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Gendek v. Poblete

March 15, 1995

JEAN GENDEK, ADMINISTRATOR AD LITEM OF THE ESTATE OF GREGORY GENDEK AND JEAN GENDEK AND STANLEY GENDEK, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ESTRELLA POBLETE, C. GRAUER, RAQUEL ABARY, ANTHONY BRICKMAN, THE ABC CORPORATION AND JOHN DOES I THROUGH V AND JANE DOES I THROUGH V, DEFENDANTS, AND MERCER MEDICAL CENTER, MARY ANN FARLEY (GREHAN), P. PHILLIP, D. JOHNSON, JEAN MAGAULLIRI, AND TRACY GERGEL, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 269 N.J. Super. 599 (1994).

The opinion of the Court was delivered by Handler, J. Chief Justice Wilentz and Justices Pollock, O'Hern, and Garibaldi join in this opinion. Justice Stein has filed a separate Dissenting opinion. Justice Coleman did not participate.

The opinion of the court was delivered by: Handler

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

JEAN GENDEK, ET AL. V. ESTRELLA POBLETE, ET AL. (A-36-94)

Argued November 7, 1994 -- Decided March 15, 1995

HANDLER, J., writing for a majority of the Court.

The question before the Court is whether parents who were unaware and did not witness the medical malpractice that resulted in their child's eventual death may recover for the emotional distress they suffered in observing the health-care professionals' efforts to save their infant child's life.

At 7:28 a.m. on September 27, 1987, Jean Gendek gave birth at Mercer Medical Center (MMC) to an apparently healthy baby boy by normal vaginal delivery. At approximately 8:00 a.m. the following morning, the infant, who had been given the name Gregory, was found in his Nursery bed by a nurse to be unresponsive and not breathing. Another nurse began cardiopulmonary resuscitation. Mrs. Gendek was called to the Nursery where she observed various medical professionals hovering over her son. Mrs. Gendek was then told to call her husband and a family priest, if she had one, because the child was in grave condition.

The doctors and nurses were able to resuscitate Gregory, but he suffered severe brain damage as a result of the loss of oxygen to his brain. The Gendeks remained at Gregory's bedside during his subsequent course of treatment. During that time, the Gendeks witnessed Gregory experiencing severe convulsions, undergoing suction treatment, and enduring numerous intravenous treatments, examinations, and tests, including ice water in his ears, fingers down his throat, and poking of his eyes. Gregory was placed on life-support machines, which the Gendeks terminated on the forty-fifth day. Gregory died shortly thereafter.

Almost five years after Gregory's death, the Gendeks were examined by a neuropsychiatrist who concluded that both Gendeks suffered from a condition known as "uncomplicated bereavement." That condition resulted in Mrs. Gendek exhibiting depression and Mr. Gendek exhibiting repressed emotions with resulting blunting of affect and response.

The Gendeks filed suit against MMC and the doctors and nurses allegedly responsible for Gregory's death. The Gendek complaint stated causes of action for medical and nursing malpractice, administrative negligence, and negligent infliction of emotional distress attributable to the death of Gregory Gendek.

Thereafter, MMC moved for partial summary judgment seeking dismissal of the emotional distress claim. The trial court granted that motion. Thereafter, the Gendeks moved before the Appellate Division for leave to appeal the trial court's order granting partial summary judgment. The Appellate Division denied leave to appeal. On the Gendek's motion for reconsideration, the trial court reaffirmed its earlier decision. The Gendeks again moved before the Appellate Division for leave to appeal, which was granted. In a reported decision, the Appellate Division affirmed the trial court's dismissal of the parents' claim for negligent infliction of emotional distress.

The Supreme Court granted the Gendeks' motion for leave to appeal.

HELD: To maintain an indirect claim for negligent infliction of emotional distress resulting from alleged medical malpractice, an immediate, close and clear involvement or connection must be present between the person suffering emotional distress and the conduct of the professional health-care providers whose fault has contributed to the serious or fatal injuries of a related loved one. Partial summary judgment was appropriately granted because that high degree of involvement and connection was absent in this case.

1. A direct claim for negligent infliction of emotional distress can be maintained in cases in which a person is the direct object of the wrongdoer's negligence and experiences severe emotional trauma as a result of the wrongdoer's negligent act or omission. An indirect claim for negligent infliction of emotional distress can be maintained in cases in which a person, not otherwise a direct object of the wrongdoer's negligence, experiences severe emotional distress when a related loved one suffers serious or fatal injuries as a result of that negligence. These cases are known as bystander-liability cases. (pp.6-9)

2. The special requirements that are imposed to establish an indirect claim for emotional distress resulting from medical malpractice apply to the circumstances of this case. Mrs. Gendek's claim is for emotional distress caused by nursing and medical malpractice on her infant son who was born alive, without complications. Mr. Gendek's states at most an indirect claim for emotional distress arising out of the negligent treatment of his son. (pp. 9-12)

3. Because the alleged negligence occurred after Gregory's birth, the standard announced in Frame v. Kothari controls the Gendek's claim. According to Frame, an indirect claim for emotional distress caused by medical malpractice must be based on evidence demonstrating that the victim was (1) a marital or intimate family member of the claimant, and that the claimant (2) witnessed the malpractice, and (3) immediately connected or associated the malpractice with the injury, and (4) as a result, suffered severe emotional distress. Here, neither parent observed any negligent act or omission that they immediately associated with Gregory's condition, nor did either parent observe any act of malpractice. More importantly, neither parent immediately connected any act of malpractice with Gregory's respiratory failure or the need to perform emergency medical procedures. (pp. 12-16)

Judgment of the Appellate Division is AFFIRMED.

JUSTICE STEIN, Dissenting, is of the view that the requirement that the mother observe and be aware of the malpractice overstates the holding in Frame and imposes an artificial exclusion from the already narrow category of recognized bystander-liability cases. Frame's modification of Portee should be understood as an exception from, not as a substitute for, the Portee guidelines; thus, a bystander's medical-malpractice action for emotional-distress damages that satisfies Portee should succeed even if the claimant was unaware of the malpractice when it occurred.

CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, O'HERN and GARIBALDI join in JUSTICE HANDLER'S opinion. JUSTICE STEIN filed a separate Dissenting opinion. JUSTICE COLEMAN did not participate.

HANDLER, J.

This case involves the claim of parents for negligent infliction of emotional distress arising out of the death of their infant son. The baby was born in apparent good health, but subsequently developed profound respiratory problems during a standard post-birth incubatory period. As a result of the respiratory problems, the baby stopped breathing. Although medical personnel were able to resuscitate the infant, he suffered severe brain damage as a result of the loss of oxygen to the brain. The parents eventually decided to remove life-support machines from the forty-five day old infant, who then died.

The parents filed a complaint in their individual capacities and as administrators ad litem, in which they alleged medical and nursing malpractice, administrative negligence, and negligent infliction of emotional distress attributable to the death of their child. We consider this case on the parents' motion for leave to appeal the lower courts' dismissal of their claim for negligent infliction of emotional distress.

The Court must decide whether parents who apparently were unaware of and did not witness any professional malpractice that resulted in their child's eventual death may recover for the emotional distress they suffered in observing the initial frantic but ultimately futile efforts to save their child's life.

I

Jean Gendek gave birth to a baby boy by normal vaginal birth at 7:28 a.m. on September 27, 1987. The boy, later named Gregory, appeared healthy at birth.

In accordance with standard procedure, Gregory was transferred to the Neonatal Nursery after birth. The nurse on duty at the Nursery noted that Gregory had a hematoma on the left side of his forehead and appeared slightly dusky. The nurse also noted that Gregory's color returned to normal after stimulation. A noontime notation reflects that Gregory was reported dusky three times between birth and 12:00 noon but that his color returned to normal after stimulation. At 1:35 p.m. on the 27th (the day of birth), the on-duty nurse noted that no suck reflex was detectable on Gregory.

By 2:00 p.m. Gregory was with his mother in her room. Hospital records reflect that she was caring well for the baby's needs. The baby stayed with Mrs. Gendek for several hours -- at leasts until 8:00 p.m. and most likely until 10:00 p.m. Hospital records reflect that at all times, Mrs. Gendek was properly caring for Gregory. At one point during the baby's stay with his mother in her room, Mrs. Gendek noticed that the baby's hands and feet were purple. Somewhat alarmed, she informed a nurse of that fact, but the nurse responded: "he's ...


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