On certification to the Superior Court, Appellate Division.
Pollock, Wilentz, Clifford, O'Hern, Garibaldi, Stein, Handler
The opinion of the court was delivered by
Once again we are summoned to respond to a family tort arising from an alleged act of medical malpractice. The case arises in the inflammatory setting of the tragic loss of a baby due to physician neglect. The issue is whether parents can recover for their emotional distress caused by medical malpractice in the birth and death of their daughter.
Relying on Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139 (1988), the Law Division ruled that the parents, plaintiffs JoAnn Carey and Gregory Carey, could assert a direct claim for their emotional distress. The jury awarded $1,000,000 to the mother and $500,000 to the father, as well as $550,000 to their daughter's estate for her pain and suffering and $450,000 for her wrongful death.
In an unreported opinion, the Appellate Division reversed. It found that the trial court should have considered the parents' claim for emotional distress not as a direct claim under Giardina but as an indirect claim under Frame v. Kothari, 115 N.J. 638 (1989). Finding that the facts did not support a cause of action under Frame, the Appellate Division dismissed the parents' emotional-distress claim. The court also set aside the pain-and-suffering and wrongful-death awards as excessive, and remanded the matter to the Law Division for a new trial on both liability and damages. We granted the Careys' petition for certification, 127 N.J. 553 (1991), and now affirm in part, reverse in part, and remand the matter for a trial on all issues. We hold that a jury could find for Mr. & Mrs. Carey on their claims for emotional distress.
During the summer of 1983, plaintiff JoAnn Carey, who suffers from diabetes mellitus type I, became pregnant for the third time in four years. Her treating physicians were defendant doctors John H. Osler III, an internist, and William E. Lovett, Jr., an obstetrician and gynecologist, both of whom had managed Mrs. Carey's first two pregnancies. Dr. Osler had also treated Mrs. Carey for her diabetes, including two incidents of diabetic ketoacidosis, a dangerous increase in body acid. Dr. Lovett had been Mrs. Carey's gynecologist since the early 1970s. In October 1980 he had delivered her first child, Annette, who was one-month premature and suffered from toxemia, but was otherwise healthy. Mrs. Carey's second pregnancy ended in a miscarriage in March 1983. After the events that are the subject of this action, Mrs. Carey gave birth to another daughter, who was born one-month prematurely but in good health.
On October 9, 1983, in the twenty-sixth week of her third pregnancy, Mrs. Carey awoke feeling tired and short of breath. She tested her blood sugar, which was elevated. Attempting to lower her blood sugar, she increased her dosage of insulin and drank bouillon throughout the day. Her efforts were unsuccessful, and at 8:30 the next morning, Mrs. Carey, still feeling ill, called Dr. Osler.
Dr. Osler's answering service received Mrs. Carey's call, and at 9:00 a.m. his receptionist phoned her. Mrs. Carey reported her symptoms to the receptionist, who told her that Dr. Osler would call. During the day, Mrs. Carey called Dr. Osler's office several times, but she did not hear from him until ten o'clock that night. Dr. Osler testified that he had attempted unsuccessfully to call Mrs. Carey during the day.
Mrs. Carey's and Dr. Osler's accounts of the 10:00 p.m. telephone call differ. Dr. Osler claims that he had told Mrs. Carey to go to the hospital immediately, but that she had refused. Mrs. Carey asserts that he had told her to report to
the hospital the next morning, October 11. After the telephone call, Dr. Osler arranged for Mrs. Carey's admission, under Dr. Lovett's care, to West Jersey Hospital the next day. Dr. Osler testified that during that evening he had also telephoned Dr. Lovett's answering service and had left a message about Mrs. Carey's imminent admission. Dr. Lovett testified, however, that he had received no such message.
On the morning of October 11, someone from West Jersey Hospital called Mrs. Carey and told her to report to the hospital in the early afternoon. Mrs. Carey was admitted at 1:00 p.m. Her admission records indicate a diagnosis of "uncontrolled diabetes, six months pregnant." At 2:30 p.m., Dr. Robert Gerard, an internist who was covering for Dr. Osler, examined Mrs. Carey. Dr. Gerard diagnosed Mrs. Carey as suffering from an attack of ketoacidosis, which, in a diabetic woman, frequently causes intrauterine death.
Dr. Gerard also noted that Mrs. Carey was experiencing intermittent contractions. He listened for fetal heart sounds, but could find none. After a routine exam one week earlier, on October 3, Dr. Lovett had told Mrs. Carey that the baby's heartbeat was strong and that she was "over the hump" as far as the most dangerous complications of a diabetic pregnancy were concerned.
At 3:00 p.m., the hospital called Dr. Lovett to inform him that Dr. Gerard had examined Mrs. Carey, had found her to be experiencing diabetic ketoacidosis, and had not detected any fetal heart tones. Based on that telephone call, Dr. Lovett made a tentative diagnosis of fetal demise.
One-half hour later, Mrs. Carey was experiencing strong contractions. Hospital personnel transferred her to the labor and delivery floor of the hospital and notified Dr. Lovett. Nurse Lillian Lovenduski phoned Lynn Collins, the senior labor and delivery nurse, to tell her to expect Mrs. Carey. No one attempted to arrest Mrs. Carey's labor. By 4:30 p.m., Mrs. Carey's contractions were two to three minutes apart.
Between 4:30 and 5:00 p.m., nurses Sofia Roache and Marjorie Levins attempted to find a fetal heart sound. They used a transducer, a device that converts physical impulses such as sound into electronic signals for a fetal monitoring system. They then used a doppler, an electronically-amplified stethoscope. All attempts were unsuccessful. Nurse Collins was summoned, but she too was unable to locate a fetal heart sound. At 5:00 p.m., the nurses telephoned Mr. Carey and Dr. Lovett and told them that Mrs. Carey was going into labor. Dr. Lovett advised the nurses to allow Mrs. Carey to deliver the expected stillborn child. He ordered injections of Demerol and Vistaril to relieve Mrs. Carey's pain.
At approximately 5:30 p.m., Gregory Carey arrived at the hospital and went to the labor room. Nurse Collins informed the Careys that there were no audible fetal heart tones and that the fetus was dead. Mrs. Carey insisted that the fetus was alive and that she could feel it moving. At Mr. Carey's request, nurse Collins again tested for a fetal heart tone, using both the transducer and the doppler. She also allowed Mr. and Mrs. Carey to listen to the negative results. Mrs. Carey again refused to accept that the fetus was dead. The nurses did not use other available and more accurate methods of determining fetal viability, such as ultrasound or x-rays.
A nurse then escorted Mr. Carey from the labor room and asked him to convince Mrs. Carey that the fetus was dead. The nurse explained that Mrs. Carey's denial of the baby's death was natural, but that he should try to calm his wife by telling her to listen to the nurses. Mr. Carey complied with the nurse's request. Mrs. Carey tearfully maintained that her baby was alive. The nurses did not perform any other test to confirm the diagnosis that the baby was dead.
Dr. Lovett, whom hospital personnel had called periodically, had not come to the hospital during Mrs. Carey's labor. The hospital records indicate that at approximately 7:45 p.m., someone injected Mrs. Carey with Pitocin, a drug that increases
and induces delivery. No one, however, admits authorizing or giving the injection. Between 8:30 p.m. and 9:00 p.m., Mrs. Carey's contractions grew stronger. According to Mr. Carey, an unidentified nurse broke Mrs. Carey's water to speed delivery. The nurses dispute that assertion.
At 9:06 p.m., eight hours after being admitted to the hospital, Mrs. Carey delivered a baby in a breech position. Neither nurse Collins nor nurse Levins, the only hospital personnel present at the birth, assisted in the delivery. The baby dropped unsupported onto the labor bed. Nurse Collins cut the umbilical cord and announced that the baby was a girl. Nurse Levins asked Mrs. Carey if she wished to hold the baby. On his wife's behalf, Mr. Carey declined. Like the nurses and the doctors, he believed that the baby was dead.
The baby was alive. Her color at birth was pink, not the blue, black, or purple expected for a stillborn baby. Nurse Levins took the baby from the room. Mr. Carey, still believing the baby was dead but wondering why she looked healthy, requested that a doctor examine her to determine the cause of death. Assuring Mr. Carey that a doctor would look at the baby, nurse Levins, now joined by nurse Roache, took the baby into another room and closed the door. Still, no one realized or suspected that the baby was alive.
When placed on the weighing scale, however, the baby gasped for air. Nurse Collins palpated the baby's umbilical stump and was able to detect a fetal heart beat. Nurse Levins rushed the infant to the neonatal nursery.
While Mr. Carey was walking back to the labor room, nurse Levins told him that the child was alive. The baby, she added, was very sick and would soon die. She advised Mr. Carey not to tell his wife that the baby was alive, because he would soon thereafter have to tell her that the child had died. Mr. Carey returned to the labor room to be with his wife. He did not tell her their child was alive.
The staff obstetrician, Dr. Meena Pathikonda, came to Mrs. Carey's room to help Mrs. Carey deliver the placenta. After the delivery, hospital personnel moved Mrs. Carey to a recovery room. Finally, Dr. Lovett arrived. He informed Mrs. Carey that the baby was alive but very sick and that they should all pray for her. The Careys were happy and relieved that their baby, later named Amanda, was alive.
Dr. Andrew Costarino, Jr., a perinatologist and neonatologist, who testified both as a treating physician and as an expert witness for plaintiffs, estimated that three minutes had passed between the baby's birth and the call summoning him to the nursery. When he arrived, the baby was limp and blue. He could not hear any heartbeat. While preparing to place a tube in the baby's windpipe, Dr. Costarino noticed that her vocal chords moved, indicating that she was still alive. After he inserted the tube and connected it to a resuscitator, the baby's color rapidly returned to pink, and Dr. Costarino detected her heart tone. Through a catheter placed in the umbilical-cord stump, Dr. Costarino administered calcium, glucose, and bicarbonate. He also administered a drug to counteract the effects of the Demerol and Vistaril that had been given to Mrs. Carey. The baby was then placed on a mechanical ventilator and given antibiotics. That night she was transferred from West Jersey to Children's Hospital in Philadelphia.
On October 13, the doctors at Children's Hospital discovered that the baby was hemorrhaging from both sides of her brain. They told Mr. Carey that the child was severely brain damaged and would not live much longer. Mr. Carey reported this to his wife, who was still hospitalized in West Jersey.
On October 21, Amanda was still alive. Her doctors, however, gave her no chance of improvement. She was profoundly damaged and in a vegetative state. After consulting with the doctors at Children's Hospital, the Careys decided to disconnect their daughter from life-support machines. That day, Amanda died in her mother's arms.
The Careys, individually and as general administrators and administrators ad prosequendum, sued Drs. Lovett and Osler, certain other physicians, as well as various nurses, hospital administrators, and the manufacturers of the fetal monitors. Before and during the trial, the court granted motions to dismiss some defendants, and the jury returned a verdict of no cause for action against others. The jury returned a verdict against Drs. Lovett and Osler, imposing eighty per cent responsibility on Dr. Lovett and twenty per ...