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Larsen v. Banner Health System12/23/2003
tody orders are subject to modification in future proceedings. See Wyo. Stat. Ann. ยง 20-2-204 (LexisNexis 2003). Obviously we would never lightly dismiss or condone attorney negligence, but in a limited sense, some of the damage incurred due to attorney negligence in a case involving child custody may be mitigated by future modification.
A last important distinction must be noted. As mentioned in Hampe, some level of emotional disturbance has to be expected in a divorce proceeding involving custody issues. Hampe, . The parties are aware of such a disturbance and can conceivably prepare to cope with the disturbance when they begin divorce proceedings. A parent leaving the hospital with a newborn child does not reasonably expect the same kind of disturbance. Additionally, in a divorce proceeding neither parent can reasonably expect, nor does he/she often get, full-time custody. The parent-child relationship is rarely completely severed in divorce proceedings. Each parent's relationship with the child, although altered, remains intact. The parent-child relationship in this case was completely severed.
We, therefore, conclude that this case is not "similar" to Hampe and that Hampe did not speak directly to the issue now before us. We determine that the decisions preceding Hampe as cited above did not squarely address the issue either. Having never addressed a case with circumstances such as this one, we looked to other jurisdictions for similar cases involving babies switched at birth and emotional damages. Our research turned up three cases. Although the cases discussed the issue, for various reasons they did not generally provide an analysis that was particularly useful to our specific discussion. Wishard Memorial Hosp.v. Logwood, 512 N.E.2d 1126 (Ind.App. 1987) (The court denied recovery for purely emotional damages resulting from the switched babies. However, the switch was only for a number of hours and was discovered before either infant left the hospital.); Twigg v. Hospital Dist. of Hardee County, Fla., 731 F.Supp. 469 (M.D. Fla. 1990) (The court dismissed any claims "insofar as plaintiffs may be attempting to file a separate cause of action for psychic trauma alone." Id., at 472. The court provided no further analysis on the subject, however, because plaintiffs asserted that they were not seeking compensation for psychic trauma alone but as damages appended to other claims, and those claims were allowed to go forward.); De Leon Lopez v. Corporacion Insular de Seguros, 931 F.2d 116 (1st Cir. 1991) (The court allowed a grandfather to recover for his emotional damages resulting from one of his twin granddaughters being switched at birth. However, the defendant did not dispute that under Puerto Rico law the grandfather could bring an action for negligent infliction of emotional distress.).
Appellants have argued for the application of an exception that would modify the restrictions placed on recovery for emotional damages without accompanying physical injury. We have previously shown that we are willing, in very limited circumstances, to overrule what was the common law at the time it was handed down but which has now become outdated. Nulle v. Gillette-Campbell County Joint Powers Fire Bd., 797 P.2d 1171, 1172-73 (Wyo. 1990). However, like the Minnesota Supreme Court, we are not eager to expand the availability of damages for emotional distress. We continue to be concerned about the ramifications of expansion for the same reasons cited above. Nevertheless, our reluctance cannot result in the application of a rule that was not meant to govern this type of situation. Our primary concern is the burden overbroad liability for emotional damages would impose on our court system. See G
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