On appeal from Superior Court of New Jersey, Law Division, Camden County.
Morton I. Greenberg, J. H. Coleman and R. S. Cohen. The opinion of the court was delivered by J. H. Coleman, J.A.D.
[217 NJSuper Page 450] In this medical malpractice case, the infant plaintiff is severely retarded and his right leg has been amputated at the hip level, including one-half of his hip. Plaintiffs contended that defendants negligently deprived Eugene of oxygen which caused brain damage and mental retardation, and that surgery and care negligently performed or provided necessitated the amputation. A jury found that defendants Dr. Robert Boova, the Respiratory Therapy Department and Nurse Doris Farlow were negligent. It assessed the negligence at 90.2%, 5.1% and 4.7% respectively. Drs. Boova and Villasis settled prior to the verdict. The jury awarded compensatory damages of $1,267,530 to Eugene and his mother and punitive damages of $225,000 to the infant against the hospital. Plaintiffs have appealed
the denial of a motion for a new trial under A-5792-84T1 as to the following defendants, who were found not to be negligent: Drs. Y. J. Lee, Timothy Ryan, William Yang and Arnold J. Solof; Jane Santo, R.N., Tanya Lincoln, R.N., Gloria Korth, Director of Nursing and Sister Corry, Hospital Administrator. Under the same docket number, the Respiratory Therapy Department and Our Lady of Lourdes Hospital have cross-appealed the entry of judgment for the punitive damages.
Plaintiffs have also filed another appeal under A-3254-85T8 in which they challenge the constitutionality of N.J.S.A. 2A:53A-8. We hereby consolidate these appeals. We now affirm the order denying the motion for a new trial; we reverse that part of the judgment awarding punitive damages and we do not declare N.J.S.A. 2A:53A-8 to be unconstitutional.
Based on the evidence presented during the six week trial, the jury could have believed that the following occurred. On October 31, 1979, at about 7:00 p.m., Carolyn Edwards gave birth to Eugene Edwards at defendant hospital. Eugene was born prematurely at 27 weeks of gestation weighing 1130 grams, which is about two and one-half pounds. About 90% of babies born after 27 weeks of gestation have head sizes larger than Eugene's at the time of birth. Eugene may have been microcephalic. Dr. Arnold J. Solof, a pediatrician, was the night physician on duty for the Neonatal Intensive Care Unit (NICU) at the time of delivery. He was summoned to the delivery room because it was expected that the delivery would be extremely premature.
Eugene was delivered by an obstetrician who is not implicated in this appeal. No fetal heart rate was detected for 17 to 22 minutes before delivery. At the time of delivery, Eugene had no detectable heart beat and was not breathing. He was in shock from blood loss, much of which preceded his mother's appearance at defendant hospital. The initial examination of the mother at the hospital revealed placenta abruption, which interrupted the baby's supply of nutritive materials and oxygen.
By the mother's history, this occurred several hours before hospitalization. One minute after birth, the Apgar score reflected zero respiration and heart beat. Eugene was born with a defective heart and a condition of the lungs called hylaine membrane disease. Both of the conditions were caused by premature birth and they had the potential to impede the circulation of blood and oxygen.
Eugene had to be resuscitated in the delivery room. To accomplish this, Dr. Solof inserted an endotracheal tube into the baby's trachea through his mouth and gave him oxygen from a portable tank. The Apgar scores were three at one minute and seven at five minutes after birth. The Apgar scores reflect a pediatrician's evaluation of the baby's activity and appearance. Ten is a perfect score. Both of the Apgar scores reflected that Eugene was suffering from blood loss and asphyxia. A transfusion of albumin was administered to help relieve the shock caused by the loss of blood. Within a few hours of birth, up to one-half of Eugene's blood was replaced through transfusions.
Within about five minutes after birth, Eugene was transferred from the delivery room to the NICU after some stabilization had been achieved. He was still receiving oxygen from a portable tank through the use of a laerdal bag which was connected to the endotracheal tube. The laerdal bag was used for artificial respiration. Upon arrival in the NICU, an oxygen hood was set up for Eugene and he was given 100% oxygen. A cardio-pulmonary monitor was used to check his heart beat and respiration. After he was under the oxygen hood for a short time, Eugene became cyanotic, meaning a lack of oxygen in his blood.
When Eugene became cyanotic, Dr. Solof, or a respiratory therapist, placed the baby on a respirator, which is a mechanical breathing machine. The respirator was connected to the endotracheal tube and to an oxygen supply system accessed through a wall outlet. It is unclear whether a flow meter was required to get oxygen from the wall outlet to the respirator. A flow
meter is used to control the flow of oxygen by an observable gauge. Two oxygen outlets were located at each station where a baby might have been located in the NICU, including Eugene's. The Respiratory Therapy Department, a named defendant, was responsible for setting up and maintaining the oxygen and all of the respiratory equipment. After the respirator had been connected to the oxygen wall outlet, Dr. Solof did not notice whether the flow meter necessary to connect the laerdal bag to the second wall outlet, which served as a backup, had been disconnected.
Dr. Solof left the NICU between 8:15 and 8:30 p.m. on October 31, 1979. At about 9:30 p.m. he was informed that Eugene's heart rate had dropped and that his skin color had changed. The respirator had malfunctioned, apparently, and there was no backup source of oxygen in the NICU. Dr. Solof responded to the NICU within a few seconds and found Eugene's heart beat had dropped to 80 beats a minute, down from about 140 per minute. A nurse informed him that she tried to use the laerdal bag but it had been disconnected from the oxygen wall outlet. It was then discovered that the flow meter from the second wall outlet at Eugene's station was missing. It was believed to have been removed by an employee from the Respiratory Therapy Department. This caused a delay in resuscitating Eugene.
Dr. Solof disconnected the respirator after he increased the percentage of oxygen and noticed no improvement in Eugene's condition. He then used the laerdal bag to pump normal room air containing 21% oxygen into Eugene's lungs. Shortly thereafter, one of the NICU nurses retrieved from the delivery room a portable supply of oxygen which was connected to the laerdal bag. Having at that point been without 100% oxygen for a period of five to seven minutes, Eugene was given oxygen. Someone from the Respiratory Therapy Department corrected the problem with the wall outlets and the supply of oxygen. Eugene was reconnected to the respirator which was again
attached to the endotracheal tube. We are unable to determine from the record what caused the respirator to malfunction.
Plaintiffs' expert Dr. Robert G. Kettrick testified that the conduct of Dr. Solof "clearly and unequivocally" fell below the proper standard of care, and that Dr. Solof was directly responsible for the mental retardation. He also indicated that when the resuscitation did not immediately bring Eugene's heart rate up to the normal range, Dr. Solof should have performed open heart massage to push blood to the baby's brain. He further testified that the prolonged use of an umbilical-arterial catheter, through which caustic, irritating, sclarosing drugs passed, harmed Eugene and deviated from the minimum standard of care which Dr. Solof should have followed. Dr. Solof testified that it was not his job to make sure that a flow meter was attached to the second wall outlet for emergency use of the laerdal bag. The deposition testimony of Nicholas Matluck, the hospital's director of the Respiratory Therapy Department, stated essentially the same thing. Matluck also stated that routine inspections were made of the respiratory equipment and no defects were disclosed.
After Eugene was reconnected to the respirator, he may not have been placed in proper restraints. This allowed him to dislodge the endotracheal tube on at least six occasions. When the tube was dislodged or extubated, that interrupted the supply of oxygen throughout Eugene's body, including his brain. Dr. Yang repositioned the tube initially. Thereafter, he elected to extubate and reintubate Eugene with a larger endotracheal tube. Dr. Yang testified he did not call an anesthesiologist or Dr. Lee to do this because this was "routine pediatric neonatology procedure." Eugene's blood pressure dropped after this procedure for two to three minutes, during which time a nurse performed closed heart message. Multiple attempts to reintubate were finally successful. Dr. Kettrick testified that Dr. Yang's failure to request an anesthesiologist's assistance from the onset constituted a deviation from the proper standard
of care. He finally agreed, however, that a pediatrician could have more experience in this regard than an anesthesiologist.
The notes of various doctors in the hospital records from November 2, 1979 to November 14, 1979 revealed that there were problems with the circulation in Eugene's lower extremities. To improve his circulation, an intravenous line or tube had to be inserted. Eugene, however, had problems maintaining the line. On November 19, 1979 Dr. Lee, the Director of the NICU, authorized Dr. Villasis, a neonatal fellow on duty, to write an order for a cut-down consultation. A cut-down is a surgical procedure ...