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Ryan v. Brown5/11/2005
ary judgment on this issue. Id. On rehearing, we reaffirmed our opinion and reiterated that "the focus should be on whether the Cooks allege emotional injuries that are `serious in nature and of a kind and extent normally expected to occur in a reasonable person' under the circumstances, not whether any physical impact occurred." Delta Airlines v. Cook, 821 N.E.2d 400, 403 (Ind. Ct. App. 2005).
Here, as in Blackwell and Cook, Kevin was directly involved in Tonia's miscarriage and the death of his son Ray. Kevin is Tonia's husband and the father of Ray. Kevin was with Tonia when Dr. Brown advised her to admit herself to DCMH. Kevin helped Tonia get admitted to DCMH. Kevin later had to leave work and go to DCMH where Dr. Brown told him that Ray had died. Kevin then had to tell Tonia that Ray was dead. Kevin was present when Dr. Brown unsuccessfully tried to induce labor. Kevin witnessed Tonia's physical condition deteriorating and was aware that she was beginning to suffer from HELLP Syndrome. Kevin rode with Tonia in an ambulance when she was transferred to Methodist Hospital. Kevin was present when Ray was delivered and he was given the chance to hold Ray.
Furthermore, although Kevin has not suffered a physical impact, he has alleged serious emotional trauma and it is of a kind that a reasonable person would be expected to experience under the circumstances. We are satisfied that the evidence designated to the trial court here is such that the alleged emotional distress suffered by Kevin is not likely speculative, exaggerated, fictitious, or unforeseeable. Therefore, the trial court erred in granting Dr. Brown and DCMH's motions for summary judgment with regard to Kevin's negligent infliction of emotional distress claim because Kevin can satisfy the "bystander" rule and because he has alleged serious emotional trauma that is of a kind and extent normally expected to occur in a reasonable person under similar circumstances.
Conclusion
The trial court properly granted Dr. Brown and DCMH's motions for partial summary judgment with regard to the Ryans' wrongful death claim under the Medical Malpractice Act because the Medical Malpractice Act does not create a separate cause of action for the wrongful death of a fetus. The trial court erred in granting summary judgment on Tonia's negligent infliction of emotional distress claim because Tonia can satisfy the modified impact rule enunciated in Shuamber. We also hold that the trial court erred in granting summary judgment on Kevin's negligent infliction of emotional distress claim because Kevin can satisfy the "bystander" rule enunciated in Groves and because he has alleged serious emotional trauma that is of a kind and extent normally expected to occur in a reasonable person under similar circumstances. Therefore, the portion of the trial court's order granting summary judgment on the Ryans' wrongful death claim under the Medical Malpractice Act is affirmed, while the portion of the trial court's order granting summary judgment on Tonia and Kevin's negligent infliction of emotional distress claims is reversed.
Affirmed in part, reversed in part, and remanded for further proceedings.
SHARPNACK, J., and BARNES, J,. concur.
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