Limiting a Patient's Ability to Recover Under NJ's Tort Claims Act

The University of Medicine and Dentistry of New Jersey (UMDNJ) hospital's chief quality officer estimates that approximately “100,000 people walk through the public hospital's door every year.” How many of these patients would go out of their way to be treated at a different ' more specifically, a private ' hospital, if aware of the statutory limitations that may impact their ability to recover non-economic damages in the event they are subjected to medical malpractice?

New Jersey is a litigious state and, prior to 1972, governmental entities and their employees faced the same exposure in civil actions as private corporations and citizens. In 1972, with the intent to limit the potential civil liability of public entities and public employees, New Jersey's Legislature enacted the Tort Claims Act (TCA), which is codified at New Jersey Statutes Annotated (N.J.S.A.) 59:1-1, et seq.'

New Jersey Statutes Annotated 59:9-2(d) explicitly and without exception, limits recovery of pain and suffering damages (including emotional distress in limited circumstances) against public entities and employees as follows:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.

Since the TCA was enacted in 1972, a legion of case law has established that the unequivocal legislative mandate is to substantially limit public entity liability. As such, it has always been the intention of the Legislature that the TCA be strictly construed to effectuate its avowed purpose.'

How the TCA Works

The TCA governs all causes of action in tort against public entities and public employees.' Importantly, immunities afforded under the TCA ' of which there are many ' trump general statutes that impose or create liability. For example, N.J.S.A. 59:3-3 provides a law enforcement officer “a good faith” immunity in the execution or enforcement of any law. Additionally, N.J.S.A. 59:3-2 provides public employees with immunity for an injury resulting from the exercise of judgment or discretion vested in them.

Aside from N.J.S.A. 2A:62A-1, which relates to providing emergency care to an individual at the scene of an accident or en-route to a hospital, public hospitals and their employees are not granted a specific immunity in the event of medical malpractice. The applicable standard of care for an emergency room physician is the same regardless of whether he is an employee at the public UMDNJ or at the private St. Barnabas. However, under the TCA there is a limitation on a plaintiff's ability to recover non-economic damages, i.e., pain and suffering.

Cases in Point

In Brooks v. Odom, 150 N.J. 395 (1997), New Jersey's Supreme Court established a two-prong test that a plaintiff must satisfy in order to comply with the TCA threshold requirements. First, the plaintiff must prove by objective medical evidence that she/he sustained a permanent loss of a bodily function that is substantial. Second, that injury must result in a significant, permanent and debilitating effect on his/her lifestyle.

At first blush, it may seem that a plaintiff in a medical malpractice case should not have any difficulty sustaining his or her burden. However, in certain medical malpractice cases, the plaintiff parents' or other family members' individual injury is limited to emotional damages, as with a stillborn birth or wrongful birth case. This can be problematic.

Importantly, as early as 1987, New Jersey's Supreme Court held that the TCA threshold applies equally to claims for emotional distress damages. New Jersey Courts are in agreement that in order to satisfy the burden of proof the plaintiff is required to meet the Brooks standard by showing that the psychological injury was both permanent and substantial. Further, many courts have required evidence that the emotional distress or damages led to physical sequelae.'

Notwithstanding the grievous nature of recognized torts, there are notable decisions wherein emotional distress claims were barred due to a plaintiff's inability to demonstrate the necessary “substantial” nature of an otherwise undeniable injury. Even in a case involving the sexual assault of a minor, the court refused to allow emotional distress claims against a public entity to go forward. See C.P. v. Township of Piscataway Board of Education, 293 N.J. Super. 421 (App. Div. 1996). The court reiterated that “damages for emotional distress could be recoverable, if they resulted in permanent physical sequelae such as disabling tremors, paralysis or loss of eyesight.”

Similarly, in Gerber v. Springfield Board of Education, 328 N.J. Super. 24 (App. Div. 2000), plaintiff's claims based on the post traumatic stress disorder she suffered as the result of prolonged verbal and physical abuse by her fellow junior high school students was found not to constitute a compensable injury under the TCA. Although it was documented that the plaintiff suffered from “sleep difficulties, recurrent dreams of assault and a loss of interest in normal activities,” the Appellate Division held that the plaintiff had not met the threshold because her experts had not satisfactorily established that her emotional injuries constituted a permanent loss of a bodily function.'

Finally, in Srebnik v. State of New Jersey, 245 N.J. Super. 344 (App. Div. 1991), the Appellate Division held that emotional distress damages were not recoverable to the plaintiff since her documented post-traumatic stress disorder (PTSD) was not caused by a physical injury, nor did her distress cause any physically disabling infirmity. The court went on to hold that “symptoms of depression and stress are 'subjective' and 'non-objective types of damages,' whether temporary or permanent in nature.”'

Are these decisions and the basis for same “draconian,” as plaintiffs consistently argue? An argument could be made from both sides of the bar, and it is beyond reasonable dispute that if the emotional distress claims were not subject to the TCA, they would survive a motion for partial summary judgment.'

Medical Malpractice, Specifically

Given that the standard of care is the same at New Jersey's public and private hospitals, and that many patients do not have a choice of where they are treated, are the damage limitations imposed by the TCA inequitable to the patient? The patient, his or her family and, in most situations, their counsel, will vehemently argue “Yes.” But is a claim for emotional distress in a New Jersey medical malpractice action, brought against a public caregiver rather than a private one, necessarily fated to be summarily dismissed?

Surprisingly, the number of published cases that address a plaintiff's ability to recover for pain and suffering under a theory of medical malpractice is limited. The seminal case is Willis v. Ashby, 353 N.J. Super. 104 (App. Div.), certif. den. 174 N.J. 547 (2002).

(Initially, it should be noted that New Jersey's Appellate Division confirmed in Willis that UMDNJ and its physician employees are entitled to the protections of the TCA.) Willis was a medical malpractice action brought by plaintiff parents following the stillborn birth of their child. Importantly, the Appellate Division confirmed that, just as with physical injuries, under the TCA a “plaintiff must also show that the psychological injury is both permanent and substantial.” The Appellate Division went on to explain that “psychological and emotional injuries should be treated the same as physical injuries under the Act's threshold provision when they arise in this context of a stillborn infant.” Ultimately, the Appellate Division remanded for trial and rationalized that “[s]imply put, the conflicting expert testimony at trial, at the very least, raised a factual dispute as to whether plaintiffs' psychological injuries were permanent and substantial, and thus rose to a level sufficient to cross the threshold of the TCA.”

A recent case that the author was involved in confirms that some members of the judiciary may side with plaintiffs, also viewing the TCA threshold as unfair. (It should be noted that the below illustration is in no way meant to serve as a condemnation to the trial court that disagreed with my analysis as to a plaintiff's claim of emotional distress.)

In this case, the defendant moved for partial summary judgment, seeking to dismiss a plaintiff's claim of emotional distress arising out of a wrongful birth case. In that case, an infant plaintiff was born in October 2007 and was later diagnosed with Down Syndrome. The claims against my client related to an alleged failure to recognize prenatal markers for the condition and to convey same to the plaintiff parent. In addition to those claims related to the infant plaintiff, her mother alleged that but for the defendants' negligence, she would have been informed of her daughter's likely birth defect and would have “gone for an abortion.”

The plaintiff alleged that having to care for a daughter with Down Syndrome caused her to suffer “anxiety, depression, fear, anger, guilt, and helplessness, among others.” Notably, prior to filing for partial summary judgment, the plaintiff mother had not been diagnosed with any psychological disorder or condition. Equally telling is that, aside from unspecific and undocumented “conversations” with a Social Worker employed by “The Arc” (an organization dedicated to supporting the intellectually and developmentally disabled), the plaintiff had not spoken to or sought treatment from a psychologist, psychiatrist or mental health care professional. Moreover, there was no evidence, or even allegation, that the plaintiff's alleged emotional distress had manifested itself in physical symptoms. Similarly, there was no evidence, or even allegation, that the plaintiff's alleged emotional distress had any impact on her employment or her pursuit of a Master's Degree.'

The plaintiff's opposition brief was predictable, but was surprising insofar as no reference was made to submitting an expert report opining on or otherwise discussing the plaintiff's mental health. Since the facts and case law were uncontroverted, the plaintiff argued that it was undeniable she suffered emotional distress, as having a child with disabilities was difficult and draining.'

Faced with the undisputed record, I walked into oral argument confident. That confidence increased after I presented the facts and case law in support of the application for partial summary judgment. However, it quickly dissipated when plaintiff's counsel represented that his office was “in the process of having an expert report prepared, and that report would address the issues of plaintiff's emotional distress.” Notwithstanding the fact that the time under which plaintiff had to serve expert reports had expired and the plaintiff had not previously relayed any intent to serve a report opining as to emotional distress, the court permitted service of same.”

At the conclusion of oral argument, the trial judge reserved. The judge went on to explain that even though he had not seen plaintiff's expert report, if it said what he “expected it to say,” he was inclined to deny my motion.'

A few weeks later ' days before discovery ended ' the plaintiff served an expert report. Ultimately, in relevant part, that expert concluded that “plaintiff meets the criteria for depressive disorder ' has showed some improvement over the last year or two. However, it is very likely that her daughter's continuing needs will present an ongoing challenge for her.” The plaintiff's expert also noted that he expected the plaintiff's depression to “wax and wane” and that “her future progress will be slow and unpredictable.”'

After reviewing the report I assumed that when the trial court reserved in anticipation of an expert report, the judge expected different language. Even if the plaintiff's expert's opinion was accurate, it surely did not rise to the level of a permanent injury that was substantial.

Irrespective of the trial court being bound by the TCA and resulting case law, it was evident during oral argument that the judge in my client's case implicitly disapproved of the legislature's preventing an alleged victim from presenting her case to a jury simply because the hospital where she was treated was run by the State.

Shortly thereafter, as the trial court promised, my office received the proposed Order, marked “DENIED.” Apparently, like many plaintiffs, their attorneys and others, the mandates of the TCA did not sit well with the judge ' and he cried, “Foul.”

Robert E. Spitzer, a member of this newsletter's Board of Editors, is an attorney with Post, Polak, Goodsell, MacNeill & Strauchler, P.A., Roseland, NJ, where he concentrates his practice on medical malpractice and civil litigation.

'

The University of Medicine and Dentistry of New Jersey (UMDNJ) hospital's chief quality officer estimates that approximately “100,000 people walk through the public hospital's door every year.” How many of these patients would go out of their way to be treated at a different ' more specifically, a private ' hospital, if aware of the statutory limitations that may impact their ability to recover non-economic damages in the event they are subjected to medical malpractice?

New Jersey is a litigious state and, prior to 1972, governmental entities and their employees faced the same exposure in civil actions as private corporations and citizens. In 1972, with the intent to limit the potential civil liability of public entities and public employees, New Jersey's Legislature enacted the Tort Claims Act (TCA), which is codified at New Jersey Statutes Annotated (N.J.S.A.) 59:1-1, et seq.'

New Jersey Statutes Annotated 59:9-2(d) explicitly and without exception, limits recovery of pain and suffering damages (including emotional distress in limited circumstances) against public entities and employees as follows:

No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.

Since the TCA was enacted in 1972, a legion of case law has established that the unequivocal legislative mandate is to substantially limit public entity liability. As such, it has always been the intention of the Legislature that the TCA be strictly construed to effectuate its avowed purpose.'

How the TCA Works

The TCA governs all causes of action in tort against public entities and public employees.' Importantly, immunities afforded under the TCA ' of which there are many ' trump general statutes that impose or create liability. For example, N.J.S.A. 59:3-3 provides a law enforcement officer “a good faith” immunity in the execution or enforcement of any law. Additionally, N.J.S.A. 59:3-2 provides public employees with immunity for an injury resulting from the exercise of judgment or discretion vested in them.

Aside from N.J.S.A. 2A:62A-1, which relates to providing emergency care to an individual at the scene of an accident or en-route to a hospital, public hospitals and their employees are not granted a specific immunity in the event of medical malpractice. The applicable standard of care for an emergency room physician is the same regardless of whether he is an employee at the public UMDNJ or at the private St. Barnabas. However, under the TCA there is a limitation on a plaintiff's ability to recover non-economic damages, i.e., pain and suffering.

Cases in Point

In Brooks v. Odom , 150 N.J. 395 (1997), New Jersey's Supreme Court established a two-prong test that a plaintiff must satisfy in order to comply with the TCA threshold requirements. First, the plaintiff must prove by objective medical evidence that she/he sustained a permanent loss of a bodily function that is substantial. Second, that injury must result in a significant, permanent and debilitating effect on his/her lifestyle.

At first blush, it may seem that a plaintiff in a medical malpractice case should not have any difficulty sustaining his or her burden. However, in certain medical malpractice cases, the plaintiff parents' or other family members' individual injury is limited to emotional damages, as with a stillborn birth or wrongful birth case. This can be problematic.

Importantly, as early as 1987, New Jersey's Supreme Court held that the TCA threshold applies equally to claims for emotional distress damages. New Jersey Courts are in agreement that in order to satisfy the burden of proof the plaintiff is required to meet the Brooks standard by showing that the psychological injury was both permanent and substantial. Further, many courts have required evidence that the emotional distress or damages led to physical sequelae.'

Notwithstanding the grievous nature of recognized torts, there are notable decisions wherein emotional distress claims were barred due to a plaintiff's inability to demonstrate the necessary “substantial” nature of an otherwise undeniable injury. Even in a case involving the sexual assault of a minor, the court refused to allow emotional distress claims against a public entity to go forward. See C.P. v. Township of Piscataway Board of Education , 293 N.J. Super. 421 (App. Div. 1996). The court reiterated that “damages for emotional distress could be recoverable, if they resulted in permanent physical sequelae such as disabling tremors, paralysis or loss of eyesight.”

Similarly, in Gerber v. Springfield Board of Education , 328 N.J. Super. 24 (App. Div. 2000), plaintiff's claims based on the post traumatic stress disorder she suffered as the result of prolonged verbal and physical abuse by her fellow junior high school students was found not to constitute a compensable injury under the TCA. Although it was documented that the plaintiff suffered from “sleep difficulties, recurrent dreams of assault and a loss of interest in normal activities,” the Appellate Division held that the plaintiff had not met the threshold because her experts had not satisfactorily established that her emotional injuries constituted a permanent loss of a bodily function.'

Finally, in Srebnik v. State of New Jersey , 245 N.J. Super. 344 (App. Div. 1991), the Appellate Division held that emotional distress damages were not recoverable to the plaintiff since her documented post-traumatic stress disorder (PTSD) was not caused by a physical injury, nor did her distress cause any physically disabling infirmity. The court went on to hold that “symptoms of depression and stress are 'subjective' and 'non-objective types of damages,' whether temporary or permanent in nature.”'

Are these decisions and the basis for same “draconian,” as plaintiffs consistently argue? An argument could be made from both sides of the bar, and it is beyond reasonable dispute that if the emotional distress claims were not subject to the TCA, they would survive a motion for partial summary judgment.'

Medical Malpractice, Specifically

Given that the standard of care is the same at New Jersey's public and private hospitals, and that many patients do not have a choice of where they are treated, are the damage limitations imposed by the TCA inequitable to the patient? The patient, his or her family and, in most situations, their counsel, will vehemently argue “Yes.” But is a claim for emotional distress in a New Jersey medical malpractice action, brought against a public caregiver rather than a private one, necessarily fated to be summarily dismissed?

Surprisingly, the number of published cases that address a plaintiff's ability to recover for pain and suffering under a theory of medical malpractice is limited. The seminal case is Willis v. Ashby , 353 N.J. Super. 104 (App. Div.), certif. den. 174 N.J. 547 (2002).

(Initially, it should be noted that New Jersey's Appellate Division confirmed in Willis that UMDNJ and its physician employees are entitled to the protections of the TCA.) Willis was a medical malpractice action brought by plaintiff parents following the stillborn birth of their child. Importantly, the Appellate Division confirmed that, just as with physical injuries, under the TCA a “plaintiff must also show that the psychological injury is both permanent and substantial.” The Appellate Division went on to explain that “psychological and emotional injuries should be treated the same as physical injuries under the Act's threshold provision when they arise in this context of a stillborn infant.” Ultimately, the Appellate Division remanded for trial and rationalized that “[s]imply put, the conflicting expert testimony at trial, at the very least, raised a factual dispute as to whether plaintiffs' psychological injuries were permanent and substantial, and thus rose to a level sufficient to cross the threshold of the TCA.”

A recent case that the author was involved in confirms that some members of the judiciary may side with plaintiffs, also viewing the TCA threshold as unfair. (It should be noted that the below illustration is in no way meant to serve as a condemnation to the trial court that disagreed with my analysis as to a plaintiff's claim of emotional distress.)

In this case, the defendant moved for partial summary judgment, seeking to dismiss a plaintiff's claim of emotional distress arising out of a wrongful birth case. In that case, an infant plaintiff was born in October 2007 and was later diagnosed with Down Syndrome. The claims against my client related to an alleged failure to recognize prenatal markers for the condition and to convey same to the plaintiff parent. In addition to those claims related to the infant plaintiff, her mother alleged that but for the defendants' negligence, she would have been informed of her daughter's likely birth defect and would have “gone for an abortion.”

The plaintiff alleged that having to care for a daughter with Down Syndrome caused her to suffer “anxiety, depression, fear, anger, guilt, and helplessness, among others.” Notably, prior to filing for partial summary judgment, the plaintiff mother had not been diagnosed with any psychological disorder or condition. Equally telling is that, aside from unspecific and undocumented “conversations” with a Social Worker employed by “The Arc” (an organization dedicated to supporting the intellectually and developmentally disabled), the plaintiff had not spoken to or sought treatment from a psychologist, psychiatrist or mental health care professional. Moreover, there was no evidence, or even allegation, that the plaintiff's alleged emotional distress had manifested itself in physical symptoms. Similarly, there was no evidence, or even allegation, that the plaintiff's alleged emotional distress had any impact on her employment or her pursuit of a Master's Degree.'

The plaintiff's opposition brief was predictable, but was surprising insofar as no reference was made to submitting an expert report opining on or otherwise discussing the plaintiff's mental health. Since the facts and case law were uncontroverted, the plaintiff argued that it was undeniable she suffered emotional distress, as having a child with disabilities was difficult and draining.'

Faced with the undisputed record, I walked into oral argument confident. That confidence increased after I presented the facts and case law in support of the application for partial summary judgment. However, it quickly dissipated when plaintiff's counsel represented that his office was “in the process of having an expert report prepared, and that report would address the issues of plaintiff's emotional distress.” Notwithstanding the fact that the time under which plaintiff had to serve expert reports had expired and the plaintiff had not previously relayed any intent to serve a report opining as to emotional distress, the court permitted service of same.”

At the conclusion of oral argument, the trial judge reserved. The judge went on to explain that even though he had not seen plaintiff's expert report, if it said what he “expected it to say,” he was inclined to deny my motion.'

A few weeks later ' days before discovery ended ' the plaintiff served an expert report. Ultimately, in relevant part, that expert concluded that “plaintiff meets the criteria for depressive disorder ' has showed some improvement over the last year or two. However, it is very likely that her daughter's continuing needs will present an ongoing challenge for her.” The plaintiff's expert also noted that he expected the plaintiff's depression to “wax and wane” and that “her future progress will be slow and unpredictable.”'

After reviewing the report I assumed that when the trial court reserved in anticipation of an expert report, the judge expected different language. Even if the plaintiff's expert's opinion was accurate, it surely did not rise to the level of a permanent injury that was substantial.

Irrespective of the trial court being bound by the TCA and resulting case law, it was evident during oral argument that the judge in my client's case implicitly disapproved of the legislature's preventing an alleged victim from presenting her case to a jury simply because the hospital where she was treated was run by the State.

Shortly thereafter, as the trial court promised, my office received the proposed Order, marked “DENIED.” Apparently, like many plaintiffs, their attorneys and others, the mandates of the TCA did not sit well with the judge ' and he cried, “Foul.”

Robert E. Spitzer, a member of this newsletter's Board of Editors, is an attorney with Post, Polak, Goodsell, MacNeill & Strauchler, P.A., Roseland, NJ, where he concentrates his practice on medical malpractice and civil litigation.

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