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A New Jersey state appeals court on July 9 recognized for the first time a right to recover against a public entity for pain and suffering that results from medical malpractice, even in the absence of physical injury. The Appellate Division held, in Willis v. Ashby, A-6170-00, that Lisa and David Willis’ claim for severe emotional harm as the result of a stillbirth in a public hospital met the threshold for pain and suffering damages under the Tort Claims Act. The statute, N.J.S.A. 59:9-2(d), bars such damages except where there is “permanent loss of a bodily function, permanent disfigurement or dismemberment” and where medical expenses exceed $3,600. Rejecting the state’s argument that psychological harm without physical symptoms does not suffice under the Tort Claims Act without an invasive assault, the three-judge panel held 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.” The parents’ claimed injury qualified as “a permanent loss of a bodily function,” that was permanent and substantial, rather than “a subjective or minor incident,” wrote Judge Michael King, joined by Judges Mary Cuff and Michael Winkelstein. Psychological damage giving rise to tort claims liability “may flow from a negligent tort as well as from intentional physical assault,” stated the panel. The panel reversed a ruling by Camden County, N.J., Superior Court Judge M. Allan Vogelson, who held that plaintiffs failed as a matter of law to establish a claim for pain and suffering damages, and sent the matter back for a jury to consider. The New Jersey Supreme Court first held that plaintiffs could recover pain and suffering damages for emotional harm against public entities in Collins v. Union County Jail, 150 N.J. 407 (1997). Jesse Collins was raped by a corrections officer in 1991 while he was an inmate at the Union County Jail. Collins distinguished the court’s prior ruling in Ayers v. Township of Jackson, 106 N.J. 557 (1987), which had interpreted the Tort Claims Act as immunizing the government from liability for pain and suffering from emotional distress. “The plaintiffs in Ayers were not physically violated in any manner,” in contrast to Collins, who was “brutally sodomized,” the court pointed out. In finding that the claim fit within the ambit of Collins, King wrote, “We do not read Collins as limiting recovery … for psychological injuries due to direct, violent, and invasive physical assault such as criminal sodomy or rape.” He cited the March 22 opinion in Frugis v. Bracigliano, A-6349-99, which found the Tort Claims standard could be satisfied by the emotional distress claims of two Elmwood Park boys who were molested, though not raped, by the principal of their elementary school. King also looked to stillbirth cases against nonpublic doctors that recognized the extent of the injury suffered by parents of a stillborn child and quoted heavily from a book on the subject, “Loss During Pregnancy or in the Newborn Period,” by Woods & Woods. “There shouldn’t be a distinction between an obstetrician who’s a state employee causing a miscarriage and one who’s not a state employee causing a miscarriage,” says E. Drew Britcher, a partner with Glen Rock, N.J.’s Britcher Leone & Roth, who represented the amicus American Trial Lawyers Association of New Jersey in the appeal. The state defendants’ lawyer, Thomas Marshall, of Mount Holly, N.J., says he will recommend that the state seek certification to the Supreme Court. Marshall says the Willis ruling potentially opens up the floodgates of public liability based on understandable sympathy for bereaved parents. He notes that the opinion is devoid of any mention of the burden on the state of paying stillbirth claims. Not only has Willis “gravely eroded” the 30-year-old strictures of the Tort Claims Act, but makes it unclear whether fathers can also recover, says Marshall. Marshall says it is also unclear whether every stillbirth case gets to the jury now or only those where a certain level of harm is shown. Jeffrey Keiser, a Haddonfield, N.J., solo practitioner who represents Lisa and David Willis, says David can also pursue a pain and suffering claim but, unlike Lisa, must make the bystander showing generally required for emotional distress claims.

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