W.L. and J.L., Individually and as Guardians Ad Litem for the minor plaintiffs M.L., M.L., and M.L., and as Administrators ad Prosequendum for the Estate of M.L., Deceased, Plaintiffs-Appellants,
ANTHONY F. SANTORO, M.D., and Defendant-Respondent, STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-966-08.
G. Martin Meyers argued the cause for appellants (Law Offices of G. Martin Meyers, P.C., attorneys; Mr. Meyers, on the brief).
Alan J. Baratz argued the cause for respondents (Weiner Lesniak LLP, attorneys; Mr. Baratz and Duncan W. Francis, of counsel and on the brief).
Before Judges Graves and Ashrafi.
W.L. and J.L., as guardians ad litem for their three minor children, M.L., M.L., and M.L. (collectively plaintiffs) appeal from a May 25, 2012 order that granted summary judgment in favor of defendant Anthony Santoro, M.D., and dismissed plaintiffs' complaint with prejudice. In the complaint, plaintiffs alleged that Dr. Santoro's malpractice caused the death of a fourth child, sixteen-month-old baby M.L., and plaintiffs asserted a claim for negligent infliction of emotional distress. For the reasons that follow, we affirm.
Baby M.L. was born in March 2005. In response to a referral, Division workers went to plaintiffs' residence in January 2006. They explained St. Peter's University Hospital had reported that baby M.L. suffered two separate fractures to his legs over the course of about two months and may have been the victim of child abuse. At that time, the Division performed an emergency removal of all four children. According to plaintiffs, the court awarded temporary custody of the children to the Division and baby M.L. was placed in a foster home following a hearing on January 17, 2006.
The three older children were returned to their parents on January 31, 2006, after the Division failed to substantiate abuse or neglect. The court ordered baby M.L. to be returned to his parents on May 3, 2006.
After returning home, plaintiffs stated baby M.L. developed symptoms "related to a typical childhood virus or upper respiratory infection." Plaintiffs brought him to his regular pediatrician, Dr. Santoro, on July 7, 2006. Because the three older children were on vacation from school, they accompanied their parents to the doctor's office and were present when Dr. Santoro examined their baby brother. Based on his examination, Dr. Santoro prescribed an antibiotic and advised the parents to watch the baby and to contact him if "further problems were observed."
As plaintiffs were driving to a pharmacy to fill the prescription, baby M.L. "quietly went to sleep in his infant car chair" and "never woke up." The drive from the doctor's office to the pharmacy took about thirty-five minutes. W.L. went inside the pharmacy while the rest of the family waited in the car. Baby M.L. "looked like he was asleep, " but when J.L. reached over to touch him, he "rolled to the side" and was "limp and unconscious."
Unsuccessful attempts to resuscitate baby M.L. were witnessed by the children, and an autopsy revealed he died from "Waterhouse-Friderichsen syndrome due to Neisseria meningitides infection." At the time of the incident, the minor plaintiffs were ages four, seven, and ten.
W.L. and J.L. commenced this action on June 24, 2008, against the Division, Mary McArdle, and Rainbow Academy Day Care Center. On February 4, 2011, plaintiffs filed an amended complaint, naming Dr. Santoro as a defendant. In the amended complaint, plaintiffs alleged medical malpractice and negligent infliction of emotional distress by defendant, based on his failure to properly ...