This medical negligence case arises from a 2011 surgery that defendant Dr. David Nenna performed on plaintiff to remove surgical hardware from a prior surgery. Four years later plaintiff discovered defendant left three washers in his leg.Due to medical concerns, however, plaintiff who is a paraplegic, was unable to have a second surgery to remove the hardware.
Plaintiff did not claim any physical pain or limitation as a result of the retained washers. Rather, plaintiff sought to recover damages only for the emotional distress caused by knowing surgical washers were in his leg that could not be removed. In support of his claim for damages, he provided a certification briefly describing his mental anguish, as to which he would testify at trial. The trial judge granted defendant's motion for summary judgment finding plaintiff had failed to establish emotional distress damages because he did not provide supporting medical or expert proof.
The court held that emotional distress damages ordinarily must be supported by medical or expert proof. Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 235-36 (App. Div. 2014). There are two exceptions to this general rule. The first exception is for cases involving intentional torts such as racial or sexual discrimination. Where a tortfeasor's conduct is willful, the Court has explained "the victim may recover all natural consequences of that wrongful conduct, including emotional distress and mental anguish damages . . . ." Tarr v. Ciasulli,181 N.J. 70, 82 (2003).
The second exception are cases in which "[t]he nature of [the] particular harm mitigates against the reason for an enhanced standard of proof in the first instance – the elimination of spurious claims." Innes, 435 N.J. Super. at 236. For example, medical or expert proof has not been required when plaintiffs have suffered from malicious use of process, Baglini v. Lauletta, 338 N.J. Super. 282, 307 (App. Div. 2001), wrongful birth arising from inadequate genetic counselling, Geler v. Akawie, 358 N.J. Super. 437, 457 (App. Div. 2003), and where a funeral home failed to ensure that orthodox ritual requirements were met. Menorah Chapels at Millburn v. Needle, 386 N.J. Super. 100, 116 (App. Div. 2006).
The court held that plaintiff's case did not satisfy either exception. Therefore, he was required to support his claim for emotional distress damages with medical or expert proof, which he did not do. Accordingly, the court affirmed summary judgment in favor of defendant.