Professional Negligence Law Reporter

The New Hampshire Supreme Court held that a man who witnessed his wife’s unsuccessful resuscitation after she experienced a pulmonary embolism may sue treating providers for negligent infliction of emotional distress.

Lisa Chartier, who had an elevated risk of developing deep vein thrombosis (DVT), underwent knee surgery. She later complained of calf soreness to her treating physician and at physical therapy but allegedly was told her soreness was normal. Later, while driving with her husband, Chartier passed out. She was taken to a hospital, where providers performed chest compressions in an attempt to resuscitate her. Her husband observed these measures, which were unsuccessful. It was later determined that Chartier’s death resulted from DVT and a pulmonary embolism.

Chartier’s husband, on behalf of her estate, sued her treating physician, a medical group, and the physical therapy practice, alleging medical negligence and negligent infliction of emotional distress. The plaintiff sought damages for loss of consortium. The defendants moved for partial summary judgment on the emotional distress claim. The trial court granted the motion, finding that the alleged negligent act and the husband’s injury were too attenuated to recover for emotional distress. The court denied the plaintiff’s motion for reconsideration.

Reversing, the state high court noted that to recover for negligent infliction of emotional distress, a plaintiff must prove a defendant’s causal negligence, foreseeability, and serious mental and emotional harm accompanied by objective physical symptoms. Citing case law, the court added that a plaintiff’s emotional distress must be attributable to the emotional impact of his or her contemporaneous sensory perception of an accident and immediate viewing of the victim. The analysis must focus on the plaintiff’s perception and proximity to the incident, not the defendant’s negligent conduct, the court said.

Applying these principles, the court held that the term “accident” in the bystander recovery context refers to a sudden, unexpected, and shocking event involving serious injury to a third party. Here, the court found that the plaintiff alleged that he had suffered severe emotional distress resulting in physical symptoms from perceiving the sudden, unexpected, and shocking death of his wife. Thus, the court held that Chartier’s pulmonary embolism—not the failure to diagnose DVT—constituted the accident here for emotional distress purposes.

Consequently, the court remanded, directing the trial court to apply the elements of negligent infliction of emotional distress.

Citation: Chartier v. Apple Therapy of Londonderry, LLC, No. 2021-0166 (N.H. Feb. 10, 2023).

Plaintiff counsel: AAJ member Jared R. Green, Manchester, N.H.