Carey v. Lovett

HANDLER, J.,

concurring.

In this litigation, the Court is confronted with a very clear case of malpractice committed on an expectant mother in the weeks and days preceding the birth of the infant,' throughout the event of the birth itself, and thereafter during the brief time leading to the infant’s death. The fairness and decency of *71 recognizing a duty of care directly owing to the mother is obvious beyond any doubt in this setting.

The Court refrains from characterizing the mother’s cause of action, saying rather that the “principles” that underlie her claim are more important than the label. Ante at 57, 622 A.2d at 1286. Nevertheless, the Court seems to imply that the duty owed the mother and her claim arising from her baby’s fatal condition may be more analogous to those of a “bystander” than of a patient herself.

The significance of the Court’s apparent conceptualization of the mother’s cause of action is its emphasis on the need to prove genuine and severe emotional injury. Extreme emotional injury is required as a basis for bystander liability, see Frame v. Kothari, 115 N.J. 638 , 560 A.2d 675 (1989); Portee v. Jaffee, 84 N.J. 88, 101 , 417 A.2d 521 (1980), as well as for tortious infliction of emotional distress, see, e.g., Buckley v. Trenton Sav. Fund Soc’y, 111 N.J. 355 , 544 A.2d 857 (1988); Strachan v. J.F.K. Memorial Hosp., 109 N.J. 523 , 538 A.2d 346 (1988). The Court does suggest that the “unique relationship between a pregnant mother and her baby” can serve as a proxy for genuine and severe emotional distress. This relationship, the Court observes, “mitigates the need for the additional requirements of an ‘indirect claim’ for emotional distress,” including any need for the mother to be “ ‘shocked’.” Ante at 59, 622 A.2d at 1286. Nevertheless, the Court holds that the mother must still prove that she suffered severe emotional distress in order to prove a claim for emotional distress arising from the injury and death of her newborn baby. Ante at 62, 622 A.2d at 1288. In short, the Court seems to view the mother’s claim in this case as a variant of bystander liability importing the need to demonstrate substantial emotional injury.

I am puzzled and troubled by the Court’s reasoning, which in some ways relegates the mother to the status of a mere bystander when it is painfully obvious that she herself is the patient. The fatal injuries suffered by the baby occurred in the *72 course of treating the mother. I can only surmise that the Court, has resorted to principles of bystander liability in order to require genuine and severe emotional injury as an element of the mother’s cause of action. That the genuineness and severity of the emotional distress should remain dominant departs from the Court’s prior decisions concerning direct injury to parents in the context of medical malpractice.

We have fully considered, addressed, and overcome any concern that emotional injury surrounding a tragic birth occasioned by malpractice must reach a minimum level of severity to constitute an appropriate and reasonable basis for compensating the mother for the wrong she has suffered. See Giardina v. Bennett, 111 N.J. 412 , 545 A.2d 139 (1988); Procanik v. Cillo, 97 N.J. 339 , 478 A.2d 755 (1984); Schroeder v. Perkel, 87 N.J. 53 , 432 A.2d 834 (1981); Berman v. Allan, 80 N.J. 421 , 404 A.2d 8 (1979). The emotional injury determines the amount, not the right, of recovery. The right of recovery is based on the -breach of duty. The predicate of the cause of action in these circumstances should be the direct duty of care owing to the mother, based on the professional relationship between doctor and patient. That relationship necessarily implies that the mother should be able to recover damages for all provable injuries, including emotional harm regardless of degree, that proximately flow from the doctor’s wrongful conduct. See, e.g., Evers v. Dollinger, 95 N.J. 399, 410 , 471 A.2d 405 (1984). Indeed, the emotional injury flowing from a tragic birth occasioned by medical malpractice will rarely be meretricious or illusory. We ought not impose any requirement that emotional injury reach extremes before determining that the breach of duty based on the doctor-patient relationship allows the award of compensatory damages involving emotional injury.

The Court perceives the need to establish genuine and severe emotional injury because it fears that claims in these kinds of cases have the potential to engender speculative and excessive awards. Ante at 58, 622 A.2d 1286 . The Court also expresses *73 apprehension over the effects of expanding malpractice liability. Ante at 58, 622 A.2d at 1286.

To a great extent the Court’s concerns are fueled by matters that are not settled or established by the record and, indeed, have generated real controversies as a matter of governmental and social policy. 1 Those concerns should not impel us in a case such as this to conclude that the floodgates will be opened to emotional injury that is unreal, feigned, imaginary, or exaggerated. Far clearer than the bases for these concerns is that in cases of this kind, the injury to the mother is patent and palpable. Common experience tells us that not only is maternal emotional injury in this setting genuine and severe, it is virtually inescapable.

The Court also posits only an indirect duty owing to the father. In that respect, it departs from the view that the father’s claim against the doctor, based on the mishandling of his wife's pregnancy, may involve a direct duty owing to the father. Thus, we have recognized that a direct duty is owed to the father where the malpractice consists of genetic counseling. See Procanik, supra, 97 N.J. 339 , 478 A.2d 755 (1984); Schroeder, supra, 87 N.J. 53 , 432 A.2d 834 (1981); Berman, supra, 80 N.J. 421 , 404 A.2d 8 (1979). Implicit in those decisions is that both parents participate in the doctor-patient relationship with respect to the conception and gestation of their child, and the *74 doctor in that setting counsels both parents and owes both of them the duty of exercising reasonable medical care. We have similarly recognized that a duty is directly owing to the father in the circumstances leading to a tragic stillbirth. Giardincc, supra, 111 N.J. at 419, 545 A.2d 139 .

The facts of this case demonstrate that the father was personally and directly involved in the events surrounding the treatment of the mother during her pregnancy and the birth of the infant. The Court observes: “When the father is drawn sufficiently into the treatment of the mother and baby, the physician’s duty to him is like that owed to the mother.” Ante at 61, 622 A.2d at 1287. The Court, however, chooses to explain and posit the duty owed to the father based only on his status as a “bystander” in the treatment of his wife and child. I disagree.

The circumstances of this case suggest that a duty of reasonable medical care was undertaken and directly owed .to the father as a participating parent, as it was to the mother. Those circumstances should serve as the basis for determining that the father has a cause of action based on the breach of that duty. To characterize the father’s status in this context as a ‘■bystander” is to miscast the role of the father and the responsibility of the doctor to the family. When the father has been directly involved in the treatment of the mother and birth of the child, whether or not he qualifies as a “bystander,” he should be entitled to recover for genuine emotional injury resulting from the doctor’s malpractice.

For example, recent studies of medical malpractice in New Jersey and New York bring into question the hue and cry over expanding malpractice liability. A study of patients "significantly injured by malpractice” in New York State hospitals found that only one in eight patients ever made a claim. "Medical Malpractice: Whose Lottery Is It Anyway?” N.Y.L.J., January 26, 1993, at 2. A study of medical-malpractice claims in New Jersey found that insurers fail to compensate about 10% of victims of "indefensible” malpractice, and defensible claims were usually not compensated. Mark I. Taragin, et ah, The influence of Standard of Care and Severity of Injury on the Resolution of Medical Malpractice Claims, 117 Annals of Internal Medicine 780, 784 (1992). The New Jersey study also found that the defense won 75% of cases reaching trial, even for indefensible or unclear cases. Huge jury awards were in fact rarely awarded. Id. at 783-84.