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Gendek v. Poblete

Decided: January 21, 1994.

JEAN GENDEK, ADMINISTRATOR AD LITEM OF THE ESTATE OF GREGORY GENDEK AND JEAN GENDEK AND STANLEY GENDEK, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ESTRELLA POBLETE, C. GRAUER RAQUEL ABARY, ANTHONY BIRCHMAN, MERCER MEDICAL CENTER, MARY ANN FARLEY, P. PHILLIP, D. JOHNSON, JEAN MAGAULLIRI, TRACY GERGEL, THE ABC CORPORATION AND JOHN DOES I THROUGH V AND JANE DOES I THROUGH V, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Mercer County.

Shebell, Long and Landau. The opinion of this court was delivered by Long, J.A.D.

Long

On June 19, 1989, Plaintiffs, Jean and Stanley Gendek, filed a complaint in their individual capacities and as administrators ad litem of the Estate of Gregory Gendek against Estrella Poblete, an obstetrician; C. Grauer, a resident or mid-wife; Raquel Abary, a pediatrician; Anthony Birchman, a pediatrician; Mercer Medical Center; Mary Anne Farley, P. Phillips, D. Johnson, Jean Magaulliri; Tracy Gergel and other nurses employed by Mercer Medical Center.*fn1

The complaint claimed medical and nursing malpractice (Count I), administrative negligence (Count II), and negligent infliction of

emotional distress (Count III) arising out of the birth and subsequent death of Gregory Gendek. Defendant answered the complaint and in December 1992, Mercer Medical Center filed a motion for partial summary judgment seeking dismissal of Count III. Plaintiffs opposed the motion which was granted by Judge Yaskin. Plaintiffs moved for leave to appeal which we denied in April 1993 "without prejudice to plaintiff making an application to the Law Division for reconsideration in light of the recent Supreme Court decision in Carey v. Lovett,*fn2 decided April 6, 1993." Plaintiffs moved for reconsideration. Judge Yaskin reaffirmed the dismissal of the claim for emotional distress. Plaintiffs again moved for leave to appeal which we granted.

I

Gregory Gendek was born on September 27, 1987 at Mercer Medical Center. Shortly after the birth, Gregory was admitted to the Newborn Nursery. At that time it was noted that he had a hematoma on the left side of the forehead. Between 10:00 a.m. and noon, Gregory had three episodes of duskiness (blue-grey coloring), but he returned to normal upon stimulation and suction. Hospital records contain a notation that at 1:35, no such reflex appeared. Despite the observation and recording of color change and absence of such reflex, no nurse ever contacted the staff neonatologist, although a neonatologist is on duty in the hospital twenty-four hours a day. Neither of Gregory's parents, the plaintiffs, were aware of Gregory's color changes in the nursery until after Gregory's health turned worse the following day.

Gregory spent his first day of life with his mother, Jean Gendek and father, Stanley Gendek in his mother's hospital room. The infant appeared well and strong to his parents. Hospital records note that Mrs. Gendek was caring for her baby at 2:00 p.m. At 4:00 p.m., the records note that Mrs. Gendek was holding and cuddling the baby and that Mr. Gendek and other visitors were in

the room with them. At this point Mrs. Gendek's mother-in-law commented that the baby's hands and feet were purple. Mrs. Gendek pointed this out to an unidentified nurse who told her the baby was fine and that he just needed to be covered up with two blankets. The nurse wrapped up the baby and returned him to Mrs. Gendek. Mrs. Gendek did not notice any other incident of discoloration. Mrs. Gendek never noticed any discoloration around the baby's face. The infant stayed with Mrs. Gendek at least until 8:00 p.m. and possibly until 10:00 p.m.

On the morning of September 28, Mrs. Gendek woke up around 6:00. She walked down to the hospital nursery to see Gregory who appeared to be fine. He was on his stomach with a blanket on his back, covered up to his neck. He was wearing a little hat.

Mrs. Gendek returned to her room and ordered breakfast. Back in the nursery, Tracy Gergel, a nurse and co-defendant, discovered Gregory Gendek unresponsive in his bed at 8:00 a.m. She called co-defendant Jean Magaulliri, R.N., and started to give the infant oxygen. Nurse Magaulliri started CPR. The baby was transferred to the High Risk nursery and a code was called. ...


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