In the wake of the Swedish Medical Center notification to 2,900 patients that they were exposed to a risk of infection (HIV, Hepatitis-B and C) there is much discussion about emotional distress claims. This arises in the context of someone exposed to infection by the actions of Surgical Tech Rocky Allen who was not infected. The law in Colorado is summarized by the Court of Appeals as follows:
[T]he elements of a claim for negligent infliction of emotional distress under Colorado law reveals that the cause of action is properly viewed as independent of any action for personal injury by another person. To establish the claim, a plaintiff must show that the defendant’s negligence created an unreasonable risk of physical harm and caused the plaintiff to be put in fear for his or her own safety, that this fear had physical consequences or resulted in long-continued emotional disturbance, and that the plaintiff’s fear was the cause of the damages sought. Colwell v. Mentzer Investments, Inc., 973 P.2d 631, 638 (Colo.App.1998). The plaintiff must also show that he or she either suffered physical injury or was in the ” zone of danger.”
Draper v. DeFrenchi-Gordineer, 282 P.3d 489 (Colo. App. 2011).
This claim is to be distinguished from a claim for bodily injury where emotional distress results. Thus, the patients who test positive for Hepatitis-B, for example, have a valid claim for emotional distress as an element of damages, not as a separate and distinct claim.
This claim is also to be distinguished from Intentional Infliction of Emotional Distress, otherwise known as ‘outrageous conduct’ claims. The key difference is the whether the conduct was intentional or negligent. In an intentional conduct claim, there is no need to prove physical injury.