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Garde v. Wasson11/21/1991
The issue, projected by the decision in Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (1981), is whether plaintiff can give a release as part of the settlement of her medical malpractice claim which is binding on her heirs and assigns insofar as it
expressly grants a release from any potential wrongful death action claims.
On June 8, 1983, Kim Garde filed a medical malpractice action against defendants, Doctors Wasson and Galdi, alleging medical malpractice in the failure to diagnose cervical cancer on or about December 16, 1980. On June 26, 1985, Garde executed a release of Dr. Wasson in consideration of $250,000. In the release she relinquished any and all claims and rights which she had against Dr. Wasson. Paragraph one provided:
1. Release. I release and give up any and all claims and rights which I may have against you. This releases all claims, including those of which I am not aware and those not mentioned in this Release. This Release applies to claims resulting from anything which has happened up to now. I specifically release the claims made for any and all personal injuries and other damages, including punitive damages, allegedly arising from medical treatment rendered at St. Peter's Medical Center commencing on or about December 16, 1980 which was the subject of a lawsuit in the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-36436-83 and any and all claims for personal injuries and other damages, including punitive damages, alleged in the future as the result of the medical treatment rendered during the hospitalization at St. Peter's Medical Center commencing on or about December 16, 1980.
In addition, by signing this Release, I specifically release and give up any and all rights to and claims of pecuniary loss, injury or damage as those terms are defined in the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1, et seq., and as interpreted by the Courts of New Jersey, which might accrue to me and others by virtue of the death of Kim Garde whether such claims are pursued directly by Kim Garde or indirectly or by some person or persons in a representative capacity, if such claims arise in any way from or are in any way connected or related to the medical treatment rendered at St. Peters Medical Center commencing on or about December 16, 1980. It is expressly understood and agreed by me that a substantial reason and consideration of you in settling the previously mentioned lawsuit and agreeing to pay and paying the money set forth in this Release is the settlement, release and elimination at this time of any and all claims that I or others have now or in the future might have, absent this Release, for the wrongful death of Kim Garde. I further understand and agree that under the present state of the law in New Jersey that absent this Release and regardless of the entry of any judgment in this litigation, my heirs or others might have claims for the wrongful death of Kim Garde against you; see Alfone v. Sarno, 87 N.J. 99 [432 A.2d 857] (1981); and I further understand and agree that by executing this Release and accepting the money paid by you, I acknowledge that I have received fair, just and adequate consideration for any claims for the wrongful death of Kim Garde, and I further understand and agree that by executing this Release and accepting the money paid by you I have forever remised, released, discharged and given up any and all claims that
I or others might have against you for the wrongful death of Kim Garde arising from or alleged to arise
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