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Rosa Acuna Administratrix Ad Prosequendum v. Turkish

April 7, 2006

ROSA ACUNA ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF ANDRES ACUNA,*FN1 DECEASED INFANT AND ROSA ACUNA INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
SHELDON C. TURKISH, M.D., AND THE OBSTETRICAL AND GYNECOLOGICAL GROUP OF PERTH AMBOY-EDISON, P.C., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-3812-98.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: April 18, 2005

Before Judges A. A. Rodríguez, Cuff and Hoens.

Plaintiff, Rosa Acuna, appeals from the summary judgment dismissing her complaint against defendants Sheldon C. Turkish, M.D. and his medical group, the Obstetrical and Gynecological Group of Perth Amboy-Edison, P.C. (collectively "defendants"). We reverse.

Some aspects of the dispute between these parties were the subject of an earlier decision of this court. See Acuna v. Turkish, 354 N.J. Super. 500 (App. Div. 2002). Because that decision bears directly on the issues now before us, we must first set out the essential facts and the procedural history of this litigation.

At the time of the events in question, Acuna was twenty-nine years old. She was married and was the mother of two daughters. Those children had been born of Acuna's second and third pregnancies, her first pregnancy having ended in a miscarriage in 1993. On April 6, 1996, Acuna consulted Turkish, an obstetrician and gynecologist who had delivered Acuna's second child, because she was suffering from abdominal pain.

After Turkish examined Acuna, he advised her that she was pregnant for the fourth time. The pregnancy was in its sixth to seventh week. He also advised her that she should terminate the pregnancy for medical reasons. According to Acuna, Turkish told her that she "needed an abortion because [y]our kidneys are messing you up." Since the time she had been in high school, Acuna had suffered from renal glycosuria, a disorder of the kidneys. Acuna asked Turkish whether "the baby was already there." According to Acuna, Turkish replied, "Don't be stupid, it's only blood."

At her deposition, Acuna shed some light on her understanding of the word "pregnant." She testified 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." In the following deposition excerpt, Acuna further explained her understanding of what it means to be pregnant.

[TURKISH'S COUNSEL]: Q: What did that word pregnant mean to you in your mind in January 1993 [the time of her miscarriage]? [ACUNA'S COUNSEL]: A. As long as you give the month, that was fine. [ACUNA]: That eventually somewhere down the line I was going to have a baby.

[TURKISH'S COUNSEL]: Q: In your mind in January of 1993, more specifically than somewhere down the line you're going to have a baby, what in your mind was happening inside your body in January of 1993?

[ACUNA]: A: I didn't know exactly what was happening inside my body. I knew I had gotten pregnant but I didn't know exactly what was forming inside my body at this moment.

Following the April 6, 1996 examination by Turkish, Acuna discussed the physician's advice with her husband. Three days later, she signed a consent form for an abortion. Turkish performed a vacuum aspiration. However, Acuna continued to bleed. Seven weeks later, Acuna went to Robert Wood Johnson Hospital where she was diagnosed with an incomplete abortion. Acuna underwent a dilation and curettage. According to her, one of the nurses caring for her explained that the procedure was necessary because Turkish "had left parts of the baby inside of ...


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