A lawyer’s professional conduct can be actionable based upon various theories asserted by a client other than for malpractice, such as breach of fiduciary duty. But what about a claim for negligent infliction of emotional distress (“NIED”) where the emotional distress is caused by “negligently divulge(d) incorrect, emotionally disturbing information,” but ultimately does not harm the client’s case? This author only raises this question because of a recent Pennsylvania Supreme Court case, dealing with medical malpractice, that may prove a harbinger of an eventual “loosening” of this area of the law so that it might be stretched to apply as a basis for lawyer professional liability. Toney v. Chester County Hosp., 36 A.3d 83 (Pa. 2011) (decided December 22, 2011) is a plurality decision only, but its result was to affirm a published Superior Court decision, Toney v. Chester County Hosp., 961 A.2d 192 (Pa.Super. 2008), a six to two en banc holding.

Under Pennsylvania jurisprudence, NIED was recognized in accident cases where the victim was impacted physically, referred to as the “impact rule,” and later where “the victim personally witnessed a tortfeasor physically impact a close relative,” referred to as “bystander liability.” But the tort of NIED has now been recognized in some other jurisdictions in another category—“where an actor has a particular contractual or fiduciary relationship with a victim and it is foreseeable that the actor’s carelessness could cause severe emotional harm to the victim, and that harm occurs…” Under the appropriate circumstances, “a particular contractual or fiduciary relationship” could describe the relationship between a lawyer and client and the “severe carelessness” could be a misstatement made by the lawyer to the client causing emotional distress.

The majority in the Superior Court found that the physical injury impact requirement was satisfied, “so long as the emotional distress caused physical symptoms…” In granting the petition for allowance of appeal, however, the Supreme Court framed the issue as follows: “Whether the Superior Court erred in finding a cause of action for [NIED] exists where emotional distress results from the negligent breach of a contractual or fiduciary duty, absent a physical impact or injury?”

The three participating justices in support of affirming, Baer (who wrote the opinion) Todd and McCaffery, found that such a claim could be based upon “a contractual or fiduciary relationship.” The three participating justices in support of reversal, Chief Justice Castille, Saylor and Eakin, were of the view that adoption of this tort is more appropriately a matter for consideration by the Legislature. What is telling, however, is that the justices in support of affirming would recognize a claim for NIED even without the existence of physical impact as a result of the misstatement. In their view, “the physical impact requirement is a flawed tool to distinguish between true emotional distress deserving recovery and the trivial or fraudulent emotional distress claims that should not result in liability.”

In Toney, defendants either directly or vicariously performed a pelvic ultrasound on plaintiff and her unborn child, which was interpreted and reported to plaintiff as normal. Unfortunately, when the child was born, which occurred while plaintiff was conscious, the child “had several profound physical abnormalities” that plaintiff alleges she was not prepared to see as a result of the negligent misinterpretation of the ultrasound, causing her emotional distress due to shock. The child had no medical malpractice claim to assert because he sustained no harm as a result of the misread ultrasound, i.e., he would have received no different medical treatment if the ultrasound had been correctly interpreted.

If an attempt were made to “stretch” the application of NIED to lawyers acting in their capacity as lawyers, this would not be the first attempt to apply principles of medical professional liability law to legal professional liability. Notwithstanding, the requisite burden for demonstrating such a claim is so great that, to this author, it appears that meeting that burden in the context of an attorney/client relationship would be almost insurmountable. After all, “this implied duty to care for the plaintiff’s emotional well-being must result in severe emotional distress…”

But notwithstanding the apparent “loosening” of the physical impact requirement, remembering that this view was not shared by a majority of the participating justices and therefore not binding precedent, NIED does not appear to be a serious threat to lawyers. The opinion in support of affirming states that “we would hold that NIED is not available in garden-variety ‘breach of contractual or fiduciary duty’ cases, but only in those case where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress.” That does not seem to describe the nature of any misstatement that a lawyer would give to his or her client. On the other hand, although that opinion did not state that it can apply to lawyers, neither did it state to the contrary. Instead, the opinion in support of affirming found it “prudent to leave the legal question of whether a sufficient duty exists to court trial judges to decide on a case-by-case basis…” Notwithstanding, the examples of professions given of where NIED liability could extend include psychologists, mortuaries, “and other situations where the defendants are aware that their assumed duty impliedly includes a duty to care for the emotional well-being of the plaintiff.” Moreover, none of the cases it cites from other jurisdictions involve defendant lawyers. But anything is possible.