On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Before Judges Havey, A.m. Stein and A.a. Rodriguez.
RODRIGUEZ, A. A., J.S.C. (temporarily assigned)
We affirm the judgment of involuntary dismissal at the end of the plaintiffs' case. We hold that the testimony of an expert witness on direct examination regarding the standard of care in a medical malpractice case is nullified when on cross-examination the witness clearly and unequivocally abandons it.
When Mary Ann Ritondo became pregnant with her third child, she came under the care of Bernard Pekala, M.D., a specialist in obstetrics and gynecology. She informed Dr. Pekala that she had been diagnosed with Class B (insulin dependent) diabetes. Because he considered her pregnancy to be high risk, he directed her to visit Garden State Hospital regularly for antenatal testing. She followed his instruction and for thirty-six weeks of gestation showed no signs of complications.
However, while Mrs. Ritondo was undergoing one of her last antenatal tests, the nurse noticed an abnormality in the fetal heartbeat. The nurse promptly notified Dr. Pekala, who directed the patient to check immediately into Cooper Hospital where he would induce delivery.
Dr. Pekala induced labor. Despite encountering complications and the presence of meconium staining, he allowed Mrs. Ritondo to deliver vaginally.*fn1 At birth, baby Alexander appeared purple and unhealthy. One hour after birth, he was inactive and unresponsive. He remained in the intensive care unit for thirty days. Alexander underwent surgery to have a fluid-draining shunt placed in his head, which remains there today.
Alexander's parents observed that he was not developing normally after he was released from the hospital. His physical and motor development was noticably delayed. At age two, he was enrolled in a special education class, and is currently in the handicapped children's program at school. Alexander is now nine years old, seriously disabled and difficult to control.
The Ritondos filed a medical malpractice action against Dr. Pekala*fn2 and retained Saul Jeck, M.D., an OB/GYN, as their medical expert.
Dr. Jeck testified that Dr. Pekala deviated from medically accepted standard of care when: (1) he induced delivery without conducting tests to determine the maturity of the infant; (2) once delivery was induced he failed to recognize fetal distress and asphyxia; (3) he failed to perform an emergency cesarean section (C-section); and (4) he failed to consult a diabetes specialist prior to inducing delivery. His testimony tracked his written report.
On cross-examination he retreated entirely from his previous opinions. He readily and plainly admitted that, under the circumstances, it was a reasonable decision for Dr. Pekala not to perform a C-section but to allow Mrs. Ritondo to continue to labor. With this admission he effectively retracted deviations two and three as the following colloquy illustrates:
Q. So that, in this case, Dr. Jeck, you agree under the circumstances and the facts of this case that it was reasonable for Dr. Pekala to allow this lady to labor and not do a C-section, even though you would have done to the contrary?
A. Yes. If the monitor strips did not show any fetal distress for any period of time, and there were no decelerations, and there was good baseline variability, then I would agree that the doctor could continue with the labor without intervening.
Q. I'm talking about this fetal distress, this particular fetus, this fetal monitoring strip, these decelerations, this variability, this case.
Q. Not if other things were true, but what's factually true according to your understanding of ...