On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3812-98.
Before Judges Havey, A.A. Rodriguez and Payne.
The opinion of the court was delivered by: Havey, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2002
This is a medical malpractice, informed consent case. The gravamen of the complaint, filed by plaintiff Rosa Acuna individually, and in her capacity as Administratrix of the Estate of "Michael Doe," is that defendant Dr. Sheldon C. Turkish (defendant), a medical doctor specializing in the field of obstetrics and gynecology, failed to obtain an informed consent from plaintiff before terminating her pregnancy. Specifically, plaintiff claimed that defendant "failed to inform her that [the fetus, Michael Doe], although a person unborn, was a complete, separate, unique and irreplaceable human being . . . ."
By leave granted, plaintiff appeals from an order for summary judgment dismissing counts one and two of her complaint setting forth a wrongful death cause of action against defendant and his medical group, in which she seeks to recover pecuniary loss "as the result of the death of the child . . . ." Plaintiff also appeals from the dismissal of count five, setting forth a cause of action for her emotional distress suffered as a result of the "loss of her son."
We affirm dismissal of the wrongful death counts. The Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, "does not permit recovery attributable to the wrongful death of an infant before birth." Giardina v. Bennett, 111 N.J. 412, 413 (1988). We reject plaintiff's argument that depriving her of a wrongful death remedy violates the Equal Protection Clause under the Fourteenth Amendment to the United States Constitution.
However, we reverse dismissal of plaintiff's emotional distress claim. In the event plaintiff establishes a medical malpractice claim based on a lack of informed consent, defendant's tortious conduct constitutes a direct tort against plaintiff, entailing emotional distress and mental suffering arising from the loss of a fetus. *fn1
The evidentiary material considered in a light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995), presents the following factual background. On April 6, 1996, plaintiff consulted Dr. Turkish because of abdominal pain. At the time, plaintiff was twenty- nine years of age and had two children, two and one-half years and nine months old, the latter having been delivered by defendant by caesarian section. Defendant examined plaintiff and, and according to plaintiff, advised her that she was pregnant and needed an abortion because "[y]our kidneys are messing you up." Plaintiff interpreted defendant's diagnosis and warnings to mean that, without an abortion, she only had three months to live. In his deposition, defendant testified that he performed a pelvic examination and administered a sonogram, which revealed that the gestational age of the fetus was approximately seven weeks old.
Plaintiff was not concerned how the termination of pregnancy would be performed. Rather, she asked defendant whether "the baby was already there." She testified in her deposition that "[o]bviously I knew I was pregnant, I just needed to know and I wanted to know if the baby was - - if there was a baby already in me." By baby, she meant "human being" or "[l]ife in there." According to plaintiff, defendant replied "don't be stupid, it's only blood." Defendant testified he did not remember plaintiff asking that question, but acknowledged that if a patient had asked it, he would have answered that a "seven-week pregnancy is not a living human being."
On April 9, 1996, plaintiff signed a consent form for a termination of pregnancy (TOP), which stated in its entirety, "I hereby give my consent for Dr. Turkish to perform a TOP. He has explained all the risks and complications to me." On April 9, 1996, defendant performed a vacuum aspiration. *fn2 Defendant admitted that the vacuum aspiration procedure "in fact, kills the fetus." However, plaintiff continued to bleed for several weeks and, on May 4, 1996, the bleeding became extremely heavy. She was taken to Robert Wood Johnson Hospital where she was diagnosed with an incomplete abortion. At the hospital, plaintiff underwent a dilatation and curettage (D and C). According to plaintiff, the nurse caring for her explained that the procedure was necessary because "the [previous] doctor [defendant] had left parts of the baby inside of you."
Plaintiff's expert, Theresa Karminski Burke, a psychologist, concluded that, as a result of the termination of pregnancy, plaintiff suffered severe emotional and psychological trauma, which led to the development of acute post-traumatic stress disorder, obsessive compulsive disorder, major clinical depression and psychosexual dysfunction.
In granting summary judgment to defendants dismissing both the wrongful death and emotional distress counts, the trial court viewed the central issue as being whether "a six to eight week fetus is a constitutional person; and the answer is no." Citing Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the trial court reasoned that, although it sympathized with plaintiff's argument, it "must adhere to the fact that the highest Court of this country has held that a fetus is not a human being under our constitution." Consequently, the wrongful death claim "must be dismissed." Citing Portee v. Jaffe, 84 N.J. 88 (1980), the court concluded that the fetus' lack of status as a "constitutional person" also precluded a cause of ...