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Andrew Brodsky v. Dr. Ifeyinwa Osunkwo


April 10, 2012


On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2564-08.

Per curiam.


Argued March 26, 2012

Before Judges Grall and Skillman.

This is a medical malpractice case. Defendant's alleged malpractice consisted of failing to inform plaintiff, a sixteen-year-old male who was being treated for leukemia with chemotherapy, that he could deposit sperm in a sperm bank to avoid the consequences of the infertility this treatment was likely to cause. During discovery, the trial court dismissed plaintiff's complaint on the ground that plaintiff was required to show that he suffers emotional distress as a result of his inability to procreate a child in order to recover for such malpractice and that plaintiff did not claim such emotional distress in a deposition taken when he was nineteen years old.

Plaintiff was admitted to defendant Robert Wood Johnson University Hospital on August 14, 2004, where defendant Dr. Ifeyinwa Osunkwo, the oncologist on call at the hospital, ordered a battery of tests, which revealed that plaintiff was suffering from acute leukemia and would need to undergo chemotherapy. Dr. Osunkwo discussed the test results with plaintiff and his family, but did not advise them of the availability of sperm banking. Osunkwo also admitted that in other cases, she has discussed sperm banking with male leukemia patients and their families, but that she generally does not do so when she first informs them of the diagnosis. After another oncologist at Robert Wood Johnson took over plaintiff's case during the afternoon of Monday, August 16, 2004, plaintiff began chemotherapy. This doctor, who was not named as a defendant, also did not discuss sperm banking with plaintiff or his parents.

Two weeks after his admission to Robert Wood Johnson, plaintiff was transferred to Memorial Sloan Kettering Cancer Center, where he received additional chemotherapy, radiation, and a bone marrow transplant. Plaintiff ultimately recovered from his cancer. However, he is now infertile and his sperm was not banked before he underwent the chemotherapy and other treatment.

Plaintiff testified at his deposition that he has not undergone any psychiatric counseling since his treatment for cancer. In addition, his parents testified that they had not observed him to be suffering from any anxiety as a result of his loss of the opportunity to bank his sperm.

Plaintiff's amended complaint contained two counts: The first was entitled "medical malpractice" and the second "negligence." Defendants construed this complaint to assert a claim, independent of his claim for medical malpractice, for "negligent infliction of emotional distress," which Robert Wood Johnson moved to dismiss by a motion for summary judgment, in which Dr. Osunkwo joined. In his response to this motion, plaintiff stated:

There is no stand alone, independent claim for infliction of emotional distress.

The plaintiff's complaint and damages in this case are due to his sterility which is permanent. The plaintiff does not need, nor can the plaintiff produce, any expert to provide any guidance to a jury concerning the plaintiff's suffering for his loss of enjoyment of life as a result of the damages alleged in this case. The model jury charges clearly contemplate that a plaintiff who suffers a physical injury will suffer from mental anguish and may recover if a jury concludes, based on all of the facts and circumstances, that such a recovery is reasonable.

Despite the limited nature of the motion for summary judgment, and plaintiff's response, the trial court granted summary judgment dismissing plaintiff's entire case. In its explanation for this disposition, the court stated:

. . . I know what the law is and the law is that there has to be severe . . . emotional distress.

It's clear from the depositions that we have here that this man is not under severe emotional distress. . . .

. . . I'm saying that . . . you don't have any damages in this case that are permissible. What I'm saying is, is that there has to be extreme severe emotional distress, supported with a psychiatric statement. There is none; so, therefore, I'm dismissing your case. Plaintiff subsequently filed a motion for reconsideration based primarily on the ground that the relief granted defendants -- the dismissal of plaintiff's entire complaint -- was broader than the relief that had been sought by Robert Wood Johnson's motion -- which was limited to dismissal of what defendants conceived to be a claim, separate from plaintiff's medical malpractice claim, for negligent infliction of emotional distress. In their responses to this motion, defendants argued for the first time that plaintiff's evidence would not support a finding of the required causal connection between the alleged malpractice and plaintiff's inability to bear children because there was no factual foundation for a jury finding that plaintiff had viable sperm when he first came to Robert Wood Johnson for treatment. Both plaintiff and defendants submitted substantial factual materials in connection with the motion for reconsideration that had not been submitted in connection with defendants' motion for partial summary judgment.

The court denied the motion, reiterating that, in its view, "the main thrust of this case . . . is the emotional impact[,]" and that plaintiff's proofs were insufficient to establish such a claim. It is unclear from the transcript of the argument whether the court considered the additional factual materials the parties first submitted in connection with this motion.

Plaintiff appeals from both the summary judgment dismissing his complaint and the denial of his motion for reconsideration. We reverse.

We agree with plaintiff's argument that the trial court failed to comply with the procedures set forth in Rule 4:46 by converting Robert Wood Johnson's motion for a limited partial summary judgment into a motion to dismiss plaintiff's entire complaint, without first affording notice to plaintiff and an opportunity to respond. Moreover, the court erred substantively in concluding that the viability of plaintiff's complaint depends upon a showing that he is currently suffering emotional distress as a result of his inability to procreate children.

Plaintiff's theory of this case is straightforward. He alleges that Dr. Osunkwo had a duty to inform him not only that sterility was a likely consequence of the chemotherapy required to cure his leukemia but also of the availability of sperm banking to preserve his opportunity to procreate children if he became infertile. He further alleges that as a result of Dr. Osunkwo's breach of this duty, he has lost the ability to procreate children. This is a physical disability for which plaintiff may obtain a recovery in a medical malpractice action without showing that the disability has caused him emotional distress. "New Jersey has long recognized disability and impairment as a separate category of damages" in a personal injury action. Eyoma v. Falco, 247 N.J. Super. 435, 452 (App. Div. 1991). An award for such damages "compensates for the status of being limited or incapacitated." Ibid.; see also Arenas v. Gari, 309 N.J. Super. 1, 25-27 (App. Div. 1998). The fact that plaintiff is not currently experiencing any emotional distress may well affect a jury's assessment of what would be just and adequate compensation for this disability, but emotional distress is not an element of plaintiff's cause of action. Therefore, the trial court erred in dismissing his complaint.

We express no opinion as to the adequacy of plaintiff's proofs regarding the required causal connection between defendants' alleged malpractice and plaintiff's inability to procreate children. Defendants' motion for summary judgment was not based on the claimed inadequacy of those proofs. Defendants first raised this issue indirectly in their response to plaintiff's motion for reconsideration. Moreover, it is unclear whether the evidence submitted to the trial court in connection with that motion included everything relevant to the issue, and the trial court does not appear to have considered that evidence in denying the motion.

Accordingly, the summary judgment dismissing plaintiff's complaint is reversed, and the case is remanded to the trial court for further proceedings in conformity with this opinion.


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