Opinion
CIVIL ACTION NO. 02-9522
May 13, 2003
MEMORANDUM
Presently before the court is a Motion to Dismiss filed by defendants, the United States of America, the United States Department of Veterans Affairs, Michael Sullivan, Elmer Yu, M.D., James Kurtz, M.D., Ph.D., Frank Lo, M.D., and Eugene Williams requesting an Order dismissing all of the defendants except the United States of America and all counts in plaintiff's complaint except Counts I, VIII, XI and XII on the grounds that: (1) the Department of Veterans Affairs is not a proper defendant in an action under the Federal Tort Claims Act; (2) the individual defendants are not proper defendants in an action under the Federal Tort Claims Act; (3) the Court lacks subject matter jurisdiction over any claim brought by Michael A. Carpino in his individual capacity because he failed to exhaust his administrative remedies; (4) plaintiff Michael Carpino cannot state a claim for negligent infliction of emotional distress in this case; and (5) the individual defendants have not been properly served.
The only issue raised in the motion to dismiss that plaintiff has responded to, is defendants' contention that plaintiff Michael A. Carpino, individually, cannot state a claim for negligent infliction of emotional distress. Defendants' Motion to Dismiss on this issue will be granted for the reasons that follow.
All of the other issues set forth in the Motion to Dismiss will be granted as being uncontested in accordance with Local Rule of Civil Procedure 7.1(c).
PLAINTIFF MICHAEL CARPINO CANNOT STATE A CLAIM OF NEGLIGENT INFLICTION OF EMOTION DISTRESS
Plaintiff, Michael A. Carpino, has brought various claims in both an individual and representative capacity under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Plaintiff alleges his son was receiving psychiatric treatment at the VA Medical Center in Philadelphia; that his son was discharged by the Medical Center; and that his son committed suicide ten days later. Plaintiff claims that the defendants were negligent in diagnosing and treating the mental condition of his son and that the Department of Veterans Affairs improperly discharged him from its facility.
In Count X, Michael A. Carpino, the father of Joseph Carpino, brings a claim for negligent infliction of emotional distress. Plaintiff Michael A. Carpino alleges that "[a]s a result of the negligence of defendants and the resultant death of his son" plaintiff Michael A. Carpino suffered emotional distress and anxiety. Even if this claim were not subject to dismissal for failure to file an administrative claim, it must still be dismissed because there is no legal basis for plaintiff Michael Carpino to bring any claim for negligent infliction of emotional distress in this action. In Pennsylvania, a plaintiff may recover for negligent infliction of emotional distress where plaintiff: (1) was at or near the scene of an accident; (2) suffered an emotional shock as a result of his contemporaneous observation of the accident; and (3) was closely related to the victim of the accident. Sinn v. Burd, 404 A.2d 672, 685 ( Pa. 1979). Plaintiff Michael Carpino's sole argument in response to Defendants' Motion to Dismiss is that his claim for negligent infliction of emotional distress should not be dismissed because he "observed the behavior of his son in the days preceding his suicide and that these observations cannot be separated from the actual suicide." See Memorandum of Law in Support of Plaintiff's Response to Defendants' Motion to Dismiss at 1. The cases in Pennsylvania make it clear that it is not sufficient merely to observe the effects of the injury on the person after the accident. It is clear that plaintiff's claim must result from his own "contemporaneous observance" of a traumatic event. See Mazzagatti v. Everingham, 516 A.2d 672, 678-79 (Pa. 1986). Similarly, the Superior Court of Pennsylvania drew the line in Halliday v. Beltz, 514 A.2d 906 (1986) in denying recovery to parents who were in a hospital and sustained emotional distress while their child, who eventually died from surgery, was being operated on. It was held that since they did not view the specific negligent acts, they could not recover.
Plaintiff does not contend that he observed his son's suicide or any alleged wrongful action by the defendants; he merely claims that he observed his son's behavior after his son had been discharged from the Medical Center. As many courts in Pennsylvania have held it is not sufficient merely to see the effects of defendants conduct on the injured party after the fact; the plaintiff in an action for negligent infliction of emotional distress "must have observed the defendant traumatically inflicting the harm on the plaintiff's relative, with no buffer of time or space to soften the blow." Bloom v. Dubois Regional Medical Center, 597 A.2d 671, 682 (Pa.Super. 1991); Yandrich v. Radic, 433 A.2d 459, 460-61 (Pa. 1981). Plaintiff's alleged observations of his sons behavior after his discharge from the VA Medical Center cannot form the basis of a claim for negligent infliction of emotional distress because he did not contemporaneously observe a discreet, traumatic event inflicting injury on his son.
Defendants' Motion to Dismiss with respect to Michael A. Carpino's claim for negligent infliction of emotional distress should also be granted because he does not allege that he suffered any physical injury. In Pennsylvania it is clear that the plaintiff must allege that he suffered physical harm in order to sustain an action for negligent infliction of emotional distress. See Armstrong v. Paoli Memorial Hospital, 633 A.2d 605, 609 (Pa.Super. 1993); Abadie v. Riddle Memorial Hospital, 589 A.2d 1143 (Pa.Super. 1991); Houston v. Texaco, Inc., 538 A.2d 502 (Pa.Super.).
For all of the above reasons we enter the following Order:
ORDER
AND NOW, this 13th day of May, 2003, upon consideration of the Defendants' Motion to Dismiss, Plaintiff's Response thereto, and Defendants' Reply it is hereby ORDERED that Defendants' Motion to Dismiss is GRANTED. All of the defendants except the United States of America and all Counts of Plaintiff's Complaint except Counts I, VIII, XI and XII are hereby DISMISSED.
Defendant United States of America shall file an Answer to the Complaint within twenty (20) days of the date of this Order.