In my published reviews of litigated futility cases (e.g. here), I have observed, that the only cause of action that is typically successfully brought against healthcare providers for unilaterally withholding or withdrawing is a cause of action for emotional distress. In the context of a futility dispute, where the family's objections have already been made known, the conduct is usually knowing and deliberate. Therefore, the relevant tort is known as "intentional infliction of emotional distress (IIED)" or "outrage." But, without good communication, providers can also expose themselves to liability for negligent infliction of emotional distress (NIED).
While not a futility case, the Pennsylvania Supreme Court recently highlighted this type of provider liability. Providers committed no malpractice with respect to the treatment or delivery of Jeanelle Toney’s newborn infant. But they failed to detect his fetal abnormalities and warn the mother. Toney argued that the “Defendants’ misinterpretation of the ultrasound directly resulted in her severe emotional distress because it prevented her from preparing herself for the shock of witnessing the birth of her child with profound deformities.”
The Supreme Court held that "Defendants did owe Plaintiff an implied duty to care for her emotional well-being, and that it was foreseeable that a breach of this duty could result in severe emotional disturbance causing physical injuries to Plaintiff. Here, Defendants were performing a medical procedure in a sensitive area of practice fraught with emotions . . . ."
The trial court had sustained the defendants’ preliminary objections and dismissed the plaintiff’s complaint with prejudice. The Pennsylvania Superior Court reversed. Since the Pennsylvania Supreme Court was evenly divided, the Superior Court’s reversal order is effectively affirmed.
ADDENDUM: I should also note that NIED has already been specifically recognized as a valid cause of action in at least one futility dispute: Rideout v. Hershey Med. (1995).
ADDENDUM: I should also note that NIED has already been specifically recognized as a valid cause of action in at least one futility dispute: Rideout v. Hershey Med. (1995).
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