*1 44 Act, great
This
shown
Hills Dev.
Court has
deference to the
Bernards,
1, 21-25,
Township
Co. v.
N.J.
510
A. 2d 621
of
(1986),
it,
Van
v.
implementation
and
Dalen
to COAH’s
Township Washington, 120 N.J.
234, 244-47,
GARIBALDI, J., joins in this concurrence. GARIBALDI, JJ., POLLOCK concur result. For reversal and WILENTZ, Justice remandment —Chief CLIFFORD, HANDLER, POLLOCK, O’HERN, Justices GARIBALDI STEIN —7.
For affirmance —None.
Argued September 1993. 1 992 *4 argued (Mr. Vincent J. appellants Ciecka the cause for Ciecka, attorney; Venables, Mr. Ciecka Janice on the briefs).
Stanley argued P. respondent Stahl the cause for William E. Lovett, Jr., (Mr. Stahl, attorney; M.D. Mr. Stahl and Sharon brief). Galpern, K. on the
Joel Korin argued respondents B. the cause for John H. Osier, III, M.D., Osier, P.A. and John H. M.D. (George & Korin, attorneys; Chant, Mr. Korin and Dale on Verfaillie brief). *5 Merovitz, Mintz, Law Jeffry and Janet submitted A. Samuel Association of Trial Law- on behalf of amicus curiae a brief (Mintz Merovitz, attorneys). yers Jersey of America-New & a brief on behalf amicus curiae David Stone submitted S. (Stern Greenberg, attorneys). Society Jersey New & Medical by opinion of the was delivered The Court POLLOCK, J. respond family tort again we are summoned to
Once
alleged
malpractice.
of medical
The case
arising from an
act
tragic
baby
inflammatory setting
of the
loss
arises
parents
whether
can
physician neglect.
The issue is
due
malprac-
caused medical
recover for their emotional distress
daughter.
in the
and death of their
tice
birth
Bennett, 111 N.J.
In an parents’ court should have considered found that the trial not as a direct claim under Giardi claim for emotional distress Kothari, 115 N.J. an indirect claim under Frame v. na but as (1989). support did not Finding A. that the facts 560 2d 675 Frame, Appellate Division dis of action under a cause court also parents’ emotional-distress claim. The missed wrongful-death awards as pain-and-suffering and set aside the excessive, to the Division for a and remanded the matter Law liability damages. granted We new trial on both certification, 2d 366 127 N.J. 606 A. Careys’ petition part, remand the (1991), part, reverse in and now affirm jury hold that a could find matter for a trial on all issues. We Carey on their claims for emotional distress. for Mr. and Mrs.
I During plaintiff Carey, the summer of JoAnn who I, from type pregnant suffers diabetes mellitus became for the in years. treating physicians third time four Her defen- were III, internist, dant doctors John H. an Osier and William E. Jr., Lovett, an gynecologist, obstetrician and both of whom had managed Carey’s pregnancies. Mrs. first two Dr. Osier had diabetes, Carey also treated including Mrs. her two inci- ketoacidosis, dents of a dangerous body diabetic increase acid. Dr. Carey’s gynecologist Lovett had been Mrs. since the early In child, 1970s. October 1980 he had her delivered first Annette, who premature was one-month and suffered from toxemia, healthy. but Carey's was otherwise Mrs. preg- second nancy in miscarriage ended in March 1983. After the events action, subject gave that are the of this Mrs. Carey birth to daughter, another prematurely who was born one-month but in good health. 9, 1983,
On twenty-sixth October in the week of her third pregnancy, Carey feeling Mrs. awoke tired and short of breath. her sugar, She tested blood which Attempting was elevated. to sugar, lower her blood dosage she increased her of insulin and throughout day. drank bouillon Her efforts were unsuc- cessful, Carey, and at next morning, 8:30 the Mrs. feeling still ill, called Dr. Osier.
Dr. answering call, Osier’s Carey’s service Mrs. received. receptionist phoned at 9:00 a.m. his Carey reported her. Mrs. symptoms receptionist, her to the who told her that Dr. Osier During would call. day, Carey Mrs. called Dr. Osier's times, office several she but did not hear him until ten night. o’clock that Dr. Osier testified that had attempted he unsuccessfully Carey during call day. Mrs. Carey’s
Mrs. p.m. Dr. Osier’s accounts of the 10:00 telephone call differ. Dr. Osier claims that he had told Mrs. Carey go hospital immediately, to the but that she had Carey refused. Mrs. asserts that he report had told her to telephone morning, 11. After hospital the next October admission, Carey’s under Dr. call, Mrs. arranged Dr. Osier day. Dr. care, Jersey Hospital the next Osier Lovett’s West telephoned Dr. during evening he had also testified that message about Mrs. answering and had left Lovett’s service testified, however, Carey’s imminent admission. Dr. Lovett message. no that he had received such Jersey from West morning of someone October On hospital report her to to the Hospital Carey Mrs. and told called p.m. early Carey was admitted at 1:00 afternoon. Mrs. of “uncontrolled diagnosis indicate a Her admission records diabetes, p.m., At 2:30 Dr. Robert pregnant.” six months *7 Osier, Gerard, covering examined for Dr. an internist who was Carey suffering as Carey. diagnosed Mrs. Mrs. Dr. Gerard woman, ketoacidosis, which, in a diabetic from an attack frequently causes intrauterine death. Carey experiencing was
Dr. also noted that Mrs. Gerard sounds, listened for fetal heart contractions. He intermittent earlier, on a routine exam one week but could find none. After baby’s Carey that had told Mrs. October Dr. Lovett hump” as far strong and that she was “over heartbeat was pregnancy a complications of diabetic dangerous as the most were concerned. him Dr. Lovett to inform p.m., hospital called
At 3:00 Carey, her to be Mrs. had found Gerard had examined Dr. any ketoacidosis, not detected and had experiencing diabetic call, Lovett telephone on Dr. Based fetal heart tones. diagnosis of fetal demise. made a tentative strong later, experiencing Carey Mrs. was hour One-half personnel her to labor Hospital transferred contractions. Dr. hospital and notified Lovett. delivery floor of the Collins, Lynn the senior labor phoned Lillian Lovenduski Nurse one nurse, expect Carey. Mrs. No her to delivery to tell By p.m., Mrs. Carey’s labor. 4:30 attempted arrest Mrs. apart. minutes to three Carey's contractions were two p.m., Marjo- Between 4:30 and 5:00 nurses Sofia Roache and attempted They rie Levins find fetal heart sound. used a transducer, a physical impulses device that converts such as signals monitoring sound into electronic for a fetal system. They doppler, then used a an electronically-amplified stetho- scope. attempts All were unsuccessful. Nurse Collins was summoned, but she too was unable locate a fetal heart p.m., telephoned Carey sound. At 5:00 the nurses Mr. and Dr. told Carey Lovett and them that Mrs. going was into labor. Dr. Lovett Carey advised the nurses to allow Mrs. to deliver the expected injections stillborn child. He ordered of Demerol and Carey’s pain. Vistaril to relieve Mrs. approximately p.m., Gregory Carey
At 5:30 arrived at hospital and went to the labor room. Nurse Collins informed Careys that there were no fetal audible heart tones and that Carey fetus was dead. Mrs. insisted that the fetus was moving. alive and that she could it Carey’s request, feel At Mr. again tone, using nurse Collins tested fetal heart both the doppler. transducer and the She also allowed Mr. and Mrs. Carey to negative listen to the Carey again results. Mrs. accept refused to that the fetus dead. The was nurses did not use other available and more determining accurate methods of viability, fetal such as x-rays. ultrasound or A nurse Carey then escorted Mr. from the labor room and asked him Carey to convince Mrs. that the fetus dead. was *8 explained nurse Carey’s baby’s that Mrs. denial of the death natural, was but try that he should by telling calm his wife her to listen to the Carey nurses. Mr. complied with the request. tearfully nurse’s Mrs. Carey baby maintained that her was alive. The perform any nurses did not other test diagnosis confirm the baby that the was dead. Lovett,
Dr. hospital personnel whom periodically, had called not hospital had come to during Carey’s the Mrs. labor. The hospital approximately records indicate that at p.m., 7:45 some- injected Pitocin, one Carey drug Mrs. with a that increases one, however, delivery. No admits induces contractions and p.m. and 9:00 injection. Between 8:30 authorizing giving or the stronger. According grew Carey’s contractions p.m., Mrs. Carey’s broke Mrs. water to Mr. an unidentified nurse Carey, delivery. dispute assertion. nurses speed The hospital, to the eight being admitted p.m., 9:06 hours after At baby position. in a Neither Carey delivered breech Mrs. Levins, hospital personnel only the Collins nor nurse nurse birth, baby dropped delivery. in the The at the assisted present cut the umbili- unsupported onto the labor bed. Nurse Collins girl. baby Nurse Levins announced that the was cal cord and On his baby. if wife’s Carey Mrs. she wished hold asked doctors, he behalf, Like the nurses and Carey Mr. declined. baby that the was dead. believed pink, was not the Her color at birth baby
The was alive. black, baby. Nurse blue, expected for a stillborn purple or Carey, believing the room. Mr. still baby Levins took the healthy, looked wondering why she baby was dead but the cause of requested her to determine that a doctor examine Carey doctor would look at Assuring Mr. that a death. Roache, Levins, baby took the joined now nurse baby, nurse Still, or no one realized door. into another room and closed the baby was alive. suspected that the however, scale, baby weighing placed on the
When baby’s umbilical palpated gasped for air. Nurse Collins Levins heart beat. Nurse to detect a fetal stump and was able nursery. neonatal the infant to the rushed room, nurse walking back to the labor Carey Mr. was While added, baby, she the child was alive. Levins told him that Carey Mr. advised not very soon die. She was sick and would alive, he soon baby would was because to tell his wife that Carey had died. Mr. that the child thereafter have to tell her tell He did not to be with his wife. to the labor room returned her their child was alive. *9 Pathikonda, obstetrician, staff Dr.
The Meena came to Mrs. help Carey's Carey placenta. room to Mrs. deliver the After delivery, personnel Carey recovery hospital moved Mrs. to a Finally, Carey room. Dr. Lovett arrived. He informed Mrs. baby they sick and very that the was alive but that should all pray Careys happy for her. The and were relieved that their Amanda, later baby, named was alive. Costarino, Jr., perinatologist neonatologist,
Dr. Andrew a and treating physician expert who testified both as a as an and plaintiffs, passed witness estimated that three minutes had summoning call baby’s between birth and the him to the nursery. arrived, baby When he was limp blue. He any place could not hear preparing heartbeat. While a tube baby’s windpipe, Dr. Costarino that her noticed vocal moved, indicating chords that she was still alive. After he resuscitator, inserted the tube baby’s and connected it rapidly pink, color returned to Dr. Costarino detected her placed tone. Through heart a catheter in the umbilical-cord calcium, stump, Dr. glucose, Costarino administered and bicar- drug He bonate. also administered a to counteract the effects given Carey. of the Demerol Vistaril had been to Mrs. baby was placed then on a mechanical given ventilator and night Jersey antibiotics. That she was transferred from West Hospital Philadelphia. Children’s Hospital On October the doctors at Children’s discovered baby that the hemorrhaging was from both sides her brain. They told Mr. Carey severely the child was brain damaged longer. not live much Carey reported and would Mr. this to his wife, hospitalized was Jersey. who still in West doctors,
On Amanda alive. October was still Her howev- er, her gave improvement. profoundly no chance of She was damaged vegetative and in consulting After state. with the Hospital, doctors at Careys Children’s decided disconnect daughter their life-support day, machines. That Amanda her died in mother’s arms. *10 individually general Careys, and as administrators
The Osier, Drs. prosequendum, sued Lovett administrators ad nurses, hospital well as physicians, certain as various other administrators, of the fetal monitors. and the manufacturers trial, granted to during the motions the court Before defendants, no jury returned a and the verdict dismiss some against jury returned a verdict action others. cause for Osier, respon- imposing eighty per cent against Drs. Lovett and twenty per cent on Dr. Osier. There- sibility Dr. Lovett and on after, not- judgment defendants’ the court denied motions verdict, trial, withstanding new or remittitur.
II
poses
question
parents, without
This case
whether
themselves, may
any
injury to
attempting
prove
physical
malprac
by medical
for their emotional distress caused
recover
baby.
resulting
premature
in the
and death of their
tice
birth
recognized a direct
in which we have
They rely on those cases
to maintain a
permits
them
duty extending
parents
example,
“wrongful
in a
distress. For
claim for emotional
their
case,
parents to recover for
have allowed
birth”
we
physicians
negligent
failure of
emotional distress caused
amniocentesis,
availability
there
the mother of the
to advise
right to
to abort a fetus afflicted
by depriving her of the
choose
Allan,
421, 404
80 N.J.
Syndrome.
with Down’s
Berman v.
See
right
(1979).
acknowledged parental
8
We also have
A.2d
when medical
result
for emotional distress
recover
Giardina,
111
supra,
N.J. at
baby.
in
of a
See
ed
the stillbirth
415,
right of
Similarly,
recognized
have
A. 2d 139.
we
545
from the failure
parents
their emotional distress
to recover for
corpse after he was brain
hospital to release their son’s
Hosp., 109
Kennedy
F.
Memorial
v. John
dead. See Strachan
(1988).
523, 538,
A line of cases injury to another. The resulting from their emotional distress 56
progression
this
denying
line of cases has been from
recov
ery
circumstances,
injuries
for “indirect”
in all
see
v.
Graf
303, 309,
(1964),
Taggert,
finding
Of we have held that under limited misdiagnosis circumstances medical of one member of a family may entitle another member recover his or her Frame, supra, 638, own emotional distress. 115 See N.J. 560 2d 675. Recognizing injury A. that the death or serious of a family may produce distress, member often emotional some severe, quite member, times in recovery another we limited of shocking “observation events that do not occur in the daily 644, lives people.” of most Id. at 560 In A. 2d 675. so limiting recovery, we recognized although “misdiagnosis a may tragic lead consequences,” misdiagno nature of a “[t]he may sis such its results neither manifest themselves immediately shocking.” be nor Ibid. Our endeavor has been recognition psychic to balance injury of with concerns for “speculative punitive Portee, or liability,” results supra, 84 N.J. 97, 521, genuineness claim, at 417 A. 2d for the of the 365, Buckley, 111 supra, 544 N.J. at A.2d 857.
The characterization a claim as “indirect” and of the “bystander” claimant as a restricts the class of claimants who may recover Originally, for emotional distress. no claims for emotional compensable distress accompanied by were unless physical impact. Dam, v. Eyrich Eyrich See 193 N.J.
57
denied,
252,
244,
N.J.
(App.Div.),
In
which
baby,
concluded
of the
we
arising
distress
out
stillbirth
itself consti
experience
pregnancy
and child birth
that “the
in the face of
immediacy
presence of
claimant
tutes the
that was
personal injury or death of a loved one
inflicted
419-20,
139. We
at 417 A. 2d we have injury family may the to one another member cause member Giardina, 412, 139; 111 supra, suffer. See N.J. at 545 A.2d 523, Strachan, 346; Schroeder, supra, 109 at 538 2d N.J. A. 53, 834; Berman, supra, at 2d supra, 87 N.J. 432 A. 80 atN.J. 421, genuineness 404 8. about A.2d Concerns the of indirect claims for emotional have led to limitations on right distress to recover to situations in which the is distress severe or is accompanied by physical injury. Additional concerns about speculative punitive liability results or led us to have limit such shocking claims to the observation of events. With medical- claims, malpractice required we have that claimants observe contemporaneously the act and the resultant injury. present parental case involves claims emotional dis by malpractice
tress
on
during
caused
the mother and the fetus
Any
injures
time a
negligently
childbirth.
doctor
child it
parents
foreseeable
will suffer emotional distress.
Indeed, parents
anyone
likely
anytime
injures
will
suffer
their
Portee,
recognized
child. As we
“the
or
death
serious
family
of an
always
expected
intimate
member will
be
99,
threaten one’s emotional welfare.” 84
417
N.J. at
A.2d 521.
Although
real,
severe,
such emotional distress is
even
see
Green,
13,
210,
supra, 85
N.J. at
A.2d
we have allowed
only
recovery
for “negligent conduct which strikes at
plaintiff’s
security,” Portee, supra,
emotional
basic
at
99, 417
521.
only
genuineness
A.2d
Our concern is not
with
speculative
damages
emotional-distress claims and
but also
liability
with the effects of the expansion of
on the medical
profession
Frame,
649-50,
society.
supra,
See
Our that a and fetus so unite them emotional ties between mother adversely any malpractice that physician anticipate should mother. will emotional distress to the affects the fetus cause an act of parents adjust who time to between Unlike have injury, expectant malpractice a resultant on their child and effect, In be- is immediate. connection mother’s distress “indirect” baby merges so “direct” and tween mother her disappears. claims that the distinction and her pregnant woman unique relationship between a requirements of an baby for the mitigates the need additional by physical Bound “indirect claim” for emotional distress. closely joined that we ties, baby mother and are so emotional require not mother be “shocked” need relationship bespeaks baby. The maternal-fetal on claim for emotional distress. genuineness of an otherwise-valid live, the birth of a but preparation To extent that lack of relevant, requirement it is subsumed impaired, child is pro- requirement That severe. that the emotional distress be genuineness to substitute guaranty vides sufficient *14 60 claimant,
physical injury to the which until now has been an of a direct Strachan, element claim for emotional distress. See supra, 109 N.J. at A. 2d 346. 538 against A counsels requiring further consideration that the contemporaneously malpractice mother be aware of the and the injury may her fetus. A woman not to be choose anesthe of on baby tized because her concern for the effect her or participate consciously because her desire to in the child’s requirement contemporaneous A birth. observation could objectives by providing physicians both disserve with an incen tive to anesthetize the Burgess Superior woman. See v. Court, 1064, Cal.Rptr.2d 615, 2 Cal.4th 9 831 P.2d (1992). require the contemporaneously mother be To. aware of the obstetrician’s and the to the both unnecessary fetus is and unwise.
Similarly, a woman who has been told that her fetus is dead
prove
need
subsequently
not
that she
on learning
was
shocked
child
impaired, particularly
the
had been
alive but
born
here,
when,
the
for
on a
days
life-support
as
child survives
ten
circumstances,
system
then
and
dies.
In those
one need not
worry
purpose
whether
mother’s distress is real. No useful
by requiring
mother
prove
served
that she was
in
“shocked”
she
unprepared
sense that
was
the result.
v.
See Friel Vineland
& Gynecological
Obstetrical
Profession-
Association,
579, 582,
N.J.Super.
(Law
al
A father’s claim
presents
for emotional distress
different
considerations. No
intimately
matter how
involved
the birth
be,
of his child the
may
father
his role differs from that of the
In determining
physician
mother.
whether the mother’s
or
father,
duty
recognize
obstetrician owes a
we
the ab-
physician-patient relationship between the father
sence
however,
relationship,
such a
does
The absence of
doctors.
duty extending
necessarily preclude the existence of
not
physicians
to the father.
“direct” and “indirect” claims
emotional
Our decisions on
Carey’s
Mr.
claim. As
light
shed
on the definition of
distress
claim,
distress must be severe.
mother’s
the father’s
with the
father, moreover,
family
intimate
relation
must
an
stand
Giardina,
at
ship
baby.
111 N.J.
to the mother
*15
346;
534,
Strachan,
at
supra, 109 N.J.
538 A.2d
(citing
A.2d 139
521; Friel,
Portee,
97,
supra, 166
supra,
at
417 A. 2d
84 N.J.
extent,
587-92,
147). To
the
at
400 A. 2d
this
N.J.Super,
duty of
care to
extending the doctor’s
reasonable
fairness of
family ties
the victim
strengthened by
the
is
the
between
father
419,
Giardina, supra, 111
at
545 A.2d
father.
the
satisfy
require
that
many
that
fathers will
anticipate
139. We
sufficiently into the treatment
When the father is drawn
ment.
him like
baby,
duty
the
to
is
physician’s
of the mother and the
arise, however, in
may
which
that owed to the mother. Cases
intimacy
support a cause
relationship
the
the father’s
lacks
the inherent
fetus. Because of
injury
of action for
the
believe that
father and mother we
difference
the role
the
per
requirements
the
the father’s claim should be limited
Thus, the father
taining
malpractice.
to other forms of medical
malpractice and its ef
contemporaneously observe the
must
643,
Frame,
2d
supra,
The *16 effects on by the victim. He must also shocked be the results. case,
In charge this trial court jury the did not the it that must find contemporaneously that the father had the observed act of charge its effects. Nor did it that compensable sustain a claim for emotional distress the father Although must supports Carey’s be shocked. the record Mr. claim in respects, charge both the to his as claim was errone- ous.
Ill A by claim pregnant a woman or husband her for emotional distress by alleged malpractice during caused medical childbirth readily Indeed, can response. volatility evoke an emotional the circumspection recognizing in such claims underlies our of power play on Precisely the of such claims to them. because of others, to their of trial courts must be sensitive sympathies the obligation impartial adjudicating remain when those claims. record, the reviewing Appellate
After the Division concluded impartiality. its the court lost sense of The that trial had Appellate Division wrote: documenting grievance their that Lovett’s and Osier's briefs set forth details jury events and tainted the testimony
numerous inflammatory improper prejudiced judge of the which defendants. Because the trial exhibited bias judge acting out both and Osier that the was of shared Lovett perception by alleged have examined instances of we the bias, intemperate personal carefully Although conduct the trial it would serve no useful transcript. purpose exchanges the we note that there are numerous record, all the actual on spread interjected judge the trial crossed the line improperly instances where case. well have manifested itself the himself into the This interference could judge’s jury shocking damage the In the event, awards returned here. by any acting given that he was not actions here well have counsel the may impression judge all times in with “A ... should conduct himself at impartiality. complete integrity of a confidence in the and impartiality manner promotes public judiciary.” 2A. the Code Conduct Canon Judicial leads to the same conclusion. As Our review of record us trial, dynamics may evaluating cold as record be impermissibly in favor of judge it that the trial tilted reveals constant transcript reveals his plaintiffs. reading A and cross-examination intrusions into defense counsel’s direct exacerbated The harm from those intrusions was of witnesses. unsolicited, to attempts, many aid court’s numerous counsel, attorney, civil in his examina- plaintiffs’ certified trial tion of witnesses. judicial appeared early in the trial.
The restraint need apparently left one plaintiff’s counsel opening statement objected opening to the as juror weeping. Defense counsel Later, unsuccessfully for a inflammatory and moved mistrial. defendants, crying during plaintiffs’ counsel was according Although trial court Carey. Mr. the direct examination of examination, it over- recognized nature of the the emotional inflaming objection that counsel’s conduct was ruled defense jury. *17 Throughout trial, the five-week constantly repri- the court manded defense jury counsel before the and chastised them at During side bar. the course of one exchange, rancorous counsel, court admonished you’re defense going “This time get goes record, it. That on the too.” point,
At another precluded the court Dr. from testify- Lovett ing behalf, expert as an on his own thereby restricting him testifying from as a fact Although witness. permit- the court testify ted Dr. Lovett to that he knew the standard of care applicable to gynecologists, obstetricians and prevented it him testifying from whether his conduct satisfied that standard. Similarly, permitted the court defense counsel to ask Dr. Lovett why he did hospital not come to the to determine personally the fetus, status of the but refused to him testify allow whether his conduct had deviated from practice. standard medical
Ordinarily,
competency
to testify
witness
as
expert
an
is remitted to the sound discretion of the trial court.
discretion,
Absent a clear abuse of
appellate
an
court will not
interfere with the exercise of that
Henningsen
discretion.
v.
Motors, Inc.,
358, 411,
(1960).
161 2dA. 69
Bloomfield
Nothing, however, prevents a medical doctor from testifying as
expert
an
in his own
case. Neither Rule
Evidence
Rule
.of
Evidence
nor
prohibits
case law
a defendant
testify
from
ing
expert
as an
witness on his own behalf if the defendant is
qualified.
otherwise
Franciosi,
See Nastri v.
N.J.Super.
93, 94,
(App.Div.1982)
65 (1961). 128, 136,167 weight The of A .2d625 Rosenfeld, 34 N.J. course, jury. the any testimony, of is for such - Lovett, Here, physician, practiced had Dr. a licensed opinion many years. qualified He was to offer an obstetrics for the issue whether his applicable standard of care and on on the permit him to that standard. The failure to conduct conformed discretion. testify was a mistaken exercise of distress, charge emotional to which defense The court’s on verdict, constituting suggested a directed objected counsel as up plaintiffs mind that were entitled that the court had made its part, charged jury: court recover. In relevant involving recognizes this the birth of a The law in circumstances such as genuine of and serious mental there is an likelihood baby especially [sic] The circumstances that existed here. distress which arises from special damaged expecting dead fetus and the but live after birth of severely baby is of the until the time of death continued observation of the condition baby up genuine to the mother. She severe and recognized as a direct suffers anguish injuries mental this in the emotional distress and from form of by recognizes, experienced sequence suffering, law is also events. This our of relationship. family or the and arises reason husband of father recompensed anguish They the mental and emotional are entitled to be they recollection and will continue to in their have future of suffered suffer events, n these [Emphasis added.] jury’s from the Perhaps subconsciously, the court removed parents’ of the nature of the consideration its determination the extent to which their distress was emotional distress and each defendant. related to the conduct of can an art and a science. Sometimes we Trials remain both the trial than we can “know separate judge no more Yeats, Among Butler the dancer from the dance.” William (1927). Children, of the The Tower Our review School passion proceeding us conclude that the record leads court, which, perhaps without real- adversely affected the trial it, liability izing feelings to infect the trial both allowed its damages.
IV questions The final issue the amount of the verdicts. verdicts, judicial reviewing jury limited, The role in although system justice. essential to a rational A trial court should not disturb the amount of a verdict unless it constitutes a injustice judicial manifest that shocks the conscience. Taweel Shoprite Supermarket, 227, 236, v. Starn’s A.2d (1971). appellate role is even more restricted. When *19 reviewing award, damage the amount of a an appellate court appropriate should show deference to the trial court’s “feel of Co., 588, 600, the case.” Baxter v. Fairmont Food 74 N.J. (1977). A. 2d 225 role,
Even with so limited a we find that the verdicts $1,000,000 cannot stand. We turn first to the awards of for Carey’s $500,000 Mrs. emotional distress and for that of Mr. trial, Carey. ordering In plain a new we remain sensitive to tiffs’ baby’s tribulations and their irrevocable loss from the Although death. Carey’s Mr. and Mrs. distress is understanda ble, support it will not Initially, they the awards. consulted Dr. Sadoff, psychiatrist. a forensic He referred Carey Mrs. to Dr. Berson, Janet psychologist. a clinical Dr. Berson saw Mrs. Carey 20, 1983, ten between times December and June 1984. At the in January Carey visit complained Mrs. that she tense,” “very was “crying jags,” had and experiencing was migraine headaches, recurrence of from which she had suffered visit, “on and off for ten years.” to fifteen After that Mrs. Carey returned By May, to work. when Carey Mrs. was pregnant, Dr. improved.” Berson found her to be “much After session, Carey again June Mrs. did not see Dr. Berson until 28, 1989, March Carey when Mrs. consulted her because of an “anxiety reaction” present litigation. to the Mr. Carey accom panied his wife at the again initial visit and on March 1984. He never consulted Dr. any Berson alone. Absent is evidence psychiatric hospitalization significant or interference with lifestyle employment relationships or of either Mr. or Mrs. partiali- only prejudice, Carey. The awards can be attributed record, convincingly clearly “it and passion. From the ty, or law,” miscarriage justice under the appears there was a 4:49-1, trial. compels a new R. which $550,000 applies to the award of
The same conclusion An suffering, during ten-day her life. baby’s pain for only suffering pain suffering appropriate award for 435, 450, Falco, N.J.Super. Eyoma that is conscious. v. carefully qualified Dr. (App.Div.1991). A. 2d 653 Costarino baby likely experienced “some testimony by stating that the his may unconscious to the pain.” He added that “she have been things anxiety fear and and the experience so in a sense of the may not pain, she have been usually that we associate with Furthermore, way.” as the in that same experiencing them deteriorated, suffering Anoth baby’s her diminished. condition Richardson, experts, Dr. concluded plaintiffs’ er of medical pain” experiencing was “some although baby probably Hospital, probably she was was taken to Children’s when she day. Consequently, we feeling any pain as of the sixth not suffering was excessive. pain conclude that the verdict $450,- concerning reach a similar conclusion We *20 Damages baby’s wrongful death. verdict for the infant, wrongful-death damages like wrongful death of an parents When sue to economic matters. generally, are limited child, may damages include wrongful death of a their for the chores, help with household pecuniary value of the child’s financial contribu anticipated child’s pecuniary value of the tions, companionship, pecuniary value of the child’s and the grow guidance, parents as the including her advice and his or 11-13, 210; Green, 424 2d see at A. supra, 85 N.J. older. See Ctr., N.J.Super. Elizabeth Medical also Davis v. Gen. (Law Div.1988) (finding parents’ per quod
23,
by the death recovery led to the Indeed, any such the absence 210. in emotional loss Giardina. parental claim for recognition of a evaluating economic value problem inherent much, anything, if No one can know life is obvious. newborn’s That worth. or her future economic infant and his about the however, preclude any award. Some not difficulty, should inferences, estimate though the “even appropriate is award Green, supra, 85 are based on uncertainties.” damages, 15, 424 .2d 210. at A that a verdict of forced to conclude are nonetheless We miscarriage $450,000 to constitute so excessive as close, family was that their justice. Plaintiffs demonstrated ways. The in various the others supporting each member the infant’s understandably silent about otherwise record is support proof cannot worth. Such slender potential economic verdict, case. even in this sad generous a so it was the demonstrates of the award The amount that the entire passion or prejudice, partiality, product of .2d Taweel, at 276 A supra, 58 N.J. verdict was tainted. may the trial court’s the taint have been The source of 861. death, baby’s or tragic of the birth or the nature conduct partiality, or event, prejudice, the demonstrated In either both. ibid. trial on all issues. See passion requires a new legislatures in some states that the concluding, In we note malpractice. recovery for medical imposed caps on the have (limiting 6-5-544(b), (Supp.1987) non- See, -547 e.g., Ala.Code § $400,000 recovery medical damages and total pecuniary 09.17.010(a), $1,000,000); Alaska Stat. malpractice action to § $500,- losses to (b) (1986) (limiting recovery for non-economic 1992) (West (limiting damages 000); 3333.2 Cal. Civ.Code § $250,000); 13-21-102.- Colo.Rev.Stat. non-economic losses to § loss- 5(1H3) (1993) damages awards for non-economic (limiting justifies $250,000 convincing evidence clear and es to unless *21 $500,000); award, Haw.Rev.Stat. limit is greater which case (1992) (limiting damages pain for and recoverable 663-8.7 § 1, 1993); $375,000)(repealed suffering to eff. Oct. Idaho Code $400,- damages (limiting non-economic to (Supp.1987) 6-1603 § 16-9.5-2-2(a) (Burns (limit- Supp.1986) 000); Ind. Code Ann. § $750,- any injury or death to ing total amount recoverable for 60-3407(a) (1985) 000); (limiting total amount Kan.Stat.Ann. § $250,000and total non-economicloss to amount- recoverable for B(l) $1,000,000); 40:1299.42 recoverable to La.Rev.Stat.Ann. § (West Supp.1987) amount recoverable for mal- (limiting total claims, care and related practice exclusive of future medical benefits, $500,000); 11— Ann. Md.Cts. & Jud.Proc.Code § 108(b) (1986) (limiting damages for non-economic for award 231, $350,000); Ann. ch. injury to Mass.Gen.Laws personal 1986) $500,000 (West “for (limiting plaintiffs award 60H§ suffering, companionship, loss of embarrassment pain and general damages jury unless the determines other items of bodily permanent impairment or loss or of a there is substantial special disfigurement, or other circum- function or substantial finding imposition of such in the case warrant a stances compensation deprive plaintiff just limitation would sustained”); (Supp.1986) 44-2825 injuries Neb.Rev.Stat. § (“The Hospital- under the Nebraska total amount recoverable providers all care Liability any Act from health Medical any resulting in Liability any Excess Fund for occurrence patient may five hundred or not exceed death any on or before December thousand dollars occurrence after any million occurrence December and one dollars for 1987) 1984.”); (Michie (limiting 41-5-6 KM.Stat.Ann. § persons all for or aggregate dollar recoverable “the amount as a arising any injury patient death to result or ($500,000) per five thousand dollars hundred [to] (limit- (1986) occurrence”); Ann. 21-3-11 Laws S.D. § Codified $1,000,- medical-malpractice cases ing damage total award 000); (Supp.1986)(limiting recov- Ann. 78-14-7.1 Utah Code § $250,000); malpractice actions ery for non-economic loses in 1984) (Michie (limiting total Ann. 8.01-581.15 Va.Code § *22 70 $1,000,- medical-malpractice
amount
in
recoverable
actions to
000);
(1986) (limiting
55-7B-8
amount recovera-
W.Va.Code §
damages
$1,000,000);
ble as
for non-economicloss to
Wis.Stat.
(West 1986) (limiting
893.55
Ann.
total non-economic dam-
§
$1,000,000).
ages
recoverable
however,
imposition
caps,
Legislature.
The
of such
is for the
purport
pass
constitutionality.
We do not
on their wisdom or
State,
(1985)(holding
See
v.
713
Mont.
P.2d 495
Pfofst
governmental liability
equal-protection
limit on
violates
clause
right
of state constitution and state constitutional
re
full
Olson,
(N.D.1978)
injury);
dress of
Arneson v.
2d
N
.W.
(striking
provider liability,
down limitation of health-care
stat
ing
preexisting right may
arbitrarily
limitation of
not
im
be
Usitalo,
posed);
Brannigan v.
134 N.H.
HANDLER, J., concurring. litigation,
In this is very Court confronted with a clear case of expectant committed on an mother days preceding infant,' weeks and throughout the birth of the itself, the event of during the birth and thereafter the brief time leading to the decency infant’s death. fairness and directly recognizing duty owing of care mother setting. beyond any doubt in this obvious characterizing the mother’s cause of The Court refrains action, “principles” that underlie her saying rather 57, 622 important the label. at A. 2d claim are more than Ante Nevertheless, imply duty seems to that the at 1286. Court *23 baby’s arising her her fatal the mother and claim owed “bystander” may analogous be more to those of condition patient herself. than apparent conceptualization of significance
The
of the Court’s
emphasis
the
to
mother’s cause of action is its
on
need
injury.
prove genuine and severe emotional
Extreme emotional
liability,
injury
required
bystander
as a
for
see Frame
basis
638,
Kothari,
(1989);
Jaffee,
675
Portee v.
v.
115 N.J.
560 A.2d
88, 101,
(1980),
417 A. 2d
as
as for tortious
84 N.J.
521
well
distress, see, e.g., Buckley
of
v. Trenton
infliction
emotional
(1988);
355,
111
course of
Court,
liability in
principles
bystander
of
order
has resorted to
an element of
injury
emotional
as
require genuine and severe
and severi-
genuineness
That the
the mother’s cause of action.
departs
dominant
emotional distress should remain
ty of the
concerning direct
prior decisions
from the Court’s
malpractice.
of medical
parents in the context
considered, addressed,
any
and overcome
con
fully
haveWe
tragic
occasioned
injury surrounding a
birth
cern that emotional
severity
level of
malpractice must reach a minimum
compensat
appropriate and reasonable basis
constitute an
wrong she has suffered. See Giardina
ing the mother for the
(1988);
Bennett,
412,
v.
73
malpractice
the
of
liabili
apprehension
expanding
over
effects
58,
ty.
at
The Court also
indirect
departs
that
respect,
In that
it
view
father.
doctor,
mishandling
on the
of
against
father’s
based
claim
owing to
may
duty
involve a
pregnancy,
his wife's
direct
Thus,
duty is owed
recognized
a direct
father.
we have
that
genetic counseling.
malpractice
consists of
the father where
339,
(1984);
Procanik,
Schroe
supra,
478 A.2d
See
97 N.J.
(1981); Berman,
der,
supra, 80
supra,
A.2d 834
87 N.J.
(1979). Implicit in those decisions
doctor in that counsels both and owes both of duty exercising medical care. We have them the reasonable duty similarly recognized directly owing that a is to the father Giardincc, tragic leading in the circumstances to a stillbirth. supra, 111 at A .2d 139. demonstrate that the father was facts this case
personally
directly
surrounding
in the
involved
events
during
pregnancy
her
treatment of the mother
birth of
the infant. The Court observes: “When the father is drawn
sufficiently
baby,
into the treatment of the mother and
physician’s duty
him like
that owed to the mother.” Ante
Court, however,
at
The circumstances of this case that a of reason- directly able medical care was undertaken and owed .to participating parent, father aas as it was to the mother. Those determining circumstances should serve as the basis for the father has a cause of action based on the breach of that duty. To characterize the in father’s status this context as a ‘ n bystander” respon- is to miscast the role of the father and the sibility family. of the doctor to the When the father has been directly in the treatment of the involved mother and birth of the child, qualifies “bystander,” whether or not he as a he should genuine be entitled to injury resulting recover for emotional malpractice. from the doctor’s O’HERN, J., concurring in result. For part; part; reversal affirmance WILENTZ,
remandment —Chief Justice and Justices CLIFFORD, HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN—7.
Opposed —None.
notes
holding. Although the concurrence
implications of our
underlying parental claims
principles
the
our conclusion that
important than the character
distress are more
emotional
71,
1293,
claims,
it
not
post at
A.2d at
does
of those
622
ization
more than a
that “the mother is
refer to our statements
”
“the
‘bystander,’
at
A.2d at
and that
ante
baby
merges
connection between mother and her
so
‘direct’
disappears,”
and ‘indirect’ claims that the distinction
at
supra
59, 622 A .2dat 1286. Also absent from the concurrence
our
recognition
physician-patient relationship
that “the absence of a
between
necessarily
the father and the doctors ... does not
preclude
duty extending
the
physicians
existence
Supra
to the father.”
at
.2d at 1287.
Finally,
A
requirement
concurrence seems to treat as
new the
that
parents’
genuine
71-73,
be
distress
and severe. Post at
requirement
A.2d at
That
1292-1293.
serves as a
substitute
physical
injury,
manifestation of
which until now has
been
prerequisite
direct claim
Supra
for a
for emotional distress.
at
60,