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Emotional Distress

In Harnicher v. University of Utah Medical Center 962 P.2d 67, 68 (Utah 1998) an infertile couple, David and Stephanie had chosen a donor who resembled David.  The clinic switched donors.  The couple had three children who did not resemble David. The Harnichers were distressed at the clinic’s negligence.  It was difficult for them to determine the basis on which to file suit.  They had not been physically injured.  They had no financial losses beyond those they had bargained for.  In the absence of a better alternative, they claimed emotional distress and failed in court.  Common law rule forbid recovery for negligently inflicted emotional distress without accompanying physical injury.  Harnicher at 69-70.  Many other IVF plaintiffs made the same claim and lost for the same or similar reasons.  Similar was the plight of Cora Creed when her embryos were implanted in another woman in Creed v. United Hosp., 600 N.Y.S.2d 151 (N.Y. App. Div. 2d Dep’t 1993), and also of a Jane Doe when hers were put in a preservative solution possibly infected with Mad Cow disease in Doe v. Irvine Sci. Sales Co., 7 F. Supp. 2d 737 (E.D. Va. 1998).  There was no physical injury to which emotional distress could be attached.


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