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In re Adoption of Baby T

May 29, 1998

IN THE MATTER OF THE ADOPTION OF BABY T


Before Judges Shebell, D'Annunzio and Rodr¡guez

The opinion of the court was delivered by: D'annunzio, J.A.D.

[9]    Submitted March 25, 1998

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Camden County.

Nishat Zedie, M.D., a defendant in a medical malpractice wrongful death and survivorship action, appeals from an order denying her application to set aside a judgment of adoption. Decedent was the adopted child and the judgment of adoption was entered after his death.

The facts are uncontroverted. The child, Baby T, a boy, was born on December 1, 1993. P. and J.H. received Baby T into their household three days later for the purpose of adoption. They received him from The Adoption Agency (agency). The agency remained the child's guardian, and under the adoption statute in effect prior to April 27, 1994, P. and J.H. could not commence an adoption proceeding for at least six months. N.J.S.A. 9:3-47a. *fn1

Baby T was admitted to a hospital on March 31, 1994 for the repair of an inguinal hernia. He suffered cardiac arrest during the procedure and died a few hours later.

P.H. qualified as Baby T's administrator and in March, 1995 commenced a wrongful death and survivorship action alleging malpractice against several defendants, including Dr. Zedie. Venue was set in Middlesex County. Thereafter, on May 25, 1995 P. and J.H. filed an adoption complaint in Camden County. A judgment of adoption was entered on July 7, 1995. The judgment of adoption effected the adoption of two children, the decedent, Baby T, referred to therein as Baby Boy Doe, and another boy referred to as Baby Boy Roe.

Dr. Zedie moved in the medical malpractice action for an order setting aside the adoption judgment. Judge Lintner heard the motion on June 27, 1997 and informed defense counsel that the defendant would have to move within the adoption proceeding to set aside the judgment. During colloquy, plaintiffs' counsel conceded that Dr. Zedie would have standing in the adoption proceeding to make the motion.

Dr. Zedie made the motion in the adoption proceeding in Camden County and it was denied based on a comprehensive and thoughtful published opinion. In re Adoption of Baby T., 308 N.J. Super. 344 (Ch. Div. 1997) (hereinafter Baby T). Dr. Zedie now appeals.

Despite counsel's earlier concession that Dr. Zedie had standing to attack the adoption judgment, P. and J.H. contended in the Family Part and contend on appeal that Dr. Zedie lacked standing. The trial court questioned Dr. Zedie's standing, but addressed the substantive issue. Id. at 348-49. We conclude that Dr. Zedie has standing to attack the adoption judgment.

If a decedent dies intestate, a wrongful death action must be brought in the name of an administrator ad prosequendum. N.J.S.A. 2A:31-2. The amount recovered, however, is for the "exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions to which they are entitled to take the same." N.J.S.A. 2A:31-4. See Sykes v. Propane Power Corp., 224 N.J. Super. 686, 697 (App. Div. 1988) (finding that unmarried cohabitant of decedent who bore decedent four children has no individual claim under the Wrongful Death Act).

The amount of damages in a wrongful death action generally is measured by the pecuniary loss suffered by decedent's heirs. Regarding the death of a child, our Supreme Court explained:

Damages for the wrongful death of an infant, like wrongful-death damages generally, are limited to economic matters. When parents sue for the wrongful death of a child, their damages may include the pecuniary value of the child's help with household chores, the pecuniary value of the child's anticipated financial contributions, and the pecuniary value of the ...


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