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Gardner v. Pawliw

July 14, 1997

LINDA GARDNER AND THOMAS GARDNER, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
MYRON PAWLIW, M.D., DEFENDANT-RESPONDENT, AND JOHN DOE, SAID NAME, JOHN DOE, BEING FICTITIOUS, JOINTLY, INDIVIDUALLY AND IN THE ALTERNATIVE, DEFENDANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 285 N.J. Super. 113 (1995).

The opinion of the Court was delivered by Stein, J. Chief Justice Poritz and Justices Handler, O'hern, Garibaldi, and Coleman join in Justice STEIN's opinion. Justice Pollock has filed a separate Dissenting opinion.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Linda Gardner, et al. v. Myron Pawliw, M.D., 150 N.J. 359, 696 A.2d 599 (1996).

Argued January 6, 1997 -- Decided July 14, 1997

STEIN, J., writing for a majority of the Court.

The issue in this appeal is whether the trial court erred in dismissing plaintiffs' complaint for medical malpractice. The complaint alleges that the treating obstetrician negligently failed to perform certain diagnostic tests, thereby increasing the risk of harm from a preexistent condition which resulted in the ultimate demise of a nearly full-term fetus.

On June 1, 1988, plaintiff Linda Gardner, six weeks pregnant, consulted with Dr. Pawliw, a board-certified obstetrician and gynecologist. Mrs. Gardner was referred to Dr. Pawliw after requesting a recommendation for an obstetrician with experience treating high-risk pregnancies and infertility problems. During the initial meeting, Mrs. Gardner explained in detail her prior gynecological and obstetrical history, which included two first-trimester miscarriages and the use of fertility drugs to help achieve pregnancy. Mrs. Gardner expressed her desire for "special care" to help maintain her pregnancy, and Dr. Pawliw assured her that he had had experience treating previously infertile and high-risk patients.

Mrs. Gardner continued to receive treatment at a fertility clinic in Philadelphia during her pregnancy. Dr. Pawliw was aware of the clinic's treatment of Mrs. Gardner, but did not assume responsibility for its management.

From June through November, Dr. Pawliw saw Mrs. Gardner on a monthly basis. Her due date was January 20, 1989. Beginning in the third trimester, Mrs. Gardner saw Dr. Pawliw every two weeks.

On December 21, 1988, Mrs. Gardner noticed a significant decrease in the frequency of fetal movement and a watery vaginal discharge. Later that day, at her regularly scheduled appointment with Dr. Pawliw, Mrs. Gardner described her symptoms and expressed her concerns. She testified that Dr. Pawliw acted impatiently towards her, and had difficulty finding the fetal heart beat. Dr. Pawliw attempted to reassure her that the fetus was sleeping and there was nothing wrong. Dr. Pawliw did not perform any other diagnostic tests during the visit.

From December 21 through December 24, 1988, Mrs. Gardner experienced the same level of decreased fetal movement. On December 25, Mrs. Gardner noticed increased fetal activity. On December 26, Mrs. Gardner did not notice any fetal movement and thought, based on the explanation previously offered by Dr. Pawliw, that the fetus was sleeping. On the morning of December 27, there was still no fetal movement. The Gardners immediately called Dr. Pawliw's office, and were told to come in and be examined. Dr. Pawliw failed to find a fetal heartbeat, although he did not so inform the Gardners. Dr. Pawliw sent the Gardners to a nearby facility for further testing. Dr. Pawliw eventually informed the Gardners by telephone that the fetus had died, and asked the Gardners to come to his office later that evening to discuss the various options for delivering the dead fetus. A nurse delivered the stillborn fetus.

This action followed. The complaint alleged that Dr. Pawliw's failure to perform diagnostic tests, specifically a Non-Stress Test and a Biophysical Profile, on December 21, 1988, after Mrs. Gardner had informed him of the decreased fetal movement and watery discharge, had caused an increased risk that the fetus would not survive and that the increased risk was a substantial factor in the fetus's death.

At trial, Mrs. Gardners' key expert on causation, Dr. Kalafer, testified by videotaped deposition. Dr. Kalafer stated that given Mrs. Gardner's history, Dr. Pawliw's failure to perform any tests when Mrs. Gardner reported a decrease in fetal activity on December 21, 1988, constituted a deviation from the accepted standard of prenatal care. When asked for his opinion as to whether Dr. Pawliw's failure to conduct testing on December 21 increased the risk that the baby would die, Dr. Kalafer stated, "If a study would have been performed such as the nonstress test and biophysical profile, one could utilize that information; and if it was abnormal, the baby could have been delivered most likely in a setting more appropriately, and the baby could most likely live in the outside world." On cross-examination, Dr. Kalafer admitted that because no testing was done, he could not state "within a reasonable degree of medical probability" that the tests would have revealed a problem had they been performed on December 21, 1988.

Dr. Pawliw's expert, Dr. Wilchins, testified that "as a medical certainty," the result of any testing on December 21, 1988, had it been performed, would have been perfectly normal. He based this Conclusion on the fact that the ultrasound performed on December 27, 1988, showed a normal amniotic fluid, as well as the autopsy finding that the fetus and placenta exhibited only faint meconium staining. Dr. Wilchins testified that given these results, the fetus had been severely stressed only for twenty-four to forty-eight hours before death, not a week earlier.

At the close of Dr. Pawliw's case, defense counsel moved for dismissal pursuant to Rule 4:40-1. The trial court granted the motion, holding as a matter of law that the Gardners had failed to show a causal connection between the failure to administer the tests and the death of the fetus. The trial court noted that, without an abnormal test result there would have been no intervention. And, it further noted that the Gardners' expert, Dr. Kalafer, could not state that there was a "probability" that the tests would, in fact, have shown abnormalities. The trial court interpreted his testimony to establish only a "possibility" of such a result, which it found insufficient as a matter of law. The Appellate Division affirmed the trial court's dismissal of the complaint, relying on the Court's opinions in Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984), and Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990).

The Court granted the Gardners' petition for certification.

HELD: When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, a plaintiff is not required to demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate a reasonable degree of medical probability that the failure to give the test increased the risk of harm, which may be established even if such tests are helpful in only a small proportion of cases.

1. The Court has lessened the traditional burden of proof on a plaintiff asserting a medical-malpractice claim for establishing proximate cause in the case of a plaintiff suffering from a preexistent condition. In Scafidi, the Court established a two-prong test for proving causation in such cases, holding that evidence demonstrating with a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result. (pp. 21-27.)

2. A complication is presented when a physician's deviation from the prevailing standard of care consists of the failure to perform a diagnostic test, because that very failure may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed. The Gardners argue that when a physician fails to perform a standard or appropriate medical test, that physician should not benefit form an expert's inability to prove what the unperformed test would have revealed. The Court has previously rejected a requirement that plaintiff's proofs quantify the likelihood that the physician's failure to perform diagnostic tests would have avoided the harm, explaining that the possibility of avoiding harm is subsumed in the jury's Conclusion that the failure to test deviated from accepted practice and increased the risk of harm. (pp. 27-38.)

3. Where it is a deviation not to perform a diagnostic test, but it is unknown whether the test results would have helped to diagnose or treat a preexistent condition, the plaintiff is not required to demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition. The Court reaches that Conclusion to avoid the unacceptable result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary uncertainties that the failure to test created. The testimony of the Gardners' expert here was sufficient to satisfy their threshold burden of proof. They should have been permitted to submit for the jury's determination the questions of whether, based on the parties' expert testimony, the failure to give the tests had increased the risk that the fetus's condition would not be detected, treated or corrected and whether that increased risk had been a substantial factor in causing death. (pp. 38-41.)

4. In holding that the Gardners' proofs were sufficient to present a jury question on causation, the Court does not imply that the likely significance of the test results is irrelevant to the outcome of the litigation. Under the second prong of Scafidi, the jury must weigh the testimony and other evidence presented at trial and determine whether any increased risk due to the failure to test was a substantial factor in causing the fetus's death. Additionally, assuming that the jury finds that the failure to perform tests was a substantial factor causing the fetus's death, the jury would also be required to apportion fault according to comparative fault principles. (pp. 41-44.)

The judgment of the Appellate Division is REVERSED, and the matter is remanded to the Law Division for a new trial.

JUSTICE POLLOCK, Dissenting, is of the view that even under the majority's extension of the increased-risk test, the Gardners' case founders on the failure of their expert to offer anything more than a net opinion that the failure to conduct the diagnostic tests increased the risk that the fetus would die.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, and COLEMAN join in JUSTICE STEIN's opinion. JUSTICE POLLOCK has filed a separate Dissenting opinion.

The opinion of the Court was delivered by

STEIN, J.

The primary issue in this appeal concerns whether it was error for the trial court, following a three-day jury trial, to dismiss plaintiffs' complaint. That complaint alleged that the treating obstetrician had negligently failed to perform certain diagnostic tests, thereby increasing the risk of harm from a preexistent condition, which resulted in the ultimate demise of a nearly full-term fetus. The trial court acknowledged that plaintiffs had met their burden of proof concerning negligence, preexistent condition, and the potential for survival of the fetus had an early induction of labor been performed by the treating obstetrician. However, that court dismissed plaintiffs' complaint on the basis that plaintiffs had failed to prove a proximate causal relationship between defendant's alleged malpractice and the death of the fetus.

The Appellate Division affirmed the trial court's dismissal of the complaint. 285 N.J. Super. 113 (1995). That court concluded that plaintiffs had presented inadequate evidence on the issue of causation because their medical expert failed to express an opinion regarding (1) the fetus's condition on the day the obstetrician failed to perform certain diagnostic tests and (2) the probability or possibility that those tests would have revealed any abnormalities as of that date. We granted certification. 146 N.J. 496 (1996). We hold that the trial court erroneously precluded the jury from determining whether the obstetrician's failure to perform diagnostic tests increased the risk that plaintiffs' fetus would not survive and whether that increased risk was a substantial factor in causing the fetus's death.

I

On June 1, 1988, plaintiff Linda Gardner, six weeks pregnant, consulted defendant Dr. Myron Pawliw, a board-certified obstetrician and gynecologist. Gardner had sought a recommendation from the Princeton Medical Center for an obstetrician with experience treating high-risk pregnancies and infertility problems. She was referred to Dr. Pawliw. During the initial meeting, Gardner explained in detail her prior gynecological and obstetrical history, which included two first-trimester miscarriages and ongoing treatment for a hormonal insufficiency known as luteal phase defect. She expressed her desire for "special care" to help maintain this pregnancy, emphasizing that she was quite anxious that she might suffer another miscarriage. Dr. Pawliw assured her that he had had experience treating previously infertile and high-risk patients. He stated that he could help her achieve a successful pregnancy. Gardner received continued supervision and hormonal monitoring by a fertility clinic in Philadelphia during the first trimester of her pregnancy. That supervision was necessary because Gardner had taken fertility drugs to help achieve the pregnancy. Her use of fertility drugs had required close monitoring by the fertility clinic of her hormonal levels and follicle development before she became pregnant. Following Gardner's discovery that she was pregnant, the clinic continued to monitor her progesterone level to help support the pregnancy, as required by her luteal phase defect. Gardner travelled twice weekly to the Philadelphia clinic for testing of her hormone progesterone serum levels. In the first trimester of pregnancy progesterone is normally produced by the corpus luteum, the follicle that remains following the release and fertilization of an ovum. Women with luteal phase defect fail to produce sufficient progesterone to maintain a pregnancy, and thereby require a progesterone supplement, which can be ingested orally, inserted vaginally or injected by syringe. Throughout the first trimester, Gardner was required to use all three methods to sustain sufficient levels of progesterone.

Gardner continued to receive close monitoring of her progesterone levels beyond the first trimester, when the placenta normally takes over the production of the progesterone necessary to sustain the pregnancy. The clinic continued to monitor Gardner's progesterone levels by performing blood tests two times a week and supplemented her progesterone levels throughout the pregnancy. The parties dispute whether standard obstetrical protocol for luteal phase defect includes continued supplementation of progesterone beyond the first trimester, as was provided to Gardner. Dr. Pawliw was aware of the clinic's treatment of Gardner, but did not assume responsibility for its management.

From June through November, Dr. Pawliw saw Gardner on a monthly basis. Her due date was January 20, 1989. Defendant signed orders requiring Gardner to take a medical disability leave for the duration of the pregnancy. Reports from the fertility clinic following its performance of two ultrasound evaluations and an amniocentesis indicated normal fetal development. Early in the third trimester, Gardner saw Dr. Pawliw's associate after she experienced contractions. The contractions dissipated and Gardner's pregnancy continued normally. Beginning in the third trimester, Gardner saw Dr. Pawliw every two weeks.

On December 21, 1988, Gardner noticed a significant decrease in the frequency of fetal movement and a watery vaginal discharge. She had a regularly scheduled appointment with Dr. Pawliw later that day. Gardner testified that she had felt concerned during the appointment and that defendant had acted impatiently towards her. Dr. Pawliw performed an internal examination and determined that Gardner's cervix was partially effaced and dilated. He measured the height of the fundus, which serves as an indicator of fetal growth based on the growth of the uterus. Defendant also took Gardner's blood pressure and performed a urinalysis, which appeared normal. Gardner testified that Dr. Pawliw had had difficulty finding the fetal heartbeat, and that the fetal heartbeat had sounded different than at earlier visits. Dr. Pawliw indicated in his notes that he had found the fetal heartbeat and that it was normal. When Gardner voiced her concerns about the amount of time it took Dr. Pawliw to find the fetal heartbeat, Dr. Pawliw responded curtly, asking if she had always counted the time it took him to find the heartbeat. He told Gardner not to get too worried, warning her that she could develop high blood pressure if she was not careful. When Gardner continued to voice her concerns about the decreased movement, defendant attempted to reassure her by explaining that the fetus was sleeping and that there was nothing wrong.

Defendant did not perform any other diagnostic tests during that visit. The parties dispute whether defendant provided Gardner with any verbal instructions to count the episodes of movement that she experienced from morning until noon, and to call him if she failed to perceive at least ten episodes during that time period. Gardner contends that she received no such instructions, emphasizing that she would have followed any instructions to the letter given her anxiety concerning the fetus's well-being. Gardner acknowledged that defendant had given her written instructions concerning when to call him (if she had frequent contractions, started bleeding, her water broke or if she did "not know what was going on."). At the end of the visit, Gardner was reassured by defendant's remark that she might deliver the fetus as early as Christmas.

From December 21 through December 24, 1988, the same level of decreased fetal movement continued. On December 25, Gardner noticed increased fetal activity. On December 26, Gardner did not notice any fetal movement and thought, based on the explanation previously offered by Dr. Pawliw, that the fetus was sleeping. On the morning of December 27, Gardner and her husband perceived a complete lack of fetal activity. She immediately called defendant's office and was told to come in to be examined. Dr. Pawliw failed to find the fetal heartbeat, although he did not so inform Gardners. When Gardner suggested that the heartbeat that he had found was hers, not the fetus's, Dr. Pawliw told her that she was wrong. He sent the couple to a nearby facility for an ultrasound scan and biophysical profile. The results were not provided for several hours, although both Gardner and her husband made numerous phone calls to defendant's office. Defendant eventually informed the Gardners by telephone that the fetus had died and asked them both to come to his office later that evening to discuss the various options available for delivering the dead fetus. The Gardners elected to induce labor that evening by the use of prostaglandin suppositories. Dr. Pawliw told them that he would be there to help them through the delivery, but he missed the delivery. Instead, Gardner's husband and a nurse delivered the stillborn fetus.

On March 20, 1990, the Gardners filed a medical malpractice action against Dr. Pawliw, alleging that his failure to perform diagnostic tests, specifically a Non-Stress Test (NST) and Biophysical Profile (BPP), on December 21, 1988, after Gardner informed him of the decreased fetal movement and watery discharge, had caused an increased risk that their fetus would not survive and that the increased risk was a substantial factor in the fetus's death. *fn1 Plaintiffs also alleged that Dr. Pawliw's negligent failure to deliver the fetus had caused Linda Gardner's husband emotional distress. A jury trial was held between June 7 and June 10, 1994.

At trial, the Gardners presented testimony by two expert witnesses, Dr. James Lewis, a forensic pathologist, and Dr. Marvin Kalafer, a board-certified obstetrician and gynecologist. Dr. Lewis testified that the autopsy results had indicated that the fetus had died because of umbilical cord and placenta abnormalities. The umbilical cord had been shorter than normal and had attached on the edge, or margin, of the placenta, not in the center where it normally attaches. Additionally, the cord had been in a "filamentous" state, which had resulted in a superficial attachment to the placenta. As a result, the fetus had received an insufficient amount of nutrients and oxygen from the placenta, which eventually had resulted in its death. See 4C Roscoe N. Gray & Louise J. Gordy, Attorney's Textbook of Medicine § 305.51 (3d ed. 1990).

On cross-examination, Dr. Lewis noted that several of the fetus's internal organs, namely her heart, adrenal glands and kidneys had been smaller than average, falling within the lowest percentiles of fetal development at that stage of gestation. The fetus itself was of normal size. Dr. Lewis opined that the fetus had died on December 24 or 25, 1988. He concluded that the fetus "had to be" alive on December 21, 1988, due to the state of tissue samples analyzed during the autopsy.

Dr. Kalafer's expert testimony was presented by videotaped deposition. The Appellate Division described in detail the content of Dr. Kalafer's testimony and the issues that it generated:

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 any effects of the placental and cord abnormalities?

After an objection by defendant's counsel and colloquy among counsel and the witness, Dr. Kalafer responded:

My answer is yes.

I feel that if a study would have been performed, one could utilize that knowledge to help better manage the pregnancy. If the test would have been normal, it would have been reassuring. If the test would have been abnormal, then I believe one would have been pushed to deliver this baby."

When asked for his opinion as to whether defendant's failure to conduct testing on December 21 increased the risk that the baby would die, Dr. Kalafer stated:

If a study would have been performed such as the nonstress test and biophysical profile, one could utilize that information; and if it was abnormal, the baby could have been delivered most likely in a setting more appropriately, and the baby could most likely live in the outside world.

And when asked whether the baby's death was substantially caused by defendant's failure to conduct testing on that date, Dr. Kalafer answered:

If these studies were performed, it would have helped the doctor to continue the in utero life or basically either decide that this baby does not have to be delivered or just continue close monitoring.

On cross-examination, Dr. Kalafer gave the following testimony regarding the tests that he asserts defendant should ...


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