Bystander Witnesses a Loved One Suffer a Severe Injury

I’m David Holub, an attorney focusing on personal injury law in northwest Indiana.

Welcome to Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

Today’s question comes from a caller who was told her husband was seriously hurt at work.

When she got the call she was across the street from the work site. When she got to the work site ambulance personnel were attending to her husband, and a medivac helicopter was landing. She tried to speak to her husband but he was incoherent. There was blood all over his shirt and his leg was bent at a terrible unnatural angle.

She wanted to know her legal rights.

In a past episode, we discussed the availability of damages for negligent infliction of emotional distress.

Decades ago in Indiana, the path to obtaining emotional distress damages was narrow. To obtain such damages a plaintiff had to prove:  1) an impact to the plaintiff; 2) that causes physical injury to the plaintiff; 3) that in turn causes emotional distress.

This was known as the impact rule. And, it was very difficult to meet.

Under the old impact rule, the caller would have no case for the distress she experienced in seeing her husband hurt. Why? Because she was not directly physically impacted herself. She was just an observer.

In the last 25 years, Indiana court decisions have trended in the direction of allowing recovery of damages for emotional distress in circumstances that never would have been permissible under the older and stricter impact rule.

Now an emotional distress damage claim is available where a Plaintiff witnesses the serious injury or death of a loved one.

Here is the exact language from a key court decision on the subject:  -[W]here the direct impact test is not met, a bystander may nevertheless establish “direct involvement” by proving that the plaintiff actually witnessed or came on the scene soon after the death or severe injury of a loved one with a relationship to the plaintiff analogous to a spouse, parent, child, grandparent, grandchild, or sibling caused by the defendant’s negligence or otherwise tortious conduct.

Clearly, the caller’s circumstances fit the court test required to make a negligent infliction of emotional distress claim.

Keep in mind, if the caller had phoned our office 25 years ago and relayed the same facts, we would have had to report that it would be unlikely that she could succeed in bringing a negligent infliction of emotional distress damages claim.

In fact, we did get a call from someone 30 years ago involving a medical malpractice claim for emotional damages. At that time we had to tell the caller he had no claim.

Today the same caller would have a claim.

Here are the facts of that call. The caller went to the ER. They took blood. The doctor came back and told him he had only a week to live. The next day the doctor came in and said there was a mistake reading the blood test and the caller was going to be fine.

About 15 years after that call Indiana courts ruled that a mother who was not accurately told of fetal blood test results that indicated severe birth defects, leading to the delivery of a severely handicapped baby that died weeks after birth, could recover emotional distress damages due to her doctor’s failure to correctly report fetal blood test results.

I hope you found this information helpful. If you are a victim of someone’s carelessness, substandard medical care, product defect, work injury, or another personal injury, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at DavidHolubLaw.com – while there, make sure you request a copy of our book “Fighting for Truth.”