On appeal from the Superior Court, Appellate Division.
For affirmance -- Justices Pollock, O'Hern, Handler and Stein. Dissenting -- Justices Clifford and Garibaldi. The opinion of the Court was delivered by Handler, J. Clifford, J., dissenting in part. Justice Garibaldi joins in this partial dissent.
[116 NJ Page 8] In this case, Ruth Cogdell, while under the care of Dr. Brown, an obstetrician, gave birth by an emergency cesarean section. The baby suffered permanent injuries at or shortly after her birth. She was diagnosed as having cerebral palsy of the severest spastic quadriparetic type with microcephaly and
mental retardation.*fn1 Mrs. Cogdell instituted a lawsuit on her own behalf, and as guardian ad litem, on behalf of her child, against Dr. Brown, and later against Dr. Snead, the emergency-room pediatrician. No other parties were named as defendants. Plaintiff's theory of the case was that the child's injuries were caused by Dr. Brown's negligent delay in deciding to perform the cesarean section and were further aggravated by improper resuscitation efforts by Dr. Snead.
The case was tried to conclusion, with the jury returning a verdict in favor of both defendants. Plaintiff then filed a notice of appeal. The appeal was dismissed in an unpublished opinion, the court concluding that it was barred under the terms of a settlement agreement that had been reached by the parties during the jury deliberations. Challenging only the issue of the preclusive effect of the settlement agreement, plaintiff filed a petition for certification to this Court, which was denied. 114 N.J. 517 (1989).
While the appeal was pending, plaintiff commenced a second action against the hospital, members of the operating team, and several hospital administrators. In this case, she alleged that the delay in performing the cesarean section, and the infant's resultant injuries, were caused by the negligence of these defendants in assembling the operating team necessary to assist in the delivery. The defendants moved to dismiss the action asserting that the entire controversy doctrine mandated their joinder as parties in the earlier action and therefore the current lawsuit against them was barred. Their motion was denied. Defendants then moved for leave to appeal, which was denied by the Appellate Division. Defendants filed a petition
for certification, which this Court treated as a motion for leave to appeal and granted. 110 N.J. 519 (1988).
The first action, Cogdell v. Brown, 220 N.J. Super. 330 (App.Div.1987), was brought by plaintiff against only the obstetrician and pediatrician on the theory that these doctors were guilty of professional negligence that caused the infant's serious injuries. Evidence of such negligence was suggested by the information disclosed in separate reports prepared by plaintiff's two expert medical witnesses. The first was submitted by Dr. Mandelman in July 1984, who after noting that the patient was obviously and appropriately prepared for a cesarean section before Dr. Brown arrived, concluded that Dr. Brown's delay in starting the operation was "exceedingly prolonged and . . . blatantly deviant." In his opinion, the delay from the arrival of the patient on the labor floor to the time of delivery constituted a "deviation from good and accepted medical practice . . . [and] this delay . . . is the substantial cause of the Cogdell infant's present state."*fn2 The second report, dated March 1985, prepared by Dr. Klaven, reached a similar conclusion.*fn3
Dr. Brown contended that he had not deviated from the accepted standard of medical care. Nevertheless, during his deposition in May 1985, Dr. Brown testified that there had been a delay in performing the cesarean section because of difficulty in assembling the operating team. Specifically he testified that he made the decision to perform an emergency cesarean section shortly after seeing Ruth Cogdell around 9:30 p.m. and began to assemble the required surgical team at that time. Dr. Brown could not "recall" how long it took the anesthesiologist or the pediatrician to arrive at the hospital but that "[t]here was a significant delay between the time of the decision that the cesarean was made and the time it was actually done, and we had to assemble the team, getting the nurses in and all that. That caused some problems." The evidence also revealed that the operation did not commence until approximately 11:00 p.m.
The plaintiffs then deposed all members of the operating team, along with Dr. Jones, the Chairman of the OB/GYN Department, between August and December 1985. The anesthesiologist and two operating nurses were relatively unspecific about their recollection of any delay in their own responses to the request to come to the hospital to perform the delivery. Similarly, in his deposition, Dr. Snead, the pediatrician, was unspecific about any delay but recalled no difficulty in arriving at the hospital that night. Dr. Jones did not indicate whether there was a delay in this case, although his testimony suggested there was probably none.
Nevertheless, there was additional evidence relating to the delay in undertaking the operation. A second obstetrician, Dr. Pinderhughes, in his deposition in October 1985, said that in reviewing the hospital records he observed that "it appears that there may have been a delay" in the delivery of the baby, although he did not explain the delay; moreover, he knew of no policy that set forth a time constraint for doing emergency cesarean sections in 1982. Further, in February 1986, Dr. Brown submitted a second report by another expert witness, Dr. Greenwald. After examining the hospital records, the
reports of other expert witnesses, the plaintiff's and the defendants' answers to interrogatories, and Dr. Brown's and Ruth Cogdell's depositions, this expert reached the conclusion that there was delay attributable to the hospital and its staff.*fn4
The trial occurred in June 1987. The plaintiff proceeded only on the theory that the doctors were negligent. Dr. Brown was assertedly negligent because he did not decide to do a cesarean section immediately on arrival and he delayed in calling a surgical team together while he tried to induce natural labor. Plaintiff attempted to show that there was a period between Dr. Brown's initial examination and the time that the decision to operate was made. Plaintiff cross-examined Dr. Brown at length on whether he had initially tried to induce labor instead of making an immediate decision to operate to show that the delay was negligent. However, there was some indication that there were additional reasons for the delay. In plaintiff's cross-examination of Dr. Jones, he testified, contrary to his deposition and direct testimony, that there were problems assembling delivery teams at the hospital and that, on occasion, it took more than one hour to assemble an operating team.
As noted, following the jury's verdict in favor of defendants, plaintiff brought a second action against the hospital and its
staff, the subject of this appeal. She charged these defendants with negligence in causing the delay that prevented the timely performance of the cesarean delivery with the resultant injuries to the newborn. Defendants contended that plaintiff knew at least two years before the first lawsuit was tried that Dr. Brown blamed the hospital for the delay in arranging for the cesarean section; moreover, plaintiffs had ample opportunity to amend their complaint to join the hospital and its responsible staff personnel as party-defendants when they added Dr. Snead in May 1986 as a defendant. As a result, plaintiffs should not be allowed "a second bite at the apple." Defendants argued without success that under these circumstances the entire controversy doctrine required such joinder and that the failure to join bars this second lawsuit based on essentially the same legal controversy.
The issue on appeal is whether plaintiff was required to have joined as party-defendants the hospital and its staff in its original action against the obstetrician and pediatrician, and, if so, whether the failure to join these defendants operates as a bar to a second independent action against them. We are directed in the first instance to our Rule of practice, Rule 4:28-1(a), which governs the joinder of parties in New Jersey. It provides in part:
A person who is subject to service of process shall be joined as a party to the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest in the subject of the action and is so situated that the disposition of the action in his absence may either (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or other inconsistent obligations by reason of his claimed interest.
This rule of mandatory joinder is not self-defining. Its provisions, however, do not suggest it would mandate joinder of these current defendants. Under the Rule's literal language, plaintiff and the defendants in the prior action could have
secured complete relief between themselves without the current defendants. R. 4:28-1(a)(1). Nor is it apparent that the absence of the current defendants left them unable to protect their interest, their ability to disprove allegations of their own negligence, or adversely affected the obligations of any of the parties in the earlier action. R. 4:28-1(a)(2)(i), (ii).
In addition to the party-joinder Rule, Rule 4:5-1, is a pleading Rule that requires that if there is another pending action involving the same cause of action, the parties in that other action must be identified.*fn5 The Rule also requires the identification of "any other party who should be joined" without, however, otherwise defining this obligation. The Rule also contemplates that if during the litigation a person is discovered who might be required to be named, then the plaintiff should notify the court and parties, and the court itself might compel joinder. The Rule does not specify grounds for joinder nor does it indicate that a failure to notify under those circumstances will have any preclusionary effect.
Rule 4:5-1 was adopted following the decision of this Court in Crispin v. Volkswagenwerk, A.G., 96 N.J. 336 (1984). There, we determined that the entire controversy doctrine could bar an independent action against a party whose interest in that action was the same as that in a pending action but who had not been joined in the pending action. Crispin, however, did not
directly address the issue of whether the failure to join such a party in an action, once that action has been concluded, can serve to bar a subsequent litigation against that party involving the same legal controversy. This case poses that situation, and we are impelled to ...