On appeal from the Superior Court, Law Division, Camden County.
Dreier, Shebell and Stern. The opinion of the court was delivered by Shebell, J.A.D.
[218 NJSuper Page 538] Plaintiffs, Donna Frame and Charles Frame, appeal as inadequate the $10,000 jury verdict returned on the wrongful death
claim for their 10 month old son and the award of $500 to each of them for their emotional distress in observing the child's suffering prior to his death because of the malpractice of defendants, Dr. Nita Kothari and Health Care Plan of New Jersey ("HCP"). Defendants have cross-appealed only as to the judgment for emotional pain and suffering to the parents. The jury awarded no damages in the survivorship action for conscious pain and suffering of the infant. No appeal has been taken from that verdict.
The infant decedent, Arik Frame, died during the early morning hours of January 23, 1982 after undergoing emergency surgery for a cerebral hemorrhage. The infant had fallen down 13 steps at home between 6:30 a.m. and 7:30 a.m. on the previous day and was taken immediately to the HCP clinic where he was treated by Dr. Kothari, an employee of the HCP. The infant was not admitted to any facility at that time and was allowed to return home. The parents testified that at approximately 2 p.m. on the day of the child's fall the father called HCP and advised Dr. Kothari that the baby was vomiting and that his eyes began pivoting and rolling up into his head when he was bathed. They asserted that the father was advised to let the baby sleep and to check him every four hours by waking him. When the parents attempted to wake the child at approximately 6 p.m. he was in what has been described as a moribund or near-death state. They rushed the child to a hospital where cerebral bleeding was diagnosed and emergency surgery undertaken. The child was observed by the parents as he was transported for x-rays prior to surgery and again after surgery. He appeared as if sleeping on each occasion. The surgery was performed around midnight and the parents left the hospital around 3 a.m. They returned to the hospital at approximately 5 a.m. after receiving a telephone call from the hospital. Either during the phone call or when they arrived at the hospital they were advised that their son was dead.
The parents separated approximately seven months after the death of the child. Although apparently neither parent had
remarried at the time of trial, the mother learned in the summer of 1983 that she was pregnant by another man. She gave birth to a baby girl on January 3, 1984. Donna Frame testified that she blamed her husband for her son's death and that his personality changed after the baby's death, causing each to go separate ways.
Plaintiffs contend that the sum of $10,000 to compensate them for the loss of Arik is inadequate. A motion for a new trial as to damages only was filed by the plaintiffs but denied by the trial court. This issue is therefore appropriately before us for determination as to whether it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1.
Plaintiffs note that pursuant to N.J.S.A. 2A:31-1 et seq. parents of a deceased infant are entitled to be compensated for the "pecuniary injuries" they suffer as a result of their child's death as that term has been interpreted by our Supreme Court in the case of Green v. Bittner, 85 N.J. 1 (1980). In Green a jury verdict which found no pecuniary loss in the death of a high school senior of average intelligence was reversed. The Court found the verdict to be a miscarriage of justice and held that "damages should not be limited to the well-known elements of pecuniary loss such as the loss of the value of the child's anticipated help with household chores, or the loss of anticipated direct financial contributions by the child after he or she becomes a wage earner." 85 N.J. at 4. The Court stated that "the jury should be allowed, under appropriate circumstances, to award damages for the parents' loss of their child's companionship as they grow older, when it may be most needed and valuable, as well as the advice and guidance that often accompanies it." Ibid. These losses however must be confined to their pecuniary value, excluding emotional loss because of the statutory limitation of N.J.S.A. 2A:31-5. Id. at 12 (citing cases).
As our Supreme Court so vividly points out in Green, the greatest loss must go uncompensated under present law:
No pecuniary value may be attributed to the emotional pleasure that a parent gets when it is his or her child doing the caretaking rather than a stranger, although such pleasure will often be the primary value of the child's service, indeed, in reality, its most beneficial aspect. This loss of added emotional satisfaction that would have been derived from the child's companionship is fundamentally similar to the emotional suffering occasioned by the death. Both are emotional rather than "pecuniary injuries," one expressed in terms of actual emotional loss, the other in terms of lost prospective emotional satisfaction. In another sense, the loss of the prospective emotional satisfaction of the companionship of a child when one is older is but one ...