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Frame v. Kothari

Decided: July 20, 1989.

DONNA FRAME, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ARIK FRAME, DECEASED, AND DONNA FRAME AND CHARLES FRAME, INDIVIDUALLY AND IN THEIR OWN RIGHT, PLAINTIFFS-APPELLANTS,
v.
DR. N. KOTHARI, M.D.; HEALTH CARE PLAN OF NEW JERSEY, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 218 N.J. Super. 537 (1987).

For affirmance -- Justices Clifford, Handler, Pollock, O'Hern and Stein. The opinion of the Court was delivered by Pollock, Justice. Wilentz, Chief Justice, and Garibaldi, Justice, concurring. Wilentz, C.J., and Garibaldi, J., concurring in the result.

Pollock

The primary issue on this appeal is whether the parents of a child whose death is caused by medical misdiagnosis may maintain a claim against the negligent doctor for the infliction of their emotional distress. In the Law Division, the jury awarded the parents $10,000 for the wrongful death of the child and $500 each for their emotional distress. The Appellate Division affirmed the wrongful-death award and reversed the award for emotional distress. 218 N.J. Super. 537 (1987). We granted certification, 109 N.J. 45 (1988), and now affirm.

I

Sometime between 6:30 and 7:30 a.m. on January 22, 1982, ten-month-old Arik Frame fell down the thirteen-step stairway of his home. His parents, Charles and Donna Frame, immediately took him to a health clinic, defendant Health Care Plan of New Jersey (Health Care), where he was treated by one of its employees, defendant Dr. Nita Kothari, a board-certified pediatrician. Dr. Kothari gave Arik a complete examination and ascertained, among other things, that he had a fever of 102 degrees that started the day before and a soft spot at the back of his head. She diagnosed Arik as suffering from a virus, and told the Frames to awaken him every four hours to check for symptoms of a head injury. Plaintiffs disputed Dr. Kothari's testimony that she told them "to check for the pupils, I asked them to watch for vomiting."

On returning home, Mrs. Frame put Arik to bed. When Mr. and Mrs. Frame awakened him at 2:00 p.m., they became concerned and called Dr. Kothari. According to Dr. Kothari, Mr. Frame stated that the infant had vomited. Mr. and Mrs.

Frame testified that Mr. Frame told Dr. Kothari that Arik's eyes were "pivoting" or rolling in the eye sockets, testimony that Dr. Kothari contradicted.

Dr. Kothari advised the Frames to let Arik sleep for four more hours. When they tried to awaken him at 6:00 p.m., Arik was moribund. They immediately took him to Cooper Medical Center, where x-rays revealed a blood clot at the rear of his skull. Around midnight, emergency surgery was performed, and the Frames stayed at the hospital until 3:00 a.m. Two hours later, the hospital called to inform them that Arik had died. An autopsy disclosed that the cause of death was an intra-cerebellar hemorrhage due to a blunt trauma to the skull.

The sole basis for the emotional-distress claim was Dr. Kothari's alleged negligence in failing to tell the Frames in their 2:00 p.m. telephone conversation to bring Arik to Health Care after Mr. Frame told the doctor that Arik's eyes were pivoting. Mrs. Frame claimed that the shock of discovering her son in a moribund condition four hours later caused her to become severely depressed and to suffer from nightmares and insomnia. She consulted a psychiatrist, who diagnosed her condition as "a chronic post-traumatic stress disorder." He attributed her symptoms to a series of events beginning with Arik's fall downstairs, extending through the observation of the pivoting motion of his eyes, and ending with Arik's death. The psychiatrist was unable to separate one moment from the next in establishing the symptoms that caused Mrs. Frame's condition.

Mr. Frame testified that his personality changed following the death of Arik, that he became isolated from his family and friends, and that he continues to experience a deep sense of loss. The Frames separated approximately seven months after Arik's death. Mrs. Frame subsequently conceived a child by another man because, as she testified, "I thought that maybe I would feel better if I had another baby . . . ." On January 3, 1984, she gave birth to a baby girl. By the time of trial, Mr. and Mrs. Frame were divorced.

In answer to special interrogatories, the jury, apparently accepting the Frames' version of the 2:00 p.m. telephone conversation, found that Dr. Kothari had failed to provide proper instructions to the Frames, and that her failure caused Arik's death.

II

Everyone is subject to injury, disease, and death. Common experience teaches that the injury or death of one member of a family often produces severe emotional distress in another family member. A threshold problem is separating the grief that attends that distress when no one is at fault from the added stress attributable to the fact that the injury or death was produced by the negligent act of another.

The history of claims for the negligent infliction of emotional distress is one of increasing recognition of psychic injury tempered by a concern for "speculative results or punitive liability." Portee v. Jaffee, 84 N.J. 88, 97 (1980); W.P. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on The Law of Torts ยง 54 at 359-67 (5th ed. 1984) (Prosser & Keeton). Various constraints have provided an assurance of the genuineness of a claim for emotional distress and a limitation on liability. In this state, physical impact was once a prerequisite of a valid claim for the negligent infliction of emotional distress. Ward v. West Jersey & Seashore R. Co., 65 N.J.L. 383 (Sup.Ct.1900). Since 1965, however, we have allowed recovery for emotional distress resulting in physical injury even in the absence of physical impact. Falzone v. Busch, 45 N.J. 559, 569 (1965). More recently, we have allowed recovery, even in the absence of physical injury, if the plaintiff observed an injury to another at the scene of an accident, the plaintiff and victim are members of the same family, and the emotional distress is severe. Portee, supra, 84 N.J. at 101.

In Portee, plaintiff's seven-year-old son was trapped between the door and shaft of an apartment-house elevator. Another

child discovered the boy and ran for help. Over a four-hour period, the mother observed rescue efforts, during which her son, who suffered multiple fractures and massive internal hemorrhaging, moaned, screamed in pain, and flailed his arms from his trapped position. While his mother watched, he died, still trapped. Thereafter she became severely depressed and attempted suicide. On these facts, we recognized the mother's claim for her emotional distress caused by the elevator company's failure to maintain the elevator in a safe condition. Although the plaintiff had not observed the negligent act or the initial impact on the victim, we allowed her claim because she had witnessed a shocking event. Liability was limited to the foreseeability of "'shock severe enough to cause substantial injury in a person normally constituted, thus then bringing the plaintiff within the 'zone of risk."" Id. at 94 (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 76 (1966)). A plaintiff could recover if he or she could prove "(1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, ...


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