DICKSON, Justice.
Following the death of their full-term baby daughter in utero during labor, just before childbirth, the plaintiffs Steven Spangler and Heidi Brown brought this action seeking damages for negligent infliction of emotional distress. In the ensuing litigation, the trial court granted summary judgment to St. Vincent Randolph Hospital, to Barbara Bechtel (the nurse-midwife who provided pre-natal care during the mother's pregnancy and managed her labor at the hospital), and to Expectations Women's Health and Childbearing Center ("the Center") (alleged by the plaintiffs to be Bechtel's employer). The Court of Appeals reversed as to all three defendants. Spangler v. Bechtel, 931 N.E.2d 387 (Ind.Ct.App.2010). We granted transfer and now hold that the parents' separate actions seeking damages for emotional distress from experiencing the stillbirth of their child are not barred by the Indiana Child Wrongful Death Act or the Indiana Medical Malpractice Act.
The underlying facts of the case are not in dispute and are provided in detail by the Court of Appeals. Id. at 389-90. Summarized briefly, Heidi Brown was pregnant with a baby girl who was also the child of Steven Spangler. Brown arrived at St. Vincent Randolph Hospital on February 24, 2003, for delivery services because she
The plaintiffs' challenges to the trial court's summary judgment rulings present only legal issues, not factual ones. In reviewing the grant of summary judgment, an appellate court faces the same issues that were before the trial court. Carie v. PSI Energy, Inc., 715 N.E.2d 853, 855 (Ind.1999). "Where ... the dispute is one of law rather than fact, a de novo standard of review applies." Wilson v. Isaacs, 929 N.E.2d 200, 202-03 (Ind.2010).
The nurse-midwife, Bechtel, and her alleged employer, the Center, jointly sought summary judgment on grounds that the plaintiffs' claims for negligent infliction of emotional distress are governed by the Indiana Child Wrongful Death Act ("the CWDA"), Ind.Code § 34-23-2-1, under which a claim for the wrongful death of an unborn child was not cognizable at the time of the death of the plaintiffs' child in this case. In granting the motion, the trial court concluded: (a) that the plaintiffs' claims for emotional distress could not proceed under the CWDA because they were based on the death of an unborn child, which was not a "child" for the purposes of the CWDA; (b) that the plaintiffs did not have valid claims for negligent infliction of emotional distress because they do not identify any negligently-inflicted injuries on another as required under the modified impact rule nor did they sustain a direct impact or demonstrate sufficient "direct involvement." Findings of Fact, Conclusions of Law and Judgment, Appellants' App'x at 15-24.
As of the date of the unborn child's death and subsequent stillbirth, February 24, 2003, Indiana law precluded any claim for damages under the CWDA. Bolin v. Wingert, 764 N.E.2d 201, 207 (Ind.2002) (holding that an eight- to ten-week-old fetus does not satisfy the definition of "child" under the CWDA and that "only children born alive fall under the [CWDA]").
Supporting their motion for summary judgment in the trial court, Bechtel and the Center argued that the emotional distress claims are governed by the CWDA because they are not qualified providers under the MMA and because the plaintiffs' claims for emotional distress are "tantamount to a claim for the loss of love and affection provided for under the CWDA." Appellants' App'x at 234-35. These defendants argue on appeal that the CWDA governs because the plaintiffs' emotional distress claims necessarily arise from the death of their fetus and should not be treated as separate torts.
The logic of this argument is dubious. On one hand, these defendants argue that the parents' emotional distress claims must be interpreted under the CWDA because it is "the vehicle for recovery following the death of a child," Appellees Bechtel's and the Center's Br. at 8, but, on the other hand, they assert that such claims must then fail because this unborn child was not in fact a "child" under the CWDA. Id. at 11-12. To the contrary, that the CWDA provides no remedy for wrongful death damages for the death of an unborn child does not preclude the availability of a separate action for damages founded on a basis other than wrongful death.
Significantly, while Bolin did not allow an action under the CWDA for wrongful death of an unborn child, it nevertheless expressly permitted the mother to "claim damages to compensate her for her miscarriage" resulting from a traffic accident where the mother's vehicle was struck from behind by the defendant's vehicle. 764 N.E.2d at 203, 207-08. Noting with emphasis this aspect of Bolin, the Court of Appeals has interpreted Bolin to allow actions for emotional distress brought by mothers who suffer a miscarriage notwithstanding the CWDA. Ryan v. Brown, 827 N.E.2d 112, 118 (Ind.Ct.App.2005) (permitting mother of stillborn child to pursue separate action for negligent infliction of emotional distress while prohibiting action for wrongful death of unborn child), trans. not sought; Breece v. Lugo, 800 N.E.2d 224, 229-30 (Ind.Ct.App.2003) (holding that Bolin does not prohibit a mother from pursuing an action for the negligent infliction of emotional distress related to the in utero death of her unborn child), reh'g denied, trans. denied; see also Ind. Patient's Comp. Fund v. Winkle, 863 N.E.2d 1, 9 (Ind.Ct.App.2007) (noting that parents "may recover all emotional damages that were suffered as a result of the miscarriage" but holding that such damages are limited to the mother's damage cap under the MMA), trans. denied. We agree with the Court of Appeals' reading of Bolin.
On transfer, Bechtel and the Center argue that their position is supported by our recent decision in Ind. Patient's Comp. Fund v. Patrick, 929 N.E.2d 190 (Ind. 2010), which was issued by this Court after the decision of the Court of Appeals in the
Patrick does not stand for the proposition urged by Bechtel and the Center. The issue presented in Patrick was whether the MMA provided an alternative possibility for recovering emotional distress damages as a derivative claim under the MMA, assuming that emotional distress damages were precluded under the AWDA. The plaintiff's action in Patrick was brought under the AWDA, not as a separate claim for negligent infliction of emotional distress. We stated: "Though Father recognizes that he does not have a claim for emotional distress under the [AWDA], and he is correct to do so, he contends that he was entitled to bring a claim for his own emotional distress under the MMA." 929 N.E.2d at 192. The issue of whether the AWDA might preclude emotional distress damages claims related to the death of a covered adult was conceded by the plaintiff in Patrick. Our "correct to do so" observation was nothing more than a comment particular to the facts and issues in the Patrick case and was not a statement of law applicable in all situations. Of particular significance to the present case is the fact that Patrick concluded with an express recognition that the MMA would allow those claims "for which damages for emotional distress are available" and cited Ryan and Breece (stillbirth cases noted above) among such cases that permitted damage claims for emotional distress. Id. at 194. This implicit approval of Ryan and Breece is instructive. Thus, Patrick does not preclude the possibility of a separate claim, outside the wrongful death statutes, for negligent infliction of emotional distress by a parent suffering a miscarriage or full-term stillbirth.
We hold that parents who have suffered a stillbirth of their child are not precluded by the CWDA from seeking emotional distress damages in a negligence action.
Apart from the CWDA, the trial court's summary judgment for Bechtel and the Center was also based on the court's belief that the plaintiffs may not bring an action for the tort of negligent infliction of emotional distress because the evidence failed to establish (a) that the alleged emotional distress was caused by negligently-inflicted injuries on another and (b) that either plaintiff sustained a direct impact or had sufficient "direct involvement" with the injury-causing event. Findings of Fact, Conclusions of Law and Judgment, Appellants' App'x at 21, 23. The trial court's ruling is based upon its understanding of our decision in Shuamber v. Henderson, 579 N.E.2d 452 (Ind.1991) and its progeny.
Actions for emotional distress were originally limited by the impact rule, which required: "(1) an impact on the plaintiff; (2) that causes physical injury to the plaintiff; (3) that in turn causes the emotional distress." Alexander v. Scheid, 726 N.E.2d 272, 283 (Ind.2000) (explaining the genesis of the impact rule). This Court adhered to the impact rule for many years in part because of a concern that, if recovery for emotional injuries unrelated to physical injuries were allowed, the courts would be inundated with potentially fraudulent emotional distress claims. Shuamber, 579 N.E.2d at 455. At the heart of the resistance to such claims was a belief that "absent physical injury, mental anguish is speculative, subject to exaggeration, likely to lead to fictitious claims, and often so unforeseeable that there is no rational basis for awarding damages." Cullison v. Medley, 570 N.E.2d 27, 29 (Ind.1991). In Shuamber, the plaintiffs, a mother and her daughter, were involved in an automobile accident which resulted in the death of another passenger in their vehicle, their son/brother. 579 N.E.2d at 453. Both mother and sister brought an action for damages against the other driver for emotional distress resulting from the loss of their son/brother, and not for emotional distress resulting from their own injuries sustained in the accident. Id. Under the impact rule, such actions would have been barred because the rule only allowed recovery of emotional damages caused by the plaintiff's physical injuries. Id. at 454. Because we concluded that "the rationale for [the impact rule], whatever its historical foundation, is no longer valid," id. at 455 (quoting Cullison, 570 N.E.2d at 30), we relaxed the requirements of the impact rule. We held that claims for emotional damages could be brought by a plaintiff who "sustains a direct impact by the negligence of another and, by virtue of that direct involvement[,] sustains an emotional trauma which is serious in nature and of a kind and extent normally expected to occur in a reasonable person." Id. at 456. Thus, we eliminated the second element of the traditional impact rule—the requirement of a physical injury to the plaintiff—in favor of broader recovery for emotional damages. This revised rule is generally referred to as the modified impact rule. Conder v. Wood, 716 N.E.2d 432, 434 (Ind.1999).
We clarified the modified impact rule in Conder where we held that an impact need not rise to the level of a physical injury. 716 N.E.2d at 434. The plaintiff in that case brought an action to recover emotional damages suffered when the plaintiff witnessed a coworker, who was walking next to the plaintiff, being struck and killed by a passing truck. Id. at 433. As the truck was running over her coworker, the plaintiff pounded on the side of the truck as it passed to catch the attention of the driver. Id. We found the impact requirement satisfied by the plaintiff's pounding, id. at 435, noting that an impact need not be initiated by the tortfeasor. Id. at n. 3. This Court explained: "The modified impact rule maintains the requirement of a direct physical impact. However, the impact need not cause a physical injury to the plaintiff and the emotional trauma suffered by the plaintiff need not result from a physical injury caused by the impact." Id. at 434. We held that "`direct impact' is properly understood as the requisite measure of `direct involvement' in the incident giving rise to the emotional trauma." Id. at 435. In Ross v. Cheema, a companion case announced the same day as Conder, we emphasized that, even though the modified impact rule removed the physical injury requirement, "direct impact is properly understood as being `physical' in nature."
We further expanded recovery for emotional injuries in Groves v. Taylor to include certain closely related bystanders to negligent conduct. 729 N.E.2d 569, 573 (Ind.2000). There, we allowed a claim for emotional distress damages sustained by an eight-year-old plaintiff who "heard the loud `pop' of a vehicle fatally striking her [six-year-old] brother and turned to observe his body as it rolled off the highway." Id. at 571. Reviewing the Shuamber rule and its progeny, we observed:
Id. at 572. Applying this analysis more precisely to claims by bystanders, we held:
Id. at 573. Finding that the injury suffered by the plaintiff's brother was fatal and that the plaintiff witnessed her brother's body rolling off the highway, we vacated summary judgment and permitted the plaintiff's action for emotional distress to continue. Id. at 573. Thus, "in order to recover damages for the negligent infliction [of] emotional distress, a plaintiff must satisfy either the modified impact rule or the bystander rule." Atl. Coast Airlines v. Cook, 857 N.E.2d 989, 998 (Ind.2006).
First, as to the trial court's contention that the modified impact rule limits a plaintiff's recovery of emotional damages to situations where an injury was negligently-inflicted on another person, we do not agree. It is correct that a plaintiff, to recover emotional damages under the bystander rule, must prove that another person suffered a negligently-inflicted "death or severe injury." See Groves, 729 N.E.2d at 573 (holding that a bystander may only recover for negligent infliction of emotional distress if the bystander witnessed or came to the scene soon after the "death or severe injury of a loved one [(injury to another)] ... caused by the defendant's negligent or otherwise tortious conduct [(negligently-inflicted)]"). In contrast, however, the same is not required for emotional distress claims brought under the modified impact rule, where we have permitted recovery so long as the plaintiff personally sustained a physical impact, in addition to emotional distress damages. See Bader v. Johnson, 732 N.E.2d 1212, 1215, 1222 (Ind.2000) (holding that plaintiff-mother could assert a claim for negligent infliction of emotional distress where the only injury was the mother's lost "opportunity to terminate the pregnancy" caused by her doctor's "failure to inform" her of a potential birth defect in the child); Alexander, 726 N.E.2d at 283-84 (holding that the plaintiff could seek damages for negligent infliction of emotional distress against a doctor, who failed to diagnose lung cancer during a routine x-ray, despite the fact that the plaintiff was the only person who had suffered an injury); see also Ross, 716 N.E.2d at 437 (dismissing plaintiff's claim for negligent infliction of emotional distress because the plaintiff "did not sustain the direct `physical' impact necessary" and not because the plaintiff was the only person who could have potentially sustained a negligently-inflicted injury). An action seeking emotional distress damages, if predicated not on the bystander rule but on the modified impact rule, does not require the negligent infliction of injury on a person other than the plaintiff. This application of the direct impact requirement, consistent with Conder, serves to sift legitimate claims of emotional harm from the spurious. 716 N.E.2d at 435; see also Groves, 729 N.E.2d at 572 ("The value of requiring `direct impact' is that it provides clear and unambiguous evidence that the plaintiff was so directly involved in the incident giving rise to the emotional trauma that it is unlikely that the claim is merely spurious."). This purpose does not necessitate limiting recovery for emotional damages only to circumstances where someone other than the plaintiff has suffered a negligently-inflicted injury.
Second, we also disagree with the trial court's conclusion that the plaintiffs cannot identify any negligently-inflicted injuries. Here the plaintiffs' child died in utero as a result of the allegedly negligent care provided by the defendants during Brown's labor. Negligence consists of
It was thus incorrect to grant summary judgment in favor of Bechtel and the Center. The plaintiffs are not precluded from maintaining an action seeking emotional distress damages under the bystander rule.
In support of its motion for summary judgment, the hospital has presented three contentions to the trial court. First, it asserts: (a) because neither of the parents suffered physical injury and their claim is only for emotional injuries, such claim may only be asserted under the Indiana Medical Malpractice Act as one derivative of an injury to a patient covered by the MMA; (b) an unborn child is not a "patient" under the MMA; and (c) the parents thus may not bring any such derivative medical malpractice action under the MMA. Appellants' App'x at 354-60. Second, the hospital alleges that it was neither liable for any failures in the manner in which Bechtel was supervised nor vicariously liable for her actions. Id. at 360-61. And third, the hospital asserts that the plaintiffs' negligent credentialing claim is barred because such claim was not specifically submitted to a medical review panel under the MMA. Id. at 361.
The trial court granted the hospital's motion for summary judgment on a single basis, finding "there is no material issue of fact that the Plaintiffs' claim for wrongful death of a fetus is precluded by Indiana law." Appellants' App'x at 26. The ruling did not otherwise address the hospital's summary judgment claims regarding supervisory or vicarious liability or whether the medical review panel considered the negligent credentialing claim. We thus understand the trial court to have concluded that all of the plaintiffs' theories of liability against the hospital were foreclosed only because the court concluded that the MMA generally does not allow actions for emotional injuries to parents resulting from the in utero death of their child because such a child is not a "patient" under the MMA. The hospital makes no claim on appeal that the trial court's ruling was a separate adjudication of the hospital's assertions regarding supervisory or vicarious liability or the panel's review of the negligent credentialing claim. As to the hospital, the sole issue on appeal is thus whether an emotional distress claim may be brought under the Medical Malpractice Act by parents alleging that the stillbirth of their child was caused by medical negligence.
As to this issue, the hospital argues that the plaintiffs' claims for negligent infliction of emotional distress are "derivative" of the injuries sustained by the unborn child, that a fetus not born alive should not be considered a "patient" under the MMA, and that the plaintiffs' claims are thus barred under the MMA because "there must be a patient from whom such a claim must derive." Appellee Hospital's Br. at 9-10.
The MMA "does not create new causes of action that otherwise do not exist." Patrick, 929 N.E.2d at 194. The MMA simply requires that "claims for medical malpractice that are otherwise
929 N.E.2d at 194. It is clear, therefore, that Patrick does not preclude the possibility of a separate claim outside the wrongful death statutes for negligent infliction of emotional distress by a parent suffering a miscarriage or full-term stillbirth.
The hospital also argues that its position is supported by Ind. Patient's Comp. Fund v. Winkle, 863 N.E.2d 1 (Ind.Ct.App. 2007), trans. denied. Appellee Hospital's Br. at 15. The hospital contends that Winkle "stands for the principle" that parents such as the plaintiffs here "are barred from pursuit of derivative claims arising from their stillborn fetus's death because a stillborn fetus is not a patient under the [MMA]." Id. at 12.
In Winkle, decided three years before our opinion in Patrick, the Court of Appeals confronted a medical malpractice action in which the mother developed a severe nutritional deficiency disorder during her pregnancy that resulted in a miscarriage at seventeen weeks. 863 N.E.2d at 3. The trial court awarded separate damages for each of three alleged separate injuries: (a) the mother's Wernicke's encephalopathy, a degenerative brain disorder caused by lack of thiamine; (b) the mother's emotional distress due to the loss of the child; and (c) the father's emotional distress due to the loss of the child. Id. at 4. On appeal, the Fund conceded that the parents may seek damages under the MMA for their emotional distress under the impact test and bystander rule but contended that all the parents' claims were subject to the single statutory damage cap applicable to the mother. Id. at 5. The primary issue in Winkle was whether the MMA provided three separate caps—one for the mother's direct injury and two others for the mother's and the father's claims for negligent infliction of emotional distress for the death of their child. The court interpreted the damage cap language of the MMA, Ind.Code § 34-18-14-3(a), to
To determine whether the plaintiffs' claims were controlled by a single or multiple caps under the MMA, the Winkle court examined the MMA damage cap provision that states, "The total amount recoverable for an injury or death of a patient may not exceed the following...." Ind.Code § 34-18-14-3(a) (emphasis added). The word "patient" is defined in the MMA as follows:
Winkle, 863 N.E.2d at 6 (some emphasis added) (quoting Ind.Code § 34-18-2-22). While opining that the negligent infliction of emotional distress is an "independent tort," the court believed that the parents' claims for negligent infliction of emotional distress, "suffered because of their unborn child's death," when made under the MMA, nevertheless "constitute `derivative claims' as defined in Indiana Code section 34-18-2-22[, the MMA's definition of `patient']." Id. at 6-8. Believing that as "derivative" claims, they had to derive from a separate cognizable claim of the actual victim of the malpractice (here, the unborn child), the Winkle court then imported into the MMA the rationale of Bolin excluding from the Child Wrongful Death Act claims for the death of a child not born alive. Id. at 8-9. The court concluded: "Because the Winkles' unborn child is not a `patient' pursuant to the [MMA] and because [they] therefore have no one from whom their negligent infliction of emotional distress claims can derive, they are not entitled to separate statutory caps for the emotional damages." Id. at 11. The hospital urges application of this rationale in the present case. Because claims for negligent infliction of emotional distress need not be viewed as "derivative claims," we disagree.
As discussed above in Part 1-B, Indiana law recognizes that parents may seek damages for emotional distress in negligence actions either under the modified impact rule if plaintiff suffered physical injury or under the bystander rule. Such claims, however, are not necessarily "derivative" actions seeking damages associated with the personal injury or wrongful death of another, such as direct pecuniary losses (e.g., medical costs, funeral expenses, and loss of income) or non-pecuniary losses (e.g., loss of consortium, loss of love and affection, etc.). Rather, such claims of emotional distress represent injuries directly inflicted on a plaintiff and are not derivative in the traditional sense. The definition of "patient" is much broader than the "and other similar claims" language included in the description of derivative claims relied on by the Winkle court. The definition begins by providing that "patient" includes "a person having a claim of any kind, whether derivative or otherwise, as a result of alleged malpractice on the part of a health care provider." Ind.Code § 34-18-2-22 (emphasis added). It is this language that assures the expansive
Accordingly, we reject the hospital's summary judgment request that the plaintiffs' be precluded from asserting MMA claims for negligent infliction of emotional distress because their unborn child should not be considered a "patient" under the MMA. To the contrary, the parents' claims for emotional distress damages from experiencing the stillbirth of their child as a result of alleged medical malpractice are separate valid actions. Acknowledging that the hospital provided medical care to both the unborn child and the mother, the plaintiffs do not dispute that their action against the hospital is governed by the MMA. The plaintiffs' actions seeking damages for emotional distress resulting from alleged medical negligence are not precluded under the MMA.
The judgment of the trial court granting summary judgment in favor of Barbara Bechtel, Expectations Women's Health and Childbearing Center, and St. Vincent Randolph Hospital is reversed. This cause is remanded for further proceedings.
SHEPARD, C.J., and SULLIVAN, RUCKER, and DAVID, JJ., concur.
