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Alla Thompson, As Administratrix Ad Prosequendum of the Estate of Peter Michael Thompson, Jr, Deceased v. Robert Wood Johnson University Hospital

June 15, 2011

ALLA THOMPSON, AS ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF PETER MICHAEL THOMPSON, JR, DECEASED,
ALLA THOMPSON, INDIVIDUALLY, : AND PETER MICHAEL THOMPSON, SR, PLAINTIFFS,
v.
ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge.

NOT FOR PUBLICATION

: OPINION

This action is brought by plaintiffs Alla Thompson, as Administratrix ad Prosequendum of the Estate of Peter Michael Thompson, Jr. and individually ("Alla Thompson"), and Peter Michael Thompson, Sr. ("Peter Thompson" and, together with Alla Thompson, "Plaintiffs") against defendants Robert Wood Johnson University Hospital ("RWJ"), University of Medicine and Dentistry of New Jersey ("UMDNJ"), Billie Fyfe-Kirschner, M.D. ("Dr. Fyfe-Kirschner") and Michael Nagar, M.D. ("Dr. Nagar"). Presently before the Court are motions for summary judgment by RWJ, Dr. Fyfe-Kirschner, UMDNJ and Dr. Nagar (the "Moving Defendants"). Plaintiffs oppose the motions. Oral argument was held on May 10, 2011. For the reasons set forth herein, the motions for summary judgment by UMDNJ, Dr. Fyfe-Kirschner and Dr. Nagar are granted and the motion for summary judgment by RWJ is denied.

I. FACTUAL BACKGROUND

Plaintiffs filed the complaint in this case in connection with an autopsy performed on the body of their deceased child following their elective termination of Alla Thompson's pregnancy. The claims in this action are for compensatory damages arising out of the unauthorized autopsy of the body of the deceased child. Plaintiffs' complaint asserts claims under the United States Constitution pursuant to 42 U.S.C. § 1983 for violation of their civil rights and under New Jersey state law.

During Alla Thompson's pregnancy in 2007, doctors at RWJ diagnosed the child she was carrying with skeletal dysplasia and holoprosencephaly, which are fatal fetal abnormalities. (Alla Thompson Deposition ("Dep."), 15:23 -- 16:24). Based on this diagnosis and after discussing their medical options with doctors and genetics counselors at RWJ, Plaintiffs elected to terminate the pregnancy shortly before the 24 week mark. (Id. at 16:25 -- 18:4; 30:23 -- 31:1). While meeting with genetics counselors in connection with this diagnosis, Plaintiffs were presented with the option of participating in research on skeletal dysplasia conducted by the International Skeletal Dysplasia Registry at Cedars-Sinai Medical Center in Los Angeles, California ("Cedars-Sinai"). (Peter Thompson Dep., 15:1 -- 20). Participating in this research would require that an autopsy be performed on the body of their deceased child. (Alla Thompson Dep., 23:10 -- 24: 12). Plaintiffs declined to give their consent for an autopsy, but verbally consented to the taking of x-rays. (Id. at 34:21 -- 36:12; 38:23 -- 45:11; Peter Thompson Dep., 15:21 - 24).

On and about August 17, 2007, Alla Thompson underwent cardiocentesis, induction of labor and delivery of the body of her now-deceased child at RWJ. (Alla Thompson Dep., 30:23 -- 31:23). On that day, prior to delivery of the body, Alla Thompson told members of the RWJ team that she did not want an autopsy performed on the body. (Id. at 34:21 -- 36:12; 41:23 -- 42:6; 44:2 -- 45:11).

Following Alla Thompson's delivery of the body, the remains were taken to the Pathology Department at RWJ. (Dr. Nagar Dep., 29:3 - 6). Dr. Nagar was a medical resident in the pathology residency training program at UMDNJ and was on duty that day. (Dr. Nagar Dep., 14:2 -- 6). Dr. Fyfe-Kirschner was the director of that program. (Dr. Fyfe-Kirschner Dep., 15:24 -- 17:4). Although they were working at RWJ, Dr. Fyfe-Kirschner and Dr. Nagar were employed by UMDNJ. (Dr. Fyfe-Kirschner Dep., 16:9 -- 12, 14:13 -- 16; Dr. Nagar Dep., 13:11 -- 14:6).

There are no documents in the record authorizing release of the body to Cedars-Sinai or consenting to an autopsy of the body. (Dr. Fyfe-Kirschner Dep, 21:22 -- 22:12). Despite this lack of written consent, Dr. Nagar sent the remains to Cedars-Sinai for "complete evaluation."*fn1

(Robert Wood Johnson University Hospital Autopsy Report; Dr. Nagar Dep., 29:7 - 12). According to Dr. Nagar, he sent the body to Cedars-Sinai based on his belief that it had specialized equipment to perform x-rays that could not be done at RWJ and consent had been obtained for doing so. (Dr. Nagar Dep., 32:20 -- 25). A full autopsy was performed on the body after it arrived at Cedars-Sinai.

Beginning in the fall of 2007, Ms. Samantha Swanson ("Ms. Swanson"), a therapist, counseled Peter Thompson concerning the loss and autopsy of his deceased child. (Ms. Swanson Dep., 20:1 - 6). The medical records from Peter Thompson's first appointment indicate that he initially complained of intense anger and rage, poor concentration, images and feelings of failure and helplessness. (Id. at 21:15 -- 18). Ms. Swanson testified that she first diagnosed Peter Thompson with major depression or an adjustment disorder. (Id. at 23:9 -- 13). Ms. Swanson testified that, by the final appointment in the fall of 2009, her diagnosis of Peter Thompson would have been that he was still suffering from an adjustment disorder, which included symptoms of guilt, regret and some marital discord. (Id. at 34:13 -- 17).

Beginning in late spring of 2008, Ms. Swanson also began counseling Alla Thompson. (Id. at 35:22 - 25). The medical records from Alla Thompson's initial appointment state that she complained of decreased appetite, sleep issues, obsessive thoughts, anhedonia, daily weeping and poor coping. (Id. at 36:3 -- 8). Ms. Swanson diagnosed Alla Thompson with "major depression" and suggested that she begin taking medication to help with her symptoms. (Id. at 36:17 -- 37:2). Ms. Swanson testified that, by the final appointment in the fall of 2009, her diagnosis of Alla Thompson could have changed to "major depression mild" because she had been able to return to work and was functioning better. (Id. at 48:18 -- 23). Ms. Swanson also noted, however, that Alla Thompson was still upset because the issue wasn't resolved in her mind and it was affecting their marriage. (Id. at 48:18 - 23).

Dr. Grigory Rasin, M.D. ("Dr. Rasin") examined Alla Thompson on August 17, 2010. (Dr. Rasin Medical Report, Alla Thompson). Dr. Rasin's medical report states that Alla Thompson complained that she was not as happy has she used to be in the past and that her outlook was not as optimistic as it used to be. She had lost interest in her usual activities, lost weight and had a feeling and expectation that something bad was going to happen. She also reported that she suffered from problems with memory and concentration. Dr. Rasin noted that Alla Thompson looked depressed, that her train of thought was depressive and that she admitted to symptoms of depression. He also reported that Alla Thompson's anxiety was vivid. Following Dr. Rasin's psychiatric evaluation, Alla Thompson underwent psychological testing MCMI-III. The results of this test suggested that Alla Thompson might suffer from "generalized anxiety disorder and adjustment disorder with depressed mood." Based on this report and his own examination, Dr. Rasin diagnosed Alla Thompson with moderate major depressive disorder and generalized anxiety disorder, both of which were permanent in nature.

Dr. Rasin also examined Peter Thompson on August 17, 2010. (Dr. Rasin Medical Report, Peter Thompson). The medical report indicates that Peter Thompson's condition had improved over the period of time since the incident first occurred. He was able to focus at work and had stopped having nightmares. However, Peter Thompson reported that he was still very angry about his son and mistrustful of medical professionals. He stated that he was constantly apprehensive and concerned about his children's health. Dr. Rasin noted that Peter Thompson appeared to be very anxious, very tense, irritable and somewhat depressed. He also had a hard time controlling his emotions and was emotional when talking about the effect of the incident on his marriage. Dr. Rasin also noted that he suffered from elements of self-blame regarding the incident. Following Dr. Rasin's psychiatric evaluation, Peter Thompson underwent psychological testing MCMI-III. The results of this test produced no suggestion of clinical syndrome. Dr. Rasin diagnosed Peter Thompson with permanent post-traumatic stress disorder and residual, chronic and generalized anxiety disorder.

Plaintiffs filed the complaint in this action on March 2, 2009. Count I of the complaint alleges that UMDNJ, Dr. Fyfe-Kirschner and Dr. Nagar violated Plaintiffs' due process rights under the Fourteenth Amendment of the United States Constitution by depriving Plaintiffs of their rights over the remains of the body, including their right to control the funeral and disposition of the remains in that they

(1) failed to properly train and supervise their agents, employees and personnel on the proper procedure for obtaining consent for autopsy, obtaining consent to participation in medical research and otherwise failing to observe the rights of Plaintiffs to control the ...


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