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Chizmar v. Mackie (4/28/95) sp-4191
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
THE SUPREME COURT OF THE STATE OF ALASKA
SAVITRI CHIZMAR, individually,)
) Supreme Court Nos.
and ) S-5232/S-5278
SAVITRI CHIZMAR, as the ) Superior Court Nos.
natural parent of minors ) 3AN-89-7746 CI/3AN-91-534 CI
CYNTHIA MARIE CHIZMAR and ) 3AN-91-1264 CI/3AN-91-1310 CI
DESIREE MICHELLE CHIZMAR, )
) O P I N I O N
) [No. 4191 - April 28, 1995)
SCOTT P. MACKIE, M.D., )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Karl S. Johnstone, Judge.
Appearances: C. R. Kennelly, Stepovich
Kennelly & Stepovich P.C., Anchorage, for
Appellant Savitri Chizmar, Individually.
Daniel W. Hickey, Gruenstein, Hickey &
Stewart, Anchorage, for Appellant Savitri
Chizmar, as the natural parent of minors
Cynthia Marie Chizmar and Desiree Michelle
Chizmar. Susan Orlansky, Howard A. Lazar and
Timothy J. Lamb, Delaney, Wiles, Hayes,
Reitman & Brubaker, Inc., Anchorage, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices.
[Eastaugh, Justice, not participating].
MOORE, Chief Justice.
In this case, Savitri Chizmar, individually and on
behalf of her children, filed suit against Dr. Scott Mackie for
damages arising from an allegedly negligent misdiagnosis of AIDS.
In addition to her claim that the misdiagnosis itself was
negligent, she asserts that Dr. Mackie violated the appropriate
standard of care by failing to acquire her consent for the HIV
test, as well as by informing her husband of the results of the
test without her authorization. She seeks damages for her
emotional distress resulting from the doctor's actions. She also
seeks recovery for economic loss resulting from her divorce,
which she claims was occasioned by Dr. Mackie's conduct. In
addition, she argues that punitive damages against Dr. Mackie are
appropriate. Finally, on behalf of her children, she seeks
damages for loss of consortium.
At trial, the superior court directed a verdict against
Savitri on the following grounds. First, the court concluded
that there was insufficient evidence to warrant presenting the
loss of consortium claim to the jury. The court further held
that emotional distress damages arising from negligent conduct
are not recoverable unless accompanied by physical injury.
Finally, the court determined that economic losses resulting from
divorce are not recoverable and that Savitri had failed to
establish that Dr. Mackie's conduct was sufficiently outrageous
to support claims for either punitive damages or intentional
infliction of emotional distress.
We reverse the superior court's conclusion that
physical injury is required to support a negligent infliction of
emotional distress claim. We also reverse the superior court's
directed verdict in favor of Dr. Mackie on the children's claim
for loss of consortium and, accordingly, vacate the attorney's
fee award against the children. We affirm the remainder of the
trial court's holdings.
II. FACTS AND PROCEEDINGS
Savitri Chizmar, a native of Trinidad and Tobago, has
lived in the United States since 1980. At the time of the events
leading to this action, she was married to Matthew Chizmar.
There were two children of this marriage, aged five and seven at
the time of the events in question.
In February 1989 Savitri was admitted to Providence
Hospital, suffering from pneumonia and gastritis. Dr. Scott
Mackie was the admitting physician. Upon her admission, Matthew
signed the hospital's standard admission consent form on his
wife's behalf, because she was "too sick" for the paperwork.
This form states that the patient consents to procedures that may
be performed during hospitalization, including laboratory
While at Providence, Dr. Mackie ordered that a battery
of laboratory tests be run on Savitri's blood. As part of this
testing, Savitri was tested for HIV/AIDS, using the HIV ELISA
screen. Dr. Mackie's basis for ordering the HIV test was
Savitri's unexplained and unresolved pneumonia and Dr. Mackie's
belief that she was from an island near Haiti. Dr. Mackie did
not ask questions of Savitri to clarify whether she was in a high-
risk group for AIDS. Dr. Mackie also did not discuss with
Savitri the specific tests that were being run and did not inform
Savitri that he was testing her for AIDS.
Savitri's initial HIV ELISA screen was found to be
"repeatedly reactive." The report stated that confirmatory tests
were being performed and that "[n]o interpretation of the
patient's HIV antibody status is possible until the confirmatory
assay has been completed." Dr. Mackie believed that this result
meant that Savitri had tested positive for the HIV virus. Dr.
Mackie felt that it was necessary to advise Savitri of the result
Initially, however, he did not inform Savitri of his
conclusion. Instead, he decided to ask her husband to help break
the news to her. This decision, he argues, was based on his
conclusion that involving the husband would make it easier on
Savitri, since her husband clearly knew her better and would be
better at communicating with her.1 He thereafter contacted
Matthew and, according to Matthew and Dr. Mackie's own deposition
testimony,2 informed him that his wife had tested positive for
AIDS based on the HIV ELISA screen. At trial, however, Dr.
Mackie recalled that he informed Matthew only of a positive test
result for HIV that needed to be repeated and further evaluated.
Several days after Matthew and Dr. Mackie informed
Savitri of the test result, Dr. Janis, an HIV specialist,
examined and interviewed Savitri. Again, there is a conflict as
to the substance of this conversation. Dr. Janis concluded that
the test result was most likely a "false positive"and testified
that he was confident that he had so informed Savitri. However,
Savitri testified that she did not recall hearing the term "false
positive." Matthew testified that he may have heard the term
from Dr. Janis. Dr. Mackie also testified that, prior to
Savitri's discharge, he informed her that the test was probably a
"false positive"and that she would need to be retested to make
Savitri left the hospital on the day she was informed
of the test result. From that point forward, she and her husband
experienced a severe escalation of what had been periodic
domestic problems and violence. They fought regularly and, on at
least one occasion, Matthew allegedly beat Savitri. The fighting
further escalated after Matthew tested negative for HIV.
Three weeks after her discharge, Savitri and her
husband reviewed her medical records. Included within these
records was the discharge summary, which expressly stated "False
positive HIV test." The records also included a notation from
Dr. Janis concluding that it was likely that the HIV test was a
false positive test. Subsequently, in April, a retest
established that Savitri did not have AIDS.
Matthew left the marital home in May 1989 and filed for
divorce in June, two months after Savitri received the final test
result establishing that she did not have AIDS. The divorce
became final in March 1990. After the divorce, Matthew moved to
Savitri, individually and on behalf of her children,
filed suit against Dr. Mackie. In her personal action, she
alleged that Dr. Mackie did not have Savitri's informed consent
to conduct the initial HIV/AIDS test. She also alleged that Dr.
Mackie breached his duty of confidentiality owed to Savitri by
informing her husband of the test results. The complaint
asserted that, as a result of Dr. Mackie's negligence and breach
of duty, she suffered damages, including severe emotional
distress. Savitri later amended her complaint to encompass Dr.
Mackie's allegedly negligent misdiagnosis of AIDS.
In her suit on behalf of her children, Savitri alleged,
among other things, that as a result of the above acts by Dr.
Mackie, the children
suffered  the loss of the continuing
love, affection, presence and advice of their
father in the household,  the loss of the
environment in which they have lived,  the
resultant strain between them and their
mother that continues to this time . . ., and
 severe physical and emotional damage,
causing them to be confused, uncertain, and
at times unhappy, bitter and upset, and in
need of professional counseling and help.
In his answer, Dr. Mackie admitted that the initial HIV
test was performed without specific consent and that he informed
Matthew of the test results.
In September 1991, the superior court, Judge Hunt,
entered partial summary judgment in favor of Savitri on the issue
of Dr. Mackie's breach of the duty of confidentiality. However,
the court concluded that questions of fact remained as to whether
Dr. Mackie's breach was justified.
Subsequently, the superior court, Judge Johnstone,
granted partial summary judgment to Dr. Mackie, finding that no
duty was owed to the children under a negligent infliction of
emotional distress claim. The court further held that the
children could not recover pecuniary losses or punitive damages
and were limited to loss of consortium damages.
Following trial, the court granted a directed verdict
for Dr. Mackie. With respect to the children's claims, the court
held that "there is insufficient evidence to go to the jury on
whether or not either Mrs. Chizmar or Mr. Chizmar were either
emotionally or physically disabled in such a way . . . to prevent
them from giving the consortium . . . that parents normally give
to their children."
With respect to Savitri's individual claims, the court
concluded that economic loss as a result of divorce is not
recoverable and that "in the absence of any physical injury,
[Savitri's] losses for claimed emotional damage should not be
permitted for legal and public policy reasons." The court feared
that allowance of such claims could open a "floodgate" for
claims of any misdiagnosis. The court further held that there
was insufficient evidence for the jury to conclude that Dr.
Mackie had acted with malice or evil intent or that he had an
ulterior motive. Thus, the court dismissed Savitri's claim for
intentional infliction of emotional distress and for punitive
Savitri now appeals, both individually and on behalf of
A. Standard of Review
In reviewing motions for a directed verdict, this court
must "determine whether the evidence, when viewed in the light
most favorable to the non-moving party, is such that reasonable
minds could not differ in their judgment." City of Whittier v.
Whittier Fuel & Marine Corp., 577 P.2d 216, 220 (Alaska 1978)
(citations omitted). We are not to weigh conflicting evidence or
judge the credibility of witnesses; "if there is room for
diversity of opinion among reasonable people, the question is one
for the jury." Id.
With respect to questions of law, this court applies
its independent judgment and will adopt the rule that is most
persuasive in light of precedent, reason, and policy. Guin v.
Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
B. Damages for Emotional Distress
1. Damages for emotional distress for
misdiagnosis of AIDS in absence of physical injury
At trial, the superior court granted a directed verdict
against Savitri in part on the ground that damages for emotional
distress are unrecoverable where the plaintiff has failed to
allege any accompanying physical injury. The court stated:
While a misdiagnosis of AIDS may be
negligent, in the absence of physical injury,
the losses for claimed emotional damage
should not be permitted for legal and public
policy reasons. . . . [T]here is
insufficient evidence that either party
suffered other than an emotional loss. . . .
[T]o allow a claim for medical malpractice on
the basis of misdiagnosis in the absence of
any physical injuries, in this court's
opinion, would open up the floodgates for
claims for any misdiagnosis.
On appeal, Savitri argues that, under the facts of this case, a
claim of physical injury should not be necessary to support
recovery of emotional distress damages.3 We agree and reverse
the superior court's grant of a directed verdict on this issue.
Under the traditional rule, there is no recovery of
damages for emotional distress where the emotional distress
arises from negligent conduct and is unaccompanied by physical
injury. See Hancock v. Northcutt, 808 P.2d 251, 257 (Alaska
1991); see also Restatement (Second) of Torts 436A (1965); W.
Page Keeton et al., Prosser and Keeton on the Law of Torts 54,
at 361 (5th ed. 1984) ("the great majority of courts still hold
that in the ordinary case there can be no recovery"). In
Hancock, homeowners sued construction contractors for defective
concrete work in the construction of their home, alleging, inter
alia, breach of contract and negligent infliction of emotional
distress. On appeal, we held that a plaintiff may not recover
damages for negligently caused emotional distress absent a
physical injury, a viable bystander claim,4 or a breach of
contractual duty that, by its nature, "is particularly likely to
result in serious emotional disturbance." 808 P.2d at 257-259.
Although we declined to reassess the physical injury requirement
in Hancock based on the briefing before us, the arguments
presented in this case represent a direct challenge to the
continued validity of this rule.
The basic assumption underlying the traditional rule is
that emotional distress without physical injury is relatively
trivial and easily feigned.
The reasons for the majority rule are,
at least, three. One is that emotional
disturbance which is not so severe or serious
as to have physical consequences is likely to
be "so temporary, so evanescent and so
relatively harmless" that the task of
compensating for it would unduly burden
defendants and the courts. The second is
that, in the absence of the guarantee of
genuineness provided by resulting bodily
harm, such emotional disturbance can be too
easily feigned or imagined. The third is
that where the defendant's conduct has been
merely negligent, without any element of
intent to harm, his fault is not so great
that he should be required to make good a
purely mental disturbance.
Payton v. Abbott Labs, 437 N.E.2d 171, 178-79 (Mass. 1982)
(citing Restatement (Second) of Torts, 436A, cmt. b); see also
Keeton 54, at 360-61; Corgan v. Muehling, 574 N.E.2d 602, 607-
08 (Ill. 1991). The limited exceptions to this rule represent
isolated situations where courts have found that the special
circumstances surrounding a claim for emotional damages serve as
a sufficient guarantee that the claim is neither false nor
insubstantial. Keeton, 54; Allen v. Jones, 163 Cal. Rptr. 445,
450 (Cal. App. 1980) (recognizing a cause of action for negligent
mishandling of a corpse and stating that "[t]he nature of the
wrongful conduct that must be present in this type of case
provides sufficient assurance of the genuineness of the claim");
Western Union Tel. Co. v. Redding, 129 So. 743 (Fla. 1930)
(allowing recovery for emotional distress caused by the negligent
transmission of a telegram erroneously communicating that the
plaintiff's daughter had contracted diphtheria).
However, in recent years, several courts and
commentators have criticized the physical injury requirement as
an ineffective screening mechanism which is both over and
underinclusive. As noted by the California Supreme Court in
Molien v. Kaiser Foundation Hospitals, 616 P.2d 813 (Cal. 1980)
[The physical injury requirement]
supposedly serves to satisfy the cynic that
the claim of emotional distress is genuine.
Yet we perceive two significant difficulties
with the scheme. First, the classification
is both overinclusive and underinclusive when
viewed in the light of its purported purpose
of screening false claims. It is
overinclusive in permitting recovery for
emotional distress when the suffering
accompanies or results in any physical injury
whatever, no matter how trivial. If physical
injury, however slight, provides the ticket
for admission to the courthouse, it is
difficult for advocates of the "floodgates"
premonition to deny that the doors are
already wide open . . . . More
significantly, the classification is
underinclusive because it mechanically denies
court access to claims that may well be valid
and could be proved if the plaintiffs were
permitted to go to trial.
The second defect in the
requirement of physical injury is that it
encourages extravagant pleading and distorted
testimony. Thus it has been urged that the
law should provide a remedy for serious
invasions of emotional tranquility,
"otherwise the tendency would be for the
victim to exaggerate symptoms of sick
headaches, nausea, insomnia, etc., to make
out a technical basis for bodily injury, upon
which to predicate a parasitic recovery for
the more grievous disturbance, the mental and
emotional disturbance she endured."
Id. at 820 (citations omitted). Such concerns have prompted a
growing number of jurisdictions to abandon the physical injury
requirement altogether. Taylor v. Baptist Medical Ctr., 400 So.
2d 369, 372-73 (Ala. 1981); Molien v. Kaiser Found. Hosps, 616
P.2d 813, 817-21 (Cal. 1980); Montinieri v. Southern New England
Tel., 398 A.2d 1180, 1184 (Conn. 1978); Rodrigues v. State, 472
P.2d 509, 518-21 (Haw. 1970); Corgan, 574 N.E.2d at 608; Lejeune
v. Rayne Branch Hosp., 556 So. 2d 559, 570 (La. 1990); Gammon v.
Osteopathic Hosp., 534 A.2d 1282, 1285 (Me. 1987); Bass v.
Nooney Co., 646 S.W.2d 765, 771-73 (Mo. 1983) (en banc); Versland
v. Caron Transp., 671 P.2d 583, 587 (Mont. 1983); Jones v. Lieb,
375 N.W.2d 109, 114 (Neb. 1985); Johnson v. Ruark Obstetrics, 395
S.E.2d 85, 97 (N.C. 1990); Schultz v. Barberton Glass Co., 447
N.E.2d 109, 112-13 (Ohio 1983); see generally, Comment, Is the
Injury Requirement Obsolete in a Claim for Fear of Future
Consequences?, 41 U.C.L.A. L. Rev. 1337, 1356 (1994); Scott D.
Marrs, Mind Over Body: Trends Regarding the Physical Injury
Requirement, 28 Tort & Ins. L.J. 1, 39 (1992).
In Molien, the Supreme Court of California addressed a
husband's claim for emotional distress arising from the allegedly
negligent misdiagnosis of his wife's illness as syphilis. 616
P.2d at 814. The husband claimed that tension and hostility
arose between himself and his wife as a result of the
misdiagnosis, which led to a dissolution of their marriage. Id.
Holding that the husband was entitled to recover
damages for the emotional distress he suffered as a result of the
misdiagnosis, the Molien court observed that "emotional injury
may be fully as severe and debilitating as physical harm, and is
no less deserving of redress; the refusal to recognize a cause of
action for negligently inflicted injury in the absence of some
physical consequence is therefore an anachronism." Id. at 814.
In allowing the action to go forward, the court focused on the
foreseeability of the husband's emotional distress. Id. at 816-
17. The court stated that "the risk of harm to plaintiff was
reasonably foreseeable to defendants. It is easily predictable
that an erroneous diagnosis of syphilis . . . would produce
marital discord and resultant emotional distress to a married
patient's spouse." Id. at 817. In support of this conclusion,
the court further noted that the defendant doctor told the wife
to inform her husband of the diagnosis and to have her husband
tested for the disease. Id. at 814, 817.
We do not believe that the traditional tort principle
of foreseeability, standing alone, properly defines the scope of
a defendant's duty in an action for damages for negligently
inflicted emotional distress. See Hancock, 808 P.2d at 258.5
Rather we believe that a plaintiff's right to recover emotional
damages caused by mere negligence should be limited to those
cases where the defendant owes the plaintiff a preexisting duty.
In Hancock, we recognized that a plaintiff may recover emotional
distress damages in certain cases where a contractual
relationship exists between the parties. Id. at 258. In holding
that the contract at issue in Hancock did not imply such a duty,
In our view, breach of a house
construction contract is not especially
likely to result in serious emotional
disturbance. Such contracts are not so
highly personal and laden with emotion as
contracts where emotional damages have
typically been allowed to stand on their own.
Examples of the latter include contracts to
marry, to conduct a funeral, to sell a sealed
casket, to conduct a cesarean birth, to
surgically rebuild a nose, to provide
promised maternity coverage, to provide
medical services, and to keep a daughter
informed of her mother's health.
Id. at 258-59 (footnotes omitted) (emphasis added). Under
Hancock, whenever a defendant stands in a contractual or
fiduciary relationship with the plaintiff and the nature of this
relationship imposes on the defendant a duty to refrain from
conduct that would foreseeably result in emotional harm to the
plaintiff, the plaintiff need not establish a physical injury in
order to recover for the negligent infliction of emotional
A growing number of jurisdictions have adopted this
approach. See, e.g., Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex.
1993) (holding that therapist-patient relationship gives rise to
duty to refrain from activity which carries unreasonable and
foreseeable risk of causing emotional or mental harm); Corgan,
574 N.E.2d at 606-07 (same); Oswald v. LeGrand, 453 N.W.2d 634,
639 (Iowa 1990) (holding that an exception to physical injury
requirement exists where the nature of the relationship between
the parties is such that there arises a duty to exercise ordinary
care to avoid causing emotional harm); see also Ruark
Obstetrics, 395 S.E.2d at 93-94 (noting that a contractual
relationship between the parties may serve to make "the
plaintiffs' emotional distress all the more the proximate and
foreseeable result of the defendant's negligence"); see generally
David Crump, Evaluating Independent Torts Based Upon
"Intentional" or "Negligent"Infliction of Emotional Distress:
How Can We Keep the Baby from Dissolving in the Bath Water?, 42
Def. L.J. 583, 612-32 (1992).
The California Supreme Court itself has retreated from
the broad foreseeability approach enunciated in Molien. See
Burgess v. Superior Court, 831 P.2d 1197, 1201 (Cal. 1992). The
Burgess court observed:
The broad language of the Molien
decision coupled with its perceived failure
to establish criteria for characterizing a
plaintiff as a "direct victim"rather than a
"bystander"has subjected Molien to criticism
from various sources, including this court.
The great weight of this criticism has
centered upon the perception that Molien
introduced a new method for determining the
existence of a duty, limited only by the
concept of foreseeability. To the extent
that Molien . . . stands for this
proposition, it should not be relied upon and
its discussion of duty is limited to its
facts. As [we have previously] recognized,
"[I]t is clear that foreseeability of the
injury alone is not a useful 'guideline' or a
meaningful restriction on the scope of [an
action for damages for negligently inflicted
emotional distress."Thing v. La Chusa, 771
P.2d 814 (Cal. 1989).]
Nevertheless, other principles
derived from Molien . . . are sound: (1)
damages for negligently inflicted emotional
distress may be recovered in the absence of
physical injury or impact, and (2) a cause of
action to recover damages for negligently
inflicted emotional distress will lie,
notwithstanding the criteria imposed upon
recovery by bystanders, in cases where a duty
arising from a preexisting relationship is
Id.; see also Marlene F. v. Psychiatric Med. Clinic, 770 P.2d
278, 282 (Cal. 1989) (holding that a plaintiff may recover for
emotional distress without physical injury where the defendant
breaches a duty "assumed by the defendant or imposed on the
defendant as a matter of law, or that arises out of a
relationship between the two"). The Burgess court went on to
hold that a mother could recover for the emotional distress she
suffered as a result of the negligent injury to her child during
labor and delivery:
Under the facts of this case, [the
mother] is not a "bystander"for purposes of
bringing a claim for compensation for damages
for her serious emotional distress. [The
mother] is permitted to recover these damages
as a result of the breach of the duty of care
arising from the physician-patient
relationship . . . .
831 P.2d at 1204.
Our holding today does not modify the requirements for
"bystander" recovery we applied in Mattingly. See 743 P.2d at
365-66; supra note 4. As the Burgess court observed, bystander
cases "all arise in the context of physical injury or emotional
distress caused by the negligent conduct of a defendant with whom
the plaintiff had no preexisting relationship, and to whom the
defendant had not previously assumed a duty of care beyond that
owed to the public in general."831 P.2d at 1200 (quoting
Christensen v. Superior Court, 820 P.2d 181 (Cal. 1991)). Our
holding also leaves intact the tort of intentional infliction of
emotional distress which provides a remedy to a victim of
intentional and outrageous conduct by a defendant who owes the
victim no preexisting duty of care. See Hancock, 808 P.2d at
We emphasize that a plaintiff may recover for only
"severe" or "serious"emotional distress under any of the above
theories. There are compelling reasons for limiting the recovery
of the plaintiff to claims of serious mental distress. See
Rodrigues, 472 P.2d at 520. "[S]erious mental distress may be
found where a reasonable man, normally constituted, would be
unable to adequately cope with the mental stress engendered by
the circumstances of the case." Id.; see also Molien, 616 P.2d
at 819-20. Examples of serious emotional distress may include
"neuroses, psychoses, chronic depression, phobia, and shock."
Lejeune, 556 So. 2d at 570. However, temporary fright,
disappointment or regret does not suffice under this standard.
Ruark Obstetrics, 395 S.E.2d at 97.
Whether a plaintiff's alleged emotional distress
satisfies this standard presents a question for the jury. While
some jurisdictions have required claims of emotional distress to
be "medically diagnosable or objectifiable,"6 we do not believe
that such a limitation is necessary or desirable.
[J]urors are best situated to determine
whether and to what extent the defendant's
conduct caused emotional distress, by
referring to their own experience. In
addition, there will doubtless be
circumstances in which the alleged emotional
injury is susceptible of objective
ascertainment by expert medical testimony.
To repeat: this is a matter of proof to be
presented to the trier of fact. The
screening of claims on this basis at the
pleading stage is a usurpation of the jury's
Molien, 616 P.2d at 821. See also Corgan, 574 N.E.2d at 609
("this court has not lost its faith in the ability of jurors to
fairly determine what is, and is not, emotional distress"). In
some cases, the circumstances surrounding a claim may be
sufficient to persuade a jury that the plaintiff has actually
suffered serious emotional trauma.7
Based on the above analysis, we reverse the superior
court's grant of a directed verdict against Savitri on the issue
of negligent infliction of emotional distress. As Savitri's
treating physician, Dr. Mackie owed her a duty to refrain from
activity which presented a foreseeable and unreasonable risk of
causing emotional distress. See Burgess, 831 P.2d at 1204. A
jury could reasonably conclude that the emotional distress
resulting from a misdiagnosis of AIDS is foreseeable and that
such distress is serious or severe. See Molien, 616 P.2d at 821;
Lejeune, 556 So. 2d at 571. Also, Savitri presented medical
testimony that she suffered from post-traumatic stress disorder.
The significance of a false imputation of AIDS is
unquestionable. In M.M.H. v. United States, 966 F.2d 285, 291
(7th Cir. 1992), the court recognized the magnitude of an AIDS
diagnosis. After noting the well-established exception to the
physical injury requirement in cases where the defendant
misinformed the plaintiff that a loved one was dead, the court
stated: "The plaintiff cleverly argues that if informing someone
that a loved one has died forms an exception to the requirement,
then informing someone that they themselves are going to die
should also. This argument has force."8 Id.; see also Marriott
v. Sedco Forex Intern. Resources, 827 F. Supp. 59, 75 (D. Mass.
1993) (noting that courts have allowed "AIDS phobia" claims in
the absence of physical manifestations where anxiety arises from
incident which "substantiates the genuineness of the plaintiff's
In the present case, Savitri is entitled to an
opportunity to present her case to a jury. We therefore reverse
the trial court's holding and remand Savitri's negligent
infliction of emotional distress claim.
2. Amount of recovery: window of anxiety
In her briefing before this court, Savitri essentially
recognizes that she is entitled to emotional damages resulting
from her belief that she had AIDS only for that period in which
this belief was reasonable.
In the context of allegedly negligent exposure to the
HIV virus, several courts have held that a plaintiff may only
recover emotional distress damages during a defined period of
"reasonable anxiety."See, e.g., Kerins v. Hartley, 21 Cal. Rptr.
2d 621, 632 (Cal. App. 1993). In Kerins, a patient sued a
surgeon, seeking compensation for the emotional distress she had
suffered upon discovering that the surgeon infected with the AIDS
virus had performed an operation on her. After declining to
limit a plaintiff's right to recover emotional damages to cases
where the plaintiff alleges and proves actual exposure,9 the
court stated that the reasonable window of anxiety, for which
recovery was proper, closes "after the plaintiff has had
sufficient opportunity to determine with reasonable medical
certainty that he or she has not been exposed to or infected with
the AIDS virus." 21 Cal. Rptr. 2d 621, 632 (App. 1993). The
court elaborated that the patient's emotional distress was no
longer compensable after
she received access to the operative
report and/or in some other manner received
assurances that no actual exposure to [HIV-
infected] blood had occurred; she received
test results negative for the presence of HIV
antibodies; and she had the opportunity to
obtain counseling on the accuracy and
reliability of the testing methods employed
. . . .
Id.; see also Faya, 620 A.2d at 337 ("Appellants may only recover
for their fear . . . for the period constituting their reasonable
window of anxiety--the period between which they learned of [the
potential exposure] and received their HIV-negative results.").
Although we agree that there is a presumption that a plaintiff's
emotional anxiety arising from "AIDS phobia" is no longer
reasonable after the plaintiff learns that he or she is not HIV-
positive, we do not foreclose the possibility that a plaintiff
may be able to establish, through appropriate expert testimony,
long-term emotional trauma proximately related to the defendant's
3. Recovery of emotional damages for
invasion of privacy and/or breach of
Before trial, the superior court, Judge Hunt, granted
partial summary judgment in favor of Savitri on the issues of
whether Dr. Mackie owed a duty of confidentiality to Savitri and
whether he breached that duty by informing Matthew of the ELISA
screen test results without her authorization. However, Judge
Hunt found that reasonable minds could differ on the issue of
whether Dr. Mackie's breach was justified. At trial, Judge
Johnstone granted directed verdicts in favor of Dr. Mackie on all
issues, including the breach of confidentiality issue.
On appeal, Savitri argues that Dr. Mackie's act of
informing her husband of the test result without her
authorization supports an award of damages for emotional
distress. Initially, she notes that the right to privacy is
specifically enumerated in the Alaska Constitution. However, in
Luedtke v. Nabors Alaska Drilling, Inc., 768 P.2d 1123, 1130
(Alaska 1989), we held that the constitutional right to privacy
is a right against government action, not against the actions of
private parties. Thus, to the extent her argument is based on
the Alaska Constitution, her claim must fail.
Savitri also fails to present a persuasive argument
under common law invasion of privacy principles. There are four
branches of the common law right to privacy, as recognized in the
Restatement (Second) of Torts 652A-E, at 376 (1977). See
Luedtke, 768 P.2d at 1137 & n.15 (citing Restatement). None of
these sections can be read to support Savitri's claim in the
Finally, she maintains that Dr. Mackie's breach of his
duty of confidentiality directly supports an award of purely
emotional damages. She argues that "[i]t will be a rare case
where physical injury results from the breach of the confidential
Courts have recognized that a physician's breach of the
duty of confidentiality permits the recovery of emotional
damages.10 For example, in MacDonald v. Clinger, 446 N.Y.S.2d
801, 802 (N.Y. App. Div. 1982), a New York appellate court
addressed a claim for emotional distress against a psychiatrist
who revealed confidential information to the plaintiff's spouse.
The court stated that "for so palpable a wrong, the law provides
a remedy." Id. at 803 (quoting Smith v. Driscoll, 162 P. 572
(Wash. 1917)). The court noted that other jurisdictions had
recognized "a legally compensable injury in such wrongful
disclosure [cases] based on a variety of grounds for recovery:
public policy; right to privacy; breach of contract; breach of
fiduciary duty." Id. at 802.
After concluding that a privacy action could not be
maintained, id. at 803, the court held that a physician's
disclosure of confidential information constituted "a violation
of a fiduciary responsibility to plaintiff implicit in and
essential to the doctor-patient relation." Id. at 805. The
court further held that the breach of such duty is actionable as
a tort, enabling the plaintiff to recover for "mental distress .
. . and the deterioration of his marriage." Id. at 804. In
reaching this conclusion, the court reasoned that "the
confidentiality of the relationship is a cardinal rule of the
medical profession, faithfully adhered to in most instances, and
thus has come to be justifiably relied upon by patients seeking
advice and treatment." Id. at 802. See also Horne v. Patton,
287 So. 2d 824 (Ala. 1974) (allowing privacy, fiduciary, and
contract causes of action to proceed against physician for
disclosure of confidential information); cf. Doe v. Roe, 599
N.Y.S.2d 350 (N.Y. App. Div. 1993) (allowing cause of action
against physician for release of HIV information in violation of
AIDS confidentiality statute); Urbaniak v. Newton, 277 Cal. Rptr.
354 (Cal. App. 1991) (allowing privacy cause of action under
California Constitution against physician for unauthorized
disclosure of HIV diagnosis).
Savitri argues that the need for confidentiality is
increased in cases involving AIDS. Indeed, other courts have
recognized the heightened need for confidentiality in the AIDS
context. For example, in holding that unauthorized disclosure of
an HIV diagnosis was actionable under the California
Constitution, the Urbaniak court stated that "[t]he condition is
ordinarily associated either with sexual preference or
intravenous drug uses. It ought not to be, but quite commonly
is, viewed with mistrust or opprobrium. . . . [I]t is clearly a
'private fact' of which the disclosure may 'be offensive and
objectionable to a reasonable [person] of ordinary
sensibilities.'" Urbaniak, 277 Cal. Rptr. at 360 (quotation
omitted). See also Rasmussen v. South Fla. Blood Servs., 500 So.
2d 533, 537 (Fla. 1987) (public response to AIDS makes
unauthorized disclosure of AIDS a "more critical matter"; by its
very nature such disclosure constitutes "disclosure in a damaging
context"); Doe, 599 N.Y.S.2d at 353 (discussing legislative basis
for AIDS confidentiality statute).
We find MacDonald's recognition of a cause of action
for emotional distress arising from a physician's breach of the
duty of confidentiality to be persuasive. However, MacDonald
also observed that "the disclosure of medical information to a
spouse may be justified under some circumstances." 446 N.Y.S.2d
at 805. The court went on to explain:
Disclosure of confidential information .
. . to a spouse will be justified whenever
there is a danger to the patient, the spouse,
or another person; otherwise information
should not be disclosed without
authorization. Justification or excuse will
depend upon a showing of circumstances and
competing interests which support the need to
disclose. Because such showing is a matter
of affirmative defense, defendant is not
entitled to dismissal of the action.
Id.; see also Marlene F. v. Psychiatric Medical Clinic, 770 P.2d
278, 282 n.5 (Cal. 1989) (citing cases holding that a doctor,
having diagnosed an illness, may be liable for failure to warn
patient's family members); cf. Restatement (Second) of Torts
595, 652G (recognizing privilege to disclose, in context of
privacy tort, for "protection of interest of recipient").
Courts have repeatedly held that physicians must use
reasonable care to protect third persons from foreseeable
exposure to contagious diseases. See, e.g., Gammill v. United
States, 727 F.2d 950, 954 (10th Cir. 1984) (holding that in
contagious disease cases, "physician may be found liable for
failing to warn a patient's family, treating attendants, or other
persons likely to be exposed to the patient of the . . . danger
of exposure"); Wojak v. Aluminum Co. of America, 183 N.Y.S.2d
351, 357-58 (N.Y. 1959) (holding that a physician had a duty to
warn the spouse of a patient diagnosed with tuberculosis where
there was a foreseeable risk that the spouse would be exposed to
the disease); cf. Thompson v. County of Alameda, 614 P.2d 728,
733 (Cal. 1980) (stating that where a therapist knows or should
know that a patient poses an imminent and foreseeable threat to
an identifiable victim, the therapist must warn the victim or
take other reasonable steps to protect the victim) (citing
Tarasoff v. Regents of University of California, 551 P.2d 334
(Cal. 1976)). In light of this authority, we hold that when a
physician diagnoses a patient with a fatal, sexually transmitted
disease such as AIDS, the physician's disclosure of this
diagnosis to the patient's spouse is privileged as a matter of
law.11 We therefore affirm the superior court's directed verdict
on this issue.
C. Intentional Infliction of Emotional Distress
This court has applied the approach set forth in the
Restatement (Second) of Torts to intentional infliction of
emotional distress (IIED) claims. Tommy's Elbow Room v.
Kavorkian, 727 P.2d 1038, 1043 (Alaska 1986). Under the
Restatement, "[o]ne who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress . . .
." Croft v. Wicker, 737 P.2d 789, 792 (Alaska 1987) (quoting
Restatement (Second) of Torts 46(1) (1965)). The elements
necessary to support a prima facie cause of action for IIED were
set forth in Teamsters Local 959 v. Wells, 749 P.2d 349, 357
(Alaska 1988): "(1) the conduct is extreme and outrageous, (2)
the conduct is intentional or reckless, (3) the conduct causes
emotional distress, and (4) the distress is severe." See also
Cameron v. Beard, 864 P.2d 538, 548 (Alaska 1993). "Liability
has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." Oaksmith v. Brusich, 774
P.2d 191, 200 (Alaska 1989) (quoting Restatement (Second) of
Torts 46 cmt. d (1964)).
If reasonable jurors could differ as to whether the
evidence adduced at trial would satisfy these elements, the
superior court is required to submit the IIED claim to the jury.
Teamsters, 749 P.2d at 357-58. However, as a threshold matter,
the court must determine "whether the severity of the emotional
distress and the conduct of the offending party warrant an
instruction on intentional infliction of emotional distress."
Id. at 357; Richardson v. Fairbanks N. Star Borough, 705 P.2d
454, 456 (Alaska 1985). This threshold determination will not be
overturned on appeal absent an abuse of discretion. Cameron, 864
P.2d at 548; Richardson, 705 P.2d at 456.
At trial, the superior court granted a directed verdict
to Dr. Mackie on Savitri's IIED claim. The court concluded that
"[r]easonable minds could not differ on the issue of whether or
not the conduct complained of here was of such an outrageous
nature that malice could be inferred, that an evil intent could
be inferred to Dr. Mackie, that he had any ulterior motive,
anything to gain."
On appeal, Savitri maintains that this conclusion was
erroneous. According to Savitri, Dr. Mackie recklessly and
outrageously diagnosed her as having the AIDS virus based solely
on an unconfirmed screening test. She also argues that Dr.
Mackie's failure to acquire her consent to the HIV test and his
alleged breach of the duty of confidentiality bolster her IIED
claim. We disagree.
Taking the record in the light most favorable to
Savitri, Dr. Mackie's conduct cannot be characterized as going
"beyond all possible bounds of decency." See Oaksmith v.
Brusich, 774 P.2d at 200. Dr. Mackie told Savitri and her
husband that Savitri had tested positive for AIDS, that retesting
should be done, and that he had called in a specialist. Savitri
does not contend that he diagnosed her as having AIDS, or even
that he diagnosed her as being HIV positive. Although Dr. Mackie
could have emphasized that the positive test result did not prove
anything and that further testing was necessary before any
interpretation of Savitri's HIV antibody status was possible, his
failure to do so cannot reasonably be characterized as
outrageous. The evidence presented at trial indicated that Dr.
Mackie's actions conformed to applicable professional standards.
Furthermore, we have already determined that Dr. Mackie's
disclosure to Matthew of Savitri's test results were privileged
as a matter of law. We therefore conclude that Dr. Mackie's
actions do not satisfy the first element necessary to sustain an
IIED claim, extreme and outrageous conduct.
Dr. Mackie's actions likewise do not satisfy the second
element required for an IIED cause of action, intentional or
reckless conduct.12 In Tommy's Elbow Room, we explained that
"[i]n cases where the plaintiff alleges that the defendant acted
recklessly, it must be shown that the defendant acted in
deliberate disregard of a high degree of probability that the
emotional distress will follow." 727 P.2d at 1044. We then
found that, while it was foreseeable that an intoxicated patron
would drive, have an accident, and cause emotional distress, such
facts were not reasonably regarded as "highly probable." Id.
In the present case, it cannot be said that conducting
a blood test on a hospitalized patient and informing the
patient's husband of the results of that test create a high
probability of causing severe emotional distress. Thus, Dr.
Mackie's actions also fail to satisfy the second element of an
Based on this analysis, we affirm the superior court's
grant of a directed verdict to Dr. Mackie on Savitri's IIED
claim. The court did not abuse its discretion in concluding
that, as a matter of law, no reasonable juror could find Dr.
Mackie's actions to be extreme, outrageous or reckless. See
Urbaniak, 277 Cal. Rptr. at 362 (doctor's breach of duty of
confidentiality in revealing patient's HIV status was not
"outrageous"as a matter of law).
D. Punitive Damages
Punitive damages serve two purposes: "to punish the
wrongdoer and to deter the wrongdoer and others like him from
repeating the offensive act." State Farm Mut. Auto. Ins. Co. v.
Weiford, 831 P.2d 1264, 1266 (Alaska 1992) (citation omitted).
The availability of such damages "turn[s] on the wrongdoer's
motive, state of mind, and degree of culpability." Alyeska
Pipeline Serv. Co. v. O'Kelley, 645 P.2d 767, 774 (Alaska 1982).
This court has held that punitive damages are a harsh
remedy "not favored in law. They are to be allowed only with
caution and within narrow limits." State Farm, 831 P.2d at 1266;
Alyeska Pipeline Serv. Co. v. Beadles, 731 P.2d 572, 574 (Alaska
1987). This hesitance to award punitive damages is reflected in
AS 09.17.020, which provides that "[p]unitive damages may not be
awarded in an action . . . unless supported by clear and
convincing evidence." See Lee Houston & Assocs. v. Racine, 806
P.2d 848, 856 (Alaska 1991).
To support a claim for punitive damages, "the plaintiff
must prove by clear and convincing evidence that the defendant's
conduct was outrageous, such as acts done with malice, bad
motive, or reckless indifference to the interests of another."
Lee Houston, 806 P.2d at 856. Although a showing of actual
malice is not required, Sturm, Ruger & Co. v. Day, 594 P.2d 38,
46 (Alaska 1979), cert. denied, 454 U.S. 894 (1981), overruled on
other grounds, Dura Corp. v. Harned, 703 P.2d 396 (Alaska 1985)),
the plaintiff must establish, at a minimum, that the defendant's
conduct "amounted to reckless indifference to the rights of
others, and conscious action in deliberate disregard of [those
rights]." State v. Haley, 687 P.2d 305, 320 (Alaska 1984)
(quoting Sturm, 594 P.2d at 47); see also State Farm, 831 P.2d at
1266 ("Malice may be inferred if the acts exhibit 'a callous
disregard for the rights of others.'") (quoting O'Kelley, 645
P.2d at 774); Hayes v. Xerox Corp., 718 P.2d 929, 934-35 (Alaska
1986) ("Conscious action in 'deliberate disregard of [others] . .
. may provide the necessary state of mind to justify punitive
damages.'") (citation omitted). In Hayes, we adopted the
definition of "reckless disregard"set forth in the comments to
Restatement (Second) of Torts 500.
We are persuaded by the comments to
the Restatement (Second) of Torts 500,
which define reckless disregard of safety.
Conduct cannot be in
reckless disregard of the safety of
others unless the act or omission
is itself intended, notwithstanding
that the actor knows of facts which
would lead any reasonable man to
realize the extreme risk to which
it subjects the safety of others.
It is reckless for a driver of an
automobile intentionally to cross a
through highway in defiance of a
stop sign if a stream of vehicles
is seen to be closely approaching
in both directions, but if his
failure to stop is due to the fact
that he has permitted his attention
to be diverted so that he does not
know that he is approaching the
crossing, he may be merely
negligent and not reckless.
Restatement (Second) of Torts 500
comment (b) (1964) (emphasis added).
Reckless misconduct differs from
negligence which consists of mere
"inadvertence, incompetence, unskillfulness"
because reckless misconduct requires a
conscious choice of a course of action. Id.
Hayes, 718 P.2d at 935 (footnote omitted).
It is well-established that "'where there is no
evidence that gives rise to an inference of actual malice or
conduct sufficiently outrageous to be deemed equivalent to actual
malice,' the trial court need not, and indeed should not, submit
the issue of punitive damages to the jury." State Farm, 831 P.2d
at 1266 (quoting O'Kelley, 645 P.2d at 774). This threshold
determination will not be overturned absent an abuse of
discretion. Bridges v. Alaska Hous. Auth., 375 P.2d 696, 702
In the present case, the superior court did not err in
granting a directed verdict to Dr. Mackie on the issue of
punitive damages. As discussed above in the IIED context, Dr.
Mackie's conduct simply cannot be characterized as outrageous.
See Haley, 687 P.2d 305, 320 (Alaska 1984) (where standard of
care is not clearly defined, breach does not support recovery of
punitive damages). Moreover, Dr. Mackie's actions subsequent to
his allegedly wrongful conduct (for example, requesting that a
psychiatric nurse be available to counsel Savitri) reflect a
concern for his patient's emotional well-being. See Wien Air
Alaska v. Bubbel, 723 P.2d 627, 631 (Alaska 1986) (no reasonable
juror could conclude defendant was indifferent to consequences of
action where defendant attempted to remedy effects of allegedly
Based on this analysis, we affirm the superior court's
grant of a directed verdict in favor of Dr. Mackie on the
question of punitive damages.
E. Recovery of Economic Loss Resulting from Divorce
The superior court also granted a directed verdict in
favor of Dr. Mackie on the issue of whether economic loss
resulting from divorce is recoverable as a matter of law. The
[T]here are sufficient public policy
reasons to prevent a jury from hearing
argument on economic loss as a result of a
divorce. That there is [sic] also sound
legal reasons on the basis that they're not
foreseeable, . . . that the economic losses
are so intertwined with causation that it
presents a jury, a fact finder, with an
impossible question in determining the causes
and the foreseeability of the economic losses
in a marriage.
Savitri appeals from this determination.13 We affirm the court's
In arguing that economic loss resulting from divorce
should be recoverable, Savitri first notes the general rule that
a plaintiff is allowed to recover for all injuries proximately
caused by a defendant's negligence. See Poor v. Moore, 791 P.2d
1005, 1008 (Alaska 1990). She then argues that where injury to
the marital relationship is foreseeable, damages, including
economic loss, should be recoverable. She concludes that, since
it is foreseeable that informing Matthew of her initial test
result would create marital discord, her losses should be
We have previously noted that an issue may be removed
from the jury's consideration where the court as a matter of law
determines that the consequences alleged are not reasonably
foreseeable or that the plaintiff has failed to sufficiently
establish causation. See Sharp v. Fairbanks N. Star Borough, 569
P.2d 178, 182-84 (Alaska 1977). In the particular context of
recovery for purely economic loss, this court has stated that a
plaintiff must establish that "the defendant knew or reasonably
should have foreseen both that particular plaintiffs or an
identifiable class of plaintiffs were at risk and that
ascertainable economic damages would ensue from the conduct."
Mattingly v. Sheldon Jackson College, 743 P.2d 356, 360 (Alaska
1987). The court also has power to limit claims, notwithstanding
foreseeability, for public policy reasons. See Poor, 791 P.2d at
1007-08 (refusing, on policy grounds, to allow action by one
parent against another for wrongful birth).
As Dr. Mackie argues in his brief, divorce is never the
direct result of actions by a third-party tortfeasor. It is the
character of the spouses, and the character of the marriage
itself, which determines whether a divorce will occur. Clearly,
a variety of outcomes may result from a diagnosis of AIDS,
ranging from bringing the married couple closer together to
driving them apart. To hold a third-party responsible for
economic losses resulting from a divorce in such a case would
extend potential liability too far.
This conclusion is in accord with the case law from
other jurisdictions addressing "wrongful divorce"actions. Such
actions have, with virtual uniformity, been rejected by courts,
both on proximate cause/foreseeability grounds and on more
general public policy grounds. We find the reasoning in Prill v.
Hampton, 453 N.W.2d 909, 914-15 (Wis. App. 1990), persuasive. In
Prill, the court refused to allow the plaintiff to recover on her
claim that her divorce was the result of the injuries sustained
by her husband at the hands of the defendant. The court
[Appellant] next contends that . .
. she is entitled to damages for "wrongful
divorce." This type of claim has not been
recognized in the past and we refuse to
recognize it now. . . . While we recognize
that there is a strong public policy that
permits injured parties to recover damages
for their injuries, we also recognize
countervailing public policy considerations
that should bar claims for wrongful divorce.
Failure of a marriage is rarely
attributable to a single cause. In some
instances, there may be evidence that the
spouse's injuries were, in part, the cause of
the marriage's failure. For the jury to
properly assess the amount of damages,
however, it is necessary to show both a
causal relationship and the extent or degree
this factor played in the failure of the
marriage. Such an inquiry would open to
scrutiny very personal issues, not only of
the spouse claiming damages, but also of the
injured spouse. This factor, along with the
difficulty of the jury in determining the
extent to which any single cause may have
contributed to the failure of the marriage,
requires that such claims be rejected.
Id. at 914-15. See also Bemis Co. v. Rubush, 401 N.E.2d 48, 64
(Ind. App. 1980) (refusing to judicially recognize a cause of
action for wrongful divorce), vacated on other grounds, 427
N.E.2d 1 (Ind. 1981); Koestler v. Pollard, 471 N.W.2d 7, 10 (Wis.
1991) (adopting reasoning of Prill); Koestler, 471 N.W.2d at 15
(Abrahamson, J., dissenting) ("The tort concept of causation is
too simplistic when the interest protected is the marital
relationship. . . . Assigning blame and causation for
interference with the complex relationship of marriage is
extraordinarily difficult, if not impossible.").
For the above reasons, we affirm the superior court's
holding that economic losses suffered as a result of a divorce
are not recoverable.
F. The Children's Claim for Loss of Consortium15
The superior court also directed a verdict in favor of
Dr. Mackie on the children's claim for loss of consortium. The
I find that based on the evidence, and
giving the weight to the evidence in a light
most favorable to [the children], and all the
inferences to that evidence, that there is
insufficient evidence to go to the jury on
whether or not either Mrs. Chizmar or Mr.
Chizmar were either emotionally or physically
disabled in such a way . . . to prevent them
from giving the consortium, that is the care,
the love, attention, the educational needs
that parents normally give to their children,
The court further explained that "[a]fter viewing the children,
after listening to . . . their parents talk about the children,
. . . it appears to me that there was no damage whatsoever to
the children from . . . the point of view of consortium loss."
The children appeal this decision, arguing that
sufficient evidence was presented to support a loss of consortium
claim and that it was "unconscionable on the state of the
evidence, after almost three weeks of trial, to take the
plaintiff's case away from the jury." On the record presented,
we agree that the superior court erred in declining to submit
this issue to the jury.
In Hibpshman v. Prudhoe Bay Supply, Inc., 734 P.2d 991
(Alaska 1991), this court recognized for the first time an action
for loss of parental consortium resulting from injuries
tortiously inflicted on a parent by third parties. We reasoned
that "[w]hen a parent is seriously injured, his or her child
suffers a loss of enjoyment, care, guidance, love and protection,
and is also deprived of a role model."16 Id. at 994 (citation
Here, the children rely principally on the following
testimony by Dr. Fischer to establish that sufficient evidence
was presented for reasonable jurors to differ on the consortium
Q: And lastly, Dr. Fischer, in your opinion, have
[the children] . . . also in some sense lost their
Q: And could you tell us in what ways?
A: Mrs. Chizmar is extremely distraught, her anxiety
level is so high that it's very difficult for her to
concentrate for a long period of time. There's the
recurring thoughts of all these events, the loss of her
marriage, and I . . . just think that she's not the
person she once was.
Q: Is she at times, in effect, unable to function, as
. . . .
A: Oh. Well, I think she's dysfunctional in many
ways. . . .
. . . .
Q: In what ways do you feel that she is dysfunctional
as a mother?
A: I can give you a comparison with what she was like
and what she is now . . . .
. . . .
A: Okay. I've seen her household before, and it . .
. was a showcase. Everything was tidy and immaculate,
you could eat off the floors, very organized, a very
good manager of the household. Today it's very
different. For example, the Christmas decorations were
up through February. I tested her at her house because
she has no transportation, and there were Easter
decorations, I think Easter was March 12th, the Easter
decorations were still on the dining room table on May
10th. Sometimes they open the couch and watch
television and it stays that way for days. It's just
not the same household. And of course this affects the
family and it affects the children.
Mrs. Chizmar never smoked when I first knew
her, and now she smokes continuously. And, so, these
things all affect the organization of the family. And
as I said, the children have almost become surrogate
parents at times, role reversals. And these are not
healthy things for children.
In response, Dr. Mackie maintains that this evidence is
not sufficient to support a finding that the children were denied
"the care, guidance, love and protection that collectively
constitute parental consortium." He argues that no testimony was
presented to the effect that Savitri "was unable, even
temporarily, to care for her daughters and to give them love and
nurturing." He further notes that the above-cited testimony
fails to distinguish between harm resulting from Dr. Mackie's
actions and the effects suffered as a result of "the divorce,
their mother's affair with another man, or having a new baby in
the family." Thus, he argues that the children failed to
establish with sufficient certainty that the damages claimed were
caused by the allegedly wrongful conduct at issue. See Conam
Alaska v. Bell Lavalin, Inc., 842 P.2d 148, 154 (Alaska 1992)
(causation is the major concern in addressing the speculativeness
of a damage claim for directed verdict purposes).
Though this issue presents a close question, we reverse
the superior court's directed verdict against the children. On
the record presented, reasonable jurors could differ as to
whether Dr. Mackie's conduct caused the children to lose the
"care, guidance, love and protection" of their mother. See
Hibpshman, 734 P.2d at 994.
G. Costs and Fees Assessed Against the Children
Following trial, the superior court entered final
judgment in favor of Dr. Mackie. The court awarded approximately
$2,000 in attorney's fees and $6,800 in costs against the
children. Because we reverse the superior court's directed
verdict on the children's loss of consortium claims, we vacate
the attorney's fee award.
We reverse the superior court's holding that physical
injury is required to support recovery for negligent infliction
of emotional distress. Damages for negligent infliction of
emotional distress are recoverable, provided that such damages
are foreseeable and severe, and arise from circumstances in which
the defendant owes the plaintiff a preexisting duty to refrain
from causing distress. In addition, we find that the superior
court erred in granting a directed verdict to Dr. Mackie on the
children's loss of consortium claims and, accordingly, vacate the
attorney's fees award against the children.
We affirm the remainder of the trial court's findings.
Although Dr. Mackie breached his duty of confidentiality by
disclosing his diagnosis to Matthew without Savitri's consent,
this disclosure was justified as a matter of law given the
particular facts of this case. Dr. Mackie's conduct also does
not rise to the level of outrageousness required to support
either an intentional infliction of emotional distress claim or
punitive damages. Finally, because economic loss resulting from
divorce should not be recoverable, both on
causation/foreseeability and policy grounds, we affirm the
court's directed verdict on Savitri's claim for economic damages
resulting from her divorce.
AFFIRMED in part, REVERSED in part, and REMANDED for
further proceedings consistent with this opinion.
1 Dr. Mackie felt that he had some difficulty
communicating with Savitri.
2 In his deposition, Dr. Mackie stated: "I told [Matthew]
that [Savitri had] had a positive AIDS test, that she needed to
be informed, and how would be the best way to inform her."
3 In her reply brief, Savitri argues for the first time
on appeal that the superior court erred in concluding that she
suffered only emotional damages and not physical injury. In
support of this argument, she asserts that she was physically
beaten by her husband as a result of the AIDS misdiagnosis.
Because Dr. Mackie has not had an opportunity to respond to this
argument, it is deemed waived. See Vraun v. CFAB, 816 P.2d 140,
145 (Alaska 1991).
4 While a majority of jurisdictions permit a plaintiff to
recover for negligently inflicted emotional distress if the
plaintiff was in the "zone of danger"created by the defendant's
negligent conduct, see Restatement (Second) of Torts, 313,
436, 436A (1965), this court has rejected the "zone of danger"
test and adopted an interpretation of the guidelines set forth in
Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968). See Mattingly v.
Sheldon Jackson College, 743 P.2d 360, 365-66 (Alaska 1987)
(permitting a plaintiff to recover for emotional distress where
the plaintiff observes a loved one, physically injured as a
result of the defendant's negligence, "more or less
contemporaneously with . . . learning of the nature of the
victim's injuries"). This rule has no application in the present
5 In Hancock we noted that permitting a plaintiff to
recover for the negligent infliction of emotional distress in the
absence of physical injury would effectively do away with the
tort of intentional infliction of emotional distress:
[T]he recovery of emotional distress
damages unaccompanied by physical injuries
[is limited] to cases (1) where the emotional
distress is "severe,"(2) where the conduct
of the tortfeasor is intentional or reckless,
and (3) where such conduct is capable of
being characterized as extreme or outrageous.
The last two limitations would be meaningless
if negligent infliction of emotional distress
without physical injury was legally
808 P.2d at 258 (citations omitted).
6 See, e.g., Bass, 646 S.W.2d at 772-73; Ruark, 395
S.E.2d at 97; cf. Faya v. Almarez, 620 A.2d 327, 338 (Md. 1993)
(defining physical injury to include "objectively measurable"
7 Several courts allow recovery for mental distress where
there are circumstantial indicia or guarantees of genuineness.
For example, in Molien, the court observed:
The negligent examination of Ms. Molien
and the conduct flowing therefrom are
objectively verifiable actions by the
defendants that foreseeably elicited serious
emotional responses in the plaintiff and
hence serve as a measure of the validity of
plaintiff's claim for emotional distress. As
yet another corroborating factor, we note the
universally accepted gravity of a false
imputation of syphilis: by statute it
constitutes slander per se.
616 P.2d at 819, 821 (emphasis added); see also Keeton 54, at
8 The court did not reach the validity of this argument
because it decided that the plaintiff had established a physical
injury. M.M.H., 966 F.2d at 291.
9 Dr. Mackie notes that many cases involving anxiety or
fear of AIDS have held that actual exposure to the HIV virus is
required to support recovery. See, e.g., Burk v. Sage Prods.,
Inc., 747 F. Supp. 285, 287 (E.D. Pa. 1990). But see, e.g.,
Faya, 620 A.2d at 336-37. Since Savitri was never actually
exposed to the virus, Mackie argues that she cannot recover under
this line of cases.
This argument is unpersuasive. Unlike the cases cited
above, in which the plaintiff was exposed to a medium potentially
carrying the virus (for example, a needle), here Savitri alleges
that she was negligently told that she was infected. In such a
case, where the fear is directly caused by the negligence and is
in no sense speculative, recovery for emotional distress is
10 See Horne v. Patton, 287 So. 2d 824, 830 (Ala. 1974).
In Horne, the Alabama court noted that states which have enacted
a doctor-patient testimonial privilege have been virtually
uniform in allowing a cause of action for unauthorized
disclosure. Alaska has recognized the doctor-patient testimonial
privilege. See Alaska R. Evid. 504.
11 This rule is consistent with a number of legislative
proposals concerning a physician's liability for unauthorized
disclosure of confidential information in AIDS cases. But see
Diaz Reyes v. United States, 770 F. Supp. 58, 63 (D.P.R. 1991)
(suggesting that Puerto Rican law does not allow a doctor to
report AIDS diagnosis to spouse without authorization). See
generally Comment, The Physician's Duty to Warn Non-Patients:
AIDS Enters the Equation, 5 Cooley L. Rev. 353 (1988)
(recommending imposing a duty to warn where the physician knows
the identity of the sexual or needle-sharing partners of the
12 Savitri does not, and could not, assert that Mackie's
conduct was intentional for IIED purposes. See Teamsters, 749
P.2d at 357 n.13 ("An actor intends to inflict emotional distress
if he desired to inflict severe emotional distress, or where he
knew that such distress was certain or substantially certain to
result from his conduct.").
13 The children also take issue with this ruling, arguing
that they should be able to recover for monetary losses resulting
from the divorce. In particular, they allege that, as a result
of their parents' divorce, they lost their previous permanent
fund dividend payments, which up until the divorce had been set
aside for future educational needs and placed in accounts in
their own name. In addition, they also assert a need for
continued psychological counseling stemming from the incidents
involved in the case.
14 Dr. Mackie also notes that in Alaska, fault is
apportioned by percentage in tort actions. AS 09.17.080. In
addition, a plaintiff's recovery is reduced to the extent that
reasonable steps to mitigate damages were not taken. Irving v.
Bullock, 549 P.2d 1184, 1187 (Alaska 1976). As Dr. Mackie
argues, it is difficult to imagine that a jury will be able to
isolate the fault attributable to the third party's actions, from
the fault of the two spouses and the weakness inherent in the
15 Loss of consortium is a derivative claim. "In order to
recover, the child must prove that the defendant is liable for
the personal injuries suffered by her parent, and any defense
that tends to constrict or exclude the defendant's liability to
the injured parent will have the same effect on the child's
consortium action." Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex.
On appeal, we need only address the children's claim
for loss of consortium of their mother, and not their father.
Matthew's claim was dismissed at trial and he has not appealed,
and the children do not claim that Dr. Mackie has committed a
tort against Matthew.
16 Hibpshman arose in the context of a physical injury to
the parent. In their brief, the children argue at length that
Hibpshman's recognition of a parental consortium claim should not
be limited to the physical injury situation. Dr. Mackie does not
take issue with this assertion.