On appeal from Superior Court, Law Division, Morris County.
This is a medical malpractice appeal in which the trial judge ruled on a so-called " in limine " motion by defendant Paul P. Krikorian, M.D. just before the jury was to be chosen. In a pre-trial order the judge barred plaintiff's liability expert from testifying on the ground that he was relying on his own personal opinion and hence his report constituted a "net opinion." As plaintiff was thus left unable to prove his case on liability, his complaint was dismissed. We reverse and remand for trial.
Defendant physician treated plaintiff's mother in 1962 for obesity and depression, and prescribed various medications, including Tofranil, 25 mg. three times a day. The prescription provided for 100 pills with four refills. Plaintiff's mother took that drug as prescribed from September 1962 through January 1963, during which time she remained under defendant's care. During the course of treatment of plaintiff's mother, Krikorian performed one pregnancy test, reported as negative, on September 22, 1962. He never repeated that test, despite the fact that plaintiff's mother missed her December and January menstrual periods.
Plaintiff was conceived while his mother was on the prescribed Tofranil medication. He was born on July 2, 1963 with numerous birth defects, allegedly the result of his mother's ingestion of Tofranil. Plaintiff retained an expert who prepared a report which concluded that Krikorian's actions were below accepted medical standards and constituted a deviation from acceptable medical standards at the time he was treating plaintiff's mother. The report pointed out that she was in her childbearing years and defendant did not take adequate steps to assure that plaintiff's mother was not pregnant when he prescribed the drug, or consider her possible pregnancy thereafter and advise her of the dangers of an adverse reaction from the drug. Plaintiff's attorney submitted his expert's report dated
August 30, 1985 to defense counsel during the course of discovery. That report stated, inter alia:
It is my opinion upon completion of my review of Dr. Krikorian's deposition that the physician did perform his duties below accepted medical standards because at no time was he completely satisfied that this patient was not pregnant. Since the patient was not on birth control devices as far he knew she was able to conceive, therefore, it is my opinion that it was below accepted medical standards for the physician to continue to prescribe such medicines since the patient herself apparently was doing nothing to prevent pregnancy nor was he completely satisfied that she was not pregnant. Therefore, the possibility and even the probability that these drugs might cause teratogenesis*fn1 and fetal harm was significant.
It is my opinion from reading John Bellardini's deposition that the malformations that he has suffered have been considerable and certainly emotionally damaging.
In summary, upon completion of my review of these additional records my initial opinions [sic] that Dr. Krikorian performed his duties below accepted medical standards by prescribing drugs while not certain that the patient, Loretta Bellardini, was not pregnant consisted of performing his duties below accepted medical standards. Although initially a pregnancy test was taken and shown to be negative it is my opinion that this did not absolve Dr. Krikorian of his guilt in continuing to prescribe medications that were teratogenic since the patient could become pregnant at anytime thereafter. Furthermore, failing to repeat the pregnancy test several times while prescribing these drugs was a deviation from accepted medical standards.
Plaintiff's expert was deposed and stated unequivocally in response to defense counsel's question that defendant violated "the standard of medicine which existed in 1962." The plaintiff's witness said in those depositions that it was essential for a doctor to question and inquire about pregnancy or possible pregnancy when a drug that is known to affect fetal development in the first trimester is prescribed. Defense counsel pressed the witness at the deposition with respect to the existence of the standard in 1962 and asked "can you prove that to me?" The witness answered:
No, sir. I don't have any manuals that would state that but it was known at that time that drugs could affect a first trimester of pregnancy, I would have to go back and get literature and it ...