Home / Fulltext Opinions / Supreme Court of Virginia / GRAY v. INOVA HEALTH CARE SVCS. (59848)





April 16, 1999
Record No. 981387




F. Bruce Bach, Judge
Present: Carrico, C.J., Compton, Hassell, Keenan,
Koontz, and Kinser, JJ., and Poff, Senior Justice


The dispositive issue raised in this appeal is
whether a parent who witnesses the effects of a negligent tort
committed upon a child in the presence of the parent has a cause
of action in tort against the tortfeasor for negligent infliction
of emotional distress and its symptomatic effects. We think not,
and we will affirm the judgment of the trial court sustaining the
tortfeasor’s demurrer.

The motion for judgment alleged that Mrs. Holly
Gray’s three-year old daughter, Kira, was admitted to a hospital
owned and operated by INOVA Health Care Services (INOVA) to
undergo a lumbar puncture test for meningitis; that "the
health care providers . . . negligently administered
160 mg. of the drug Fentanyl . . . [which] was ten
times the proper dosage;" that Kira’s "body convulsed,
her breathing stopped, and her face turned blue;" that when
Mrs. Gray, "standing next to her daughter . . .
observed the condition of her daughter, she experienced extreme
fright and shock, temporarily blacked out, fell to the floor, and
became physically sick and vomited;" and that she
"still suffers from mental anguish and emotional

As her principal assignment of error, Mrs. Gray
asserts that the trial court erred in sustaining the demurrer
"because [her] motion for judgment states a cause of action
. . . for physical injury directly resulting from the
negligent infliction of emotional stress." In the
alternative, she contends that her motion for judgment
"states a cause of action for negligent infliction of
emotional distress, independent of physical impact or

The initial, and crucial, question before us is
whether the tortfeasor, INOVA, owed a duty to Mrs. Gray, a
third-party bystander. This Court has consistently held that
"[t]here can be no actionable negligence unless there is a
legal duty, a violation of the duty, and a consequent
injury." Chesapeake and Potomac Telephone v. Dowdy,
235 Va. 55, 61, 365 S.E.2d 751, 754 (1988) (quoting Trimyer v.
Norfolk Tallow Co.
, 192 Va. 776, 780, 66 S.E.2d 441, 443

Mrs. Gray relies upon our decision in Naccash
v. Burger
, 223 Va. 406, 290 S.E.2d 825 (1982). There, this
Court recognized a parental cause of action for emotional
distress when blood samples withdrawn from the parents were
mishandled, blood test results were incorrectly reported as
negative, and a fetus, born alive, died two years later of
Tay-Sachs disease. Unlike Mrs. Gray, however, the plaintiffs in Naccash
were not third-party bystanders. It was their own blood that was
tested and mishandled. Upholding their motion for judgment, this
Court said:

Essential to the recognition of a cause of
action in favor of the Burgers is the existence of a duty owed
them. Clearly, when the Burgers presented themselves to the
Cytogenetics Laboratory at Arlington Hospital for Tay-Sachs
testing, they were owed a duty of reasonable care in the handling
of the blood withdrawn for the tests; this duty encompassed the
obligation to provide them with reasonably accurate information
concerning the condition of their unborn child so they could make
an informed decision regarding abortion.

Id. at 414, 290 S.E.2d at 829.

Mrs. Gray also relies upon Hughes v. Moore,
214 Va. 27, 197 S.E.2d 214 (1973). There, the plaintiff’s
injuries were "sustained . . . as a consequence of
fright and shock caused when an automobile driven by the
defendant . . . crashed into the front porch of her
home." Id. at 28, 197 S.E.2d at 215. Clearly, the
tortfeasor owed the homeowner a duty not to damage her property.

Here, INOVA owed Mrs. Gray no duty. She was not
the patient upon whom medical tests were being performed. Kira
was the patient undergoing those tests, and it was Kira to whom
INOVA owed a duty of care. Any negligence in administering the
tests was a breach of the duty owed to Kira, not her mother.

Because Mrs. Gray had no cause of action
against INOVA, we will affirm the judgment of the trial court
sustaining the demurrer to the Motion for Judgment.





[1] We have held that a tortfeasor whose negligence has
caused an injury to a child in utero owes a duty to the
mother of that child. Specifically, we have said that "an
unborn child is a part of the mother until birth" and,
accordingly, that "injury to an unborn child constitutes
injury to the mother and that she may recover for such medical
injury and mental suffering associated with a stillbirth." Modaber
v. Kelley
, 232 Va. 60, 66, 348 S.E.2d 233, 236-37 (1986). See
, Bulala v. Boyd, 239 Va. 218, 389 S.E.2d 670
(1990); Fairfax Hospital System v. McCarty, 244 Va. 28,
419 S.E.2d 621 (1992).