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Friel v. Vineland Obstetrical and Gynecological Professional Association

Decided: February 26, 1979.


Miller, J.s.c.


May a mother whose child is tortiously caused to be prematurely delivered and who herself sustained a compensable injury therein, include as damages not only those proximately related to her own injuries but for her fright, anxiety and shock sustained by the premature delivery and uncertainty as to the child's normality during the formative years of development to the stage where educational testing may be had?

This case come before the court on defendants' motions for summary judgment. Plaintiffs sued alleging medical malpractice in obstetrical care provided to a mother and daughter. Defendants argue that because the infant has apparently recovered from her injuries, plaintiffs' complaint must be dismissed by way of summary judgment. In order to dispose of this motion it is necessary to consider the elements of damage presented in such cases. For the reasons stated herein this court holds that, at least in cases of alleged obstetrical malpractice, anxiety of the parents of a child living but potentially brain damaged is includable as an element of damage. Thus, for the above reason and other reasons set forth below, defendants' motions are denied.

The factual events of this case began on April 30, 1976, when plaintiff Betty Friel was in her thirty-first week of pregnancy. She noticed vaginal bleeding on that date. She called defendant doctors, who were treating her through the course of her pregnancy, and was advised to take aspirin and a shot of whiskey. A few days later an office visit occurred due to plaintiff's continued bleeding and cramps. The doctor diagnosed a bladder infection and prescribed medication for that suspected ailment. By May 7 plaintiff's vaginal bleeding had become quite heavy and her cramps and pain markedly increased. She went to defendant Newcomb Hospital where the doctor examined her, reaffirmed his diagnosis, and advised plaintiff to go home. Plaintiff William Friel insisted on a second examination. A second member of the doctors' group examined her, agreed with his colleague's diagnosis, and plaintiffs were sent home. On May 9 Betty Friel became violently

ill, suffered convulsions and continued to bleed. In a nearly hysterical state, she was admitted to the hospital at about 8 P.M. that evening. She received medication, including Demerol and intravenous oxytocin. Plaintiffs allege that no one checked on her regularly after she was in the labor room. At 10 P.M. a third member of the defendant doctors' group examined plaintiff and indicated that it would be some time before the baby was born and left. At 10:26 P.M. the infant plaintiff was born. No anesthesia was administered, no episiotomy was done, and plaintiffs allege that no member of defendant doctors' group was present when Betty Friel delivered the child. The final diagnosis was that Betty Friel had suffered an abruptio placenta.

The infant plaintiff, Amanda Beth, was three pounds, six ounces at birth. She was cyanotic, suffered apnea, and later tests showed intracranial hemorrhaging and central nervous system difficulties. Amanda spent the first 5 1/2 weeks of her life in a Pennsylvania hospital, came home one week, and was rushed back again after respiratory failure.

Expert Testimony

Defendant hospital argues that plaintiffs' cause of action against it must be dismissed for failure to produce an expert. E.g., Carbone v. Warburton , 11 N.J. 418 (1953); Toy v. Rickert , 53 N.J. Super. 27 (App. Div. 1958). The hospital argued that even assuming that no one attended plaintiff, that no one checked the medication and plaintiff's condition while receiving medication, expert testimony must be required to show that the medication was harmful and that it is beyond the common knowledge of jurors how often a person should be checked or attended upon admission to a hospital and while receiving medication. Plaintiff's expert, however, clearly addresses that issue in his report:

The contribution of the intravenous oxytocin stimulation to the injuries this infant suffered is not clear, inasmuch as there are no Nurse's Notes contained in this record. It is considered customary

practice that during intravenous oxytocin stimulation the following biologic parameters are carefully monitored every ten minutes; the blood pressure, the rate of flow of oxytocin, the frequency and intensity of the uterine contractions and the fetal heart rate. We have no record of these observations having been made and that omission, in itself, is a departure from customary standards.

Thus, assuming all that defendant assumes, plaintiff in fact does have an expert to testify to the standard of care and deviation therefrom. Whether or not a nurse attended plaintiff during this period is obviously a material factual issue that must not be disposed of on summary judgment. R. 4:46-2; e.g., Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67, 74-75 (1954).

Thus, in light of plaintiff's expert report, further discussion as to whether the argument of "common knowledge" doctrine applies to plaintiffs' claims regarding negligent administration of "harmful" medications is unnecessary. However, insofar as plaintiffs allege an utter lack of attendance, particularly at the time the baby was delivered, the question of malpractice in that regard would appear to be within the province of the jury of laymen, depending upon the proofs submitted. "There are basic aspects of childbirth procedure within the common knowledge of the laity." Lewis v. Read , 80 N.J. Super. 148, 170 (App. Div. 1963), certif. granted 41 N.J. 121 (1963). Attendance of a patient in labor at or near the moment of giving birth would seem to be an aspect particularly within that knowledge.

For the above reasons, defendant Newcomb Hospital's motion for summary judgment on the basis of a failure to produce an expert and the nonapplicability of the "common knowledge" doctrine is denied on the present state of discovery.


Defendants' argument that there were no actionable damages in this case is premised on a letter written by Amanda's physician, Dr. ...

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