NJ law and bystanders: Don't forget the
emotional damages
By Yale I. Markus
April 18, 2008
New Jersey Lawyer
Bystanders. Emotional distress.
New Jersey law has been undergoing a slow evolution in
standards of recovery. Here's where we are today, and
how we got here.
Historically, the rule guiding recovery for emotional
distress in New Jersey provided that in order to
recover for mental anguish in a negligence case, the
plaintiff must have suffered a physical bodily impact,
even if only slight. In Falzone v. Busch, 45 N.J.
559 (1965), the plaintiff wife, sitting in an
automobile, witnessed the defendant driving his
automobile strike her husband standing by the roadside
and come dangerously close to her. The Supreme Court
ruled the "impact rule" was no longer the threshold to
recover for negligent infliction of emotional distress
in New Jersey. Impact or physical contact causing injury
was no longer a prerequisite for recovery, where fright
alone causes a substantial bodily physical injury or
sickness. An indirect non-physical impact emotional
distress claim requires fright from a reasonable fear of
immediate personal injury to the subsequently and
proximately traumatized individual.
The Court warned that despite proximity to imminent
physical harm, where fright does not cause substantial
bodily injury or sickness, it is too lacking in
seriousness and too speculative to warrant imposition of
tort liability.
Duty of care, forseeability and
"zone of risk"
Emotional negligence analysis begins with the legal
duty of care owed and breached, in the context of
proximate cause foreseeability - legal fairness to hold
the defendant responsible for causing an ultimate harm.
In Caputzal v. The Lindsay Co., 48 N.J. 69
(1966), plaintiff suffered a heart attack after drinking
discolored water due to a softener failure allowing
brownish impurities to run from his faucet and inducing
him to believe he was poisoned. Foreseeability is a
policy determination made by the court. Here, the court
determined the risk of suffering a heart attack induced
by fright from drinking discolored water was not
sufficiently foreseeable to render the water softener
manufacturer liable for the injury.
In cases of injury or sickness brought on by emotional
disturbance or trauma, liability should depend on a
defendant's foreseeing fright or shock severe enough to
cause substantial injury in a "person normally
constituted," thereby bringing plaintiff within the
"zone of risk." The plaintiff's injury in Caputza,
was found to be an extraordinary occurrence and
idiosyncratic. See also, Cole v. Laughrey Funeral
Home, 376 N.J. Super. 135, (App. Div. 2005), finding
no cause of action for emotional distress where it was
unforeseeable an average person precluded from attending
a viewing - but permitted to attend the funeral - would
experience emotional distress.
Shortly after the Lindsay decision, in Kern v.
Kogan, 93 N.J. Super 459 (Law Div. 1967), the Law
Division considered a parental claim for mental anguish
in a wrongful death and survival medical malpractice
action brought on behalf of their minor daughter.
In Kern, a laboratory testing result of sugar in
the child's urine was overlooked; her condition
deteriorated leading to death two weeks into her
hospital stay. The trial court found the parents did not
have a separate cause of action for their own mental
anguish and emotional disturbance because (1) the injury
was to the child; (2) there was no physical contact to
the parents; and (3) the parents hadn't been placed in
imminent danger of physical harm or peril.
A parental claim for emotional distress conjoined with a
suit for a child's injuries was again considered in
Burd v. Vercruyssen, 142 N.J. Super 344 (App. Div.
1976), a wrongful death automobile-pedestrian lawsuit.
The court held the parents had no right to sue for
mental anguish under the New Jersey Wrongful Death Act.
Specifically, the court found the mother could not
recover for mental distress where her emotional shock
was not due to fear of personal injury to herself - as
she had not witnessed the accident - but due to her
son's untimely death and circumstances surrounding his
identification thereafter.
A year later in Muniz v. United
Hospital Medical Center, 153 N.J. Super 79 (App.
Div. 1977), a hospital failed to locate a premature
baby's body or confirm its death as reported by a
hospital agent during a three week post-mortem period.
The Appellate Division suggested two theories of
recovery: (1) for conduct by the hospital warranting
recovery for the tort of outrage - gross and wanton
conduct constituting an intentional infliction of
emotional distress, or (2) for a deviation from the
standard of care reasonably expected of a hospital in
dealing with corpses and reasonable foreseeability such
a deviation would cause proximate emotional and
substantial physical disability to persons normally
constituted. Either of these theories of intentional or
negligent conduct, respectively, could have brought the
plaintiff parents within the Falzone and
Caputzal "zone of risk." See also, Lascurain v.
City of Newark, 349 N.J. Super. (App. Div. 2002),
where the court held a daughter would have had a direct
claim for foreseeable emotional distress against the
city, which breached a duty by using a cemetery where
decedent mother was buried as a dumping and storage
ground, if she had demonstrated severe emotional
distress.
The medical malpractice case of Friel v. Vineland
Obstetrical and Gynecological Prof. Ass'n, 166 N.J.
Super 579 (Law Div. 1979), involved a birthing failure
to diagnose placental abruption after heavy vaginal
bleeding and cramping, subsequent illness of the mother
and premature birth of her daughter with the possibility
of brain damage. In addition to her own direct
compensable injuries, the court held the mother could
claim damages for her own fright, anxiety and shock due
to the potential harm to her child during the delayed
diagnosis and the child's premature delivery, even
without physical injury to the child. Additionally, the
mother's damages may include a claim for the post-birth
period of uncertainty as to the child's neurologic
health during the formative years of mental development
and until educational testing could reveal the outcome.
No analogous emotional claim on behalf of the plaintiff
father was addressed.
Add in "shocking realizations"
Parental recovery for harm to a child in the medical
malpractice context was expanded in Berman v. Allan,
80 N.J. 421 (1979). In Berman, a wrongful birth
case, our Supreme Court considered a suit against a
physician who failed to advise a 38 year old mother to
undergo an amniocentesis test to detect birth defects in
her unborn child, depriving her of the opportunity and
choice to abort her Down's Syndrome child. The court
found the mental and emotional anguish the parents
suffered and would continue to suffer due to the
infant's condition was an appropriate measure of damages
arising out of the mother's loss of right to abort her
fetus. A recovery would be permitted for the shocking
realization that one's newborn child is profoundly
crippled and will remain so for life due to physician
error in the provision of prenatal care and testing.
Physical manifestation not needed
The landmark case of Portee v. Jaffee, 84
N.J. 88 (1980), decided a year after Berman,
forever changed the landscape of emotional distress tort
law in New Jersey. It expanded the rights of a parent to
recover for witnessed injury to a child and dispensed
with the common law requirement of injurious "physical
manifestation," i.e. accompanying physical harm
sustained or produced by fear thereof as proof of
genuine mental injury. The plaintiff mother in Portee
watched her seven-year-old son suffer and die after
becoming trapped in an elevator shaft. She sued her
landlords and two elevator companies. As a result of
witnessing her minor son's death she became depressed
and suicidal. Although the mother was not herself
threatened with risk of physical harm, the court held
she could recover for her mental anguish under the
circumstances.
Portee delineated what would become New Jersey's
law for negligent infliction of emotional distress
recovery by relatives. The required elements for
"bystander" recompense include (1) a serious injury or
death of another caused by defendant's negligence, such
that the claimant (2) was at or near the scene of the
incident causing the harm, (3) suffered severe emotional
distress by observance of such event at its place of
occurrence, and (4) enjoyed a marital or familial
relationship, here defined as a "fundamental interest in
emotional tranquility founded on parental love," to the
primarily injured person.
Thus, in addition to the negligence tort elements of
duty, breach, direct and proximate causation, damages
for emotional disturbance as per the Restatement,
Torts 2d, §436A at 461 (1965) must be sufficiently
substantial to result in either physical illness or
serious psychological sequelae. But see, Eyrich for
Eyrich v. Dam, 193 N.J. Super. 244 (App. Div. 1984),
which extended emotional damages to a foreseeable
rescuer, regardless of relationship.
Direct sensory observance qualified
In 1980, Portee was applied in Mercado v.
Transport of New Jersey, 176 N.J. Super 234 (Law
Div. 1980). Ruling in Essex County Superior Court, Judge
Yanoff was presented with the survival and wrongful
death case of an eight year old struck by a bus.
Plaintiff mother learned of her son's accident from her
daughter and arrived on the scene minutes later to
observe him lying in the street severely injured and
unconscious. The boy died an hour later. Interpreting
Portee vis � vis the facts of this case, the court
held the requirement of "direct ... sensory and
contemporaneous observance" relates not to witnessing
the moment of impact to the physically injured person,
but to witnessing such victim's suffering. Hence, the
mother's emotional anguish was compensable. The court
cautioned that Portee should not be interpreted
to expand survivor "companionship" pecuniary damages
under the Wrongful Death Act's preclusion of emotional
distress recovery.
Judge Yanoff's Wrongful Death Act interpretation would
prove correct in Green v. Bittner, 85 N.J. 1
(1980), in which parents brought a wrongful death action
on behalf of their teenage daughter killed in an
automobile crash. The Green court, inter alia,
found New Jersey's wrongful death statute does not allow
compensation for emotional loss, but does allow for
pecuniary - guidance, advice, counsel - return to the
parents. The court underscored that even an emotional
component of pecuniary loss is prohibited. However,
Portee emotional distress non-economic damages
sought by parents on behalf of their child are allowed
on a survival claim, if Portee's prerequisites
are satisfied.
Mental distress and moral injury
Schroeder v. Perkel, 87 N.J. 53 (1981) was a
case of negligent genetic counseling. Parents sued
pediatricians for failure to timely diagnose their
child's cystic fibrosis and advise that their second
pregnancy was at risk. The parents lost the choice for a
eugenic abortion, and thereafter gave birth to a second
child with cystic fibrosis. Children with this disease
normally suffer and die in their late teens. The Supreme
Court held that in addition to extraordinary medical
expenses in the care of their child in this wrongful
birth action, the parents could recover for non-economic
damages including their mental distress and moral injury
from denial of the parental free will to choose whether
to bring a handicapped child into the world. In a
separate opinion not accepted by the majority, Justice
Handler advocated for damages for diminished parental
capacity to love and care for their child due to his
deteriorative condition.
Like its counterpart "wrongful life"- to the extent this
notion encompasses preference for no life at all over
life with defects - a cause of action for "diminished
parenthood" has historically been rejected by the court.
Wrongful life is recognized in Procanik v. Cillo,
97 N.J. 339 (1984), in that a child may recover for past
and lifetime extraordinary expenses resulting from a
misdiagnosis depriving parents of the opportunity to
consider terminating the pregnancy. Parents may also
recover for their own emotional distress damages, albeit
not for sake of their son's impaired childhood. However,
the child - born with congenital rubella due to a
physician's failure to diagnose her mother's first
trimester German measles - has no cause of action for an
impaired childhood or emotional distress. Note that the
statute of limitations for the parents' direct claim
does not extend through the child's minority. The result
is a limited "wrongful life" claim, with economic but
not emotional damages compensable to the child.
In another obstetrical malpractice trial, Lindenmuth
v Alperin, 197 N.J. Super. 385 (Law Div. 1984),
plaintiff mother sought damages for emotional distress
when her physician failed to diagnose her intestinal
obstruction during pregnancy, resulting in the death of
her son three days after birth. The court disallowed
emotional damages, explaining that the physician's
negligence in misdiagnosis did not qualify as a
perceivable event under Portee, supra, since the
parents' distress "arose from observing the result
rather than an act" and "the critical element, sensory
perception of a shocking event, was not present."
Failure to diagnose alone is not an event perceivable by
laymen regardless of the course or outcome of an illness
or disease. Also see Acevedo v. Essex County, 207
N.J. Super 579, (Law Div. 1985), where the trial court
denied negligent infliction of emotional distress
damages to a father who observed his son's body upon
exhumation to correct an autopsy report. The court
denied relief citing Tort Claims Act immunity, Wrongful
Death Act bar to emotional damages, and Lindenmuth
lack of observation of a shocking injury or death as
opposed to mere observation of misdiagnosis.
The missing elements in Lindenmuth were satisfied
in Polikoff v. Calabro, 209 N.J. Super. 110 (App.
Div. 1986), where according to plaintiff parents' theory
of malpractice, their child did not die from the disease
or condition for which she was treated, but rather from
an improperly conducted and physically intrusive medical
procedure observed by her mother. Furthermore, her
mother subsequently observed the child through all of
the consequential stages of that injury concluding with
a fatal cardiac insult. The Appellate Division held the
negligent infliction of emotional distress Portee
requirement of "observation of the death or injury at
the scene of the accident" was satisfied where the
allegedly negligent procedure was observed by the mother
and both parents observed the child's distress over a
two hour period before her death. And see Mansour v.
Leviton Mfg. Co., Inc., 382 N.J. Super 594 (App.
Div. 2006), where hearing a child's screams due to
product burn injury satisfied "observation" element of
bystander liability and father's emotional distress was
compensable.
Temporal connect between diagnosis and injury needed
In Frame v. Kothari, 115 N.J. 638 (1989),
Polikoff was solidified and Lindenmuth
distinguished in a case where an infant fell down the
stairs in his home and his parents brought him to a
pediatrician. The doctor failed to diagnose a brain
hemorrhage - even after the father's subsequent
telephone conversation with the physician -causing blood
clotting due to the trauma. The boy's mother claimed the
shock of discovering her son in a moribund condition
four hours later caused her severe depression, and the
father likewise claimed emotional damages as "indirect"
claims in this wrongful death action. The Supreme Court
held the doctor's failure to diagnose the son's illness
during the subsequent telephone conversation did not
manifest itself in an immediate injury. Not until hours
later did the parents discover their son's compromise,
and eleven more hours lapsed before a telephone call
from the hospital advising them of his death. Though
tragic, this chain of events was not shocking enough to
cause substantial injury to a normally constituted
person as required by Portee. A plaintiff must
observe the kind of result associated with the immediate
aftermath of an accident, such as bleeding, trauma, and
cries of pain and suffering. Emotional distress damages
are unavailable without a temporal connection between
the misdiagnosis and injury, susceptible to immediate
sensory perception. Although compensation for
psychological harm was denied here the delineation in
the case opened the door for recovery in an appropriate
one. See also Johnson v. Mountainside, 239 N.J.
Super. 312 (App. Div 1990), denying liability where
unobserved malpractice-induced coma was subsequently
attended by husband.
The New Jersey Supreme Court recognized a claim for
negligent infliction of emotional distress in an
obstetrical malpractice case and made a circumstantial
modification of Portee. In Giardina v.
Bennett, 111 N.J. 412 (1988), parents sued for an
obstetrician's failure to properly diagnose a pregnant
mother's symptoms leading to a stillborn child three
weeks after her due date. Although the court declared a
fetus was not a person under the Wrongful Death Act, it
held the physician owed a duty to the mother and
expectant father where strong and intimate familial
bonds exist. The doctor's negligence constituted a
"direct" tort against parents, for which they could
bring a common-law negligence action for severe
emotional distress and mental suffering due to the
physician tortfeasor's negligent act or omission. The
court explained that the experience of pregnancy and
childbirth itself satisfies the immediacy and presence
in the face of inflicted personal injury or death of a
loved one, elements stressed in Portee.
In Carey v. Lovett, 132 N.J. 44 (1993), the
Supreme Court made a clear albeit fact-specific
conciliation of Portee bystander requirements,
and a dispensation of Frame "indirect"(derivative)
and Giardina "direct" action classifications. A
doctor mistakenly advised plaintiffs their twenty-six
week old fetus was dead, despite the mother's
protestations. She later gave birth to a living child,
although nobody knew it until the father noticed the
baby was "pink" and insisted that a doctor examine the
baby to determine the cause of death. When hospital
staff realized the baby was alive she was rushed to the
neonatal unit, but failure to arrest her premature birth
and delayed neonatal care caused irreversible brain
damage. The parents terminated life support ten days
post-birth. The court held that any time a doctor
negligently injures a child it is foreseeable the
parents will suffer emotional distress. A mother and
newborn child are so closely joined that mother need not
be "shocked" by observed malpractice on the baby, but
emotional distress must be severe enough to cause
physical manifestations or destruction of her
"basic emotional security," citing Portee. A
father must prove equally severe emotional distress, an
intimate family relationship with the mother and baby,
and "shock" (i.e., no time to prepare) by
contemporaneously observed malpractice and its effects
on the newborn. A physician-patient relationship is not
required for the father's recovery. These requirements
ensure emotional distress be genuine and severe in the
absence of physical impact to a claimant.
The Appellate Division applied Carey to deny
relief in Delgado v. Epstein, 2005 WL 3693200
(App. Div. 2006). In this case parents witnessed their
child fall to the floor in the delivery room shortly
after childbirth, sustaining a skull fracture and
epidural hematoma with subsequent seizure disorder and
neurologic compromise (although there was dispute as to
etiology). They were denied emotional trauma damages.
The court explained the parents failed to meet the
proofs Carey requires - neither their own
testimony of shock, worry and anxiety nor that of an
expert who offered proof of their generalized symptoms
in the form of a disqualified net opinion, established
the essential physical manifestations or destruction of
emotional security. See also Strachan v. John F.
Kennedy Memorial, 109 N.J. 523 (1988) (subsequent
history omitted), where parents witnessed an
irreversible brain-damaged condition for three days. The
hospital failed to offer termination of life support and
failed to release their son's corpse for burial. The
court recognized the parents' claim for negligent
infliction of emotional distress.
"Familial rights" expanded
A year after Carey the Supreme Court decided
Dunphy v. Gregor, 136 N.J. 99 (1994), expanding
the notion of "familial" rights prerequisite to
emotional distress recovery for shocked witnesses of the
serious personal injury or death of another. In this
case, a woman witnessed an auto-pedestrian impact
leading to the next-day death of her cohabitant fiancé.
The injury occurred on a major highway while the young
man changed an automobile tire. Ms. Dunphy was five feet
from the accident scene and attended her injured fiancé,
who had been dragged or propelled 240 feet. She claimed
damages for her depression and anxiety. The court found
the required relationship for recovery is not limited to
blood or marriage, but may include unmarried cohabitants
if the relationship is substantial and steadfast -
stable and enduring.
Gendek v. Poblete, 139 N.J. 291 (1995), a medical
malpractice case, involved a baby born in apparent good
health who day one post-birth stopped breathing,
suffered brain damage and required life support. The
parents elected to terminate their son's life support 45
days after birth. They were unaware of and did not
observe any malpractice causing his death. Their
suffering came from observing the initial frantic and
subsequent futile efforts to save his life - the basis
for their emotional distress claims. The court
declassified this case as an obstetrical malpractice
case, unlike Carey and Giardina, and
applied the standard enunciated in Portee,
treating it as any other medical malpractice bystander
claim. The court held that to sustain an indirect
emotional distress medical malpractice claim, the
claimant must prove (1) the victim was a marital or
intimate family member, and that the claimant (2)
witnessed the malpractice, (3) immediately connected or
associated the malpractice with the victim's injury, and
(4) therefore suffered severe emotional distress.
Because the alleged negligence was neither in utero nor
during the peri-birthing period, the indirect bystander
liability requirements of Portee and Frame
applied to deny parental emotional anguish recovery.
Contemporaneous observance still important
The notion of contemporaneous observance was
reinforced by the New Jersey Supreme Court in Ahn v.
Kim, 145 N.J. 123 (1996), in which a wife sued a
psychiatric facility where her husband - admitted for
depression and suicidal ideations - wandered from an
open ward and apparently committed suicide sometime
thereafter. The court held Mrs. Ahn could not recover
for emotional distress from the medical malpractice
against her husband if she did not witness a temporally
close result. An injury must be susceptible to immediate
sensory perception and a claimant must observe the
victim at the time of injury, or immediately thereafter.
Therefore, Mrs. Ahn did not have an indirect claim for
emotional distress due to the injury to her husband, nor
a direct claim because the facility and staff owed her
no duty of care. A hospital is not directly liable to a
patient's family members for negligent injury to a
patient.
The Appellate Division in Greene v. Memorial Hosp. of
Burlington County, 299 N.J. Super. 372 (App. Div.
1997) (subsequent history omitted), considered a case
for damages including emotional distress brought by the
mother of a child who died in a hospital emergency room
after waiting two and a half hours before seeing a
doctor despite chest pains, slightly elevated pulse, and
high respiratory rate. The court held that misdiagnosis
normally does not create the kind of horrifying scene
that is prerequisite for recovery of bystander damages
for negligent infliction of emotional distress.
Connecting negligence to harm
However, where a mother witnessed inattentiveness to
her child, and testimony showed she connected such delay
with resulting harm to the child including seizure,
recovery may be had. However, relief was denied because
the mother could not connect the negligence to the
ultimate harm. Proof of malpractice is required to claim
bystander emotional distress - recovery cannot be had
without proof the health care provider's negligence
proximately caused the child's death or serious injury.
The severity of emotional distress must be beyond that
normally experienced by the loss or suffering of a loved
one such that compensation is for the "added stress" of
witnessing the malpractice. This case was ultimately
reversed and remanded for reconsideration and a new
trial on the proof of negligence causing the outcome.
In Arenas v. Gari, 309 N.J. Super. 1 (App. Div.
1998), parents sued their son's pediatrician for
wrongful death for failure to properly examine and
diagnose. The child presented with symptoms of illness,
and was later determined to have had a lung obstruction
leading to pneumonia, airway obstruction and respiratory
failure. While the parents' wrongful death and survival
claim were viable, the court held the parents could not
claim emotional distress damages where - although the
mother witnessed the child choking - misdiagnosis was
four days prior and there was no observed immediate
traumatic event connected with the malpractice. Again,
it is clear malpractice alone will not craft entitlement
for emotional anguish recovery by a family member;
rather, a contemporaneous observance and connection to
proven medical negligence proximately causing damages to
the family member victim is required. In accord,
Vasilik v. Federbush, 327 N.J. Super 6 (App. Div.
1999), where a 15 hour lapse between son's admission and
suicide at crisis center denied the father's entitlement
to emotional distress damages, although he witnessed
subsequent resuscitation efforts.
The Appellate Division in Fertile ex rel. Fertile v.
St. Michael's Medical Center, 334 N.J.Super. 43
(App. Div. 2000), rev'd on other grounds, 169
N.J. 481 (2001), considered the evidentiary requirements
for recovery in a case where parents sued obstetrical
doctors and a hospital for shoulder dystocia birth
injury causing arm atrophy and paralysis due to medical
malpractice and claimed emotional damages. The court
held mental distress damages were not available to the
parents where the proofs fell short; there was no expert
testimony offered to address the emotional repercussions
upon the mother and she only testified to suffering
shock and unhappiness. The testimony adduced at trial
did not support a conclusion her child's injury resulted
in her own physical manifestations or destroyed her
basic emotional security as required by Portee
and Carey. In short, there was no proof the
mother's emotional distress was beyond that expected
when something goes wrong during delivery, i.e.
"severe." The threshold of "severity" thus raises
questions of law or legal sufficiency of mental anguish
claims for the court and questions of fact for the jury.
Damages and TCA
The interplay of emotional distress damages and New
Jersey's Tort Claims Act (TCA) recovery threshold was
examined in Willis v. Ashby, 353 N.J. Super. 104
(App. Div. 2002). In Willis, the parents of a
post-term stillborn child sued state physician employees
and its public entity hospital for medical malpractice
including emotional distress. A public entity is liable
for the torts of its employees acting within the scope
of their public employment. Although there is physician
TCA immunity for public health activities, there is no
immunity for medical examination or diagnosis for
treatment. For emotional distress and psychological harm
to be compensable under the TCA, the following are
required: (1) an objective permanent injury; (2)
substantial permanent loss of a bodily function,
permanent disfigurement, or dismemberment; and (3)
medical treatment expenses for injury in excess of
$3,600. N.J.S.A. 59:9-2(d).
Willis held the first prong may be satisfied by
proof of posttraumatic stress disorder, citing
Collins v. Union County Jail, 150 N.J. 407 (1997),
but note discussion of requirement of direct physical
injury even if not meeting the TCA threshold, outside
the context of Willis. See e.g., Srebnik v.
State, 245 N.J. Super. (App. Div. 1991). Although
the second TCA prong of physicality is thus generally
not satisfied by mental anguish alone the Willis
court, citing Giardina and Carey, found
pain and suffering in the case of a stillbirth would
suffice. Cf., Jablonowska v. Suther, 390 N.J.
Super. 395 (App. Div. 2007), where in context of the
AICRA automobile tort threshold, bystander emotional
posttraumatic distress disorder damages to the daughter
driver were denied where her mother was killed in the
same vehicle and accident. However, Jablonowska
relied on Srebnik for this point, interpretation
of which was later specifically called into question by
the Supreme Court in Collins.
Lodato ex. rel. Lodato v. Kappy, 353 N.J. Super
439 (App. Div. 2002) reinforced and clarified precedent
allowing parental recovery of emotional damages in
obstetric malpractice cases. In Lodato, the
parents of a child with congenital birth defects sued
doctors and a medical practice, including a prayer for
emotional damages. The parents allegedly would have
terminated their pregnancy if proper testing had been
interpreted to reveal spina bifida, neural tube and
other defects from which their son suffered. While the
trial court properly instructed as to the parents
entitlement to emotional damages for suffering as a
result of the birth of their son with defects, the
Appellate Division held it was improper to additionally
charge an offset was available against such damages to
the extent the child was a source of pride, joy and love
to his parents and his existence generally a benefit to
the family. Such a "mitigation" jury instruction was
held inappropriate and contrary to precedent disallowing
considerations of "wrongful life."
"Severity" requirements refined
Geler v. Akawie, 358 N.J. Super. 437 (App.
Div. 2003), served to limit application of Carey
"severity" requirements. In this case, parents of a
child born with Tay-Sachs disease who died before age
two brought a wrongful birth medical malpractice suit
against their obstetrician for failure to provide
genetic counseling and inform them of the availability
of tests to detect the disorder. The court held the
elevated standard requiring proof of severe emotional
distress for damages enunciated in Carey, a case
of neonatal malpractice and death of a fetus, did not
apply. The injury here was deprivation of the parents'
option to abort their genetically compromised fetus,
closely related to an informed consent claim grounded in
what a "prudent patient" would want to know. The
consequences of such deprivation can produce past and
future emotional damages available in addition to any
economic loss, which parents may prove without expert
testimony.
Perhaps the distinction is grounded in differentiation
of this case as a "direct" tort (non-bystander) against
the parents, therefore not derivative of injury to the
child and akin with Schroeder, supra.
Acuna v. Turkish, 384 N.J. Super. 395 (App. Div.
2006), rev'd on other grounds, 192 N.J. 399
(2007), was an action against a gynecologist for medical
malpractice wrongful death and negligent infliction of
emotional distress for failure to obtain proper informed
consent before termination of pregnancy. This abortion
case was ultimately reversed as to the duty of informed
consent here inextricably intertwined with the
church-state dilemma "when does life begin?" The
Appellate Division, relying on Giardina and
Portee and perhaps applicable in future cases of
abortion malpractice injury not grounded in lack of
informed consent conjuring issues of when life begins,
held an mother's emotional distress claim could be valid
based on the death of a wrongly aborted embryo. As
Geler, supra, pointed out, recovery for emotional
damages does not require an allegation or claim the
physician's negligence caused the unborn child any
injury.
Funeral parlor error
A few months after Acuna and conjuring
notions of Acevedo (exhumation) and Strachan
(mishandling of a corpse), supra, the court
tackled the case of funeral parlor error in Menorah
Chapels At Millburn v. Needle, 386 N.J. Super 100
(App. Div. 2006). Needle involved funeral
arrangements wherein an orthodox Jewish family
contracted for ritual performance of a vigil over the
deceased until the memorial service. The Appellate
Division held the trial court erred in denying a claim
for emotional damages as a consequence of the chapel's
breach of contract to the surviving family members. In
this fact-specific case, the court explained that
provision of funeral services is specifically designed
to bring comfort and solace to the bereaved and mental
distress was a foreseeable and compensable consequence
of failure to perform the faith-based body-watching
ritual.
Summary
Negligent infliction of emotional distress bystander
recovery has cannoned through stages initially requiring
physical impact, later satisfied by foreseeable physical
or emotional "zone of risk" positioning coupled with
severe emotional injury. Physical manifestation or
destruction of basic emotional security expands recovery
to bystander witnesses upon proof of physical proximity
to observe an impact to another coupled with familial
relation. Subsequently, the Supreme Court dispensed with
distinctions of "direct" versus "indirect" recovery,
although substantively such notions remain to allow
recovery in funeral mishap and corpse cases. And, direct
injury analysis also allows recovery in obstetric,
abortion, gestational misdiagnosis or genetic counseling
negligence cases. Although such special classifications
exist in the latter types of cases, cases of neonatal or
child malpractice require contemporaneous observance of
proven negligence consciously linked to an ultimate
harm. Expert testimony may be required to ensure
satisfaction of elemental proofs where plaintiff cannot
meet thresholds for recovery. Differences may exist in
recoveries permitted in AICRA and TCA threshold
bystander cases involving claim of posttraumatic stress
disorder.
Finally, it is noted that in no way does any precedent
herein alter the emotional damages bar of the New Jersey
Wrongful Death Act.
Yale I. Markus has offices in Medford, Red Bank, and
Morristown and Boca Raton, FL. His practice concentrates
in medical malpractice and nursing home abuse. Maria P.
Markus, his wife and a pediatrician is on his staff. You
may reach him at (609)268-1209 or
yimlaw1@aol.com. Mr. Markus is the author of
the New Jersey Rules of Evidence Summary Guide.
