Recovery of emotional distress damages in a New Jersey medical malpractice action remains a tough hurdle for plaintiffs.

The plaintiff parents brought their 19-month-old daughter to the emergency room at 5:00 pm following difficulty breathing and cold or flu-like symptoms. The child was followed by a pediatric intensivist through the night, who claimed to have called a pediatric cardiologist at approximately 12:00 am upon learning of x-ray results showing an enlarged heart. The pediatric cardiologist denied receiving the call, but did arrive for normal rounds the following morning at 7:00 am, and immediately recognized the child’s deteriorating condition and elevated care. Unfortunately, the child died at approximately 9:03 am.

The plaintiff parents brought suit, with one of their claims for damages being negligent infliction of emotional distress. The plaintiff mother testified that, by the time the pediatric cardiologist arrived in the morning, her child’s condition was “bad” and that “everybody knew it except us apparently…”

The trial court granted partial summary judgment, dismissing claims for negligent infliction of emotional distress. The Appellate Division affirmed, holding that, in medical malpractice cases, emotional distress damages are recoverable only “where the family member witnesses the alleged malpractice, observes the effect, and immediately connects the malpractice with the injury.” In Casey, the court acknowledged the unspeakable loss, but ultimately affirmed that the plaintiff parents did not connect their child’s condition and ultimate death with the malpractice.

For the practitioner, Casey highlights the importance of taking a detailed deposition of the plaintiffs when negligent infliction of emotional distress damages are sought. Attention must be paid to what the witnesses saw and what they knew at times critical to the particular case. In Casey, both the trial court and Appellate Division relied heavily on the mother’s own deposition testimony in granting partial summary judgment and affirming on appeal.

Case Law Alerts, 2nd Quarter, April 2014