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43. In an action against the doctor by the mother on her own behalf to recover for intentional infliction of emotional distress, is the mother likely to prevail?
A mother took her five-year-old child to a hospital emergency room for treatment. A doctor on the hospital staff molested the child while treating her. At the time, no one was in the treatment room except the doctor and the child; the mother had left the room to get a cup of coffee. Two weeks later, when the child told her mother what had occurred in the treatment room, the mother suffered severe emotional distress that caused her to become physically ill.
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Transferred intent does not generally apply to IIED cases, where the defendant intended to cause emotional distress or commit some other tort upon a victim, and another party sues as the plaintiff for her own emotional suffering as a result of witnessing or experiencing it. For this plaintiff to recover, she must establish additional elements.
Specifically, a defendant may be liable for his infliction of emotional distress upon the bystander when he causes the plaintiff/bystander intense mental suffering, even though she was not in any danger herself. To recover damages in this situation, the plaintiff must prove that she: (i) is in a close relationship with the person injured by the defendant; (ii) was present at the scene of the injury; and (iii) personally observed or perceived the event. The majority of states do NOT require proof of physical symptoms where all three elements are satisfied.
B is correct. A claim of intentional infliction of emotional distress («IIED») requires that the defendant desired to cause the plaintiff emotional distress directly, that he knew with substantial certainty that the plaintiff would suffer emotional distress, or that he recklessly disregarded the high probability that the plaintiff would suffer such distress. As a general rule, the defendant's intent will not transfer to a third party who was an unintended victim. However, a plaintiff who was merely a bystander to harm caused to a third party may recover based on mental suffering, if she shows: she is in a special relationship with the direct victim, she was present at the scene of the injury, and she personally witnessed the event.
In this case, the mother cannot sustain a claim for either IIED or as a bystander to her child's direct injury. An IIED claim will not succeed because the doctor's intent was directed at the child, not the mother, and that intent will not transfer. She will also fail to recover as a bystander because although she and the child are in a special relationship (i.e., mother/daughter), the mother was not present when the molestation occurred, which means she is unable to show that she was at the scene or personally observed the event.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. The mother will not succeed, but it is irrelevant whether she was contributorily negligent. What is dispositive is the fact that the mother was not a direct victim, and she did not witness the act, nor was she present when it occurred. Moreover, the mother was not contributorily negligent in leaving the child alone with a doctor during treatment. This is a reasonable action to take at a hospital, where she had no reason to think anything of this nature would happen.
C is incorrect. The fact that the doctor's conduct was outrageous is not enough to sustain the mother's claim. She would have to make additional showings, including that she was either a direct victim or that she was present and witnessed the injury. She is unable to meet this burden, as explained above.
D is incorrect. Even though the mother's distress could be a natural and foreseeable consequence of the doctor's conduct, he is not liable for her suffering because, as stated above, the intent does not transfer to her and she was absent when the harm occurred, which means she will not have a claim against him.