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Reichenbach v. Lourdes Medical Center of Burlington County

December 28, 2009

NANCY REICHENBACH, PLAINTIFF-APPELLANT,
v.
LOURDES MEDICAL CENTER OF BURLINGTON COUNTY, LOURDES HEALTH SYSTEM, DEFENDANTS, AND KENNETH H. CHEN, D.O., RANCOCAS OB/GYN ASSOCIATES, LLC, KARYN LEWIS, D.O., GARY MIRONE, D.O., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-503-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 15, 2009

Before Judges Cuff, Payne and Waugh.

Plaintiff Nancy Reichenbach appeals the dismissal of her claim for emotional distress arising from the birth of her son, D.P., at defendant Lourdes Medical Center of Burlington County (Lourdes). Defendants Kenneth H. Chen, D.O., Rancocas Ob/Gyn Associates (Rancocas), Karyn Lewis, D.O., and Gary Mirone, D.O., were providers of medical services in connection with the pregnancy and delivery. We affirm.

I.

We discern the following factual and procedural background from the record.

A.

D.P. was born on February 27, 2003. According to Reichenbach, the delivery was difficult and required the use of forceps and vacuum extraction. Shortly after D.P.'s birth, there were some signs of trauma from the delivery and also signs of possible brain abnormalities. There appears to be no dispute that D.P. has continuing neurological impairments, although there is disagreement about their etiology and whether there is any causal relationship to the events surrounding his delivery. Reichenbach contends that she suffered severe emotional distress as a result of witnessing, audibly and visually, the injuries to her son during and after his delivery.

B.

Reichenbach filed a two-count complaint on February 18, 2005, suing as her son's guardian ad litem and individually.*fn1

The first count asserted personal injury claims on behalf of D.P. The second count asserted claims on behalf of Reichenbach personally. However, the second count, as drafted, does not specifically articulate a claim arising out of personal injury to Reichenbach. Instead, it alleges that Reichenbach (1) "was forced to incur substantial medical expenses and other losses as a result of her child's condition;" and (2) "has incurred and will in the future incur loss of services as well as other derivative damages and losses."

An affidavit of merit, as required by N.J.S.A. 2A:53A-27, was apparently filed in February 2005. Lourdes, Rancocas and Chen filed answers in March 2005. Lewis and Mirone, who were employed by the University of Medicine and Dentistry of New Jersey (UMDNJ) at the time of D.P.'s birth, filed their answer in March 2006.

The parties engaged in discovery. Reichenbach's undated answer to question eighteen of the Form A(1) interrogatories, which requires that a plaintiff describe "the injuries [] sustained as a result of the negligence claimed in this lawsuit," was as follows: "See medical records attached with regard to [D.P.'s] injuries. I am very emotionally distressed about this life altering situation." Although the answers to interrogatories are undated, it appears that they were forwarded to defense counsel in July 2005.

Reichenbach was deposed on March 28, 2006. She gave two answers in which she made reference to being upset about the birth and related injuries to D.P.:

Q: Did you ask any questions about what was wrong or why something was wrong?

A: No.

Q: What about [D.P.'s father], did he ask any questions?

A: Yes. He wanted to know why the baby wasn't crying, why the baby was blue, how ...


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