractors reminds us that there are lots of ways to hold one who hires an independent contractor liable for the actions of the independent contractor.  For those of you who practice in Tennessee, the decision that gives the best overview of the law in this area is Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42 (Tenn. Ct. App. 2005).

 

The fungal meningitis outbreak will result in four different classes of those with claims for damages against those who are responsible for the harm:  (1)those who die; (2) those who contract the disease and are treated with no long-range effects; (3) those who contract the disease, are treated, but are left with long-range effects; and, (4) those who learn they were exposed to the contaminated product but never contracted the disease.  (Note:  I understand this is a simple breakdown and that in fact there will be several sub-groups within one or more of these groups.)

Do the people in the last grouping have a claim for damages under Tennessee law?  That is, if a person can prove that he or she was exposed to the contaminated product, knew of the exposure, experienced understandable emotional distress after he or she learned of the exposure, is there a claim for damages under Tennessee law?

I believe the answer to that question is "yes."  The case I turn to for support of this opinion is Carroll v. Sisters of St. Francis Health Services, Inc., 868 S.W.2d 585 (Tenn. 1993).  The issue in Carroll was whether a plaintiff may recover damages for negligent infliction of emotional distress, based on the fear of contracting the Acquired Immunodeficiency Syndrome (AIDS), without presenting evidence that he or she was actually exposed to the human immunodeficiency virus (HIV or the AIDS virus)  The Court answered this question "no" and dismissed the case.   

However, in reaching this result, the Court said as follows:

we hereby formally adopt the "actual exposure" approach [to imposing liability]. In order to recover emotional damages based on the fear of contracting AIDS, the plaintiff must prove, at a minimum, that he or she was actually exposed to HIV. And even assuming that the plaintiff was actually exposed to HIV, liability will attach only to the extent that the resulting emotional distress was within the range of that experienced by an ordinary, reasonable person under the circumstances. Moreover, any damages recoverable for emotional distress will be "confined to the time between discovery of the [exposure] and the negative medical diagnosis or other information that puts to rest the fear of injury."  [Citations omitted.]

I believe Carroll is still good law.  Thus,l I believe those people who can demonstrate they received contaminated epidural steroid injections (and perhaps other types of steroid injections as well, depending on how the facts develop) and who suffer emotional distress as a result will be able to recover damages for emotional distress from the time between the discovery of the exposure until the time he or she receives a negative medical diagnosis or other information that puts to rest the fear of contracting fungal meningitis.  There will be a big fight over whether expert proof of emotional distress will be required.

We still don’t know exactly how long people are at risk for contracting fungal meningitis after they are exposed to it.  The Centers for Disease Control says the exposure period is four weeks or longer.  In fact, the CDC recommends that anyone with symptoms linked to fungal meningitis in the "several months" following exposure should seek prompt medical attention even if they have been previously evaluated.  Here are the symptoms to be concerned about:

  • New or worsening headache
  • Fever
  • Sensitivity to light
  • Stiff neck
  • New weakness or numbness in any part of your body
  • Slurred speech
  • Increased pain, redness or swelling at your injection site

As I have said in other posts, most recently in this post called "Fungal Meningitis Outbreak: Lots Of Questions Remain," there is still a lot we do not know about all of the legal consequences of the fungal meningitis outbreak.  However, I believe Tennessee law will permit those exposed to contaminated steroids but avoided contracting fungal meningitis to be able to seek damages for emotional distress.  Of course, such people will still have to prove the liability of the product manufacturer or others involved.

 Other posts on the fungal meningitis outbreak:

Fungal Meningitis, Tort Reform, and Damages in Tennessee Personal Injury and Wrongful Death Cases

Who Has Legal Liability Arising From the Fungal Meningitis Outbreak?

 

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John Day and the other lawyers in his firm represent people who have been injured or lost a loved one due to the negligence of another person or company. John has been listed in Best Lawyers for 20 years, and has the highest legal rating a lawyer can earn by the legal rating services Martindale and AVVO.

An author of three books on personal injury and wrongful death law and over 50 articles for legal publications, John has given approximately 300 speeches to lawyers in over 15 states on personal injury, wrongful death, and related subjects. He represents people across Tennessee in personal injury, wrongful death, medical malpractice, products liability and other civil cases. To read what John’s clients have said about him and his law firm, click here.

If you believe that you or a loved one have contracted fungal meningitis from an epidural steroid injection, John will consult with you at no cost or obligation.  Call him at 615.742.4880 or tollf-ree at 866.812.8787. You may also fill out our Contact Form and we will call you.   Finally, we are always honored when a fellow lawyer asks us to work with him or her on a case, so please call if you would like to work with us.

It takes a particular type of jerk to project a loogie onto a hamburger that is being served to another person.  (I guess you would never do that to a hamburger you intended to eat yourself.)    And there is a relatively small subset of jerks who would do this to a police officer who ordered the burger for a late-night meal.

Now, what are the odds that the police officer would sense that something was amiss before eating that burger?   Deputy  Bylsma from Clark County, Washington did, and when he pulled the top of the bun off his burger he observed  a “slimy, clear and white phlegm glob” on the meat patty.

Now, the good deputy had one course of action that comes immediately to mind.  He could go into Burger King, identify which of the only two people on the job committed this act, and then proceed to resolve the situation with a good ol’ fashioned ass whipping.  But Bylsma was smarter than that.

He called for back-up  (what is the 10-code for a loogie on a burger?) and got DNA tests both on the glob and the two employees at the restaurant who were on duty that night.   

Later DNA testing revealed that the glob on the meat patty was Burger King employee Gary Herb’s saliva. Herb pled guilty to felony assault and was sentenced to 90 days in jail.  Bylsma filed suit against the restaurant, and claims that he suffers ongoing emotional trauma from the incident, including vomiting, nausea, food anxiety, and sleeplessness, and has sought treatment by a mental health professional.

The federal district court dismissed the case, saying that the Washington Products Liability Act (WPLA) did not allow for recovery of mental distress damages caused to a purchaser by a contaminated product in the absence of physical injury. 

The Ninth Circuit Court of Appeals looked at Washington law and concluded that it was unsure whether the Supreme Court of Washington would recognize a cause of action for Bylsma. Thus, it certified this question to Washington’s highest court: "whether the WPLA permits relief for emotional distress caused to a direct purchaser by a contaminated product in the absence of physical injury."  The Ninth Circuit panel properly concluded that "the answer to the unsettled question of law presented by Bylsma’s appeal will have far-reaching effects on those involved in the manufacture and sale of products in Washington. We are reluctant to create uncertainty in this area of the law by answering this question ourselves in the first instance."

Of course, the urban legend is that this conduct happens in our restaurants.  We know one incident where this happened to another police officer  – a Michigan teenager supplied his own version of special sauce to the turkey wrap of a state trooper.   One experienced server tells us in this video that such conduct doesn’t occur in "nice" restaurants –  I did not find particularly his words particularly comforting.

So, we will see how the Washington Supreme Court handles this issue.  I must confess I know nothing about the WPLA and therefore cannot predict how the Court will rule on this issue.  

One last thought for the loogie-man,  just in case he decides to Google his name:  Mr. Herb, I hope you enjoyed your little joke.  Big laugh.  Ha ha.  I am sure that  you had plenty of time to think about what you did while you were sitting in jail. Let me ask you this, Mr. Herb.  As you were sitting in jail, did you think about your fellow prisoners who worked in the kitchen?  Did you ever wonder whether any of those fine citizens might have returned the favor to you?  Or did you just think the scrambled eggs were a little under-cooked that Saturday morning?

Hat tip to Torts Prof .

 

The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records.

In Dudley v. Jefferson Circuit Court,  2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia, mental and emotional pain and suffering.  Defendants sought her prior mental health records, and plaintiff sought a protective order, claiming that they were protected by the statutory privilege protecting psychotherapy records.

The court held that the records were discoverable, saying " Appellant’s claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred . It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the [defendants] from reviewing her mental health records for the possibility of pre-existing mental conditions."

One would think that the a protective order should be issued to prevent defendants from sharing the plaintiff’s records with those who have no part in the litigation.  However, I think the court did the right thing by ordering the production of the records in this case.

Practice tip:  before asserting a claim of mental or emotional injury, ask your client whether they have a mental health history and help them understand that asserting a claim will likely open that history up for evaluation by the defendant.  I firmly believe that rarely should a plaintiff be troubled by that because  I think there are two types of people:  people who have been to counseling and people who are going to go to counseling.  That being said, some folks have what they believe to be deep, dark secrets that they do not want to come out no matter what the cost.  If your client is one of those people, a claim of emotional injury may have to be dropped.

If you have a potential claim for professional misconduct against a therapist for sexually abusing or inappropriately touching a patient, don’t forget that Tennessee has a special act for such torts. 

The act is known as the "Therapist Sexual Misconduct Victims Compensation Act."  It is codified at T.C.A. Section 29-26-201 et seq.  

Under the Act a therapist is "any person who performs therapy regardless of whether the person is licensed by the state."

The Act also has a longer statute of limitations that traditional tort cases in Tennessee.    The statute of limitations is set forth in T.C.A. Section 29-26-208.   Generally speaking, the statute of limitations in such claims is two years and is subject to a "discovery rule" but discovery of the injury does not occur until after the therapy ends.