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behalf of the ESTATE OF COLLEEN

MILLER (Decedent Infant) and

















December 23, 2013


Argued October 8, 2013 Decided

Before Judges Alvarez, Ostrer and Carroll.


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-536-09.


James D. Martin argued the cause for appellants (Martin Kane & Kuper, attorneys; Mr. Martin and Dana E. McDade, on the briefs).


Joseph A. DiCroce argued the cause for respondent Robert Wood Johnson University Hospital (Law Offices of Joseph A. DiCroce, LLC, attorneys; Sarah Hamilton Morley, on the brief).


Paul F. Schaaff, Jr., argued the cause for respondent Jacqueline Williams-Philips, M.D. (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Mr. Schaaff and Nicole H. Klug, on the brief).


Rudolph A. Socey, Jr., argued the cause for respondent Joseph Gaffney, M.D. (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Michael A. Pattinite, Jr., on the brief).



Plaintiffs Mary Casey and John Miller appeal the grant of partial summary judgment on November 14, 2012, dismissing their claims for negligent infliction of emotional distress against defendants Jacqueline Williams-Phillips, M.D., Joseph Gaffney, M.D., and Jeremy Grayson, M.D.1 For the reasons that follow, we affirm.

On May 1, 2006, plaintiffs' nineteen-month-old child Colleen Rose was admitted to defendant Robert Wood Johnson University Hospital (RWJ) through the emergency room at approximately 5:00 p.m. because the child was experiencing difficulty breathing and displayed cold or flu-like symptoms. At approximately 7:00 p.m., an x-ray revealed an enlarged heart. She was transferred to the hospital's pediatric intensive care unit (PICU) due to increasing tachycardia and breathing difficulties. Williams-Phillips, a pediatric intensivist, became involved in Colleen Rose's care at approximately 11:00 p.m. She contacted Gaffney, the on-call pediatric cardiologist, and discussed the child's heart rhythm strips over the phone. Because Gaffney's fax machine was not working properly, she was not able to forward the reports to his home.

Gaffney recommended a course of treatment, which Williams-Phillips followed. Williams-Phillips called Gaffney a second time between 12:15 and 12:50 a.m. and administered another drug at his direction. In deposition, Williams-Phillips testified that she requested that Gaffney come to the hospital during this second call, and told plaintiffs he was on his way. Gaffney denies having been even asked to go to the hospital. Casey's sister, for whom the child was named, was then a pediatric nurse at RWJ. She waited with plaintiffs during the night.

While making his normal rounds the following morning, Gaffney arrived at PICU between 7:00 and 8:00 a.m. After examining Colleen Rose, he immediately ordered a course of urgent measures, including intubation and cardioversion,2 to no avail. Once Gaffney arrived and took control of the child's treatment, the family was asked to step out of the room. Approximately an hour passed, during which time they were allegedly told by Williams-Phillips that the child had died, then alternatively, that the staff was still working on her, and then finally at approximately 9:03 a.m. that she was gone.

In deposition, Casey said:

By the time Gaffney got there Colleen was bad. He knew it, Williams[-Phillips] knew it, everybody knew it except us apparently, aside from the fact that they immediately ushered us out of the room because they didn't think it was a good idea that we be there while we watched them intubate.


An autopsy revealed the child suffered from histoicytoid cardiomyopathy, a genetic heart defect, which results in severe cardiac arrhythmias or dilated cardiomyopathy with heart failure. Plaintiffs' expert opined, to a reasonable degree of medical certainty, that defendants' treatment of Colleen Rose did not meet the relevant standard of care, resulting in her death.

The trial court found that the Tort Claims Act (TCA), N.J.S.A. 59:9-2(d), limited recovery for emotional distress under these circumstances. Citing to Brooks v. Odom, 150 N.J. 395, 403-06 (1997), the judge concluded that in order to survive a motion for summary judgment, a plaintiff must be able to prove a permanent injury or the permanent loss of a substantial bodily function. He opined that the cases awarding damages in these situations required an "accompanying physical intrusion to the person" before a plaintiff could recover damages for emotional distress. Since there was no physical intrusion in this case, nor were there any "physical manifestations" of the "psychological injuries which would result in a permanent loss of a bodily function," the judge dismissed the claim as a matter of law and did not reach the issue of whether plaintiffs' injuries were permanent.

Furthermore, the judge decided that in the medical malpractice context, pursuant to Frame v. Kothari, 115 N.J. 638 (1989), it would have been necessary for plaintiffs to "immediately connect or assimilate the misdiagnosis with the injury to their daughter." Since it was "clear" that when these tragic events occurred plaintiffs did not connect their child's condition and ultimate death with defendants' treatment, the judge also concluded that those causes of action failed as a matter of law.

We agree with the latter conclusion, which in our view is supported by the record, and alone warrants affirmance of summary judgment. On appeal, plaintiffs argue that the judge erred both as to his findings of fact and conclusions of law, and should have allowed the claims to reach a jury. We focus solely on the question of plaintiff's entitlement to recovery for the negligent infliction of emotional distress as bystanders to defendants' alleged medical malpractice. Because even viewing the facts in the light most favorable to plaintiffs, since at the time the care was being administered, plaintiffs did not connect their child's condition and ultimate death with medical malpractice, we affirm. We do not reach plaintiffs' other contentions on appeal.

Summary judgment is warranted where the pleadings and evidence "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). This standard has been traditionally expressed as requiring a "determination whether there exists 'a genuine issue' of material fact that precludes summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The motion judge must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The 'judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Ibid.

We employ the same standard when reviewing the grant of summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We ask if "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brill, supra, 142 N.J. at 536. In the absence of any genuine issue of material fact, we then decide whether the trial's application of the law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987).

We believe Gendek v. Poblete, 139 N.J. 291 (1995), is controlling. In that case, the plaintiffs filed an action for negligent infliction of emotional distress as a result of the fatal illness of their infant son, who although born in apparent good health, developed respiratory problems and stopped breathing the day after his birth. Id. at 292-93. Although medical personnel resuscitated him, the child suffered severe brain damage as a result of the loss of oxygen, and forty-five days after birth, life support was removed and he died. Id. at 293. The Court affirmed the grant of summary judgment and reiterated that a cause of action arises for the negligent infliction of emotional distress where a person is a direct object of a tortfeasor's negligence and experiences severe emotional trauma. Id. at 296. Recovery for negligent infliction of emotional distress may be warranted where a plaintiff observes another suffering serious or fatal injuries under certain circumstances. Ibid. In the latter, "bystander liability" cases, a claimant must establish, however: first, that death or serious physical injury was caused by a defendant's negligence; second, that a familial relationship existed between plaintiff and the injured person; third, that the injury or death was observed; and last, that the observer suffered severe emotional distress as a result. Id. at 297 (citing Portee v. Jaffee, 84 N.J. 88, 101 (1980)). But recovery in such cases in the medical malpractice context is permitted only where the family member witnesses the alleged malpractice, observes the effect, and immediately connects the malpractice with the injury. Id. at 301.

In Gendek, at the crucial times, neither parent observed an act of alleged malpractice. When the infant initially stopped breathing, one parent was not even present at the hospital. Id. at 294. The Court observed that neither parent immediately connected the child's respiratory failure with medical malpractice, or medical malpractice with the need to perform emergency procedures. Id. at 301-02. Despite rejecting the cause of action, the Court said it "appreciate[d] in full measure the pathos and genuineness of plaintiffs' suffering." Id. at 302.

Here, we can only imagine the unspeakable loss these plaintiffs have experienced and the grief that would naturally follow. Setting that aside, however, it is clear that they did not immediately connect the medical treatment their child received at the hospital with her death. They did not connect the claimed misdiagnosis and alleged malpractice with their child's deteriorating condition and eventual death. Just as in Gendek, although plaintiffs witnessed their child suffering as medical efforts failed to address her needs, they did not attribute the child's worsening state with the medical treatment she was receiving. They were not in the room when intubation or cardioversion was attempted, or when the child died.

Viewing the facts in the light most favorable to plaintiffs, no rational factfinder could resolve this dispute in plaintiffs' favor. Plaintiffs have not established a factual or legal basis for the negligent infliction of emotional distress in this medical malpractice case.


1 Summary judgment effectively dismissed the claim against defendant Robert Wood Johnson University Hospital, defendants' employer.

2 Cardioversion is a method to restore an abnormal heart rhythm back to normal.

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