On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Handler, O'Hern, and Stein. For affirmance -- Justices Pollock and Garibaldi. Pollock, J., dissenting.
The tragic circumstances underlying this medical malpractice suit do not immediately concern, yet cannot be divorced from, the issue before the Court: whether the trial court acted properly in vacating a final settlement agreement without having first conducted a testimonial hearing.
Plaintiff Pauline Nolan is blind, the result of a binary enucleation to remove malignant tumors during her infancy. Pauline's daughter, Tara, was born on September 22, 1978. When Tara was nearly a year old, she was diagnosed as having bilateral retinoblastoma, "[a] malignant type of tumor arising from the retina . . . [that] usually occurs before the third year of life, and . . . shows a familial or hereditary tendency." 3 Schmidt's Attorneys' Dictionary of Medicine R-92 (1990).
Because of those malignant tumors, both of Tara's eyes were removed by surgery -- the left eye immediately after the diagnosis, the right eye only after radiation and chemotherapy treatment had failed to shrink that tumor. Pauline Nolan testified at trial that until Tara was diagnosed as having malignant tumors, it had never occurred to her that they could be passed
on to a child. According to Pauline Nolan, no doctor had ever indicated to her that the tumors might be congenital.
During her first pregnancy, in 1974, Pauline Nolan consulted Myron S. Soled, M.D., who refused to take her on as a patient. Pauline Nolan testified that Dr. Soled suggested she go to the Margaret Hague Hospital, a high risk center, for counseling. According to Dr. Soled, Pauline Nolan told him that in addition to having had her eyes removed because of malignant tumors, she suffered from "convulsive disorders" and "depressive reaction." Dr. Soled testified that he then consulted with a senior doctor in obstetrics and gynecology, Dr. Zondek Kubes, who suggested that the cause of Pauline Nolan's eye tumors was most likely retinoblastoma. On the advice of Dr. Kubes, Dr. Soled referred Pauline Nolan to the Margaret Hague Hospital, although he did not specifically inform her of the genetic risk to the unborn baby. Pauline Nolan did not go to the Margaret Hague, but instead found another doctor who treated her.
During a later pregnancy, which ended in a miscarriage in July 1975, Pauline Nolan came under the care of defendant Luisita S. Lee Ho, M.D., an obstetrician/gynecologist. In April 1976, Pauline Nolan again became pregnant and again consulted Dr. Lee Ho; that pregnancy produced a son, Brian, who was born without retinoblastoma on November 8, 1976.
The infant plaintiff, Tara Nolan, was born of Pauline Nolan's fourth pregnancy; Dr. Lee Ho again served as Pauline Nolan's obstetrician/gynecologist. Pauline Nolan testified that she had told Dr. Lee Ho that her blindness resulted from malignant tumors, but that neither Dr. Lee Ho nor anyone else had suggested to her that her childhood disease could be transmitted to her children. Pauline Nolan also testified that had she known before she became pregnant that she carried a disease with a fifty-percent chance of being passed on to a child, she would not have had children.
The Nolans brought suit against Dr. Lee Ho and Dr. Reuben Deulofeu, the Nolan's regular pediatrician, on November 2,
1981, asserting that both doctors negligently had failed to advise the Nolans that Pauline Nolan's blindness likely had a genetic cause, thus creating a high risk of blindness to potential children. The Nolans alleged that that failure to warn deprived them of the opportunity to make an informed decision on whether to conceive Tara (wrongful birth), and damaged Tara by failing to prevent her birth (wrongful life).
The matter was ready for trial in May 1984. Shortly before the trial actually commenced, the court, on May 22, 1984, granted partial summary judgment to defendant Lee Ho on the wrongful-life claim, because New Jersey had not recognized that cause of action. See, e.g., Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979). At that time the wrongful-birth claim against Dr. Lee was settled for $200,000, and the settlement was placed on the record. On May 23, the trial commenced against Dr. Deulofeu. On May 24, 1984, following direct and cross-examination of Thomas and Pauline Nolan, a settlement offer of $500,000 was made to plaintiffs on behalf of Dr. Deulofeu. That evening, plaintiffs' counsel telephoned the home of defense counsel and indicated to defense counsel's wife that plaintiffs agreed to the offer of settlement that had been made that afternoon.
Defense counsel, however, had become wary because Thomas Nolan had mentioned the name of Dr. Soled during his testimony on May 24. Until this reference, the defense was unaware of Dr. Soled and had never before heard that name. Defense counsel therefore communicated with Dr. Soled on the morning of May 25. Dr. Soled informed defense counsel that he had advised Pauline Nolan to seek genetic counseling in 1974. Further, Dr. Soled told defense counsel that he had ...