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Procanik v. Cillo

Decided: August 20, 1985.


Boyle, J.s.c.


[206 NJSuper Page 273] This case involves the pre-termination duties of an attorney who is a specialist in his field arising out of a legal malpractice claim within a medical malpractice suit. The primary issue is whether an attorney, a specialist in malpractice, has the duty, not only to advise his clients on the settled law, but whether he also has a duty to disclose to his clients, clearly and unmistakably, an opinion held by him that the settled law is ripe for reconsideration. The subject matter, therefore, concerns what constitutes a complete, informed judgment. Additionally, there are contentions of a post-termination duty to advise clients of a

decision subsequently reported in the advance sheets and whether these duties are mooted by a prospective application thereafter as to the applicable two-year statute of limitations. The issues arise out of a remand of the Supreme Court, Procanik By Procanik v. Cillo, 97 N.J. 339 (1984) (hereinafter cited as Procanik). Cross-motions for summary judgment have been made by all parties who agree that there are no genuine issues as to any material fact under R. 4:46-2. Therefore, a motion for summary judgment is appropriate for consideration. Judson v. Peoples Bank and Trust Company of Westfield, 17 N.J. 67 (1954).

This case has a lengthy history which requires recitation.


On June 8, 1976, co-plaintiff, Rosemarie Procanik (Procanik), placed herself under the medical care of the co-defendants, Dr. Joseph P. Cillo, Dr. Herbert Langer and Dr. Ernest P. Greenberg, who are board-certified obstetricians and gynecologists who apparently conduct a group practice. Thereafter, Procanik visited the offices of defendant-physicians from time to time. On June 9, 1977, she reported to defendant, Dr. Cillo, that her last menstrual period had been May 4, 1977. She further advised him that she had recently been diagnosed by family-physician as having measles but did not know if it was rubella (German measles). He examined Procanik and ordered "tests for German measles, known as Rubella Titer Test", at Rahway Hospital. The results "were 'indicative of past infection of Rubella.'" Instead of ordering further tests, it is alleged that Dr. Cillo negligently interpreted the results and told Procanik that she "had nothing to worry about because she had become immune to German measles as a child." In fact, the "past infection" disclosed by the tests was the German measles that had prompted Procanik to consult the defendant-physicians. Ignorant of what an accurate diagnosis would have disclosed, Procanik allowed her pregnancy to continue and delivered a

son, the infant and incompetent, Peter Procanik; he having been born December 26, 1977. On January 16, 1978, the child was diagnosed as suffering from congenital rubella Down's syndrome.

As a result of the doctors' alleged negligence, Procanik was deprived of the choice of terminating the pregnancy, and Peter was "born with multiple birth defects," including eye lesions, heart disease, and auditory defects.

On April 26, 1978, the co-plaintiffs, Rosemarie Procanik and Michael Procanik, her husband, consulted with defendant-attorney, Harold Sherman (Sherman), regarding a possible claim for personal injuries as a result of the alleged medical malpractice of defendant-physicians. As a result of the consultation, Sherman determined that an opinion was necessary from a specialist in medical malpractice. Plaintiffs concede Sherman is a general practitioner in law. On November 6, 1978, Sherman consulted with Lee S. Goldsmith (Goldsmith), who was "of counsel" to the firm of Greenstone, Greenstone & Naishuler (Greenstone), a professional corporation specializing in medical malpractice claims. Goldsmith and Greenstone are also defendant-attorneys in this action. Goldsmith, in addition to being an attorney, is a medical doctor. Answers to interrogatories disclosed that he had handled 300 cases involving medical malpractice. He specializes in medical malpractice cases. It was also conceded that Goldsmith, being "of counsel" (although not an employee of the Greenstone firm) acted as its agent.

Sherman collected plaintiffs' records and any other information regarding this matter and passed them along to defendants, Greenstone and Goldsmith. It was understood that Goldsmith would review the matter and render an opinion to Sherman.

Subsequently, Goldsmith referred the file to Dr. Leslie Iffy, professor of obstetrics and gynecology and director, division of maternal-fetal medicine at the New Jersey University of Medicine and Dentistry, for an expert medical opinion. Discovery [206 NJSuper Page 276] revealed various correspondence between Goldsmith, Greenstone and Sherman. Of significance is a letter dated January 29, 1979 from Goldsmith to Greenstone.*fn1 It is clear from that letter that Goldsmith was aware of Gleitman v. Cosgrove, 49 N.J. 22 (1967), which precluded wrongful birth actions. Goldsmith indicated that in his opinion the Procanik case was an appropriate one to reverse Gleitman. The letter stated "I think the time is right, and I think we have a good shot at reversal." On February 7, 1979, Goldsmith and Greenstone received Dr. Iffy's medical report. In March 1979, Goldsmith delivered the entire file to Greenstone for his review. In a [206 NJSuper Page 277] letter to Sherman dated April 26, 1979, Goldsmith and Greenstone decided not to accept the case.*fn2 They concluded that: (1)

Gleitman "prohibits the kind of action that would have to be brought herein"; (2) "It is possible that Gleitman could be reversed"; (3) "that it would have to be taken to the Supreme Court in order to obtain a reversal"; and (4) "The law is dead against us in the State and the reversal would be necessary."

As a result of this letter, Sherman determined to terminate the attorney-client relationship with Procanik. A meeting took place at his office with the Procaniks present. He discussed with them Goldsmith's letter of April 26, 1979, and reviewed a letter with them dated May 2, 1979*fn3 which constituted a termination [206 NJSuper Page 279] of his services for the Procaniks. The letter indicated that Goldsmith was not interested in handling the case, and "his judgment is one on which I would certainly rely." It also advised the Procaniks "that you are free to consult another attorney, who after all, might feel differently about the case." It also advised the Procaniks of the applicable statute of limitations both as to the parents' claims and that of the infant, Peter. It also suggested "that if you want to pursue this matter further, you contact another attorney immediately." After Sherman had been originally retained and before termination of that relationship, the Supreme Court granted certification on September 5, 1978 in Berman v. Allan, 80 N.J. 421 (1979), which was reported in the New Jersey Law Journal (Law Journal), 102 N.J.L.J. 576 (1978). Although all of the defendant-attorneys were readers of the Law Journal, none of them had read this certification in that publication. On February 26, 1979, Berman was argued before the Supreme Court. On July 5, 1979, shortly after the attorney-client relationship had been terminated and memorialized by letter of May 2, 1979, the Law Journal published the notification of the decision of Berman v. Allan, 104 N.J.L.J. 1 (1979), which was decided on June 26, 1979. On July 26, 1979, the full text of the opinion in

Berman appeared in the Law Journal, 104 N.J.L.J. 73 (1979). The Berman decision was then published in the advance sheets on August 31, 1979. In Berman v. Allan, 80 N.J. 421 (1979), the Court recognized that parents may recover for emotional distress for the "wrongful birth" of a child born with birth defects. The defendant-attorneys had not read the certification in Berman, reported in the Law Journal prior to termination with the Procaniks, nor, as revealed by answers to interrogatories, could they recall with specificity when, after termination, they had become aware of the reported decision. Consequently, defendant-attorneys never advised the Procaniks that they had a cause of action, and the two-year statute of limitations expired on their claims on January 16, 1980. However, after January 16, 1980, the Procaniks engaged new counsel and a complaint was filed on April 8, 1981, almost 15 months after the statute of limitations had expired and nearly 3 1/2 years after the infant was diagnosed as suffering from congenital rubella Down's syndrome.

Specifically, plaintiffs' complaint alleges that defendant-physicians negligently failed to diagnose a rubella infection early in plaintiff-mother's pregnancy, as a result of which infant-plaintiff was born with multiple birth defects. This medical malpractice caused them to suffer emotional injury and to incur medical expenses. Plaintiffs also assert that their defendant-attorneys undertook to investigate plaintiffs' potential malpractice claims and, in the course of that undertaking, negligently discharged their professional responsibilities in several ways: (1) by failing to become aware of an appeal pending before the Supreme Court which implicated the areas of medical malpractice law; (2) by advising them that the then settled law in this State precluded their contemplated action without further advising them that "a decision [of the unrelated pending appeal in Berman, supra ] could be expected shortly"; (3) if not, that a "precautionary suit" should be instituted; and (4) in failing to advise them, months after their professional relationship had

terminated, of the publication of the Court's decision in Berman and its recognition of the actionability of their claim.

Defendant-attorneys, on the other hand, maintain that no duty existed and that the actions exercised by defendant-attorneys were within the standard of care of the legal profession. Defendants also claim that Berman should be applied prospectively and, therefore, the complaint filed by plaintiffs on April 8, 1981 was within a new two-year statute of limitations.

Defendant-physicians filed their answer on May 29, 1981, asserting as an affirmative defense that the parents' claim was barred by a two-year statute of limitations and that the infant's claim failed to state a claim upon which relief could be granted.


It has been stipulated by Sherman that an attorney-client relationship existed between defendant-attorneys and plaintiff-clients. However, the specialists in this matter have not conceded that an attorney-client relationship existed. Therefore, this court must initially decide whether a duty was owed by defendant-attorneys to plaintiff-clients because of a fiduciary relationship, i.e., attorney-client.

An attorney-client relationship exists when there is an "identifiable manifestation" that there was reliance on the lawyer in his professional capacity. In re Palmieri, 76 N.J. 51, 60 (1978). In Fuschetti v. Bierman, 128 N.J. Super. 290 (Law Div.1974), the court held that all that is required in establishing an attorney-client relationship is a statement by an attorney that he would "handle" her matter. An attorney-client relationship is not necessarily dependent upon payment, nor is it dependent upon any written agreement. United States v. Costanzo, 625 F.2d 465, 468 (3 Cir.1980). Courts will look to the party's conduct, not necessarily whether there is a formal ...

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