Class Action Claim for Negligent Infliction of Emotional Distress Fails

Class Action Claim for Negligent Infliction of Emotional Distress Fails

In this class-action lawsuit, the four Plaintiffs received obstetrical care and treatment from Oluwafemi Charles Igberase (Igberase), who held himself out as an obstetrician at Prince George's Hospital Center (PGHC). Remarkably, none of Plaintiffs knew that Igberase was not a doctor. Igberase delivered two babies by way of caesarean-section surgery and another by way of vaginal delivery. Fortunately, there were no physical injuries to the mothers or their babies.

By way of brief history, Igberase applied to Educational Commission For Foreign Medical Graduates (“ECFMG”) for certification, falsely claiming that he graduated from medical school in Nigeria. He applied several times, using false names and dates of birth. ECFMG issued him a certificate each time. Jersey Shore Medical Center (“JSMC”) admitted Igberase, under the false name “Akoda” to its internal medicine residency program. In 2011, JSMC asked ECFMG to investigate Igberase/Akoda because JSMC learned that he might have served as a resident in two other U.S. residency programs under the name “Igberase.” ECFMG investigated but took no adverse action because it concluded there was insufficient evidence of irregular behavior. Nevertheless, JSMC discharged Igberase due to discrepancies between his Social Security number and green card.

Igberase/Akoda completed a residency program at Howard University Hospital in 2011.  He then applied for and received medical licenses in Maryland and Virginia, and thereafter received admitting privileges at PGHC in Maryland. Igberase/Akoda began his obstetrical practice, and was even certified by the American Board of Obstetrics and Gynecology.

In 2016, law enforcement executed search warrants concerning Igberase and discovered fraudulent or altered documents, including medical diplomas, transcripts, and letters of recommendation. Igberase signed a plea agreement admitting to misuse of a Social Security number. ECFMG revoked the certification it had issued to him. After his sentencing, PGHC terminated his medical privileges, and the Maryland Board of Physicians revoked his license.

In 2017, the Plaintiffs were shocked to learn that Igberase was not a doctor, causing them to reassess their memories of the treatment that they received from him, which caused them emotional distress. Consequently, the Plaintiffs were granted class action status and sued ECFMG for negligent infliction of emotional distress (NIED) in the United States District Court for the Eastern District of Pennsylvania on the basis of diversity jurisdiction. ECFMG filed a motion for summary judgment, arguing that under the facts and Pennsylvania law, which applied, the Plaintiffs did not have a viable claim.

The District Court determined that the Pennsylvania Supreme Court limited NIED claims to four factual scenarios: (1) the plaintiff suffered a physical impact; (2) “the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury;” (3) the plaintiff observed a tortious physical injury to a close relative; or (4) the defendant had a special contractual or fiduciary duty toward the plaintiff. Toney v. Chester Cty. Hosp.961 A.2d 192, 197-98 (Pa. Super. Ct. 2008), aff'd 36 A.3d 83 (Pa. 2011). If a plaintiff's claim falls within one of the four recognized scenarios, then she must also establish negligence, i.e., that the “defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.” Id. at 198.

The District Court concluded that Plaintiffs suffered a physical impact when they received medical treatment from Igberase; however, their emotional distress did not accompany that impact; it arose when they learned about Igberase's arrest and his background. There was no ongoing threat or risk that caused any of their distress. Rather, their distress was a product of reconceiving their memories in light of new information. The District Court concluded that expanding the physical impact test to encompass claims of this type would lead to burdensome liability and difficulty circumscribing the area of liability, two issues against which the Supreme Court has warned. See Sinn v. Burd404 A.2d 672, 678 (Pa. 1979); Kazatsky527 A.2d at 993. All of these factors lead the District Court to conclude that Plaintiffs cannot prevail on a claim based on a physical impact.

Plaintiffs argued that their claim was viable under the ‘zone of danger' theory, which allows a plaintiff to recover for NIED if she (1) was in personal danger of physical impact because of the direction of a negligent force against her and (2) actually feared the physical impact. See Niederman v. Brodsky261 A.2d 84, 90 (Pa. 1970). The District Court concluded that Plaintiffs failed the second prong of this test because they did not fear the physical impact Igberase. Instead, the District Court concluded that the Plaintiffs loathe the memory of that treatment, which is not actionable.

The District Court further noted that even if Plaintiffs had facts to support an NIED claim, which they didn’t, they would have to demonstrate that ECFMG’s negligence was the proximate cause of Plaintiffs’ injury. The District Court found a lengthy chain of causal events that separates ECFMG's alleged conduct and Plaintiffs' emotional distress; i.e.: (1) Igberase defrauded various entities by submitting false materials and lying about his background leading to his ability to practice medicine; (2) none of these entities detected Igberase's fraud, even though they conducted background investigations and assessed his medical skill; and (3) each of those failures contributed to the events that led to Igberase treating each Plaintiff. The District Court concluded that ECFMG's certification was harmless in that it did not compel anyone to permit Igberase to obtain residency training, a state license, and admitting privileges. Finally, the District Court determined that there was an approximate 6-year lapse of time between when ECFMG failed to revoke Igberase’s certification in 2000 until 2017 when the Plaintiffs first experienced emotional distress, which suggested an absence of proximate cause. Russell v. Educ. Comm'n for Foreign Med. Graduates, 2:18-cv-05629-JDW, 14-18 (E.D. Pa. May. 19, 2022).