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Polikoff v. Defendants-Respondents

Decided: March 21, 1986.

BRAHAM POLIKOFF, ET AL., PLAINTIFFS-APPELLANTS,
v.
DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Morris County.

Pressler, Dreier and Bilder. The opinion of the court was delivered by Pressler, P.J.A.D.

Pressler

The question raised by this appeal, taken on leave granted, is whether the cause of action for negligent infliction of emotional distress recognized by Portee v. Jaffee, 84 N.J. 88 (1980), is available to a parent who watches her child die as the result of medical malpractice. We are satisfied that the singular facts of this case satisfy the elements of the cause of action as defined by Portee. We therefore reverse the trial court's partial summary judgment striking the count of the complaint seeking recovery for mental anguish.

Audrey Rae Polikoff, the then six-year-old daughter of plaintiffs Braham and Jacqueline Polikoff, was admitted to Overlook Hospital on August 10, 1982 for surgery to relieve a duodenal obstruction. Her surgeon, defendant Joseph Panzarino, was not satisfied with her postoperative course and recommended a second operation "to revise the duodenojejunostomy." He performed that operation on August 24, 1982. The anesthesiologist was defendant John Calabro. During the surgery, Calabro inserted a central venous pressure catheter into the child's right internal jugular vein. The purpose of the insertion was two-fold: first, for monitoring and, second, for hyperalimentation, should that procedure later have been deemed necessary by the surgeon.*fn1 Panzarino described the child's immediate

postoperative course in his medical record note as "benign" and she appeared to be recovering. From the time she returned to her hospital room from the postoperative recovery room, one or both of her parents was with her at all times.

During the morning of August 26, a day and a half after the operation, her father was with her and observed that "she was doing very well. I believe she painted a kite. * * *" The nurses' record indicated that Audrey and her father were playing cards at 11:45 a.m. Around noontime Mrs. Polikoff arrived at the hospital and her husband left. Some time during the afternoon, while Mrs. Polikoff was with Audrey, the hyperalimentation was started. Audrey died two hours later. According to Panzarino's note in the hospital record, "the child died of a cardiac tamponade*fn2 secondary to perforation of the central venous pressure catheter into the pericardial sac."

During the two hours between the start of the hyperalimentation and the child's death, Mrs. Polikoff was at her daughter's bedside until, towards the end and during the final unsuccessful resuscitation efforts, she and her husband were told that they had to leave the room. Dr. Polikoff had returned to the hospital during that two-hour period in response to Mrs. Polikoff's telephone call to him which she made when she realized the child was in serious distress. No blood pressure could be ascertained, and Audrey was having serious difficulty breathing. Various teams of nurses, residents and physicians worked on her until the resuscitation team was finally summoned, to no avail. Mrs. Polikoff suffered severe emotional trauma as a result of the death of the child and was in active psychiatric treatment for some time thereafter.

Dr. Polikoff, as general administrator and administrator ad prosequendum of Audrey's estate, then commenced this action against Dr. Calabro and Dr. Panzarino. The first and second counts of the complaint assert a survival and a wrongful death cause of action, respectively. In the third count, Mrs. Polikoff sought recovery for her emotional distress. The factual theory of the liability claim is that defendants deviated from acceptable medical standards when they permitted the hyperalimentation drip to begin without first checking, by x-ray, the position of the catheter, whose misplacement, they contend, permitted the accumulation of the hyperalimentation fluid in the pericardium, causing the cardiac tamponade which resulted in Audrey's death.

Defendant Calabro moved for partial summary judgment dismissing the third count of the complaint contending that Mrs. Polikoff's involvement with her daughter's death did not satisfy all the elements of the cause of action, which are defined by Portee, supra, 84 N.J. at 101, as:

(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.

It is the third of these elements, the observation of the death or injury at the scene of the accident, which is in issue here. The trial judge agreed with defendant's contention that there ...


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