(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 7, 1994 -- Decided March 15, 1995
HANDLER, J., writing for a majority of the Court.
The question before the Court is whether parents who were unaware and did not witness the
medical malpractice that resulted in their child's eventual death may recover for the emotional distress they
suffered in observing the health-care professionals' efforts to save their infant child's life.
At 7:28 a.m. on September 27, 1987, Jean Gendek gave birth at Mercer Medical Center (MMC) to
an apparently healthy baby boy by normal vaginal delivery. At approximately 8:00 a.m. the following
morning, the infant, who had been given the name Gregory, was found in his Nursery bed by a nurse to be
unresponsive and not breathing. Another nurse began cardiopulmonary resuscitation. Mrs. Gendek was
called to the Nursery where she observed various medical professionals hovering over her son. Mrs. Gendek
was then told to call her husband and a family priest, if she had one, because the child was in grave
condition.
The doctors and nurses were able to resuscitate Gregory, but he suffered severe brain damage as a
result of the loss of oxygen to his brain. The Gendeks remained at Gregory's bedside during his subsequent
course of treatment. During that time, the Gendeks witnessed Gregory experiencing severe convulsions,
undergoing suction treatment, and enduring numerous intravenous treatments, examinations, and tests,
including ice water in his ears, fingers down his throat, and poking of his eyes. Gregory was placed on life-support machines, which the Gendeks terminated on the forty-fifth day. Gregory died shortly thereafter.
Almost five years after Gregory's death, the Gendeks were examined by a neuropsychiatrist who
concluded that both Gendeks suffered from a condition known as "uncomplicated bereavement." That
condition resulted in Mrs. Gendek exhibiting depression and Mr. Gendek exhibiting repressed emotions with
resulting blunting of affect and response.
The Gendeks filed suit against MMC and the doctors and nurses allegedly responsible for Gregory's
death. The Gendek complaint stated causes of action for medical and nursing malpractice, administrative
negligence, and negligent infliction of emotional distress attributable to the death of Gregory Gendek.
Thereafter, MMC moved for partial summary judgment seeking dismissal of the emotional distress
claim. The trial court granted that motion. Thereafter, the Gendeks moved before the Appellate Division
for leave to appeal the trial court's order granting partial summary judgment. The Appellate Division denied
leave to appeal. On the Gendek's motion for reconsideration, the trial court reaffirmed its earlier decision.
The Gendeks again moved before the Appellate Division for leave to appeal, which was granted. In a
reported decision, the Appellate Division affirmed the trial court's dismissal of the parents' claim for
negligent infliction of emotional distress.
The Supreme Court granted the Gendeks' motion for leave to appeal.
HELD: To maintain an indirect claim for negligent infliction of emotional distress resulting from alleged medical malpractice, an immediate, close and clear involvement or connection must be present
between the person suffering emotional distress and the conduct of the professional health-care
providers whose fault has contributed to the serious or fatal injuries of a related loved one. Partial
summary judgment was appropriately granted because that high degree of involvement and
connection was absent in this case.
1. A direct claim for negligent infliction of emotional distress can be maintained in cases in which a
person is the direct object of the wrongdoer's negligence and experiences severe emotional trauma as a result
of the wrongdoer's negligent act or omission. An indirect claim for negligent infliction of emotional distress
can be maintained in cases in which a person, not otherwise a direct object of the wrongdoer's negligence,
experiences severe emotional distress when a related loved one suffers serious or fatal injuries as a result of
that negligence. These cases are known as bystander-liability cases. (pp.6-9)
2. The special requirements that are imposed to establish an indirect claim for emotional distress
resulting from medical malpractice apply to the circumstances of this case. Mrs. Gendek's claim is for
emotional distress caused by nursing and medical malpractice on her infant son who was born alive, without
complications. Mr. Gendek's states at most an indirect claim for emotional distress arising out of the
negligent treatment of his son. (pp. 9-12)
3. Because the alleged negligence occurred after Gregory's birth, the standard announced in Frame v.
Kothari controls the Gendek's claim. According to Frame, an indirect claim for emotional distress caused by
medical malpractice must be based on evidence demonstrating that the victim was (1) a marital or intimate
family member of the claimant, and that the claimant (2) witnessed the malpractice, and (3) immediately
connected or associated the malpractice with the injury, and (4) as a result, suffered severe emotional
distress. Here, neither parent observed any negligent act or omission that they immediately associated with
Gregory's condition, nor did either parent observe any act of malpractice. More importantly, neither parent
immediately connected any act of malpractice with Gregory's respiratory failure or the need to perform
emergency medical procedures. (pp. 12-16)
Judgment of the Appellate Division is AFFIRMED.
JUSTICE STEIN, dissenting, is of the view that the requirement that the mother observe and be
aware of the malpractice overstates the holding in Frame and imposes an artificial exclusion from the already
narrow category of recognized bystander-liability cases. Frame's modification of Portee should be
understood as an exception from, not as a substitute for, the Portee guidelines; thus, a bystander's medical-malpractice action for emotional-distress damages that satisfies Portee should succeed even if the claimant
was unaware of the malpractice when it occurred.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN and GARIBALDI join in
JUSTICE HANDLER'S opinion. JUSTICE STEIN filed a separate dissenting opinion. JUSTICE
COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
36 September Term 1994
JEAN GENDEK, Administrator ad
Litem of the Estate of Gregory
Gendek and JEAN GENDEK and
STANLEY GENDEK, Individually,
Plaintiffs-Appellants,
v.
ESTRELLA POBLETE, C. GRAUER,
RAQUEL ABARY, ANTHONY BRICKMAN,
THE ABC CORPORATION and JOHN
DOES I through V and JANE DOES
I through V,
Defendants,
and
MERCER MEDICAL CENTER,
MARY ANN FARLEY (GREHAN), P.
PHILLIP, D. JOHNSON, JEAN
MAGAULLIRI, and TRACY GERGEL,
Defendants-Respondents.
Argued November 7, 1994 -- Decided March 15, 1995
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
269 N.J. Super. 599 (1994).
Edward B. Meredith argued the cause for
appellants (Meredith, Meredith & Chase,
attorneys).
Stacy L. Moore, Jr., argued the cause for
respondents Mercer Medical Center, P.
Phillip, D. Johnson, Jean Magaulliri and
Tracy Gergel (Parker, McCay & Criscuolo,
attorneys).
Jeanne A. Taylor argued the cause for
respondent Mary Ann Farley (Grehan).
The opinion of the Court was delivered by
HANDLER, J.
This case involves the claim of parents for negligent
infliction of emotional distress arising out of the death of
their infant son. The baby was born in apparent good health, but
subsequently developed profound respiratory problems during a
standard post-birth incubatory period. As a result of the
respiratory problems, the baby stopped breathing. Although
medical personnel were able to resuscitate the infant, he
suffered severe brain damage as a result of the loss of oxygen to
the brain. The parents eventually decided to remove life-support
machines from the forty-five day old infant, who then died.
The parents filed a complaint in their individual capacities
and as administrators ad litem, in which they alleged medical and
nursing malpractice, administrative negligence, and negligent
infliction of emotional distress attributable to the death of
their child. We consider this case on the parents' motion for
leave to appeal the lower courts' dismissal of their claim for
negligent infliction of emotional distress.
The Court must decide whether parents who apparently were
unaware of and did not witness any professional malpractice that
resulted in their child's eventual death may recover for the
emotional distress they suffered in observing the initial frantic
but ultimately futile efforts to save their child's life.
Jean Gendek gave birth to a baby boy by normal vaginal birth at 7:28 a.m. on September 27, 1987. The boy, later named Gregory, appeared healthy at birth.
In accordance with standard procedure, Gregory was transferred to the Neonatal Nursery after birth. The nurse on duty at the Nursery noted that Gregory had a hematoma on the left side of his forehead and appeared slightly dusky. The nurse also noted that Gregory's color returned to normal after stimulation. A noontime notation reflects that Gregory was reported dusky three times between birth and 12:00 noon but that his color returned to normal after stimulation. At 1:35 p.m. on the 27th (the day of birth), the on-duty nurse noted that no suck reflex was detectable on Gregory.
By 2:00 p.m. Gregory was with his mother in her room. Hospital records reflect that she was caring well for the baby's needs. The baby stayed with Mrs. Gendek for several hours -- at least until 8:00 p.m. and most likely until 10:00 p.m. Hospital records reflect that at all times, Mrs. Gendek was properly caring for Gregory. At one point during the baby's stay with his mother in her room, Mrs. Gendek noticed that the baby's hands and feet were purple. Somewhat alarmed, she informed a nurse of that fact, but the nurse responded: "he's fine honey -- just cover him up with 2 blankets." According to Mrs. Gendek, she returned her son to the Nursery at approximately 10:00 p.m.
At 6:00 a.m. the following day, Mrs. Gendek went to the
Nursery to check on her baby. Gregory was sleeping on his
stomach, and Mrs. Gendek then returned to her room. At
approximately 8:00 a.m., Tracy Gergel, a nurse and co-defendant,
discovered that Gregory was unresponsive in his bed. Nurse
Gergel called co-defendant Nurse Jean Magaulliri. Nurse
Magaulliri began cardiopulmonary resuscitation. Gregory's chart
described his condition as follows:
Baby on abdomen--face turned slightly to
side. Turned baby over, no respiration or
chest movement noted. Skin color mottled and
cold to touch. Muscle tone floppy.
Stimulated baby with no response and called
for help. . .. They immediately began
respirations with an ambubag and mask at 100" 0 [sic]. Marie Shickler, lead nurse SNC
arrived and began cardiac compressions . . .
. Baby transported to SCN in crib. CPR
maintained continuously.
Then, several nurses rushed into Mrs. Gendek's room. They
told her that Gregory was having a problem and that she should go
to the Nursery at once. There, Mrs. Gendek witnessed a team of
medical personnel and others huddled around her son. In her
words, she described the scene as follows:
And when I went out in the hallway, I saw the
nurses around. I saw a Minister which [sic]
I didn't know was a Minister at the time
standing in the hallway. I looked through
the glass and I saw about 5 or 6 people
around him, pumping on his chest, and they
were wheeling in an I.V. bottle.
One of the nurses grabbed Mrs. Gendek by the arm and told her to call her husband and a family priest, if she had one. She
called her husband and told him to come to the hospital
immediately because Gregory was "not breathing."
The team of doctors and nurses managed to restore Gregory's
heartbeat. During the subsequent course of treatment, Gregory
was transferred from Mercer Medical Center to Robert Wood Johnson
Hospital and then back to Mercer Medical Center. Nurses' notes
from the Nursery at Mercer Medical Center and the Nursery at
Robert Wood Johnson Hospital reflect that Mr. and Mrs. Gendek
were constantly at Gregory's bedside. During their constant
vigil, they witnessed Gregory experiencing severe convulsions,
undergoing suction treatment, and enduring numerous intravenous
treatments, examinations, and tests, including ice water in his
ears, fingers down his throat, and poking of his eyes.
After several days, doctors implanted permanent ventilatory
and nutritive tubes into Gregory's body. From the outset,
doctors told the Gendeks that even if Gregory survived, he would
be in a permanent vegetative state. On November 10, 1987, forty-five days after Gregory's birth, the Gendeks elected to terminate
artificial care, and Gregory died.
Almost five years after Gregory's death, the Gendeks were
examined by Dr. Richard Rubin, a neuropsychiatrist. Dr. Rubin
concluded that both Mr. and Mrs. Gendek suffer from a condition
known as "Uncomplicated Bereavement." That condition, according
to Dr. Rubin, "is characterized by obsessive preoccupation with
feelings of guilt about things that were done, or not done by the
survivor at the time of death of [a] loved one." In the case of
Mrs. Gendek, the condition has caused the onset of major
depression "with characteristics of recurrent crying spells,
feelings of self-reproach, [and] impairment of concentration."
As for Mr. Gendek, Dr. Rubin was of the opinion that Mr. Gendek
has repressed his emotions, resulting in a "blunting of affect
and response to his own inner life."
The Gendeks brought an action for compensatory damages
against several defendants, including the doctors, nurses, and
hospital, allegedly responsible for causing their child's death.
After defendants had answered plaintiffs' complaint, defendant
Mercer Medical Center moved for partial summary judgment seeking
dismissal of the claim for negligent infliction of emotional
distress. The court granted the motion, and plaintiffs moved for
leave to appeal, which the Appellate Division denied. On a
motion for reconsideration, the trial court reaffirmed its
earlier decision. Plaintiffs again moved for leave to appeal,
which the Appellate Division granted. In a reported decision,
269 N.J. Super. 599 (1994), the court affirmed the trial court's
dismissal of the parents' claim for negligent infliction of
emotional distress.
Our Court has recognized a claim for negligent infliction of emotional distress in cases in which a person who is the direct object of a tortfeasor's negligence experiences severe emotional trauma as a result of the tortfeasor's negligent act or omission.
See, e.g., Giardina v. Bennett,
111 N.J. 412 (1988) (recognizing
claim for negligent infliction of emotional distress when medical
malpractice during pregnancy resulted in stillborn child);
Strachan v. John F. Kennedy Memorial Hosp.,
109 N.J. 523 (1988)
(recognizing claim for negligent infliction of emotional distress
when hospital negligently failed to release to parents their
son's brain-dead corpse).
Our cases also recognize indirect claims for negligent
infliction of emotional distress. Those arise in cases in which
a person, not otherwise a direct object of a tortfeasor's
negligence, experiences severe emotional distress when another
person suffers serious or fatal injuries as a result of that
negligence. E.g., Portee v. Jaffee,
84 N.J. 88 (1980). The
cases recognizing such indirect claims for negligent infliction
of emotional distress are sometimes referred to as bystander-liability cases. E.g., Dunphy v. Gregor,
136 N.J. 99, 101
(1994).
That kind of claim was first recognized by our Court in
Portee, in which the Court permitted a mother's recovery for
negligent indirect infliction of emotional distress because she
had watched her son slowly die after being involved in an
elevator accident caused by the defendant's negligence. The
Portee Court held that although the mother herself had
experienced no fear of being injured and had not suffered any
physical injuries, she could maintain a claim for negligent
infliction of emotional distress because "(1) the death or
serious physical injury of another [was] caused by defendant's
negligence; (2) a marital or intimate familial relationship
[existed] between plaintiff and the injured person; (3) [she had
observed] the death or injury [of the victim] at the scene of the
accident; and (4) [she had suffered] severe emotional distress."
Portee, supra, 84 N.J. at 101.
Claims for emotional distress that are either direct or
indirect may arise when the negligence consists of medical
malpractice. E.g., Frame v. Kothari,
115 N.J. 638 (1989);
Strachan, supra,
109 N.J. 523. The special requirements for
establishing an indirect claim for emotional distress that is
based on medical malpractice are strictly applied. See Frame,
supra, 115 N.J. at 651-52 (observing that expansion of medical
malpractice to include indirect claims of emotional distress may
increase actual and social costs of providing health care)
(Wilentz, C.J., and Garibaldi, J., concurring).
Medical malpractice giving rise to emotional-injury claims
can involve obstretical malpractice that occurs in the course of
pregnancy with resultant serious or fatal injuries to the fetus
or newborn and consequent severe emotional distress suffered by
the parents. E.g., Carey v. Lovett,
132 N.J. 44 (1993);
Giardina, supra,
111 N.J. 412. In those cases, the Court has
considered the claim of the mother to be more analogous to a
direct claim for negligent infliction of emotional distress. As
explained by the Court in Giardina, "the medical malpractice
causing an infant stillbirth constitutes a tort against the
parents, entailing the direct infliction of injury, their
emotional distress and mental suffering, for which they are
entitled to recover compensatory damages." 111 N.J. at 413. In
reaching that conclusion the Court drew on cases involving so-called wrongful-birth and wrongful-life causes of action, which
recognize direct claims by parents for the infliction of
emotional distress from negligent advice or genetic counselling
in anticipation of or during pregnancy, see, e.g., Procanik v.
Cillo,
97 N.J. 339, 352 (1984) (holding that family could assert
claim for negligent infliction of emotional distress against
doctor who negligently interpreted a German measles test, thereby
depriving parents of opportunity to consider terminating
pregnancy); Schroeder v. Perkel,
87 N.J. 53, 63-64 (1981)
(holding that parents could assert direct claim for emotional
distress against doctor who failed to inform them of genetic risk
of having another child); Berman v. Allan,
80 N.J. 421, 432
(1979) (holding that doctor's failure to inform parents of
availability of amniocentesis that deprived parents of
opportunity to terminate pregnancy forms basis of direct claim
for negligent infliction of emotional distress).
In Carey, the Court considered more closely the nature of
the cause of action for emotional distress in the context of
obstretical malpractice. The Court stressed that in situations
in which obstretical malpractice causes injury or death to a
fetus, characterizing the pregnant mother's emotional distress
claim as direct or indirect is difficult, and, inferentially, not
especially helpful, in light of "[t]he unique relationship
between a pregnant woman and her baby." 132 N.J. at 59. In
those situations, because a pregnant woman and her fetus are one
physiological unit, any injuries suffered by the fetus
necessarily occur through and in the course of directly treating
the pregnant woman. Ibid. (observing that during pregnancy "the
connection between a mother and her baby so merges `direct' and
`indirect' claims that the distinction disappears").
If the obstretical malpractice occurs during pregnancy, and
the fetus, although born alive, suffers injuries that are
ultimately fatal, the child may plausibly be considered as the
primary victim. It does not necessarily follow, however, that
the mother's claim for emotional distress that arises from the
victimization of her infant should be considered an indirect
claim. In that setting, the special requirements that are
imposed to establish an indirect claim for negligent infliction
of emotional distress, as exemplified by Portee, would appear to
be superfluous. Those special requirements serve to assure the
genuineness of the claim for emotional distress and the basic
fairness and reasonableness in imposing liability for that kind
of emotional distress on the tortfeasor. However, no need
exists, as recognized by Carey, to impose on the mother, who has
herself been a victim of malpractice during pregnancy or the
delivery of her child, the added requirements that she "be
contemporaneously aware of the malpractice and the injury of her
fetus" or be "shocked" by the malpractice. Id. at 60. Her
emotional distress over the condition and fate of her newborn
baby is unquestionably immediate and genuine and inextricably
related to the malpractice.
The issue posed on this appeal is whether the special
requirements that are imposed to establish an indirect claim for
emotional distress arising from medical malpractice apply under
the circumstances of this case. We conclude that those
requirements remain relevant and must apply to determine the
sustainability of plaintiffs' cause of action.
The Gendeks' claim for the emotional distress arising from
the death of their child is not a claim based on negligence or
malpractice that was directed to the mother during pregnancy or
child birth. Mrs. Gendek's claim is for emotional distress
caused by nursing and medical malpractice on her infant child who
was born alive, without complications. Plaintiffs do not allege
medical malpractice that affected the fetus itself or that
started during the end stage of pregnancy and continued during
the birth process and thereafter until the child suffered a
condition that proved fatal. In contrast, in Mrs. Carey's case,
the claim was for "for emotional distress caused by malpractice
on the mother and fetus during childbirth." 132 N.J. at 58
(emphasis added). Plaintiffs' claim is therefore distinguishable
from the mother's claim in Carey.
Carey, moreover, did not relax the special requirements for
a father's claim for indirect emotional distress attributable to
the medical malpractice involving the mother during pregnancy or
the birthing process. In that case, the father, unlike the
mother, was not a direct object of any medical malpractice, and
consequently his claim was considered to be an indirect claim for
emotional distress. He was, therefore, required to show that he
had "contemporaneously observe[d] the malpractice and its effects
on the victim and that he [had been] shocked by the results."
Id. at 62.
Mr. Gendek states at most an indirect claim for emotional
distress arising out of the negligent treatment of his infant
son. The sole allegation in the complaint is that after Gregory
was born, "[d]efendant nurses negligently failed to put into
effect monitoring procedures and devices, notify pediatricians or
neonatologists of the infant's condition, transfer the infant to
the high risk unit, or otherwise properly to act in the
premises."
Because the alleged negligence in this case occurred after
the completion of the birthing process, the standard announced in
Frame, supra, controls the claims of both parents. Frame applied
the standard enunciated in Portee in the context of medical
malpractice. Under that standard, an indirect claim for
emotional distress attributable to medical malpractice must be
based on evidence demonstrating that the victim was (1) a marital
or intimate family member of the claimant, and that the claimant
(2) witnessed the malpractice, and (3) immediately connected or
associated the malpractice with the injury, and (4) as a result,
suffered severe emotional distress. Frame, supra, 115 N.J. at
643. Neither Mr. nor Mrs. Gendek observed any negligent act or
omission that they immediately associated with Gregory's
condition.
The Court in Frame rejected the claim of the parents for
indirect infliction of emotional distress arising from a medical
misdiagnosis or failure to act that later resulted in the death
of their young son. The Court explained:
Our focus here is on the right of one family
member to recover for the emotional distress
caused by the medical misdiagnosis of another
member of the family. A misdiagnosis may
lead to tragic consequences that expose the
negligent physician to claims for personal
injuries or the wrongful death of the victim.
By its nature, diagnosis is an intellectual
undertaking, requiring the physician to
analyze symptoms and reach a conclusion. The
nature of a misdiagnosis is such that its
results may neither manifest themselves
immediately nor be shocking. Hours, days, or
months may separate a misdiagnosis, the
manifestation of the injury to the patient,
and the family member's observation of the
injury.
In Lindenmuth v. Alperin,
197 N.J. Super. 385 (Law Div.
1984), a mother was not allowed to recover for her emotional
distress when a doctor's failure to diagnose an intestinal
obstruction caused her new-born baby to die when it was three-days old. This Court in Frame noted that in Lindenmuth "the
mother watched the deterioration of her child over a period of
three days without appreciation of the impact of the doctor's act
of malpractice." 115 N.J. at 645. It concluded that those facts
do not demonstrate that the defendant's
failure to diagnose, the manifestation of
that failure, and the death of the infant
were sufficiently connected to support a
claim for emotional distress. The distress
that Mrs. Lindenmuth doubtless suffered could
be as readily attributed to her
understandable grief over the loss of her
baby as to her observation of the baby and
her knowledge that the doctor had failed to
diagnose the cause of death.
The Court did recognize in Frame the possibility of a
successful indirect claim for negligent infliction of emotional
distress arising out of the medical misdiagnosis of a family
member: "In an appropriate case, if a family member witnesses
the physician's malpractice, observes the effect of the
malpractice on the patient, and immediately connects the
malpractice with the injury, that may be sufficient to allow
recovery for the family member's emotional distress." Id. at
649.
Here, neither Mr. nor Mrs. Gendek observed any act of
malpractice. Cf. Polikoff v. Calabro,
209 N.J. Super. 110 (App.
Div. 1986) (recognizing indirect claim for infliction of
emotional distress of mother who observed hyperalimentation of
fluids through catheter in daughter's jugular vein, followed by
daughter's death). Mrs. Gendek witnessed only the non-negligent
resuscitative efforts by the team of medical personnel. Mr.
Gendek, unlike Mrs. Gendek, did not even arrive at the scene
until after the resuscitation of Gregory had been accomplished.
More importantly, neither Mr. nor Mrs. Gendek immediately
connected any act of malpractice with Gregory's respiratory
failure or the need to perform emergency medical procedures.
In rejecting the cause of action in this case, we appreciate
in full measure the pathos and genuineness of plaintiffs'
suffering. Mrs. Gendek delivered a healthy baby boy, who
suddenly stopped breathing approximately twenty-four hours after
birth. Had the medical personnel monitored the infant more
closely, this tragedy might have been averted. The Gendeks have
undoubtedly experienced deep and enduring emotional trauma as a
result of the death of their son.
As Justice Pollock observed in Frame, "Everyone is subject
to injury, disease and death. Common experience teaches that the
injury or death of one member of a family often produces severe
emotional distress in another family member." 115 N.J. at 642.
Although the law recognizes that at times the severe emotional
trauma accompanying the tortious death or injury of a family
member may be compensable, such a claim is narrowly circumscribed
in the context of a medical misdiagnosis or failure to act. In
the context of health care, life and physical wellbeing are often
at stake and frequently at risk, and injury and death are not
unforeseeable. In considering the standards that govern an
appropriate duty of care and limitations of liability in that
setting, we must be especially mindful of the principles of sound
public policy that are informed by perceptions of fairness and
balance. We therefore insist that an immediate, close and clear
involvement or connection be present between a person suffering
emotional distress and the conduct of the professional health-care providers whose fault has contributed to the grave or fatal
injuries of a related loved one.
That high degree of involvement and connection is absent in
this case. Nothing in the record demonstrates that the Gendeks'
grief was especially augmented or that their emotional injury was
uniquely exacerbated or intensified by the simultaneous awareness
and terrible realization that the tragedy of their son's fatal
condition, the onset of which they witnessed, was caused by
nursing and medical malpractice that was occurring in their
presence.
We affirm the judgment of the Appellate Division.
Chief Justice Wilentz and Justices Pollock, O'Hern, and Garibaldi join in this opinion. Justice Stein has filed a separate dissenting opinion. Justice Coleman did not participate.
SUPREME COURT OF NEW JERSEY
A- 36 September Term 1994
JEAN GENDEK, Administrator ad
Litem of the Estate of Gregory
Gendek and JEAN GENDEK and
STANLEY GENDEK, Individually,
Plaintiffs-Appellants,
v.
ESTRELLA POBLETE, C. GRAUER,
RAQUEL ABARY, ANTHONY BRICKMAN,
THE ABC CORPORATION and JOHN
DOES I through V and JANE DOES
I through V,
Defendants,
and
MERCER MEDICAL CENTER,
MARY ANN FARLEY (GREHAN), P.
PHILLIP, D. JOHNSON, JEAN
MAGAULLIRI, and TRACY GERGEL,
Defendants-Respondents.
STEIN, J., dissenting.
In this medical malpractice case, a mother who had delivered a healthy baby boy was informed by nurses approximately twenty-four hours after birth about a "problem" with her baby. She rushed to the nursery, discovered that the baby had stopped breathing and saw a team of physicians and nurses using cardiac compressions and respirational aids in an attempt to resuscitate the infant. She was told to call her husband and to summon a family priest. Although medical personnel were able to restore
the infant's heartbeat, the loss of oxygen to the brain caused
severe brain damage. The parents were informed that even if the
baby survived he would be in a permanent vegetative state. Both
parents observed the future course of the infant's treatment,
including the insertion of respirational and nutritional tubes,
during the forty-five-day period that terminated with his death.
The Court holds that notwithstanding evidence of severe
emotional distress, and irrefutable evidence that the mother was
present and directly observed the infant's injury sustained as a
result of the alleged malpractice, the mother's claim for
emotional distress damages is barred because she did not observe
and was unaware of the antecedent nursing and medical malpractice
that allegedly caused her infant son to stop breathing. Ante at
___ (slip op. at 15-16). The allegations of malpractice focus on
the failure of the hospital staff to respond to discernible
symptoms of distress and to seek expert intervention before the
infant lost consciousness on the morning following his birth. In
my view, the requirement that the mother observe and be aware of
the malpractice overstates our holding in Frame v. Kothari,
115 N.J. 638 (1989), and imposes an artificial exclusion from the
already narrow category of cases in which we recognize claims for
emotional distress based on injury to a loved one.
Recognition of a cause of action for emotional distress
caused by the death or serious bodily injury of a loved one
derives from our holding in Portee v. Jaffee,
84 N.J. 88 (1980).
There, the plaintiff's seven-year-old son became trapped in the
elevator of a Newark apartment building, between the elevator's
outer door and the wall of the elevator shaft. When the elevator
was activated, the boy was dragged up to the third floor. For
approximately four and one-half hours the mother watched as
police officers struggled to free him. He died while trapped in
the elevator, having suffered multiple bone fractures and massive
internal hemorrhaging. The plaintiff's action against the
building's owner and the two elevator companies responsible for
maintaining the elevator was based on the defendants' failure to
provide a safe elevator. In addition to the survival and
wrongful-death claims that she asserted in her representative
capacity, the mother also sued individually for her mental and
emotional distress resulting from the observance of her son's
suffering and death. In Portee, we recognized a cause of action
for negligent infliction of emotional distress based on proof of
the following elements: "(1) the death or serious physical
injury of another caused by defendant's negligence; (2) a marital
or intimate, familial relationship between plaintiff and the
injured person; (3) observation of the death or injury at the
scene of the accident; and (4) resulting severe emotional
distress." Id. at 101.
Our holding in Portee imposed no requirement that the
plaintiff observe the negligent act that caused the injury. We
also rejected as arbitrary the requirement imposed by Falzone v.
Busch,
45 N.J. 559, 569 (1965), that the plaintiff be subjected
to risk of physical harm, but noted that "the scope of recovery
must be circumscribed to negligent conduct which strikes at the
plaintiff's basic emotional security." Portee, supra, 84 N.J. at
99. Accordingly, we limited the cause of action for emotional
distress only to those family members who observed the death or
injury at the scene of the accident:
Discovering the death or serious injury
of an intimate family member will always be
expected to threaten one's emotional welfare.
Ordinarily, however, only a witness at the
scene of the accident causing death or
serious injury will suffer a traumatic sense
of loss that may destroy his sense of
security and cause severe emotional distress.
* * * Such a risk of severe emotional
distress is present when the plaintiff
observes the accident at the scene. Without
such perception, the threat of emotional
injury is lessened and the justification for
liability is fatally weakened. The law of
negligence, while it redresses suffering
wrongfully caused by others, must not itself
inflict undue harm by imposing an
unreasonably excessive measure of liability.
Accordingly, we hold that observing the death
or serious injury of another while it occurs
is an essential element of a cause of action
for the negligent infliction of emotional
distress.
Nor do the cases applying the Portee rule reflect any requirement that observation and awareness of the negligent act that caused the death or injury is a prerequisite to recovery. For example, in Polikoff v. Calabro, 209 N.J. Super. 110 (App. Div. 1986), the defendant anesthesiologist's misplacement of a catheter in a child's jugular vein during surgery resulted in the accumulation of hyper-alimentation fluid in the child's pericardial sac, causing her death. The child's mother was with
her when the hyper-alimentation began, and witnessed her distress
as well as the unsuccessful efforts to resuscitate her. The court
held that the mother's observation of the introduction of hyper-alimentation fluid into the incorrectly positioned catheter and
the child's resultant injury and death were sufficient to satisfy
Portee's requirements for a cause of action to recover emotional
distress damages. Id. at 114-15. No requirement that the mother
observe or be aware of the negligent misplacement of the catheter
was imposed.
Similarly, in Mercado v. Transport of New Jersey,
176 N.J. Super. 234 (Law Div. 1980), the mother of the eight-year-old
decedent did not witness her child being struck by defendant's
bus, but learned of the accident moments later when her daughter
told her what had happened. The plaintiff ran outside and saw
her son lying in the street, unconscious and severely injured.
The court held that the mother's observation of the child at the
accident scene shortly after the actual impact satisfied the
requirements of Portee, notwithstanding that the mother had not
observed the impact or the allegedly negligent conduct of the
defendants. Id. at 238.
Our holding in Portee relied significantly on the California
Supreme Court's decision in Dillon v. Legg,
68 Cal.2d 728,
441 P.2d 912,
69 Cal.Rptr 72 (1968), which held that a bystander's
cause of action for emotional-distress damages depended on three
factors:
"(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."
[Portee, supra, 84 N.J. at 97 (quoting
Dillon, supra, 68 Cal.
2d at 740, 441
P.
2d at 920, 69 Cal. Rptr. at 80).]
Applying the Dillon guidelines, a California appellate court had occasion specifically to consider whether in a malpractice context Dillon requires that the plaintiff observe and be aware of the negligent act as a prerequisite to recovery. In Mobaldi v. Board of Regents, 127 Cal. Rptr. 720 (Ct. App. 1976), overruled on other grounds, Baxter v. Superior Court, 19 Cal.3d 461, 563 P.2d 871, 138 Cal. Rptr. 315 (1977) (in banc), a foster mother brought an action against a university medical center and two physicians to recover emotional distress damages on the basis of injuries inflicted on a foster child by an injection of overstrength glucose solution in the course of a pyelogram, an x-ray procedure designed to enhance the visibility of the organ to be studied. The procedure contemplated injection of a dye as part of a five-percent glucose solution, but a physician mistakenly used a fifty-percent glucose solution. While in the presence of his foster mother, the child began to breathe peculiarly. In a short time, the child became spastic and convulsant, and eventually comatose. The child suffered
irreversible brain damage, and became quadriplegic, permanently
blind and severely retarded. The foster mother's complaint
sought, among other relief, emotional-distress damages because of
the depression and distress she experienced as a direct
consequence of witnessing the child's injury.
In determining whether the plaintiff satisfied the Dillon
guideline that her distress result from "a direct emotional
impact * * * from the sensory and contemporaneous observance of
the accident," Dillon, 68 Cal.
2d at 740, 441 P.
2d at 920, 69 Cal.
Rptr. at 80, the court distinguished between requiring
observation of the act of malpractice and observation of its
consequences:
Foreseeability depends upon what the
emotionally traumatized plaintiff observes.
It is observation of the consequences of the
negligent act and not observation of the act
itself that is likely to cause trauma so
severe as to result in physical injury.
So long as the plaintiff's observation
of the results of the defendant's infliction
of harm upon another is direct and
contemporaneous, there is no significance in
the plaintiff's lack of awareness that the
defendant's conduct inflicting the injury is
negligent. To reason otherwise would deny
the protection of Dillon to a mother
observing a child killed by a driver, whose
only negligence is his intoxication, simply
because the mother can not be aware of the
fact of drunkenness until after the accident.
In Ochoa v. Superior Court, 39 Cal.3d 159, 703 P.2d 1, 216 Cal. Rptr. 661 (1985), the California Supreme Court endorsed that aspect of the holding in Mobaldi, describing as anomalous a
requirement that a "plaintiff must be aware of the tortious
nature of defendant's actions." Id. at 170, 703 P.
2d at 8, 216
Cal. Rptr. at 668.
Our holding in Frame, supra, should not be understood to
impose a requirement, in all cases involving bystander emotional
distress claims based on malpractice, that the bystander observe
both the malpractice and its consequences. The requirement that
the bystander be aware of the malpractice and its consequences
was introduced in Frame as an accommodation, in recognition of
the fact that many malpractice cases would not involve
"observation of the death or injury at the scene of the
accident," Portee, supra, 84 N.J. at 101, in a context
sufficiently shocking to satisfy the Portee guidelines. We noted
in Frame that
diagnosis is an intellectual undertaking,
requiring the physician to analyze symptoms
and reach a conclusion. The nature of a
misdiagnosis is such that its results may
neither manifest themselves immediately nor
be shocking. Hours, days, or months may
separate a misdiagnosis, the manifestation of
the injury to the patient, and the family
member's observation of the injury. Thus,
the event may not cause the simultaneous
concurrence or rapid sequence of events
associated with a shocking event. The
observing family member will not be exposed
to the harm of seeing a healthy victim one
moment and a severely injured one the next.
To illustrate its point, the Court's opinion in Frame reviewed a number of malpractice cases in which a bystander's
claim for emotional-distress damages had been denied. Id. at
645-47. We noted that
the common thread running through these cases
is that a misdiagnosis normally does not
create the kind of horrifying scene that is a
prerequisite for recovery. Rarely will a
member of the patient's family
contemporaneously observe the immediate
consequences of the defendant's misdiagnosis,
and even more rarely will the results of the
misdiagnosis be the injury or death of a
loved one contemplated by the gruesome scene
portrayed in Portee.
Accordingly, the Frame opinion offers a modification of the
standard Portee framework, to permit bystander recovery of
emotional-distress damages in a malpractice context that does not
meet the Portee guidelines: "In an appropriate case, if a family
member witnesses the physician's malpractice, observes the effect
of the malpractice on the patient, and immediately connects the
malpractice with the injury, that may be sufficient to allow
recovery for the family member's emotional distress. Such an
event could be shocking." Id. at 649.
In my view, Frame's modification of Portee should be
understood as an exception from, not as a substitute for, the
Portee guidelines. If in a malpractice case the family member
does not observe directly the act of malpractice, but directly
witnesses the death or serious bodily injury resulting from the
malpractice in a setting that satisfies Portee's contemplation of
a traumatic emotional event, 84 N.J. at 99-101, a requirement
that the observer also have witnessed and been aware of the
malpractice appears to be redundant. As the court noted in
Mobaldi, supra: "It is observation of the consequences of the
negligent act and not observation of the act itself that is
likely to cause trauma so severe as to result in physical
injury." 127 Cal. Rptr. at 727.
That principle has specific relevance to the facts before
us. Whether Mrs. Gendek was aware that the pediatric nurses had
deviated from generally accepted standards in the hours following
her son's birth is of limited significance when compared to the
trauma that she claims to have experienced the following morning
when she was summoned to the nursery to watch a team of
physicians attempt unsuccessfully to resuscitate her baby in time
to avoid irreversible brain damage.
We noted in Frame that the line-drawing responsibility of
courts, in distinguishing recoverable claims from those in which
compensation is denied, invites claims of arbitrariness. 115
N.J. at 649. To avoid arbitrary rules and results, we must on
occasion clarify lines previously drawn to serve better the
interests of justice. The Court should make clear that a
bystander's medical- malpractice action for emotional-distress
damages that satisfies the Portee standards should succeed even
if the plaintiff was unaware of the malpractice when it occurred.
I would reverse the judgment of the Appellate Division and
remand the matter for trial.
NO. A-36 SEPTEMBER TERM 1994
ON APPEAL FROM Appellate Division, Superior Court ON CERTIFICATION TO
JEAN GENDEK, Administrator ad
Litem of the Estate of Gregory
Gendek and JEAN GENDEK and
STANLEY GENDEK, Individually,
Plaintiffs-Appellants,
v.
ESTRELLA POBLETE, C. GRAUER,
RAQUEL ABARY, ANTHONY BRICKMAN,
THE ABC CORPORATION and JOHN
DOES I through V and JANE DOES
I through V,
Defendants,
and
MERCER MEDICAL CENTER,
MARY ANN FARLEY (GREHAN), P.
PHILLIP, D. JOHNSON, JEAN
MAGAULLIRI, and TRACY GERGEL,
Defendants-Respondents.
DECIDED March 15, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice Handler
CONCURRING OPINION BY
DISSENTING OPINION BY Justice Stein