36. If the applicant sued the doctor for damages, on which of the following causes of action would the applicant recover?

A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. Usually, the plaintiff must satisfy two elements for such a claim, including that plaintiff: (i) was within the «zone of danger» (i.e., the plaintiff's distress was caused by a threat of physical impact); and (ii) suffered physical symptoms from the distress (i.e., the defendant's conduct caused distress to the plaintiff that manifested in the form of physical symptoms).

There are a few special situations in which courts have allowed plaintiffs to recover for emotional distress when there would otherwise be no damages awarded. These involve either a special activity or special relationship among the parties such that risk of emotional harm to the plaintiff is so great, and the number of affected plaintiffs is so small, that there is no concern of a flood of claimants or feigned distress. One scenario where this exception applies is when someone negligently announces that a person had died, is dying, or is seriously injured such that hearing the news would create a foreseeable risk of severe emotional distress.

Under a tort for invasion of privacy, a plaintiff can recover for four types of wrongs: (i) appropriation by the defendant of the plaintiff's picture or name for commercial advantage; (ii) intrusion by the defendant upon the plaintiff's affairs or seclusion; (iii) publication by the defendant of facts placing the plaintiff in a false light; and (iv) public disclosure by the defendant of private facts about the plaintiff.

Negligent misrepresentation requires the plaintiff to show that: (i) the defendant made a misrepresentation in a business or professional capacity; (ii) the defendant breached a duty owed to this particular plaintiff; (iii) there was causation between those actions and the result; (iv) the plaintiff justifiably relied on the misrepresentation; and (v) damages resulted.

A is correct. Typically, recovery for negligent infliction of emotional distress requires that the plaintiff was within the «zone of danger» and suffered a physical manifestation of the mental distress that resulted. In special situations, courts will allow plaintiffs to recover, even when these elements are not met, based on the nature of the harm. This includes receiving incorrect news of a death or serious bodily injury by a loved one (or here, oneself) that results in extreme distress by the plaintiff. Here, the applicant received incorrect news that she had a potentially life-threatening disease, and the extent of her resulting distress was so great that she had a heart attack. Based on these circumstances, the applicant would have a claim for negligent infliction of emotional distress.

B is incorrect. An invasion of privacy action does not apply here. The specific wrong of commercial exploitation requires the plaintiff to show that the defendant used the plaintiff's information for commercial advantage and published it to the public. Here, the doctor was privileged in disclosing the medical results to the employer, and no one released the information publicly.

C is incorrect. A negligent misrepresentation action also does not apply here. That tort requires the plaintiff to have relied upon hearing the misrepresentation that was negligently made. Here, although the applicant suffered an injury as the result of hearing about the false diagnosis, it was the employer, not the applicant, who relied on it after hearing it from the doctor directly.

D is incorrect. For the reasons stated above, the applicant does not have actionable claims for either invasion of privacy or negligent misrepresentation.