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Moscatello v. University of Medicine and Dentistry of New York

June 21, 2001

LUCY MOSCATELLO, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR JOHN MOSCATELLO, JR., CARL MOSCATELLO, CHRISTINA MOSCATELLO, AND JOHN JAMES MOSCATELLO, INDIVIDUALLY PLAINTIFFS-APPELLANTS,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, MING- LIANG LEE, M.D., LEONARD SCIORRA, PH.D., SEYMOUR GELZER, ESQ. AND BRIGIANI, GELZER COHEN & SCHNEIDER, P.A., DEFENDANTS-RESPONDENTS.



On appeal from the New Jersey Superior Court, Law Division, Middlesex County, L-12554-97; L-12088-98.

Before Judges Keefe, Eichen and Weissbard.

The opinion of the court was delivered by: Keefe, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: May 16, 2001

This appeal requires that we decide whether a wrongful birth settlement by the parents of a child born with disabilities extinguished the disabled child's wrongful life claim for extraordinary medical expenses; whether a child born with disabilities may include in his claim for wrongful life damages for the loss of enjoyment of life, including his diminished childhood; whether an action for wrongful birth extends to the siblings of a child born with disabilities; and whether the attorneys representing the parents at the time of the settlement were entitled to summary judgment on all of the legal malpractice claims.

The Law Division granted summary judgment to all defendants on all issues and plaintiffs appeal. We now hold that the parent's settlement did not extinguish the disabled child's claim for extraordinary medical expenses; the disabled child cannot maintain a claim for loss of enjoyment of life or diminished childhood; the siblings may not bring a wrongful birth claim; and the parents' attorneys were only entitled to partial summary judgment. Accordingly, the judgment under review is affirmed in part, reversed in part, and remanded for further proceedings.

In November 1978, Lucy Moscatello was referred to defendant, Dr. Lee, at the University of Medicine and Dentistry of New Jersey ("UMDNJ") for chromosomal and genetic testing. The referral was made because she had suffered three consecutive spontaneous miscarriages in 1977 and 1978. Lee, who at the time was an Associate Professor of Pediatrics at UMDNJ and Chief of its Division of Medical Genetics, performed an internal examination and a number of blood tests. These tests were analyzed by defendant Sciorra. Thereafter, Lee informed Lucy that she was genetically normal.

Following the genetic testing, Lucy became pregnant. On March 25, 1980, she gave birth to plaintiff Christina, a normal baby girl. Thereafter, she became pregnant again. On April 4, 1982, she gave birth to plaintiff John Jr., who was born with various physical deformities associated with chromosomal abnormalities.

As a result, in the spring of 1982, genetic testing was performed at Babies Hospital, a part of the Columbia-Presbyterian Medical Center in New York, which revealed that John Jr. was born with a partial trisomy of chromosome 14 and a partial deletion of chromosome 18. This is a rare disorder. In fact, in 1984 there were only six documented cases in the medical literature. Unfortunately, one of the six cases was Lucy's cousin. The cousin is severely mentally retarded and has only a ten word vocabulary. He is ambulatory but has some spasticity of his limbs. He is, however, able to feed, dress himself, and participate in vocational programs.

In contrast, John Jr. is virtually unable to care for himself. His mother has certified that as a result of the genetic deformities, he is not toilet trained, and his verbal and nonverbal communication skills are severely limited. He has difficulty holding and carrying objects, as well as difficulty feeding himself. In sum, John Jr. functions on the level of someone approximately two years old.

Genetic testing revealed that Lucy has a balanced rearrangement between chromosome 14 and 18. The doctor's report explained that the condition was no threat to her health "because the rearrangement is balanced - no chromosomal material is missing or extra - only rearranged." However, because of her genetic deformities, the Columbia-Presbyterian doctors recommended that any future pregnancies be monitored by amniocentesis.

On February 22, 1983, defendant Seymour Gelzer, Esq., filed a complaint on behalf of Joseph and Lucy Moscatello in the Law Division, naming as defendants UMDNJ, Lee, as well as three fictitious defendants. The complaint was later amended to include Sciorra as a defendant. The complaint included two counts. The first count alleged that the medical defendants negligently reported the Moscatellos "to be genetically normal and capable of having children," despite the fact that Lucy possessed an "abnormal chromosomal structure which made it probable that any children mothered by her would not in fact be born normal." The Moscatellos sought damages for the mental and emotional anguish resulting from the malpractice. The second count of the complaint sought damages for John Jr.'s past and future medical care.

On November 27, 1984, the parties settled their dispute and placed the settlement on the court record. Mr. Gelzer stated that the plaintiffs were settling the claim for their "emotional losses" as a result of John Jr.'s birth, and "for the cost of extraordinary medical expenses incurred or to be incurred on behalf of John Moscatello [Jr.] to be borne by the parents." The settlement was for "the aggregate sum of $375,000." The Deputy Attorney General representing the defendants added: "[T]his settlement covers all current claims that John Moscatello, Jr. could assert under existing law." The judge, however, was not asked to approve the settlement. An order dismissing the suit with prejudice was entered on the same day. John and Lucy Moscatello thereafter executed releases in accord with the settlement. The State issued a check on January 31, 1985, made payable to "John James Moscatello and Lucy C. Moscatello his Wife and their attorney Seymour Gelzer, Esq." in the amount of $375,000.

Nearly fourteen years later, on November 5, 1997, plaintiffs' current attorney filed the subject complaint in the Law Division. The first count of the complaint is a wrongful birth claim on behalf of Lucy and a wrongful life claim on behalf of John Jr. It alleges negligence by Lee and Sciorra, as well as a claim for respondeat superior liability against UMDNJ. The second and third counts of the complaint contain wrongful birth claims brought by John Jr.'s siblings, Christina and Carl, alleging that they have "suffered damages including but not limited to diminished childhood and emotional anguish over [their] brother's severe mental and physical deformities." The fourth and fifth counts of the complaint allege that the Gelzer defendants committed legal malpractice in the 1984 action by negligently advising the Moscatello's to settle their claim for a "woefully inadequate amount" and that if "this court deems the child's claim for damages was waived due to the settlement, defendants were negligent in failing to amend the complaint to include the child's wrongful life cause of action."

The defendants filed answers and engaged in discovery. Thereafter, defendants moved for summary judgment on diverse grounds. The Law Division judge dismissed the siblings' claim for wrongful birth as not cognizable under extant case law. He also found that the record clearly proved that John and Lucy Moscatello intended to settle the claim for John Jr.'s lifetime extraordinary medical expenses. Accordingly, he found that John Jr.'s claim for extraordinary medical expenses was barred by that settlement. To the extent that John Jr. had an independent claim, the judge found that it was barred by the entire controversy doctrine. As to the legal malpractice claim, the judge opined that the sum of ...


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