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PHILLIPS v. COOPER OB/GYN ASSOCS.

December 30, 1992

CALVIN PHILLIPS, JR., a minor by his parents and natural guardians, CHERYL PHILLIPS and CALVIN PHILLIPS, and CHERYL PHILLIPS and CALVIN PHILLIPS in their own right, Plaintiffs,
v.
COOPER OB/GYN ASSOCIATES, DR. I.G. ANCES, DR. P. ENZO DiFLORIO, and DR. BRUBAKER, Defendants.



The opinion of the court was delivered by: STANLEY S. BROTMAN

 BROTMAN, District Judge.

 Presently before the court in this medical malpractice litigation is defendants' motion for partial summary judgment on the claim of negligent infliction of emotional distress. Upon consideration of the parties' submissions, and for the reasons set forth below, the court denies defendants' motion.

 I. Background

 On February 19, 1989, Cheryl Phillips gave birth to Calvin Phillips, Jr. ("Calvin Jr.") at the Cooper Hospital/University Medical Center ("Cooper Hospital") in Camden, New Jersey. During delivery, Calvin Jr.'s shoulders got stuck in the birth canal, allegedly because he was too large. *fn1" The attending physician, Dr. P. Enzo DiFlorio, used force in order to complete delivery and Calvin Jr.'s head was bruised and he sustained a contusion on the left anterior side of his chest. Plaintiffs claim that Dr. DiFlorio's use of force during delivery caused permanent damage to Calvin Jr.'s left shoulder, left arm, and left hand.

 In August 1990, plaintiffs filed the present medical malpractice suit. The complaint states claims sounding in negligence on behalf of Calvin Jr. against Dr. DiFlorio, as well as against Dr. Brubaker, another attending physician at the delivery room, and Dr. I.G. Ances and Cooper OB/GYN Associates ("Cooper OB/GYN"), who were in charge of Mrs. Phillips's prenatal care. *fn2" The alleged instances of medical negligence include: failure to evaluate Mrs. Phillips for gestational diabetes; failure to perform an ultrasound to determine the size of the baby; failure to perform a caesarian section to deliver the baby; and failure to properly deliver the baby. Count three of the complaint, which states a claim on behalf of Mr. and Mrs. Phillips for emotional distress damages resulting from defendants' negligence, is the subject of the instant motion. *fn3"

 Plaintiffs have presented evidence that Mr. Phillips was present with his wife in the delivery room and that they observed their son's suffering and injuries contemporaneously with his birth. Mr. Phillips testified that he observed Dr. DiFlorio "pulling on (Calvin Jr.'s) right side first, kind of got the left side stuck, he was pulling on the shoulder, and that's when (Dr. DiFlorio) said 'I heard a snap.'" Mr. Phillips's Dep. at 22. Mrs. Phillips testified that she

 pushed . . . for about a half an hour . . . until I heard (Dr. DiFlorio) say okay, I see the top of the head, and then I kept pushing and kept pushing, and then he said to me, if you don't push, you're going to lose the baby.

 . . .

 I couldn't see where [Dr. DiFlorio] was pulling . . . but I saw his hands, and then I kept pushing, and then he just pulled the baby . . . out, and when he pulled him out he threw his, he threw him on my stomach . . . .

 Mrs. Phillips's Dep. at 41, 42-43. Both Mr. and Mrs. Phillips testified that they observed bruises on Calvin Jr.'s head, neck, and left shoulder and arm immediately after delivery. Mrs. Phillips' Dep. at 45; Mr. Phillips' Dep. at 21.

 Plaintiffs do not put forward any evidence to show that Mr. and Mrs. Phillips had knowledge of a medical misdiagnoses at the time of delivery. There is, however, evidence that Mr. and Mrs. Phillips observed allegedly negligent acts on the part of some of the defendants. Mr. Phillips testified that

 I knew once Dr. DiFlorio said he heard a snap and I saw the way he was pulling, and I knew [Calvin Jr.'s] arm was puffy and red and pink, so I knew that [Dr. DiFlorio] had pulled something, but I didn't know if he had broken the collar bone or pulled the arm out of the socket . . . .

 Mr. Phillips' Dep. at 21. Mrs. Phillips testified that when Dr. DiFlorio "pulled [Calvin Jr.] out, he threw him . . . on my stomach . . . and [Calvin Jr.] fell like on my side." Mrs. Phillips' Dep. at 43.

 Mr. and Mrs. Phillips allege that they "have suffered severe emotional distress, which will continue into the future for an indefinite time, as a result of witnessing the disabilities (which could have been prevented in the absence of negligence) and needless suffering of their child caused by defendants' negligence." Compl. P 25. It is undisputed that Mr. and Mrs. Phillips did not seek any type of psychological counseling as a result of witnessing the birth of their son. See Pls.'s Brief at 11-12. However, Mr. Phillips testified that he found Calvin Jr.'s birth "very upsetting," especially in comparison with the normal delivery of his daughter, Brittany, which he had also witnessed. Mr. Phillips's Dep. at 32-33. Moreover, in their certified answers to defendants' emotional distress interrogatories, Mr. and Mrs. Phillips stated:

 Pl.'s Brief, exh. F. Mr. and Mrs. Phillips also stated that they are constantly "afraid" for Calvin Jr. and that "for now [we] don't see our lives ...


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