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Court of Appeal, First District, Division 4, California.

Stephen H. MOLIEN, Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents.

Civ. 44676.

Decided: August 29, 1979

Herbert W. Yanowitz, San Francisco, for plaintiff and appellant. McNamara, Lewis, Dodge & Houston by Richard E. Dodge, Paul M. Hoff, Walnut Creek, Cal., for defendants and respondents.

Stephen H. Molien appeals from a judgment1 dismissing upon demurrer an action in which he sought damages from respondents Kaiser Foundation Hospitals and Thomas Kilbridge, M.D. The complaint alleged loss of marital consortium and emotional distress caused by medical negligence in diagnosing and treating appellant's wife.

Appellant alleged that he and his wife were covered by a medical plan serviced by Kaiser Foundation Hospitals. Mrs. Molien went to Kaiser for diagnostic procedures, following which she was informed by respondent Kilbridge that she had contracted syphilis. She was advised to tell her husband of the diagnosis. She was subjected to “massive . . . doses of penicillin.” Appellant was subjected to a blood test, which established that he did not have syphilis.

The incident caused Mrs. Molien to suspect her husband of extramarital sexual activities. Tension and hostility arose, and the marriage broke up.

The diagnosis of Mrs. Molien was in error: she did not have syphilis.

Appellant contends that his pleading states a cause of action for loss of consortium arising from medical malpractice (citing Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669). Previous loss of consortium cases have involved physical injury to the nonplaintiff spouse. Here, appellant's claim is that loss of consortium resulted from an emotional state induced in his wife by the misdiagnosis of syphilis. The question whether a cause of action for loss of consortium can be maintained where the loss is not the result of physical injuries to the nonplaintiff spouse does not appear to have been addressed in any published California decision.

In Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, the Supreme Court disapproved prior California decisions which denied a spouse recovery for loss of consortium and held that “each spouse has a cause of action for loss of consortium, . . . caused by a negligent or intentional injury to the other spouse by a third party.” (Id., at p. 408, 115 Cal.Rptr., at p. 782, 525 P.2d at p. 686; overruling Deshotel v. Atchison, T. & S.F. Ry. Co. (1958) 50 Cal.2d 664, 328 P.2d 449, and West v. City of San Diego (1960) 54 Cal.2d 469, 6 Cal.Rptr. 289, 353 P.2d 929.) In Rodriguez, the husband was struck on the head by a falling pipe weighing over 600 pounds. The blow caused severe spinal cord damage which left him almost totally paralyzed. As a consequence, his wife's social and recreational life was severely restricted, she was required to leave her employment to nurse her husband through his pain and mental anguish, view and minister to his physiological needs, and sacrifice sexual relations and all hope of bearing his children. (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 385-386, 115 Cal.Rptr. 765, 525 P.2d 669.)

Respondents argue that the type of injury contemplated by the Supreme Court in Rodriguez as giving rise to a cause of action for loss of consortium was a “severely disabling injury.” The court in Rodriguez referred to loss of consortium cases as “serious injury cases” (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 408, fn. 30, 115 Cal.Rptr. 765, 525 P.2d 669); one subsequent court has remarked that the cause of action for loss of consortium “arises out of the bodily injury to the spouse who can no longer perform the spousal functions.” (United Services Automobile Assn. v. Warner (1976) 64 Cal.App.3d 957, 964, 135 Cal.Rptr. 34, 38.) It is clear from the language of the Rodriguez decision that in extending the remedy for loss of consortium in a case where defendant's negligent act caused grievous physical injury, the court contemplated essentially the situation in which the defendant engages in conduct which involves the risk of physical harm to another person.

Although these references in Rodriguez and United Services are only dicta, there are other authoritative indications that recovery for loss of marital consortium should be limited to cases of physical injury. In rejecting a claim by a child for loss of parental consortium the Supreme Court has stated: “Judicial recognition of a cause of action for loss of consortium, . . . must be narrowly circumscribed.” (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 444, 138 Cal.Rptr. 302, 304, 563 P.2d 858, 860. Also see Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871.)

Appellant relies on Priola v. Paulino (1977) 72 Cal.App.3d 380, 140 Cal.Rptr. 186. In that case, plaintiff's wife was injured in an automobile accident allegedly caused by the negligence of the defendants. Plaintiff sought damages for loss of consortium. Defendants demurred to the complaint and moved to strike it on the ground that it was barred by the statute of limitations because it was filed more than one year after the wife was injured. The trial court sustained the demurrer. On appeal, plaintiff argued that although his wife sustained her original injuries more than one year before he brought suit, she became permanently disabled less than one year before he brought suit. Plaintiff argued that under Rodriguez his cause of action did not arise until his wife became permanently disabled. The court did not agree, pointing out that the appropriate focus in such a case is not on the injuries sustained by the nonplaintiff spouse but on the degree of loss of conjugal society, comfort, affection, and companionship suffered by the plaintiff spouse. The court concluded “that it is not only in cases with the disastrous injuries recounted in Rodriguez that a cause of action exists for loss of consortium.” When the wife was hurt, “ ‘. . . sustaining injuries to her body,’ . . . the husband's consortium was to some extent reduced and a cause of action arose.” (Id., at pp. 390-391, 140 Cal.Rptr., at p. 192.) But there is no intimation in Priola that recovery for loss of marital consortium can be had in the absence of physical injury.

Only two other jurisdictions, Alabama and Massachusetts, appear to have considered the issue of whether a cause of action for loss of consortium can be maintained in the absence of physical injury. (Slovensky v. Birmingham News Co., Inc. (Ala.Civ.App.1978) 358 So.2d 474; Agis v. Howard Johnson Co. (1976) 371 Mass. 140, 355 N.E.2d 315.)

In Slovensky, plaintiff, alleging that defendants wrongfully discharged her husband, sought damages to compensate for consortium lost due to her husband's mental distress. The court concluded, without analysis, that a recovery for loss of consortium must depend on a physical injury suffered by the nonplaintiff spouse. (Slovensky v. Birmingham News Co., Inc., supra, 358 So.2d 474, 477.) The opposite conclusion was reached in Agis, without helpful analysis. (Agis v. Howard Johnson Co., supra, 371 Mass. 140, 355 N.E.2d 315, 319-320.) Thus, the two decisions are of equivocal effect.

In our view, respondents' alleged misconduct may be likened to negligent alienation of affections, and the cause of action for alienation of affections has been abolished in California. (Civ.Code, s 43.5, subd. (a); Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 218 P.2d 854; also see Lilligren v. Burns I.D. Agency (1916) 135 Minn. 60, 160 N.W. 203; Prosser, Torts (4th ed. 1971) p. 877.)

Appellant contends that he stated a cause of action for negligent infliction of emotional distress. He alleged that respondents negligently concluded that his wife had syphilis, instructed his wife to advise appellant of the diagnosis, and required appellant to submit to a blood test. Appellant alleges emotional distress as a result of these events.

Appellant's complaint for negligent infliction of emotional distress is deficient in two respects: (1) there was no corresponding physical injury and (2) the test of foreseeability is not met.

(1) Absence of Physical Injury

There can be no recovery for negligent infliction of emotional distress in the absence of physical injury. (Quezada v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815.) Because it does not allege a physical injury, appellant's complaint for negligent infliction of emotional distress fails to state a cause of action.

Appellant attempts to avoid this conclusion by suggesting that the drawing of blood was a sufficient “physical impact.” This argument is unpersuasive. Where the actionable negligence results in physical impact, recovery can be had for any corresponding emotional distress. (See Witkin, Summary of Cal. Law (8th ed. 1974) s 886, p. 3171.) Thus, if the actionable negligence had been the blood test, appellant could have recovered for any emotional distress resulting from that act. But where the actionable negligence (here the misdiagnosis) does not involve any physical impact, recovery may not be had unless the emotional distress in turn precipitates some form of physical injury. (Krouse v. Graham (1977) 19 Cal.3d 59, 77, 137 Cal.Rptr. 863, 562 P.2d 1022.) Here, appellant of course does not allege that the blood test resulted from the emotional distress. Therefore, the blood test does not satisfy the physical injury requirement.

(2) Foreseeability

Foreseeability is the primary consideration in determining a defendant's duty of due care to a third party who, as a consequence of defendant's negligence, sustains emotional trauma. (Dillon v. Legg (1968) 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 79, 441 P.2d 912.) In Dillon, the Supreme Court held that a mother who saw her young child struck and killed by the car of an allegedly negligent driver could state a cause of action for physical injuries she suffered from the fright and shock of the event. In order, however, “to limit the otherwise potentially infinite liability which would follow every negligent act,” the Dillon cause of action was restricted to cases in which the court determines that the harm was reasonably foreseeable. (Id., at p. 739, 69 Cal.Rptr. 72, 441 P.2d 912.) The court then listed three factors to be taken into account in making that determination: whether the plaintiff and victim were closely related; whether the plaintiff was present at the scene of the accident; and whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with hearing of the accident from others, after its occurrence. (Id., at pp. 740-741, 69 Cal.Rptr. 72, 441 P.2d 912.)

In the present case, the actionable incident was respondents' alleged negligence in advising appellant's wife that she had contracted syphilis. There was no allegation that appellant was present when this event occurred, and necessarily, this incident could not have caused a direct emotional impact upon appellant from a sensory and contemporaneous observance of the event. Thus, appellant did not satisfy the first two criteria for stating a prima facie case for negligent infliction of emotional distress as set forth in Dillon or as interpreted in the many cases in which these criteria have been applied. (See Justus v. Atchison (1977) 19 Cal.3d 564, 582-585, 139 Cal.Rptr. 97, 565 P.2d 122; Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 560-567, 145 Cal.Rptr. 657; Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 943-949, 137 Cal.Rptr. 619; Hair v. County of Monterey (1975) 45 Cal.App.3d 538, 542-544, 119 Cal.Rptr. 639; Powers v. Sissoev (1974) 39 Cal.App.3d 865, 870-874, 114 Cal.Rptr. 868; Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22, 23-25, 106 Cal.Rptr. 883.) In Jansen, the Dillon rule was held inapplicable to a situation where a mother witnessed her child's painful death in a hospital. Death was due to a negligent diagnosis. The court concluded that the “event causing injury to the child must itself be one which can be the subject of sensory perception.” (Jansen v. Children's Hospital Medical Center, supra, 31 Cal.App.3d 22, 24, 106 Cal.Rptr. 883, 885.) In the present case, the negligent diagnosis of syphilis could not be the subject of sensory perception.

Appellant has failed to state a cause of action for negligent infliction of emotional distress.

The judgment is modified to provide for dismissal of both causes of action. As so modified the judgment is affirmed.

A doctor, inaccurately and contrary to accepted professional standards, diagnoses syphilis in the plaintiff's wife and instructs her to have her husband examined for venereal disease. Her shock, suspicion and hostility culminate in divorce proceedings. In dismissing the husband's complaint for his mental anguish and for his loss of consortium this court relies on two propositions: (1) that the emotional effects of the misdiagnosis were not “foreseeable” and (2) that the husband has not suffered an injury which the law will recognize because neither he nor his wife were Physically harmed. Because I find both propositions impossible to explain as comporting with common sense and because each is, in my view, at odds with the law of this state, I dissent.

I would reverse and remand to let this plaintiff proceed with his action upon the merits.


Loss of Consortium

California recognizes a cause of action for loss of consortium when a third party intentionally or negligently injures the plaintiff's spouse so that the plaintiff no longer enjoys the spouse's conjugal society and companionship. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408, 115 Cal.Rptr. 765, 525 P.2d 669.) The critical question in establishing liability is whether the defendant's conduct foreseeably places the plaintiff in jeopardy of this loss. (Id., at p. 399, 115 Cal.Rptr. 765, 525 P.2d 669.) Mr. Molien's claim is precisely that the misdiagnosis given by defendants cost his wife such emotional distress that it had the foreseeable effect of depriving him of his wife's love, support and conjugal society as evidenced by her initiation of dissolution proceedings.

The complaint before us alleges negligent conduct amounting to medical malpractice which impairs the plaintiff's enjoyment of a protected relational interest. The claim is patterned upon Rodriguez and cannot be dismissed, as the majority has suggested, as akin to an effort to create a cause of action for “negligent alienation of affections.” The old claim for alienation of affections involved Intentional interference with the marriage bond and was typically litigated against the meddling mother-in-law or blackmailable lecher. (See Prosser, Law of Torts, s 124 (4th ed. 1971).) The concerns which led to the abolition of that form of action by Civil Code section 43.5, i. e., vindictive or collusive suits, blackmail, fraudulent claims (Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789, 218 P.2d 854), are not relevant to a claim arising out of objectifiable negligent injuries to the spouse, such as Rodriguez and the present case encompass. The modern complaint certainly does not rest upon a steel company's scheme to break up a marriage or a doctor's attempt to seduce a married woman from hearth and home, but rather upon actionable injuries to the spouse which foreseeably injure the plaintiff by depriving him or her of the spouse's companionship. In Rodriguez “the court brought the conjugal relationship within the protection of the state's longstanding policy of providing a redress for every wrong (and) restored rights which had been whittled away by earlier decisions to their full common law measure. . . .” (Note, Right to Recover for Loss of Consortium, 63 Calif.L.Rev. 323, 324 (1975).)

In Rodriguez the Supreme Court found marriage to be a rational interest worthy of protection, beyond the narrow scope of the disapproved action for alienation of affections. It based the action for loss of consortium not upon intent to interfere with the marriage but rather upon the intimate and predictable consequences of serious injury to a married person. In rejecting the argument that such claims should be refused as “indirect,” the court adopted the approach of Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 toward what might be termed third-party negligence victims. It emphasized the likelihood that serious injury to one marriage partner will hurt the other, and observed that “The loss of companionship, emotional support, love, felicity and sexual relations are real injuries. . . . ‘Those losses were immediate and consequential rather than remote and unforeseeable.’ ” (Rodriguez, supra, 12 Cal.3d at 400, 401, 115 Cal.Rptr. at 776, 525 P.2d at 680, emphasis original.)

The Supreme Court also addressed the criticism that spousal damages for loss of consortium are too speculative to merit recovery. It noted the essentially emotional nature of the injury and drew the parallel to damages for pain and suffering, which are also left to jury determination despite the difficulty of objective proof. “Although loss of consortium may have physical consequences, it is principally a form of mental suffering.” (Rodriguez, supra, at p. 401, 115 Cal.Rptr. at p. 777, 525 P.2d at p. 681.) “ ‘Money . . . cannot truly compensate a wife for the destruction of her marriage, but it is the only known means to compensate for the loss suffered and to symbolize society's recognition that a culpable wrong even if unintentional has been done.’ ” (Id., at p. 402, 115 Cal.Rptr. at p. 778, 525 P.2d at p. 682.) The court concluded, “That the law cannot do enough, in short, is an unacceptable excuse for not doing anything at all.” (Id., at p. 402, 115 Cal.Rptr. at p. 778, 525 P.2d at p. 682.)

Rodriguez recognizes a cause of action where the plaintiff's spouse has suffered “serious injury” (Id., at p. 408, fn. 30, 115 Cal.Rptr. 765, 525 P.2d 669); the injury must clearly be great enough to raise the inference that conjugal society is more than trivially or temporarily impaired. But the effort here to limit Rodriguez to its facts and to require severe bodily injury to the nonplaintiff spouse would deny relief to the plaintiff who very effectively loses the companionship of husband or wife as a result of any nonphysical injury, such as fear and apprehension, chronic depression, psychosis, hostility or severe anxiety. It seems obvious that where the tortious act is verifiable and harm to the plaintiff spouse is foreseeable, there is no reason to deny recovery for such consequential damages as Mr. Molien suffered from the respondents' negligence toward his wife, even though that negligence resulted in emotional rather than physical injury. I find it difficult to believe that if the heavy weight that landed on Mr. Rodriguez had narrowly missed him, reducing him to an emotional vegetable rather than physically crippling him, the result in Rodriguez would have been any different.1

The majority cites two recent cases denying a cause of action for loss of consortium between a parent and child as justification for what I view as a very narrow reading of Rodriguez: Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858, and Baxter v. Superior Court (1977) 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871. These opinions held that loss of consortium should be limited to a Spousal action because the action includes the element of loss of sexual companionship, because Spousal actions do not present the problems of multiplication of claims and damages that parent-child or other consortium relationships do, and because other states do not recognize parent-child actions while most do allow Spousal claims. (Borer, supra, 19 Cal.3d 448, 449, 138 Cal.Rptr. 302, 563 P.2d 858.) These are the reasons that the action for loss of consortium must be “narrowly circumscribed” (Borer, supra, p. 444, 138 Cal.Rptr. 302, 563 P.2d 858), but not one applies to a spousal action like the case at hand. Hence, Borer and Baxter are hardly authority for denying recovery to the husband who has lost sexual and other companionship with his wife because of the tortious conduct of another; he is exactly the sort of plaintiff recognized by California law, and by the overwhelming majority of the states as having a legitimate complaint.

In cases such as the present one, where the injury to the nonplaintiff spouse is emotional rather than physical in nature, the plaintiff will have a difficult task in proving both causation and the degree of injury. In addition, the instant case requires evidence that the doctor's reliance upon inconclusive or misleading laboratory results constituted malpractice. Under such circumstances, where the cause of action is limited to the spouse alone, who must show causation and reasonable foreseeability of the injuries complained of, we need not fear a deluge of trivial or imaginary claims. Mr. Molien should be permitted to present before a trier of fact his evidence of loss of consortium caused by the nonphysical injury to his wife.


Emotional Distress

The majority also rejects plaintiff's claim for emotional distress damages on the grounds that this damage was not foreseeable and that plaintiff suffered no physical injury to support such a claim. These objections involve, I believe, a misapplication of technical restrictions drawn from prior cases, but they also raise important and unsettled policy questions concerning recovery for “third-party” injuries and compensation for purely “internal” damages. These are significant questions involving a certain tension among the positions of some of the appellate courts, justifying an extended review of the issues.

There is, of course, an “internal” element of damages in most personal injury cases, designated as general damages for pain and suffering. Juries are routinely asked to perform the difficult task of assigning a monetary value to the pain and mental anguish the plaintiff has experienced from a dislocated spinal disc or a broken ankle, for the sake of providing the plaintiff with some compensation for all suffering wrongfully inflicted. Initially, courts tended to confine awards for mental suffering to cases where the plaintiff had experienced physical impact or bodily injury. The theory was that plaintiffs might otherwise enter fraudulent or spurious claims difficult to disprove because of the internal nature of the harm which exposed defendants to indefinite liability. But the requirement of physical impact or injury runs counter to the basic notion of compensation for all consequential harm and has persisted only as a screening device against invalid claims. (See Dillon v. Legg, supra, 68 Cal.2d at p. 739, 69 Cal.Rptr. 72, 441 P.2d 912, and Prosser, supra, s 54.)

The California Supreme Court decided in State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 240 P.2d 282 (accord: Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 130 Cal.Rptr. 416) that the requirement of physical injury was not necessary to a claim for emotional distress arising out of intentional, outrageous conduct such as verbal threats to one's life and property. Rather, the courts could look, in Prosser's terms (supra, s 54), for “corroborating evidence” of injury, for “some guarantee of genuineness in the circumstances of the case.” The jury could judge the effect of intentionally threatening conduct upon a person of ordinary sensibilities “(f) rom their own experience” (Siliznoff, supra, 38 Cal.2d p. 338, 240 P.2d 282). Later, the Supreme Court referred to Siliznoff in its Dillon opinion to affirm that the courts recognized a need to provide relief for “ ‘serious invasions of mental and emotional tranquility’ ” in cases involving negligence as well as willfulness, and could safely do so by again seeking guarantees of genuineness apart from physical injury to the plaintiff. (Dillon, supra, 68 Cal.2d at p. 743, 69 Cal.Rptr. at p. 82, 441 P.2d at p. 922.) The primary concern of a court examining a claim for negligently inflicted emotional distress, according to Dillon (p. 740, 69 Cal.Rptr. p. 80, 441 P.2d p. 920), is the foreseeability of the risk, to be determined “only upon a case-by-case basis.”

It is certainly foreseeable, in any common employment of that word, that a false diagnosis of syphilis and its probable source would risk marital and emotional harm to a married patient's husband; the doctor's advice to Mrs. Molien to have her husband examined for the disease reveals the fact that the plaintiff was in the contemplation of the defendant doctor. Because the disease is normally transmitted only by sexual relations, it is natural to suppose that husband and wife would experience anxiety, suspicion and hostility when confronted with what they have every reason to believe is hard medical evidence of a particularly distasteful infidelity. Like the verbal conduct in Siliznoff or the careless driving in Dillon, the verbal conduct and negligent examination in the present case are objectively verifiable actions by the defendant which foreseeably elicited powerful emotional responses in the plaintiff and so serve as a gauge of the validity of the plaintiff's claim for emotional distress.

Beyond the fundamental test of foreseeability, the Supreme Court in Dillon expressed the need to establish “proper guidelines” (p. 731, 69 Cal.Rptr. 72, 441 P.2d 912) appropriate to each type of case involving emotional distress claims in order to limit the “potentially infinite liability” of negligent defendants for the mental suffering of others (p. 739, 69 Cal.Rptr. 72, 441 P.2d 912). This need is imperative in a case such as Dillon where the careless driver otherwise cruises the streets more or less liable to all the world: sensitive bystanders, next of kin in distant cities, or anyone who might be emotionally affected.

Accordingly, Dillon laid down guidelines for the “resolution of such an issue as the instant one,” requiring that the plaintiff be a close relative and in near physical proximity to the apprehended accident. (Id., p. 740, 69 Cal.Rptr., p. 80, 441 P.2d p. 920.)

Most of the cases applying Dillon have also concerned “accidents,” on the highway or in a hospital, and so have been governed by the guidelines, including temporal and geographical proximity, marked out in Dillon.2

But when the incident complained of is not an accident, not a “sudden and brief event,” in the words of the appellate court in Jansen, supra, the guidelines requiring physical presence at the time of the incident are inapposite. However, the courts have not often taken the Dillon challenge to fashion guidelines appropriate to different kinds of cases involving emotional distress caused by negligence toward another. Some of the medical cases seem only with effort to have been forced down upon the Procrustean bed of “accident” guidelines. In Justus v. Atchison, supra, 19 Cal.3d 564, 139 Cal.Rptr. 97, 565 P.2d 122, the Supreme Court seems to have been concerned with the policy of limiting liability for doctors where the plaintiffs have exposed themselves to the hazard of emotional shock: “Surely a layman who voluntarily observes a surgical operation must be prepared for the possibility of unpleasant or even harrowing experiences.” (Id., at p. 585, 139 Cal.Rptr. at p. 111, 565 P.2d at p. 136.) Again, the appellate court in Powers v. Sissoev, supra, 39 Cal.App.3d 865, 114 Cal.Rptr. 868 was reluctant to grant recovery where the emotional impact upon the parent arises from “circumstances not materially different from those undergone by every parent whose child has been injured in a nonobserved and antecedent accident.” (Id., at p. 874, 114 Cal.Rptr. at p. 874.) These concerns justify the application of some limiting guidelines for recovery, although not precisely the same factors appropriate to an automobile accident, where the courts should be careful not to create a broad “constructive” foreseeability.

The difficulty in making a rote application of the Dillon guidelines to the present case is that it is neither an accident nor a case subject to similar policy concerns as those expressed above. There has been no highway collision or medical emergency, the plaintiff has not voluntarily submitted to observe a surgical or natal operation, and the effects of a misdiagnosis of syphilis foreseeably involve more than the ordinary concern for health and well being attaching to a diagnosis of disease: they involve a strong suggestion of marital infidelity. And where the doctor strengthens the force of that suggestion by asking to examine the husband for the disease, the husband is not only constructively a foreseeable plaintiff in the sense that mothers of injured children may be said to be “foreseeable,” but is actually in the contemplation of the defendant. If the doctor's conduct breaches standards of professional conduct and creates foreseeable risks of emotional harm to his patient and her husband, how are those risks mitigated by the fact that the husband is not in the laboratory or the consulting room when the misdiagnosis is made? The tests of nearness in time and place to the “accident” simply do not aid analysis of the fact situation presented by the case before us. The class of plaintiffs in such an incident is naturally limited to spouses, and the foreseeability of just such emotional and marital harm as the plaintiff and his wife suffered is very strong when venereal disease has been diagnosed. There are, then, restrictions inherent in this action which protect against “potentially unlimited” liability. The peculiar risk to the plaintiff, who was in the contemplation of the doctor, may be said in Cardozo's classic formulation to have been apparent to “the eye of ordinary vigilance.” (Palsgraf v. Long Island R.R. Co. (1928) 248 N.Y. 339, 343, 162 N.E. 99, 100.) It is both artificial and unnecessary to classify this plaintiff's injuries as unforeseeable.

The majority objects also to the lack of physical injury in this case. It is not at all clear that appellant has pleaded too generally to raise evidence of such effects at trial: he pleads “extreme emotional distress” and prays for damages to compensate for “medical expenses in accordance with proof.” Such symptoms as gastric disturbance, loss of sleep and nervous disorder have been accepted as evidence of compensable emotional distress. (See, e. g., Krouse v. Graham (1977) 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1022; Espinosa v. Beverly Hospital (1952) 114 Cal.App.2d 232, 236, 249 P.2d 843.) Hair v. County of Monterey, supra, 45 Cal.App.3d at page 542, 119 Cal.Rptr. 639, suggests that a particular nervous disorder must be pleaded, but the Supreme Court has not pronounced a standard for specificity in pleading the physical manifestations of emotional disturbance. Now that the plaintiff's complaint has been dismissed without leave to amend, it seems unjust to make a fine point about particularity of pleading when such imprecise symptoms as those accepted in the past are arguably inferable from the complaint.

But the more basic question of requiring physical injury either before or after the event which causes emotional disturbance should be addressed in this case. In Rodriguez, supra, because the “essentially emotional” injury to the plaintiff in a loss of consortium suit results from serious harm to the spouse, not physical injury to the plaintiff, the Supreme Court did not search for a second guarantee of the genuineness of the plaintiff's claim for grief and deprivation in any physical manifestations of the plaintiff's distress. It simply presumed that where a married person has suffered such a loss, emotional distress is plausible. It will be for the trier of fact to decide How plausible, based on the evidence.

The majority relies on Quezada v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815, as establishing that no claim for negligently caused emotional distress may be recognized without an element of intention or malice in the defendant's conduct unless there is physical impact or injury to the plaintiff. Quezada comes to this conclusion in spite of the development of liability for emotional injury in cases involving breach of contract or fiduciary duty. Quezada denied plaintiff's emotional damage in a suit against defendant attorneys for legal malpractice, finding neither physical injury nor intentional malfeasance. The decision followed closely upon Fuentes v. Perez (1977) 66 Cal.App.3d 163, 136 Cal.Rptr. 275, which rejected emotional distress damages sought by homeowners whose house and belongings were flooded because of a contractor's failure to cover part of their roof. The Fuentes court distinguished (p. 168, 136 Cal.Rptr. 275) between “psychological” and “physiological” shock and asserted that the former is compensable only in cases where there has been extreme or outrageous conduct on the part of the defendant, citing Siliznoff, supra, and Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216. But both of those decisions were for suits based on Intentional infliction of emotional distress accompanying other actionable consequences of negligent conduct.

Quezada and Fuentes stand in perplexing opposition to a line of cases finding valid mental claims without physical injury. The Supreme Court, applying a rationale advanced by Dean Prosser and discussed earlier in connection with the loss of consortium claim, decided in Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 434, 58 Cal.Rptr. 13, 426 P.2d 173, that a “guarantee of genuineness” for an emotional distress claim could be found in the fact that the plaintiff had other actionable claims against the defendant arising out of the same transaction. These other claims eliminated the need for physical impact or injury to verify the claim. (Accord: Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 113 Cal.Rptr. 711, 521 P.2d 1103.) The validating claims in Crisci were concurrent claims for breach of contract in the insurance company's failure to settle within reasonable limits. In Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal.App.3d 917, 122 Cal.Rptr. 470, the Court of Appeal followed Crisci in holding a title insurance company liable for emotional damages which followed a negligent title search and failure to defend. Quezada criticized Jarchow for extending liability to cases where mental damages were accompanied by other “substantial injuries” to protected interests, even financial ones. Under the Crisci and Jarchow formulation, a concurrent invasion of another “substantial interest” of the plaintiff gives rise to an inference that emotional distress may have resulted. The plaintiff before us, with his claim for loss of consortium, asserts such a concurrent invasion of a protected interest to support his claim for emotional distress without the validating presence of physical injury. But Quezada claims that, without physical injury, only “intentional malfeasance or bad faith” (67 Cal.App.3d p. 761, 136 Cal.Rptr. 815) can support a claim for emotional distress into negligence.

Quezada attempts to distinguish precedents of awards for nonphysical distress as being based on elements of malfeasance, but this reading of the cases is in my view somewhat strained. Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328, 5 Cal.Rptr. 686, 353 P.2d 294 does involve intentional wrongdoing (defendant shut off water supply to plaintiff's property in defiance of injunction), but there the Supreme Court also announced the broader proposition that, “regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance.” (Id., at p. 337, 5 Cal.Rptr. at p. 691, 353 P.2d at p. 299.) Thus, interference with property rights may underlie a claim for emotional distress regardless of impact or injury; this rationale foreshadows the Crisci principle of accompanying invasions of substantial interests as an index of the reliability of such a claim.

Other cases cited in Quezada and Jarchow are even less supportive of the claim that intentional wrongdoing must underpin a claim for mental suffering without physical injury. For example, in Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844, 88 Cal.Rptr. 39, a jeweler was held liable for the emotional distress of his customer when he agreed to have the plaintiff's rings repaired, and the rings, which he knew to be of great sentimental value to her, were lost in the mail. There was no charge of malice or outrageous conduct but the court allowed damages for emotional distress rather than simple contract damages because the contract involved the personal happiness and welfare of the plaintiff (p. 851, 88 Cal.Rptr. 39), making it far more likely that negligence would result in emotional pain. The jury could infer from the known sentimental value of the objects that the effects upon the plaintiff (“general nervousness,” loss of sleep, aches in the arms and head) were genuine and foreseeable (p. 853, 88 Cal.Rptr. 39).

Also cited was Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 123 Cal.Rptr. 848, an action against a bank for wrongful dishonor of a company check. Punitive damages were disallowed in this decision precisely because malice or oppression were Not shown (pp. 958-959, 123 Cal.Rptr. 848). The court upheld emotional distress damages claimed by the corporate officers because “there is no reason to bar recovery of damages for the mental distress attending the types of consequences experienced here, which included criminal and administrative investigation and charges as well as various acts of harassment and vandalism” by creditors (p. 958, 123 Cal.Rptr. p. 854). It was sufficient that the plaintiff gave proof of “objectively verifiable events which followed the dishonoring of their checks and which would have induced mental suffering in any reasonable person” (p. 958, 123 Cal.Rptr. p. 854). The appellate court seems to have given far more weight to foreseeability and objective facts from which to infer mental suffering than to the degree of culpability of the defendant's conduct.

In Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032, another case of insurer's failure to settle claims (cited in both Quezada and Jarchow ) the Supreme Court noted that the plaintiff claiming mental distress did not allege extreme and outrageous conduct. The court ruled that there was no need to engraft the tort of intentional infliction of emotional distress on a cause of action for breach of duty of good faith and fair dealing (p. 579, 108 Cal.Rptr. 480, 510 P.2d 1032). “In Crisci we did not suggest that to warrant recovery for mental distress the conduct of the insured must be ‘outrageous' or that the mental distress must be ‘severe’ ” (p. 579, 108 Cal.Rptr. p. 488, 510 P.2d p. 1041). The decision quoted Restatement Second of Torts, section 46, comment (b), which points out that outrageous conduct is required only for the tort of Intentional infliction of emotional distress, not for cases “ ‘where other interests have been invaded, and tort liability has arisen apart from the emotional distress.’ ” (pp. 579-580, 108 Cal.Rptr. p. 489, 510 P.2d p. 1041.) The fact that the plaintiff in Gruenberg pleaded loss of business and medical expenses was sufficient to allege an invasion of other substantial interests and so support the claim for negligent infliction of emotional distress (p. 580, 108 Cal.Rptr. 480, 510 P.2d 1032).

Again, contrary to Quezada's identification of nonphysical claims with intentional tort, Crisci couched its opinion in distinctly negligence language rather than in terms of willful misconduct: “Liability is imposed not for a bad faith breach of contract but for a failure to meet the duty to accept reasonable settlements . . . .” (66 Cal.2d p. 430, 58 Cal.Rptr. p. 17, 426 P.2d p. 177.) Similarly, Jarchow holds that the negligent failure to complete an accurate title search is just as firm a basis for mental damages as a later bad faith failure to settle: the failure to list a deed in the chain of title “substantially damaged” the plaintiff's property and so provided “sufficient guarantees of the genuineness of plaintiffs' emotional distress claim.” (48 Cal.App.3d p. 938, 122 Cal.Rptr. p. 485.) The discussion in that opinion of defendant's acts of bad faith later in not defending title serves only to justify the Size of the award, under the heading “Excessive Damages” (p. 950, 122 Cal.Rptr. 470). Whereas Quezada concentrates upon the negligent or malicious nature of the defendant's conduct, Jarchow is concerned only with reasonable inferences drawn from an “empirically verifiable injury” accompanying the emotional distress (p. 936, 122 Cal.Rptr. 470), and concludes that “interference with one's legally protected interests (even if not finally compensable) is sufficient damage to satisfy the test set forth in Crisci, and to guard against potentially fraudulent emotional distress claims. . . . (P) (T)he defendant's behavior, be it negligent or intentional, is of no consequence in applying this standard; and no perceivable reason exists why the substantial damage rule should not apply to the negligence action before us.” (Id., at p. 937, 122 Cal.Rptr. at p. 484; see also Note: Jarchow v. Transamerica Title Insurance Co.: A Trend Toward Strict Liability for Emotional Distress in the Insurance Industry, 12 Cal. Western L.Rev. 591 (1976) (where the substitution of substantial damages for impact or injury is discussed at 605-606).)

It appears, then, that the Quezada approach, denying emotional distress damages apart from physical injury or intentional infliction, is based upon an unjustifiably narrow reading of the cases granting recovery without requiring physical injury. The approach outlined by the Supreme Court in Crisci, and by the appellate court in Jarchow, is to seek, in Dean Prosser's terms, a guarantee of genuineness to the emotional distress claims in accompanying claims for damages from the invasion of other protected interests. Such an internal injury as mental suffering may not be “seen” unless it is physically manifest, but it may be inferred by the trier of fact if the plaintiff has suffered other injuries chargeable to the defendant. In the instant case, the plaintiff asserts an actionable claim for loss of consortium, a protected relational interest. If plaintiff can prove that the defendant's conduct so emotionally affected his wife that loss of consortium resulted, the trier of fact might reasonably infer his emotional suffering even without physical harm or intentional wrongdoing.

The last line of cases which suggests an approach to the problem of emotional damages in the absence of physical injury has to do with actions for mental anguish arising out of the negligent mishandling of corpses and false notices of death. The majority of states, including California, permit recovery in the former class of cases (see Chelini v. Nieri (1948) 32 Cal.2d 480, 482, 196 P.2d 915; Carey v. Lima, Salmon and Tully Mortuary (1959) 168 Cal.App.2d 42, 335 P.2d 181), and the “respectable minority” of the states treat false death notices as actionable without physical injury accompanying emotional distress (see Prosser, Supra, s 54, p. 330; apparently such cases have not been reported in California). Dean Prosser explains recovery in these two types of cases as resulting from “an especial likelihood of genuine and serious mental distress, arising from the circumstances, which serves as a guarantee that the claim is not spurious.” In my opinion, the diagnosis of syphilis in a married woman involves just such a likelihood of serious emotional consequences.

In many ways the present case more closely resembles the death notice cases than it does Dillon, the intentional infliction cases, or the breach of contract cases. In Johnson v. New York (1975) 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590, a state hospital misidentified a deceased patient and telegraphed a living patient's sister to recover the body for burial. The telegram asked the sister to “notify relatives.” Accordingly, the sister contacted the daughter of the supposed deceased, who suffered emotional shock when the body at the funeral home turned out not to be her mother's. Brietel, J., writing for the Court of Appeals, sought some “index of reliability” for the daughter's claim, since physical injuries were not alleged (the complaint stated “nervous anxiety” as the harm), and found such a gauge of authenticity in the fact that the hospital intended that a message of serious emotional import reached the plaintiff. She was drawn, in the language of Palsgraf, supra, into the “orbit of danger” of foreseeable risk.

So with the case at bar, whether or not the plaintiff has suffered physical injury as a result of emotional distress, he was in the “orbit of danger” when the doctor instructed Mrs. Molien that she had been infected with syphilis and that her husband should be examined as the likely carrier. This communication is even more direct than the telegram to the plaintiff's aunt in Johnson. Defendant intended that Mr. Molien would receive this information; he is in that respect quite unlike the relatives who witness by chance the accidental injury of a loved one. And because defendant consciously drew plaintiff into the orbit of danger, we need not be so concerned with creating unintentional, unpredictable liability by allowing this plaintiff to proceed with his complaint.

In summary, the majority characterizes the plaintiff's injury as unforeseeable only by a rigid adherence to the guidelines of physical proximity established in Dillon to control recovery in an accident spectator case. Those guidelines were not meant to govern all emotional distress claims, as Dillon's emphasis on the need for future courts to fashion appropriate standards in novel cases reveals. (Dillon, supra, 68 Cal.2d at p. 731, 69 Cal.Rptr. 72, 441 P.2d 912.) The present case, in fact, involves quite different circumstances with an especially great likelihood of emotional harm to the particular plaintiff.

Moreover, there are several types of cases where factors other than physical injury have been held to supply adequate support for claims of emotional distress, so that the claims are judged on the basis of the persuasiveness of the evidence offered and not dismissed out of hand because the degree of objectivity supplied by physical injury is lacking. The present case involves several of those factors: a strong degree of foreseeability that this plaintiff would be emotionally affected by the incident (Dillon ), a peculiarly sensitive transaction (Windeler, Carey ), an accompanying invasion of another protected interest, loss of consortium, particularly as objectified in the dissolution proceedings (Crisci, Jarchow ), and an intent on the part of defendants to convey information of a seriously distressing nature to the plaintiff himself (Johnson ). We should be interested in establishing appropriate guidelines to define the duty of a physician in misdiagnosing venereal disease, and some of the above factors would be helpful in balancing the plaintiff's claims for relief for emotional distress against the medical profession's need to function without a debilitating burden of liability for medical counsel. But the court should not feel bound to apply an “artificial limiting device,” i. e., the physical injury requirement, in blanket fashion to smother claims for emotional distress. Reviewing the history of such devices in Anglo-American law, Professor Fleming concludes, “We are only just emerging from this bondage to a point where liability appears to be predicated without artificial distortion simply upon whether the defendant created an unreasonable (foreseeable) risk of nervous shock to someone in the plaintiff's position.” (Fleming, The Law of Torts (5th ed. 1977) 153-154.)


Under California law the plaintiff has stated a recognized claim for loss of consortium caused by negligent conduct. In addition, plaintiff advances a rather novel claim for negligent infliction of emotional distress through a misdiagnosis of syphilis and accompanying medical counsel to his wife. The injury complained of, should the facts be proven to be as the plaintiff asserts, is foreseeable rather than “remote and unexpected” and is associated with such circumstances as to give a trier of fact grounds for believing that an ordinary person would suffer emotional distress as a result of such conduct, even without physical injury. The plaintiff should be permitted to proceed upon both causes of action. This is a result that in my view is compelled both by common sense and by the law of this state.


1.  Respondents have pointed out that although the demurrer was sustained as to both causes of action, the judgment dismissed only one cause of action. It would be proper to dismiss the appeal as to the cause of action which was omitted from the judgment (see Beazell v. Schrader (1962) 205 Cal.App.2d 673, 23 Cal.Rptr. 189). But one cause of action would remain for consideration by this court, and dismissal of the appeal as to the other cause of action would not preclude a new appeal after entry of a proper judgment of dismissal in the trial court. The convenience of all parties and of the court will be furthered by modifying the judgment so as to provide for dismissal of both causes of action. The notice of appeal will then be effective as to both causes of action (cf. Bellah v. Greenson (1978) 81 Cal.App.3d 614, 618, fn. 4, 146 Cal.Rptr. 535).

1.  The New York Court of Appeals (mentioned with approval in Rodriguez for its affirmation of the reality of “sentimental” damages) acknowledged the psychological truth that injuries not truly physical may effect loss of consortium. In Ferrara v. Galluchio (1958) 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249, where a husband was allowed to recover for loss of consortium after his wife developed a phobia as a result of a misdiagnosis of cancer. Similarly, the Massachusetts Supreme Judicial Court granted a plaintiff husband compensatory relief after his wife's employer wrongfully discharged her, causing her anxiety and depression. (Agis v. Howard Johnson Company (1976) 371 Mass. 140, 355 N.E.2d 315.)

2.  Thus, Justus v. Atchison (1977) 19 Cal.3d 564, 582-585, 139 Cal.Rptr. 97, 565 P.2d 122 denied recovery to plaintiff fathers present in the delivery room when their stillborn children were delivered but unaware of the crisis until informed “after the fact” by the doctor. In Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 560-567, 145 Cal.Rptr. 657, the Court of Appeal reversed summary judgment for defendant where a mother arrived at the poolside in time to try to resuscitate her drowned son. Similarly, summary judgment for defendant was reversed in Archibald v. Braverman (1969) 275 Cal.App.2d 253, 79 Cal.Rptr. 723, where the mother arrived “within moments” of the explosion that injured her son, and the mother in Mobaldi v. Regents of University of California (1976) 55 Cal.App.3d 573, 127 Cal.Rptr. 720 was found to be a “percipient witness” where she held her child while it suffered convulsions due to an improper injection, although she was unaware of the cause of the child's affliction. Conversely, Deboe v. Horn (1971) 16 Cal.App.3d 221, 223-224, 94 Cal.Rptr. 77, denied recovery to a wife who first saw her injured husband in the emergency hospital after the accident. Jansen v. Children's Hospital Medical Center (1973) 31 Cal.App.3d 22, 23-25, 106 Cal.Rptr. 883, rejected the claim of a mother who witnessed the gradual decline of her daughter in a hospital. Powers v. Sissoev (1974) 39 Cal.App.3d 865, 870-874, 114 Cal.Rptr. 868, held there was no liability toward a mother who first saw her injured daughter 30-60 minutes after an auto accident, and Hair v. County of Monterey (1975) 45 Cal.App.3d 538, 542-544, 119 Cal.Rptr. 639 sustained a demurrer against a mother who was in the waiting room when her daughter suffered negligent treatment by an oral surgeon which was not immediately apparent. Arauz v. Gerhardt (1977) 68 Cal.App.3d 937, 943-949, 137 Cal.Rptr. 619, affirming summary judgment for defendant because the mother was not present when a car struck her child but arrived a few minutes later coincidentally, reveals how closely linked these cases are to the accident situation described by Dillon : “some type of sensory perception of the impact contemporaneous with the accident is necessary to meet the Dillon requirement.” (Id., at p. 949, 137 Cal.Rptr. at p. 627.)

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., concurs.

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