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Larsen v. Banner Health System12/23/2003
re, and attention in a wrongful death action. "Recovery of damages for mental injury is not novel to Wyoming jurisprudence." Daily, 906 P.2d at 1044. Similarly intangible and inherently difficult to measure are pain and suffering damages, but they are sought and awarded in nearly all tort actions. We also acknowledge that tort damages are compensatory in nature and seek to put the plaintiff in the same position he would have been in but for the defendant's negligence. While a monetary award will not restore intangible relationships, it is currently the best solution our system offers. Hancey v. United States, 967 F.Supp. 443, 445 (D. Colo. 1997). We also recognize that legal consequences from wrongs must be limited to some controllable degree, but we trust the jury to assess reasonable damages. The courts can control juries that are ruled by passion or prejudice. Gates, 791 P.2d at 200; see also Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1289 (Wyo. 1983) (the court has duty to grant remitter or additur where a verdict shocks the conscience of the court); Booth v. Hackney, 516 P.2d 180, 181 (Wyo. 1973) (verdict can be set aside when it appears to be so excessive that it denotes passion, prejudice, bias or some erroneous basis).
The procedures by which courts can control juries combined with the limited nature of the exception and the requirement of severe emotional distress convinces us that the negative aspects of recognizing the independent duty exception are reasonably limited. Therefore, under the seventh factor we determine that our courts will not be unduly burdened by this exception to the general rules limiting emotional damages.
The eighth and final factor is the availability, cost, and prevalence of insurance for the risk involved. Aside from the current issues surrounding the cost of medical malpractice insurance, we note that insurance is quite prevalent. Hospitals are insured for all types of losses related to the birth of a child. Although we have said this previously, because of the current issues surrounding medical malpractice insurance it bears repeating: this exception is extremely limited. The exception only applies when there is a contract for services that carries deeply emotional responses in the event of breach. Although some level of emotion attends every situation involving one's health, we do not anticipate that every area of healthcare will carry the deeply emotional responses sufficient to sustain this exception.
After applying the balancing of factors test "it is difficult for the court, on the basis of natural justice, to reach the conclusion that this type of action will not lie. Human tendencies and sympathies suggest otherwise." Nulle, 797 P.2d at 1174 (quoting Hoffman v. Dautel, 368 P.2d 57, 59 (Kan. 1962)). Accordingly, we hold that in Wyoming, in the limited circumstances where a contractual relationship exists for services that carry with them deeply emotional responses in the event of breach, there arises a duty to exercise ordinary care to avoid causing emotional harm. However, as can be seen by our discussion, this exception is extremely limited. We persist in seeking to assure that our already burdened court system will not be additionally burdened by an overly broad liability for emotional damages.
CONCLUSION
For the reasons fully explained above we answer the cert ified question in the affirmative. A mother and daughter, who were separated for forty-three years because the 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.
PRI
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