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Battenfeld v. Gregory

Decided: May 2, 1991.


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

Deighan, Baime and Arnold M. Stein. The opinion of the court was delivered by Baime, J.A.D.


Plaintiff Darleen Battenfeld instituted this action against her obstetricians defendants Thomas Gregory and James Tabasso, claiming that they were negligent in failing to diagnose her infectious ruptured appendix in a timely fashion. Plaintiff claimed that the delay in surgically removing her appendix resulted in severe pelvic adhesions and the consequent loss of fertility. Following a lengthy trial, the jury found both physicians negligent and awarded plaintiff $246,400 and her husband $24,640 on his per quod claim. We find substantial errors in the trial court's charge and thus reverse the judgment.


Because the issues raised on this appeal concern solely the trial court's jury instructions, we need not recount the facts at length. Plaintiff became pregnant in 1984 and came under the

care of defendants, who specialize in obstetrics and gynecology. Defendants had previously treated plaintiff during her earlier successful pregnancy.

On December 18, 1984, plaintiff, who was then approximately five months pregnant, began experiencing severe nausea, vomiting and diarrhea. She immediately contacted defendants' office and was told by a receptionist to take an over-the-counter drug. On December 20, plaintiff began experiencing sharp abdominal pains. Plaintiff was taken to a nearby Coast Guard base clinic where she was examined by a medical officer. Recognizing that plaintiff was very ill, the physician contacted Dr. Gregory who agreed to meet her at the Shore Memorial Hospital.

Shortly thereafter, plaintiff was examined in the emergency room by Dr. Gregory and Dr. George Robb, a consulting surgeon, and was admitted to the maternity ward. At approximately 10:30 p.m., plaintiff began to miscarry. Dr. Gregory was present with plaintiff in the labor room, but left to change his clothes after her "water broke." He was not present when the fetus and placenta were delivered. These were sent to the pathology department for evaluation. A pathology report was later prepared, indicating that "[t]he placenta appears incomplete" and a "[c]linical correlation is suggested."

Plaintiff's symptoms greatly improved over the next 48 hours. At approximately 9:00 a.m. on December 22, she was seen by Dr. Tabasso. During the visit, plaintiff noted that she was feeling much better and wanted to go home to be with her family. Dr. Tabasso recommended that she remain in the hospital until her temperature was normal for 24 hours. He volunteered, however, that she could "sign herself out" of the hospital if she executed a form acknowledging that she was leaving "against medical advice." At trial, plaintiff testified that she would have remained in the hospital had she known that her temperature, elevated white blood cell count and rapid pulse were suggestive of a serious underlying infection. Dr. Tabasso

allegedly failed to apprise her of this information and she therefore executed the release and discharged herself from the hospital.

Plaintiff remained at home for the next five days. However, on December 27, Dr. Gregory, having reviewed plaintiff's file and noting her elevated white blood count, directed her to come to his office immediately. On the doctor's advice, plaintiff was readmitted to the hospital where a dilation and curettage was performed. Her condition deteriorated markedly on December 28 and 29. On December 31, the doctor performed an exploratory laparotomy, expecting to find an infection in plaintiff's reproductive system. Instead, the surgery revealed a ruptured appendix, which was then removed. According to the doctors, the appendix was retrocecal, i.e., situated behind the cecum and slightly displaced from its normal location in the body.

After recovering from the surgery, plaintiff was discharged on January 5, 1985. Although her recovery initially appeared to be complete, plaintiff's attempts to have additional children were unsuccessful. At trial, plaintiff contended that her reproductive organs were permanently damaged by defendants' failure to timely diagnose and remove her ruptured appendix. In support of this theory, plaintiff's expert testified that defendants' negligence allowed the ruptured appendix to fester for some 11 days. According to the witness, "the longer an inflammatory process is [permitted] to dwell within the abdomen," the greater the body responds by developing adhesions. According to Dr. Edwin Jones of the Yale Fertility Clinic, the extensive scarring that resulted did not prevent ovulation or conception, but instead precluded a fertilized egg from implanting in the womb, resulting in infertility.

Defendants denied that they were negligent in failing to timely diagnose plaintiff's condition. They urged that because the appendix was displaced from its normal location, the natural and reasonable assumption was that plaintiff's symptoms ...

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