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Full Opinion
STEPHEN H. MOLIEN, Plaintiff and Appellant,
v.
KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents.
Supreme Court of California.
*918 COUNSEL
Herbert W. Yanowitz for Plaintiff and Appellant.
Wylie Aitken, Robert E. Cartwright, Edward I. Pollock, Glen T. Bashore, Stephen I. Zetterberg, J. Nick DeMeo, Sanford M. Gage, Stephen I. Odgers, Harvey R. Levine, Leonard Sacks, Joseph Posner and Arne Werchick as Amici Curiae on behalf of Plaintiff and Appellant.
McNamara, Lewis, Dodge & Houston, Richard E. Dodge, Robert M. Slattery and Paul M. Hoff for Defendants and Respondents.
OPINION
MOSK, J.
To what extent should the law permit recovery of damages for the negligent infliction of emotional or mental distress unaccompanied by physical injury? We consider this question in two contexts, both presented by an action charging defendants with erroneously diagnosing plaintiff's wife as suffering from an infectious social disease.
Appealing from a judgment entered after a demurrer was sustained, plaintiff asks us to decide whether he may recover for negligently inflicted *919 emotional distress and for loss of consortium, occasioned by emotional injury to his wife. As will appear, in the light of contemporary knowledge we conclude that emotional injury may be fully as severe and debilitating as physical harm, and is no less deserving of redress; the refusal to recognize a cause of action for negligently inflicted injury in the absence of some physical consequence is therefore an anachronism. We further conclude that it is no less regressive to deny recovery for loss of consortium simply because the plaintiff's spouse has suffered a disabling but nonphysical injury. Accordingly, the judgment must be reversed and plaintiff permitted to go to trial.
Plaintiff Stephen H. Molien filed this action against Kaiser Foundation Hospitals (Kaiser) and Thomas Kilbridge, M.D. (Kaiser and Dr. Kilbridge are hereafter sometimes referred to collectively as defendants.) The amended complaint sets forth two causes of action. In determining its sufficiency against a demurrer we are guided by long-settled precepts: "that a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be entitled to some relief [citation]." (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal. Rptr. 88, 468 P.2d 216].)
The principal allegations of the first cause of action are as follows: Plaintiff and his wife, Valerie G. Molien, are members of the Kaiser Health Plan. Mrs. Molien went to Kaiser for a routine multiphasic physical examination. There, Dr. Kilbridge, a Kaiser staff physician, negligently examined and tested her, and subsequently advised her she had contracted an infectious type of syphilis. The diagnosis was erroneous, as she did not in fact have the disease. Nevertheless she was required to undergo treatment for syphilis, including the administration of massive and unnecessary doses of penicillin. As a result of defendants' conduct she suffered "injury to her body and shock and injury to her nervous system."
Defendants knew plaintiff husband would learn of the diagnosis, as they instructed Mrs. Molien to so advise him. Thereafter plaintiff was required to undergo blood tests himself in order to ascertain whether he had contracted syphilis and was the source of his wife's purported infection. The tests revealed that he did not have the disease.
*920 As a result of the negligently erroneous diagnosis, plaintiff's wife became upset and suspicious that he had engaged in extramarital sexual activities; tension and hostility arose between the two, "causing a break-up of their marriage and the initiation of dissolution proceedings."
Defendants knew or should have known their diagnosis that plaintiff's wife had syphilis and that he might also have the disease would cause him emotional distress. He has in fact suffered "extreme emotional distress" as a result of the negligent misdiagnosis. Additionally, he has incurred medical expenses for counseling in an effort to save the marriage.
The second cause of action, after incorporating by reference all the allegations of the first, alleges that as a consequence of defendants' acts plaintiff has been deprived of the "love, companionship, affection, society, sexual relations, solace, support, and services" of his wife.
The prayer is for damages for mental suffering and loss of consortium, together with medical expenses. The trial court sustained general demurrers to both causes of action, and plaintiff appealed from the ensuing judgment of dismissal.
I
At the outset we consider a procedural issue arising from the fact that on its face the judgment purports to dismiss only the first cause of action, i.e., for mental suffering. In its ruling the court sustained the demurrers to both causes of action, with leave to amend the first cause and without leave to amend the second. When plaintiff failed to amend, the court ordered the first cause of action dismissed; the judgment is silent, however, as to the second.
Defendants contend we are without jurisdiction to review plaintiff's purported appeal from the order sustaining the demurrer to the second cause of action, i.e., for loss of consortium. They correctly assert that such an order is neither appealable per se nor as a final judgment. (Beazell v. Schrader (1962) 205 Cal. App.2d 673, 674 [23 Cal. Rptr. 189].) (1) Plaintiff responds, however, that "in the interest of justice and to prevent further delay" an appellate court may deem an order sustaining a demurrer to incorporate a judgment of dismissal. (Bellah v. *921 Greenson (1978) 81 Cal. App.3d 614, 618, fn. 1 [146 Cal. Rptr. 535].) He requests that we amend the judgment of dismissal herein to apply to both causes of action, as the trial court intended.
Plaintiff's request is reasonable and finds authority in our recent decision in Tenhet v. Boswell (1976) 18 Cal.3d 150 [133 Cal. Rptr. 10, 554 P.2d 330]. In Tenhet, as here, the trial court failed to dispose of all causes of action set forth in the amended complaint. Ordinarily in that event appeal would be barred by the "one final judgment" rule, i.e., "an appeal may be taken only from the final judgment in an entire action." (Id. at p. 153.) But we noted with approval the disposition adopted in Gombos v. Ashe (1958) 158 Cal. App.2d 517 [322 P.2d 933]: there the court amended the judgment to include a dismissal of a cause of action as to which a demurrer had been sustained. We found such procedure appropriate when "the trial court's failure to dispose of all causes of action results from inadvertence or mistake rather than an intention to retain the remaining causes of action for trial." (18 Cal.3d at p. 154.)
In the present case it is evident that the failure of the court to dismiss the cause of action for loss of consortium was an oversight. We may therefore treat the dismissal as applying to both causes of action, and we amend the judgment accordingly.
II
(2) We turn now to the merits of the appeal and first address plaintiff's contention that he has stated a cause of action for the negligent infliction of emotional distress. Defendants maintain this issue is governed by Dillon v. Legg (1968) 68 Cal.2d 728 [60 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]; they emphasize that plaintiff was not present when the doctor announced the erroneous diagnosis, but learned of it later from his wife. As we shall explain, however, defendants rely too heavily on Dillon: the case is apposite, but not controlling.
A
In Dillon a mother sought damages for emotional trauma and physical injury that resulted when she witnessed the negligently inflicted death of her infant daughter. The defendant contended he owed no duty to the mother because she was outside the zone of physical danger at the time of the accident. But the traditional duty approach, we explained, *922 begged the question whether the plaintiff's interests were entitled to legal protection; the finding of a duty was simply "`a shorthand statement of a conclusion, rather than an aid to analysis in itself.'" (68 Cal.2d at p. 734.) We therefore identified forseeability of the risk as the critical inquiry: "In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable." (Id. at p. 739.) And the foreseeable risk may entail not only actual physical impact, but emotional injury as well. (Id. at pp. 739-740 & fn. 5.)
Confining our analysis to the situation in which a plaintiff's emotional shock caused by harm to a third person ripened into a physical injury, we listed three factors bearing on the determination whether the defendant should reasonably have foreseen injury to the plaintiff: "(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." (Id. at pp. 740-741.)
Consideration of these factors, we said, would enable the court to decide "whether the accident and harm [were] reasonably foreseeable. Such reasonable foreseeability does not turn on whether the particular [defendant] as an individual would have in actuality foreseen the exact accident and loss; it contemplates that courts, on a case-to-case basis, analyzing all the circumstances, will decide what the ordinary man under such circumstances should reasonably have foreseen. The courts thus mark out the areas of liability, excluding the remote and unexpected." (Id. at p. 741.) Applying these principles and noting the presence of all three of the above factors, we concluded: "Surely the negligent driver who causes the death of a young child may reasonably expect that the mother will not be far distant and will upon witnessing the accident suffer emotional trauma." (Ibid.)
It must be remembered, however, that in Dillon the plaintiff sought recovery of damages she suffered as a percipient witness to the injury of a third person, and the three guidelines there noted served as a limitation *923 on that particular cause of action. (See, e.g., Justus v. Atchison (1977) 19 Cal.3d 564, 582-585 [139 Cal. Rptr. 97, 565 P.2d 122].) Here, by contrast, plaintiff was himself a direct victim of the assertedly negligent act. By insisting that the present facts fail to satisfy the first and second of the Dillon criteria, defendants urge a rote application of the guidelines to a case factually dissimilar to the bystander scenario. In so doing, they overlook our explicit statement in Dillon that an obligation hinging on foreseeability "must necessarily be adjudicated only on a case-by-case basis.... [N]o immutable rule can establish the extent of that obligation for every circumstance in the future." (68 Cal.2d at p. 740.)
Hence the significance of Dillon for the present action lies not in its delineation of guidelines fashioned for resolution of the precise issue then before us; rather, we apply its general principle of foreseeability to the facts at hand, much as we have done in other cases presenting complex questions of tort liability. (See, e.g., Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434-435 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]; Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399-400 [115 Cal. Rptr. 765, 525 P.2d 669].)
In the case at bar the risk of harm to plaintiff was reasonably foreseeable to defendants. It is easily predictable that an erroneous diagnosis of syphilis and its probable source would produce marital discord and resultant emotional distress to a married patient's spouse; Dr. Kilbridge's advice to Mrs. Molien to have her husband examined for the disease confirms that plaintiff was a foreseeable victim of the negligent diagnosis. Because the disease is normally transmitted only by sexual relations, it is rational to anticipate that both husband and wife would experience anxiety, suspicion, and hostility when confronted with what they had every reason to believe was reliable medical evidence of a particularly noxious infidelity.
We thus agree with plaintiff that the alleged tortious conduct of defendant was directed to him as well as to his wife. Because the risk of harm to him was reasonably foreseeable we hold, in negligence parlance, that under these circumstances defendants owed plaintiff a duty to exercise due care in diagnosing the physical condition of his wife. There remains the question whether plaintiff is barred from recovery by the fact that he suffered no physical injury.
*924 B
As observed in Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal. App.3d 917, 935 [122 Cal. Rptr. 470], "California courts have attempted to resolve the public policy problems inherent in mental distress cases in a variety of ways." Whether legal protection should extend to the interest in emotional tranquility has been a subject of controversy not only in California, but elsewhere: "No general agreement has yet been reached as to the liability for negligence resulting in fright, shock, or other `mental suffering,' or its physical consequences." (Prosser, Torts (4th ed. 1971) § 54, p. 327.) The issue, not novel, has inspired numerous and substantial scholarly expositions since the turn of the century. (See, e.g., materials collected in Prosser, op. cit. supra, at p. 50, fn. 27 & p. 327, fn. 31; 1 Dooley, Modern Tort Law (1977) § 15.07, p. 323, fn. 36; 2 Harper & James, The Law of Torts (1956) § 18.4, pp. 1031-1032, fn. 1.)
As early as 1896, this court recognized that mental suffering "constitutes an aggravation of damages when it naturally ensues from the act complained of." (Sloane v. Southern Cal. Ry. Co. (1896) 111 Cal. 668, 680 [44 P. 320].) But such suffering alone, we said, would not afford a right of action. (Ibid.) We pondered the question whether a nervous disorder suffered by the plaintiff after she was wrongfully put off a train was a physical or a mental injury: "The interdependence of the mind and body is in many respects so close that it is impossible to distinguish their respective influence upon each other. It must be conceded that a nervous shock or paroxysm, or a disturbance of the nervous system, is distinct from mental anguish, and falls within the physiological, rather than the psychological, branch of the human organism. It is a matter of general knowledge that an attack of sudden fright or an exposure to imminent peril has produced in individuals a complete change in their nervous system, and rendered one who was physically strong and vigorous weak and timid. Such a result must be regarded as an injury to the body rather than to the mind, even though the mind be at the same time injuriously affected." (Ibid.)
The foundation was thus laid, nearly a century ago, for two beliefs that have since been frequently reiterated: first, recovery for emotional distress must be relegated to the status of parasitic damages; and second, mental disturbances can be distinctly classified as either psychological or physical injury. That medical science and particularly the field of mental health have made much progress in the 20th century is *925 manifest; yet, despite some noteworthy exceptions, the principles underlying the decision in Sloane still pervade the law of negligence.
The present state of the law is articulated in BAJI No. 12.80 (6th ed. 1977): "There can be no recovery of damages for emotional distress unaccompanied by physical injury where such emotional distress arises only from negligent conduct. [¶] However, if a plaintiff has suffered a shock to the nervous system or other physical harm which was proximately caused by negligent conduct of a defendant, then such plaintiff is entitled to recover damages from such a defendant for any resulting physical harm and emotional distress."
The BAJI language appears to be derived mainly from the opinions in Vanoni v. Western Airlines (1967) 247 Cal. App.2d 793, 795-797 [56 Cal. Rptr. 115], and Espinosa v. Beverly Hospital (1952) 114 Cal. App.2d 232, 234 [249 P.2d 843], both of which relied on Sloane. The principle has been reiterated elsewhere, but in each instance is traceable either directly or indirectly to Sloane. (See, e.g., Fuentes v. Perez (1977) 66 Cal. App.3d 163, 168 [136 Cal. Rptr. 275]; Leasman v. Beech Aircraft Corp. (1975) 48 Cal. App.3d 376, 381 [121 Cal. Rptr. 768]; Gautier v. General Telephone Co. (1965) 234 Cal. App.2d 302, 307 [44 Cal. Rptr. 404].) It therefore appears the rule has been immutable since its early origin, with virtually no regard for the factual contexts in which claims arose, or the alleged causes of emotional distress, or the prevailing state of medical knowledge.
Plaintiff urges that we recognize the concept of negligent infliction of emotional distress as an independent tort. In this inquiry we first seek to identify the rationale for the Sloane rule. None appears in the opinion, possibly because the court classified the plaintiff's condition, "nervous paroxysm," as a physical injury, and hence had no need to justify a denial of recovery for psychological injury alone. Neither did the Espinosa court provide any justification for its rejection of the plaintiff's attempt to "subvert the ancient rule that mental suffering alone will not support an action for damages based upon negligence." (114 Cal. App.2d at p. 234.) Therefore, we must look elsewhere.
The primary justification for the requirement of physical injury appears to be that it serves as a screening device to minimize a presumed risk of feigned injuries and false claims. (See, e.g., Prosser, op. cit. supra, at p. 328; 1 Dooley, op. cit. supra, at p. 319; Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort *926 (1971) 59 Geo.L.J. 1237, 1244; Rest.2d Torts, § 436A, com. b.) Such harm is believed to be susceptible of objective ascertainment and hence to corroborate the authenticity of the claim.
Although most courts still adhere to the early view, the scholars assert that such artificial barriers to recovery are unnecessary. Thus Dean Prosser explains that "the difficulty is not insuperable. Not only fright and shock, but other kinds of mental injury are marked by definite physical symptoms, which are capable of clear medical proof. It is entirely possible to allow recovery only upon satisfactory evidence and deny it when there is nothing to corroborate the claim, or to look for some guarantee of genuineness in the circumstances of the case. The problem is one of proof, and it will not be necessary to deny a remedy in all cases because some claims may be false." (Prosser, op. cit. supra, at p. 328; see also 1 Dooley, op. cit. supra, at p. 319.)
The foregoing analysis was expressly adopted by the New York Court of Appeals when it held that "Freedom from mental disturbance is now a protected interest in this State." (Ferrara v. Galluchio (1958) 5 N.Y.2d 16 [176 N.Y.S.2d 996, 999, 152 N.E.2d 249, 71 A.L.R.2d 331].) The case involved a medical malpractice action brought by a patient who, after receiving negligently administered X-ray treatments from the defendants, consulted a dermatologist who advised her to exercise certain precautions because the area of the X-ray burn might become cancerous. The plaintiff alleged she developed a severe "cancerphobia" and sought damages for mental anguish. In affirming a jury verdict for the plaintiff, the New York high court deemed it "entirely plausible, under such circumstances, that plaintiff would undergo exceptional mental suffering over the possibility of developing cancer." (Id. at p. 1000; see also Johnson v. State (1975) 37 N.Y.2d 378 [372 N.Y.S.2d 638, 643, 334 N.E.2d 590], in which the court held that "recovery for emotional harm to one subjected directly to the tortious act may not be disallowed so long as the evidence is sufficient to show causation and substantiality of the harm suffered, together with a `guarantee of genuineness' to which the court referred in the Ferrara case [citations].")
Ferrara represents a view not generally followed in California. Our courts have instead devised various means of compensating for the infliction of emotional distress, provided there is some assurance of the validity of the claim. As we have seen, physical injury, whether it occurs contemporaneously with or is a consequence of emotional distress, *927 provides one such guarantee. (Capelouto v. Kaiser Foundation Hospital (1972) 7 Cal.3d 889, 892-893 [103 Cal. Rptr. 856, 500 P.2d 880]; Vanoni v. Western Airlines, supra, 247 Cal. App.2d at pp. 795-797.) Another arises when the plaintiff asserts an independent cause of action apart from personal injury. Thus in a suit against an insurer for damages resulting from its wrongful refusal to settle a claim against the insured within the policy limits, the plaintiff was permitted to recover for mental distress as well as for pecuniary loss. We concluded: "Obviously, where, as here, the claim is actionable and has resulted in substantial damages apart from those due to mental distress, the danger of fictitious claims is reduced, and we are not here concerned with mere bad manners or trivialities but tortious conduct resulting in substantial invasions of clearly protected interests." (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 434 [58 Cal. Rptr. 13, 426 P.2d 173]; accord, Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 579 [108 Cal. Rptr. 480, 510 P.2d 1032]; Jarchow v. Transamerica Title Ins. Co., supra, 48 Cal. App.3d at p. 937; Windeler v. Scheers Jewelers (1970) 8 Cal. App.3d 844 [88 Cal. Rptr. 39].)
Finally, intentional torts will support an award of damages for emotional distress alone, but only in cases involving "extreme and outrageous intentional invasions of one's mental and emotional tranquility." (Alcorn v. Anbro Engineering, Inc., supra, 2 Cal.3d at p. 498.) As we explained in State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 338 [240 P.2d 282], it is the outrageous conduct that serves to insure that the plaintiff experienced serious mental suffering and convinces the courts of the validity of the claim.
We thus reach the crucial question whether continued adherence to the venerable rule that would bar recovery in this case is warranted. Although we recognize a need to guard against fraudulent claims, we are not persuaded that the presently existing artificial lines of demarcation are the only appropriate means of attaining this goal. As observed by Presiding Justice Gardner in his concurring opinion in Allen v. Jones (1980) 104 Cal. App.3d 207, 216 [163 Cal. Rptr. 445], "In no other area are the vagaries of our law more apparent than in the distinction between mental and emotional distress accompanied by physical manifestation and such discomfort unaccompanied by physical manifestation."
The Hawaii Supreme Court confronted the issue forthrightly and discarded the traditional rule that there can be no recovery for the negligent infliction of emotional distress alone. (Rodrigues v. State *928 (1970) 52 Hawaii 156, 283 [472 P.2d 509].) It explained that "Courts which have administered claims of mental distress incident to an independent cause of action are just as competent to administer such claims when they are raised as an independent ground for damages." (Id. at p. 519.) Moreover, defendants will not be exposed to potentially unlimited liability for invasions of emotional tranquility that are trivial and transient if recovery is limited to claims of serious mental distress. The court therefore adopted as its standard: "serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case." (Id. at p. 520.)
The Rodrigues court further noted the "multiplication of psychic stimuli" that society presently faces, and the "increasing widespread knowledge of the debilitating effect mental distress may have on an individual's capacity to carry on the functions of life." (Ibid.) Accordingly, the court recognized that "the interest in freedom from negligent infliction of serious mental distress is entitled to independent legal protection. We hold, therefore, that there is a duty to refrain from the negligent infliction of serious mental distress." (Ibid.)[1]
We agree that the unqualified requirement of physical injury is no longer justifiable. It supposedly serves to satisfy the cynic that the claim of emotional distress is genuine. Yet we perceive two significant difficulties with the scheme. First, the classification is both overinclusive and underinclusive when viewed in the light of its purported purpose of screening false claims. It is overinclusive in permitting recovery for emotional distress when the suffering accompanies or results in any physical injury whatever, no matter how trivial. If physical injury, however slight, provides the ticket for admission to the courthouse, it is difficult for advocates of the "floodgates" premonition to deny that the doors are already wide open: as we observed in Capelouto v. Kaiser Foundation Hospitals, supra, 7 Cal.3d at page 893, "mental suffering frequently constitutes the principal element of tort damages...." More *929 significantly, the classification is underinclusive because it mechanically denies court access to claims that may well be valid and could be proved if the plaintiffs were permitted to go to trial.
The second defect in the requirement of physical injury is that it encourages extravagant pleading and distorted testimony. Thus it has been urged that the law should provide a remedy for serious invasions of emotional tranquility, "otherwise the tendency would be for the victim to exaggerate symptoms of sick headaches, nausea, insomnia, etc., to make out a technical basis of bodily injury, upon which to predicate a parasitic recovery for the more grievous disturbance, the mental and emotional distress she endured." (Magruder, Mental and Emotional Disturbance in the Law of Torts (1936) 49 Harv.L.Rev. 1033, 1059; see also Annot. (1959) 64 A.L.R.2d 100, 117, fn. 18, 128 & fn. 8 [suggesting that "in most instances of severe mental disturbance some deleterious physical consequence can, with a little ingenuity, be found ...," and that characterization of an injury as physical or mental may depend on the ingenuity of counsel in framing the pleadings].)
Furthermore, as we observed in Sloane v. Southern Cal. Ry. Co., supra, 111 Cal. at page 680, the border between physical and emotional injury is not clearly delineated. In 1896 we deemed a "nervous shock or paroxysm" to be distinguishable from mere mental anguish. Today, the notion that physical harm includes "shock to the nervous system" is an accepted aspect of our law of negligence. (See BAJI No. 12.71 (6th ed. 1977).) The Restatement, too, attempts to draw the distinction: "The rule [precluding recovery for negligently caused emotional distress alone] applies to all forms of emotional disturbance, including temporary fright, nervous shock, nausea, grief, rage, and humiliation. The fact that these are accompanied by transitory, non-recurring physical phenomena, harmless in themselves, such as dizziness, vomiting, and the like, does not make the actor liable where such phenomena are in themselves inconsequential and do not amount to any substantial bodily harm. On the other hand, long continued nausea or headaches may amount to physical illness, which is bodily harm; and even long continued mental disturbance ... may be classified by the courts as illness, notwithstanding [its] mental character. This becomes a medical or psychiatric problem, rather than one of law." (Rest.2d Torts, § 436A, com. c.)
In our view the attempted distinction between physical and psychological injury merely clouds the issue. The essential question is one of *930 proof; whether the plaintiff has suffered a serious and compensable injury should not turn on this artificial and often arbitrary classification scheme. We thus agree with the view of the Rodrigues court: "In cases other than where proof of mental distress is of a medically significant nature, [citations] the general standard of proof required to support a claim of mental distress is some guarantee of genuineness in the circumstances of the case. [Citation.]" (472 P.2d at p. 520.) This standard is not as difficult to apply as it may seem in the abstract. As Justice Traynor explained in this court's unanimous opinion in State Rubbish etc. Assn. v. Siliznoff, supra, 38 Cal.2d at page 338, the jurors are best situated to determine whether and to what extent the defendant's conduct caused emotional distress, by referring to their own experience. In addition, there will doubtless be circumstances in which the alleged emotional injury is susceptible of objective ascertainment by expert medical testimony. (See Comment, Negligently Inflicted Mental Distress: The Case for an Independent Tort (1971) 59 Geo.L.J. 1237, 1248 et seq.) To repeat: this is a matter of proof to be presented to the trier of fact. The screening of claims on this basis at the pleading stage is a usurpation of the jury's function.
More than half a century ago Roscoe Pound recognized that claims of emotional distress were capable of verification by means more precise than the then-prevailing requirement of physical impact; we think his logic applies equally to the present requirement of physical injury: "In reality [the impact requirement] was a practical rule, growing out of the limitations of trial by jury, the difficulty of proof in cases of injuries manifest subjectively only and the backwardness of our knowledge with respect to the relations of mind and body. In view of the danger of imposition, the courts, on a balance of the interests involved, refused to go beyond cases where there was a voucher for the truth of the plaintiff's claim.... With the rise of modern psychology the basis of this caution in securing an important element of the interest of personality was removed." (Pound, Interpretations of Legal History (1923) pp. 120-121.)
For all these reasons we hold that a cause of action may be stated for the negligent infliction of serious emotional distress. Applying these principles to the case before us, we conclude that the complaint states such a cause of action. The negligent examination of Mrs. Molien and the conduct flowing therefrom are objectively verifiable actions by the defendants that foreseeably elicited serious emotional responses in the plaintiff and hence serve as a measure of the validity of plaintiff's claim *931 for emotional distress. As yet another corroborating factor, we note the universally accepted gravity of a false imputation of syphilis: by statute it constitutes slander per se. (Civ. Code, § 46, subd. 2; Schessler v. Keck (1954) 125 Cal. App.2d 827 [271 P.2d 588].)
It follows that the trial court erred in sustaining the demurrer to