Present: Carrico, C.J., Compton, Hassell, Keenan, Koontz, and 

Kinser, JJ., and Poff, Senior Justice 

HOLLY GRAY 

 OPINION BY 

v. Record No. 981387 SENIOR JUSTICE RICHARD H. POFF 

 April 16, 1999 

INOVA HEALTH CARE SERVICES 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

F. Bruce Bach, Judge 

 The dispositive issue raised in this appeal is whether a 

parent who witnesses the effects of a negligent tort committed 

upon a child in the presence of the parent has a cause of action 

in tort against the tortfeasor for negligent infliction of 

emotional distress and its symptomatic effects. We think not, 

and we will affirm the judgment of the trial court sustaining 

the tortfeasor's demurrer. 

 The motion for judgment alleged that Mrs. Holly Gray's 

three-year old daughter, Kira, was admitted to a hospital owned 

and operated by INOVA Health Care Services (INOVA) to undergo a 

lumbar puncture test for meningitis; that "the health care 

providers . . . negligently administered 160 mg. of the drug 

Fentanyl . . . [which] was ten times the proper dosage;" that 

Kira's "body convulsed, her breathing stopped, and her face 

turned blue;" that when Mrs. Gray, "standing next to her 

daughter . . . observed the condition of her daughter, she 

experienced extreme fright and shock, temporarily blacked out, 
fell to the floor, and became physically sick and vomited;" and 

that she "still suffers from mental anguish and emotional 

trauma." 

 As her principal assignment of error, Mrs. Gray asserts 

that the trial court erred in sustaining the demurrer "because 

[her] motion for judgment states a cause of action . . . for 

physical injury directly resulting from the negligent infliction 

of emotional stress." In the alternative, she contends that her 

motion for judgment "states a cause of action for negligent 

infliction of emotional distress, independent of physical impact 

or injury." 

 The initial, and crucial, question before us is whether the 

tortfeasor, INOVA, owed a duty to Mrs. Gray, a third-party 

bystander. This Court has consistently held that "[t]here can 

be no actionable negligence unless there is a legal duty, a 

violation of the duty, and a consequent injury." Chesapeake and 

Potomac Telephone v. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754 

(1988) (quoting Trimyer v. Norfolk Tallow Co., 192 Va. 776, 780, 

66 S.E.2d 441, 443 (1951)). 

Mrs. Gray relies upon our decision in Naccash v. Burger, 

223 Va. 406, 290 S.E.2d 825 (1982). There, this Court 

recognized a parental cause of action for emotional distress 

when blood samples withdrawn from the parents were mishandled, 

blood test results were incorrectly reported as negative, and a 

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fetus, born alive, died two years later of Tay-Sachs disease. 

Unlike Mrs. Gray, however, the plaintiffs in Naccash were not 

third-party bystanders. It was their own blood that was tested 

and mishandled. Upholding their motion for judgment, this Court 

said: 

Essential to the recognition of a cause of action in 

favor of the Burgers is the existence of a duty owed them. 

Clearly, when the Burgers presented themselves to the 

Cytogenetics Laboratory at Arlington Hospital for Tay-Sachs 

testing, they were owed a duty of reasonable care in the 

handling of the blood withdrawn for the tests; this duty 

encompassed the obligation to provide them with reasonably 

accurate information concerning the condition of their 

unborn child so they could make an informed decision 

regarding abortion. 

Id. at 414, 290 S.E.2d at 829. 

 Mrs. Gray also relies upon Hughes v. Moore, 214 Va. 27, 197 

S.E.2d 214 (1973). There, the plaintiff's injuries were 

"sustained . . . as a consequence of fright and shock caused 

when an automobile driven by the defendant . . . crashed into 

the front porch of her home." Id. at 28, 197 S.E.2d at 215. 

Clearly, the tortfeasor owed the homeowner a duty not to damage 

her property. 

Here, INOVA owed Mrs. Gray no duty. She was not the 

patient upon whom medical tests were being performed. Kira was 

the patient undergoing those tests, and it was Kira to whom 

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INOVA owed a duty of care. Any negligence in administering the 

tests was a breach of the duty owed to Kira, not her mother.* 

Because Mrs. Gray had no cause of action against INOVA, we 

will affirm the judgment of the trial court sustaining the 

demurrer to the Motion for Judgment. 

Affirmed. 

 *

 We have held that a tortfeasor whose negligence has caused 

an injury to a child in utero owes a duty to the mother of that 

child. Specifically, we have said that "an unborn child is a 

part of the mother until birth" and, accordingly, that "injury 

to an unborn child constitutes injury to the mother and that she 

may recover for such medical injury and mental suffering 

associated with a stillbirth." Modaber v. Kelley, 232 Va. 60, 

66, 348 S.E.2d 233, 236-37 (1986). See also, Bulala v. Boyd, 

239 Va. 218, 389 S.E.2d 670 (1990); Fairfax Hospital System v.

McCarty, 244 Va. 28, 419 S.E.2d 621 (1992). 

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