On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2564-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...