ESTATE OF LYNETTE SMITH v. RILEY et al
Filing
60
OPINION. Signed by Judge Noel L. Hillman on 6/15/2016. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ESTATE OF LYNETTE SMITH,
et al.,
Plaintiffs,
v.
JOSEPH P. RILEY, D.O.,
et al.,
Defendants.
ESTATE OF LYNETTE SMITH,
et al.,
Plaintiffs,
v.
JOSEPH P. RILEY, D.O.,
et al.,
Defendants.
:
:
:
:
:
:
:
:
:
:
:
Civ. A. No. 14-7247 (NLH)(KMW)
OPINION
:
:
:
:
:
:
:
:
:
:
:
Civ. A. No. 15-7374 (NLH)(KMW)
APPEARANCES:
THOMAS P. CONNELLY, JR., ESQUIRE
2090 MARLTON PIKE EAST
CHERRY HILL, NJ 08003
On behalf of Plaintiffs
SCOTT C. BUSHELLI, ESQUIRE
EDWARD I. WICKS, ESQUIRE
STAHL & DELAURENTIS, PC
10 EAST CLEMENTS BRIDGE ROAD
RUNNEMEDE, NJ 08078
On behalf of Defendants Kidney and Hypertension Specialists,
P.A., Dr. Elis Priori, M.D. and Dr. Naeem Amin, M.D.
1
HILLMAN, District Judge
Presently before the Court are two motions to dismiss filed
by Defendant Kidney and Hypertension Specialists (herein referred
to as “KHS”) and Defendants Elis Priori and Naeem Amin
(collectively with KHS “KHS defendants”). Also before the Court
is Plaintiff Lorraine Lemon’s motion to vacate certain orders of
the state trial court. For the reasons expressed below,
Defendants’ motions will be granted and Plaintiff’s motion will
be denied.
BACKGROUND
Decedent, Lynette Smith, originally filed this action in the
Superior Court of New Jersey, Law Division, Cumberland County, on
May 22, 2012.
(Notice of Removal ¶ 1 [Doc. No. 1.])1
Decedent’s
complaint alleged several claims arising from a hysterectomy
performed on September 9, 2003.
(Compl. [Doc. No. 3–1.])
The
original complaint alleged that Defendant Joseph J. Riley, D.O.,
1
The record citations in this Opinion refer to Civ. A. No. 147247. It appears that the second matter, Civ. A. No. 15-7374
(NLH)(KMW), arising from the same facts as Civ. A. No. 14-7247
was opened by the Clerk when the Plaintiff filed a complaint
alleging a new claim of bystander liability. Since the Estate had
already been substituted in as the plaintiff in the earlier
removed action it is unclear why the new complaint was not filed
as an amended complaint in Civ. A. No. 14-7247, or leave sought
to do so. The parties will be ordered to show cause why the two
matters should not be consolidated for all purposes and the
latter filed action dismissed.
2
performed the surgery and allowed Smith to be released from the
operating room with a metallic surgical suture or clamp remaining
in her body.
(Compl. ¶ 25 [Doc. No. 3–1.])
This error allegedly
caused Decedent to suffer urinary retention and complete failure
of her left kidney.
(Id. ¶ 26.)
Subsequent to the hysterectomy, Decedent sought medical
treatment from her primary care physicians, Defendants Community
Health Care Inc., Hasmukhbai Patel, M.D., and Raghuraj Tomar,
M.D., for complaints of abdominal pain, nausea, constipation and
thirst.
(Id. ¶¶ 44, 45.)
Despite her symptoms, which were
allegedly indicative of renal insufficiency or renal failure,
Community Health, Drs. Patel and Tomar did not refer her to a
kidney specialist or nephrologist and did not conduct diagnostic
tests which would have revealed renal insufficiency.
(Id. ¶ 47.)
In 2008, Decedent sought medical attention at South Jersey
Healthcare for the same symptoms where she underwent a CT scan
for suspected renal failure.
(Id. ¶ 48.)
Decedent was then
referred to KHS, where Defendants Priori and Amin were employed,
and although the surgical clamp was detected on her left side,
she was told that her failing left kidney was the result of other
ailments.
(Id. ¶ 52.)
However, in early 2011, Decedent sought medical attention at
South Jersey Healthcare's emergency room, at which time an
3
unknown physician advised her that her kidney failure may have
been due to the surgical clamp, and not solely due to other
ailments.
(Id. ¶ 29.)
Decedent thus alleged in the original
complaint that Defendants Priori and Amin failed to order several
necessary diagnostic tests, which led to a worsening of her
condition.
(Id. ¶¶ 54–60.)
On January 7, 2013, in the state court action Defendants
Priori and Amin moved for dismissal.
The claims against
Defendants Priori and Amin were dismissed from the state court
action on the basis of Decedent’s failure to timely obtain an
affidavit of merit.
On January 20, 2014, Decedent died due to
complications of kidney failure.
(Am. Compl. ¶¶ 2–3 [Doc. No.
34.])
On February 28, 2014, Decedent’s mother, Plaintiff Lorraine
Lemon, filed an amended complaint substituting as plaintiff the
Estate of Lynette Smith and adding claims for wrongful death,
survivorship, and negligent infliction of emotional distress.
Defendants Priori and Amin were again named as Defendants in the
Amended Complaint, and the Amended Complaint was served on these
Defendants' counsel via certified mail on February 28, 2014.
The
Amended Complaint was served on KHS directly via certified mail
on the same day.
4
On November 20, 2014, the United States removed the case to
federal court.
The notice of removal was supported by a
Certification by the United States Attorney's Office for the
District of New Jersey stating that Defendants Community Health
Care, Patel and Tomar were “acting within the scope of their
employment as employees of the United States at the time of the
conduct alleged in the Complaint.”
Employment [Doc. No. 1–6.])
(Cert. of Scope of Fed.
The United States moved to
substitute itself as a defendant and dismiss the complaint
against it on the ground that Plaintiff failed to exhaust
administrative remedies as required under the Federal Tort Claims
Act.
[Doc. No. 2.]
The Court granted the United States’ motion
and dismissed the complaint without prejudice.
[Doc. No. 24.]
United States has since re-entered appearances subsequent to
Plaintiff’s service of her Amended Complaint.
[Doc. Nos. 34,
48.]
Approximately one year after Plaintiff served the KHS
Defendants, Plaintiff requested the entry of default against
these Defendants for their failure to respond to the Amended
Complaint.
[Doc. Nos. 7, 8.]
Default was entered as to
Defendants Priori and Amin on March 4, 2015, and as to KHS on
March 9, 2015.
On March 12, 2015, Plaintiff filed a motion for
default judgment as to Defendants KHS, Priori, and Amin.
5
Counsel entered an appearance on behalf of the defaulting
defendants on March 19, 2015 and opposed the motion for default
judgment.
[Doc. Nos. 11, 13.]
The Court denied Plaintiff’s
motion for default judgment and reasoned that because the case
against Priori and Amin was dismissed by the state trial court,
had they been the only defendants, the case would have been
closed.
(July 31, 2015 Order [Doc. No. 24.]); Smith v. Riley,
No. 14-7247, 2015 WL 4615913, at *7 (D.N.J. July 31, 2015).
When
Plaintiff “amended the complaint to assert a wrongful death claim
. . . Plaintiff essentially brought Priori and Amin in as new
parties” and therefore would be required to serve process upon
Priori and Amin in accordance with N.J. Ct. R. 4:4–4.
Id.
Defendants Priori, Amin, and KHS were served on October 23, 2015.
[Doc. No. 38.]
Defendants Priori, Amin, and KHS now move for
dismissal pursuant to Fed R. Civ. P. 12(b)(6).
43.]
[Doc. Nos. 42,
Additionally, Plaintiff moves for the Court to vacate
certain state trial court orders.
[Doc. No. 44.]
JURISDICTION
The Court exercises jurisdiction on grounds that the United
States is a defendant and that the federal district courts “have
exclusive jurisdiction of civil actions on claims against the
United States, for money damages, accruing on and after January
1, 1945, for injury or loss of property, or personal injury or
6
death caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his
office or employment, under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred.” See 28 U.S.C. § 1346(b)(1). The Court exercises
supplemental jurisdiction over Plaintiff's state law claims
against the non-federal defendants pursuant to 28 U.S.C. § 1367.
MOTION TO DISMISS STANDARD OF REVIEW
When considering a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), a court must accept all wellpleaded allegations in the complaint as true and view them in the
light most favorable to the plaintiff. Evancho v. Fisher, 423
F.3d 347, 351 (3d Cir. 2005). It is well settled that a pleading
is sufficient if it contains “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Under the liberal federal pleading rules, it is
not necessary to plead evidence, and it is not necessary to plead
all the facts that serve as a basis for the claim. Bogosian v.
Gulf Oil Corp., 562 F.2d 434, 446 (3d Cir. 1977). However,
“[a]lthough the Federal Rules of Civil Procedure do not require a
claimant to set forth an intricately detailed description of the
asserted basis for relief, they do require that the pleadings
7
give defendant fair notice of what the plaintiff's claim is and
the grounds upon which it rests.” Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 149–50 n. 3 (1984) (quotation and citation
omitted).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claim.’”
Bell Atlantic v. Twombly, 550 U.S. 544, 563 n. 8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009)(“Our decision in Twombly
expounded the pleading standard for ‘all civil actions' . . .
.”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009)(“Iqbal . . . provides the final nail-in-the-coffin for the
‘no set of facts' standard that applied to federal complaints
before Twombly.”).
In reviewing a Rule 12(b)(6) motion, a court must only
consider the facts alleged in the pleadings, the documents
attached to or specifically referenced in the complaint if the
claims are based on those documents, and matters of judicial
notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426 (3d Cir. 1999); In re Bayside Prison
Litig., 190 F.Supp.2d 755, 760 (D.N.J. 2002); see also Winer
Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir. 2007).
8
DISCUSSION
I.
Medical Malpractice Resulting in Wrongful Death &
Survivorship (Counts I-II)
The Court finds that Plaintiff has failed to state a claim
for a wrongful death and survivorship action against Defendants
Priori and Amin because Decedent did not have a viable personal
injury claim against them at the time her death. Further,
Plaintiff is collaterally estopped from re-litigating the issue
of Priori and Amin’s liability because the state trial court
dismissed Decedent’s personal injury medical malpractice case
based on the same alleged negligent acts. The dismissal was with
prejudice and therefore constituted a finding on the merits
prohibiting Decedent from bringing future claims against the same
defendants arising from the same alleged acts.
A. Background New Jersey Law
Under New Jersey Law, wrongful death and survivorship claims
are each created by statute.
A plaintiff may bring a wrongful
death action:
When the death of a person is caused by a wrongful act,
neglect or default, such as would, if death had not ensued,
have entitled the person injured to maintain an action for
damages resulting from the injury, the person who would have
been liable in damages for the injury if death had not
ensued shall be liable in an action for damages,
notwithstanding the death of the person injured and although
the death was caused under circumstances amounting in law to
a crime.
9
N.J.S.A. § 2A:31-1.
The Court recognizes that a wrongful death
claim and a medical malpractice claim are independent claims.2
However, the law requires that a decedent have a viable personal
injury claim at the time of death in order for a wrongful death
beneficiary to bring a claim. Gunter v. Twp. of Lumberton, No.
07-4839, 2012 WL 2522883, at *11 (D.N.J. June 29, 2012) aff'd,
535 F. App'x 144 (3d Cir. 2013).
Thus, to state a claim for
wrongful death, Plaintiffs must assert: (1) that the decedent's
death was caused by a wrongful act, and (2) that the decedent
would have been able to maintain an action for damages had they
survived.
Id. at *11 (citing Miller v. Estate of Sperling, 166
N.J. 370, 741 (2001)).
Although a survivorship claim and a wrongful death claim are
similar, the two types of claims are aimed at repairing different
damages.
“The Survivor's Act, N.J.S.A. 2A:15-3, permits, for the
benefit of the decedent's estate, an appointed representative to
file any personal cause of action that decedent could have
brought had he lived.”
Aronberg v. Tolbert, 207 N.J. 587, 593
(2011)(citing Smith v. Whitaker, 160 N.J. 221, 233 (1999)).
In
short, the survivorship action preserves “the right of action
2
“A claim for wrongful death is independent of a claim for
malpractice.” Miller v. Estate of Sperling, 166 N.J. 370, 386-87
(2001).
10
which the deceased himself would have had to redress his own
injuries.” Aronberg, 207 N.J. at 593.
In summary, both wrongful death and survivorship claims
require the decedent to have had a viable claim if death had not
occurred.
A plaintiff essentially steps into a decedent’s shoes
to recover for the tortious acts committed against the decedent.
Accordingly, here, in order for Plaintiff to state a claim for
wrongful death or survivorship based on medical malpractice,
Plaintiff must demonstrate that Decedent could have brought a
viable claim for medical malpractice had she not died.
In the state court proceedings, Decedent failed to file a
sufficient affidavit of merit within the statutory period, and
accordingly, the state trial court dismissed the claims with
prejudice pursuant to the affidavit of merit statute. This
constituted a finding on the merits prohibiting Decedent from
bringing future claims against the same defendants arising from
the same alleged acts.
B. Collateral Estoppel Or Issue Preclusion
This Court also determines that Plaintiff’s wrongful death
and survivorship claims, although independent from a personal
injury claim, are barred by principles of collateral estoppel or
issue preclusion. Plaintiff’s claims underlying her wrongful
death and survivorship actions take the form of a medical
11
malpractice action.
“A malpractice action is based on the
improper performance of a professional service that deviated from
the acceptable standard of care.”
Zuidema v. Pedicano, 373 N.J.
Super. 135, 145, 860 A.2d 992, 998 (App. Div. 2004) (collecting
cases).
To state a claim for medical malpractice a plaintiff
“must establish by expert testimony the applicable standard of
care owed by a physician to a patient, a deviation from that
standard of care, and that the deviation proximately caused the
injuries.”
Id.
(citing Verdicchio v. Ricca, 179 N.J. 1, 23
(2004)).
Notably, prior to Decedent’s death, she brought a medical
malpractice action that alleged the same negligent acts pled in
Plaintiff’s amended complaint.
The state trial court dismissed
with prejudice Decedent’s medical malpractice case for failure to
comply with the affidavit of merit statute.3
This “dismissal with
prejudice constitutes an adjudication on the merits as fully and
completely as if the order had been entered after trial.”
Cornblatt v. Barow, 153 N.J. 218, 243 (1998).
3
Such a dismissal
“Failure to file an affidavit of merit concerning a specific
defendant constitutes a failure to state a cause of action
against that defendant.” Petition of Hall By & Through Hall, 147
N.J. 379, 390 (1997) (citing N.J.S.A. 2A:53A–29). Absent
“extraordinary circumstances,” a court should dismiss the cause
of action with prejudice for failure to comply with the affidavit
of merit statute. Cornblatt v. Barow, 153 N.J. 218, 708 A.2d
401, 413 (1998).
12
“concludes the rights of the parties as if the suit had been
prosecuted to final adjudication adverse to the plaintiff.”
Id.;
see also Balthazar v. Atl. City Med. Ctr., 137 F. App'x 482, 489
(3d Cir. 2005) (citing Velasquez v. Franz, 123 N.J. 498, 507
(1991) (finding that a dismissal with prejudice for want of an
affidavit of merit is an adjudication on the merits as fully and
completely as if the order had been entered after trial)). Thus,
the state court judgment constitutes a finding that Defendants
Priori and Amin were not liable for their alleged acts of medical
malpractice.
The Court does not find persuasive Plaintiff’s arguments
that New Jersey Supreme Court precedents do not require a
decedent to have a viable claim for personal injury prior to
death and that prior judgments do not estop wrongful death
beneficiaries from proceeding on their claims.4
4
Plaintiff’s letter brief cites to Miller v. Estate of Sperling,
166 N.J. 370 (2001), however, it is distinguishable from the
present case. In Miller, the court allowed a plaintiff to
proceed with a wrongful death action despite the fact that the
decedent never brought a personal injury claim in her lifetime
and such claims were barred by the statute of limitations. Id.
at 373. Here, however, an action was brought by decedent that
resulted in a final judgment on the merits, and thus, the
principle of collateral estoppel applies.
Plaintiff also cites to Alfone v. Sarno, 87 N.J. 99 (1981)
overruled on other grounds by LaFage v. Jani, 166 N.J. 412
(2001). In Alfone, the court found that a plaintiff’s wrongful
death action was not barred by a successful personal injury
action brought by decedent prior to death. Id. at 102. Although
the court allowed the action, it applied the principles of res
13
Collateral estoppel, or issue preclusion, “refers to the
effect of a judgment in foreclosing relitigation of a matter that
has been litigated and decided.”
Migra v. Warren City Sch. Dist.
Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).
The purpose of
precluding “parties from contesting matters that they have had a
full and fair opportunity to litigate protects their adversaries
from the expense and vexation attending multiple lawsuits,
conserves judicial resources, and fosters reliance on judicial
action by minimizing the possibility of inconsistent decisions.”
Montana v. United States, 440 U.S. 147, 153–54 (1979) (footnote
omitted).
With regard to issues first presented to a state tribunal,
the federal courts have consistently given preclusive effect to
issues decided by state courts, and, thus “res judicata and
collateral estoppel not only reduce unnecessary litigation and
foster reliance on adjudication, but also promote the comity
between state and federal courts that has been recognized as a
bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90,
95–96 (1980); see also 28 U.S.C. § 1738 (providing that the
judicata and recognized that a defendant should be bound by the
prior resolution of substantive issues concerning liability
arising from a single act. Id. at 110-11. Here, although
opposite facts are before the Court because Decedent was
unsuccessful in her personal injury action, this case still
applied collateral estoppel to wrongful death claims.
14
rulings of state courts “shall have the same full faith and
credit in every court within the United States . . . as they have
by law or usage in the courts of such state . . . from which they
are taken”).
In determining the preclusive effect of a state court
judgment, the Court applies the rendering state's law of issue
preclusion.
See Marrese v. Am. Acad. of Orthopaedic Surgeons,
470 U.S. 373, 381 (1985).
Thus, whether Plaintiff's wrongful
death and survivorship suit is precluded turns on the law of New
Jersey.
Under New Jersey law, in order for the doctrine of
collateral estoppel to apply to foreclose the relitigation of an
issue, the party asserting the bar must show that: (1) the issue
to be precluded is identical to the issue decided in the prior
proceeding; (2) the issue was actually litigated in the prior
proceeding; (3) the court in the prior proceeding issued a final
judgment on the merits; (4) the determination of the issue was
essential to the prior judgment; and (5) the party against whom
the doctrine is asserted was a party to or in privity with a
party to the earlier proceeding.
Olivieri v. Y.M.F. Carpet,
Inc., 186 N.J. 511 (2006) (citation omitted); see also In re
Liquidation of Integrity Ins. Co./Celotex Asbestos Trust, 214
N.J. 51, 67 (2013).
15
Defendants Priori and Amin contend that the state trial
court considered and ruled upon the same issues Plaintiff has
raised in her current complaint, and, therefore, Plaintiff is
precluded from relitigating those issues here.
Thus, the Court
must look at the substance of Plaintiff's claims, and determine
whether the state trial court already addressed the issues
underlying her claims.
In Plaintiff's amended complaint, she
claims that Defendants Priori and Amin deviated from the standard
of care by not ordering appropriate tests, which ultimately led
to a worsening of Decedent’s condition.
These very same
allegations also served as the basis for Decedent's personal
injury negligence claims against Defendants Priori and Amin.
The state trial court dismissed the action with prejudice
which constitutes a finding on the merits as fully and completely
as if the order had been entered after trial.
N.J. at 243; Balthazar, 137 F. App'x at 489.
See Cornblatt, 153
Thus, the issue of
Defendants Priori and Amin’s liability was actually litigated in
the state court proceeding.
See Cornblatt, 153 N.J. at 243;
Balthazar, 137 F. App'x at 489. Accordingly, Plaintiff cannot
seek recovery from Defendants Priori and Amin on the same basis
through this new action.
The issues raised here are identical to
the ones Decedent raised in the prior action, those issues were
fully litigated, and they were subject to, and essential to, the
16
prior final judgments.
Decedent.
Further, Plaintiff is in privity with
See Alfone v. Sarno, 87 N.J. 99, 111 (1981) overruled
on other grounds by LaFage v. Jani, 166 N.J. 412 (2001)
(“[W]rongful death beneficiaries can be said to be “in privity”
with the decedent or successors in interest to the extent that
their interests overlap with those of the decedent); see also
Zirger v. Gen. Acc. Ins. Co., 144 N.J. 327, 339 (1996)
(“Generally, one person is in privity with another and is bound
by and entitled to the benefits of a judgment as though he was a
party when there is such an identification of interest between
the two as to represent the same legal right . . . .”) (quoting
Moore v. Hafeeza, 212 N.J. Super. 399, 403-04, 515 A.2d 271 (Ch.
Div. 1986)).
As such, the issue clearly meets the issue
preclusion test, and Plaintiff's claims based on those issues are
therefore barred.
The Court finds that Plaintiff has failed to state a
wrongful death or survivorship claim because the issue of
Defendants Priori and Amin’s liability pertaining to the alleged
facts has been decided in previous judgment and therefore her
claims are barred under the principles of collateral estoppel.
The malpractice liability of Defendants Priori and Amin is an
essential element of Plaintiff’s wrongful death and survivorship
claim, therefore, Plaintiff’s inability to plead such elements
17
constitutes a failure to state a claim.
Because the Court finds
that Plaintiff has failed to state claims for both a wrongful
death action and a survivorship action against Defendants Priori
and Amin, Plaintiff’s respondeat superior claims against
Defendant KHS also fail.5
Allowing a plaintiff to repackage a
decedent’s failed personal injury claims as a wrongful death or
survivorship action effectively provides a second bite at the
apple and would require courts to entertain litigation of
previously settled matters.
For the forgoing reasons, the Court
will grant both Defendant KHS and Defendants Priori and Amin’s
motions to dismiss.
II.
Negligent Infliction of Emotional Distress Claim (Count III)
The Court finds that Plaintiff has failed to state a claim
for negligent infliction of emotional distress based on the
misdiagnosis of Decedent because Plaintiff did not witness the
misdiagnosis.
Further, the misdiagnosis was not cotemporaneous
5
“Under respondeat superior, an employer can be found liable for
the negligence of an employee causing injuries to third parties,
if, at the time of the occurrence, the employee was acting within
the scope of his or her employment.” Carter v. Reynolds, 175
N.J. 402, 408-09 (2003)(citing Lehmann v. Toys ‘R’ Us, Inc., 132
N.J. 587, 619 (1993)). “To establish a master's liability for
the acts of his servant, a plaintiff must prove (1) that a
master-servant relationship existed and (2) that the tortious act
of the servant occurred within the scope of that employment.” Id.
at 409. Here, because it was determined that no tortious act
occurred, Plaintiff failed to state a claim against Defendant KHS
based on a theory of respondeat superior.
18
to an immediate and shocking event, which is required to proceed
on such claims.
Under New Jersey law, a plaintiff can recover for the
negligent infliction of emotional distress in the absence of
physical injury, if he or she can prove “(1) the death or serious
physical injury of another caused by defendant's negligence; (2)
a marital or intimate, familial relationship between plaintiff
and the injured person; (3) observation of the death or injury at
the scene of the accident; and (4) resulting severe emotional
distress.” Portee v. Jaffee, 84 N.J. 88, 101 (1980).
The Portee
Court recognized that “the death or serious injury of an intimate
family member will always be expected to threaten one's emotional
welfare . . ., however, only a witness at the scene of the
accident causing death or serious injury will suffer a traumatic
sense of loss that may destroy his sense of security and cause
severe emotional distress.”
Id. at 99. Effectively, the New
Jersey Supreme Court limited recovery “to negligent conduct which
strikes at the plaintiff's basic emotional security.”
Id.
While New Jersey law does not bar negligent infliction of
emotional distress claims that are predicated on the misdiagnosis
of a family member, such claims are only recognized when a
negligent act is cotemporaneous to an immediate and shocking
event.
Frame v. Kothari, 115 N.J. 638, 649 (1989).
19
Specifically, the New Jersey Supreme Court in Frame found that
“if a family member witnesses the physician's malpractice,
observes the effect of the malpractice on the patient, and
immediately connects the malpractice with the injury” it could be
a shocking event and may be sufficient to allow recovery for the
family member's emotional distress.
Id.
The Court reasoned that
“[b]y its nature, diagnosis is an intellectual undertaking,” and
therefore, “the observing family member will not be exposed to
the harm of seeing a healthy victim one moment and a severely
injured one the next.” Id. at 644-45. Further, “[g]rief over the
gradual deterioration of a loved one, as profound as that grief
may be, often does not arise from a sudden injury” allowing the
observer “time to make an emotional adjustment.” Id. at 645.
Here, Plaintiff failed to allege that she was ever present
at KHS Defendants’ offices. Thus, she has failed to allege that
she observed the alleged malpractice of KHS Defendants. As
recovery for the negligent infliction of emotional distress to a
witness of a misdiagnosis or act of medical malpractice requires
a plaintiff to actually observe the alleged malpractice,
Plaintiff has failed to state a claim.
Even if Plaintiff was present at KHS Defendants’ office and
assuming arguendo that one or all KHS Defendants committed
malpractice, any injury suffered by Decedent was neither shocking
20
nor immediate in nature. Therefore, Plaintiff would still fail to
state a viable claim because New Jersey law only allows for
recovery when a misdiagnosis or an act of medical malpractice
results in shocking and immediate harm to a family member.
Plaintiff did not observe her daughter healthy at one moment and
a severely injured the next, but rather she observed her
daughter’s slow and gradual deterioration. The Court sympathizes
with Plaintiff and acknowledges that a loved one’s death is
emotionally challenging; however, a slow and gradual
deterioration of a family member’s health resulting in death, as
was the case here, allows time for emotional adjustment.
Accordingly, the Court will grant KHS Defendants’ motion to
dismiss with respect to Plaintiff’s negligent infliction of
emotional distress claims.
MOTION TO VACATE STATE TRIAL COURT ORDERS
Because the Court will dismiss all claims against
Defendants, Plaintiff’s motion to vacate the two orders of the
state trial court6 is moot.
Thus, the Court will deny Plaintiff’s
motion.
6
The two orders at issue are (1) the January 25, 2013 order
dismissing Decedent’s (Lynette Smith) complaint against
Defendants Priori and Amin with prejudice and (2) the January 11,
2013 order dismissing Decedent’s complaint against Defendant KHS
without prejudice. [Doc. No. 44].
21
CONCLUSION
Consequently, for the reasons expressed above, both
Defendants KHS and Defendants Priori and Amin’s motions to
dismiss will be granted. Plaintiff’s motion to vacate certain
orders of the state trial court will be denied.
Date: June 15, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?