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Wais, Vogelstein, Forman, Koch & Norman, LLC Wais Vogelstein Forman Koch & Norman LLC
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Emotional Damages from Misdiagnosis

The District of Columbia Court of Appeals recently acknowledged a cause of action for intentional infliction of emotional distress absent a being in the zone of physical danger. See Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789. The Hedgepeth case involved a man who was incorrectly (and negligently) told that he had HIV when he really did not have the disease. Obviously the diagnosis of HIV was psychologically devastating for the man and emotionally damaging. However, the law did not recognize a cause of action because the negligence of giving him the wrong diagnosis did not put him at actual risk of physical danger (“the zone of danger”).

The D.C. Appellate Court bravely and rightfully recognized that his psychological and emotional trauma should be actionable even without him being in the zone of danger. The case set forth a new standard in D.C. where intentional infliction of emotional distress can be actionable absent the injured person being at risk of suffering physical injury. Here are the factors to determine whether a claim can be brought for purely emotional injuries:

(1) defendant had a relationship with plaintiff, or had undertaken an obligation to plaintiff, of nature that necessarily implicated plaintiff’s emotional well-being; (2) there was an especially likely risk that defendant’s negligence would cause serious emotional distress to plaintiff; and (3) negligent actions or omissions of defendant in breach of that obligation in fact caused serious emotional distress to plaintiff.

The Hedgepeth case could allow access to the courts and compensation for other people suffering from emotional damages even when they were not at risk themselves of suffering physical injury. For example, what can be more emotionally devastating to a parent than having a baby who is neurologically and physically disabled from a doctor’s negligence. Obviously the parents of that disabled child will be emotionally devastated and will remain so forever. Before this decision the parents would have had no cause of action for their emotional pain. However, under the Court’s holding it is arguable that the Court’s rational could expand and allow parents of children who have been injured by the negligent acts of health care providers to have a right of recovery for their very real emotional injuries even if they were never at risk of suffering physical injury themselves. Nevertheless, the case is a step in the right direction in recognizing the seriousness of emotional issues and the very real injuries that can occur from them.

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