In this medical malpractice case, defendants seek summary judgment dismissal of plaintiffs' claim for emotional damages. On September 9, 1981, plaintiff Karen Lindenmuth was admitted to the hospital and delivered a son who died three days later from an intestinal obstruction. Defendants are alleged to be negligent because of their failure to diagnose and thereafter treat this obstruction. The critical question is whether misdiagnosis was an event observed by the plaintiffs, thus qualifying their emotional damage claim pursuant to the requirements of Portee v. Jaffee, 84 N.J. 88 (Sup.Ct.1980). It is concluded that misdiagnosis does not so qualify and accordingly, this emotional damage claim must be dismissed.
In Portee our Supreme Court addressed the issue of recovery for the negligent infliction of emotional distress and followed the lead of California expressed in Dillon v. Legg, 68 Cal. 2d 728, 441 P. 2d 912, 69 Cal.Rptr. 72 (Sup.Ct.1968). Portee v. Jaffee, supra, 84 N.J. at 97-100. In so holding, requirements for discovery established in Dillon were adopted by our Supreme Court:
The cause of action we approve today for the negligent infliction of emotional distress requires 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. [84 N.J. at 101]
Application of the third factor -- observation of the injury -- is crucial to plaintiffs' claim. In discussing this requisite for recovery, the New Jersey Supreme Court stated:
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. As Justice Cardozo stated in his classic formulation, "The risk reasonably to be perceived defines the duty to be obeyed." Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928); See F. Harper & F. James, supra, § 18.2 at 1018. 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 proximity of the plaintiff to the accident scene increases the likelihood that he will witness the event causing the death or serious injury of a loved one. Yet it appears that if the plaintiff must observe the accident that causes death or serious injury, a requirement of proximity is necessarily satisfied. The risk of emotional injury exists by virtue of the plaintiff's perception of the accident, not his proximity to it. [ Id. 84 N.J. at 99-100; emphasis supplied]
Thus, the issue here is whether misdiagnosis is something which can be equated with observing the injury. California cases subsequent to Dillon v. Legg, supra, have discussed the issue, New Jersey has not. California has ruled that a party cannot recover emotional damages for a doctor's negligent diagnosis and treatment of a close family member. In Jansen v. Children's Hospital Ctr. of East Bay, 31 Cal.App. 3d 22, 106 Cal.Rptr. 883 (Ct. of App.1973), plaintiff mother sued a hospital for emotional trauma caused by her "witnessing the progressive decline and ultimate death of her daughter." 31 Cal.App. 3d at 23, 106 Cal.Rptr. at 884. Specifically, she alleged that the hospital's servants failed to properly diagnose a gastro-intestinal hemorrhage in her daughter and that this negligence caused her daughter's slow and painful death. The mother, who was constantly at her daughter's side, alleged that observing
her daughter's condition caused her severe emotional distress. In denying recovery for this claim, the court noted that in misdiagnosis cases, two Dillon factors -- proximity to the accident and witnessing the accident, are not met:
Dillon, recognizing the need to "limit the otherwise potentially infinite liability which would follow every negligent act," sets up three guidelines for determining foreseeability of injury to another than the person actually struck. The first two of these are "whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it," and whether the shock "resulted from . . . the sensory and ...