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PROVENZANO v. GENETICS

October 13, 1998

KAREN PROVENZANO and THOMAS PROVENZANO, individually, Plaintiff,
v.
INTEGRATED GENETICS, et al., Defendants.



The opinion of the court was delivered by: HUGHES

MEMORANDUM OPINION

 HUGHES, U.S.M.J.

 This matter comes before the Court on motion of Defendants, Integrated Genetics, Genzyme Genetics, Genzyme Corporation, and Sterling Puck, M.D., for summary judgment. Also pending before the Court is Plaintiffs' motion for leave of Court to amend the Complaint by joining Dr. Charles H. Hux and Shore Perinatal Associates as defendants. Both motions are opposed. The Court reviewed the parties' written submissions and conducted oral argument on September 8, 1998 and October 5, 1998. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C.A. § 636 and FED. R. CIV. P. 73, for all purposes, including trial.

 I. BACKGROUND

 A. Procedural History

 On November 1, 1996, Plaintiffs Karen Provenzano and Thomas Provenzano filed a wrongful birth claim against Defendants, Integrated Genetics, Genzyme Genetics, Sterling Puck, M.D., and John Doe Medical Providers, in the Superior Court of New Jersey, Ocean County Vicinage. The Complaint was amended on December 27, 1997, joining Genzyme Corporation as a Defendant. Genzyme Genetics is the successor corporation to Integrated Genetics and a wholly owned subsidiary of Genzyme Corporation. (Defendant's Answer PP 11-12). Dr. Puck was the Medical Director of Integrated Genetics on or about June 5, 1995. (Defendant's Answer P 5).

 The Complaint, as amended, claims that Defendants' negligence led to the wrongful birth of one of Mrs. Provenzano's twin infants, Tiffany Provenzano ("Tiffany"). More specifically, the Complaint alleges that Defendants negligently analyzed and diagnosed amniocentesis samples collected from Mrs. Provenzano during her pregnancy. The Complaint further alleges that Defendants' negligence deprived Plaintiffs of the necessary information to make an informed decision as to whether to opt for a selective reduction -- a procedure in which one fetus of several may be terminated. Plaintiffs seek damages for emotional distress and extraordinary medical expenses attributable to Tiffany's birth defects, consistent with Procanik by Procanik v. Cillo, 97 N.J. 339, 478 A.2d 755 (1984).

 On March 24, 1997, this action was removed, on diversity grounds pursuant to 28 U.S.C.A. § 1332, to the United States District Court, District of New Jersey. Defendants filed an Answer to the Complaint on May 2, 1997.

 On May 26, 1998, Plaintiffs filed a motion for leave to file an amended complaint seeking to join Dr. Charles Hux and Shore Perinatal Associates as defendants. Dr. Hux, a physician with Shore, was Mrs. Provenzano's primary physician regarding the instant pregnancy. The proposed amended complaint alleges that Dr. Hux "was negligent and/or deviated from the applicable standard of care in conducting and reading the ultra sound studies that [Mrs. Provenzano] underwent." (Amended Complaint P 6.). Dr. Hux performed ultra sound examinations on Mrs. Provenzano every three to four weeks from June 5, 1995 through the birth of the twins in October. (Plaintiff's Statement of Material Facts at PP 4-8). The proposed amended complaint further alleges that Shore Perinatal Associates "was negligent and/or deviated from the applicable standard of care in setting up standards and guidelines for the performance and interpretation of ultra sound studies" and should be liable for Dr. Hux's conduct under the doctrine of respondeat superior. Id. The proposed amended complaint further alleges that as a result of Dr. Hux's and Shore Perinatal Associates' negligence, Plaintiffs did not have the choice of terminating the pregnancy of one of the fetuses. Plaintiffs contend that Dr. Hux and Shore Perinatal Associates should be joined as defendants at this late juncture because discrepancies between his medical records and his May 14, 1998 deposition testimony revealed the basis for a cause of action against him. Plaintiffs further argue that they moved to amend the Complaint prior to the June 12, 1998 Court ordered deadline for joining additional parties to this litigation.

 On June 1, 1998, Defendants filed opposition to Plaintiffs' May 26, 1998 motion to amend the Complaint. Because the treatment that Dr. Hux provided to Mrs. Provenzano terminated on or around October 14, 1995, upon the birth of her twins, Defendants argue that the applicable statute of limitations had expired prior to May of 1998. Defendants also argue that allowing the amendment would unfairly prejudice them by causing undue delay and by defeating diversity jurisdiction.

 Defendants filed the present motion for summary judgment on September 1, 1998. Defendants argue that summary judgment is appropriate because Mrs. Provenzano is unable to testify that, but for any alleged negligence, she would have had an abortion. Plaintiffs oppose Defendants' motion alleging that genuine issues of material fact exist concerning the proximate cause element of Plaintiffs' wrongful birth claim. The Court determined that the motions be heard together to promote efficient case management.

 B. Factual Background

 Mrs. Provenzano learned that she was pregnant in March of 1995. (Plaintiffs' Exhibit ("P. Ex.") A.). On April 13, 1995, Mrs. Provenzano was initially treated by Dr. Melvyn Ravitz. (Id.). Dr. Ravitz referred her to Dr. Charles Hux at Shore Perinatal Associates in May 1995 because Mrs. Provenzano, a thirty-eight year old, was considered a high risk obstetrical patient due to her age and the fact that she was carrying twins. (P. Ex. B, Deposition of Mrs. Provenzano at 43:24 to 45:1; P. Ex. C, Dr. Hux's letter to Dr. Ravitz of May 22, 1995). More than twenty years earlier, Mrs. Provenzano had an abortion. (Id. at 100:2).

 Dr. Hux performed approximately seven ultra sound examinations on Mrs. Provenzano during her pregnancy. (P. Ex. C). On June 5, 1995, Dr. Hux performed an ultra sound test which indicated the possibility of an enlarged cerebellum for fetus B, who was later named Tiffany. (Id.). Dr. Hux's June 7, 1995 letter to Dr. Ravitz explained that he did not discuss the possibility of the enlarged cerebellum with Plaintiffs because "he was not confident enough in the ultrasound finding at that time." (Id.).

 Also on June 5, 1995, Dr. Hux conducted an amniocentesis for each of Plaintiff's fetuses and sent amniotic samples to Defendant Integrated Genetics. (Id.) An amniocentesis is a procedure involving "the insertion of a long needle into the mother's uterus and the removal therefrom of a sample of amniotic fluid containing living fetal cells." Berman v. Allan, 80 N.J. 421, 424, 404 A.2d 8 (1979) citing W. Fuhtmann & F. Vogel, Genetic Counseling 91-94 (2d Ed. 1976). Then, through "karyotype analysis," a procedure in which the number and structure of the cells' chromosomes are examined, the sex of the fetus as well as the presence of gross chromosomal defects can be detected. Id. The test results were negative for genetic defects. (P. Ex. D, Chromosome Analysis of June 15, 1995).

 On July 6, 1995, after performing an ultrasound on Mrs. Provenzano, Dr. Hux noted "a 30-40% difference in fetal size" and good interval growth for twins A and B. (P. Ex. C, Dr. Hux's letter to Dr. Ravitz of July 6, 1995). At that time, he advised a close follow up. (Id.). Dr. Hux wrote that he "explained the findings to this couple in some detail; however, [he did] not believe that they understood at the time the potential impact of such a diagnosis." (Id.).

 On August 17, 1995, Dr. Hux noted a "cyst head" in his records without specifying to which fetus he was referring. (P. Ex. C). On September 14, 1995, Dr., Hux's records refer to a diagnosis of a "Subarachnoid or Dandy-Walker cyst in twin B." (Id.). On October 12, 1995, two days before the birth of the twins, Dr. Hux's records indicated the following: "cyst in head twin B and dilated bowel. Growth discrepancy about 800 grams. High morbidity, consider delivery within 1-2 weeks max at level 2 center. Discussed with neonatology and pediatric neurologist." (Id.).

 Mrs. Provenzano gave birth to twin girls on October 14, 1995. Shortly afterwards, Tiffany was moved to the Children's Hospital of Philadelphia. (P. Ex. E). Due to the seriousness of Tiffany's condition, the slides from the June 5, 1995 amniocentesis were reexamined. The reexamination revealed that a Trisomy 14 mosaicism, a genetic disease, in fetus B had been overlooked when the slides were originally examined on or around June 5, 1995. (P. Ex. F., Deposition of Richard L. Nue, at 66). The discharge diagnosis from Children's Hospital of Philadelphia, dated January 10, 1996, confirmed Tiffany's genetic disease. Mr. Nue, the Laboratory Director for Defendant, Genzyme Genetics, testified that such a finding "would be expected to be clinically significant." (Id.). Tiffany died on June 5, 1996.

 Mrs. Provenzano was deposed on March 12, 1998. The following testimony was elicited:

 
Counsel for Defendants: It was your understanding that one of the fetuses was coming along just fine, but the other was having some type of problems?
 
Mrs. Provenzano: Yes.
 
Q: Did you ask him [Dr. Hux], Well, is the one who is having problems going to hurt the other fetus?
 
A: Yes.
 
Q: Who did you ask that?
 
A: Hux.
 
Q: What did he say?
 
A: It's too soon to tell.
 
Q: Did you ask him, Well, maybe we should abort one of the fetuses?
 
A: No, it never came up.
 
Q: Why did it never come up?
 
A: Because I was never given an opportunity. No one told me.
 
Q: No one told you what?
 
A: That I could terminate one pregnancy.
 
Q: As you sit here now, do you know whether you could have ...

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