On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication November 6, 1995.
Before Judges Skillman, P.g. Levy and Eichen. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by: Skillman
The opinion of the court was delivered by SKILLMAN, J.A.D.
This is an appeal from the dismissal of a medical malpractice action. Plaintiffs allege that defendant, who was Mrs. Gardner's obstetrician, failed to diagnose a defect in the umbilical cord leading to the fetus being carried by Mrs. Gardner, and as a result, defendant failed to induce an early delivery that would have offered the fetus an opportunity to survive. The trial court dismissed at the close of all evidence on the ground that plaintiffs had failed to present evidence of a proximate causal relationship between defendant's alleged malpractice and the death of the baby.
Mrs. Gardner, who was then thirty years old, became pregnant in May 1988 and was due to deliver on January 20, 1989. Since she had suffered two prior miscarriages and was taking fertility drugs, Mrs. Gardner's pregnancy was characterized, at least for certain purposes, as "high risk." However, the actual course of her pregnancy was routine.
The alleged malpractice occurred at a regularly scheduled visit to defendant's office on December 21, 1988, approximately one month before the anticipated delivery date. According to Mrs. Gardner, she informed defendant at that time that she had "noticed the slowing down of my baby's activity ... and ... had a watery discharge ... that started to occur that day ... that I had never had before." Defendant responded that neither of these observations were causes for alarm and took no further action.
According to Mrs. Gardner, the fetus was less active than normal during the next three days, then became more active on December 25, 1988, but stopped moving completely after that date. Consequently, she called defendant on the morning of December 27, 1988, and went to his office shortly thereafter. Defendant examined Mrs. Gardner and had an ultrasound scan and a biophysical profile conducted. Those tests revealed that the baby had died in the uterus. Defendant induced the delivery of the dead fetus the next day.
Plaintiffs alleged that defendant committed malpractice by failing to perform a "nonstress test" and "biophysical profile" after Mrs. Gardner reported during the December 21, 1988, office visit that she had noticed decreased activity of the fetus and had a watery discharge. Plaintiffs presented two expert witnesses to support their malpractice claim, Dr. James Lewis, a forensic pathologist, and Dr. Marvin Kalafer, an obstetrician.
Dr. Lewis testified that the cause of the baby's death was that the umbilical cord was less than normal length and connected "at the edge" rather than in the middle of the placenta. As a result, the fetus failed to receive adequate oxygen and nutrients. Dr. Lewis indicated that the baby had been dead for two or three days prior to being delivered on December 28, 1988, making the probable date of death December 25, 1988. Dr. Lewis further indicated that the baby was "normal," although its organs were "slightly smaller" than would be expected at Mrs. Gardner's stage of pregnancy. The only opinion Dr. Lewis expressed regarding the condition of the fetus on December 21, 1988, was that it was "alive." Dr. Lewis did not express any opinion regarding the care that defendant provided to Mrs. Gardner.
The testimony of plaintiffs' other liability expert, Dr. Kalafer, was presented by a videotaped deposition. See R. 4:14-9. Dr. Kalafer testified that Mrs. Gardner's "marked decrease in fetal activity" was "very significant" because "it is something that often alerts the physician that there might be a potential problem." He also expressed the opinion that defendant's failure to perform any tests when Mrs. Gardner reported a decrease in fetal activity constituted a deviation from the accepted standard of prenatal care:
I feel that ... in this setting, a patient who is considered a high-risk individual who has had miscarriages in the past who has received extra medication during pregnancy, that it was important to follow-up on that particular complaint of a patient and perhaps perform a study which would help determine if the baby was in an environment that was normal. Specifically, I feel it would be important to perform a nonstress test along with the biophysical profile at that time.
When asked whether the baby would have survived if it had been delivered on December 21, Dr. Kalafer testified:
I don't know. However, if one would have performed a study and if that study indicated that there was a smoldering in utero environment, one would have acted on that and most likely the baby would have been able to survive on the outside being given the fact that even though this is not a term baby, it is very close to term; and in the setting such as a neonatal intensive care unit, one could monitor the baby, and the biggest concern really at that point might be lung maturation.
Plaintiffs' counsel then asked the following question:
Do you have an opinion held to a reasonable degree of medical probability as to whether it was probable that if Dr. Pawliw performed tests on the day of December 21, that it would have shown ...