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Filoiali'i v American Samoa Government [2012] ASHC 50; CA 07-08 (1 November 2012)

OPINIONS

OF THE

TRIAL DIVISION

OF THE

HIGH COURT OF AMERICAN SAMOA

(2012)

ALIIOAIGA FILOIALI’I, FA’AFOTA FILOALI’I, ALIIOLENUU MOEA’I, Individually, and ALIIOAIGA FILOALI’I as personal representative of TEMUKISA FILOALI’I and guardian ad litem Of CLAREMONT FILOIALI’I, CLINT FILOIALI’I, ALIIOGA FILOIALI’I And SHALOM FILOIALI’I,
Plaintiffs,

v.

AMERICAN SAMOA GOVERNMENT,
Defendant.

High Court of American Samoa
Trial Division

CA No. 07-08

November 1, 2012

[1] Proximate cause necessitates that the plaintiff first prove that the defendant’s conduct, or lack thereof, was a cause in fact of the plaintiff’s injuries.

[2] Factual cause is “that cause, which, in natural and continual sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

[3] It is the plaintiff’s burden to prove that the defendant’s conduct more likely than not was the cause in fact of the plaintiff’s injury.

[4] To establish factual causation, the plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.

[5] A mere possibility of factual causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

[6] Where the conclusion as to factual causation is not one within common knowledge, expert testimony may provide sufficient basis for it, but in the absence of such testimony it may not be drawn. But on medical matters within common knowledge, no expert testimony is required to permit a conclusion as to causation.

[7] This court recognizes the tort theory of negligent infliction of emotional distress (“NIED”) as a cause of action available to the denizens of the Territory; however, NIED remains an evolving tort whose range of application is largely unexplored and clouded in uncertainty.

[8] Negligent infliction of emotional distress (“NIED”) is not an independent tort but is, instead, a tort of negligence; consequently, the question of whether plaintiffs can recover damages for NIED is dependent upon traditional tort analysis, and the elements of duty, breach of duty, causation, and damages must exist to support the cause of action.

[9] There are two general theories of negligent infliction of emotional distress by which a plaintiff may present a claim: (1) the “bystander” theory, which is based on a breach of duty owed to the public in general, and (2) the direct victim theory, in which the damage sought is one for emotional distress resulting from a breach of duty of care directly owed the plaintiff by the defendant.

[10] The plaintiffs, who allege the defendant doctors treating their child negligently gave them false hope of their child’s recovery and failed to timely notify them that their child was irrevocably brain dead, cannot recover under the bystander theory in a negligent infliction of emotional distress claim because the negligent act alleged—i.e., the physicians’ failure to timely notify the parents of their child’s brain dead upon discovery of such condition—was directed at the plaintiffs and not at the child.

[11] Duty is a question of law which depends upon the foreseeability of the risk and a weighing of policy considerations for and against the imposition of liability.

[12] If a child is seriously injured by erroneous medical treatment caused by professional negligence, the parent is practically certain to suffer correspondingly serious emotional distress.

[13] It is foreseeable that the parents of a minor child who is under the medical care of a physician would suffer severe emotional distress upon discovering that the treating physician was aware (or should have been aware) that the child was brain dead long before the physician actually notified the parents.

[14] For a plaintiff to prevail in a negligent infliction of emotional distress action, the duty owed the plaintiff must be one assumed by the defendant, imposed on the defendant as a matter of law, or that arises out of a relationship between the two.

[15] The relationship between a physician, charged with providing medical care to a minor child, and the parents of that child imposes a duty of care upon the physician to timely notify the parents that their child is brain dead; such a duty naturally is to be expected in light of the fact that medical care provided to a minor child necessarily involves the child’s parents as evidenced by the fact that they are the decisionmakers where alternative forms of treatment are concerned (especially when the minor child is incapable of communicating), are subject to criminal prosecution should they fail to provide the necessary medical care, and are the ones who ultimately must decide whether to remove life support from a terminally ill child in a persistent noncognative, vegetative state.

[16] Under circumstances in which a parent must decide whether to disconnect their child from life support, the relationship shared between the parent and the physician treating the minor child obviously is a close one that imposes a corresponding duty upon the physician to promptly and candidly notify the parents of their child’s irreversible brain death; hence, in such circumstances, parents may recover from a negligent infliction of emotional distress cause of action as the direct victims of the physician’s negligent failure to timely notify them of their child’s irreversible brain death.

[17] Liability is not found, and the label of malpractice is not placed upon a physician’s actions, unless some deviation by the physician from the standard of care that his peers consider appropriate in the situation under review is proven. Whether the negligent act is the result of a momentary lapse of concentration or gross disregard for the health of the patient, in order to prevail on a claim for medical malpractice, a plaintiff must convince the trier of fact that the physician’s peers would consider his act to be blameworthy.

[18] LBJ Tropical Medical Center is presumed to have the means for examining a patient for brain death.