What would you do if your spouse or partner came home from a doctor's appointment and told you he or she had syphilis?
If you are like most people, you would freak out.*
Your partner would get massive amounts of penicillin, and you would get a blood test to see if you had the sexually transmitted disease, too.
And then, the blame would begin. You would accuse your partner of cheating. Your partner would accuse you. Both of you would deny it. Neither of you would believe the other one. Anger, betrayal, disgust, rumors, fear of worse communicable diseases. Divorce or separation, maybe. It would be horrible, and it would likely ruin your relationship, at least for a substantial period of time.
Then, let's say, out of the blue, your partner gets a call from the doctor's office. They made a mistake--no one in your household had ever actually contracted syphilis.
Now what would you do?
If you were like the plaintiff in the landmark legal case Molien v. Kaiser Foundation Hospitals (1980), you would sue.
In this case, Mr. Molien's wife was mistakenly diagnosed and treated for syphilis. She accused Mr. Molien of having an extramarital affair, even though he tested negative for the disease. At the time of the lawsuit, the two had initiated divorce proceedings.
Mr. Molien sued the hospital for "negligently inflicted emotional distress" and "loss of consortium."
A quick aside into legal terminology: Negligently inflicted emotional distress is pretty much what it sounds like. The key here is that, prior to this case, courts had always found that emotional distress needed to be coupled with physical injury for there to be a "cause of action" (basically, something for which you could sue and potentially recover damages).
|Can you sue the internet for|
loss of consortium?
Now back to the case: The trial court ruled that Mr. Molien did not have a cause of action (a valid reason to sue) on either of his allegations--there was no negligently inflicted emotional distress because he was not the patient and was not physically harmed, and there was no loss of consortium for similar reasons.
Mr. Molien appealed the case to the California Supreme Court, who agreed to hear it. In 1980, the Court issued its ruling in four main parts:
1. The alleged wrongdoing by the hospital was directed at both the wife and the husband in this case, even though the husband was not the patient.
2. The "risk of harm to the husband was reasonably foreseeable and, thus, [the hospital] owed the husband a duty to exercise due care in diagnosing the physical condition of his wife."
3. It did not matter that Mr. Molien did not suffer a physical injury. He still had a cause of action for "emotional distress."
4. There was also a cause of action for "loss of consortium."
This case is groundbreaking for two main reasons. First, it reinforced the notion that the spouse or partner of a patient could be considered a "direct victim" of medical negligence, even if that spouse/partner had not been the actual patient. Second, it set the precedent that a direct victim does not need to sustain a physical injury in order to be a victim of negligent infliction of emotional distress.
Thanks for reading-- Max Wachtel, Ph.D.
*This is anecdotal data, not supported by research. But, seriously, wouldn't you freak out?