Before Judges King, Cuff and Winkelstein. On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-1231- 00.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This is an appeal from a summary judgment order dismissing a complaint for damages by parents of a stillborn child against physicians employed by the State and a "public entity" hospital. The Law Division judge ruled that this claim did not satisfy the Tort Claims Act (TCA) threshold for pain and suffering damages: "permanent loss of bodily function, permanent disfigurement or dismemberment." N.J.S.A. 59:9-2(d). We reverse and conclude that the claim of a stillborn birth caused by negligent medical care constitutes an objective and serious consequence which satisfied the TCA's threshold for pain and suffering damages.
We discuss only the information pertinent to our decision on the threshold issue. There is no dispute that defendant, the University of Medicine and Dentistry of New Jersey (UMDNJ), was a "public entity" within the meaning of N.J.S.A. 59:1-3, and subject to the TCA's provisions in March 1998, the time of the alleged malpractice causing plaintiff Lisa Willis's post-term C- section delivery of a stillborn baby. Lowe v. Zarghami, 158 N.J. 606, 614 (1999). The TCA imposes liability on UMDNJ for an employee's negligence. "A public entity is liable for injury proximately caused by an act or omission of a public employee within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances." N.J.S.A. 59:2-2(a). Also, without dispute, defendant-physicians, Drs. Ashby, Nemeth and Fernandez, were employees of UMDNJ and were subject to N.J.S.A. 59:3-1(a): "Except as otherwise provided by this act, a public employee is liable for injury caused by his act or omission to the same extent as a private person." Ibid. The exception to this principle of liability applies where the employee is entitled to any of the TCA's immunities. N.J.S.A. 59:3-1(b) and (c).
No such immunity attaches to the acts of treating physicians. The TCA immunizes only the public-health activities of physicians and expressly approves of liability for treatment of patients:
Except for an examination or diagnosis for the purpose of treatment, neither a public entity nor a public employee is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination, of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others. . . . [N.J.S.A. 59:6-4 (emphasis added).] See Kemp by Wright v. State, County of Burlington, 147 N.J. 294, 302 (1997) (discussing the legislative intent of N.J.S.A. 59:6- 4).
The judge correctly concluded that defendants were liable for any negligent acts committed in the course of their employment with UMDNJ. The key question on this appeal is whether their liability for the stillbirth is limited by the threshold damage section of the TCA restricting recovery for pain and suffering, N.J.S.A. 59:9-2(d).
Plaintiffs argue that the motion judge wrongly ruled they had failed as a matter of law to establish their claim to pain- and-suffering damages under N.J.S.A. 59:9-2(d). They insist that they created a jury question on whether severe psychological injuries caused by the death of their child resulted in the kind of objective physical symptoms required by the cases construing this section of the TCA.
The TCA limits damages which may be awarded for pain and suffering.
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00. For purposes of this section medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical and dental treatment of the claimant for such ...