Page:McQuay v. Guntharp.pdf/10

Rh   theory of an intentional infliction of emotional distress. The court concluded:

"[A] "cause of action" is the operative facts which give rise to a "right of action" or the remedial right affording redress. Thus, there may be several rights of action arising out of a cause of action. A single cause of action may give rise to more than one theory upon which recovery may be had."

"Applying this principle to the instant case, it is apparent that the facts of the case give rise to two possible theories of recovery, one for assault and battery and the other for the intentional infliction of severe emotional distress."

Id. at 100 (citations omitted). The court stated that the very nature of the tortious act involved in that case was uniquely appropriate for a suit based upon a theory of the intentional infliction of emotional distress, reasoning that "[a] sexual assault may involve much more than a mere assault and battery." Id. at 101. We are persuaded by that reasoning.

[10] The complaint filed below demonstrates sufficient facts to support a claim for outrage separate and apart from a claim for battery. Appellants were patients of Dr. Guntharp. During their physical examinations, he informed them that he needed to check their heart rate or lungs. While using a stethoscope, Dr. Guntharp improperly touched, examined, and fondled Appellants' breasts. Appellants stated that as a result of the trauma of the incident, they have suffered and continue to suffer from extreme mental anguish. Appellants specifically pleaded that the trauma of having a doctor, whom each Appellant had trusted, fondle their breasts in a sexually suggestive manner has caused all of them to be less trusting of physicians in general. Appellants claimed that as a result of these acts, they missed work and should be compensated for lost wages. Appellants claimed further to have sustained medical expenses in the past, and that they may sustain future medical expenses. Appellants Sam McQuay and Dennis Rowe asserted that they have suffered a loss of consortium of their wives as a result of Dr. Guntharp's actions. The foregoing facts sufficiently state a claim for outrage. The trial court thus erred in characterizing the cause of action as constituting the tort of battery.