July 22, 2013
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 diagnose and treat baby M.L. In his answer dated April 13, 2011, Dr. Santoro denied plaintiffs' allegations.
On February 23, 2012, the parties entered into a written "stipulation of facts." Pursuant to the stipulation, the parties agreed:
Assuming that the minor plaintiffs . . . were present in the examining room with their parents and the decedent during Dr. Santoro's examination of [baby M.L.] on July 7, 2006, [none of the children] by virtue of their ages, knowledge and experience concluded or otherwise perceived that Dr. Santoro had deviated from accepted standards of medical care by taking any action required of him or by failing to act in any manner that day.
[None of the children] at the time that they perceived [baby M.L.] was in need of emergency medical care shortly after he had been seen by Dr. Santoro on July 7, 2006 by virtue of their ages, knowledge and experience, concluded or perceived that there was any connection between their brother's need for emergency medical treatment and any deviation from accepted standards of care on the part of Dr. Santoro.
[None of the children] have received treatment for any psychological or psychiatric condition diagnosed by any medical professional as severe emotional distress, severe post-traumatic stress disorder, or any other severe psychological or psychiatric condition caused or exacerbated as a result of the events of July 7, 2006, including witnessing the death of their brother, [baby M.L.], a short time after he was seen by Dr. Santoro on that date.
Dr. Santoro filed a motion for summary judgment on April 10, 2012, which plaintiffs opposed. When the matter was heard on May 25, 2012, plaintiffs argued the issue was whether a claim for negligent infliction of emotional distress "in a medical malpractice setting can be brought by a minor." Plaintiffs further stated, "All that's important in . . . most other states is that the active malpractice be witnessed and that the result be witnessed. And . . . there's no question here that that has taken place."
The court granted defendant's motion for summary judgment, reasoning as follows:
Plaintiffs [admit] they did not perceive that Dr. Santoro deviated from any standard of care nor did the plaintiffs make any connection between [baby M.L.'s] need for care and Dr. Santoro's alleged misdiagnosis. It is clear that the plaintiffs did not form the requisite connection to appreciate Dr. Santoro's alleged negligence and resulting death of their brother.
The court memorialized its decision in an order dated May 25, 2012.
On appeal, plaintiffs argue "it is unreasonable and unrealistic to require minor plaintiffs to immediately recognize medical malpractice as such in order to recover for any emotional harm they experience, as the result of observing its effects." Plaintiffs also argue they witnessed a shocking event and "suffered a 'loss of basic emotional security' sufficient to withstand summary judgment under Frame v. Kothari [115 N.J. 638 (1989)]." We conclude from our examination of the record and the applicable law that these arguments are without merit, Rule 2:11-3(e)(1)(E), and only require the following comments.
Summary judgment is appropriate where the pleadings and evidence "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). As stated by the Court:
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)).]
When reviewing an order granting summary judgment, we utilize the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We first determine "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 536 (quoting Liberty Lobby, supra, 477 U.S. At 251-52, 106 S.Ct. at 2512, 91 L.Ed.2d at 214). If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct. Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J.Super. 255, 258 (App. Div. 1987).
"Recovery for the negligent infliction of emotional distress is meant to cover the observation of shocking events that do not occur in the daily lives of most people." Frame, supra, 115 N.J. at 643-44. The elements of a negligent infliction of emotional distress claim in the context of medical malpractice is well-established:
[A]n indirect claim for emotional distress attributable to 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.
[Gendek v. Poblete, 139 N.J. 291, 300 (1995) (citing Frame, supra, 115 N.J. at 643).]
"[A] misdiagnosis normally does not create the kind of horrifying scene that is a prerequisite for recovery." Frame, supra, at 647-48. "Rarely will a member of the patient's family contemporaneously observe the immediate consequences of the defendant's misdiagnosis, and even more rarely will the results of the misdiagnosis be the injury or death of a loved one." Id. at 648.
In the present matter, the parties stipulated that none of the minor children "concluded or perceived that there was any connection between their brother's need for emergency medical treatment and any deviation from accepted standards of care on the part of Dr. Santoro." Under these circumstances, the trial court correctly concluded that Dr. Santoro was entitled to summary judgment as a matter of law.