Espinosa v. Beverly Hospital

MOORE, P. J.

Appellant Isabel Espinosa entered respondent hospital under contract to receive obstetric care and services at the birth of her baby. On the third day thereafter respondents delivered to Isabel an infant purporting to be her own. Appellants took such child to their home and cared for it until their discovery that it was the offspring of others. On making known their grievance to respondents, the latter delivered to appellants another child which they' asserted was the progeny of appellants.

This action was instituted to recover $50,000 damages allegedly resulting from respondents’ negligence in causing “profound shock to their nervous systems; that they sustained great physical and mental suffering and were made sick, sore and lame.’’ The jury having returned a verdict in favor of respondents, appellants now seek a reversal of the judgment entered thereon.

The Espinosas’ demand is based primarily upon the court’s having given the following instruction:

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“You are instructed that mental suffering alone will not support an action for - damages of this kind. Therefore, if you find that the only injury suffered by plaintiff was mental suffering, then your verdict must be for the defendants and against plaintiffs.

“Unless you find that plaintiffs suffered actual physical injury as the proximate result of defendants’ negligence, they cannot recover in this case because fright or mental suffering alone will not sustain a recovery for plaintiffs.”

In addition to this instruction, the court properly addressed the jury upon the issues raised by the pleadings. They were told that “definite nervous disturbances or disorders caused by mental shock and excitement are classified as physical injuries and will support an action for damages for negligence where they are the proximate result of negligence on the part of the defendants. ” It is presumed that if the jury had found such “disturbances or disorders” to have resulted to appellants or either of them from nervous shock, they would have returned a verdict for appellants. Since the jury did not do so, appellants now seek to subvert the ancient rule that mental suffering alone will not support an action for damages based upon negligence. It cannot be overemphasized that the human body can through negligence of others suffer injury in only two ways: (1) by physical impact, and (2) by shock, through the senses, to the nervous system. A person can suffer both at the same time or he can experience one alone. In either event, actionable mental suffering may result. But merely because a shock to the nervous system is an injury to the body rather than to the mind