Isn’t it the hope of everyone who receives a grave diagnostic test result that maybe the lab made a mistake? In those rare instances when the bad news turns out to have been an error, most patients are gratefully relieved. Some, however, are angry, and want the lab to pay for the anxiety, depression, and other consequences they’ve had to go through. Can they do that? Can people sue for emotional distress when they haven’t suffered a separate physical injury? To date, Pennsylvania’s courts have said no, but recently the Pennsylvania Supreme Court heard oral argument on an appeal which could open the door to just such a recovery.
In Doe v. Philadelphia Community Health Alternatives — AIDS Task Force, defense attorneys argued for preservation of the existing law which precludes damages for emotional consequences absent an independent, physical injury. Following an unsafe sexual encounter, the Doe plaintiff requested an HIV test from a community health clinic. After two indeterminate results, the clinic told the plaintiff he had tested positive for HIV. A year later, a subsequent test showed that the patient is not HIV-positive and does not have AIDS. During that year, Doe’s health was monitored, and although a doctor prescribed AZT, the plaintiff did not take it. He received only flu shots as a result of the misdiagnosis. Although he did not undergo psychological counseling, he claimed his emotional distress was demonstrated in his inability to concentrate on his studies, the termination of a romance, abstinence from sexual relations, depression, and suicidal thoughts.
Doe presents sympathetic circumstances, but to accept his argument would be to open the floodgates for countless claims of psychic injury and emotional distress. Less than five years ago, in Simmons v. PACOR, Inc., the Pennsylvania Supreme Court reaffirmed the long-standing rule that damages for emotional distress are recoverable only if accompanied by physical injury. The physical impact or injury requirement provides a reasonable gauge for confirming the existence, cause, and extent of the plaintiff’s subjective complaints of emotional disturbance. The injury requirement is an assurance that the emotional distress results from the nature of the defendant’s actions and not the particular emotional makeup of the plaintiff.
The Simmons Court disallowed any recovery for the fear of contracting cancer for asbestos-exposed plaintiffs who suffered no physical harm. The plaintiffs had developed scarring of their lungs, but they had no functional impairment or disability. They were, however, at an increased risk of contracting lung cancer in the future as a result of the asbestos exposure. They claimed anxiety, depression, sleeplessness, and other signs of emotional distress. The Simmons Court ruled that the physical manifestations of emotional distress (such as anxiety, depression, or sleeplessness) do not constitute the necessary physical injury. The Court explained that there had to be a compensable physical harm directly caused by the defendant’s negligence. The Court acknowledged an exception in which one who witnesses a traumatic injury to a close family member can also recover for emotional distress, but it noted that even in that context, there is physical injury, albeit to a different person.
The Doe plaintiff, like the Simmons plaintiffs, experienced no physical impact or injury. He did not undergo medical treatment for AIDS. His flu shots caused only minor and transient headaches. The Supreme Court must now decide whether the misdiagnosis of AIDS, in and of itself, is compensable. The Doe plaintiff urges the Supreme Court to adopt an open-ended test whereby damages could be awarded where the emotional distress was a foreseeable result from a misdiagnosis, but such a claim would not be limited to the misdiagnosis of AIDS. Doe’s argument would create an entirely new breed of risks and damages. It could, in fact, eliminate all prior limitations on recovery for negligent infliction of emotional distress. Conversely, continued denial of recovery in Doe leaves Pennsylvania’s law intact, but it could leave unanswered the question of whether one can recover emotional distress damages for a misdiagnosis of AIDS — or any other disease or condition — if the plaintiff actually undergoes medical treatment for the condition.
Questions posed by the Justices during the oral argument reveal the Court’s concern about the effect of any potential decision, but offer no clue as to the likely result. A decision is expected mid-year.