Nolan by Nolan v. Lee Ho

• Decision Date: 31 July 1990
• Citation: 577 A.2d 143,120 N.J. 465
• Parties: Tara NOLAN, an infant by her mother, Pauline NOLAN, and Pauline Nolan and Thomas Nolan, individually, Plaintiffs-Appellants, v. Luisita S. LEE HO, M.D., and Reuben Deulofeu, M.D., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 465

120 N.J. 465

577 A.2d 143

Tara NOLAN, an infant by her mother, Pauline NOLAN, and Pauline Nolan and Thomas Nolan, individually Plaintiffs-Appellants, v. Luisita S. LEE HO, M.D., and Reuben Deulofeu, M.D. Defendants-Respondents.

Supreme Court of New Jersey.

Argued March 26, 1990.

Decided July 31, 1990.

Martin N. Crevina, Mahwah, argued the cause for plaintiffs-appellants (Frank J. Nostrame, Jersey City, attorney; Eric F. Frizzell, Mahwah, on the brief).

Robert W. Donnelly, Jr., argued the cause for defendant-respondent Luisita S. Lee Ho, M.D. (Dughi and Hewit, Cranford, attorneys).

Scott T. Heller, Oradell, argued the cause for defendant-respondent Reuben Deulofeu, M.D. (Giblin, Combs, Cooney & Conway, attorneys; E. Burke Giblin, Morristown, on the letter in lieu of brief).

PER CURIAM.

The tragic circumstances underlying this medical malpractice suit do not immediately concern, yet cannot be divorced from, the issue before the Court: whether the trial court acted properly in vacating a final settlement agreement without having first conducted a testimonial hearing.

I.

Plaintiff Pauline Nolan is blind, the result of a binary enucleation to remove malignant tumors during her infancy. Pauline's daughter, Tara, was born on September 22, 1978. When Tara was nearly a year old, she was diagnosed as having bilateral retinoblastoma, "[a] malignant type of tumor arising from the retina ... [that] usually occurs before the third year of life, and ... shows a familial or hereditary tendency." 3 Schmidt's Attorneys' Dictionary of Medicine R-92 (1990).

Because of those malignant tumors, both of Tara's eyes were removed by surgery--the left eye immediately after the diagnosis, the right eye only after radiation and chemotherapy treatment had failed to shrink that tumor. Pauline Nolan testified at trial that until Tara was diagnosed as having malignant tumors, it had never occurred to her that they could be passed on to a child. According to Pauline Nolan, no doctor had ever indicated to her that the tumors might be congenital.

During her first pregnancy, in 1974, Pauline Nolan consulted Myron S. Soled, M.D., who refused to take her on as a patient. Pauline Nolan testified that Dr. Soled suggested she go to the Margaret Hague Hospital, a high risk center, for counseling. According to Dr. Soled, Pauline Nolan told him that in addition to having had her eyes removed because of malignant tumors, she suffered from "convulsive disorders" and "depressive reaction." Dr. Soled testified that he then consulted with a senior doctor in obstetrics and gynecology, Dr. Zondek Kubes, who suggested that the cause of Pauline Nolan's eye tumors was most likely retinoblastoma. On the advice of Dr. Kubes, Dr. Soled referred Pauline Nolan to the Margaret Hague Hospital, although he did not specifically inform her of the genetic risk to the unborn baby. Pauline Nolan did not go to the Margaret Hague, but instead found another doctor who treated her.

During a later pregnancy, which ended in a miscarriage in July 1975, Pauline Nolan came under the care of defendant Luisita S. Lee Ho, M.D., an obstetrician/gynecologist. In April 1976, Pauline Nolan again became pregnant and again consulted Dr. Lee Ho; that pregnancy produced a son, Brian, who was born without retinoblastoma on November 8, 1976.

The infant plaintiff, Tara Nolan, was born of Pauline Nolan's fourth pregnancy; Dr. Lee Ho again served as Pauline Nolan's obstetrician/gynecologist. Pauline Nolan testified that she had told Dr. Lee Ho that her blindness resulted from malignant tumors, but that neither Dr. Lee Ho nor anyone else had suggested to her that her childhood disease could be transmitted to her children. Pauline Nolan also testified that had she known before she became pregnant that she carried a disease with a fifty-percent chance of being passed on to a child, she would not have had children.

The Nolans brought suit against Dr. Lee Ho and Dr. Reuben Deulofeu, the Nolan's regular pediatrician, on November 2 1981, asserting that both doctors negligently had failed to advise the Nolans that Pauline Nolan's blindness likely had a genetic cause, thus creating a high risk of blindness to potential children. The Nolans alleged that that failure to warn deprived them of the opportunity to make an informed decision on whether to conceive Tara (wrongful birth), and damaged Tara by failing to prevent her birth (wrongful life).

The matter was ready for trial in May 1984. Shortly before the trial actually commenced, the court, on May 22, 1984, granted partial summary judgment to defendant Lee Ho on the wrongful-life claim, because New Jersey had not recognized that cause of action. See, e.g., Berman v. Allen, 80 N.J. 421, 404 A.2d 8 (1979). At that time the wrongful-birth claim against Dr. Lee was settled for $200,000, and the settlement was placed on the record. On May 23, the trial commenced against Dr. Deulofeu. On May 24, 1984, following direct and cross-examination of Thomas and Pauline Nolan, a settlement offer of $500,000 was made to plaintiffs on behalf of Dr. Deulofeu. That evening, plaintiffs' counsel telephoned the home of defense counsel and indicated to defense counsel's wife that plaintiffs agreed to the offer of settlement that had been made that afternoon.

Defense counsel, however, had become wary because Thomas Nolan had mentioned the name of Dr. Soled during his testimony on May 24. Until this reference, the defense was unaware of Dr. Soled and had never before heard that name. Defense counsel therefore communicated with Dr. Soled on the morning of May 25. Dr. Soled informed defense counsel that he had advised Pauline Nolan to seek genetic counseling in 1974. Further, Dr. Soled told defense counsel that he had informed plaintiffs' counsel of that history in writing on June 30, 1983, in response to an inquiry from plaintiffs' counsel.

On the same day that Dr. Deulofeu's counsel received this new information, he asked the court in chambers to vacate the settlement and declare a mistrial based on the existence of this newly discovered evidence that had been "deliberately concealed." The basis for that charge was plaintiffs' answer to a written interrogatory, Interrogatory # 38, from defendants asking Pauline Nolan to "set forth names and current addresses of each and every physician you have seen for any purpose whatsoever since 1965." (Emphasis added). She answered: "Since 1965, I have been treated by the following physicians: (a) Dr. Connant, Jersey City, New Jersey; (b) Dr. Cosgrove, Jersey City, New Jersey; (c) Dr. Lee Ho." (Emphasis added). Plaintiffs' counsel explained in argument to the trial court that the answer did not include Dr. Soled's name because Pauline Nolan had not been treated by him.

Plaintiffs' counsel also argued that the omission of Dr. Soled's name was not material because Pauline Nolan was never told before 1978 that she had a genetic disease, and that, therefore, "Dr. Soled [was] either grossly mistaken or lying" when he informed defense counsel that he had advised Pauline Nolan to seek genetic counseling and had furnished plaintiffs' attorney with a confirmatory written history.

The trial court concluded that plaintiffs "knowingly attempted to perpetrate a deception," and that "their attorney assisted in the attempt to perpetrate this deception and that he did not speak out." The court granted the motion for mistrial, based on its finding that by withholding information about Dr. Soled's examination of Pauline Nolan, plaintiffs' counsel had committed a fraud on defense counsel regardless of the truth of Dr. Soled's assertions. The court vacated the Deulofeu settlement and directed Dr. Lee Ho's counsel to file a formal motion to vacate her settlement with plaintiffs. On June 15, 1984, after that motion was filed, the court vacated the Lee Ho settlement. In addition, the court referred the matter of the conduct of plaintiffs' counsel to the District VI Ethics Committee (DEC).

On July 8, 1985, plaintiffs brought an action for malpractice against Dr. Soled. That suit was consolidated with the suits against Drs. Lee Ho and Deulofeu. Dr. Soled moved to dismiss the action on the ground that it was barred by the statute of limitations, N.J.S.A. 2A:14-2. At a Lopez hearing (Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973)) it was established that Tara Nolan's doctors at Wills Eye Hospital had informed Pauline Nolan on September 16, 1979, that her eye disease was inheritable, and had also told her that her own doctors should have so informed her. Knowledge of both injury and fault almost six years before having been established, the suit was dismissed as time barred. Following that hearing, Drs. Deulofeu and Lee Ho also moved to dismiss on statute-of-limitations grounds. As a result, the court granted motions to dismiss in favor of all defendants, including Dr. Soled.

Meanwhile, the DEC, after conducting attorney-disciplinary hearings, recommended the complaint against plaintiffs' counsel be dismissed. The DEC found that the facts did not establish that counsel, by failing to name Dr. Soled in the answers to interrogatories, intentionally misled the defense or withheld information. Plaintiffs subsequently moved to reinstate the settlements. That motion was denied. The Appellate Division affirmed the denial of the motion, holding in an unreported opinion that both the vacation of the settlement agreements and the dismissal were proper. The Appellate Division held that because the discovery rules clearly had been circumvented, the trial court had been correct in vacating the settlement agreements. Moreover, the court found no procedural infirmity: "We agree with the trial judge that since the truth or falsity of the letter was not relevant there was no need for a testimonial hearing." Finally, the Appellate Division held that the trial court had correctly dismissed plaintiffs' complaint based on the expiration of the...