Defendant brings this motion for partial summary judgment to dismiss plaintiffs' claims for negligent infliction of emotional distress. These claims arise out of medical treatment prescribed by defendant for plaintiffs' decedent son that allegedly caused their son's death. At issue is whether a physician's misdiagnosis was an event perceived by the parents in order to establish a prima facie case for negligent infliction of emotional distress under the guidelines set forth by our Supreme Court in Portee v. Jaffee, 84 N.J. 88 (1980).
For the purposes of this motion, the factual assertions of plaintiffs as the non-moving party will be considered in the light most favorable to their argument, Rule 4:46-3. Plaintiffs are also entitled to have all reasonable inferences drawn in their favor. See, e.g., Procanik by Procanik v. Cillo, 97 N.J. 339 (1984); Portee v. Jaffee, 84 N.J. 88 (1980); Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954).
This is a medical malpractice action which arises from treatment rendered by defendant, Dr. Kothari, to plaintiff's decedent, Arik Frame on January 22, 1982. On that date, plaintiffs brought Arik, a ten-month old infant, to the Health Care Plan of New Jersey facilities to be treated for injuries sustained when Arik fell down a flight of stairs at approximately 7:30 a.m. After an initial diagnosis of a viral syndrome by Dr. Kothari at 10 a.m., the parents were advised by defendant to
observe the child closely and in the event of any change in status to telephone defendant immediately.
At approximately 2:00 p.m., plaintiffs contacted defendant and allege that they advised defendant that the child had vomited three times since their morning visit and the child's eyes had begun to pivot and roll. Dr. Kothari recommended that the child be permitted to sleep and then to be awakened at four-hour intervals.
At 6:00 p.m. after the parents were unable to arouse the child from his sleep, Arik was rushed to the emergency room at Cooper Medical Center. His condition upon arrival was described as semicomatose. Tests revealed a large cerebellar hemorrhage and acute hydrocephalus. Emergency surgery was performed that night but the child died the following morning. The cause of death following autopsy was described as intracerebellar hemorrhage due to a blunt trauma to the skull.
Plaintiffs allege, inter alia, that as a result of Dr. Kothari's treatment and negligent diagnosis, they were caused to suffer great emotional stress in watching their child die slowly while administering the incorrect treatment prescribed by Dr. Kothari.
In Portee, our Supreme Court addressed the issue of recovery for negligent infliction of emotional distress and utilized the approach of the California Supreme Court as outlined in the seminal case in this area, Dillon v. Legg, 68 Cal. 2d 728, 441 P. 2d 912, 69 Cal.Rptr. 72 (1968). Portee, supra, 84 N.J. at 97-100. In Portee, a boy was trapped in an elevator for four hours while his mother watched her son suffer and die. The court allowed the mother to recover damages against the negligent landlord and elevator company for her emotional suffering. The New Jersey Supreme Court adopted the same elements for a prima facie case for negligent infliction of emotional distress that were propounded in Dillon v. Legg:
(1) the death or serious physical injury of another caused by defendant's negligence;
(2) a marital or intimate, familial relationship between plaintiff and ...