Plaintiff brought this action for medical negligence and intentional infliction of emotional distress
Although the court did not err when it granted summary judgment on the medical negligence claim, see Tiedemann v. Radiation Therapy Consultants, 299 Or. 238, 701 P.2d 440 (1985), plaintiff contends that the court erred when it granted the sua sponte summary judgment on the emotional distress claim.
Defendants contend that the judgment should be affirmed, because plaintiff cannot prevail on her emotional distress claim, as a matter of law. We address this argument because, if we were to agree with it, the court's error in granting summary judgment sua sponte would be harmless. There appear to be two facets to the argument: that it necessarily follows from the summary judgment on the negligence claim that defendants must prevail on the emotional distress claim and that plaintiff has failed to plead facts sufficient to constitute a claim for emotional distress. We disagree in both instances. There is no necessary dependency between a viable claim against a physician and, derivatively, a hospital, for intentional infliction of emotional distress and the existence of an underlying claim against them for malpractice arising from related events. See Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28 (1971). A judgment for defendants on the negligence claim does not necessarily preclude all possibility that defendants can be liable for intentional infliction of emotional distress.
Although the contention that a complaint fails to state a claim can be raised for the first time on appeal, we have adhered to the rule that, after judgment, such a contention should not be accepted if the asserted deficiency is merely "formal" or can be cured "by a simple amendment." Isler v. Shuck, 38 Or.App. 233, 237, 589 P.2d 1180 (1979). We have been particularly reluctant to base a decision against an appealing plaintiff on insufficiency of the pleadings, if that was not the basis for the trial court's ruling and, had the question been presented to it, the trial court would have had the discretion to allow the plaintiff to replead. See, e.g., Shaughnessy v. Spray, 55 Or.App. 42, 50-51, 637 P.2d 182 (1981), rev. den. 292 Or. 589, 644 P.2d 1130 (1982). Defendants identify several deficiencies in plaintiff's emotional distress allegations, but we are unable to say that plaintiff cannot cure the deficiencies by an amendment or that plaintiff cannot state a claim.
Reversed and remanded on claim of intentional infliction of emotional distress; otherwise affirmed.