Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ginsberg v. Quest Diagnostics, Inc.

Superior Court of New Jersey, Appellate Division

June 18, 2015

ABIGAIL GINSBERG, an infant, [1] by her mother TAMAR GINSBERG, as Guardian ad litem; TAMAR GINSBERG, Individually; and ARI GINSBERG, Individually, Plaintiffs-Respondents,
v.
QUEST DIAGNOSTICS, INC., Defendant-Appellant, and ANDREW RUBENSTEIN, M.D.; HACKENSACK UNIVERSITY MEDICAL CENTER; HACKENSACK UNIVERSITY MEDICAL CENTER DEPARTMENT OF PEDIATRICS GENETICS SERVICE; and JUDITH DURCAN, MS, Defendants-Respondents, and QUEST DIAGNOSTICS, INCORPORATED, Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL CENTER, INC., Third-Party Defendant. ABIGAIL GINSBERG, an infant, by her mother TAMAR GINSBERG as Guardian ad litem; TAMAR GINSBERG, Individually; and ARI GINSBERG, Individually, Plaintiffs-Respondents,
v.
QUEST DIAGNOSTICS, INC., and ANDREW RUBENSTEIN, M.D., Defendants-Respondents, and HACKENSACK UNIVERSITY MEDICAL CENTER; HACKENSACK UNIVERSITY MEDICAL CENTER DEPARTMENT OF PEDIATRICS GENETICS SERVICE; and JUDITH DURCAN, MS, Defendants-Appellants, and QUEST DIAGNOSTICS, INCORPORATED, Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL CENTER, INC., Third-Party Defendant. ABIGAIL GINSBERG, an infant, by her mother TAMAR GINSBERG, as Guardian ad litem; TAMAR GINSBERG, Individually; and ARI GINSBERG, Individually, Plaintiffs-Respondents,
v.
QUEST DIAGNOSTICS, INC.; HACKENSACK UNIVERSITY MEDICAL CENTER; HACKENSACK UNIVERSITY MEDICAL CENTER DEPARTMENT OF PEDIATRICS GENETICS SERVICES; and JUDITH DURCAN, MS, Defendants-Respondents, and ANDREW RUBENSTEIN, M.D., Defendant-Appellant, and QUEST DIAGNOSTICS, INCORPORATED, Third-Party Plaintiff,
v.
THE MOUNT SINAI MEDICAL CENTER, INC., Third-Party Defendant. ABIGAIL GINSBERG, an infant, by her mother TAMAR GINSBERG, as Guardian ad litem; TAMAR GINSBERG, Individually; and ARI GINSBERG, Individually, Plaintiffs-Respondents,
v.
QUEST DIAGNOSTICS, INC.; ANDREW RUBENSTEIN, M.D.; HACKENSACK UNIVERSITY MEDICAL CENTER; HACKENSACK UNIVERSITY MEDICAL CENTER DEPARTMENT OF PEDIATRICS GENETICS SERVICE; and JUDITH DURCAN, MS, Defendants-Respondents, and QUEST DIAGNOSTICS, INCORPORATED, Third-Party Plaintiff-Respondent,
v.
THE MOUNT SINAI MEDICAL CENTER, INC., Third-Party Defendant-Appellant

Argued March 16, 2015.

Approved for Publication June 18, 2015.

Page 201

[Copyrighted Material Omitted]

Page 202

[Copyrighted Material Omitted]

Page 203

[Copyrighted Material Omitted]

Page 204

[Copyrighted Material Omitted]

Page 205

[Copyrighted Material Omitted]

Page 206

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1169-10.

Thomas J. Cafferty argued the cause for appellant Quest Diagnostics in 1387-14 and as respondent in 1388-14 and 1389-14 ( Gibbons P.C., attorneys; Mr. Cafferty, Mark S. Sidoti, Nomi I. Lowy, and Lauren James-Weir, of counsel and on the brief).

Michael R. Ricciardulli argued the cause for appellant Andrew Rubenstein, M.D. in 1389-14 and as respondent in 1387-14, 1388-14, and 1390-14 ( Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; Mr. Ricciardulli and Daniel B. Devinney, on the brief).

Ellen L. Casagrand argued the cause for appellants Hackensack University Medical Center, Hackensack University Medical Center Department of Pediatrics Genetics Service, and Judith Durcan, MS, in 1388-14 and as respondents in 1387-14, 1389-14, and 1390-14 ( Buckley Theroux Kline & Petraske, LLC, attorneys; Ms. Casagrand, on the brief).

Benjamin H. Haftel argued the cause for appellant The Mount Sinai Medical Center in 1390-14 ( Vaslas Lepowsky Hauss & Danke LLP, attorneys; Mr. Haftel, on the brief).

Victoria E. Phillips argued the cause for respondents Ginsberg in 1387-14, 1388-14, 1389-14, and 1390-14 ( Phillips & Paolicelli, LLP, attorneys; Ms. Phillips and Daniel J. Woodard, on the brief).

Before Judges SABATINO, SIMONELLI, and GUADAGNO. The opinion of the court was delivered by SABATINO, P.J.A.D.

OPINION

Page 207

[441 N.J.Super. 209] SABATINO, P.J.A.D.

These four interlocutory appeals[2] stem from a lawsuit involving factual allegations and parties that straddle the states of New York and New Jersey. The core question presented to us is whether the laws of New York, the laws of New Jersey, or some [441 N.J.Super. 210] combination of the laws of both states, govern the claims, third-party claims, cross-claims, and defenses asserted in the litigation.

Plaintiffs, on behalf of themselves and their now-deceased daughter, have asserted claims of wrongful birth, wrongful life, medical malpractice, negligent hiring, and negligence in connection with their daughter's birth in 2008 and her subsequent diagnosis of Tay-Sachs disease, a genetically-inherited and fatal condition. In essence, plaintiffs contend that defendants each erred in the health care, genetic testing services, or genetic counseling they provided before the couple conceived their daughter upon a mistaken belief that the father was not a Tay-Sachs carrier.

Plaintiffs are currently New Jersey residents who previously resided in New York. They have sued a New Jersey licensed physician, a New Jersey hospital and one of its employees (collectively " the New Jersey health care defendants" ), and a medical testing company. The latter defendant has its principal place of business in New Jersey, but it received the father's blood specimen in New York and issued its report on that sample in New York. The medical testing company has brought a third-party complaint against a New York hospital that actually performed the testing. Numerous cross-claims for indemnification and contribution have been interposed between and among the defendants and the third-party defendant.

The trial court determined that New Jersey law, which differs significantly from New York law on certain facets of this case, governed all of the issues in this litigation. We granted motions for leave to appeal by the defendants and the third-party defendant, who all seek to overturn that threshold determination and to have New York law instead applied to the claims asserted against them.

Applying choice-of-law principles set forth in P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453 (2008), the Restatement (Second) of Conflicts of Laws (1971) (" the Restatement " ), and other case law, we conclude that New York law applies to the claims respectively asserted against the testing company and the [441 N.J.Super. 211] New York hospital, whose allegedly wrongful and injurious conduct occurred in New York. We further conclude that New Jersey law applies to plaintiffs' claims against the New Jersey health care defendants, whose allegedly wrongful and injurious conduct occurred in this state.

Because of the insufficiency of the present record as to the actual contractual

Page 208

arrangements for the testing of the father's blood sample by the New York hospital, we decline to resolve which state's law governs the contractual indemnification claims, if any, asserted against that third-party defendant. We also decline at this juncture to resolve which state's law governs the various cross-claims that have been, or may be, asserted by and among the parties who have been sued. We also do not reach the discrete choice-of-law issues concerning the statutes of limitations, which were not explicitly addressed in the trial court.

Based on this overall disposition, we reverse in part the trial court's determination that the law of New Jersey must apply to the conduct of all of the defendants and of the third-party defendant. We specifically reject the trial court's premise -- a premise which is advocated by the New Jersey health care defendants who prefer in this case to have New York law apply to them -- that the law of only one state can be applied in this litigation.

As a final caveat, we note that, in rare and extraordinary circumstances, a court's choice-of-law dispositions, in a case such as this one with multi-state dimensions, can be reexamined at the time of trial. The propriety of such a rare potential reexamination here will depend upon which parties remain in the case at that point, as well as the feasibility and fairness of trying the remaining claims and cross-claims under the laws of multiple states.

I.

We derive the following pertinent facts and chronology of events from the record, which largely consists of deposition transcripts, interrogatory answers, and a few other documents. We do so [441 N.J.Super. 212] mindful that discovery in this case has not been completed and that the factual allegations have yet to be adjudicated.[3]

The Parties' Relationship, the Mother's Genetic Testing in New Jersey, and the Father's Genetic Testing in New York

The parents of the now-deceased child, plaintiffs Tamar Ginsberg (" Tamar" )[4] and Ari Ginsberg (" Ari" ), met and began dating in October 2004. At that time, Ari resided in Far Rockaway, New York, and Tamar then resided in Teaneck, New Jersey.

The couple was concerned about the possibility of any child of theirs having a genetic condition associated with their Ashkenazi Jewish heritage. They were particularly concerned about the risk of Tay-Sachs disease, because Tamar knew her sister was a carrier for that condition.

Tay-Sachs disease is " a genetically-inherited, incurable condition that first appears in an infant at approximately six months of age, progressively causing mental retardation, blindness, seizures, and death between the ages of two and four years." Geler v. Akawie, 358 N.J.Super. 437, 445, 818 A.2d 402 (App.Div.), certif. denied, 177 N.J. 223, 827 A.2d 290 (2003). The condition is a " genetic disorder caused by an absence of the enzyme hexosaminidase A and consequent accumulation of the lipid GM2 gangloside in nerve cells of the brain." 5 J.E. Schmidt, M.D., Attorneys' Dictionary of Medicine, T-29 (2009). Typically, " [n]eural damage [from Tay-Sachs] begins early in fetal development,

Page 209

with the first signs and symptoms becoming apparent when the infant is about six months old." Ibid.

Because of concerns about giving birth to a child with Tay-Sachs, the couple sought genetic counseling and testing. They [441 N.J.Super. 213] claim, however, that they would have married each other regardless of the genetic test results.

On December 28, 2004, Ari visited the office of his primary care physician, Dr. Israel Samson, in Cedarhurst, New York, and requested a blood test to determine if he was a carrier of Tay-Sachs. Ari also asked Dr. Samson about a chromosomal translocation test, given that his brother has Down Syndrome, and that his mother and sister both have a translocation. Dr. Samson allegedly stated that he would not perform such translocation testing.

Dr. Samson was educated and trained as a physician in New York. He was licensed only in New York, and he practiced medicine exclusively in that state.

Dr. Samson drew Ari's blood in New York at the time of his December 2004 visit. Dr. Samson sent the sample to defendant Quest Diagnostics, Inc. (" Quest" ) for testing, since Ari's health insurance policy apparently required that Quest be used for that purpose. Quest's corporate headquarters and principal place of business are located in Madison, New Jersey, although Quest conducts business in New York and in other states.

By his own admission, Dr. Samson did not frequently request Tay-Sachs testing. Therefore, he directed his secretary to call Quest regarding how to place the order for testing. Dr. Samson testified at his deposition that during that phone call, Quest identified the applicable code to place on the test requisition form.

Upon picking up Ari's blood sample from Dr. Samson's office, Quest delivered the specimen to its office in Syosset, New York. Thereafter, Quest sent the sample to third-party defendant, Mt. Sinai Medical Center (" Mt. Sinai" ) for testing, pursuant to an agreement between the two entities.[5] Mt. Sinai is located in New York, and it tested Ari's blood in New York.

[441 N.J.Super. 214] Dr. Samson testified that he requested Quest to conduct testing for whether Ari was a carrier of Tay-Sachs. However, testing was done instead for Sandhoff disease, which can be regarded as a specific form of Tay-Sachs.[6]

Mt. Sinai determined that Ari was not a carrier for Sandhoff disease. Quest reported that information to Dr. Samson, who explained the findings to Ari on January 10, 2005. Ari recalled that Dr. Samson left a voicemail on his cell phone, stating that he was not a carrier of Tay-Sachs. That information turned out to be incorrect, however, as a test performed four years later, after Abigail's diagnosis, revealed that Ari is indeed a carrier for Tay-Sachs.

Ari did not receive a written copy of his test results in 2005, and he never spoke with anyone at Quest or at Mt. Sinai. Ari called Tamar at her home in New Jersey

Page 210

after speaking with Dr. Samson, and he told her that he had tested negative for Tay-Sachs.

Shortly thereafter, in February 2005, Tamar visited defendant Andrew Rubenstein, M.D., a gynecologist, at his office in Saddle River, New Jersey. She consulted Dr. Rubenstein in order to be tested for genetic diseases related to her Jewish heritage. She also sought his advice in planning her menstrual periods in anticipation of her marriage to Ari, as is common in the Orthodox Jewish community. Ari himself never visited Dr. Rubenstein's office.

Tamar advised Dr. Rubenstein that Ari already had been tested for Tay-Sachs, and that he had been found negative for that condition. She pointed out that Ari's brother had Down Syndrome, [441 N.J.Super. 215] and that his mother was a carrier for trisomy 21, which is another name for that condition. She also told Dr. Rubenstein about her own family members who were carriers of Tay-Sachs and cystic fibrosis.

Dr. Rubenstein stated in his interrogatory answers that he discussed with Tamar the risk of Tay-Sachs if both she and Ari were carriers. Tamar, however, denied having any such discussion with him.

It is apparently undisputed that Dr. Rubenstein asked Tamar for a copy of Ari's Tay-Sachs test results, but Tamar did not provide a copy to him. She did not recall at her deposition ever speaking to Ari about Dr. Rubenstein's request. Ari likewise had no recollection at his deposition of her asking him for a copy of his results. According to Tamar, she did not provide Dr. Rubenstein with Ari's test results because she had trusted the results Ari received from Dr. Samson.

Tamar's blood was drawn at Dr. Rubenstein's office in New Jersey. Her sample was tested, coincidentally by Quest, in New Jersey for the range of diseases customarily associated with Ashkenazi Jewish heritage. The test results accurately showed that Tamar was a carrier of Tay-Sachs.

Dr. Rubenstein informed Tamar of her test results, and mailed a copy to her. He also recommended that Ari undergo chromosomal analysis, due to his own family history of Down Syndrome.

Tamar advised Ari of Dr. Rubenstein's recommendation, and Ari underwent the necessary blood work at a New York laboratory in Cedarhurst. Testing of Ari's blood sample by Quest in New York revealed that Ari had a balanced " Robertsonian translocation." Dr. Rubenstein discussed the test results with a geneticist. On March 22, 2005, Dr. Rubenstein spoke with Tamar by telephone and advised her of those results. He also referred the couple to defendant Hackensack University Medical Center (" HUMC" ) for genetic counseling.

[441 N.J.Super. 216] The Genetic Counseling at HUMC in New Jersey

On May 6, 2005, Ari and Tamar met at HUMC with defendant Judith Durcan, MS, for genetic counseling relating to Ari's chromosome translocation. At that time, Ari considered Tay-Sachs a " nonissue" because he believed he had tested negative for the condition. The couple met with Durcan on just one occasion, and no tests were performed.

By letter to Dr. Rubenstein dated May 6, 2005, on which Ari and Tamar were copied, Durcan summarized her discussion with the couple. Tamar received the letter at her parents' New Jersey home in Teaneck, but Ari did not recall seeing it before this litigation.

With respect to Tay-Sachs, Durcan noted that Tamar is a Tay-Sachs carrier, but that Ari " stated that his screening test results for Tay[-]Sachs (TS) [we]re negative."

Page 211

Durcan further noted that she did not have Ari's results available for review at the time of their meeting, but offered to review those results. Durcan also indicated that she had discussed with the couple the autosomal recessive inheritance, the carrier frequency, and the features of Tay-Sachs. She also discussed the " different testing modalities for [Tay-Sachs] currently available and suggested that Ari make sure that he had biochemical (enzyme) analysis for [Tay-Sachs], as this type of testing can rule-out most carriers of [Tay-Sachs]."

Tamar admitted discussing with Durcan the couple's Tay-Sachs test results, and that Durcan offered to review those results, although Ari could not recall that part of the conversation. The couple did not provide Durcan with Ari's results, choosing instead to rely on the information they had previously received. The couple explained at their depositions that they had confidence in the test results that Ari had orally received from Dr. Samson.

The Parties' Marriage, Tamar's Move to New York, and Abigail's Birth in New York

In June 2005, Tamar and Ari were married in New York. After the marriage, Tamar relocated from New Jersey and the couple resided together in Far Rockaway, New York.

[441 N.J.Super. 217] A few months after the marriage, Tamar visited Dr. Rubenstein on October 28, 2005 for a pap smear and a prescription for birth control pills. Dr. Rubenstein also discussed with Tamar the HUMC/Durcan genetic consultation results. He recommended that the couple attempt to conceive through in vitro fertilization, with pre-implantation genetic testing of the embryos, due to Ari's chromosomal translocation. However, Tamar did not want to pursue an in vitro procedure, since she perceived there was a low risk of Down Syndrome.

Tamar never returned to Dr. Rubenstein, as she switched her care to a New York-based ob/gyn, Dr. Terry Rifkin. Dr. Rubenstein did speak with Tamar again in October 2005, regarding her genetic consultation. He also sent her a reminder card in August 2006 for a follow-up visit that never occurred.

In June 2006, Tamar visited Dr. Rifkin in New York. At that time, she and Ari had plans to conceive a child naturally, with the intent of terminating the pregnancy if prenatal testing revealed that the child had Down Syndrome. Tamar wished to discuss with Dr. Rifkin the strict guidelines under Jewish law for terminating a pregnancy.[7] At her visit, Tamar advised Dr. Rifkin that Ari had tested negative for Tay-Sachs, although she had tested positive. Dr. Rifkin did not request a copy of Ari's results, and the couple did not provide those results to him although Tamar believed Dr. Rifkin may have taken her blood and ordered his own testing of her.

In June 2007, Tamar became pregnant. She asserts that she conceived in New Jersey, and that she learned of the pregnancy the next month while she was in New Jersey at her parents' home in Teaneck.

[441 N.J.Super. 218] Tamar received prenatal care from Dr. Rifkin in New York. During the pregnancy, she underwent a chorionic villi sampling (" CVS" ) at a hospital in New York, which revealed that the fetus was a female

Page 212

who had a balanced chromosomal translocation, but did not have Down Syndrome.

Tamar and Ari were required to meet with a genetic counselor at the hospital in connection with the CVS. Tamar recalled that they discussed Tay-Sachs with the counselor, and the fact that Ari had tested negative as a carrier of that disease. Tamar did not recall the counselor asking for a copy of Ari's test results.

Abigail was born in March 2008, at North Shore University Hospital in New York. Immediately after their release from the hospital, Tamar and Abigail visited with Tamar's parents in New Jersey. Thereafter, Tamar, Ari, and Abigail resided in New York, along with a son who was later born in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.