RICHARD BAILEY v. MERCER COUNTY

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6118-07T16118-07T1

RICHARD BAILEY and MARIE BAILEY,

Plaintiffs-Appellants,

v.

MERCER COUNTY, MERCER COUNTY

MEDICAL EXAMINER'S OFFICE, and

DR. RAAFAT AHMAD,

Defendants-Respondents.

___________________________________

 

Submitted April 21, 2009 - Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey,

Chancery Division, Mercer County, No. C-146-06.

Appellants filed pro se briefs.

Arthur R. Sypek, Jr., Mercer County Counsel,

attorney for respondents (Sarah G. Crowley,

Deputy County Counsel, on the brief).

PER CURIAM

Plaintiffs appeal from a trial court order entered on July 15, 2008. After reviewing the record presented on appeal, we affirm.

Plaintiffs are the parents of Richard Bailey, Jr., who hung himself on May 20, 2004. Dr. Raafat Ahmad, the Mercer County Medical Examiner, examined the body and submitted a report of that examination to the State Medical Examiner. In that document he referred to the presence of "hesitation marks" on Mr. Bailey's wrists. Dr. Ahmad also prepared the death certificate. That document noted that Mr. Bailey had a history of alcohol abuse and suicide attempts.

Plaintiffs, initially represented by counsel, began this action seeking to correct these documents by removing these two references. The trial court referred the matter to mediation and, as a result of that mediation, the parties signed a Memorandum of Agreement which contained the following pertinent provisions:

[] Within 30 days of the date of this Agreement, the Defendants shall:

a. With regard to the Richard Bailey Death Certificate, the Defendants, through Dr. Ahmad, agree to amend box 36B by deleting the language "H/O alcohol abuse + suicide attempts." The amended box 36B will be blank. . . .

b. With regard to the Report of External Examination by the Medical Examiner, the Defendants, through Dr. Ahmad, agree to amend the report by filing an identical report with the exception of the deletion of the word "hesitation" on the Arms Wrists line.

. . . .

[] The parties agree to dismiss the captioned matter with prejudice and without costs.

[] The parties shall promptly upon signing of this Agreement execute and forward to the mediator a signed form of Stipulation of Dismissal with Prejudice.

This Memorandum of Agreement stated that the pending litigation would be settled "as of the date the last person signs this Memorandum of Agreement." It was signed by plaintiffs on October 25, 2007, by the attorney then representing plaintiffs on October 30, 2007, and by Dr. Ahmad and his attorney on January 2, 2008. The Memorandum provided for a stipulation of dismissal with prejudice; it stated the stipulation was to be held in escrow by the mediator until notified by counsel for both parties that defendants had complied with the terms of the settlement. The mediator was authorized to release the stipulation to defendants' attorney for filing upon receipt of such notice from both attorneys.

Dr. Ahmad prepared and executed the necessary forms to correct these two documents and they were forwarded to the State's Bureau of Vital Statistics for recording. For reasons which are not immediately apparent from the record before us, plaintiffs did not consider Dr. Ahmad's action to constitute compliance with what they understood to be the terms of the settlement. Acting pro se, they sought to proceed with the litigation. They then learned that the trial court had, in June 2007, shortly after referring the matter to mediation, administratively entered an order dismissing the matter. Plaintiffs filed a motion to restore the matter to the calendar, and defendants filed a cross-motion, seeking to compel plaintiffs to execute a stipulation of dismissal in accordance with the Memorandum of Agreement. Plaintiffs appeal from an order prepared by the trial court which, among its other provisions, enforced the settlement.

Our review of this matter is hampered in several regards. Plaintiffs in their notice of appeal and in their brief focus on the trial court's order of July 15, 2008. That order, entered as of July 3, 2008, set aside the trial court's earlier dismissal of plaintiffs' complaint and reinstated their pleading; it thus granted the relief that plaintiffs had sought. That order also noted, however, that the trial court had entered a separate order.

That separate order, dated July 3, 2008, was prepared by defendants. It ordered plaintiffs to execute the Memorandum of Agreement and the stipulation of dismissal. According to the record presented to us, however, plaintiffs had already executed the Memorandum of Agreement.

We are thus confronted with an anomalous position; plaintiffs are appealing from an order restoring their complaint, and defendants are relying in part upon an order compelling plaintiffs to do an act they had already done.

It is apparent, however, that plaintiffs, at bottom, wish to challenge the action of the trial court in enforcing the terms of the settlement agreement. They interpret the settlement agreement to call for the expungement, or removal, of the offending material because they are convinced it is inaccurate.

We agree with the trial court that such relief is not available from these defendants. N.J.S.A. 26:8-48 provides that a death certificate "shall not be altered or changed otherwise than by amendments properly signed, dated and witnessed, or as otherwise recorded and authenticated on the NJ-EDRS [Electronic Death Registration System]." N.J.S.A. 26:8-52 sets down the procedure for correcting death certificates. It provides in pertinent part, "Corrections to death certificates shall be signed by the physician . . . whose name appears upon the certificate, or shall be otherwise recorded and authenticated on the NJ-EDRS as prescribed by the State registrar . . . ." N.J.S.A. 26:8-52. Defendants complied with those statutory provisions.

We agree with the trial court that defendants cannot remove information that has been filed with the Bureau of Vital Statistics. Doing so would jeopardize the integrity of those records. Thus, N.J.S.A. 26:8-54 provides, "For all important changes to certificates, the certified copies issued by the state department, state registrar or a local registrar shall show the information as originally given and the corrected data." Plaintiffs argued before the trial court that this statute, passed in 1930, was in effect superseded by the later-enacted N.J.S.A. 26:8-48. We have been unable to find support for that position.

We recognize the painful situation in which plaintiffs have found themselves. Our natural sympathy for plaintiffs, however, does not provide a legal basis to relieve them from the terms of the settlement they agreed to at a time when they were represented by counsel.

We do note, for the sake of completeness and for whatever relief it may provide plaintiffs, that N.J.A.C. 8:2A-2.1(a)(3) places strict limitations on who may receive information as to the cause of death and medical particulars. It will not be released or available to a casual inquirer.

Affirmed.

We infer from the briefs submitted to us that that is the relief plaintiffs sought in their complaint; the parties have not provided us with a copy of that complaint.

Again, the record before us is somewhat unclear because it contains a stipulation of dismissal signed by plaintiffs and their original attorney. We are not certain whether plaintiffs signed the stipulation at or around the time they signed the Memorandum of Agreement and later would not authorize its release from escrow or failed to sign it at the time and only executed it when directed by the trial court. That uncertainty is not material, however, to our analysis.

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A-6118-07T1

June 4, 2009