Negligent Infliction of Emotional Harm and Psychiatric Medicine Malpractice

The Case for a Paradigm Shift –

Abstract:

Negligent infliction of emotional distress (NIED) had its’ origins around the mid 19th century. The reference case was Victorian Railways Commissioners v. Coultas. A married couple were attempting to cross a railway tracks in their horse and buggy. The gates were controlled by a gate-keeper, who opened the gates on one side, and went across to open the gates on the opposite side. A train approached at a rapid speed, and the buggy barely made it across. The female passenger “fainted,” and “she received a severe nervous shock from fright.” An illness that she subsequently suffered was claimed to be a consequence of her fright, but no physical damage was evident. The court observed the following:

Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims.1

The idea of redress for “nervous shock” was born, but NIED was not to be cognizable as a cause of action until the last half century. Once contrived however, the pure and unadulterated NIED tort has as a requirement “the presence of severe emotional distress with accompanying physical harm.” Subsequently, the “physical harm” requirement has been viewed by many courts as being an artificial barrier, in place to guard against frivolousness. This requirement has been more of an obstacle, and courts have applied ingenious methods of working around this. For example, the “bystander rule” was created, which essentially transforms the NIED tort by allowing recovery for a “close relative” who suffers “nervous shock” while present and observes harm inflicted upon a loved one. The tort is clearly no longer NIED, but an adulterated or modified version. Other iterations have occurred to account for specific circumstances, and the boundaries of the tort have often been construed loosely. In most circumstances, the tort is fundamentally transformed. These transformations have seen radically different approaches to account for specific scenarios.

E.g., Leslie Bender, Feminist (Re)torts: Thoughts on the Liability Crisis, Mass Torts, Power, and Responsibilities, 1990 Duke L.J. 848 (1990); Nancy Levit, Ethereal Torts, 61 Geo. Wash. L. Rev. 136 (1992). 


Once NIED was born, certain concerns became ominous. There could not be any guarantee as to the genuineness of the plaintiff’s complaint. Little was known of mental illness as Sigmund Freud was in his twenties at the time of this case. As a result, up until the last half century, NIED was not cognizable as an independent cause of action. Concerns stemmed from a lack of precedent, a fear of frivolous litigation, and from a difficulty in measuring emotional harm both physically and financially. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS Note 6, § 54, at 359 (5th ed. 1984)

During this period, the mind was oft viewed as being a mystical, hard-to-define and intangible entity that existed in the existential space surrounding, yet separate from the body.

The tort of NIED has evolved separate from physical science and medicine. NIED has evolved as a function of prevailing case law which is not necessarily a logical and coherent direction. On the other hand, the sciences have progressed along a separate pathway and according to a different set of rules. The two systems have yet to meet.

As the tort of NIED advanced, a number of variables became pervasive.

  1. Doubts that emotional distress is genuine. It is certainly true that on the whole, courts have been extremely cautious in allowing claims for stand-alone emotional harm. In the past, courts often expressed concerns about the reality of emotional distress,
    Robert L. Rabin, Emotional Distress in Tort Law: Themes of Constraint, 44 Wake Forest. L. Rev. 1197 (2009). See also Turley v. ISG Lackawanna, Inc., 774 F.3d 140 (2d Cir. 2014) (“highly disfavored”); Milk v. Federal Home Loan Mortg. Corp., 743 F.3d 149 (6th Cir. 2014) (“standards for this tort are strict”); Hayward v. Cleveland Clinic Found., 759 F.3d 601 (6th Cir. 2014) (“to say that Ohio courts narrowly define ‘extreme and outrageous conduct’ would be something of an understatement”).
  2. This created the concern of civil litigation system being flooded with fraudulent claims from NIED.
  3. The response has been one of restraint in allowing liability for intangible harms in general, but including emotional harm. With NIED, the courts impose the artificial barrier of physical harm. Likened to negligence, unless the defendant has physically interfered with the plaintiff’s person or property, there could be no recovery.
  4. The courts were hesitant to allow emotional injury as it was akin to “hurt feelings,” Legal professionals often saw this as trivial; as a disruption of the judicial process. Emotional injury, it was felt, was usually transient and belonged elsewhere rather than the civil litigation system.
  5. As a result, it was held that “an actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm,” but no equivalent proposition ever has been adopted with respect to emotional harm. Nor, given the ubiquity of emotional harms, is it likely to be. Instead, the story of liability for negligently inflicted emotional harms is one of ever changing pragmatic liabilities and limitations which continues to elicit new suggestions for analysis and disposition.

E.g., A.W. v. Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d 907 (Neb. 2010); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 7 (2010). 100 E.g., Gregory C. Keating, Is Negligent Infliction of Emotional Distress a Freestanding Tort?, 44 Wake Forest L. Rev. 1131 (2009) (arguing that the rules for negligent infliction of emotional distress are best seen as rules of proximate cause rather than rules of duty).

Richard N. Pearson, Liability to Bystanders for Negligently Inflicted Emotional Harm—A Comment on the Nature of Arbitrary Rules, 34 U. Fla. L. Rev. 477 (1982).

Another historical viewpoint on NIED is via Pound Progression Model. Roscoe Pound (2926) describes the law of injury in a way that, as injury becomes more abstract –  i.e., when progressing from from physical, to economic, to dignitary and emotional – it becomes increasing difficult for our civil justice system to be certain of whether it is compensating a “real wrong” and doing so equitably. Conversely, it becomes easier to perpetrate a fraud on the court, or for our civil justice system to err. Therefore, in moving from physical harm to emotional harm, the civil justice system places increasingly greater demands on the plaintiff prior to making an award. Prof. RJS Pound Progression” in U.S. Tort Law, YouTube.com

This explains the how and why of NIED at its origin, and the requirement that emotional harm, which is at one end of the Pound Progression, be coupled with physical harm, which is at the other end. Over time, however, some criticize this as a poorly construed solution to a nebulous tort.

This paper will address the following:

  1. We contend that the courts, perhaps reflecting society at large, have not only perpetuated an outmoded and ineffective dualism, has served to devalue the importance of emotional life.
  2. The fundamental scientific concepts of emotional and physical existences dating to the mid 19th century on which NIED was founded have given way to a more sophisticated understanding based on relevant empirical evidence.
  3. We challenge the current paradigm surrounding NIED and argue for NIED as a stand-alone tort.
  4. We discuss the evidence and rationale which argues for modifying or even eliminating physical damages as a requirement for NIED. We think the basis for imposing a physical damages requirement is based on antiquated and largely inaccurate understanding of the mind, provides an unnecessary barrier which can no longer be justified.
  5. A contemporary understanding of the mind provided by the various scientific disciplines offers support for a “stand alone” NIED cause of action which excludes the requirement for physical harm. This may serve to reduce of elimate the courts having to create de novo “hybrid” sorts of solutions to accommodate specific circumstances.
  6. Functional imaging techniques will be discussed and can be used to quantify an assortment of emotional responses effectively quantifying various emotional responses
  7. These sciences can find application in the legal system. Specifically we think emotional distress be measured and demonstrated. Whether there would be the necessary sensitivity and specificity to approach a “clear and convincing” standard is to be seen.
  8. We conclude that there clearly is sufficient knowledge of the physical and emotional beings exists and may serve to challenge the current paradigm in NIED. In fact, the restrictive element of physical harm no longer makes sense under any circumstance and can no longer be justified.
  9. If Professor Pound were able to deconstruct his model and combine the extremes of the progression, physical injury and emotional injury, into one complete entity, it would more closely be representative of contemporary wisdom. Most who are influential in the social and medical sciences regard the emotional and physical experiences as being a singular human experience. Without the requirement for extreme or outrageous behavior,” the tort of NIED lies in or near the realm of simple negligence.

Physical Harm

Physical harm is typically synonymous with physical discomfort. The process of nociception describes the normal processing of pain and the responses to the body when it comes into contact with a noxious stimuli. This may be a pain from touching a hot surface or lacerating the skin. The skin contains an array of receptors, including chemical, mechanical and thermal receptors. Stimulation causes the release of local chemical mediators from the damaged cells. These include prostaglandin, bradykinin, serotonin, substance P, potassium, histamine. In turn these mediators result in the pain message traversing C and A-delta nerve fibers via the afferent pathway through the dorsal horn of the spine (mediated by excitatory neurotransmitters including adenosine triphosphate, glutamate nitric oxide and substance P). The signal then moves up the spinal cord to the thalamus, cortex and higher levels of the brain. These ascending pathways are known as the spinothalamic and the spinoparabrachial pathways. The brain does not have a discrete pain center, so when impulses arrive in the thalamus they are directed to multiple areas where they are processed.

The perception of pain is extraordinarily complex. The somatosensory cortex is involved with the perception and interpretation of sensations. It identifies the intensity, type and location of the pain sensation and relates the sensation to past experiences, memory and cognitive activities. It identifies the nature of the stimulus before it triggers a response, for example, where the pain is, how strong it is and what it feels like.

The limbic system is responsible for the emotional and behavioral responses to pain – for example, attention, mood, and motivation, and also with processing pain and past experiences of pain.

Emotional Harm

There has been major progress in elucidating the neural basis of emotional distress. As a result of extensive animal and human studies, the best understood emotion of distress is fear (Damasio, 1994/2005; Le Doux, 1996; Panksepp, 1998; Feinstein et al, 2010).

In response to external stimuli, fear is triggered by the amygdala, two sets of subcortical nuclei located in the depth of each temporal lobe. The amygdala receives signals related to a certain situation, for example, a visually represented threat such as a looming shadow or a noxious sounding threat such as a high-pitched scream. When those signals have a suitable configuration, an appropriate context, and reach a workable threshold, i.e. when they are emotionally-competent, they activate nuclei in the hypothalamus and in the sector of the brain stem known as the periaqueductal gray. Working together those brain sites execute the requisite emotional actions — release of cortisol into the bloodstream, adjustment of heart rate, respiratory rate, degree of gut contraction, and fear-specific behaviors such as changes in facial expression and posture, and freezing in place or running away from danger. The ensemble of these actions constitutes the emotional state of fear. Other responses include increased force of contraction of the heart, pupillary dilation, increased peripheral vascular resistance, and increased perspiration. All of these constitute what is referred to as the activation of autonomic nervous system. This process is colloquially referred to as “fight or flight” syndrome. Emotional response will activate the autonomic nervous system to varying degrees. Emotional response is also capable of producing an opposite response, which is referred to as activating the “parasympathetic nervous system.” Emotional response will effect every organ system of the body, in a manner much more complex than is discussed.

The above gives way to a number of pertinent ideas.

  • There has been major progress in elucidating the neural basis of emotional distress.
  • The range of emotions is wide but finite.
  • The best understood is the emotion of fear.
  • There is always a physical response to emotional distress, which touches every organ system of the body; and conversely, there is always an emotional response to physical distress.
  • The bodily response to emotion is often subjectively characterized as unpleasant.
  • As the neurosciences has advanced, the creation of a demarcation between physical symptom (or harm) and emotional symptom (or harm) is largely denounced.

The interrelationship between physical and emotional is best conceptualized as being two sides of a single coin, rather than two coins separated by time and space. Attempts at a dichotomy are incorrect. The emotional and physical are principally one in the same. They cannot be viewed separately because they are not separate.

It is often the case that many patients who go to their physician’s office with physical complaints have underlying depression. People who visit their doctors reporting symptoms of headache, lethargy, weakness, or vague abdominal symptoms often end up being diagnosed with depression. People who are clinically depressed often have physical symptoms, such as constipation, lack of appetite, insomnia, or lethargy, among others.

A commonly recognized relationship, white coat syndrome, occurs when a person’s blood pressure increases the minute they step into a doctor’s office. In white-coat syndrome, anxiety is directly related to physical function — blood pressure.

These examples emphasize that over the course of evolution, our bodies decided to take the economy route and use a single neural system to detect and feel pain, regardless of whether it is emotional or physical.

Wager TD, et al. ed (2008) The Neuroimaging of Emotion (Oxford University Press, New York),3rd Ed.

Price DD (2000) Psychological and neural mechanisms of the affective dimension of pain.Science 288:1769–1772.

This thesis may be taken further. Based on present day understanding, the brain is known to be massively interconnected with the rest of the body. There are direct neural connections via the brain stem and spinal cord. For example, the circulatory and lymphatic systems also carry neurotransmitters that bind receptor sites in the brain which feedback and modulate the links between brain and body. In this way, every cell in the body is linked into the nervous system and as such, can be sensed and felt, whether or not we are aware of this psychobiological fact.

While NIED exists under a certain set of rules, and the physical and emotional have been forced into an awkward co-mingling, there is evidence that society was not only aware of the emotional mind, but had devised methods of manipulating the emotional mind and capturing certain physiological responses. This became the basis of the polygraph test.

The polygraph was initially developed during the late 19th century, and consists of a physiological recorder that assesses three indicators of autonomic arousal: heart rate/blood pressure, respiration, and skin conductivity. Most examiners today use computerized recording systems. Rate and depth of respiration are measured by pneumographs wrapped around a subject’s chest. Cardiovascular activity is assessed by a blood pressure cuff. Skin conductivity decreases as a function increased secretion of  perspiration (called the galvanic skin or electrodermal response) and is measured through electrodes attached to a subject’s fingertips. Briefly, the concept is that telling a lie evokes an activating emotional response. This response, in turn activates the autonomic nervous system. Activation causes increases in those parameters being measured – heart rate, respiration rate, and perspiration.

National Academy of Sciences (2002). The Polygraph and Lie Detection. Washington, DC: National Academy Press.

Saxe, L. (1991). Lying: Thoughts of an applied social psychologist. American Psychologist, 46(4): 409-15.

Saxe, L. & Ben-Shakhar, G. (1999). Admissibility of polygraph tests: The application of scientific standards post-Daubert. Psychology, Public Policy and the Law, 5(1): 203-23.

Introduction

As technology and innovations evolve throughout mankind, the legal system has been required to adapt and evolve. Examples are too numerous to mention but include strict liability and the industrial revolution, contract law and the digital era. The same is required in tort law. Medical science has brought about a multitude of changes that directly relate to our understanding of the mind and of human emotion.

Previously, intentional and negligent infliction of emotional distress have had as have been driven by underlying policies such as the desire of avoiding fraudulent claims and to not overwhelm the legal system. The courts remain less enthusiastic about meddling into mental issues such as hurt feeling, which are considered to be best left to a venue. Emotional hurt has been regarded as being less serious than other, more robust, intentional torts.  

Review of the literature regarding NIED appears chaotic. From what I can see, many jurisdictions (all of the 43 examined states) continue to require the fortuitous occurrence of physical harm. In general, this requirement appears to remain inflexible. While there does appear to be an emerging (Minority) trend to abolish the physical injury requirement, actual case law is not bountiful. Nevertheless, a virtually per se rule of barring recovery unless the negligence proximately relates to physical harm.

Where negligence and emotional distress merge, there are liability voids. In the case of psychiatric medical treatment, this is evident. Consider the common scenario where the medical patient presents to a psychiatrist for the diagnosis and treatment of an emotional disorder. By definition, the disorder is characterized by emotional distress. A doctor-patient relationship is formed, thus defining a degree of foreseeability in the potential outcomes. The doctor retains a duty to the patient to avoid adverse foreseeable outcomes. The outcome may be driven by negligent practice, and the result may be worsening emotional distress. The patient is likely left without reasonable means of redress. This is due to the fact that no matter how severe the resultant emotional distress is, there are probably no immediate, overt physical manifestations. This effectively allows the physician to avert liability.

In this sense, the legal system has failed a vulnerable part of the population. This exemplifies only one of the challenges faced by this marginalized population. The psychiatric patient is often of low socioeconomic means, would have difficulty in formulating a defense, would likely be disbelieved, and would likely be unable to find and retain appropriate representation.

A study published in the New England Journal of Medicine

In 2011, a paper was published in the New England Journal of Medicine entitled “Malpractice Risk According to Physician Specialty,”

shows that psychiatrists have a low incidence of malpractice suits to begin with, and the lowest in terms of indemnity when compared to a cohort of medical specialties. This is probably not because they do such good work, but rather, because the moment anyone walks into a lawyer’s office and tells them that they want to sue their psychiatrist for malpractice, hands are thrown in the air. You see a psychiatrist? You must be of unsound mind.

Furthermore, damages, on average, are insufficient to cover costs of litigation. The conclusions are ominous – an underrepresented group of vulnerable people, who are at high risk in general, are  excluded from a legal solution. under-represented minority group are left vulnerable and outside of legal redress. This begets the question of whether a patient’s emotional health is entitled to legal protection against potential negligent medical care. The damages suffered are borne by innocent victims.

Given the current state of affairs in science, the inquiry first leads into the concept of “physical injury.” What exactly qualifies as physical injury or as “physical manifestations?”  Uniform agreement would be for a bone fracture, a laceration, or a myocardial infarction. We know this because we can see them directly, or through an x-ray or through blood testing.

How about gastrointestinal symptoms such as irritable bowel or gastritis. While this is understood as being physical, it is now becoming more difficult to measure, although admittedly the former may have associated diarrhea and the latter may produce nausea, vomiting or bloody stools.

From emotional distress comes physical manifestations referable to the activation autonomic nervous system – such as increased heart rate, sweaty palms, pupillary dilation. Other manifestations may include headaches, insomnia, sexual dysfunction, inability to concentrate, anxiety, interruption of the activities of daily living, suppressed immune response, ad infinitum. In fact, all of these are physical signs, symptoms, and “manifestations.” All produce increases the levels of cortisol, stress hormones, catecholamines and cytokines – all of which are “physical” (biochemical) manifestations.  In fact, none of the above are any more or less a “physical manifestation” than the other. The issue, then, is in the degree of difficulty in measuring and using this information. The division between physical manifestations that are recognized and those that are not is blurry.

Background

Certain medical malpractice torts appear to be well suited if for Negligent Infliction of Emotional Distress (NIED) tort. Typically, medical malpractice is based on a negligence theory. Given that psychiatrists are physicians charged with healing emotional distress, at first glance, NIED appears to be a correct fit.

Generally speaking, the duty of all physicians, including psychiatrists –  is to apply contemporary medical science in relieving pain and suffering.

All states have statutes which embody this both in spirit and in principle. By way of example, Wisconsin Statute is typical:

Wisconsin Med 10.01Authority and intent.

 (2) Physicians act with a high level of independence and responsibility, often in emergencies. Every physician represents the medical profession in the community and must do so in a manner worthy of the trust bestowed upon the physician and the profession. The minimally competent practice of medicine and surgery require that care of the patient is paramount. Physicians must therefore act with honesty, respect for the law, reasonable judgment, competence, and respect for patient boundaries.

More pointedly, psychiatrists are charged with the diagnosis and treatment of emotional disorders, personality disorders, psychoses, and the like. The tools of the trade include psychoanalysis, psychotherapy, cognitive based therapy and pharmacotherapy. Seldom does this involve laying hands on the patient or performing procedures. This precludes many of the typical theories encumbered in medical malpractice.

Psychiatry is the most subjective of the medical disciplines, the least amenable to the application of scientific evidence, and is most variable in its application. It is largely based on “treating” anecdotal states of mind. Outcomes often cannot be duplicated, except in a very general sense., i.e. tranquilizers will tranquilize. Such influence is a terrifying tool in the wrong hands. More than other disciplines, psychiatric diagnoses are frequently based on “opinion” rather than objective evidenced-based science.

The psychiatrist-patient relationship is one of the most intensely personal in the field of professional health care. As a result, a psychiatrist’s errors or missteps in treatment can carry significant consequences for patients. By its’ very nature, psychiatry seeks to manipulate the emotional response in favor of effecting a clinical response. It simply follows that an attenuated obligation to care for the patient’s emotional well-being is implicated by the nature of the physician’s undertaking to or relationship with the plaintiff.

Stated differently, serious emotional distress seems “especially likely” where the physician has undertaken a relationship with the plaintiff that implicates care for emotional well-being and knows that the plaintiff is unusually susceptible to suffer emotional distress. The particularly intimate relationship, a “special relationship,” gives rise to a duty on the part of the practioner to exercise consummate attenuated level of care, as extreme emotional distress is foreseeable.

The joining of NIED with psychiatric malpractice is challenged by a multitude of issues – both practical and actual. Historically, the fundamental barrier to recovery in all of NIED has been that the resulting emotional distress has to be figuratively linked to physical injury. The relationship seems illogical, since the physical injury can be even trivial. The rationale relates to the necessity to limit damages to reasonably foreseeable consequences of negligent conduct, and the fear of fraudulent claims, mass litigation, and limitless liability or liability out of proportion to the defendant’s fault.

Although these concerns are valid, they should support only a limitation on, not a denial of, liability. In effect, the imposition of a physical harm rule in the setting of emotional distress amounts to an awkward, discordant “forced fit”. The answer to the allegation of unlimited liability should not necessarily be judicial obstruction. Rather, the challenge is to formulate rules that both limits liability on one hand, but allows for adjudication of meritorious claims.

From a risk-utility perspective, as foreseeability increases, so too should liability, since potential economic and societal losses also increases proportionally. Clearly, the class of plaintiffs are foreseeable.

Historically, and particularly prior to the last half century, the human emotional condition was not recognized as being an anatomical or functional component of the human body. In the case where it were, certainly there were no reliable methods to quantify this illusory entity.

Perhaps it is an appropriate for American Jurisprudence to abandon the classic paradigm in light of the advances in science, to recognize the emotional response as an integrated part of a complex human body. Medical science has laid the way to this understanding. The emotional mind is well described. The litany of emotional responses and the magnitudes of these responses can be objectively described. Advances in science have pathed the way to a more robust and dynamic understanding of the mind and body as being one interrelated existence. No longer is it necessary to artificially separate the two in order to preserve the integrity of the legal system. The full range of human emotions are capable of being objectively measured via functional and anatomical imaging, and are available to other disciplines in the social sciences. It is feasible that the science of the mind – with contemporary objective means, become a part of updated tort doctrine.

The Science of the Emotional Mind

Throughout history, the mind-body paradigm focused on a largely undiscovered primitive neurological system as being a separate, distinct and mystical entity that exists separate from the body. Over time, it was thought that the mind existed someplace within the neocortex, or the primitive brain. The primitive brain, as it was referred to, actually exists and represents the part of the brain that evolved first in man. Many of the primitive structures of the brain are responsible for emotions, and are located within the neocortical regions of the brain.

This paradigm has long since given way to a more sophisticated view – that the mind encapsulates emotions. In turn, the emotional response is viewed as an integrated component of the human body, and combined define the human experience.

Two of the most compelling discoveries of the last twenty years have been the achievements in the laboratory and striking advances in biomedical technology. Together, they have literally extended the frontiers of the mind by embodying emotions in the biology of the brain more successfully than ever before and by identifying some of  the intricate interconnections between brain-based emotions and the functioning of the neuroendocrine and immune systems. Within the neurosciences an area variously called “psychoneuroimmunology” and “neuroimmunomodulation” has emerged and is capable of tracing the pathways between emotions and disease.

The modern grounding of emotional expression in the biology of the brain began with the work of the American neuroanatomist James Papez. In the1930’s, Papez discovered neurologic pathways responsible for certain emotional responses, localized to structures collectively referred to as the “Limbic System” or the more primitive portion of the brain. He proposed relationships in these pathways to the autonomic nervous system via circuitous and diverse conduction pathways involving the amygdala and hippocampal formation.

Essentials of Clinical Neuroanatomy and Neurophysiology, Sid Gilman, Sarah Winans Newman FA Davis Publishing 2016 pages 226-27

Based on clinical and anatomical evidence, he postulated that an “ensemble of structures” in the lower, subcortical areas of the brain constituted the “anatomic basis” and “harmonious mechanism” for the elaboration and expression of emotions. Rejecting the possibility that emotion is “a magic product,” Papez insisted that it is “a physiologic process which depends on an anatomic mechanism.”

James W. Papez, “A Proposed Mechanism of Emotion,” Archives of Neurology and Psychiatry, 38 (1937): 725-743, mostly 743.

Next came Paul MacLean, a physician and neurophysiologist. In 1949, MacLean proposed a hypothesized “visceral brain” as an anatomical and functional system intermediate between the “intellectual” cortex and the “discharging” hypothalamus. This system was “largely concerned with visceral and emotional functions.”

 Paul D. MacLean, “Psychosomatic Disease and the ‘Visceral Brain,'” Psychosomatic Medicine, 11 (1949): 338-353, mostly on 351.

In the 1950s, MacLean generalized his ideas into a more sophisticated theory of the “limbic system,” an integrated set of subcortical structures in the brain including the hippocampus and amygdala whose precise role in emotional expression and modulation he explored through the electrical and chemical stimulation of specific anatomical regions and structures.

Paul D. MacLean and Jose M.R. Delgado, “Electrical and Chemical Stimulation of Frontotemporal Portion of Limbic System in the Waking Animal,” Electroencephalography and Clinical Neurophysiology,
5 (1953): 91-100 and Paul D. MacLean, “Chemical and Electrical Stimulation of Hippocampus in Unrestrained Animals,” Archives of Neurology and Psychiatry, 78 (1957): 113-142.

Other investigators added human clinical evidence and the results of surgery on the brains of laboratory animals, which also pointed to the role of the limbic system in the expression of emotions.

In the 1970s, neuroscientists began to concentrate on the right cortical hemisphere as the most interesting locus of emotional control.

Roger Sperry’s award of the Nobel Prize in 1981 for his work on “cerebral laterality” (the differences between the “left” and the “right” brain and their behavioral significance) reinforced this trend.

Norman Geschwind, “Specializations of the Human Brain,” Scientific American, 241 (September, 1979): 192.

R.W. Doty, in Guido Gainotti and Carlo Caltargirone, eds., Emotions and the Dual Brain (Berlin: Springer-Verlag, 1989), pp. 56-82.

Neuroscientist R.W. Doty indicated in a 1989 review article that “any idea of emotion in an intact mammal being played out purely via subcortical circuitry is an unsustainable abstraction. On the other hand, the evidence is unequivocal that subcortical structures are essential for the expression of the more “primitive” emotions, and can support such expression in the absence of the neocortex. Current work has verified the integrative functioning of cortical and subcortical areas (especially the amygdala) in the organism’s response to primitive emotional experiences.

In perhaps the most exciting development of all, a new field has emerged which is able to combine the latest in the neurosciences with the latest in immunology to provide the scientific basis for understanding relationships between emotions and disease once explored only in clinical settings.

Functional neuroimaging techniques – such as single photon emission computed tomography (SPECT), positron emission tomography (PET), functional magnetic resonance imaging (fMRI) – when used together or in tandem, allow mapping of the physiology of the brain by measurement of blood flow, metabolism, and receptor-ligand binding. Research applying these techniques to mental illness has evolved over the last two decades and has improved our understanding of the mechanisms underlying psychiatric disorders. For instance, the neuroscience of the schizophrenic brain has progressed and shows promise.

Functional connectivity refers to the temporal relationship between activity (as measured using functional imaging) in topographically distinct areas. The areas of the brain associated with various emotional responses have likely been located.

Can J Psychiatry 2007 Mar;52(3):146-57.

With the continued development of a large array of radiopharmaceuticals that can evaluate all of the components of different neurotransmitter systems (such as serotonin and dopamine), PET imaging will continue to play a key role in research of psychiatric disorders.

Ann N Y Acad Sci. 2011 Jun;1228:E13-25.

Further advances have given way to capability of digitally assisted modeling of a variety of “emotional responses.” This suggests the potential for application of these techniques as clinical validation tools in the future.

Bryan M. Gebhardt and J. Edwin Blalock, “Neuroendocrine Regulation of Immunity,” in Ivan M. Roitt and Peter J. Delves, eds., Encyclopedia of Immunology (London: Academic Press, 2012), pp. 1145-1149.

There are two conclusions to be drawn based on the following discussion – that the emotional mind occupies discrete and distinct neuroanatomic locals and signaling pathways. The science that supports this has evolved over the past 20 years is well described.

Functional imaging is may play a future role in identifying emotional responses with reasonable sensitivity and specificity. This suggests that emotional distress may ultimately be demonstrated and quantified. This data can, in turn, be compared to normalized data and produce “magnitude of response” data. This gives way to the possibility of being applied when validating emotional distress. Most likely, such tools would need to be combined with other modalities such as standardized multivariant testing.

The interaction of the nervous, endocrine and immune systems is only now being considered seriously. This field represents a novel, multidisciplinary approach in Biological Sciences. Since it involves numerous techniques and modalities at once, even the name of the field has not been settled as yet.

Marcus E. Raichle, “Visualizing the Mind,” Scientific American, 270 (April, 2014): 58-64.

Modern science is equipped with powerful research tools which make it feasible to advance quickly in this complex multidisciplinary field, with the aim of understanding the whole organism, rather than trying to analyze restricted areas. The developments are spectacular, indeed, and the new insights gained have already advanced understanding of psychiatric and emotional diseases, autoimmune disease, inflammatory diseases, nervous and endocrine abnormalities and the influence of behavioral factors and of aging on the immune response and disease.

Historical Perspective on Negligent Infliction of Emotional Distress

The earliest history of NIED (Shapo text pp. 87-89) occurred in the 19th century. Victorian Railways Commissioners v. Coultas – a married couple were attempting to cross a railway tracks in their horse and buggy. The gates were controlled by a gate-keeper, who opened the gates on one side, and went across to open the gates on the opposite side. The train approached at a rapid speed, and the buggy barely made it across. The female passenger fainted, and “she received a severe nervous shock from fright.” An illness that she subsequently suffered was claimed to be a consequence of her fright, but no physical damage was evident. The court observed the following:

Not only in such a case as the present, but in every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased, and a wide field opened for imaginary claims.1

The expressed concern became ominous. There could not be any guarantee as to the genuineness of the plaintiff’s complaint. Little was known of mental illness as Sigmund Freud was in his twenties at the time of this case. So, in this case, up until the last half century, NIED was not cognizable as an independent cause of action. Concerns stemmed from a lack of precedent, a fear of frivolous litigation, and from a difficulty in measuring emotional harm both physically and financially. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS Note 6, § 54, at 359 (5th ed. 1984)

Prosser and Keeton cite three concerns that provide the context of doctrinal limitations:

  • the problem of permitting legal redress for harm that is often temporary and relatively trivial;
  • the danger that claims of mental harm will be falsified or imagined; and
  • the perceived unfairness of imposing heavy and disproportionate financial burdens upon a defendant, whose conduct was only negligent, for consequences which appear remote from the “wrongful” act.

One court summarized the essence of this viewpoint by stating “it would be unwise to create such a cause of action “[b]ecause such disturbances are commonplace in our complex society, because they cannot be objectively observed or measured,” and because of the danger of “open[ing] … the door to damage claims fraught with potential abuse.” This judge argued that the issue was not one of “foreseeing (by unguided hindsight) the consequences of unintended conduct, but rather realistically limiting liability for those consequences.” He contended that to impose liability for emotional distress caused by negligence was “far disproportionate to the degree of culpability.”

Molien v. Kaiser Foundation Hospitals, 616 P.2d 813, 816–17 (Cal.1980).

Over the past half century, NIED with physical manifestations occur according to three fact patterns:

The first involves persons who barely escape physical harm and suffer emotional distress as a consequence of their personal exposure.

Orlo v. Connecticut Co., 21 A.2d 402 (Conn.1941).

The second is cases where the person suffering emotional distress is not in harm’s way, but is a bystander and witness to a harm that befalls another.

Waube v. Warrington, 258 N.W. 497, 501 (Wis.1935)

Third is the so called parasitic claim where emotional distress results from negligently inflicted bodily harm. The plaintiff may recover for emotional distress on a so-called parasitic basis. In this metaphor, the emotional distress damages become figuratively attached to any damages the jury may assess for physical injury resulting from the contact.

Multiple rules have evolved over time as to the limits of recovery for the non-bystander. The original majority rule was known as the “impact rule,” which required physical impact or injury in order for a plaintiff to recover in an action for the negligent infliction of emotional distress. If there is no physical injury (physical impact), there is no recovery for the negligent act. This continues to be postures of Florida, Georgia, Kentucky, and Nevada. The rationale is simply that the emotional distress must come from the injury. These states do not allow for the emotional distress to precede the physical injury. (Hornbook Torts pp 493-97).

At issue was the fact that this requirement had been frequently satisfied by oft trivial contacts, and that consequently the impact rule had fallen into disfavor.  Rickey v. Chicago Transit Authority (1983). It made little sense to require that emotional harm require an oft unrelated physical insult, trivial as it may be.

Historically, other courts simply require that the plaintiff be in the zone of danger when the tortious conduct occurred, and subsequently experience a physical manifestation of emotional distress. The zone of danger test draws upon Judge Cardozo’s reasoning in Palsgraf v. Long Island Railroad Co. that if a plaintiff is within close proximity to a cause of harm, it is foreseeable that harm may in fact be caused to that person.

Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928).

It appears that a majority of states that have considered the issue allow recovery for negligently inflicted emotional distress so long as that mental condition produces some physical sign of its existence.  

In Vance v. Vance, the court explained that:

[T]he requisite “physical injury” resulting from emotional distress may be proved in one of four ways. It appears that these alternatives were formulated with the overall purpose in mind of requiring objective evidence to guard against feigned claims. The first three categories pertain to manifestations of a physical injury through evidence of an external condition or by symptoms of a pathological or physiological state. Proof of a “physical injury” is also permitted by evidence indicative of a “mental state,” . . . therefore, the term “physical” is not used in its ordinary dictionary sense. Instead, it is used to represent that the injury for which recovery is sought is capable of objective determination.

Vance v. Vance, 408 A.2d 728, 733-34 (Md. 1979)

Finally comes the standard known as the zone-of-physical-danger rule. Basically, under it a bystander who is in a zone of physical danger and who, because of the defendant’s negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress. The bystander must show physical injury or illness as a result of the emotional distress caused by the defendant’s negligence.” Rickey case paragraph 8. The requisite physical harm continued to be awkward and incongruent in many cases.

Conclusion

The relationship between the mind and body is no longer regarded in the abstract as they are presently viewed as being one in the same. This view has a grounded scientific basis.

A corresponding update in the negligent infliction of emotional distress cause of action to reflect this view might begin with the recognition of the “special relationship” exception recognized currently recognized in the affirmative duty doctrine. Here, the psychiatrist-patient relationship qualifies as “special relationship.” It is not reasonable to consider the concept of duty without considering the relationship between the doctor and patient. Duty should be a function of the scope of the physician’s undertaking.

[U]ltimately, the determination of whether a duty should be imposed is made by weighing the various policy considerations and reaching a conclusion that the plaintiff’s interest[s] are, or are not, entitled to legal protection against the conduct of the defendant.

Odemns v. District of Columbia, 930 A.2d 137, 143 (D.C.2007) (quoting W.C. & A.N. Miller Co. v. United States, 963 F.Supp. 1231, 1243 (D.D.C.1997)).

In this situation, the physician has accepted for professional consult and obliges as to a patient’s well-being. The rule of foreseeability places the patient in a tenouous and compromised position relative to that of the psychiatrist such that negligence has the likelihood of serious emotional distress as the outcome. Negligent treatment or omissions of the patient are a breach of the “special relationship.” The likelihood of there being tangible evidence of physical sequelae, is overshadowed by a more blurry realm of autonomic activation and subcortical changes that can nonetheless be demonstrated by SPEC and PET scans along with a pointed history exam and can be measured against an objective reasonable physician standard. Thus, it is reasonable that there is a subjective and objective component to this requirement. An unusually susceptible person may not recover if an ordinary person would not have suffered serious emotional disturbance. A person may nevertheless recover for all harm caused, even if more serious because of the predisposition or special vulnerability of the person, if the negiglence is sufficient to cause a reasonable person to suffer serious emotional damage.

When serious emotional distress is especially likely or anticipated in the event of a breach of duty to the patient, a doctor would be expected, as a matter of reasonable care, to take precautions to avoid causing serious emotional distress, equivalent to a doctor taking care to use sterile instruments in surgery. To refuse to recognize a duty in negligent infliction of emotional distress cases simply because there is no risk of cognizable physical injury, even where the defendant is alleged to have breached an established obligation that predictably caused serious emotional distress to the plaintiff, would continue to unfairly allow the negligent psychiatrist to be immunized from liability at the expense of the injured person.

Since care for the body and the emotions are so interlinked, and, in fact are one in the same, and patients often are dependent on their physicians’ exercise of due care, patients are susceptible to suffer emotionally and physically without distinction between one or the other.

As a result of physician negligence; and thus, in most negligent infliction of emotional distress cases in the context of doctor-patient relationships, there will always be bodily injury comprised of emotional pain.

Frivolous claims can be guarded against by imposing the burden of proof on the patient through expert testimony. Duty is a given. The fact remains that plaintiff’s emotional distress must be significant and verifiable. The fear of being overly inclusive should not result in the courts being under inclusive. By definition, the fact that there is a “special relationship” greatly reduces the chance of frivolousness.

Finally, duty to avoid negligent infliction of emotional harm – should stand alone by itself as a viable cause of action in the scenario where there is a doctor-patient “special relationship,” AND where serious emotional distress or perpetuation of already existing emotional distress is likely in the event of psychiatrists’ negligence.

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