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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nixola Jean Doan v. Banner Health, Inc. (5/31/2019) sp-7370

Nixola Jean Doan v. Banner Health, Inc. (5/31/2019) sp-7370

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

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                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  

NIXOLA  JEAN  DOAN,                                         )  

                                                            )         Supreme  Court  No.  S-16322  

                              Petitioner,                  )  


                                                            )         Superior Court No. 4FA-13-01538 CI  

                    v.                                      )  


                                                                     O P I N I O N  


BANNER HEALTH, INC., d/b/a                                  )  


FAIRBANKS MEMORIAL                                          )                                        

                                                                     No. 7370 - May 31, 2019  


HOSPITAL; NORTHERN                                          )  


HOSPITAL ASSOCIATION, LLC;                                  )  




HEART EMERGENCY                                             )  


PHYSICIANS; FAYE LEE, M.D.;                                )  


INTERIOR AIDS ASSOCIATION/                                 )  


PROJECT SPECIAL DELIVERY;                                  )  


and NICOLE FLISS, M.D.,                                    )  


                              Respondents.                 )



                    Petition for Review from the Superior Court of the State of  


                    Alaska,           Fourth          Judicial          District,         Fairbanks,  


                    Douglas Blankenship, Judge.  


                    Appearances:  Sandra K. Rolfe and Galen Cook, Stepovich  


                    &  Vacura  Law  Office,  Fairbanks,  for  Petitioner.                         John  J.  


                    Tiemessen, Clapp Peterson Tiemessen Thorsness & Johnson,  


                    LLC,       Fairbanks,         for    Respondents           Northern         Hospital  


                    Association;          James       W.      Cagle,       D.O.;      Golden         Heart  


                    Emergency Physicians; and Faye Lee, M.D.  No appearance  


                    by   Respondents   Banner   Health,   Inc.,   d/b/a   Fairbanks  


                    Memorial Hospital; Interior Aids Association/Project Special  


                    Delivery; or Nicole Fliss, M.D.  

----------------------- Page 2-----------------------

                                                    Before:   Stowers, Chief Justice, Winfree, Maassen, Bolger,                                                                                                                                               

                                                    and Carney, Justices.                                                                

                                                    MAASSEN, Justice.

                                                    WINFREE, Justice, concurring.

                                                    STOWERS, Chief Justice, concurring.

I.                        INTRODUCTION  

                                                    A mother was in the hospital waiting area when her daughter died.                                                                                                                                                                                                         The  

mother   sued   a   number   of   medical   care   providers   for   wrongful   death   and   medical  

malpractice, as well as for the emotional distress she suffered upon seeing her daughter's                                                                                                                                                                                                             

body.     The   superior   court   dismissed  the   mother's   claim for                                                                                                                                                                              negligent   infliction   of  

emotional distress, reasoning that the tort was not viable                                                                                                                                                          absent evidence that the plaintiff                                                           

contemporaneously understood that her loved one's death had been negligently caused.                                                                                                                                                                                                                                                               

The mother petitioned for review of this order; we granted review.                                                                                                                                                                   

                                                    We conclude                                        that under our caselaw, a viable                                                                                         bystander claimfor negligent                                                

infliction of emotional distress does not depend on the plaintiff's contemporaneous                                                                                                                                                                                      

realization that the injuries she observes were negligently caused.                                                                                                                                                                                          We therefore reverse                                  

the superior court's grant of summary judgment.                                                                                                      

II.                       FACTS AND PROCEEDINGS                                    

                                                    One morning in March 2011, Nixola Doan went to Fairbanks Memorial                                                                                                                                                                                    

Hospital   with   her   adult   daughter,   Tristana,   who   was   coughing   and   having   trouble  

breathing.    Doan stayed with Tristana for much of the day. Around 7:00 p.m. Tristana's                                                                                                                                                                                                                 

condition worsened, and Doan was "ushered . . . out" of the room while Tristana was                                                                                                                                                                                                                                             

intubated.    Doan remained in the waiting area and did not see Tristana again until                                                                                                                                                                                                                                        

approximately the time of her death at 11:41 p.m.,                                                                                                                                                1  when Doan reentered the room and  


                          1                         Whether Tristana died shortly before or shortly after Doan last entered the  


room is unclear from our record but not material to our decision.  


                                                                                                                                                                   -2-                                                                                                                                                       7370  

----------------------- Page 3-----------------------

 saw her daughter's body.                                                       

                                          In 2013 Doan, as the personal representative of Tristana's estate, filed suit                                                                                                                                         

 against a number of medical care providers, alleging medical malpractice and wrongful                                                                                                                                                        

 death.   Doan also brought her own claim for negligent infliction of emotional distress                                                                                                                                                           

 (NIED).    Several of the defendants (collectively "the doctors") moved for summary                                                                                                                                                         

judgment on the NIED claim, arguing that it was legally untenable without evidence that                                                                                                                                                                        

 Doan understood, while Tristana was undergoing care, that her caregivers were acting                                                                                                                


                                          The superior court granted summary judgment and dismissed the NIED                                                                                                                                           

 claim, concluding that Doan failed to satisfy a requirement of the tort that she have "a                                                                                                                    

 contemporaneous   understanding  of   the   cause   of   Tristana's   death."     (Emphasis   in  

 original.)  Doan sought reconsideration, which the court denied.  Doan filed a petition  

 asking us to review the dismissal of her NIED claim; we granted her petition.                                                                                                                                       

 III.                STANDARD OF REVIEW                                        


                                          We review a grant of summary judgment de novo.                                                                                                                                                                               

                                                                                                                                                                                                              "When reviewing a  


 grant of summary judgment, our duty is to determine whether there was a genuine issue  


 of material fact and whether the moving party was entitled to judgment on the law  

                                                                                                             3     We apply our independent judgment to questions  


 applicable to the established facts." 

 of law and adopt "the rule of law that is most persuasive in light of precedent, reason,  


 and policy."4  


                     2                   Harrell v. Calvin                                       , 403 P.3d 1182, 1185 (Alaska 2017) (citing                                                                                                     Hurn v.   

 Greenway, 293 P.3d 480, 483 (Alaska 2013)).                                                                                                      

                     3                   Id. at 1185-86 (quoting Palmer v. Borg-Warner Corp., 818 P.2d 632, 634  


 (Alaska 1990)).  


                     4                   Dixon v. Dixon, 407 P.3d 453, 457 (Alaska 2017) (quoting Vezey v. Green,  



                                                                                                                                 -3-                                                                                                                       7370

----------------------- Page 4-----------------------


                    In its decision on summary judgment, the superior court concluded that  


"[i]nherent in [Alaska's] cases [allowing recovery for NIED] is the contemporaneous  


comprehension of the cause of the injury"; the court held, therefore, that "in a medical  


malpracticecase, theplaintiffmust haveacontemporaneousunderstanding that thecause  


of the injury is the result of the malpractice."  The court acknowledged this effect of its  



                    [B]ystanders may validly assert bystander NIED claims for  


                    blatant  medical  errors  obvious  to  laypersons,  such  as  


                    negligently amputating a healthy limb or neglecting to care  


                    for a patient whose symptoms obviously require immediate  


                    attention.          But      where       the     causation        is   beyond        the  


                    understanding of the lay bystander an NIED claim is not  




The doctors argue that the superior court correctly stated Alaska law:  "As a matter of  


law, [Doan]cannotrecover on [an]NIEDbystanderclaimunless shecontemporaneously  


comprehended that allegedly negligent medical treatment was causing injury to her  




                    That  an  injured  victim,  in  order  to  recover,  must  contemporaneously  


comprehend that her injuries were negligently caused is not a usual requirement of a  


negligence claim.  Indeed, tort victims may not know or even suspect that their injuries  


were negligently caused until they have had some time to investigate; our tort law has  


long recognized this.5  Here, the doctors contend that our case law treats NIED claims  


          4         (...continued)  


35 P.3d 14, 20 (Alaska 2001)).  



                    See Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990)


("When the nature of the injury, or the nature of the cause of the injury, prevents a


                                                               -4-                                                        7370

----------------------- Page 5-----------------------

differently, but - although we acknowledge "the policy favoring reasonable limitations                                          


on liability" in this context                                                                                                             

                                               - we disagree that the doctors' proposed rule is one such  


reasonable limitation.  


                      We first recognized the NIED cause of action in 1986 in Tommy's Elbow  

                                                                     7  In that case, a father and daughter attended  

Room, Inc. v. Kavorkian (Kavorkian III). 

a function together but the daughter left first to ride home with another family.8  A drunk  


driver struck the family's car.9                      Driving home later, the father passed the scene of the  


accident without realizing that his daughter was involved.10   When he arrived home and  


his daughter was not there, he returned to the scene of the accident in time to see police  


and medical personnel attempting to remove her from the wreckage.11  


                      Accepting the viability of NIED claims under Alaska law, we looked to the  


guidelines set out by the California Supreme Court in Dillon v. Legg :  


           5           (...continued)  


plaintiff from discovering facts essential to his claim, the discovery rule tolls the statute  


[of limitations] until the plaintiff discovers or reasonably should have discovered that he  


has a case."); see also Palmer, 818 P.2d at 634 ("Upon notification of an airplane crash,  


a reasonable person has, as a matter of law, enough information to be alerted that she  


'should begin an inquiry' concerning a potential cause of action against the pilot, the  


carrier or the manufacturer.").  

           6          See Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 110  


(Alaska 1992).  


           7          727 P.2d 1038, 1043 (Alaska 1986).  


           8          Id. at 1040.  


           9          Kavorkian v. Tommy's Elbow Room, Inc. (Kavorkian I), 694 P.2d 160, 162  


(Alaska 1985).  


           10         Kavorkian III, 727 P.2d at 1040.  


           11         Id.  

                                                                      -5-                                                               7370

----------------------- Page 6-----------------------

                             (1)   Whether   plaintiff   was   located   near   the   scene   of   the  

                             accident as contrasted with one who was a distance away                                                                

                             from   it.   (2)   Whether   the   shock   resulted   from   a   direct  

                             emotional   impact   upon    plaintiff    from    the    sensory   and  

                             contemporaneous observance of the accident, as contrasted                                             

                             with learning of the accident from others after its occurrence.                                           

                             (3)  Whether plaintiff and the victim were closely related, as       

                             contrasted with anabsenceofany relationship                                                        or the presence     

                             of only a distant relationship.                                 [12]  

We declined, however, to interpret Dillon as imposing a "rigid requirement of sensory  


andcontemporaneous observanceoftheaccident,"instead requiring only"thereasonable  


foreseeability that theplaintiff-witness would suffer emotionalharm."13 Afterconcluding  


that it was reasonably foreseeable that the father in Kavorkian III would appear at the  


scene of the accident, we allowed his NIED claim to go forward.14  


                             A year later, in Croft ex rel. Croft v. Wicker, we reiterated our rejection of  


the "strict application of the Dillon  guidelines" under which it is "necessary for the  


plaintiff to have witnessed the tortious event."15                                                             The plaintiffs in  Croft alleged that  


Wicker molested their teenaged daughter Sarah while giving her a ride on a three- 


wheeler; the parents did not allege that they witnessed the assault itself but only that they  


"were in close proximity when Wicker sexually assaulted Sarah and witnessed their  


daughter's extreme emotional distress, and consequently suffered emotional distress  


               12            Id.  at 1041 (quoting                        Dillon v. Legg                  , 441 P.2d 912, 920 (Cal. 1968)).                                          



                             Id. at 1043.  



                             Id .  



                             737 P.2d 789, 791 (Alaska 1987).  

                                                                                           -6-                                                                                    7370

----------------------- Page 7-----------------------


themselves."                   We explained in                   Croft  our recognition of the NIED tort in                                        Kavorkian III   

 and cited several California cases in which parents who did not witness the tortious event                                                                         

were   nonetheless   allowed   to   recover   after   coming   upon   the   event's   immediate  

                              17   We held that the parents in Croft stated a claim under Alaska law:  


                            [C]oncededly                     the         Crofts            did          not         sensorily                and  


                           contemporaneously observe the incident  of sexual assault  


                           alleged  here.   Our discussion of Kavorkian  and the other  


                           cases cited makes clear, however, that it is the reasonable  


                           foreseeability to the defendant of harm to the plaintiff that  


                           generates the defendant's duty to exercise reasonable care.[18]  


                           Because "the Crofts were in close proximity to Wicker and Sarah when the  


 alleged incident occurred," because "[t]hey observed her extreme distress just after the  


 alleged assault occurred," and because there was some question as to whether it was  


 "reasonably foreseeable to Wicker that Sarah's parents would be in close proximity and  


therefore harmed by his actions," the Crofts' claim was sufficiently pleaded to go to the  


jury. 19  


              16           Id.  at 790.   

              17           Id.   at   792;   see   also   id.   at   791-92   (summarizing   California   cases   as  

 concluding "that there were triable issues of fact as to whether the alleged harm to the  


mother resulted from an emotional shock caused by the direct emotional impact from the                                                                                   

 contemporaneous   observation   of   the   immediate   consequences   of   the   defendant's  

negligent act causing the injury and death of her son" and "that the shock of seeing a                                                                                      

 child severely injured immediately after the tortious event may be just as profound as that  


 experienced in witnessing the accident itself, and that therefore the plaintiff had met the  


 contemporaneous observance requirement" (first citing Nazaroff v. Superior Court, 145  


 Cal. Rptr. 723 (Cal. App. 1978); then citing Archibald v. Braverman , 79 Cal. Rptr. 657  


 (Cal. App. 1969))).     

              18           Id. at 792.  


              19           Id.  


                                                                                     -7-                                                                            7370

----------------------- Page 8-----------------------

                               In this case, in a clarifying order on reconsideration, the superior court                                                                                    

focused on a sentence in                                   Mattingly v. Sheldon Jackson College                                                     , in which we said that           

"the shock [must] result more or less contemporaneously with the plaintiff's learning of                                                                                                             

                                                                                20      The superior court interpreted this to mean that  

the nature of the victim's injury."                                                                                                                                                              

Doan's recovery depended on her subjective understanding of events; the court read the  


phrase "the nature of the victim's injury" to mean that an NIED plaintiff must understand  


not just the physical nature of the injury - traumatic bodily injury or death - but also  


the legal nature of the injury - negligence.  


                               Mattingly concerned the collapse of a trench in which Mattingly's son had  


been working.21                        The accident happened in Sitka, but Mattingly was in Ketchikan when  


he learned of it.22                         The facts of Mattingly thus did not require the court to distinguish  


between the physical and the legal nature of an injury - Mattingly was not in a position  


to  have  directly  perceived  either  one.                                                       But  explaining  why  geographical  distance  


precluded Mattingly's NIED claim, we noted that "it cannot be said that the shock of  


observing his injured son  . . . followed 'closely on the heels of the accident,' " that  


Mattingly "had time to steel himself during his flight to Sitka," and that "[t]here was no  


                                                                                                             23   Thus, in the context of describing "the  

sudden sensory observation of his injured son." 


nature of the victim's injury," our focus was on the victim - the sight of whom is likely  


to cause the emotional harm - rather than the actions of the tortfeasor.  And to support  


the sentence in Mattingly that contained the phrase "the nature of the victim's injury,"  


                20             743 P.2d 356, 365-66 (Alaska 1987).                                     

                21             Id.  at 358.               

                22             Id.  at 358, 365.                    

                23             Id.  at 365-66 (emphasis added).                                             

                                                                                                  -8-                                                                                         7370

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we cited         Croft, which, as noted above, explicitly rejected a requirement that the plaintiff                                                       

observe the tortious act as opposed to its immediate impact on the victim.                                                                      24  

                          We reaffirmed  this interpretation of the NIED claim in  Beck  v.  State,  


Department of Transportation & Public Facilities, in which we declined to follow the  


California Supreme Court's tightening of the Dillon test.25   A mother was at home when  


she learned that her daughter had been involved in an accident six miles away.26                                                                                  The  


mother  immediately  drove  to  the  scene,  but  rescue  workers  prevented  her  "from  


approaching the wrecked vehicle which still contained her injured daughter."27                                                                                    The  


mother then drove to the hospital, where she "saw her injured daughter for the first  


time."28   She later sued the State for negligent maintenance, repair, and signage, alleging  


that road crews had negligently left "rain soaked slide debris on the roadway" which both  


obscured the lane markings and caused her daughter to lose control.29  


                          The State in Beck urged us to follow the approach taken by the California  


                                                                                30     Decided  after  Kavorkian  III,  Croft,  and  

Supreme  Court  in  Thing  v.  La  Chusa.                                                                                                                         


Mattingly - and concluding that the Dillon  factors were leading "to uncertainty and  


             24           Id.  at 366 n.3 (citing                  Croft, 737 P.2d 789).            

             25           837 P.2d 105, 110 (Alaska 1992) (citing                                        Thing v. La Chusa                   , 771 P.2d 814        

(Cal. 1989)).   

             26           Id. at 109.  


             27           Id.  

             28           Id. at 109-10.  


             29           Id. at 108.  


             30           Id. at 110.  


                                                                                  -9-                                                                           7370

----------------------- Page 10-----------------------


 'ever widening circles of liability' "                          -  Thing  adopted a "bright-line" interpretation of                                

Dillon  that required, as its second element, that the plaintiff be "present at the scene of                                                        

the injury[-]producing event at the time it occurs and [be] then aware that it is causing                                          

                                     32   In Beck we decided, however, "that both justice and the policy  

injury to the victim."                                                                                                                

favoring reasonable limitations on liability [could] be served with a less restrictive  


approach than that taken by the Thing court":  We held  


                       that one who is thrust, either voluntarily or involuntarily, into  


                       such  dramatic  events  and  who  makes  a  sudden  sensory  


                       observation of the traumatic injuries of a close relative in the  


                       immediate aftermath of the event which produced them is no  


                       less entitled to assert a claim for his or her emotional injuries  


                       than one who actually witnessed the event.[33]  


Because in Beck the mother's "emotional shock resulted from her observation of her  


daughter's traumatic injuries during the continuous flow of events in the immediate  


aftermath of the accident, and because it cannot be said that she had time to 'steel herself'  


as did the plaintiff in Mattingly," we concluded "that her injury was foreseeable" and her  


NIED claim should be presented to the jury.34  


            31         Id.  at 110 n.2 (quoting                Thing, 771 P.2d at 819).           

            32          Thing, 771 P.2d at 829-30; see Beck, 837 P.2d at 110 n.2.  The second  


Dillon   element,  which  we  decided  in  Kavorkian  III  to  give  its  "more  liberal  


interpretation," 727 P.2d 1038, 1043 (Alaska 1986), had previously required that "the  


shock  result[]  from a  direct  emotional  impact  upon  plaintiff  from the  sensory  and  


contemporaneous observance of the accident, as contrasted with learning of the accident  


from others after its occurrence." Id. at 1041 (quoting Dillon v. Legg, 441 P.2d 912, 920  


(Cal. 1968)).  


            33         Beck, 837 P.2d at 110.  


            34         Id. at 111.  


                                                                        -10-                                                                  7370

----------------------- Page 11-----------------------

                          None of these formative cases -                                  Kavorkian III              ,  Croft,  Mattingly, or                 Beck  

-  supports the rule the doctors propose here:                                            that Doan "cannot recover on [an] NIED                             

bystander claim unless she contemporaneously comprehended that allegedly negligent                                                                     

medical treatment was causing injury to her daughter."                                                           The father in              Kavorkian III   

brought a dram shop action against the bar that had served alcohol to the driver who                                                                            

                                                         35  The father clearly knew there had been an accident when  

allegedly caused the accident.                                                                                                                                 

he  saw  his  injured  daughter  being  extricated  from  the  wreckage,  but  there  is  no  


indication he knew anything about its cause, let alone that it involved the negligence of  


a server in a bar some distance away.  The parents in Croft knew that something had  


happened when they witnessed their daughter's emotional distressat theend ofher three- 


wheelerride, but thereis no indication they "contemporaneouslycomprehended"thather  


distress was caused by Wicker's sexual assault. The father in Mattingly was denied relief  


because he had time to steel himself before viewing his son's injuries; whether he had  


any contemporaneous understanding of the cause of the trench's collapse played no part  


in our opinion (though under the doctors' proposed rule it could have been dispositive).  


And the mother in Beck, like the father in Kavorkian III, knew there had been an accident  


when she viewed its wreckage and then saw her daughter at the hospital, but again there  


is noindication that shecontemporaneouslycomprehended theallegedly negligent cause  


- involving the State's work on the road.   Determinative in each of these cases -  


entitling the parents to a possible tort recovery in Kavorkian III, Croft, and Beck and  


precluding the father's recovery in Mattingly -was simply whether there was a "sudden  




                          727  P.2d  at  1039-40;  see  also  Kavorkian  v.  Tommy's  Elbow  Room  


(Kavorkian II), 711 P.2d 521 (Alaska 1985) (detailing alcohol-related aspects of case).  

                                                                                -11-                                                                                 7370  

----------------------- Page 12-----------------------

sensory   observation   of   the   traumatic   injuries   of   a   close   relative   in   the   immediate  

aftermath of the event which produced them."                                                                   36  

                                It is the emotional impact of the injury that the NIED tort is intended to  


address. To require that an emotionally distressed plaintiff also recognize negligence as  


it is occurring is asking too much.  As noted above, negligence is not always obvious;  


a conclusion that someone was negligent often follows the acquisition of facts not readily  


apparent from the scene itself, e.g., that one driver was under the influence of alcohol,  

that he was negligently served at a bar, that the roadway was poorly maintained, or that  


a vehicle's brakes failed.  Requiring a contemporaneous perception of negligence adds  


an element of caprice that has no relationship to the harm suffered.  When confronted  


with a sudden, terrible injury to a loved one, one plaintiff might retain the clarity of mind  


necessary to judge the reasonableness of the tortfeasor's actions, while another plaintiff  


might be overwhelmed by the trauma or consumed by concern for the loved one. Under  


the  doctors'  proposed  rule  the  first  plaintiff  will  recover  but  the  second  will  not.  


Recovery may also depend on the plaintiff's level of sophistication, particularly in the  


area of medical malpractice (as the superior court recognized in limiting recovery to  


"blatant medical errors obvious to laypersons"). Aphysician who recognizes negligence  


in the care of a loved one may recover, whereas a layperson who suffers the same  


emotional hurt but lacks a medical education has no remedy. And the rule raises difficult  


                36              Beck, 837 P.2d at 110;                                  see Mattingly v. Sheldon Jackson Coll.                                                         , 743 P.2d   

356, 366 (Alaska 1987) ("There was no sudden sensoryobservation of                                                                                                   his injured son.");        

Croft ex rel. Croft v. Wicker                                     , 737 P.2d 789, 792 (Alaska 1987) ("[The parents] observed                                                              

[the daughter's] extreme distress just after the alleged assault occurred.");                                                                                                Kavorkian III                    ,  

727 P.2d at 1043 ("Upon arriving at the scene, . . . [the father] perceived and suffered                                                                                                    

shock from observing his child's injury.").                                      

                                                                                                   -12-                                                                                             7370

----------------------- Page 13-----------------------

questions of how closely the plaintiff's perception of negligence must match the proof                                                                                                            

at trial.          37  

                                     The doctors contend  that this court "has never  permitted  recovery  for  


negligent infliction of emotional distress in favor of a non-patient against a medical  


provider for treatment provided to a family member/patient," but the cases they cite do  


not preclude such a recovery.   In  Chizmar v. Mackie, which the doctors cite for the  


proposition that NIED claims cannot be based on "foreseeability alone," we held 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."38  


Chizmar was not a bystander claim but rather involved a patient's claim against her  


physician; we held that the superior court erred by directing a verdict against the plaintiff  


                                   39     But we also held that we did not intend to "modify the requirements for  

on the claim.                                                                                                                                                                                                                        


                  37                 Assume, for example, that the plaintiff perceives that a nurse is providing                                                                                                  

negligent   care   when   the   nurse   is   actually   following the                                                                                            negligent   instructions   of   a  

supervisor.     May the plaintiff recover for NIED even                                                                                                    though she misidentified the                                             

negligent actor?                                If the plaintiff perceives one actor's negligence but later learns that                                                                                                           

others were negligent as well, are her emotional distress damages prorated to reflect only                                                                                                                                        

the negligence she contemporaneously recognized?                                                                                                    May the plaintiff recover if the                                                

evidence shows negligence but not as the plaintiff contemporaneously perceived it (e.g.,                                                                                                                                      

she thought a nurse failed to give a necessary medication when actually the nurse gave                                                                                                                                          

too much)?   

                  38                 896 P.2d 196, 203 (Alaska 1995).  


                  39                Id. at 205.  


                                                                                                                 -13-                                                                                                           7370

----------------------- Page 14-----------------------


 'bystander' recovery we applied in                                Mattingly ."     Chizmar  - and other "preexisting   

                                                                    41                                                                                        42  

duty" cases on which the doctors rely                                                                                                               

                                                                       - are largely irrelevant to our discussion today. 

                         The doctors also cite M.A. v. United States, in which we determined, on a  


certified question from the federal court, that a mother did not have an NIED claim  


arising  from  a  doctor's  negligent  failure  to  diagnose  the  pregnancy  of  her  minor  


daughter.43            But the mother's claim failed for a number of reasons, none of which are  


determinative here:  


                         [The mother] was not in close proximity to [the daughter],  


                         either at the time of the alleged misdiagnosis or when [the  


                         daughter]  subsequently  learned  of  her  pregnancy;  [the  


                         mother's] eventual "shock," if any, does not appear to have  


                         occurred contemporaneously with her daughter's discovery  


                         of the injury; and there is no indication that the immediate  


                         "shock" came in response to the alleged injury -the lateness  


             40          Id.  at 204.   

             41          The doctors discuss the preexisting duty cases of                                          Hawks v   .  Department of   

Public Safety, 908 P.2d 1013, 1016-17 (Alaska 1995), and Karen L. v. State, Department  


of Health &Social Services, Division of Family &Youth Services                                                          , 953 P.2d 871, 875-78         

(Alaska 1998). The doctors point out that we discussed bystander cases in                                                                Karen L.        , but   

we explicitly noted that they were decided "[i]n another context," id. at 875, and we cited  


them only to illustrate the concept of foreseeability common to all NIED claims.  See  


Kallstrom v. U.S., 43 P.3d 162, 165-66 (Alaska 2002) (outlining distinction between  


bystander and preexisting duty theories of NIED recovery).  


             42          The doctors assert that we "affirmed the trial court's 'finding that no duty  


was owed to the [plaintiff's] children under a negligent infliction of emotional distress  


claim,' " quoting our discussion of the trial court proceedings, but the children's NIED  


claim was  not  at  issue  on  appeal.                                We  did  address  the  children's  separate  loss  of  


consortium claim.  Chizmar, 896 P.2d at 212-13.  


             43          951 P.2d 851, 856 (Alaska 1998).  


                                                                             -14-                                                                       7370

----------------------- Page 15-----------------------

                                 of the pregnancy's discovery - rather than to discovery of                                                            

                                 the pregnancy itself.                              [44]  

Here, on the other hand, taking Doan's allegations as true,45  



                                                                                                                                                     she was in close proximity  


to her daughter both at the time of the defendants' negligence and at the time of her  


daughter's  death;  the  defendants'  negligence  caused  the  death;  and  Doan's  shock  


occurred contemporaneously when she observed her daughter's body.  


                                 The doctors contend that Doan's NIED claim not only is barred by our  


existing case law but also contravenes legislative policy, evident in AS 09.55.530-.560,  


setting out procedural and evidentiary rules for medical malpractice cases, including  


limitations on damages. But none of the cited statutes address the viability of a bystander  


NIED  claim.                          And  although  the  the  doctors  predict  that  allowing  NIED  claims  in  


circumstances like these"[will]greatly burden themedical community,"we note that our  


case law has never excepted "the medical community" from NIED claims.  Such claims  


involving medical care providers have been available since we decided Kavorkian III in  


 1986,  subject  to  the  same  stringent  requirements  of  proof  applicable  in  other  tort  



contexts, and they have not prompted a crisis of care or a legislative response. 

                 44              Id.  

                 45              See Mitchell v. Teck Cominco Alaska Inc.                                                                , 193 P.3d 751, 757-58 (Alaska                             

2008) ("[T]he non-movant's version of the facts must be accepted as true and capable                                                                                           

of proof, and we make no attempt to weigh the evidence or evaluate witness credibility.                                                                                                      

All reasonable inferences to be drawn from the facts presented must be drawn in favor                                                                                                                     

of the non-moving party." (footnote omitted)).                                                                         

                 46              The  doctors  rely  on  cases  from  several  other  states  besides  the  later  


California cases that narrowed the Dillon test.  Other jurisdictions reject NIED claims  


in the medical malpractice context for different reasons. Several disallow them because  


of the bystander's likely inability to distinguish between proper and negligent medical  


care - a rationale which supports our decision here. See Squeo v. Norwalk Hosp. Ass'n,  



                                                                                                       -15-                                                                                                7370

----------------------- Page 16-----------------------

                            We conclude, in sum, that a bystander's claim for NIED remains as it was                                                                        

explained in               Kavorkian III                ,  Croft,  Mattingly, and                      Beck :  

                            Where, as here, the plaintiff experiences shock as the result                                                    

                            of a sudden sensory observation                                         of a loved one's serious             

                            injuries during                  an   uninterrupted   flow of events following                          

                            "closely on the heels of the accident," such emotional injury                                                    

                            is foreseeable and the plaintiff is entitled to assert a claim for                                                     


The test contains no requirement that the plaintiff contemporaneously comprehend that  


the loved one's injuries were negligently caused.  Doan's complaint stated a claim for  

relief under a bystander theory of recovery for NIED, and the claimshould have survived  


summary judgment.48  


              46            (...continued)  


 113 A.3d 932, 946 (Conn. 2015) ("[T]he rule [limiting NIED claims to cases of gross  


negligence obvious to a lay observer] recognizes that laypeople are not qualified to  


assess whether  most types of medical judgments and  procedures  meet the relevant  


standard of care."); Edinburg Hosp. Auth. v. TreviƱo, 941 S.W.2d 76, 81 (Tex. 1997) ("A  


bystander may not be able to distinguish between medical treatment that helps the patient  


and conduct that is harmful.").   The Wisconsin Supreme Court has decided that the  


state's Medical Malpractice Act "exclusively governs all claims arising out of medical  


malpractice" and that bystander NIED claims are not allowed because they are not  


included in the Act.  Phelps v. Physician's Ins. Co. of Wis., Inc., 768 N.W.2d 615, 635- 


36 (Wis. 2009).  We do not discern a consistent treatment of such claims by other state  


courts that should make us reconsider our own case law.  

              47            Beck  v.  State,  Dep't  of  Transp.  & Pub.  Facilities,  837  P.2d  105,  110  


(Alaska 1992).  


              48            We note finally that the doctors raise several alternative arguments that  


were not addressed by the superior court, including:  (1) that Doan's NIED claim is  


entirely barred by the wrongful death statute, AS 09.55.580, and (2) that Doan has a  


disqualifying conflict of interest as both representative of the estate and individual  


plaintiff on the NIED claim.  Because the superior court has not addressed these issues,  



                                                                                      -16-                                                                                7370

----------------------- Page 17-----------------------


                   We REVERSE the entry of summary judgment against Doan on her claim  


for negligent infliction of emotional distress and REMAND the case to the superior court  


for further proceedings consistent with this opinion.  


         48        (...continued)  


we do not decide them on this petition.  

                                                          -17-                                                       7370  

----------------------- Page 18-----------------------


WINFREE, Justice, concurring.  


                    I write separately to (1) elaborate on the distinction between the negligent  


infliction of emotional distress (NIED) claim requirements that a bystander-plaintiff  


(a)  be  physically  present  at  the  injury-causing  event  and  (b)  contemporaneously  


recognize that the injury-causing event was the result of someone's tortious conduct; and  


(2) address the separate concurring opinion's focus on our past rejection of the physical  


presence requirement.  


                    This matter comes to us on petition for review from the superior court's  


summaryjudgmentorder dismissing NixolaDoan's bystander NIEDclaim. Thesuperior  


court's legal rationale was that our existing NIED case law requires a bystander-plaintiff  


-  contemporaneously  with  the  shocking  observation  of  a  loved-one's  harm - to  


specifically  recognize  that  a  tort  brought  about  that  harm.                               We  accepted  Doan's  


unopposed petition for review to consider only that legal ruling.   Today's decision  


correctly concludes that the superior court's interpretation of our existing case law was  


incorrect.        A bystander-plaintiff,  even  a bystander-plaintiff asserting  an underlying  


medicalmalpracticeclaim,does not need to proveacontemporaneous understanding that  


the loved-one's harm was caused by tortious conduct.  


                    The separate concurring opinion suggests that today's decision expands  


liability under Alaska's NIED case law, especially in the medical malpractice context.  


Today's decision does nothing of the kind.   Our existing NIED case law never has  


included, and does not now include, the legal requirement the superior court imposed;  


our existing NIED case law never has supported (or even suggested), and does not now  


support, a special carve-out for NIED claims based on underlying medical malpractice  


torts.  Today's decision in no way expands NIED liability; it instead rejects a  new legal  


theory which, if adopted, would limit NIED liability.  

                                                              -18-                                                         7370

----------------------- Page 19-----------------------

                                     The bulk of the separate concurring opinion's discussion relates to a legal                                                                                                            

 issue that was not ruled on by the superior court, was not a subject of our granted petition                                                                                                                         

 for review, was not briefed by the parties, and was not considered by this court.                                                                                                                                            The  

 separate concurring opinion questions our existing NIED case law regarding                                                                                                                                          when   a  

 bystander must observe a loved-one's harm, and it posits that we should follow the                                                                                                                                              

 California Supreme Court's                                                    Thing v. La Chusa                                     decision by limiting NIED claims to                                                            

                                                                                                                                                                        1   This court rejected that  

 bystanders who actually are present at the harm-causing event.                                                                                                                                                                 

 course nearly 30 years ago in Beck v. State, Department of Transportation & Public  


                            2       The  separate  concurring  opinion  concludes  that  Beck  was  erroneously  


 decided and failed "to place sensible limits on NIED claims" - an issue not raised in  


 this petition for review - and that it is only the doctrine of stare decisis that causes  


joinder in today's decision.  


                                     But even if this court had, nearly 30 years ago, decided Beck differently and  


 followed  Thing,  today's  decision  - addressing  whether  a  bystander-plaintiff  must  


 contemporaneously appreciate that tortious conduct underlies the injury-causing event  


- would be the same.  The facts of Beck and Thing are similar.  In Beck a mother drove  


 to the site of her daughter's vehicle accident and then to a hospital where she first saw  


 her daughter's injured body.3                                                       The mother later sued the state for NIED for failure to  


 maintain road conditions.4  In Thing a son was struck by a car.5  Although his mother was  


                   1                 771 P.2d 814, 829-30 (Cal. 1989).                                          

                   2                 837 P.2d 105, 110 (Alaska 1992).                                                             

                   3                Id.  at 109.   

                   4                Id.  

                   5                 771 P.2d at 815.                

                                                                                                                -19-                                                                                                         7370

----------------------- Page 20-----------------------


nearby, she did not see or hear the accident.                                       The mother became aware of the accident                       


moments later; she rushed to the scene and saw her son lying in the street.                                                                         

                                                                                                                                           The mother  

                                                                                 8  In neither case was the bystander-plaintiff  



subsequently sued the car's driver for NIED. 

aware,  upon  first  seeing  the  victim,  that  the  injuries  were  a  result  of  someone's  



                         The Thing court reversed precedent and created a new physical-presence  


requirement for bystander-NIED claims:  The plaintiff must be "present at the scene of  


the injury-producing event at the time it occurs and . . . then aware that it is causing  


injury to the victim."9                       But the  Thing court did not require a bystander-plaintiff to  


understand,  when  witnessing  the  victim's  injury,  that  the  injury  was  caused  by  


negligence  or  other  tortious  conduct.                                  It  was  only  later,  in  Bird  v.  Saenz,  that  the  


California Supreme Court further required - in the context of a medical malpractice  


claim - that a bystander-plaintiff demonstrate contemporaneous awareness of medical  


                                                                                                           10   In that case plaintiffs sued  

negligence in connection with the injury-producing event.                                                                                                


defendant medical providers for NIED related to healthcare provided to the plaintiffs'  


mother.11           Because the rule adopted in Thing required the plaintiff to "be aware of the  


connection between the injury-producing event and the injury," the Bird court decided  


that "unperceived medical errors hidden in a course of treatment" could not serve as an  


            6            Id.  

            7            Id.  

            8            Id.  

            9            Id.   

             10          51 P.3d 324, 330 (Cal. 2002).               

             11          Id.  at 325-26.   

                                                                            -20-                                                                       7370

----------------------- Page 21-----------------------


injury-producing event for purposes of NIED claims.                                                                      But the         Bird  court indicated that                    

some forms of medical malpractice still may support an NIED claim, explaining:                                                                            

                              This is not to say that a layperson can never perceive medical                                                    

                             negligence, or that one who does perceive it cannot assert a                                   

                             valid claim for NIED.                                To suggest an extreme example, a                                             

                              layperson   who   watched   as   a   relative's   sound   limb   was  

                              amputated   by   mistake   might   well  have   a   valid   claim   for  

                             NIED   against  the   surgeon.     Such   an   accident,   and   its  

                              injury-causing effects, would not lie beyond the plaintiff's                                                  

                             understanding awareness.  But the same cannot be assumed   

                              of medical malpractice generally.                                        [13]  

Although Bird relied on Thing to create an additional NIED requirement, at least in the  


medical malpractice context, Thing itself did not require a bystander-plaintiff claiming  


NIED to be aware of underlying tortious conduct when seeing the injury-producing  



                              The doctors in this case understand the distinction between the Thing and  


Bird holdings. Theyposit that, notwithstanding Beck 's rejection of Thing's requirements  


that the bystander be physically present and observe the injury-causing event, we should  


followcourts defining "injury-causing event"in the medical malpractice context to mean  


obviously (to the bystander) negligent medical care.  Under this view - which today's  


decision rejects - the absence of a contemporaneous recognition of negligent medical  


care is cast as the bystander's failure to recognize that an injury-causing event has  




                             Adherence to Beck is not at issue in this petition for review.  The question  


raised by the petition for review is whether we should impose a new restriction for NIED  


claims based on allegations of underlying medical malpractice.  I agree with today's  


               12            Id.  at  331.  

               13            Id.  at  329.  

                                                                                           -21-                                                                                            7370  

----------------------- Page 22-----------------------

decision   to   reject   the   proposed   restriction;   I   disagree   with   the   separate   concurring  

opinion that the result is mandated by stare decisis adherence to                                                                                           Beck.  

                                                                                                           -22-                                                                                       7370

----------------------- Page 23-----------------------

STOWERS, Chief Justice, concurring.                    

                           I concur in the result reached by the court, but only under the compulsion                                                 

                                                                                                                                                               1  Croft  

of our precedent in                      Tommy's Elbow Room, Inc. v. Kavorkian                                                 (Kavorkian III),   

                                              2                                                                               3 and especially Beck v.  

                                                Mattingly v. Sheldon Jackson College,                                                                          

ex rel. Croft v. Wicker,                                                                                      


State, Department of Transportation & Public Facilities.                                                                While the court concludes  


here that a "bystander's claim for negligent infliction of emotional distress remains as  


it  was  explained  in  Kavorkian  III,  Croft, Mattingly,  and Beck,"5   I  worry  this  case  


represents   another expansion of liability - particularly in the medical malpractice  


context where the legislature has acted to constrain tort liability.6  


                           Inourformativebystander negligent infliction ofemotional distress(NIED)  


cases, the plaintiffs observed a relative's injuries contemporaneously with or closely on  


the heels of learning of the events that caused them. In contrast, Doan was in the hospital  


waiting room when much of the alleged medical malpractice occurred, and upon seeing  


her daughter's body, she was not contemporaneously aware of the "nature" of Tristana's  


injuries, i.e., that Tristana's death was allegedly caused by the conduct of her doctors,  


rather than by her underlying condition.  


                           Doan's case is similar to Beck.   As the court explains above, in Beck  a  


mother  was  at  home  when  she  learned  that  her  daughter  had  been  involved  in  an  


             1             727 P.2d 1038 (Alaska 1986).                    



                           737 P.2d 789 (Alaska 1987).  

             3             743 P.2d 356 (Alaska 1987).                  

             4             837 P.2d 105 (Alaska 1992).  


             5             Op. at 16.     



                           See AS 09.55.530-.560.  

                                                                                   -23-                                                                            7370

----------------------- Page 24-----------------------


automobile accident six miles away.                          The mother immediately drove to the scene, but                

rescue   workers   prevented   her   "from   approaching   the   wrecked   vehicle   which   still  

                                                   8   The mother then drove to the hospital where she "saw  

contained her injured daughter."                                                                                                   

                                                              9Among other claims the mother sued the State  

her injured daughter for the first time."                                                                                    

for NIED.   The State argued that we should limit NIED claims to cases where the  


plaintiff was actually present at the scene of the injury-producing event and was aware  


that it caused the injury to the victim.10                       We explained: "The State urges us to restrict  


NIED claims by applying the Dillon factors as strict requirements rather than guidelines,  


the approach taken by the California Supreme Court in Thing v. La Chusa."11                                                   But we  


expressly declined to adopt the California Supreme Court's limitation on NIED liability,  


explaining "that both justice and the policy favoring reasonable limitations on liability  


                                                                                  12  We held "that one who is thrust,  

[could] be served with a less restrictive approach."                                                          


either voluntarily or involuntarily, into such dramatic events and who makes a sudden  


sensory  observation  of  the  traumatic  injuries  of  a  close  relative  in  the  immediate  


aftermath of the event which produced them is no less entitled to assert a claim for his  


or her emotional injuries than one who actually witnessed the event."13  


           7         837  P.2d  at   109.  

           8         Id .  

           9         Id.  at   110.  

           10        Id .   

           11        Id .  (citing  Dillon  v.  Legg,  441  P.2d  912  (Cal.  1968)  and  Thing  v.  La  Chusa,  

771  P.2d  814  (Cal.   1989)).  

           12        Id .  

           13        Id .  

                                                                  -24-                                                            7370

----------------------- Page 25-----------------------

                                          In my view this court missed the opportunity to place sensible limits on                                                                                                                                                   

NIED claims in                                   Beck. The rule articulated by the California Supreme Court in                                                                                                                               Thing  was  

a reasonable and necessary approach to bystander NIED claims:                                                                                                                                             

                                          [A]   plaintiff   may   recover   damages   for   emotional   distress  

                                          caused by observing the negligently inflicted injury of a third                                                                                                          

                                          person if,                    but only if                       , said plaintiff:                              (1) is closely related to                                           

                                          the injury victim; (2) is present at the scene of the injury                                                                                                          

                                          producing event at the time it occurs and  is then aware that  

                                          it is causing injury to the victim                                                                   ; and (3) as a result suffers                                  

                                          serious emotional distress - a reaction beyond that which                                                                                                             

                                          would be anticipated in a disinterested witness and which is                                                                                                                         

                                          not an abnormal response to the circumstances.                                                                                                     [14]  

The Thing court rightly recognized that "[l]ittle consideration [was] given in post-Dillon  


decisions to the importance of avoiding the limitless exposure to liability that the pure  


foreseeability test of 'duty' would create."15                                                                                                      The court retreated from its unwieldy  


precedent in  Dillon, which had created a progressively expansive class of possible  


plaintiffs for bystander NIED claims.16  As the court concluded, "the societal benefits of  


certainty in the law, as well as traditional concepts of tort law, dictate limitation of  


bystander recovery of damages for emotional distress."17  


                                          Because this court purposefully and explicitly declined to join California  


in tightening the law for bystander NIED claims in Beck, respecting the doctrine of stare  


decisis I am compelled to follow the law as this court expressed it.  I therefore concur in  


the  opinion  of  the  court.                                                          But  I  am concerned  that  our  case  law  is  expanding  the  


                     14                   Thing, 771 P.2d at 829-30 (emphasis added) (footnotes omitted).                                                                                                               

                     15                  Id. at 821 (referencing Dillon, 441 P.2d 912).  


                     16                  Id.  at 828-30.   



                                         Id. at 815.  

                                                                                                                                 -25-                                                                                                                         7370

----------------------- Page 26-----------------------

boundaries of NIED                                            into an ever-widening circle of liability; at some point, almost any                                                                                                                        

conceivable   emotional  injury   following   injury   to   a   closely   related   relative   will   be  

foreseeable, and if foreseeable, then actionable.                                                                                                

                                                                                                                                     -26-                                                                                                            7370

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