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Swank v. Halivopoulos

Decided: December 29, 1969.

DEBRA JANE SWANK, AN INFANT BY HER GUARDIAN AD LITEM, DALE SWANK, AND DALE SWANK, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ELETHERIOS HALIVOPOULOS, M.D., DEFENDANT-RESPONDENT



Kilkenny, Labrecque and Leonard. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

In this pediatric malpractice case plaintiffs appeal from a judgment in favor of defendant following a jury verdict of no cause for action, and from the trial court's order denying plaintiffs a new trial.

It is not disputed that the infant plaintiff, a premature baby, developed retrolental fibroplasia which caused complete and permanent blindness. Plaintiffs assert that this condition was caused by the excessive administration of oxygen at birth and for the following six days.

The infant was born on September 19, 1964 at the Perth Amboy General Hospital at or about 7:40 P.M. At birth

the baby weighed 2 lbs. 14 oz. and was the result of a premature 27-week pregnancy. (A normal pregnancy is 40 weeks.) The birth was complicated by a placenta abruptus (a premature separation of the placenta from the uterine wall). Further, the birth was a breech delivery with the baby appearing feet first.

The child had been delivered by an obstetrician who promptly placed her in an isolette with oxygen below 40% concentration. Thereupon defendant, who specializes in pediatrics, was called by the obstetrician. Upon being notified of the call by his answering service, defendant telephoned the hospital and was told of the complications of the birth and delivery, the other relevant factors, and that the baby was then being kept in an isolette with oxygen. He directed that the administration of oxygen below 40% be continued. The next morning defendant examined the baby while she was in the isolette and thereafter examined her daily for the next six days. Pursuant to his orders oxygen, below 40%, was administered to the child continuously from September 20 until September 24. On September 25 defendant ordered oxygen to be administered on a "PRN" (as necessary) basis, and it was gradually discontinued on that day. None was given on September 26 or thereafter.

Plaintiffs offered as a witness Dr. Henry Gaynin, an ophthalmologist licensed to practice medicine in New York. He was not a pediatrician but a physician whose specialty involved the treatment and correction of existing eye conditions. He testified that he examined the infant plaintiff in his office on February 11, 1966 and at the St. Clare's Hospital, New York, on April 1, 1968. He diagnosed her condition as retrolental fibroplasia resulting from oxygen and causing the permanent loss of sight. Based upon his review of the records of the Perth Amboy Hospital, the doctor stated that defendant administered an excess amount of oxygen to the infant. He opined that the amount of oxygen administered by defendant for the number of days that it

was given was a deviation from the requirements of accepted medical standards.

At the trial defendant did not dispute Dr. Gaynin's diagnosis of the infant's eye condition nor the fact that as a result thereof she was totally and permanently blind. Defendant, without admitting that the oxygen administered pursuant to his orders caused the eye condition, did concede that it "might" be the cause. He testified that even though he recognized that retrolental fibroplasia is one of the known possible dangers resulting from the use of oxygen for prematurely born babies, he nevertheless ordered its administration in the amount and for the time he did because he felt that "the baby couldn't survive without it" and that "oxygen was a mandatory thing for this particular baby." He added that "I was trying to save the baby's life and that was my main concern." He concluded that under the existing circumstances his conduct in the administration of the oxygen comported with existing accepted medical practice.

Dr. Louis Krafchik, a certified diplomate of the American Board of Pediatrics and chief of pediatrics at both St. Peter's Hospital and Middlesex General Hospital, New Brunswick, was called as a witness by defendant. He had reviewed the infant's hospital record and based thereon concluded that under the conditions then existing defendant's care of the infant, particularly as to the oxygen administered, was in accord with accepted medical practice and there was no deviation therefrom. He stated that it was also his opinion that a "baby's [situated as was the infant plaintiff] outlook is very, very grave and the baby cannot survive without oxygen."

Plaintiffs first contend that the trial court improperly limited cross-examination of defendant and his expert with reference to a certain book known as Dunham's Premature Infants by a Dr. William Silverman. When queried about this text on cross-examination defendant replied "I'm not familiar with it." He further testified ...


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