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Maslonka v. Hermann

Decided: May 7, 1980.

EDWIN E. MASLONKA, GENERAL ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF PATRICIA (GERSTENBERG) MASLONKA, DECEASED; ON BEHALF OF THE ESTATE OF PATRICIA MASLONKA, DECEASED, AND EDWIN E. MASLONKA, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
HENRY L. HERMANN, M.D., INDIVIDUALLY; VOLMAR MERESCHAK, M.D., INDIVIDUALLY; HENRY L. HERMANN, M.D., AND VOLMAR MERESCHAK, M.D., AS PARTNERS; TINA BASTINELLI, R.N., AND ELIZABETH BOYLE, R.N., INDIVIDUALLY, JOINTLY OR SEVERALLY, DEFENDANTS-RESPONDENTS, AND WARREN HOSPITAL, A CORPORATION OF THE STATE OF NEW JERSEY AND PHYLLIS MARZUOLLI, R.N., DEFENDANTS



On appeal from the Superior Court of New Jersey, Law Division, Warren County.

Crane, Milmed and King. The opinion of the court was delivered by King, J.A.D. Milmed, J.A.D., dissenting.

King

This is an action brought to recover damages for the alleged wrongful postpartum death of Patricia Maslonka, N.J.S.A. 2A:31-1 et seq. Plaintiff, her husband, appeals from a grant of summary judgment entered in favor of defendant Drs. Hermann and Mereschak and nurses Bastinelli and Boyle.*fn1

At the time the summary judgment motion was argued the record consisted of the Warren Hospital chart for decedent's admission on February 20, 1976, an affidavit of Marie Soto, another patient who shared decedent's room 413, the depositions of nurses Boyle and Bastinelli, Dr. Hermann, the attending physician, plaintiff Edwin Maslonka, decedent's husband, the medical reports of plaintiff's proposed expert witnesses, Gerson Weiss, M.D., of the New York University Medical Center, and nurse Alisan Bennett, a self-styled "consultant in health and related fields," and the pleadings.

Plaintiff relied principally upon the report of Dr. Weiss in resisting defendants' motion for summary judgment. Most of the facts pertinent to the ruling on defendants' motion are

summarized in Dr. Weiss' report as follows: Decedent was a 33-year-old woman with a past obstetrical history of three vaginal deliveries, the last in 1965. She had experienced one spontaneous miscarriage in 1961. The subject pregnancy was described as "benign" and her past medical history as "noncontributory to the present situation." Labor began spontaneously at 3:30 a.m. Decedent was admitted to Warren Hospital at 5:30 a.m. By 6:15 a.m. she was fully dilated. She was taken to the delivery room where, at 6:30 a.m., a spontaneous vaginal delivery occurred. The seven-pound, six-ounce child was normal and the anesthesia was stopped at 6:45 a.m.

At 7:30 a.m. decedent was transferred to semi-private room 413 for postpartum care. Following delivery, Methergine, a medication which has the occasional side-effect of increasing blood pressure in conjunction with the desired effect of contracting the uterus and decreasing uterine bleeding, had been given. Dr. Weiss interpreted the hospital chart as showing that decedent's blood pressure increased from 130/90 shortly after admission to 180/100 by 6:45 a.m.

At 7:30 a.m. the patient was noted to be bleeding moderately and passing clots. At 7:45 a.m. Dr. Weiss observed that the bleeding was noted to be moderate and the patient had vomited. By 8:30 a.m. the nurses' notes stated that decedent was pale and restless, with labored respiration. At this time no blood pressure or pulse could be obtained. A chest x-ray was reported as "highly compatible with massive pulmonary embolization." However, the electrocardiogram, according to Dr. Weiss, did not show changes compatible with this diagnosis. Emergency resuscitative efforts failed and the patient was pronounced dead at 9:30 a.m. An autopsy was offered by Dr. Hermann but was rejected by plaintiff husband about one-half hour after death. Dr. Hermann thereafter notified the County Medical Examiner, Dr. Marlott, of the death and of plaintiff's wish that no autopsy be performed. At 12:15 p.m. Dr. Marlott telephoned Dr.

Hermann and advised that no autopsy was necessary under the circumstances.

Dr. Weiss' report then stated the following analysis of the cause of death and defendants' alleged breaches of duty to the decedent.

While Mrs. Maslonka was not a high risk patient, very rapid delivery of a large baby in a multiparous woman over the age of 30 is usually grounds for at least a careful monitoring of the patient's condition in the post-delivery period. The observations of Mrs. Soto suggest that all was not right with the patient from the time she was placed in Room 413. It is possible that her bleeding was excessive, it is possible that she was having respiratory difficulties or internal bleeding -- but we will never know these answers, nor will we ever know why Mrs. Maslonka died. If she had a massive pulmonary embolization, one would have expected electrocardiographic changes and one would have expected this to be an acute problem, rather one that was progressive for at least an hour while she was in Room 413. Other possibilities as to the cause of her death include things like an amniotic fluid embolization at the time of delivery which produced respiratory embarrassment and bleeding from intravascular coagulation, possible internal bleeding from a ruptured uterus which would result in a restless, agitated patient with a greater or lesser amount of external bleeding who would then have cyanosis and respiratory difficulty, or even a death from eclampsia. One might consider this in view of the fact that the patient was seen to have a seizure and it is possible from the record that the last blood pressure was indeed quite elevated. We will never know why Mrs. Maslonka expired because we do not have enough information. We will never know whether her death could have [been] prevented because we will not know what caused her death. The only fact that is quite clear from the record is that there is minimal documentation of her condition from the time of delivery to the time when she was found to be without blood pressure. During this critical postpartum period, not one blood pressure was recorded, not one pulse was taken, and not one observation of her condition was made except for the few statements in the nurses' notes.

It should be noted in Dr. Hermann's discharge summary that he was not at all clear as to the problem with Mrs. Maslonka after her blood pressure could not be obtained. He ordered intravenous pitocin which is the medication that one gives to increase uterine contractions if one feels there is excessive bleeding. This certainly then must have been one aspect of the case which one does not see from the chart. In addition, he ordered blood for type and crossmatch which

would indicate that he thought either she would come to immediate surgery or she was losing blood. He states that the cervix and the vagina were inspected but there is no notation as to whether the uterine cavity was inspected or whether there was evidence of internal bleeding. In light of the uncertainty as to the cause of death, it is quite surprising that the coroner did not request an autopsy. I am not familiar with the rules in [New Jersey] but certainly in New York City all maternal deaths are immediate medical examiner's case and an autopsy is required in every case. It has been shown again and again that this is the only way that one can learn and profit by previous poor results. Without the information obtained at an autopsy, all we can state for certain is that it is not clear as to why Mrs. Maslonka died . We can also unequivocally state that she was poorly attended in her postpartum period. [Emphasis added]

Nurse Bennett's report was also relied upon by plaintiff to resist the summary judgment motion. She characterized decedent as a "high risk patient despite the reference to the contrary in Gerson Weiss' report," because of her age, her problem pregnancy in 1961 and her "reproductive system conditions -- chronic cervicitis in 1973 and endometrial polyp in 1961 in addition to right salpingoopharitis in 1969." Nurse Bennett concluded that the nurse-defendants' depositions and the nurses' notes evinced poor postpartum care because (1) the notes were poorly kept, (2) the notes were possibly made after the pronouncement of death, (3) the notes suggested poor communication among the nursing staff about the patient's care and condition, (4) the patient's vital signs were poorly monitored, and (5) "a nursing diagnosis . . . could have led [nurse] T. Bastinelli to conclude hemorrhage was possible." Nurse Bennett concludes her analysis by saying that nurse Bastinelli "has not exercised all of the skills and knowledge that she should have gained as part of her basic professional training in behalf of the decedent, Patricia Maslonka. The NPN [nurses progress notes] depict her neglect of the decedent."

We accept plaintiff's contention that the experts' reports of Dr. Weiss and nurse Bennett establish a deviation from the

standard of postpartum care which these defendants owed to decedent. The problem inherent in plaintiff's thesis that the materials in opposition to the motion for summary judgment created a case for the jury is the absence of any expert opinion that a professional deviation probably was a cause of death. The record is barren of expert opinion on causation of death or of any factual analysis relating any breach of duty to the mechanism of death. As we view the record, unless we hold that this is a case of res ipsa loquitur, e.g., Steinke v. Bell , 32 N.J. Super. 67 (App.Div.1954), or a case of common knowledge which we do not "believe to be beyond the ken of the average layman," Sanzari v. Rosenfeld , 34 N.J. 128, 143 (1961), or an extraordinary case where the burden of exoneration should be shifted to defendants upon the mere showing of a medical accident because some defendant must be at fault, under the doctrine of Anderson v. Somberg , 67 N.J. 291 (1975) (three dissents), the judgment in defendants' favor must be affirmed.

Every untoward result of medical treatment does not, without expert testimony, present a prima facie case of liability. Sanzari v. Rosenfeld, supra , 34 N.J. at 141. This court considered a somewhat similar case in Parker v. Goldstein , 78 N.J. Super. 472 (App.Div.1963). There the plaintiff's decedent expired from a pulmonary embolism which occurred during Caesarean section. We stated that "[t]he obligation devolving upon a plaintiff to prove through expert testimony a deviation . . . from recognized standards as a basis of liability, necessarily included a showing directly, or by legitimate inference, that the departure from a standard was causally connected with the death." Id. at 480. In Parker v. Goldstein , plaintiff produced a qualified expert who reached this conclusion as to the reason for death:

And so, in my whole opinion, it is that from the time of her admission to the hospital until the time of her death it was the deviation of not taking care of this patient in the proper manner to do the Caesarean section at the time of her

admission or soon thereafter that led eventually to the death with pulmonary embolism. [ Id. at 481; emphasis supplied]

This court held that the expert's opinion as rendered was insufficient to create a jury issue on medical malpractice, stating:

The patient died as a result of a pulmonary embolism -- generically, a blood clot in the blood stream. What caused this condition to come into being? Was it the so -- called delay? If so, where is the proof in this case of such connection? If it be found at all, it must be in Dr. Graubard's naked assertion that in the entire complex of the facts as given to him, the course of medical conduct pursued by the defendant "led eventually to her death with pulmonary embolism." There was no word of testimony from the witness to explain the physiological reactions of the decedent to the alleged delay, or of the anatomical effect of the delay on the pulmonary structure of decedent. The opinion, thus, was what is commonly described as a "net opinion." [ Id. at 483]

And this court there further stated:

While in Dwyer [ v. Ford Motor Co. , 36 N.J. 487, 494-495 (1962)] the court was writing in the context of a weight of evidence problem, the basic thesis that an opinion is no stronger than the facts which support it, and the medical explanation of its basis, is apposite here.

Thus viewed, the complete absence of explanation by Dr. Graubard of how, and in what manner, the supposed delay caused or contributed to the pulmonary embolism left an irreparable void in plaintiff's proof. Acceptable medical opinion of causation supported by expert explanation was an integral and indispensable part of plaintiff's case.

Consequently, we are obliged to conclude that plaintiff's case lacked the requisite expert opinion that in the known and uncontrovertible circumstances, defendant violated any medical standard or tenet which was proximately related to Mrs. Parker's death. Accordingly, defendant's motion for a judgment of involuntary dismissal should have been granted. [ Id. at 484]

In Parker v. Goldstein, supra , plaintiff's expert did not explain how the death from pulmonary ...


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