Before Judges Skillman, Eichen and Steinberg.
The opinion of the court was delivered by: The opinion of the court was delivered by Skillman, J.A.D.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
The primary issue presented by this appeal is whether the Court of Errors and Appeals' decision in Hull v. Plume, 131 N.J.L. 511 (E. & A. 1944), holding that a plaintiff in a medical malpractice action cannot compel a defendant doctor to express an expert opinion, is still controlling law in this State.
Plaintiff Matthew Hutchinson was born at the Atlantic City Medical Center on August 16, 1991. It was a difficult delivery, and the family's obstetrician, defendant Alan J. Feldman, used forceps to facilitate the birthing process. As a result, Matthew suffered a large cephalhematoma (swollen bruise) on his head. In addition, it was discovered several weeks later that the forceps delivery had caused a linear fracture of the baby's skull under the cephalhematoma.
Defendant Dr. Stuart Goldman, a pediatrician, examined Matthew the morning after delivery and did not detect any abnormality. Nevertheless, because standing orders of the pediatrics department at the hospital required a complete blood count (CBC) for all newborns, Dr. Goldman requested that these tests be performed.
The following afternoon, defendant Dr. Albert C. Dearden, another pediatrician who was covering for Dr. Goldman, examined Matthew and also did not detect any abnormality. Although Dr. Dearden's normal practice was to look at the blood test results when doing an examination, the baby's chart admittedly did not include the results of a CBC. Nevertheless, Dr. Dearden discharged the baby from the hospital following his examination.
After Matthew's parents, plaintiffs Mark and Terre Hutchinson, arrived home, they became concerned about the appearance of the cephalhematoma. Consequently, they scheduled an appointment with another pediatrician, Dr. Budnick, whose associate, defendant Dr. Mona El Genaidi, examined Matthew on August 21, 1991, and also did not detect any abnormality.
However, on August 29, 1991, Matthew suddenly became very red and tense, spit up blood and mucus, and had problems breathing. He was then rushed to the emergency room of the hospital, where he was subsequently diagnosed with E. coli meningitis and osteomyelitis. As a result of these conditions, Matthew was left with various permanent disabilities, including total deafness in both ears.
Plaintiffs subsequently brought this malpractice action against Drs. Feldman, Goldman, Dearden and El Genaidi as well as various other defendants who were eventually dismissed. The case was tried before a jury in a fifteen day trial. During jury deliberations, plaintiffs entered into a high/low settlement agreement with Dr. Feldman. The jury found that Dr. Goldman had not committed malpractice and returned a verdict of no cause of action in his favor. The jury found that Dr. Feldman had committed malpractice, but that his malpractice was not a proximate cause of the baby's injuries. Consequently, the jury returned a verdict in his favor. However, in accordance with the settlement agreement, plaintiffs recovered $500,000 from Dr. Feldman's insurance carrier. The jury found that Drs. Dearden and El Genaidi had committed malpractice which was a proximate cause of the baby's injuries. The jury apportioned 25% liability to Dr. Dearden and 75% to Dr. El Genaidi. The jury awarded plaintiffs $229,502 for past medical expenses, *fn1 $730,000 for future medical expenses, and $2,500,000 for all other damages. The court subsequently denied defendants' motions for a new trial, judgment notwithstanding the verdict, or a remittitur, and after adding $437,703 in prejudgment interest to the jury's damages award, entered judgment for plaintiffs.
Defendants filed separate notices of appeal, which were consolidated, and submitted a joint brief in support of their appeals. However, Dr. El Genaidi filed a petition for bankruptcy shortly before the scheduled date for oral argument. Consequently, we entered an order severing the appeals.
On appeal, Dr. Dearden argues that the trial court committed reversible error in allowing plaintiffs to use his own deposition testimony to establish the standard of care, that plaintiffs failed to present the expert testimony required to establish their claim against him, and that the court's jury instructions regarding proximate cause were incorrect. We reject these arguments and affirm the verdict in plaintiff's favor against Dr. Dearden. *fn2
Before addressing Dr. Dearden's arguments, it is appropriate to set forth the grounds of plaintiffs' claim. Plaintiffs' theory of the case was that Dr. Feldman negligently performed the delivery of the child, which allowed E. coli bacteria from the mother to enter the cephalhematoma where it eventually moved through the skull fracture into the skull bone, and then into the meninges, ultimately leading to meningitis. Plaintiffs' expert, Dr. Robert Sweeney, testified that the infection was present from birth, and that Dr. Dearden committed malpractice by failing to follow-up on results of the CBC ordered by the hospital, which would have revealed the infection and provided the opportunity for effective treatment before the meningitis developed.
On the other hand, the experts for Dr. Dearden and the other defendants expressed the opinion that the E-coli bacteria started from within the body and eventually moved to the cephalhematoma through the blood stream and that a detectible infection could only have existed for a few days prior to the baby's emergency admission into the hospital. Consequently, the blood test results which were missing from the baby's chart at the time of Dr. Dearden's examination would not have revealed any infection. Dr. Dearden's experts also testified that there is no requirement that such blood tests be performed on a well baby, and because there was no indication Matthew had any abnormality, Dr. Dearden did not deviate from the applicable standard of care in discharging him from the hospital without first requiring those tests to be completed.
It appears from the verdict that the jury accepted the opinion of plaintiffs' experts that the baby had an infection at or shortly after birth which could have been detected by the timely performance and review of a CBC.
Dr. Dearden argues that by allowing plaintiffs to use his deposition testimony as expert opinion evidence regarding the applicable standard of care, the trial court violated the evidence rule of Hull v. Plume, supra, 131 N.J.L. 511, that a plaintiff in a medical malpractice action cannot compel a defendant doctor to express an expert opinion.
This argument is based on the following deposition testimony of Dr. Dearden which was read to the jury over his objection and subsequently referred to in plaintiffs' cross-examination of several defense witnesses:
Q. Dr. Dearden, if you can take a look at the chart, I don't mean to be obscure. Am I correct that in accordance with the standard practice at the hospital a C.B.C. was ordered for Matthew Hutchinson as it was for every newborn at that time?
Q. Well, let's do it this way. Take a look at the order page, if you would, Doctor. Am I correct that the order page is something you would have looked for -- looked at, excuse me, something you would have looked at for Matthew Hutchinson after you completed your examination?
Q. In any event, the orders that I'm referring to for the C.B.C. are standing orders at the hospital as of that time, correct?
Q. So, they were ordered and you were aware that every baby had a C.B.C. order on the chart?
Q. And do you recall whether you looked for the results of the C.B.C. after your examination of Matthew? I'm asking you ...