Appeal from the Order of the Superior Court dated November 12, 2008 at No. 1191 EDA 2007 reversing in part/affirming in part and remanding the Order of the Court of Common Pleas of Chester County dated April 19. 2007 at No. 05-RADIOLOGY, THE UNIVERSITY OF
The opinion of the court was delivered by: Madame Justice Todd
Appeal from the Order of the Superior Court dated November 12, 2008 at No. 1191 EDA 2007 reversing in part/affirming in part and remanding the Order of the Court of Common Pleas of Chester County dated April 19. 2007 at No. 05-RADIOLOGY, THE UNIVERSITY OF 961 A.2d 192 (Pa. Super. 2008)
OPINION IN SUPPORT OF AFFIRMANCE
I join the comprehensive and erudite Opinion in Support of Affirmance by Justice Baer ("OISA") in full, but make the following comments.
I agree with the OISA that we should dispense with the impact rule for claims of negligent infliction of emotional distress. In my view, continuing to apply the impact rule in such cases in order to lessen the risk of feigned claims of emotional distress would suggest that we do not trust our juries (or our judges sitting as fact finder) to discern the difference between real and fraudulent or trivial claims, to judge the credibility of a plaintiff's claims of emotional distress, or to assess whether a claimed causal connection between a tortfeasor's act and the alleged emotional distress is likely.
Indeed, to maintain the impact rule would be to reject the very premise of our jury system and deny redress for legitimate claims of emotional injury. Further, I conclude that the factors the OISA cites, but that are not explicitly applied, warrant the imposition of a duty in this case. See OISA at 20 n.11 (quoting Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 472, 866 A.2d 270, 281 (2005) ("The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor's conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution." (internal quotation marks omitted)); see also Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000). After consideration of these five factors, I agree that a doctor has a duty to care for a patient's emotional well-being under the circumstances of this case.
Finally, I observe that the OISA generally and wisely leaves to our trial courts the case-by-case assessment of what other societal relationships might likewise warrant the imposition of such a duty.
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