Negligent Infliction of Emotional Distress in Medical Negligence Cases

I. Introduction:

In Corso v. Merrill1 , the New Hampshire Supreme Court adopted the tort of negligent infliction of emotional distress for those outside the zone of danger. Rejecting earlier precedent, and the weight of authority elsewhere, the Court found that “freedom from mental distress is an interest that is today worthy of legal protection.”2 The language the Court used, however, has had the unintended affect of excluding medical malpractice victims from the right to recover. The Court has subsequently recognized that the New Hampshire Constitution does not permit medical malpractice plaintiffs to be treated differently than other personal injury plaintiffs.3 This article proposes an interpretation of Corso which would bring it into harmony with the state constitution, while at the same time satisfying the Court’s concern about expanding liability beyond culpability.

II. Analyzing Corso v. Merrill:

Prior to 1979, bystander emotional distress in New Hampshire was only compensable if the plaintiff was in the zone of danger.4 In Corso v. Merrill, the Court felt “compelled to reexamine the issue” despite the fact that it had unanimously reaffirmed the zone of danger prerequisite only four years earlier.5 Immediately, the Court expressed skepticism about the zone of danger rule noting that “to simply conclude that no duty exists [to those who are not personally threatened with physical harm], as we have done in the past, ‘begs the essential question — whether the plaintiffs’ interests are entitled to legal protection against the defendant’s conduct.'”6

The Court had no difficulty concluding that freedom from mental distress was an interest worthy of legal protection. Quoting a law review article, the Court observed that mental distress can be vastly more debilitating than physical injury:

In our increasingly complex society, the orderly and normal functioning of a man’s mind is as critical to his well-being as physical health. Indeed, a sound mind within a disabled body can accomplish much, while a disabled mind in the soundest of bodies is rarely capable of making any substantial contribution to society.7

Although emotional distress was found to be worthy of legal protection, the Court remained concerned with the prospect of unlimited liability. Rather than favoring one concern over the other, the Court adopted a balancing approach: “Although fear of unlimited liability is a valid concern, we now think that this concern must be weighed against a plaintiff’s serious emotional injury that is directly caused by defendant’s negligence.”8 The Court concluded that both the plaintiff’s interest in freedom from emotional distress and society’s interest in preventing unlimited liability could be recognized by allowing a cause of action under carefully defined circumstances.9

The Court decided that the balance between the plaintiff’s interest in recovery and society’s interest in limiting liability would be best served by focusing the inquiry on foreseeability. However, foreseeability was no longer a broad question for the jury to decide. Instead, the Court borrowed three criteria of foreseeability from the California Supreme Court’s seminal decision in Dillon v. Legg.10 These criteria were developed in the context of an automobile/pedestrian collision and were adopted in New Hampshire in a similar context. It is understandable therefore that they use the unfortunate term “accident.” The factors are as follows:

  1. The plaintiff must be located near the scene of the accident as contrasted with one who was a distance away from it.
  2. The plaintiff’s shock must have resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
  3. The plaintiff and the victim must be closely related, as contrasted with an absence from relationship or the presence of only a distant relationship.11

These factors make sense in the context in which they were developed. In the garden variety personal injury case, there is an accident to be witnessed. Moreover, it is important to define the outer limits of foreseeability in this context because there is generally no preexisting relationship between the tortfeasor and the victims.

III. Corso in Medical Malpractice Cases:

As written, the Corso/Dillon factors do not translate well to the medical malpractice context. There is generally no “accident” to observe when a medical mistake is made. Nevertheless, there is often an identical opportunity for a loved one to suffer severe emotional distress. The tension between the restrictive language of Corso and the seemingly indistinguishable harm suffered by loved ones in the medical context has been reflected in the New Hampshire Superior Court. Trial court judges have reached conflicting conclusions on the application of Corso in the medical negligence context.

We are aware of ten Superior Court decisions in which Corso claims have been analyzed in the medical malpractice setting. The judges in those cases have split evenly. Five have allowed the claims to proceed and five have dismissed them. Typical of the former group is Hilber v. Horsley12, a case arising from the premature birth of the plaintiffs’ daughter due to medication errors on the part of the mother’s treating physicians. In that case, Judge Murphy denied the defendants’ motion for summary judgment on the parents’ emotional distress claims. He concluded that “it is not the plaintiffs’ emotional reaction to the defendant’s conduct which is controlling; it is their contemporaneous reaction to the result of the defendants’ conduct that satisfies the requisite element of contemporaneity, that is, the premature birth of Stephanie.” Judge Murphy was not convinced that Corso’s use of the word “accident” prohibited recovery in a medical negligence case. “The defendants’ claimed negligent acts in medicating the child’s pregnant mother was not the ‘accident’ as that term is used in Corso v. Merrill, 119 N.H. 647, 653-4 (1979); the ‘accident’ was the resulting premature birth.”14

Courts going the other way have focused on the specific language of Corso. Some read Corso to require a close connection in time between the defendant’s negligent act and the bystander’s emotional injury. Typical of these is McHugh v. Southern New Hampshire Regional Medical Center15, a radiology malpractice case in which the plaintiffs’ daughter’s cancer went undiagnosed for eight months causing it to grow and spread ultimately resulting in her death five years later at the age of ten. The court in that case granted the defendants’ motion to dismiss the parents’ emotional distress claims because they failed to plead facts showing that “they suffered emotional distress contemporaneously with the negligent act . . .”16 The court conceded that “[i]t may appear to be foreseeable that a misdiagnosis of a child which results in the child’s extensive pain and suffering would cause severe emotional distress to a parent who observes the child’s suffering. However, applying the Corso factors, the plaintiffs’ writ fails to state a claim upon which relief may be granted.”17

The court in McHugh hit upon the precise problem. The Corso/Dillon factors do not accurately reflect foreseeability in the medical malpractice context. A medical care provider who chooses to treat a specific individual knows the reasonable consequences of his negligence. This must be contrasted to the driver of an automobile who becomes momentarily distracted. The consequences of the driver’s negligence are widespread and dependent upon factors over which he has no control. Unlike the medical provider, the driver cannot be said to have voluntarily undertaken a duty of care with full knowledge of the reasonable consequences that are likely to arise if he breaches his duty.

The Corso/Dillon factors were intended to limit those arguably foreseeable consequences for which a driver may be held liable. In a subsequent case, the New Hampshire Supreme Court explained that the factors were adopted in Corso because “both foreseeability and causation become attenuated very gradually as the harm to the plaintiff becomes further and further removed from the defendant’s negligent act.”18 This may be true in the automobile collision context, but it is not true in the medical malpractice context. When a radiologist reads an x-ray of a five year old girl, he knows that if he mistakenly fails to identify her cancer, she will be harmed and her parents will suffer. The foreseeable consequences of his negligence do not change whether the harm is suffered five years later or five minutes later.

IV. Revisiting Corso in Light of Carson v. Maurer:

The Corso/Dillon factors impermissibly, though unintentionally, discriminate against medical malpractice plaintiffs. One year after Corso was decided, the Supreme Court squarely rejected the notion that the Legislature may treat malpractice victims differently than other personal injury victims. Such discrimination was found to clearly violate the open courts and equal protection provisions of the New Hampshire Constitution.19 If the General Court cannot create a valid distinction between malpractice plaintiffs and other personal injury plaintiffs, neither can the common law.

The Supreme Court had an opportunity to address the constitutionality of Corso in the 1989 case of Wilder v. City of Keene.20 It chose, however, not to decide the issue since the plaintiffs had failed to raise it in their notice of appeal.21 In any event, because Wilder was a case arising from an automobile/bicycle collision, it would not have tested the constitutionality of applying the Corso/Dillon factors in the medical malpractice context.

V. The Appropriate Formulation of the Corso/Dillon Factors:

With only a slight modification, the Corso/Dillon factors can be harmonized with Carson without exposing defendants to the unlimited liability that concerned the Court in the first place. The solution is to replace the conclusory word “accident” with the more accurate and descriptive phrase “loved one being injured.” The Corso/Dillon factors would therefore be:

  1. Whether the plaintiff was located near the scene of his loved one being injured as contrasted with one who was a distance away from it.
  2. Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of his loved one being injured, as contrasted with learning of his loved one being injured from others after it had occurred.
  3. Whether the plaintiff and the victim were closely related, as contrasted with an absence from relationship or the presence of only a distant relationship.

This formulation works because emotional distress arises when one observes a loved one being injured by the wrongful conduct of another. It is not the observation of the wrongful conduct that causes the emotional distress, it is the observation of the effects of the negligence on a loved one as those effects are taking place that results in compensable emotional distress. For example, in Corso, the parents could not have known that the defendant driver’s conduct was “negligent” when they observed their child being injured. They only knew that their child had been hit by a car. It was their emotional reaction to their contemporaneous perception of their daughter being injured that was compensable.

This distinction is readily apparent in the two cases decided after Corso which tested that limits of recovery. The parents in Nutter v. Frisbie Memorial Hospital22, saw their daughter after she had died due to medical malpractice. They did not observe the malpractice acting upon her. The baby suffered the effects of the malpractice while she was in the care of a babysitter. The parents arrived at the hospital after their daughter’s death and viewed her body in the emergency room.23 The Nutters were not entitled to recover damages for their emotional distress because they, in effect, only witnessed the final product of the defendant’s negligence. Similarly, in Wilder v. City of Keene, the parents saw their son in the hospital one hour after he had been injured in a car accident.24 They were not entitled to recover because they did not observe their son being injured. The bright line rule that arises from Corso, Nutter, and Wilder is that fear and concern for a loved one’s well-being are compensable while sadness and grief are not.

As is discussed above, the fact that a medical malpractice victim may not “be injured” until years after the negligent act does not mean that the victim’s loved ones suffer any differently when they witness the victim being injured. Moreover, under the unique circumstances of a medical malpractice case, the foreseeability of the emotional harm is no less than it is in the case of an automobile/pedestrian collision, despite the immediacy of the latter.

The requirement that the plaintiff must contemporaneously observe his close relative being injured places the loved ones of medical malpractice victims on precisely the same ground as the loved ones of automobile accident victims. It also continues the presently existing limitations on liability so that sadness and grief remain uncompensable.

Applying this reasoning in the medical negligence context is simple. For example, in the McHugh case (the radiology malpractice case discussed above), the parents could recover if they prove that they were in close proximity to their daughter when the effects of the defendant’s negligent misdiagnosis were manifesting themselves (i.e., when she was “being injured”), that they perceived those effects being manifested in their daughter contemporaneously with their manifestation, as opposed to learning about her suffering after the fact, that their contemporaneous perception of their daughter being injured caused them severe emotional distress capable of objective verification, and that they were closely related to their daughter.

The proof in that case would include the following: The McHughs were with their daughter as the tumor grew and spread unchecked before it was properly diagnosed. They were also with her when her left lung had to be removed, when she had to undergo a heart transplant, when she was constantly vomiting due to the strong chemotherapy she had to be given, and when her respiratory system essentially shut down on her. This, we suggest, is proof that the child’s parents contemporaneously observed their child being injured by the defendant’s negligence. A note in the child’s medical record explained that “[t]he pain, both physical and psych[ological], that Maura experiences is often overwhelming . . . Both parents are clearly quite distressed, appropriately given the situation.” Both parents underwent treatment for their emotional distress and the father actually had a heart attack in the midst of his daughter’s suffering.

The only reason the McHughs were not allowed to proceed with their claims for negligent infliction of emotional distress is that the Corso/Dillon test does not translate well to the medical malpractice context. The McHughs’ suffering, however, is seemingly greater than the suffering of the Corsos who endured only a brief period of fear and concern that quickly became sadness and grief. Moreover, the foreseeability of emotional harm in the McHughs’ case is similarly stronger than it was in Corso due to the existence of a voluntary undertaking which brought with it a relationship between the defendant and a specific person. Under the circumstances, to deny the McHughs the right to recover violates the New Hampshire Constitution.

VI. Conclusion:

The foreseeability factors adopted by the Supreme Court in Corso v. Merrill are not readily applicable in the medical negligence context. The unintended result being that medical malpractice plaintiffs are sometimes effectively prohibited from recovering damages for negligent infliction of emotional distress. Such discriminatory treatment plainly violates of the New Hampshire Constitution. We believe that this constitutional infirmity can be remedied by simply replacing the word “accident” with the phrase “loved one being injured.” This minor modification of the foreseeability factors articulated in Corso would place medical malpractice plaintiffs on the same ground as plaintiffs in other personal injury cases without expanding liability to a greater extent than is already allowed. We urge the Court to revisit Corso in this light.


  1. 119 N.H. 647 (1979).
  2. Id., 119 N.H. at 652.
  3. Carson v. Maurer, 120 N.H. 925 (1980).
  4. See Jelley v. LaFlamme, 108 N.H. 471 (1968).
  5. See Corso, 119 N.H. at 651; Id., 119 N.H. at 660 (Grimes, J. dissenting)(citing Deem v. Newmarket, 115 N.H. 84 (1975)).
  6. Id., 119 N.H. 651 (quoting W. PROSSER, LAW OF TORTS §53, at 325 (4th ed. 1971)).
  7. Id. (quoting Comment, Negligently Inflicted Emotional Distress: The Case for an Independent Tort, 59 GEORGETOWN L.J. 1237, 1237 (1971)).
  8. Id., 119 N.H. at 653.
  9. Id.
  10. 441 P.2d 912 (Cal. 1968).
  11. Corso, 119 N.H. at 653-54 (quoting Dillon, 441 P.2d at 920).
  12. No. 93-C-790, Order on Motion for Summary Judgment (Hillsborough South, May 2, 1995).
  13. Id., slip op. at 2.
  14. Id.
  15. No. 97-C-097, Order on Defendants’ Motion to Dismiss (Hillsborough South, February 3, 1998).
  16. Id., slip op. at 4.
  17. Id.
  18. Nutter v. Frisbie Memorial Hospital, 124 N.H. 791, 795 (1984).
  19. Carson v. Maurer, 120 N.H. 925 (1980).
  20. 131 N.H. 599 (1989).
  21. Id., 131 N.H. at 605.
  22. 124 N.H. 791 (1984).
  23. Id., 124 N.H. at 793.
  24. Wilder, 131 N.H. at 600.