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Lewis v. Read

Decided: June 26, 1963.


Price, Sullivan and Lewis. The opinion of the court was delivered by Lewis, J.A.D.


This is an obstetrical malpractice case which resulted in a unanimous jury verdict awarding $175,000 to the infant plaintiff Margaret Ruth Lewis (herein child, infant or baby Margaret) against defendants "(Dr.) Jessie D. Read" (herein Dr. Read) and "The Hospital of St. Barnabas" (herein hospital), and $75,000 in favor of the infant's parents, William Lewis and Frances Lewis, against the defendant Dr. Read only, and a verdict of no cause of action in favor of the codefendant "(Dr.) Milton Prystowsky" (herein Dr. Prystowsky). In denying motions for a new trial, the judge opined, "For the Jury to have found otherwise would, in my opinion, have constituted a miscarriage of justice." Defendants Dr. Read and the hospital appeal.

The infant plaintiff has suffered an impairment of the central nervous system, including the brain. She is blind, deaf, unable to speak, without sense of touch or muscular control, subject to twitching and convulsive seizures, substantially underweight, and unable to consume food except through an eyedropper or teakettle-type cup. The crucial and primary question before the jury was whether her condition of abnormality was caused by defendants' negligence or was the result of a congenital infirmity existing in utero at the time of nativity.

We note in limine that plaintiffs' initial pleading was a complaint in the Superior Court, Law Division, against Dr. Read, and that successively amended complaints were filed to join the hospital and Dr. Prystowsky as defendants. The hospital, by its answer, denied liability, pleaded separate affirmative defenses and cross-claimed against Dr. Read, and by its amended answer additionally pleaded charitable immunity under N.J.S.A. 16:1-48. Dr. Read's answers joined issue with the complaint, the amended complaints and the cross-claim. The pleadings on behalf of the hospital were filed by its then independent counsel. Prior to the pretrial conferences, however, Dr. Read's attorneys were substituted as counsel to also represent the hospital, and the latter's cross-claim

against the former was thereafter withdrawn. During the course of the trial, the amended complaints representing the derivative suits of the parents against the hospital and Dr. Prystowsky, respectively, having been barred by the statute of limitations, were on appropriate motion eliminated. The hospital's counsel appearing before this court were substituted after the entry of judgment and the filing of the notices of appeal. Separate briefs in extenso were filed on behalf of Dr. Read and the hospital.

The several grounds for appeal assigned by the defendants may, in substance, be summarized and categorized as follows:

-- The verdict was against the weight of the evidence. It was so far contrary to the quantitative and qualitative proofs in favor of the defendants, and the amounts thereof were so excessive, that a conclusion of resultant mistake, partiality, prejudice or passion is inescapable. The trial court accordingly abused its discretion in denying defendants' motion for a new trial.

-- Plaintiffs' expert witness was not qualified in the field of obstetrics to testify as to the applicable standards of medical care and the alleged deviations therefrom; consequently, prejudicial harm was committed in permitting his testimony as an expert.

-- Numerous trial errors, in the segregate and aggregate, deprived defendants of a fair trial.

In approaching the resolution of those contentions, we shall in sequence consider: (1) a chronicle of basic facts which stand essentially unrefuted in the record; (2) the area of conflict, aside from the testimony of the expert witnesses; (3) evidence proffered by the medical specialists; (4) the issue of liability; and (5) the question of damages.


Plaintiff Frances Lewis was 45 years of age at the time of trial. She was the mother of five children, three born prior to and one after the birth of baby Margaret, and all except the

latter have enjoyed "excellent health." While pregnant with Margaret, the mother, in addition to the discharge of usual family responsibilities, pursued her musical career, including the daily rendering of violin lessons. Aside from a mild peripheral neuritis, "secondary to changes of pregnancy," her prenatal interval was relatively uneventful. The obstetric services and advice of Dr. Read and her associates Dr. John McGeary and Dr. Daniel G. Jarvis (sometimes referred to as "The Trio") were rendered to Mrs. Lewis commencing in May 1955.

On or about noontime on January 25, 1956 the mother experienced the onset of mild labor pains and Dr. Read was notified. Mrs. Lewis was taken to the hospital by her husband and was admitted, about 1:45 P.M., to the "labor floor" by nurse Lena Blessing. A telephone call was relayed to Dr. Read by nurse Catherine M. Roche (in charge of the delivery room). Dr. Bausch, an intern, proceeded with a routine predelivery examination of the mother.

Nurse Laura Wogisch (hereafter Wogisch) came on duty at 3 P.M. (to relieve nurses Roche and Blessing, whose shifts of duty on that day were from 7 A.M. to 3:30 P.M.). Upon the arrival of Wogisch, Mrs. Lewis was experiencing uterine contractions at five-minute intervals, progressively "becoming stronger." The membranes ruptured shortly thereafter. Dr. Read appeared at the hospital at approximately "a quarter to four," reviewed the results of the intern's examination, and then proceeded to see Mrs. Lewis who was at that time in the labor cubicle. The expectant mother's general condition was "good" and "she was in active labor, near the time to deliver." The patient was moved into the adjoining room for delivery "around four o'clock." Sedation had not been given to the mother pursuant to her request for natural childbirth (as was the case with her prior three children), and a notation to that effect was made in the ante-partum record furnished to the hospital by the obstetrical "Trio." Dr. Read, however, had given standing orders for sedation, and an unpleasant discourse ensued between her and nurse Roche because the

instructions had not been carried out. The doctor, in referring to Mrs. Lewis, reacted with the exclamation: "One of those multi-para so-and so's [profane word] that like to make noise."

For a better understanding of relevant testimony, we briefly mention the physical layout and facilities of the delivery room. The area is rectangular in shape and the delivery table, with appropriate accessories, was stationed in the center of the room. The additional equipment included an anesthesia machine, an E&J resuscitator, an air lock machine, a crib (heated by light bulb under mattress), an instrument table, two other small tables, and a wall clock. It is clear from the photographic exhibits admitted in evidence that two windows are recessed in the tile wall of the room to the right of the entrance and under each window is a flat-top radiator covered by white cloth. Between the radiators and extending along the same wall, opposite to and paralleling the right side of the delivery table, are two flat-top tables, also covered by white cloth material. The surface of the aforesaid wall tables vary in height and are slightly higher than the tops of the radiators. The distance between the small tables and the delivery table was estimated to be four feet.

When Mrs. Lewis was transferred from the stretcher to the delivery table, she was made ready for delivery. Dr. Read performed the catheterization. The medical complement in the room at that time was Wogisch, a circulating nurse, Dr. Abdul Islami, the acting anesthetist (also house physician), an intern Dr. Bausch, and the defendant Dr. Read. The latter two doctors had been "scrubbed," gloved and gowned, and were positioned within the sterile field.

When Dr. Islami announced that the patient was not under sedation, Dr. Read allegedly replied, "This one likes to make noise." The mother cried out as the antiseptic (Zepheran) swab was applied, whereupon the anesthetist administered to her, through a face mask, "some laughing gas" (oxygen and nitrous oxide). During the final three uterine contraction pains (a minute apart) immediately preceding

the delivery expulsion, the patient intermittently inhaled additional gas, "three or four whiffs," which according to Dr. Islami usually last "five or ten seconds" each. Its effect was analgesic, causing relaxation and insensitivity to pain; she was not given an anesthetic to produce sleep or loss of sensation. The depositional testimony of Dr. Read as to the mother's condition at the time is significant:

"QUESTION: Now, when the gas oxygen ceased to be administered and the baby was delivered, was Mrs. Lewis, in your opinion, rational?

ANSWER: May I have a definition of rational?

QUESTION: Yes. Did she know what was going on around her and could she converse normally?

ANSWER: She was rational."

Baby Margaret was born at 4:14 P.M. She weighed 6 pounds 10 1/2 ounces. The birth was spontaneous following two and a quarter hours of childbirth labor culminating a normal 40 weeks' gestation period. It was not necessary for Dr. Read to use forceps or to perform an episiotomy (surgical cutting of the vulva). There was a vertex emergence from the vaginal canal and the position of presentation was identified as L.O.A. (left occipito-anterior).

After milking the baby's trachea, Dr. Read placed her upon the mother's abdomen, drained the umbilical cord, applied suitable clamps and completed a severance. The newborn was then displayed to the mother (approximately three minutes after birth). Dr. Read admitted: "I said to Mrs. Lewis that she had a nice, vigorous, healthy baby." Dr. Islami stated: "She sure has a healthy set of lungs. If all babies were born like this we doctors would have no trouble." The reputed comment of Dr. Bausch was, "she is fine." The placenta was expressed at 4:19 P.M. Dr. Islami and Dr. Bausch left the room "anywhere within the first ten or fifteen minutes" thereafter. Shortly before 5 P.M. the child was wrapped in a receiving blanket and carried by Wogisch upstairs to the nursery. There is conflicting testimony as to what transpired during the previous 45 minutes (to be

discussed later). Before leaving the delivery room, however, the child was cyanotic -- variously characterized as "blue," "deep blue," and "blue-black." It was not refuted by any of the medical testimony elicited at the trial that baby Margaret was abnormal when she was sent to the nursery. It is equally clear from the medical evidence that a baby is cyanotic immediately upon birth but after the first few breaths of life the "blueness" diminishes and the normal child starts to turn pink in color.

Dr. Read, following a conversation with the mother (approximately 5 P.M.), made a phone call to Dr. Prystowsky (pediatrician), who in testifying as to the substance of that communication said he was informed the baby was in an incubator and was receiving six liters of oxygen per minute and that "she [Dr. Read] did not feel there was an emergency to be there at that moment, but she [Dr. Read] would like me to drop by the hospital the first opportunity I had." At approximately 5:30 P.M. Mr. Lewis telephoned Dr. Read at her residence and was advised by the doctor that he "had a baby girl and that she had turned blue shortly after she was born." (Emphasis supplied)

Dr. Prystowsky examined the infant at the hospital at 10:30 that night and signed a notation embracing the following impression:

"healthy newborn probably to be observed however for the next few days. Watch for congenital heart disease. Cyanosis could have been due to unexpanded lungs at birth or mucus."

That statement appears as a footnote to the hospital's newborn physical examination report (required to be completed within 24 hours after birth) bearing the apparent signature of Dr. Bausch, in which the infant's color was noted as "cyanotic," skin described as "normal," deformities or anomalies "none," and congenital abnormalities reported "none."

There was also admitted in evidence a log book (form approved by the Committee on Maternal Welfare Medical Society of New Jersey, entitled "Maternity Service Records")

representing a period from January 1, 1956 to July 31, 1956. Opposite the mother's name (Frances Lewis) and the date (January 25, 1956), there is furnished a maternity record of unchallenged factual data. It is significant, however, that in the column for the noting of " Ante-Partum Complications " nothing is listed, and in the section for " Intra-Partum Complications and Procedures " the word "normal" is inserted; and in the divisional column respecting the baby there is no statement in the blank space provided for information as to " Congenital Abnormalities, Birth Injuries and Post-Natal Complications." Dr. Read's name appears therein as the attending physician. The obstetrical supervisor was not produced as a witness, and no effort was made by Dr. Read or by anyone else to explain either the entries or the nonentries exposed in that official record of the hospital.

The child progressed with seeming improvement until January 28, 1956, when she took a turn for the worse and was put on the critical list. There is an apparent hiatus in the hospital records in that no recordings or entries are disclosed respecting the infant from 6 P.M. Friday, January 27, to 8 A.M. Saturday, January 28. On February 12, 1956 Dr. Edward P. Duffy, Jr. (chief of hospital's pediatric staff) signed an order discharging the baby in the care of Dr. Daniel C. Hackett, a pediatrician, who had previously (January 30, 1956) seen the child at the hospital, at which time his diagnosis was "Question mark neonatal sepsis * * *." Subsequently, pursuant to medical advice, the parents arranged for an examination of baby Margaret at the Children's Medical Center at Boston, Massachusetts, where she was hospitalized five days, commencing June 25, 1956. The summary of that institution was "mental retardation of unknown etiology umbilical hernia, small."

On March 2, 1957 the invalid child was admitted to the John E. Runnells Hospital for Chest Diseases (formerly Bonnie Burn Sanatorium and here referred to as Runnells Hospital), where she has been continuously institutionalized since that date. In the report of John E. Runnells, M.D.,

examining physician, the "Stage of Disease on Admission" was stated to be "Brain damage due to severe anoxia."

We find it unnecessary for the purpose of this opinion to further narrate the incidents and developments occurring after January 25, 1956.


In detailing the crucial facts, the testimony of Mrs. Lewis portrayed the following:

-- The labor and delivery rooms were cold. Nurse Wogisch was attired in an "outside white coat" and nurses Roche and Blessing were wearing sweaters. Her request, while in the labor room, for a blanket was refused by Wogisch with the comment, "Yes, it is cold but we cannot give you one now. After the baby." She overheard a conversation between Wogisch and an aide, "One day its hot and one day its cold."

-- The baby was a "new born pink" when she was first shown to her and in response to her question "Is she perfect," Dr. Read replied, "Well she looks and sounds it." The doctor, after remarking "Let's get the afterbirth," placed the naked child "on the table" which was "alongside of me. * * * to my right." It was abandoned there "completely uncovered" for a period of five minutes. That area along the wall was described as "counters or shelves * * * a continuous table like you have in your kitchen." There was evidence that the finger-footprinting supplies were kept in that general location.

-- While the nurse was taking her thumb print, she (Mrs. Lewis) said "everything is so quiet. Is everything all right?" Dr. Read inquired about the footprinting of the baby to which Wogisch responded, "I am going to footprint her now. I will look at her." Upon turning toward the table the nurse called the doctor, and the child "still naked" was then placed in the bassinet. ...

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