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By: Jason Kamp
Claims for negligent infliction of emotional distress are limited by the Impact Rule in Georgia. In a recent attempt to keep the sole exception from swallowing the Impact Rule, the Supreme Court of Georgia may have done exactly what it sought to prevent.
The Impact Rule states: “In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” Lee v. State Farm Mut. Ins. Co. et al., 272 Ga. 583, 584 (2000).
The Impact Rule has one exception for the death of a child:
When, as here, a parent and child sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as the result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child’s suffering and death without regard to whether the emotional trauma arises out of the physical injury to the parent.
Lee v. State Farm Mut. Ins. Co. et al., 272 Ga. 583, 588 (2000).
The Supreme Court of Georgia recently decided a case concerning the exception to the Impact Rule for the death of a child. In Coon v. Med. Ctr., Inc., the plaintiff learned during a routine prenatal examination that her unborn baby no longer had a heartbeat. Coon v. Med. Ctr., Inc., 300 Ga. 722, 723 (2017). After labor was induced, the plaintiff’s stillborn child was mixed up with another stillborn at the hospital. Id. at 724. The hospital then released the wrong remains to the plaintiff and her family, who unknowingly held services and buried the wrong remains as a result. Id. The hospital later realized its mistake and informed the plaintiff. Id. at 725. A claim for negligent infliction of emotional harm under the exception followed.
The Supreme Court of Georgia declined to extend the exception, reasoning, “[the plaintiff] did not suffer any physical impact that resulted in physical injury from the hospital’s negligent mishandling of her stillborn child’s remains, nor did the child suffer any physical impact or injury.” Id. at 734-735.
By focusing on the impact element, the Supreme Court implicitly assumed the answer to a threshold question: whether an unborn child is a child capable of dying under the exception. The court’s reasoning appears to open the exception to all tort cases with a physical impact that results in a failed pregnancy. This could result in a growth in negligent infliction of emotional distress claims in bodily injury and medical malpractice cases.
Before Coon, the exception to the impact rule assumed the dead child had already been born. After Coon, that assumption is either gone or open to question. In its attempt to limit the exception, the Supreme Court of Georgia incidentally expanded it to include a debate on when life begins. At the end of the Coon opinion, the court remarked, “If we do not insist on a workable limiting principle as a prerequisite to recognition of new exceptions to the physical impact rule, the exceptions will soon will soon swallow the rule.” Id. at 735. Unfortunately, Murphy’s Law knows no exceptions.
If you have any questions or would like more information, please contact Jason Kamp at [email protected].