By Benjamin A. Hooper, Esq.

The Appellate Division recently addressed the need for medical and expert testimony to establish an actionable claim of negligent infliction of emotional distress in the published opinion Clark v. Nenna, 2020 N.J. Super. 244 (App. Div. 2020).

The plaintiff, a paraplegic, required surgery, including placement of screws and washers to stabilize a broken femur. The defendant orthopedic surgeon subsequently performed a second surgery to remove the screws; however, the washers remained embedded in the scar tissue that developed around the hardware. The surgeon claimed to have intentionally decided against removing the washers because removal would have required a larger incision, increasing the risk of postoperative infection. The orthopedic surgeon did not document the chart to memorialize the retained washers; did not discuss during the pre-surgical consult the potential for retaining the washers; and following the surgery, did not disclose the decision against removing the washers. Plaintiff first learned of the retained washers four (4) years later when he underwent an x-ray of the leg for unrelated medical concerns.

The patient brought suit contending that it was a deviation from the standard of care to fail to remove the washers from the leg.  Although plaintiff-patient served an expert liability report, the surgeon moved for summary judgment seeking to dismiss the case on the basis that the plaintiff failed to demonstrate damages resulting from the retained washers. In response, plaintiff cited the mental anguish caused by the knowledge of a foreign object in his body, coupled with the knowledge that he could not undergo another surgery to remove the retained washers. Plaintiff acknowledged that his claimed damages were limited to emotional distress. The trial court granted summary judgment, ruling that plaintiff had failed to establish compensable damages, and an appeal followed.

On appeal, the Appellate Division agreed that the plaintiff failed to demonstrate compensable damages based on emotional distress. The Court ruled that for a claim of direct negligent infliction of emotional distress to be viable, a plaintiff must demonstrate that he suffered from severe or genuine and substantial emotional distress. Severe emotional distress is defined as the type of severe and disabling emotional or mental condition generally recognized and diagnosed by a mental health professional. Emotional distress claims cannot be based on speculation. Vague complaints, such as lack of sleep, aggravation, headaches and depression are deemed insufficient as a matter of law. Because of the potential for fabricated claims, the Court ruled that medical evidence or expert testimony is needed to substantiate a claim of emotional distress and is a prerequisite to allow the jury to decide whether the claim has in fact been proven.

The Court’s opinion acknowledged the existence of claims where courts find that the nature of the harm would have cause any reasonable person "severe" or "genuine and substantial" emotional distress, mitigating against the need for expert testimony to substantiate the claim. Such examples include claims for willful discriminatory conduct which necessarily include humiliation and indignity and claims of wrongful birth arising from inadequate genetic counselling.

In applying the law, the Court reasoned that where the nature of the harm would be expected to cause severe genuine substantial emotional distress, plaintiffs must support their claims for damages with medical evidence or expert proof. The Appellate Division did not find that the alleged emotional distress caused by the professional negligence of a surgeon failing to remove surgical washers from a leg presented a peculiar likelihood of emotional distress, necessitating medical or expert proof as a matter of law.

This published Appellate Division opinion places plaintiffs in medical negligence cases on notice that they must proffer expert testimony to establish a direct claim for negligent infliction of emotional distress.

For more information, contact Benjamin A. Hooper, Esq. at bah@spsk.com or 973-631-7847.