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12/09/87 Sharon Robbins Et Al., v. Martin Kass Et Al.

December 9, 1987

SHARON ROBBINS ET AL., PLAINTIFFS-APPELLANTS

v.

MARTIN KASS ET AL., DEFENDANTS-APPELLEES

AS RECOGNIZED BY THE MAJORITY IN LEWIS

v.

WESTINGHOUSE ELECTRIC CORP. (1985), 139 ILL. APP. 3D 634, 637-38, THERE IS NO LONGER A NEED TO DISTINGUISH BETWEEN WHETHER A PLAINTIFF IS A DIRECT VICTIM OR A BYSTANDER.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

516 N.E.2d 1023, 163 Ill. App. 3d 927, 114 Ill. Dec. 868 1987.IL.1815

Appeal from the Circuit Court of Lake County; the Hon. Charles F. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. HOPF and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

In their fourth amended complaint, plaintiffs Sharon Robbins and Joel Robbins, individually and as special administrator of the estate of Baby Robbins, sought damages from defendants, Highland Park Hospital, Dr. Kass and Dr. Loeff, for the negligent infliction of emotional distress and the wrongful death of their stillborn baby. Highland Park Hospital moved for summary judgment and was subsequently joined by Drs. Kass and Loeff. After a hearing on the summary judgment motions, the trial court ruled in favor of defendants on all counts. On appeal, plaintiffs contend the trial court erred in applying the zone-of-physical-danger rule adopted in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546.

The pleadings and depositions filed in support of defendants' summary judgment motions reveal the following. In July 1983, Sharon Robbins experienced bleeding problems associated with her pregnancy. Sharon contacted Dr. Loeff and remained under his care throughout the pregnancy. When the bleeding persisted, Sharon was advised by Dr. Loeff that the chances of the baby's surviving were slim. On September 10, Sharon felt contractions and proceeded with her husband, Joel, and a friend, Pam Spritz, to Highland Park Hospital. At the hospital, Dr. Loeff's partner, Dr. Kass, visited with the Robbinses for approximately 10 minutes. He discussed transferring Sharon to a hospital equipped with a neonatal center in order to increase the chances of the baby's survival. A short time later, Dr. Kass advised the Robbinses the neonatal units of the other hospitals would not accept them because the pregnancy was not far enough along. Thereafter, a nurse checked on Sharon and then left the room. Some 20 minutes later, Sharon felt the baby coming. Joel went out into the hallway on several occasions in an effort to obtain assistance. No one responded, and the stillbirth occurred in the presence of Joel and Pam Spritz. Five to ten minutes later, Dr. Parsavand arrived, delivered the placenta, and removed the stillborn baby from between Sharon's legs.

Dr. Kass had left the hospital before the delivery. Some time after the delivery Dr. Loeff arrived. Dr. Loeff told the Robbinses they should have had assistance, although it probably would not have made a difference. Sharon remained in the hospital for three days. Other than the loss of blood, she suffered no other physical problems after the birth of the baby. Sharon did not seek medical treatment for any resulting emotional pain or distress. However, she constantly thought about the incident, she cried on numerous occasions as a result of the incident, and her migraine headaches increased in frequency from one every three or four months to one every month. Joel added that Sharon experienced sleeplessness and became upset when she saw pregnant women. Joel experienced bouts of crying and aggravation of a stomach disorder following the incident. Joel explained the incident affected his "state of mind" more than his physical well-being.

Plaintiffs' expert, Dr. John Masterson, stated in deposition that the nursing staff deviated from the normal standard of care by failing to provide indicated care to Sharon Robbins during her stay in the maternity ward and by failing to monitor or respond to requests for assistance. Dr. Masterson was critical of Dr. Kass' departure from the hospital on account of the possibility that emergency surgery might have been required, and Dr. Kass' failure to see that a blood transfusion was implemented. Dr. Masterson also criticized Dr. Loeff for not being present and for failing to provide an adequate backup doctor. Despite these deviations, Masterson admitted the baby would not have survived even if a physician had been present and proper care had been administered. Masterson added that no physical harm resulted to Sharon as a result of the conduct of the hospital and treating physicians.

In its written order ruling in favor of defendants, the trial court specifically found the physical manifestations suffered by Sharon and Joel Robbins were insufficient to satisfy the physical injury or illness requirement of the zone-of-physical-danger rule adopted in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546.

Plaintiffs first contend the trial court erred in applying Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, because the plaintiffs were not bystanders, as was the plaintiff in Rickey ; rather, they were direct victims of the negligent acts. This identical argument was raised and rejected in Courtney v. St. Joseph Hospital (1986), 149 Ill. App. 3d 397. The court stated:

"Notwithstanding the supreme court's reference to the plaintiff in Rickey as a 'bystander,' it has been correctly observed that 'the nature of the zone-of-physical-danger rule is such that it allows recovery only to direct victims of negligence, because recovery must be predicated on a reasonable fear for one's own safety.' [Citation.] Under the zone-of-physical-danger standard, the proper focus is on whether plaintiff was in proximity to the danger, not whether he witnessed an accident to a third person. [Citation.] Accordingly, we reject plaintiff's argument that the requirements for recovery under Rickey do not apply to direct victims of negligence." (Courtney, 149 Ill. App. 3d at 402-03.)

In addition to the appellate court decisions mentioned, the supreme court's recent decision in Siemieniec v. Lutheran General Hospital (1987), 117 Ill. 2d 230, seems to foreclose plaintiffs' assertion. The Siemieniecs sought, inter alia, damages for the emotional distress they suffered as a consequence of the "wrongful birth" of their hemophilic son. A misdiagnosis by the Siemieniecs' doctor regarding their chances of bearing a hemophilic child was the basis for the claims advanced. In resolving the Siemieniecs' claim for damages for their emotional distress, the supreme court addressed the issue in terms of the right of a "plaintiff" to recover for negligently inflicted emotional distress. After commenting that it had recently reexamined its position with regard to recovery for emotional distress and thereafter setting out the rule adopted in Rickey, the court stated:

"Thus, under the holding of Rickey, before a plaintiff can recover for negligently caused emotional distress, he must have, himself, been endangered by the negligence, and he must have suffered physical injury or illness as a result of the emotional distress ...


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