The within action seeks recognition of a cause of action based on "outrage", or as otherwise labeled, the intentional infliction of emotional distress. The claim arises out of a doctor-patient relationship where plaintiffs include the patient as well as his parents. Defendants include the doctor and the hospital where the alleged wrongful conduct occurred. Although the action initially sought damages based on both malpractice and the intentional infliction of emotional distress, the malpractice claim has since been abandoned. Counsel for the doctor now moves for summary judgment.
For purposes of this motion the court is required to view the facts in a light most favorable to the party resisting the application R. 4:46-2. This standard requires not only that all factual disputes be resolved in plaintiff's favor but every reasonable
inference as well. Viewed in that light, the material facts here indicate the following: while under the care of Dr. Joel Bayer, plaintiff Larry Hume underwent an operation precipitated by abdominal pain. Although the surgery involved nothing more than the removal of a mildly infected appendix, Dr. Bayer reported to Larry's parents that the appendix had not been removed and instead he was required to excise an 8-10 inch section of inflamed and possibly cancerous tissue. Taken in their totality, the facts, if believed, permit the further inference that this statement was untrue and that Dr. Bayer made it knowing it was untrue and knowing the high degree of probability that it would inflict emotional distress upon the Humes. Dr. Bayer further indicated that the disease from which Larry was suffering was Mesenteric Venous Thrombosis, an ailment extremely rare in someone so young. Larry was 18 at the time. In order to determine whether the tissue was malignant Dr. Bayer explained that a test would be run two days later. No test was ever done on such tissue, although Dr. Bayer later reported that the results were negative.
Larry experienced a great deal of pain following the operation and vomited repeatedly over a two-day period. The hospital staff refused to administer any pain relievers to him and ignored plaintiff's pleas for an explanation as to what was really happening to their son. Conflicting stories were told to the Humes regarding the type of operation involved during which time Larry's condition worsened and he lost 25 pounds. For several days his parents suffered severe emotional distress believing their son was possibly going to die and being unable to obtain reliable information concerning his condition. In desperation, they finally made arrangements to have Larry removed to the hospital of the University of Pennsylvania. Prior to Larry's transfer plaintiffs instructed the hospital staff to discontinue any further treatment. Their instructions were disregarded. While at the University of Pennsylvania, Larry underwent a procedure to remove a bowel obstruction secondary to an appendectomy. He recovered in the normal course.
The above facts, although sharply disputed by defendants, are deemed admitted for the purpose of this motion. It is defendant's position that even if plaintiffs' version of the facts were to be believed, a cause of action for the intentional infliction of emotional distress does not lie and has not been recognized in this State. The legal question thus presented is whether these facts, if proved, constitute such a cause of action assuming its viability.
There is no question that New Jersey recognizes emotional distress as an element of damages in actions based on either negligence or an intentional tort. Portee v. Jaffee , 84 N.J. 88 (1980); Berman v. Allen , 80 N.J. 421 (1979); Falzone v. Busch , 45 N.J. 559 (1965); Muniz v. United Hospitals Medical Center Presbyterian Hospital , 153 N.J. Super. 79 (App.Div.1977); Kuzma v. Millinery Workers, etc. Local 24 , 27 N.J. Super. 579 (App.Div.1953). On the other hand, in all of the cases cited above there was a violation of an underlying duty to which the claim for emotional distress could attach. No appellate court has yet to recognize the intentional infliction of emotional distress as an independent cause of action.
The significance of this distinction was examined in Hafner v. Hafner , 135 N.J. Super. 328 (Law Div.1965). Although the court there ruled that the action before it was essentially one involving alienation of affection and thus barred by Heart Balm Act, it also discussed the plaintiff's claim for emotional distress as a separate tort. The court noted that the tort had not yet gained express recognition in New Jersey and ruled that the claim before it did not justify such recognition. Judge King then made the following observation: "A distinction must be drawn between recovery for emotional distress as an element of damages that may be recovered for an underlying tort, and the intentional infliction of emotional distress as a tort itself." Id. at 332-333. In those states where the tort has been recognized it is "generally agreed that the conduct must be so extreme and outrageous 'as to go beyond all possible bounds of decency, and
be regarded as atrocious and utterly intolerable in a civilized community.' Restatement, Torts 2d § 46, Comment (d) at 73." (citations omitted). Hafner v. Hafner, supra at 333-334.
Further guidance into the precise outlines of the cause of action now being examined may be found in the Restatement of Torts as ...