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Larsen v. Banner Health System12/23/2003
LEHMAN, J., delivered the opinion of the court. PRICE, D.J., filed a dissenting opinion.
This case comes before this court as a certified question from the United States District Court for the District of Wyoming. We are called upon to answer the question of whether Wyoming allows recovery of purely emotional damages in a negligence action brought by a mother and daughter who were separated because two babies were switched at irth. We answer the certified question in the affirmative.
ISSUE
The issue presented by the certified question is:
Whether a mother and daughter, who were separated for forty-three years because a hospital switched two newborn babies at birth, can maintain a negligence action in which the only alleged damages are great emotional pain, humiliation, anxiety, grief, and expenses for psychological counseling?
FACTS
The certification order from the United States District Court sets forth a brief statement of facts relevant to the certified question. Those facts are as follows:
At 3:07 a.m. on April 8, 1958, Jean Morgan gave birth to a baby girl, Debra, at Campbell County Memorial hospital. Shortly thereafter, Polly Leyva gave birth to a baby girl named Shirley. The hospital staff switched Shirley and Debra in those early morning hours when the respective mothers were unconscious. When the mothers regained consciousness, Debra went home with Polly Leyva and Shirley went home with Jean Morgan.
The members of the hospital staff who switched the newborns and then failed to correct the mistake were acting within the scope of their employment for Banner Health System formerly known as Lutheran Hospitals and Homes Society of America. Banner Health Systems has staffed and operated Campbell County Memorial Hospital at all relevant times.
Shirley "Morgan" grew up in the Morgan home, however, she did not look like the other Morgan children due to a darker skin coloration. Because Shirley had a darker complexion, James Morgan, the "father," openly and frequently asserted that Shirley was not his child. The complaint alleges that due to James' mistrust, Shirley was ostracized and "terribly mistreated" by James Morgan and the Morgan siblings.
On April 3, 2001, a DNA test was performed to resolve the lingering doubts that James Morgan harbored about his wife's infidelity. The test established that James Morgan was not Shirley's father. A subsequent test performed on May 3, 2001, revealed that Jean Morgan was not Shirley's mother.
After the results of the tests, Shirley began searching for her biological mother. She was able to determine that only two children were born at that hospital on that day. She subsequently contacted Debra with the shocking news. On October 4, 2001, Debra called Polly Leyva and informed her of the disturbing revelation. Shortly after this phone call, Shirley introduced herself to Polly as her biological daughter. Unfortunately, Shirley's real father died several years ago.
Plaintiffs in this action are Shirley Larsen (f/k/a Shirley Morgan) and Polly Leyva. Plaintiffs have brought a negligence claim against the Defendant, Banner Health Systems, for switching the children at birth. However, the complaint only alleges damages for "great emotional pain, humiliation, anxiety, grief, and the expenses for psychological counseling." On August 28, 2002, the defendant filed a motion to dismiss arguing that " here is no cause of action recognized in Wyoming for mere negligence which results only in alleged emotional injury."
STANDARD OF REVIEW
We review the certified question pursuant to W.R.A.P.
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