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.

[19] The (serious) emotional distress that the parents of a hospitalized minor child suffer as a consequence of the physicians’ negligent failure to timely notify them of their child’s irreversible brain death is as palpable as it is foreseeable; hence, the severe emotional harm that such negligence visits upon the parents is not predicated on any physical harm or manifestations of such emotional distress.

[20] The emotional distress that a sibling suffers as a consequence of the failure of the physician, charged with treating the sibling’s brother or sister, to timely notify the sibling of her brother’s/sister’s irreversible brain death is factually determinative, not a presumptive result.

Before RICHMOND, Associate Justice; and MAMEA, Associate Judge.

Counsel: For Plaintiffs: Fiti A. Sunia.
For Defendant: Sara A.H. Sayles, Assistant Attorney General.

OPINION AND ORDER

This is a wrongful death action against the American Samoa Government (“ASG”), whereby Plaintiffs allege that members of the medical staff at ASG’s LBJ Tropical Medical Center (“LBJ”) negligently caused the death of Temukisa Filoiali’i (“Temukisa”) by administering a lethal dose of morphine and subsequently failing to monitor Temukisa. Plaintiffs also claim the LBJ medical staff members negligently caused Plaintiffs to suffer [**2**] severe emotional distress for failing to timely notify Plaintiffs that Temukisa was brain dead. 

After reviewing the testimonies and other evidence presented at trial, which spanned seven days, we hold ASG not liable for the wrongful death claim in connection with Temukisa’s death and not liable for the negligent infliction of emotional distress claim of Temukisa’s siblings, but hold ASG liable for the negligent infliction of emotional distress claim of Temukisa’s parents.

Background

On July 28, 2006 at approximately 12:37 p.m., Temukisa was admitted into the Emergency Room (“ER”) at LBJ Tropical Medical Center (“LBJ”) complaining of having a headache on the frontal lobe area, sore throat, fever and chills, and body aches. She also vomited once. Dr. Belinda Vergara, the attending physician, noted Temukisa had an elevated temperature of 101.6 degrees Farenheit and diagnosed Temukisa as having pharyngitis and a right ear infection. Dr. Vergara subsequently discharged Temukisa with prescriptions for Erythromycin antibiotic and Tylenol. 

Fa’afota Filoali’i (“Fa’afota”), Temukisa’s mother, returned Temukisa to the ER at about 7:13 a.m. where Dr. Vergara examined her again. Temukisa complained she did not sleep the night before due to her headache. Temukisa vomited again on the [**3**] way back to the hospital. Dr. Veragara again diagnosed her as having pharyngitis and a right ear infection and ordered a normal saline I.V. with Tylenol. Dr. Jerome Amoa (LBJ Internist) relieved Dr. Vergara and confirmed her observations and diagnosis. Dr. Amoa also performed a neurological examination describing Temukisa as being awake but drowsy, able to move all four limbs, and with a supple neck.

By 9:00 a.m., Temukisa was reported as being restless and not responding to commands despite being awake. Temukisa was also moaning, irritable, and mildly thrashing around but with quiet intervals. A second neurological examination revealed no apparent inflammation of the meninges. However, Temukisa’s pupils were reported as having a sluggish reaction to light. Temukisa was suspected of possibly having meningitis.

Dr. Tagi’ilima Iatala (LBJ pediatrician) arrived to the ER at around 9:00 a.m. Soon thereafter, he testified to observing Temukisa being held down by multiple people. According to Dr. Iatala, the victim was thrashing and yelling and appeared to be in pain. 

By 9:25 a.m., Temukisa was actively seizing. Dr. Iatala observed the type of seizure as decorticate posturing, a symptom of severe brain injury that usually results in coma and death. He told Fa’afota that people who suffer from this type of seizure rarely recover and that Temukisa’s condition will not [**4**] get any better. Fa’afota verified this along with Alofa Luisa Amisone (“Amisone”), Temukisa’s aunt who overheard the conversation. 

At 9:40 a.m., Decadron was administered to Temukisa, per Dr. Iatala’s order, to address the increased intracranial pressure he suspected Temukisa was suffering. 

At 9:50 a.m., Dr. Iatala ordered a CT scan for Temukisa’s head. Also, 15 milligrams of morphine was administered through Temukisa’s I.V. line per Dr. Iatala’s verbal order. The purpose of the morphine was to calm Temukisa down for the CT scan. Approximately six minutes later, Temukisa stopped moving. According to LBJ nurse Vala’aulia A’asa (“A’asa”), the nurse who administered the morphine dose, Temukisa did not appear to be in any respiratory distress or apneic. 

At 10:00 a.m., Temukisa was taken to radiology for a CT scan of her head. She was accompanied by a nurse’s aid and Amisone. No one else came along. Temukisa was not attached to any monitoring system. Amisone stayed at Radiology during entire scan and returned to the ER with Temukisa. According to Amisone appeared to be sleeping on way back to the ER from Radiology. At the ER, A’asa personally observed Temukisa who did not appear to be in any respiratory distress or apneic.

At 10:40 a.m., Temukisa had a reported blood oxygen saturation of 95 percent. A’asa testified Temukisa appeared to [**5**] be asleep and not apneic. At 10:45 a.m., A’asa administered Rocephin antibiotic through Temukisa’s I.V. line. A’asa testified that Temukisa did not appear to be apneic at this time. A’asa administered Tagamet through Temukisa’s I.V. line at 11:00 a.m. 

At 11:10 a.m., A Tylenol suppository was administered to Temukisa. Amisone assisted the nurse’s aid with administering the Tylenol suppository by turning Temukisa to the lateral position towards her. Amisone testified that Temukisa appeared to be asleep before Amisone turned her to her side. Amisone returned Temukisa to the supine position after the suppository was administered. It is then that Amisone noticed Temukisa’s face had turned “black.” Amisone began screaming and doctors immediately responded by intubating her and forcing air into her lungs with an ambulatory bag. 

At 11:25 a.m. a portable chest X-ray was ordered, and she was transfered to ICU. The x-ray revealed she had pneumonia. 

At 2:53 p.m., Temukisa underwent a CT scan, which revealed that she indeed had a cerebral edema.

On July 29, 2006, at 6:58 a.m., Dr. Iatala evaluated Temukisa and found no improvements in addition to being unresponsive to tactile stimuli. At 2:00 p.m., Dr. Iatala observed Temukisa’s pupils were dilated at 2-3 centimeters and that she appeared to be in a deep coma. A second CT scan was [**6**] also completed, which revealed (after discussing the scan with the radiologist) a cerebral edema and cerebral infarct. Dr. Iatala consequently ordered that Manitol, a diuretic, be included in Temukisa’s drug regimen. Dr. Iatala discussed the CT scan results with Temukisa’s aunty, Matamuli Punimata (“Matamuli”).

On July 31, 2006, Dr. Iatala noted Temukisa’s general condition as stable with a good urine output, but unresponsive to tactile stimuli. 

On August 1, 2006, Temukisa’s family held a meeting that Dr. Iatala and Dr. Pita Lauvao (LBJ pediatrician) attended. The doctors discussed Temukisa’s condition, prognosis, and treatment plans with the family. On August 2, 2006, Temukisa is diagnosed as being comatose. 

Temukisa’s condition remained unchanged from August 2 through August 4. Temukisa’s cerebral edema was still present. On August 7, 2006, Temukisa’s pupil dilations were noted as being fixed at 2-3 centimeters.

On August 8, 2006, a CT scan revealed that Temukisa’s cerebral edema had worsened, and her general condition had deteriorated. Temukisa was suspected of having a blood clot in her head. Dr. Iatala and Dr. Lauvao presented these concerns to Temukisa’s family and told them that her prognosis was not good. The family, nonetheless, requested that Temukisa be provided [**7**] with continuous medical care and to resuscitate her should she stop breathing or her heart stop pumping. 

On August 10, 2006, Temukisa’s general condition continued to deteriorate. Temukisa’s pupil dilations increased to 5-6 centimeters and remained unresponsive. On August 11, 2006, a tracheostomy was being considered for the log-term care of Temukisa. This was relayed to Temukisa’s father On August 15, 2006. Temukisa’s condition remained unchanged through August 17, 2006.

On August 17, 2006, Dr. Iatala observed Temukisa began to have intermittent spontaneous breathing and maintained good oxygen blood saturation. 

On August 21, 2006, a social services agent met with Temukisa’s farther who was aware of the tracheostomy and gastrostomy procedures for Temukisa and expressed a strong faith that Temukisa would hold on. The family, nonetheless, postponed the procedure pending a family meeting. On August 23, 2006, the family met with Dr. Win Kumar (LBJ surgeon), Dr. Pita Sunia (LBJ Chief of Anesthesia), and Iatala; T. Fano, RN; and a social worker. The parents were apprised of Temukisa’s current condition and informed of the purpose of the procedures, the risks, and the long-term care of Temukisa. The parents agreed to proceed with the procedures.

On August 24, 2006, Dr. Kumar performed a pre-operation assessment on Temukisa and determined that she was brain dead. [**8**] According to his notations, Temukisa exhibited no brain stem reflexes—i.e., no corneal, gag, swallowing, or cough reflexes. Dr. Kumar recommended that an independent panel of physicians assess Temukisa and determine whether she was indeed brain dead. 

On August 25, 2006, the family was notified that Temukisa was brain dead. On September 1, 2006, Temukisa’s father requested that Temukisa be removed from life support. Temukisa was pronounced dead at 3:50 a.m. that day. 

Dr. Iatala completed the death certificate. The certificate states that Temukisa’s cause of death was “massive cerebral edema” due to or as a consequence of “cerebral thrombosis” due to or as a consequence of “brain stem infarction,” and that pneumonia was a significant condition contributing to death but was not related to the disease or condition causing it.

Discussion

I. Negligence

Plaintiffs allege LBJ administered a lethal dose of morphine to Temukisa and subsequently failed to continuously monitor the victim for signs of respiratory failure, a known side effect of morphine that causes death if not timely discovered and treated. According to Plaintiffs, the lethal morphine dose caused Temukisa to suffer respiratory failure and that a failure on the part of LBJ to continuously monitor [**9**] Temukisa’s vital signs precluded them from timely discovering and treating her respiratory distress, which eventually caused her brain death. Consequently, our unenviable task is to determine whether LBJ is negligently liable for administering a lethal dose of morphine to Temukisa and for failing to properly monitor Temukisa’s vital signs after she had received morphine. 

In a negligence action, the plaintiff must, by a preponderance of the evidence, establish the following elements: (1) duty; (2) breach; (3) causation; and (4) damages. Lang v. Am. Samoa Gov’t, 1 A.S.R.3d 148, 150 (Trial Div. 1997). 

In a suit for injuries by alleged malpractice, the burden is on the plaintiff to prove by a preponderance of the evidence the recognized standard of medical care in the community, that there was a lack of reasonable and ordinary care or skill on behalf of the medical professional, and that the medical professional’s negligence was the proximate cause of the injury. 

Id. 

[1-6] 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. See Ostrowski, 111 N.J. at 431; W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30 (5th ed. 1984). 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. See Fischer v. Red Lion Inns Operating L.P., 972 F.2d [**10**] 906 (8th Cir. 1992); Elledge v. Staring, 939 P.2d 1163 (Okla. Ct. 1996); Heavrin v. Shop’N Save, 922 S.W.2d 463 (Mo. Ct. App. 1996); Ostrowski v. Azzara, 111 N.J. 429 (N.J. 1988); Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227 (1984); Taylor v. Wyeth Lab., Inc., 139 Mich.App. 389 (Mich. Ct. App. 1984); Pacht v. Morris, 107 Ariz. 392 (1971); Lucas v. Hesperia Golf & Country Club, 255 Cal. App.2d 241 (1967). 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. Pasquale v. Miller, 599 N.Y.S.2d 58, 59-60 (1993). Specifically, 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. A mere possibility of such 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. Where the conclusion 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.

W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41, at 269 (5th ed. 1984). “If the trier of fact can do no more than speculate as to which of several possible causes was the actual [**11**] cause of the injury in question, the defendant is entitled to judgment in his favor.” Lang 1 A.S.R.3d at 153. “Injury, death, or an otherwise unsuccessful result of treatment does not itself shift the burden of proof, nor does it give rise to an inference of negligence.” Id. at 150. 

Our review of the evidence in the record leaves us with the belief that LBJ is not negligently liable. Even if we were to assume that LBJ breached its duty of care by administering a lethal dose of morphine to Temukisa and then failing to properly monitor her vital signs, we find nothing in the record to convince us that such negligence proximately caused Temukisa to suffer brain death and ultimately die. Rather, the evidence before us suggests that Temukisa likely died as a consequence of a fatal form of cerebral edema likely resulting from trauma to Temukisa’s head and not due to the morphine dose or the failure to monitor Temukisa.

According to Dr. James Marrone (LBJ Chief of Pediatrics) and Dr. Pita Sunia (LBJ Chief of Anesthesia), Temukisa exhibited symptoms that were indicative of a serious underlying infection. These symptoms, along with her other symptoms—i.e., severe headache, nausea, vomiting, loss of consciousness, sluggish pupils, and seizure—further indicated that Temukisa also was [**12**] suffering from cerebral edema and increased intracranial pressure. Both doctors opined that Temukisa probably had meningitis, which consequently caused cerebral edema and increased intracranial pressure. Dr. Jerome Amoa (LBJ Internist) testified that Temukisa likely had a previous brain injury that remained largely asymptomatic until the later progressive stages of the body’s natural reaction to the injury Temukisa suffered.

Drs. Marrone, Sunia, Amoa, and Tagi’ilima Iatala (LBJ Pediatrician) testified that the severity of Temukisa’s cerebral edema was sufficient to compromise her central nervous system. Dr. Marrone, in particular, noted that Temukisa’s behavior changed dramatically over a short period of time. Temukisa went from a child walking into the Emergency Room complaining of a headache and sore throat to becoming abnormally responsive to commands. According to Dr. Marrone, it is indeed rare that the underlying cause of such a dramatic change in a child’s neurological behavior would be anything other than significant injury to her central nervous system. Temukisa’s rapid neurologic degeneration, combined with her being symptomatic of suffering from systemic infection, led Dr. Marrone and Dr. Sunia to conclude that Temukisa was neurologically compromised, which consequently caused a cerebral edema. A CT scan of Temukisa’s head, which LBJ took later that day, confirms this [**13**] assessment. According to Dr. Marrone, the scan revealed that Temukisa indeed had neurologically deteriorated over a fairly rapid course of time and that there was massive swelling of the brain, which presumably caused increased intracranial pressure. Dr. Marrone further testified that Temukisa’s brain injury was sufficiently severe to cause decorticate posturing. In fact, the presence of decorticate posturing is partly responsible for why Dr. Marrone concluded Temukisa had suffered serious injury to her central nervous system. 

Decorticate posturing is a term used to describe a type of seizure that is symptomatic of serious injury to the central nervous system. It is indicative of herniation, whereby a portion of the brain is pushed through the cavity at the base of the skull where the spinal cord meets the brain. According to Dr. Marrone, a patient who exhibits decorticate posturing has suffered severe trauma to the central nervous system such that the connection between the portions of the patient’s brain that control the body’s nerve functions has been severed from the rest of the body, which can either leave the patient in a vegetative state or cause death. Dr. Marrone further opined that decorticate posturing is a symptom of brain injury that may be sufficiently severe to deprive the brain of oxygen. The usual prognosis for patients in such instances is one of poor neurological outcome—i.e., stroke, paralysis, or death—with [**14**] little or no recovery. Dr. Sunia and Dr. Amoa expressed similar ominous prognoses for patients who exhibit decorticate posturing. Specifically, morbidity and fatality rates in these patients are high. The outcome usually is comatose and death. Hence, once decorticate posturing has manifested itself, the damage to the patient’s central nervous system has already occurred and likely is beyond repair.

The record substantiates that Temukisa exhibited signs of decorticate posturing before LBJ dosed her with morphine. According to the medical record, Temukisa began seizing sometime around 9:25 a.m., approximately 25 minutes before LBJ administered the 15-milligram bolus of morphine. Dr. Iatala was on duty at the Emergency Room that morning. He was a percipient witness to Temukisa’s seizure episode. In his medical notes and testimony, he described the seizure as decorticate posturing. It certainly appears from the facts that what Dr. Iatala witnessed was indeed decorticate posturing. To begin, this was not the first time Dr. Iatala observed such posturing in patients under his care. Aside from two prior patients at LBJ, Dr. Iatala witnessed and treated patients afflicted with this condition many times during his tenures as a medical student and a resident in New Guinea. Undeniably, he seemed equally aware [**15**] that patients exhibiting decorticate posturing rarely recovered from the damage their central nervous systems sustained. Fa’afota corroborated Dr. Iatala’s assessment that Temukisa was exhibiting such posturing. Fa’afota testified that Dr. Iatala, upon observing Temukisa’s seizure, approached and told her that “people who suffer from this type of seizure rarely recover from it.” Fa’afota Trial Tr. 5:2-4 (June 15, 2011). Amisone verified this when she testified that she overheard Dr. Iatala telling Temukisa’s parents, prior to administering the morphine, that Temukisa’s “condition will not get any better.” Amisone Trial Tr. 13:1-25 (June 15, 2011). 

In light of the facts before us, it appears, more likely than not, Temukisa was suffering from a fatal form of cerebral edema whose onset likely was caused by an underlying infection or head trauma. In all probability, the cerebral edema compressed her brain and effectively severed it from rest of the body, thereby inducing decorticate posturing. As noted above, a patient who exhibits decorticate posturing likely has suffered trauma so severe that recovery is doubtful. The more probable outcome is coma and death. Seeing as how such posturing was observed 25 minutes before Temukisa even received the morphine dose, we simply find it unbelievable that the morphine dose proximately caused her brain death. If anything, it is [**16**] indicative that Temukisa’s central nervous system probably had already been compromised and was progressively getting worse. 

Plaintiffs’ expert witness, Dr. Stanley Dean (Anesthesiologist from the Independent State of Samoa), paints a different picture. Unlike the other expert witnesses, Dr. Dean believed the cerebral edema was partly caused by apnea, which had been induced by the morphine overdose and poor monitoring. Dr. Dean related that cerebral edemas brought on by infection are fatal only if they are chronic. In this instance, Dr. Dean believed the timeline of illness was too short for the cerebral edema Temukisa suffered to be considered chronic. Rather, Temukisa suffered an acute form of cerebral edema which, according to Dr. Dean, is not fatal; consequently, Dr. Dean opined Temukisa did not die from a cerebral edema. 

Dr. Dean, however, seemed to overlook the broad picture that Temukisa’s symptoms painted regarding her overall neurological condition. Unlike the other expert witnesses, who considered the symptoms in toto and recognized them as being clearly indicative of serious injury to Temukisa’s central nervous system, Dr. Dean seemed to consider the symptoms individually and summarily discounted them seemingly without giving serious thought to what these symptoms cumulatively represented. [**17**]

Dr. Dean took no notice of the fact that Temukisa’s neurological condition rapidly degenerated over a short period of time. Dr. Dean also discounted Temukisa’s sluggish pupil dilations, a sign of serious head trauma and increased intracranial pressure that the staff observed prior to administering the morphine, as nothing more than physician diagnostic error. This explanation is anything but convincing. We have previously explained, “Unless it is provided otherwise, a physician is presumed to have carefully and skillfully treated his patient.” Lang, 1 A.S.R.3d at 151. Neither Plaintiffs nor Dr. Dean presented any evidence that would lead us to believe that Temukisa’s sluggish pupil dilations were nothing more than diagnostic error. 

Furthermore, Dr. Dean flatly ignored the fact that the attending physician personally observed Temukisa exhibit decorticate posturing. Despite not witnessing the seizure himself, Dr. Dean discounted the severity of the event by ostensibly equating it to an epileptic seizure. Dr. Dean, however, provided no clear explanation to why he completely disregarded Dr. Iatala’s observation of Temukisa’s decorticate posturing. 

Dr. Dean’s reticence seemed to rest largely on the fact that he believed Temukisa’s cerebral edema was not serious. Dr. Dean based his conclusion largely on the fact that the medical [**18**] record mentioned nothing about Temukisa producing large quantities of urine. Dr. Dean explicated, had the cerebral edema been massive enough to be fatal, the dose of Decadron that LBJ administered to Temukisa during her seizure should have induced Temukisa to produce 1-2 liters of urine within an hour after its administration. According to Dr. Dean, Decadron is a diuretic; hence, it would have induced Temukisa to urinate the excessive fluid that was causing the cerebral edema. Dr. Dean noted, however, the medical record is silent as to whether Temukisa urinated such a quantity of fluid. As such, Dr. Dean interpreted this silence as proof that such an event never happened. Relying on this presumption, Dr. Dean concluded that the cerebral edema could not have been severe. Consequently, Dr. Dean reasoned that it was the seizure, combined with the apneic effect of the morphine dose, which caused the cerebral edema that was revealed by the CT scan.

Dr. Dean’s assessment is anything but convincing. It remains far from settled, at least for our purposes, whether Decadron is indeed a diuretic. The other expert witnesses have testified never having heard of Decadron possessing diuretic properties. Dr. Marrone, in particular, related that Decadron is not a diuretic but is instead a steroid whose anti-inflammatory properties operate through pathways and mechanisms that do not induce urine production. Nonetheless, even if [**19**] Decadron is a diuretic, Dr. Dean’s presumption that Temukisa did not urinate after receiving the Decadron dose is groundless for the simple reason that it is premised on the fact that the event is not noted in Temukisa’s medical record. How such a presumption can be made is a leap in evidentiary logic we are unwilling to take; Plaintiffs never sufficiently established that such silence is valid evidence of the event’s nonoccurrence. Without this foundation, such reasoning is rendered flawed; it is argumentum ad ignorantiam. 

The cause of death that Dr. Dean posited is equally unavailing. According to him, Temukisa received a lethal dose of morphine that ultimately caused her to suffer respiratory failure, which hospital staff failed to timely discover due to a failure to continuously monitor Temukisa’s respiration. This consequently led Temukisa to suffer a prolonged period of oxygen deprivation that resulted in her brain death. 

The testimony Dr. Dean provided to support his theory was very muddled and far from convincing. He testified that Temukisa suffered from respiratory depression while she was undergoing a CT scan and became apneic upon returning to the Emergency Room. He further related that respiratory depression [**20**] causes a patient’s blood oxygen concentration to drop. Such testimony certainly contradicts the medical record, which notes that Temukisa’s blood oxygen concentration was within the normal the range not long after she returned to the Emergency Room from her CT scan. 

In spite of this inconsistency, Dr. Dean maintained that Temukisa was indeed apneic when she returned to the Emergency Room. He supported this postulation by pointing out that Temukisa’s respiratory rate was not reported with her blood oxygen concentration measurement. According to Dr. Dean, the absence of such a reading can only mean Temukisa was not breathing. Needless to say, we find this incredible as it is not rooted in any substantive evidence. Moreover, Plaintiffs have failed to provide any evidence even remotely suggesting such to be the case. 

If anything, we are doubtful that apnea would have set in while Temukisa underwent the CT scan. It has been established that a person can suffer brain death in a matter of minutes—approximately within 3 to 6 minutes. Furthermore, a person who is apneic and suffers from oxygen deprivation first becomes cyanotic—bluish skin discoloration—before he becomes brain dead. Cyanosis can set in within 2 minutes (or less) after the individual has become apneic. [**21**]

The record reflects Temukisa had sufficient oxygen in her blood when she returned to the Emergency Room from Radiology at 10:40 a.m. Sometime around 11:10 a.m., Approximately 30 minutes later, Amisone assisted an emergency room nurse with administering a Tylenol suppository to Temukisa. Amisone testified that Temukisa appeared to be asleep just prior to rolling Temukisa to the lateral position. It was not until after the suppository had been administered and Temukisa had been rolled back to the supine position did Amisone notice that Temukisa had become cyanotic. The timeline of these events simply do not corroborate Dr. Dean’s opinion. We find the time gap, from when Dr. Dean alleged Temukisa became apneic to when she was discovered to be cyanotic, too wide for us to reasonably find accuracy in Dr. Dean’s assessment. A’asa and Amisone reported that Temukisa appeared to be sleeping just before they administered the suppository. There were no indications of cyanosis at this point. If Temukisa did indeed become apneic upon returning to the Emergency Room as Dr. Dean asserted, cyanosis should have set in long before the suppository was administered. This, however, is not what happened.

The other expert witnesses presented a more likely scenario. According to them, Temukisa’s airway became constricted when she was repositioned for the suppository. The constriction caused Temukisa’s apnea, and she consequently [**22**] became cyanotic. This theory seems to harmonize well with Amisone’s testimony and the Emergency Room medical records, especially when considering the fact that it can take more than one minute to administer a suppository, a period of time long enough for a person—particularly one whose health is compromised—to become apneic and consequently cyanotic. We, therefore, find it more likely that Temukisa became apneic around the time the suppository was administered to her. 

Regardless of when Temukisa became apneic, we are certain that her central nervous system, more likely than not, was irreversibly compromised by the time she suffered respiratory failure and became cyanotic. Consequently, we find it unlikely that the high morphine dose and a subsequent failure to monitor Temukisa proximately caused her brain death or her subsequent death.

II. Negligent Infliction of Emotional Distress

Plaintiffs also assert a claim of negligent infliction of emotional distress (“NIED”). According to Plaintiffs, LBJ acted negligently by giving Plaintiffs false hope that Temukisa would recover despite being aware that she was brain dead. Plaintiffs allege they suffered severe emotional distress as a consequence of LBJ’s negligence. 

[7] This court recognizes the tort theory of NIED as a cause of action available to the denizens of the Territory. However, we [**23**] also are aware that NIED remains an evolving tort whose range of application is largely unexplored and clouded in uncertainty. Klein v. Children’s Hosp. Med. Ctr of N. California, 46 Cal.App.4th 889, 893 (Ct. App. 1996). See Id. This has consequently created a great deal of confusion at the trial level in other jurisdictions. See, e.g., Golstein v. Superior Court, 273 Cal.Rptr. 270 (Ct. App. 1990); Hurlbut v. Sonora Community Hosp. 254 Cal.Rptr. 840 (Ct. App. 1989); Newton v. Kaiser Found. Hosps., 228 Cal.Rptr. 890 (Ct.App. 1986); Martinez v. County of L.A., 231 Cal.Rptr. 96 (Ct.App. 1986); Goodwin v. Reilley, 221 Cal. Rptr. 374 (Ct.App. 1985). 

[8] Nonetheless, enough groundwork has been laid for us to recognize that “[NIED] is not an independent tort”; it is a tort of negligence.” Klein, 46 Cal.App.4th at 894. As such, 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.” Id. 

[9-10] There are two general theories of NIED by which a plaintiff may present a claim. The “bystander” theory is based on a breach of duty owed to the public in general. Christensen v. Superior Court, 54 Cal.3d 868, 884 (Cal. 1991). Under the “direct victim” theory, the damage sought is one for emotional distress resulting from a breach of a duty of care directly owed [**24**] the plaintiff by the defendant. Molien v. Kaiser Found. Hosps., 27 Cal.3d 916, 922-23 (Cal. 1980); Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., 48 Cal.3d 583, 590 (Cal. 1989). Plaintiffs in the present matter have not specified which NIED theory they are asserting. Nevertheless, it is readily apparent to us that Plaintiffs cannot recover under the bystander theory since the negligent act alleged—i.e., negligently giving false hope of decedent’s recovery and failing to timely notify Plaintiffs that Temukisa was irrevocably brain dead—was directed at Plaintiffs, not at Temukisa. As direct victims, Plaintiffs would not meet the criteria for bystander recovery. Our discussion, therefore, is limited to addressing the question of whether Plaintiffs can recovery under the direct victim theory of NIED. We begin our discussion by defining the duty Defendants owed Plaintiffs and whether such duty had in fact been breached. [**25**] 

[11-13]Generally, “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.” Jacoves v. United Merchandising Corp., 9 Cal.App. 4th 88, 108 (Ct. App. 1992). The emotional bond between parent and child undoubtedly is one of unrivaled strength. “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.” Huggins v. Longs Drug Stores, Inc., 6 Cal.4th 124, 133 (Cal. 1993). It is indeed torment for a parent to see his or her child lying motionless in a hospital connected to a machine that, by all appearances, is keeping her alive. It certainly is reasonable to assume that a parent caught in such a situation would hope for the best and simultaneously dread the worst. One can only imagine the emotional toll. Consequently, a negligent failure to diagnose a child as being brain dead and to promptly notify the parents merely prolongs the parents’ agony, forestalls the inevitable, and delays the grieving process. Therefore, 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 physicians were aware (or should have been aware) that the child was brain dead long before they actually notified the parents. [**26**]

[14] However, the duty owed the plaintiff must also 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. Marlene F., 48 Cal. 3d at 590. 

[15-16] We hold little doubt 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. Parents are the decisionmakers where alternative forms of treatment are concerned, especially when the minor child is incapable of communicating, and are subject to criminal prosecution should they fail to provide the necessary medical care. Moreover, the decision to remove life support from a terminally ill child who is in a persistent noncognative, vegetative state with no hope of recovery is a responsibility that ultimately rests with the parents. In re Jane Doe, 262 Ga. 389, 391 (Ga. 1992); In re C.A., 236 Ill.App.3d 594, 607 (Ill.App. Ct. 1992); In re Peter, 108 N.J. 365, 377 (N.J. 1987); In re Guardianship of Barry, 445 So.2d 365, 372 (Fla. App. Ct. 1984). We need not elaborate on the necessity for accurately diagnosing a child's condition and prognosis before any parent can make the heart-wrenching [**27**] decision to disconnect their child from life support. Under such circumstances, the relationship shared between the parent and the physician treating her 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 brain death. 

Temukisa was a minor child who clearly was incapable of making decisions regarding her medical treatment. She was comatose and on a life support ventilator, which maintained her respiratory function. The decision to remove Temukisa from life support rested with her parents. It is evident that any decision her parents made regarding her fate rested heavily on the physicians' frank assessment of Temukisa's health condition. In light of all this, we hold no reservations in finding that the physicians had a duty to promptly disclose Temukisa's brain death to her parents upon discovery.

Having determined the existence of a duty of such prompt disclosure, our task turns next to determining whether the physicians did, in fact, breach that duty. “In a medical malpractice action, the duty of medical professionals is to act with the standard of care ordinarily exercised under the same or similar circumstances by members of the profession in the same or similar communities.” Lang, 1 A.S.R.3d at 151. [**28**] 

[17] Thus, 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.

Klein, 46 Cal.App. 4th at 897-98. 

[18] We hold little doubt that the physicians treating Temukisa were aware, from early on, that Temukisa was brain dead. LBJ reported a grim prognosis for Temukisa from the moment she was observed exhibiting decorticate posturing to when she was diagnosed with brain death. The attending physicians were consistent in their diagnoses—Temukisa would not recover. Subsequent CT scans and Temukisa's unresponsiveness to tactile stimuli reinforced the likelihood that Temukisa would never recover. Yet, in spite of all this, none of the attending physicians, with the exception of Dr. Kumar 24 days later, seemed to consider examining her to determine whether she was brain dead. We find this utterly incredible. Clearly, LBJ has the means to determine whether a patient is brain dead. This was demonstrated by Dr. Kumar when he conducted a pre-operation examination of Temukisa and found her to be brain dead. Examining a patient for brain death evidently is not so [**29**] difficult and expensive as to limit its implementation to pre-operation examinations. The presumption of such a limitation becomes even more unbelievable considering the costs of caring for such patients, LBJ's limited bed space, and the fact that LBJ is the only hospital serving American Samoa. 

Consequently, we find no excuse in the physicians' failure to test Temukisa for brain death sooner than it did. Moreover, the record plainly reveals that the attending physicians seemed very much aware that Temukisa was indeed brain dead well before Dr. Kumar's pre-operation examination. Dr. Iatala, after all, examined Temukisa to determine whether she responded to tactile stimuli and regularly checked her pupil dilations—all of which are tests Dr. Winn performed when he determine Temukisa was brain dead. Despite such seemingly obvious indications—i.e., nonresponse to tactile stimuli, inability to consistently breath without life support, worsening CT scan results of cerebral edema—LBJ did nothing to confirm such suspicions of brain death. 

Such unseemly and unfortunate indifference and willful neglect can be construed in no way other than a breach in the duty to notify Temukisa's parents that she was indeed brain dead. At the very latest, an examination for determining brain death should have been conducted no later than August 8, 2006, when the CT scan revealed that her cerebral edema had worsened [**30**] and her general condition deteriorated to where she was completely unresponsive to any stimuli.

[19] We further find that this breach in duty proximately caused Temukisa's parents to suffer (serious) emotional distress. As we explained above, there is little doubt of the emotional toll that a parent incurs from seeing her comatose child each day, all the while not knowing whether her condition would ever improve. Equally apparent is the need for closure so that a parent can begin her grief of losing a child and move forward with healing from the loss. All of this, however, obviously was prolonged for Temukisa's parents because of the treating physicians’ breach of their duty to promptly inform her parents that Temukisa was brain dead. The (serious) emotional distress the parents suffered, upon learning that the attending physicians likely were aware of Temukisa's brain death from early on and their negligence in notifying the parents sooner, is as palpable as it is foreseeable. We, therefore, find that such negligence had indeed visited harm upon the parents regardless of whether or not Temukisa’s parents exhibited any predicate physical harm or manifestations of such emotional distress. See, e.g., Roes v. FHP, Inc., 91 Haw. 470, 477 (Haw. Sup. Ct. 1999).

[20] We are not, however, altogether convinced that emotional distress resulting from the treating physicians’ negligent [**31**] conduct would generally be a foreseeable consequence where the plaintiffs happen to be Temukisa’s siblings. Whether such emotional distress would be a foreseeable consequence is factually determinative. To illustrate, we find it unlikely that an infant would suffer severe emotional distress upon discovering that his or her sister had actually died a month earlier than what was originally disclosed. As such, we find nothing in the facts before us to find it foreseeable that Temukisa’s siblings would suffer (severe) emotional distress. We further find insufficient evidence to convince us that LBJ’s conduct and the alleged emotional injury Temukisa’s siblings have suffered are so closely connected to support the assertion that the attending physicians breached a duty of care owed to Temukisa’s siblings.

Order

1. ASG is not liable for wrongful death of Temukisa.

2. ASG is not liable for negligent infliction of severe emotional distress upon Temukisa’s siblings.

3. ASG is liable for negligent infliction of severe emotional distress upon Temukisa’s parents.

4. A separate evidentiary hearing will be conducted in connection with ASG’s liability to pay to Temukisa’s parents for the negligent infliction of severe emotional distress to [**32**] determine: (a) reasonable compensation as non-economic damages for the fears, anxiety and other emotional stress suffered to date and reasonably certain to be experienced in the future by Temukisa’s parents, and (b) any financial loss as economic damages, including but not limited to medical and funeral expenses, suffered by Temukisa’s parents as a result of the severe emotional distress. Costs of suit may be presented for the Court’s approval at this hearing. 

It is so ordered.