On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Before Judges Shebell, D'Annunzio and Coburn.
The opinion of the court was delivered by: The opinion of the court was delivered by Shebell, P.j.a.d.
This appeal and cross-appeal follow the trial of a medical malpractice action and the post-trial grant of a remittitur. We reverse and remand for a retrial as to all issues. The complaint named Somerset Pediatric Group (Pediatric Group) and Lorraine M. Gari as defendants. However, Pediatric Group was dismissed from the case at trial. Following a six day trial, the jury rendered its verdict on July 24, 1996. It found defendant liable for damages on the survival claim in the amount of $500,000, after the wrongful death and emotional distress claims were withdrawn from jury consideration by the trial Judge. On August 5, 1996, defendant filed a motion seeking, alternatively, judgment notwithstanding the verdict, a new trial or remittitur. On November 22, 1996, the Judge issued a letter opinion denying the motions for judgment notwithstanding the verdict and for a new trial, but granting a motion for new trial on damages, unless plaintiffs accepted a remittitur reducing the damages awarded to $150,000.
On February 22, 1997, plaintiffs filed a Notice of Appeal from the November 22, 1996 letter opinion, which apparently was not reduced to an order. See R. 2:2-3(a)(1) (appeals are from final judgments of the Superior Court trial divisions.) Defendant filed a motion for leave to file a cross-appeal nunc pro tunc on March 17, 1997, and a motion for stay pending appeal. On April 7, 1997, we granted leave to appeal and leave to cross-appeal and denied defendant's motion for a stay.
The deceased child, Andres Arenas, was born on February 19, 1991. He lived with his parents, Maria and Roberto Arenas, in North Plainfield. Maria had arrived in the United States from Columbia in 1982. Roberto had been in the United States since 1969. The thirty- eight year old Maria testified at trial using an interpreter. The Arenas family consisted of two children, ages one-and-a-half and two- and-a-half years at the time of trial, born after Andres' death.
Andres was a happy and healthy child, however, on October 16 and 17, 1992, he was not feeling well or breathing easily. He appeared listless, pale and was vomiting. He had a temperature of 102 degrees. Andres was given some Tylenol on Saturday, October 17, but this did not relieve the problem. The next day, Andres was crying a lot, coughing and vomiting. Roberto called Pediatric Group and explained the symptoms as fever, coughing and vomiting. He was given an appointment at 1:00 p.m. Andres was crying uncontrollably as his parents took him into defendant's office. Roberto described Andres' symptoms to defendant. Roberto did not feel defendant was paying much attention to his description, because she was writing something down. Roberto did feel, however, that he was able to understand and be understood by defendant.
According to plaintiffs, defendant did not put an instrument in Andres' ears or nose, nor did she look in his eyes, touch his stomach or ask about his food or liquid intake or urination. They also said defendant never took Andres' temperature or felt his forehead or back of his neck with her hands. She listened to Andres' chest and back with a stethoscope "just for a moment and no more" and Andres was crying the whole time. Roberto asked defendant about Andres' skin, which was blue, and defendant put her hands on Andres and said he had a cold flu. Defendant told Maria and Roberto that Andres would be fine in two or three days, that he just had "a flu," and that he was agitated because of the fever. Defendant did not prescribe any medications but gave them two samples of "Tempera" "for the flu" or "if the fever is high." Defendant also said that they should give Andres Pedialyte every two or three hours. The entire examination took "no longer than five minutes," and defendant did not indicate that the parents should call her back.
According to defendant, plaintiffs complained that Andres was vomiting, had a fever, and was crying a lot. Because Andres had a fever, defendant looked for the things that might be treatable with antibiotics or otherwise, because the majority of childhood illnesses are viral. Typically with feverish children, defendant would ask a lot of questions about what is going on with the child at home and his symptoms, and she then would examine his general attitude and look him over physically for sores, stiffness, infection, rashes and the like.
Defendant explained it had been unnecessary for her to take Andres' temperature because she knew from the parents that Andres had a fever, and the number itself did not matter in determining how to treat him. She had noted in the chart a "tactile temp," meaning that the fever was not identified using a thermometer. Defendant said she asked Roberto how high the temperature was, and it was her understanding that the temperature was taken without a thermometer. Defendant said that she did not feel Andres had any significant fever at the time of the examination. Defendant indicated that although she had a great deal of difficulty communicating with Roberto without a Spanish interpreter, she did feel that he understood her.
According to defendant, she found Andres to be alert and breathing comfortably. Using a stethoscope on Andres' chest and back, she listened to his chest sounds and heard only clear breath sounds with no abnormalities; specifically, she heard no "rales, that are crackling noises like we hear with pneumonia," or wheezing. There was also no decrease in the breath sounds that might also be associated with asthma or pneumonia, nor any extra effort needed in his breathing. She would have done a chest x-ray had there been any signs of respiratory distress, or if the parents had told her the child was coughing and had a fever. Defendant had diagnosed pneumonia in small children hundreds of times, but in this case she saw no evidence of it. She also had seen children who had aspirated foreign objects into their lungs. She was familiar with a respiratory noise called "stridor" that would occur if an object was in the child's trachea, and with wheezing on one side that sometimes also occurs with aspiration. Andres' examination did not show any of these symptoms. Defendant admitted, however, that if Andres had been crying inconsolably, it would have been very difficult to listen to his breath sounds with the stethoscope.
Defendant also said that she examined Andres' ears, using an autoscope which has a light on it, and found the ears to be fine, with no sign of infection. She also looked in his mouth with the autoscope. She felt his neck for stiffness, which could indicate meningitis, but found his neck to be supple. She felt his abdomen, and it was soft, indicating no obstruction or enlarged organs. Defendant did not recall whether Andres was crying during the visit, but said it would not be unusual for a child his age to have "stranger anxiety" that would be exacerbated when the child is sick and unhappy.
Given the complaints of vomiting and fever, and the illnesses she had been seeing in the community at that time of year, defendant concluded that Andres "probably had an early gastroenteritis, which is a stomach virus." This illness usually had a progression of vomiting, followed by diarrhea. Even though defendant did not feel that Andres had a fever, the history of plaintiffs' reports of his fever plus their reports of his vomiting, led to that diagnosis. Defendant did not note diarrhea. She told plaintiffs to give Pedialyte to avoid dehydration because he would be losing fluids with his vomiting; she noted, however, that he was alert during the examination, and that dehydrated children are not alert. She admitted that her record of the examination did not indicate anything about mucus membranes, presence of tears or sunken eyeballs, all of which would have indicated the level of hydration. Defendant also admitted that the record did not indicate how well Andres had been eating, and that this would have been a significant factor in her determination regarding his illness. Defendant, however, stated that not everything is written in the records, just significant positive and negative factors. Defendant also claimed she told the parents to call or come back if Andres did not get better.
When they returned home, Maria held Andres for a while and he fell asleep. When he awoke, he continued to cough, cry, vomit and drink little during the rest of that day. The next day, Monday, Roberto went to work and Maria remained at home. She gave Andres the Tempera, but she observed no improvement in his symptoms. Andres continued to drink very little from the bottle, only three or four ounces out of the eight- ounce bottle, and he wet his diapers less than usual. He ate nothing and played very little. Andres showed no improvement on Tuesday and he continued to have a 102 degree temperature and was coughing more frequently.
Maria discussed Andres' condition with Roberto during the day on Tuesday, and Roberto stopped at Pediatric Group on the way home to see about bringing Andres in for a follow-up visit. Roberto saw another doctor because defendant was not there. The doctor assured him that Andres would feel better in a couple of days. Roberto did not have an opportunity to explain Andres' symptoms, and the doctor did not have Andres' file or any of Andres' medical records in front of him. Aside from this contact, plaintiffs made no attempts to call or visit defendant or Pediatric Group after October 18, 1992.
When Roberto got home that evening, he thought Andres seemed a little better, because he was not crying. Maria testified that Andres slept that night in an agitated state, which was unusual for him. According to Roberto, Andres was breathing hard as he slept, which differed from his breathing before he got sick.
On Wednesday, October 21, Andres awoke at around 8:00 a.m., and drank only about two ounces from his bottle. He continued to be pale with a 102 degree temperature, and he did not eat anything. Maria remained in the bedroom with Andres at her feet playing with some porcelain statues for more than half an hour. When Maria picked Andres up to change his wet diaper, Andres started coughing and choking. Maria opened the window and screamed out to some men outside that her son "had taken a turn for the worse." She asked two men to call an ambulance. The ambulance crew took Andres away and did not allow Maria to go with them. When Maria and Roberto saw Andres later at the Muhlenberg Hospital, he had already died.
Eugene P. Fazzini, a pathologist with Somerset Pathology Associates, acting as County Deputy Medical Examiner for Somerset County, performed an autopsy on Andres. Fazzini had received Andres' medical history from the Muhlenberg Emergency Room records, which indicated that Andres had severe coughing and stopped breathing. The records also indicated that the Mobile Intensive Care Unit had intubated Andres at the scene by inserting an endotracheal tube into his windpipe to deliver oxygen.
Fazzini's autopsy findings were that Andres had a pneumonia predominantly in the right lung but also to a lesser extent in the left lung, caused by a firm, uncooked bean in the trachea. The pneumonia was most severe in the right lower lobe of the lung, which appeared firmer and congested. Fazzini called this an "obstructive pneumonia," which occurs when the airway is partially obstructed by something, such as a foreign body or more commonly by tumors, where the mechanism for clearing infectious particles from the lung are interrupted. After viewing sections of the lung under a microscope, Fazzini concluded the pneumonia was present for thirty-six hours at an "absolute minimum" and as many as seventy-two hours. The bean was first partially obstructing the airway, and then was probably coughed up and lodged in the glottis-- the space between the vocal chords, at the top of the windpipe and within the larynx--obstructing the airway and causing the death. When Fazzini found the bean, it was in the lower part of the trachea, or windpipe, just above the "main carina" where the windpipe branches off into the main bronchi. Fazzini believed that the bean had been in the glottis, where it blocked the airway and caused the death, and that it was pushed down into the trachea when the endotracheal tube was inserted into Andres' windpipe.
Fazzini had not found any inflammation or irritation of the trachea, which he would expect to see if the bean had been sitting in one position in the trachea. Nor did he observe any erosion of the "mucosa" which is the "epithelium lining of these airways." He concluded that these absences of localized irritation meant that the bean was not fixed in one position. The small size of the bean enabled it to pass up and down within the trachea. Looking at the right bronchial area, Fazzini did not see anything consistent with the presence of a foreign object. He did not find anything in the gastrointestinal area to indicate stomach illness.
Jack J. Schwartz, M.D., plaintiff's expert in pediatric medicine, reviewed Andres' records from the October 18, 1992, medical examination by defendant. He said that Andres fell into the age group from zero to twenty-four months when children are "uniquely susceptible to severe, serious complications of infectious diseases." The diseases of greatest concern at that age are meningitis, pneumonia, sepsis or bacteria in the blood stream, and gastroenteritis. There is viral pneumonia, which is unusual for children under five years old, and bacterial pneumonia. For children Andres' age, the bacteria would be streptococcus pneumonia and hemophilus influenza type B, either of which could be present in obstructive pneumonia.
The expert said diagnosis of pneumonia would come from listening for rales in the breath sounds. If the child were crying inconsolably so that the breath sounds were difficult to evaluate, counting the respiratory rate and ordering a chest x-ray should be done. Having reviewed Fazzini's report, Schwartz found it within a reasonable medical probability that the pneumonia was present at the time defendant examined Andres, although he could not be certain because the organism involved in Andres' pneumonia was never identified. Schwartz further opined that "there was little done to evaluate the baby" and that "if the evaluation had been carried out, that that was the last chance the baby had to survive."
According to Schwartz, defendant deviated from the accepted standards of medical care in two ways: by failing to take and record the temperature, given Andres' age group; and by failing to evaluate his state of hydration, given the history of vomiting for two days, with fever. Schwartz denied that a doctor could determine whether a patient has a fever by looking at the patient. Schwartz testified that if Andres had been dehydrated and this were identified and treated with intravenous fluids, "it may have made a difference in the baby's outcome." In his deposition, however, Schwartz had agreed that he could not say whether, if the hydration had been evaluated, there would have been a difference in the child's ultimate outcome.
Had he observed both an elevated temperature and dehydration, Schwartz would have done a blood count. Schwartz admitted that he did not know if Andres' blood count would have been abnormal, because it was not done. If the blood count result had been elevated, however, a blood culture should be done because of the uniquely high risk to Andres' age group of blood stream infections, and he would have taken a chest x-ray. Assuming the child's pneumonia were identified, Schwartz would have recommended hospitalizing him for intravenous antibiotic treatment, because oral antibiotics would not be retained due to the vomiting. Schwartz further opined that protocols for an infant who has a fever would be that "we would expect to have the baby come back if there is no progress within 48 hours. If there is progress but the fever persists, then we would expect the baby to come back if the fever goes beyond 48 hours." He also said the recommendation for follow-up is usually indicated in the patient's record, but that no such note was made here.
William L. Lupatkin, M.D., defendant's pediatrics expert, opined that defendant did not deviate from the accepted standards of medical care. When a child comes in with complaints of fever and vomiting, Lupatkin believed that the fact of the fever at home was significant but that the doctor usually would not take the child's temperature at the office because it is a "one time" temperature. He would not ordinarily take a blood culture unless the child looks very ill. Because the physical examination showed no breathing difficulties, there was nothing that would indicate that a chest x-ray was warranted. Lupatkin further opined that hydration can be determined by viewing whether the mucous membranes are moist, and he concluded from the records that Andres "was hydrated."
Lupatkin also described defendant's diagnosis of acute gastroenteritis as a "diagnosis of exclusion," meaning that because there was not a focus of infection her diagnosis resulted from the illness being "not something else." Lupatkin said that if a child aspirated a foreign object, you would "expect a lot of coughing, because of the foreign object in the trachea moving in the trachea." There might also be wheezing, but not necessarily, depending upon the size and location of the object.
Lupatkin described fever, cough and rales as the expected symptoms for a child with pneumonia. Since he believed none of these were present during Andres' examination by defendant, there was nothing defendant "could reasonably have been expected to do that would have changed this outcome" for Andres. He agreed with Schwartz that, had Andres appeared worse during the examination, a blood count possibly followed by a blood culture could have been ordered and then antibiotics, but he said even these would not have prevented Andres' outcome. Had a chest x-ray been ordered, he said it would not have shown the bean, and it may or may not have shown the pneumonia.
James Lewis, D.O., plaintiff's expert in forensic pathology, served as the chief medical examiner for Gloucester County. Upon review of Andres' record, Lewis concluded that the immediate cause of death was "an airway occlusion due to aspiration of a foreign body into the trachea, into the windpipe" and the underlying cause of death was "obstructive bronchial pneumonia of the right lower lobe due to aspiration of the foreign body in that area." He concluded that a kidney bean had been swallowed and went down the wrong pipe, through the trachea and into the right lower lobe of the lung. The body reacts to that foreign object by causing a reaction in which bacteria starts to build up and a pneumonia develops, to defend against the foreign object and attempt to remove it from the body. This process probably resulted in the bean being made a little smaller and becoming slippery by being covered with mucus. Then when Andres coughed, the bean lodged right in the middle, in the "bifurcation" so that air could not get past it to either lung.
Defendant's pathologist, Robert R. Rickert, co-chairman of the Department of Pathology at St. Barnabas Medical Center, reviewed the autopsy reports and found that three of the four sections of the lung showed "evidence of a very acute bronchial pneumonia" which would have been caused by bacteria or virus. It "definitely was not an obstructive pneumonia" because the area of the lung beyond the obstruction would have turned golden if it was that type of pneumonia. He opined that the pneumonia was not more than three or four days old, because there was no evidence of "necrosis," meaning tissue death. Furthermore, there was no spread of the pneumonia to the surface of the lung, which occurs when the pneumonia is of longer duration, and no evidence of "organization," when the tissue begins to heal itself usually after four or five days, or longer. He further opined that the cause of death was asphyxiation due to the bean becoming lodged in the glottis. He felt that the bean's description in the autopsy report as "firm" supported his view that the bean was aspirated just prior to Andres' death. He did agree, however, that location of a bean in the right lower lobe of the lung could cause pneumonia.
We first consider the cross-appeal in which defendant asserts that a new trial is required as to all issues because juror number six should have been dismissed by the Judge. We agree.
Defendant contends that the trial court erred in failing to excuse juror number six for cause, after the parties had exhausted their peremptory challenges. During the voir dire, a woman who identified herself as a registered nurse working in obstetrics at a hospital was seated as juror number six. When asked whether she knew of any reason why she should not sit or could not be fair and impartial, she answered "no." Upon further inquiry, the juror said she would sometimes do an initial assessment of the child in the newborn nursery, but that she usually worked in the delivery room. She also served as head nurse of the hospital's post-partum unit for twelve years. No further questions were asked of juror number six. The parties exercised all of their challenges, and thereafter, the jury was sworn.
The next day, before the trial began, juror number six indicated that she wished to speak to the court and the following colloquy took place:
JUROR: Yesterday when you were asking me the questions, I was very nervous. And driving home I said it was important for me to tell you that I'm a nurse at the hospital, but I'm also a nurse in the nursing supervisor and administrative capacity, where on the weekends I do deal with the nurses and I run the whole hospital.
On several instances, I had an incident with one physician, and I'm bringing in front of the grievance committee because of incidences where I had stressed the policy, and he didn't want to take any direction from me.
JUROR: It could also lead into sexual harrassment as well. I've had many instances with many physicians where, in my ...