Trial Courts Explore Parameters Of Emotional Distress Claims

The case in Rahm v. Folio stems from Leslie Jeanne Rahm’s 1999 miscarriage of one of two babies she was carrying at the time.

According to the court opinion, the circumstances of the case are as follows:

Rahm, pregnant with triplets and under the obstetrical care of defendants Beth A.S. Folio, M.D., and Valley OB-GYN Associates, had lost one of her babies in February 1999. Following that miscarriage, she continued to carry the two survivors, Derrick and Dominique, with a due date of Aug. 6, 1999.

Between May 25 and June 15, 1999, Rahm underwent weekly fetal non-stress tests (NST) to determine the well being of the two fetuses.

On June 22, the test’s results were “non-reactive and non-reassuring” for Dominique, prompting Folio to refer Rahm to the Lehigh Valley Hospital for further testing. Those tests also indicated problems with Dominique.

Rahm returned to Folio on June 23 for a repeat NST, which showed Dominique’s state had not changed from the previous day. Folio then advised Rahm to return for an additional NST the following week.

On June 28, an ultrasound revealed Dominique had died.

“Upon learning of the demise of Dominique, Mrs. Rahm ‘lost total control,’ began screaming and went into a state of ‘shock,’” Judge Wallitsch noted in the opinion.

Rahm then telephoned her husband James and asked him to return home from work because there was something seriously wrong. When he arrived home, Rahm informed her husband of Dominique’s demise.

The Rahms subsequently filed claims of negligent infliction of emotional distress against Folio, Valley OB-GYN Associates and Medical Associates of the Lehigh Valley, alleging that if additional testing had been ordered after the June 23 NST, Dominique’s demise may have been prevented.

“Plaintiffs allege that, as a result of Defendants’ negligent omissions, they have suffered severe mental and physical injuries, including continuing sleepless nights, and have received psychological counseling from different sources,” Wallitsch wrote.

The defendants, in turn, filed a motion for partial summary judgment, questioning whether the parents of a stillborn baby may maintain an emotional distress claim under the circumstances of the case. Specifically, they argued Leslie Rahm’s claim could not stand because she suffered no physical injury as a result of the alleged negligence, as required under Pennsylvania law.

Despite this argument, Wallitsch found that Rahm’s physical manifestations of distress, including her descent into a state of shock and subsequent loss of sleep, were sufficient to seek compensation.

Citing Armstrong v. Paoli Memorial Hospital, 633 A.2d 605 (Pa. Super 1993), Wallitsch wrote, compensable physical injuries can include “continued nausea or headaches, repeated hysterical attacks or mental aberration.”

The judge went on to conclude that under the criteria established in Sinn and Mazzagatti, Leslie Jeanne Rahm’s claim could proceed, while James Kurt Rahm’s claim must fail.

Accordingly, the judge granted in part and denied in part the defendants’ motion.

The plaintiffs were represented by attorney Neil E. Wenner of Butler.

The defendants were represented by attorney Gregory S. Nesbitt of Kilcoyne & Associates in Plymouth Meeting.

Radiology Mistake

In Sember v. Ciambotti, a husband brought a survival action and wrongful death claim against several doctors and a radiology lab, including allegations of negligence, loss of consortium and negligent infliction of emotional distress, after his wife succumbed to Metastatic Lung Cancer and vascular disease.

According the court opinion, the circumstances of the case are as follows:

Julia Sember went to the facilities of defendant UPMC Horizon Shenango in July 1994 to undergo a cervical spine x-ray at the urging of her doctors — the results of which indicated a “suspicion of a small density in the right apical region.”

The x-ray report was forwarded to Sember’s doctors, defendants Frank McElree, M.D., and Vincent A. Ciambotti, D.O., neither of which ordered further study of the mass.

In March 2000, Sember noticed a red lump under her left arm and returned to Ciambotti to have it incised and biopsied in May 2000. In June, she informed Ciambotti her left axilla mass had continued to grow. She was then referred for a surgical procedure in July, at which time she was diagnosed as suffering from “poorly differentiated Aden Carcinoma.” Sember was subsequently diagnosed as having Metastatic Lung Cancer.

Judge Fornelli also noted in his opinion that Sember had smoked cigarettes at a rate of “at least one pack per day for approximately thirty to forty years until 1999.” She died on Aug. 5, 2000.

In February 2002, Theodore Sember filed a writ of summons naming Ciambotti, McElree and UPMC as defendants, along with Jonathan Ciambotti, M.D., Dale Pokorney, M.D., and Scott Cunningham, D.O. In a second amended complaint, Sember made a claim of infliction of emotional distress, along with the other aforementioned allegations.

The defendants filed a series of preliminary objections to the plaintiff’s second amended complaint, including protests of the emotional distress claim.

On that claim, Fornelli wrote, quoting Love v. Cramer, 606 A.2d 1175 (Pa. Super 1992), the plaintiff failed to “allege that he actually observed a ‘discrete and identifiable traumatic event.’ In addition, the plaintiff did not allege that he suffered any physical injuries as a result of actually witnessing the harm to the deceased. In fact, the plaintiff did not allege that he witnessed either the negligent medical treatment or the death of the deceased.”

Accordingly, Fornelli sustained the defendants’ preliminary objections in the nature of a demurrer to the emotional distress claim, as well as to an alternative claim of outrageous conduct causing severe emotional distress.

Most of the remaining preliminary objections were also granted, including contests of the plaintiff’s claims of loss of parental consortium filed on behalf of his children, and claims of wrongful death on behalf of himself and his children. The judge also granted the defendants’ preliminary objection in the form of a motion to dismiss the plaintiff’s amended writ of summons, pursuant to Pa. R.C.P. 1033.

Sember was represented by attorney Darrell Kadunce of Butler.

McElree was represented by attorney Patrick L. Mechas of Burns White & Hickton in Pittsburgh; Pokorney was represented by attorney Gary D. Bax of Murphy Taylor in Erie; and Ciambotti, Cunningham and UPMC Horizon Shenango were represented by attorney Alyson J. Kirleis of Dickie McCamey & Chilcote in Pittsburgh.

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