 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
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 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 BEATRIZ DE LA ROSA and
 8 RYAN SENFF,

 9          Plaintiffs-Appellants,

10 v.                                                                                   NO. 30,155

11 PRESBYTERIAN HEALTHCARE
12 SERVICES, INC., a New Mexico
13 corporation, and JOHN DOES 1-10,

14          Defendants-Appellees.


15 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
16 Alan M. Malott, District Judge

17 Crowley & Gribble, PC
18 Clayton E. Crowley
19 Albuquerque, NM

20 for Appellants

21   Keleher & McLeod, P.A.
22   Mary Behm
23   Regina Y. Moss
24   Albuquerque, NM

25 for Appellees
2
 1                            MEMORANDUM OPINION

 2 VIGIL, Judge.

 3        Beatriz De La Rosa and Ryan Senff sued a hospital for failing to provide De La

 4 Rosa with a private room in the emergency room while she was undergoing a

 5 miscarriage. They appeal the district court’s dismissal of their complaint pursuant to

 6 Rule 1-012(B)(6) NMRA. Because Plaintiffs’ complaint did not state a claim for

 7 either negligence or for intentional infliction of emotional distress, we affirm.

 8 BACKGROUND

 9        Plaintiffs’   complaint   alleges   that   on   March    19,   2007,   De    La

10 Rosa—accompanied by Senff—went to an emergency room operated by Defendant

11 Presbyterian Healthcare Services (PHS) for treatment of abdominal pain and vaginal

12 bleeding. She was discharged that day due to lack of insurance. Because her

13 symptoms continued, she called the hospital and was told to return to the emergency

14 room. She did so, and Defendant’s employees informed De La Rosa that she was

15 likely miscarrying and there was nothing they could do for her. De La Rosa remained

16 in the lobby in a wheelchair. Her miscarriage continued, and she went to the

17 emergency room’s bathroom and expelled the fetus and placenta. The bathroom’s

18 doorway was aligned in such a way that people in the emergency room could see De




                                              3
 1 La Rosa in the bathroom. Both De La Rosa and Senff were extremely distressed that

 2 De La Rosa’s miscarriage occurred in view of others.

 3        De La Rosa and Senff sued PHS, alleging negligence, intentional infliction of

 4 emotional distress, and negligent handling of human remains. Their complaint did not

 5 assert that PHS provided inadequate medical care, that PHS caused the miscarriage,

 6 or that PHS could have prevented the miscarriage. PHS moved to dismiss all three

 7 claims pursuant to Rule 1-012(B)(6), and the district court granted the motion. De La

 8 Rosa and Senff appeal the dismissal of their claims for negligence and intentional

 9 infliction of emotional distress. They do not appeal the dismissal of their claim for

10 negligent handling of human remains.

11 DISCUSSION

12 Standard of Review

13        We review de novo the district court’s dismissal of a claim under Rule 1-

14 012(B)(6). Valdez v. State, 2002-NMSC-028, ¶ 4, 132 N.M. 667, 54 P.3d 71. “In

15 reviewing a district court’s decision to dismiss for failure to state a claim, we accept

16 all well-pleaded factual allegations in the complaint as true and resolve all doubts in

17 favor of sufficiency of the complaint.” Id. We review the facts in this manner in

18 order to determine whether the allegations in the complaint are legally sufficient to

19 state a cause of action. See id.


                                              4
 1 The Complaint Fails to State a Claim for Negligence

 2         Plaintiffs’ complaint alleges negligence. “Negligence as a cause of action

 3 requires the proof of the following elements: duty, breach of that duty by failing to

 4 conform to the required standard, proximate cause, and loss or damage.” Payne v.

 5 Hall, 2004-NMCA-113, ¶ 17, 136 N.M. 380, 98 P.3d 1030, rev’d on other grounds,

 6 2006-NMSC-029, ¶ 18, 139 N.M. 659, 137 P.3d 599. Although the district court

 7 focused on the element of duty in determining whether De La Rosa and Senff’s

 8 complaint stated a claim for negligence, its analysis was based on whether PHS had

 9 an obligation to protect De La Rosa and Senff from a particular form of injury—the

10 emotional distress caused by a lack of privacy. Our analysis also turns on the kind of

11 harm that De La Rosa and Senff allege, both because it is implicit in the district

12 court’s discussion of PHS’s duty to De La Rosa and Senff and because, to the degree

13 that it is not implicit, this Court can affirm the district court if it is right for any reason.

14 See Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154

15 (stating that an appellate court may affirm a district court’s ruling on a ground that

16 was not relied on below if reliance on the new ground would not be unfair to the

17 appellant).

18         In order to establish a claim for negligence, a plaintiff must allege some form

19 of damage, harm, or injury. See, e.g., Spurlin v. Paul Brown Agency, Inc., 80 N.M.


                                                  5
 1 306, 307, 454 P.2d 963, 964 (1969) (“[T]here [is] no cause of action for negligence

 2 until there [has] been a resulting injury.”); Herrera v. Quality Pontiac, 2003-NMSC-

 3 018, ¶ 6, 134 N.M. 43, 73 P.3d 181 (listing the elements of negligence, including

 4 damages). Here, the only injury alleged is the emotional injury of “severe emotional

 5 distress.” The complaint asserts that PHS failed to advise De La Rosa and Senff about

 6 the availability of healthcare at another location and failed to provide privacy and

 7 “healthcare associated with childbirth,” but it does not allege any physical injury or

 8 damage as a result of this conduct. The only damages alleged are emotional.

 9        New Mexico permits recovery for emotional distress damages caused by

10 negligent conduct in limited circumstances. See Castillo v. City of Las Vegas,

11 2008-NMCA-141, ¶ 22, 145 N.M. 205, 195 P.3d 870. Although a plaintiff can

12 recover for emotional injuries caused by another’s negligence, she may generally only

13 do so if the conduct also caused a personal, physical injury. See id. ¶ 32 (holding that

14 a plaintiff could not recover for emotional distress brought on by negligent conduct

15 that caused damage to the plaintiff’s property but did not cause any physical injury to

16 the plaintiff); cf. Higgins v. Hermes, 89 N.M. 379, 381, 552 P.2d 1227, 1229 (Ct. App.

17 1976) (permitting recovery for emotional distress damages in a personal injury action

18 where the plaintiff suffered a physical injury). As Plaintiffs have not alleged any




                                              6
 1 physical injury negligently caused by PHS, they cannot recover for emotional distress

 2 damages that accompany a personal injury.

 3        When an emotional injury is the sole harm caused by another’s negligence,

 4 recovery for emotional distress is limited to two situations: The first is when a

 5 bystander suffers “severe emotional shock as a result of witnessing a sudden,

 6 traumatic event that causes serious injury or death to a family member.” Fernandez

 7 v. Walgreen Hastings Co., 1998-NMSC-039, ¶ 6, 126 N.M. 263, 968 P.2d 774. The

 8 second is when a person fears that “the negligence of another has caused him or her

 9 to contract HIV through a medically sound channel of transmission.” See Madrid v.

10 Lincoln Cnty. Med. Ctr., 1996-NMSC-049, ¶ 31, 122 N.M. 269, 923 P.2d 1154.

11        Plaintiffs’ complaint does not state a claim for negligent infliction of emotional

12 distress to a bystander. The elements of this type of claim are: (1) the plaintiff and

13 the victim shared a marital or intimate family relationship; (2) the plaintiff suffered

14 severe shock from the contemporaneous sensory perception of an accident; and (3) the

15 accident caused physical injury or death to the victim. Fernandez, 1998-NMSC-039,

16 ¶ 7. In addition, the plaintiff must prove the other elements of a cause of action in

17 negligence. Folz v. State, 110 N.M. 457, 468-69, 797 P.2d 246, 257-58 (1990). Here,

18 the complaint does not allege that PHS’s negligence caused any sudden traumatic

19 accident to occur. Instead, the complaint alleges that De La Rosa suffered a


                                              7
 1 miscarriage, for which the complaint ascribes no fault to PHS. To the degree that the

 2 sudden traumatic accident caused by PHS might be the fact of De La Rosa’s having

 3 the miscarriage in a place where she could be viewed by others, rather than the fact

 4 of the miscarriage itself, the complaint does not allege that having the miscarriage in

 5 view of others caused either a physical injury or the death of any person.

 6 Accordingly, the complaint fails to state a claim for negligent infliction of emotional

 7 distress.

 8        Nothing in De La Rosa and Senff’s complaint suggests that PHS’s conduct

 9 caused them to fear that they had contracted HIV, and therefore this version of the

10 negligent infliction of emotional distress claim does not apply.

11        Because the complaint does not allege any personal injury caused by PHS,

12 Plaintiffs cannot recover for emotional distress damages that accompany a negligently

13 caused personal injury. Because the complaint does not allege any sudden traumatic

14 accident negligently caused by PHS that resulted in physical injury or death to any

15 person, or any negligent conduct that caused Plaintiffs to fear that they had contracted

16 HIV, neither De La Rosa nor Senff can recover damages for negligently inflicted

17 emotional distress unaccompanied by a physical injury. Therefore, the district court

18 did not err in dismissing Plaintiffs’ negligence claim.

19 The Complaint Fails to State a Claim for Intentional Infliction of Emotional
20 Distress

                                              8
 1        A claim of intentional infliction of emotional distress requires a showing that

 2 (1) the defendant’s conduct was extreme and outrageous; (2) the conduct was

 3 intentional or in reckless disregard of the plaintiff; (3) the plaintiff’s mental distress

 4 was extreme and severe; and (4) there is a causal connection between the defendant’s

 5 conduct and the plaintiff’s mental distress. Trujillo v. N. Rio Arriba Elec. Coop., Inc.,

 6 2002-NMSC-004, ¶ 25, 131 N.M. 607, 41 P.3d 333. In order to qualify as “extreme

 7 and outrageous,” the conduct must be “so outrageous in character, and so extreme in

 8 degree, as to go beyond all possible bounds of decency, and to be regarded as

 9 atrocious, and utterly intolerable in a civilized community.” Id. (internal quotation

10 marks and citation omitted). It is for the district court to determine as a matter of law

11 whether the conduct at issue is so extreme and outrageous that it will permit recovery

12 under the tort. Id. ¶ 26. It is only “[w]hen reasonable persons may differ on that

13 question, [that] it is for the jury to decide, subject to the oversight of the court.” Id.

14 (internal quotation marks and citation omitted).

15        In this case, the conduct alleged in the complaint was that PHS failed to provide

16 a private room for De La Rosa while she was having a miscarriage. The miscarriage

17 was not alleged to constitute a medical emergency, and it was not alleged that the

18 miscarriage or any other physical injury could have been prevented with medical

19 treatment. The complaint does not allege that the private room was necessary for


                                               9
 1 medical purposes; only that it was necessary to protect Plaintiffs’ feelings during a

 2 difficult and emotional event. Plaintiffs provide this Court with no authority that

 3 supports their argument that PHS’s conduct in failing to provide a private room for

 4 such purposes was the kind of extreme and outrageous conduct that will support a

 5 claim for intentional infliction of emotional distress, and we presume that no such

 6 authority exists. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330

 7 (1984). We agree with the district court that a hospital’s failure to provide a room to

 8 a person who is undergoing a non-emergency medical event in order to provide that

 9 person with privacy does not, as a matter of law, constitute extreme and outrageous

10 conduct.

11 CONCLUSION

12        The district court did not err in granting PHS’s motion to dismiss Plaintiffs’

13 claims for negligence and intentional infliction of emotional distress, and Plaintiffs

14 do not appeal the dismissal of their claim for negligent handling of human remains.

15 We therefore affirm the district court’s order dismissing Plaintiffs’ complaint with

16 prejudice.




                                             10
1      IT IS SO ORDERED.




2                                      ______________________________
3                                      MICHAEL E. VIGIL, Judge

4 WE CONCUR:



5 _________________________________
6 CELIA FOY CASTILLO, Chief Judge



7 _________________________________
8 J. MILES HANISEE, Judge




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