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Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C.

Superior Court of New Jersey, Appellate Division

August 14, 2013

KORAL MOORE, a minor by and through her Guardians ad Litem, MONICA & KEVIN MOORE, and MONICA & KEVIN MOORE, Individually, Plaintiffs-Respondents,


Argued September 12, 2012

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1558-09.

Joel I. Fishbein argued the cause for appellants (Spector, Gadon & Rosen, P.C., and Hardin, Kundla, McKeon & Poletto, P.A., attorneys; Mr. Fishbein and Janet L. Poletto, on the brief).

Marc C. Johnson argued the cause for respondents (Weiss & Paarz, attorneys; Mr. Johnson, on the brief).

Before Judges Fuentes, Grall and Hayden.


This case is before us for the second time. Defendants Carlos Fernandez, M.D., and Premier Perinatal, L.L.C., appeal from the September 30, 2011 Law Division order that denied their motion to compel arbitration of plaintiffs Monica[1] and Kevin Moore and their daughter Koral Moore's medical malpractice complaint. For the reasons that follow, we reverse the denial of arbitration as to Monica and Koral and affirm as to Kevin.


The facts and procedural history relevant to the first appeal are contained in our earlier opinion, Moore v. Woman to Woman Obstetrics & Gynecology, L.L.C., 416 N.J.Super. 30 (App. Div. 2010). Briefly stated, Monica's doctor, defendant Lisa Vernon, practicing with defendant Woman to Woman Obstetrics, L.L.C., referred Monica, then forty-four years old, to defendants Carlos Fernandez, M.D. and Premier Perinatal, L.L.C. (Premier), due to her high-risk pregnancy based on her age.[2] On her first visit to Dr. Fernandez's office, Monica signed an arbitration agreement on behalf of herself and her spouse and unborn child, which covered all past and future claims for medical diagnosis and treatment. Subsequently, plaintiffs filed a complaint against all four defendants alleging medical malpractice due to Koral being born with Downs Syndrome.

Based on the arbitration agreement, the initial motion judge granted defendants' summary judgment motion and entered an order compelling arbitration of plaintiffs' claims against Fernandez and Premier and dismissing the complaint against them without prejudice. In Moore, we held that while the arbitration agreement was not per se unenforceable, id. at 35, defendants were not entitled to summary judgment on the question of whether it was unconscionable. Id. at 45-46. We reversed the order granting summary judgment and remanded to the trial court for further proceedings. Id. at 46.

After the remand, the parties engaged in substantial discovery, including depositions of Monica, Kevin, Dr. Fernandez, and two of Premier's office staff. Defendants then filed a motion to compel arbitration. A different motion judge found the arbitration agreement was clear and unambiguous but rejected defendants' argument that the Moore appellate panel "got [it] wrong" in characterizing it as a contract of adhesion. Based upon defendants' failure to provide Monica a copy of the agreement, thus depriving her of attorney review and an opportunity to rescind the contract, he concluded that the agreement was unenforceable as it was procedurally unconscionable. Because he concluded that the agreement was not binding on Monica, the judge did not reach the issue of whether she had bound her co-plaintiffs, Kevin and Koral, to participate in binding arbitration. This appeal followed.

The relevant facts developed during discovery are not in dispute. The record reveals that Monica had an initial appointment at Premier with Dr. Fernandez, a high-risk pregnancy specialist, for an ultrasound. Monica was a high school graduate who had taken some college courses and worked as an engineering technician at a federal government facility. She brought to the appointment a family member and four children. Upon her arrival, the staff gave her a clipboard and a stack of about twelve sheets of paper concerning insurance, financial, medical history, and privacy rights.[3] The staff member showed her where to sign and where to fill out her information. She arrived early at Premier and had enough time to fill out the forms. Monica recalled filling out paperwork but had no specific recollection of the arbitration agreement. She acknowledged, based upon her signature on the agreement, that she signed it. She did not receive a copy of the arbitration agreement to keep. Monica did not recall noticing any signs posted about the arbitration agreement. Neither the doctor nor the staff discussed the substance of the arbitration agreement with her.

The staff reported that it was office policy at that time not to give a patient a copy of the arbitration agreement unless she asked. According to the staff, all patients were given a letter from the doctor's insurance company, explaining the arbitration policy and providing a phone number to call if a patient had a question about the agreement. The staff's practice was to show all patients a list of doctors in the area who did not require their patients to consent to arbitration, but Monica did not recall viewing such a list. A notice posted on the wall in the waiting room informed patients that "[o]ur insurance company requires all patients to sign a mutual arbitration agreement. This helps to control our insurance costs and patient fees." Dr. Fernandez stated that if a person declined to sign the arbitration agreement, he would still treat her.

The arbitration agreement was four pages long, with paragraph headings and certain other statements in bold and capitalized in twelve-point ...

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