On appeal from Superior Court of New Jersey, Law Division, Burlington County.
Approved for Publication April 4, 1997. As Amended June 6, 1997.
Before Judges Shebell, Baime and P.g. Levy. The opinion of the court was delivered by Baime, J.A.D. Shebell, P.j.a.d., Concurring in part and Dissenting in part.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by
Plaintiff Geraldine Greene, individually and as administratrix of the estate of her deceased daughter Willyonna Greene, appeals from a judgment entered at the Conclusion of her case dismissing her claims for medical malpractice and negligent infliction of emotional distress against defendants Dr. Patti Brown and South Jersey Emergency Physicians, P.A. Although numerous issues are presented, the principal question is whether a parent who witnesses acts of medical malpractice in the treatment of her child may maintain a claim for negligent infliction of emotional distress where she cannot prove that the doctor's negligence proximately caused the child's death or serious injury. We hold that she may not and affirm the Law Division's judgment.
Plaintiff brought this action against Memorial Hospital of Burlington County, three registered nurses employed in the hospital's emergency department, South Jersey Emergency Physicians - a professional association that had contracted with the hospital to perform emergency room services, and Dr. Patti Brown - a member of the association. Plaintiff settled with the hospital and its employee nurses, and the trial proceeded with the remaining defendants.
On February 4, 1991, ten year old Willyonna returned home from school complaining of chest pains and tiredness. After giving Willyonna a light supper, plaintiff assisted the child to her bedroom where she immediately fell asleep. Plaintiff noticed that Willyonna's breathing was shallow and appeared abnormal. Concerned by Willyonna's listlessness, plaintiff decided to take the child to the hospital.
Upon arriving at the emergency department at 10:23 p.m., plaintiff told the clerk at the desk that Willyonna was experiencing chest pain and had difficulty breathing. Four minutes later, at 10:27 p.m., the triage nurse, Donna Blickle, took Willyonna's vital signs, including her temperature, blood pressure, pulse and respiratory rates. Willyonna had a pulse rate of 101 and a respiratory rate of forty, which Blickle recorded on Willyonna's chart. Willyonna told Blickle that she started experiencing chest pain while walking home from school earlier that day and that the pain increased when she coughed or took a deep breath. Blickle noticed that Willyonna had a cough and was taking shallow breaths, but nevertheless told plaintiff and the child to sit in the waiting area.
Julie Fenimore, whose shift began at 11:15 p.m., was assigned the duties of both triage and charge nurse in the emergency department. Upon her arrival, Fenimore received a report from Blickle, who had completed her shift, respecting the status of the patients who were in the emergency department. Fenimore was informed by Blickle that Willyonna had chest pain and difficulty breathing. Fenimore reviewed Willyonna's chart and concluded that she was not in acute distress. The emergency department was very busy that night and Fenimore gave priority to the patients who appeared in need of immediate treatment.
Fenimore's first contact with Willyonna occurred at 12:15 a.m., when she took Willyonna's chart from the rack and called her name. Plaintiff and Willyonna entered the triage booth and Fenimore took Willyonna's vital signs. At this point, Willyonna's pulse had increased to 170 and her respiratory rate was eighty. Fenimore, who recorded this information on Willyonna's chart, realized that these rates were higher than they had been when Willyonna first entered the emergency department. Fenimore noted that Willyonna was taking shallow, rapid breaths. However, when Fenimore told Willyonna to relax and count her breaths in order to slow her breathing, Willyonna was able to do so. Thus, Fenimore felt that Willyonna was hyperventilating due to anxiety and was not in acute distress. Fenimore also noted that Willyonna's skin was warm and dry, and that she was oriented. Willyonna told Fenimore that she had pain on inspiration and felt "bad."
At this point, Fenimore escorted plaintiff and Willyonna to an examining room in the rear of the emergency department. Willyonna was weighed and instructed to undress and change into a hospital gown. Fenimore then listened to Willyonna's lungs with a stethoscope and found that they were clear "bilaterally in all fields."
At approximately 12:30 or 12:35 a.m., Fenimore informed Brown that Willyonna had a rapid respiratory rate and that her vital signs had changed. Although Fenimore initially testified that she showed Willyonna's chart to Brown, she later claimed that she could not recall whether she had done so. In any event, Fenimore told Brown that she thought Willyonna was hyperventilating and asked Brown for authorization to give Willyonna a paper bag in ...