On appeal from the Superior Court, Law Division, Mercer County.
R. S. Cohen and Landau. The opinion of the court was delivered by Cohen, R.s., J.A.D.
This is a medical malpractice case. The complaint asserted that defendant's deficient care was responsible for the premature birth and resulting death of a newborn infant. Recovery was sought for both lifetime damages and wrongful death. The jury found that defendant was negligent, but also concluded that his negligence was not the proximate cause of the lifetime damages or the death of the infant. Plaintiffs appealed, asserting that the court erroneously instructed the jury on the issue of causation. We agree and therefore reverse.
Plaintiff Jamie Scafidi had a difficult pregnancy, including two brief hospitalizations. On July 7, 1982, when she was about seven months pregnant, she visited her obstetrician, Dr. Franzoni, complaining of heavy bleeding. He sent her home to bed, said there was a danger of premature labor, told her to call with any problems and warned her she was "sitting on a time bomb." Later that day, Jamie experienced cramping and called Dr. Franzoni, but he was unavailable. She spoke to his associate, defendant Dr. Seiler, who was covering. She related her difficulties and told him what Dr. Franzoni had advised her to do. She said she was not then bleeding and her cramps were irregular. He told her she had an irritable uterus and prescribed orally administered medicine to "calm it down." He advised her to keep a prearranged appointment the next morning with Dr. Franzoni. The medicine prescribed by defendant, when taken orally, is ineffective as tocolytic therapy, whose goal is to arrest premature labor.
Next morning, still suffering from cramping, Jamie went to see Dr. Franzoni. After discovering that she was dilated three centimeters, he sent her to the hospital. There, unsuccessful efforts were made to arrest labor. The baby was born at 28
weeks weighing two pounds, six ounces, and died two days later of Respiratory Distress Syndrome, a condition peculiar to preterm infants.
On behalf of plaintiffs, Dr. Marshall Klavan testified that defendant deviated from accepted standards of practice by not immediately hospitalizing Jamie to evaluate whether she was having labor pains, and, if so, to begin tocolytic therapy to halt the premature labor. Effective tocolytic therapy, he said, involved intravenous medication and thus required hospitalization. The medicine defendant prescribed for oral administration was ineffective for the purpose. Defendant's deviation, according to Dr. Klavan, "directly related to the premature birth" of the infant and thus to her death from prematurity. According to Dr. Klavan, timely tocolytic therapy available in 1982 was 75 to 80% successful in halting preterm labor.
Dr. Richard Berman testified for defendant. In addition to supporting the care afforded Jamie by defendant, Dr. Berman said that hospitalization and tocolysis on the evening Jamie telephoned defendant would not have changed the outcome in any way. He believed the labor would have gone to delivery no matter what defendant did. In his view only 25% of women will respond to tocolysis, and nobody could tell if Jamie's labor would have ceased if she had received earlier tocolytic therapy. Dr. Berman was asked if it was not true that the longer the delay in appropriate tocolytic therapy, "the more there is a substantial increase in the risk that the baby will be born prematurely." He first responded that he agreed with the concept, "but there is something wrong with it." He explained that determining whether to institute tocolysis "is the biggest problem." Ultimately, he stated:
And I think that retrospectively the sooner it had been started the better it would have been for her. But I can't say more than that.
Plaintiff requested that the court charge the jury as to causation in accordance with Evers v. Dollinger, 95 N.J. 399 (1984). The court declined to do so because it believed that
"this is not an Evers case." The instruction requested ...