Before Judges Baime, Brochin and Eichen.
The opinion of the court was delivered by: Baime, P.J.A.D.
On appeal from Superior Court of New Jersey, Law Division, Hudson County.
Jannie and Edward McKenney brought this action on behalf of themselves and their infant son, Jarrell McKenney, seeking damages for wrongful birth, wrongful life, and injuries sustained during delivery. Among those named as defendants were the Jersey City Medical Center (JCMC), the Family Health Center (FHC), physicians Krergrkrai Hasanee, Alexander Prezioso, Long-Gue Hu, and Euk Kim, and an ultrasound sonographer, Sipra De. Plaintiffs' claims of wrongful birth and wrongful life focused primarily upon Hasanee, Hu and De. Plaintiffs contended that these defendants were negligent in failing to detect a birth defect known as spina bifida, thus depriving Mrs. McKenney of the opportunity to terminate her pregnancy. Plaintiffs additionally contended that Hu, Prezioso and Kim deviated from accepted standards of medical practice, resulting in the vaginal delivery of Jarrell rather than a cesarean section. Because Prezioso and Kim were implicated only in the latter stages of Mrs. McKenney's pregnancy when abortion was allegedly no longer a viable option, plaintiffs' claim against them was confined to injuries allegedly caused by the vaginal delivery - harm separate and apart from Jarrell's pre-existent neural tube defect. In contrast, Hu's and De's liability was premised on plaintiffs' claims of wrongful birth, wrongful life and injuries suffered during Jarrell's delivery.
De was granted summary judgment prior to trial. Plaintiffs voluntarily dismissed their independent claim against the JCMC and the FHC, who remained defendants solely on the basis of respondeat superior. The claim against Hasanee was dismissed at the close of plaintiffs' case. The jury found Hu negligent, but concluded that his negligence did not deprive Mrs. McKenney of the opportunity to obtain an abortion. The jury also found that Jarrell did not suffer additional injuries as a result of being delivered vaginally as opposed to a cesarian section. Hu, Kim and Prezioso were exonerated on this basis. Plaintiffs appeal. We affirm.
This appeal has a tortuous history. The trial was protracted. The record is voluminous. We recite only the facts salient to the legal issues raised.
Mrs. McKenney became aware she was pregnant in April 1990. Her anticipated delivery date was December 8, 1990. Mrs. McKenney appeared for her scheduled appointment at the FHC on August 10, 1990. At that time, Mrs. McKenney was in the twenty-second or twenty-third week of her pregnancy. She was examined by Dr. Hasanee. Following the examination, Mrs. McKenney was instructed to undergo a sonogram. Although sonograms were generally performed at the FHC, the ultrasound machine was not working. Because the FHC was a clinical department operated by the JCMC, albeit in a separate building, the nurse told Mrs. McKenney to visit the eighth floor of the JCMC on August 13, 1990.
Mrs. McKenney appeared on the eighth floor of the JCMC at the appointed time. De, a certified ultrasound sonographer since 1988, performed the sonogram. At trial, it was explained that a level one, or basic, sonogram determines gestational age, fetal weight, head circumference and amount of amniotic fluid. A level two, or targeted, sonogram is a more sophisticated diagnostic tool that is generally performed when a specific risk to either the mother or the fetus has been detected. Because there was no reason to believe that Mrs. McKenney's pregnancy presented a peculiar problem or risk, De performed a level one sonogram. It was undisputed at trial that an ultrasound technician has neither the duty nor the expertise to interpret a sonogram. However, under JCMC's protocols, a doctor was to be notified if anything "questionable" appeared on the sonogram. In any event, Mrs. McKenney testified that De returned to the examination room accompanied by a doctor after the sonogram was performed. After De and the physician conferred, Mrs. McKenney was instructed to return to the eighth floor of the JCMC on Thursday, August 16, 1990.
In both her deposition and trial testimony, De had no specific recollection of having performed the sonogram on either August 13 or August 16, 1990. However, uncontradicted documentary evidence disclosed that De was the only ultrasound technician employed by the JCMC during this period. She conceded that she performed the sonograms on August 13 and August 16, 1990. At her deposition and during trial, De testified that she detected no sign of spina bifida on the ultrasounds. If a fetus has a neural tube defect, a midline defect of the vertebra, or spina bifida, there are associated changes of the brain at the top of the spinal column, leading to a partial collapse of the frontal part of the head. This "infolding" results in the head appearing "lemon-shaped," rather than oval. This is referred to as "lemon sign." Although plaintiffs claimed that the sonograms taken on August 13, 1990 exhibited the presence of a lemon sign, De testified at both her deposition and at trial that she did not detect it. She noted, however, the presence of a "membrane" associated with twins in one of the images. Because De had no special expertise in interpreting sonograms, and pursuant to JCMC's protocol, she referred the images to a doctor. De could not recall the identity of the physician to whom she gave the images for interpretation.
A notation, "[f]ollow-up study suggested," appears on one of the sonogram images taken on August 13, 1990. In her deposition testimony, De denied that her handwriting appeared on the sonogram films. In any event, De did not dispute the fact that on August 16, 1990, Mrs. McKenney returned to the eighth floor of the JCMC and that she, De, performed a level one sonogram. Although a physician should have been on duty to interpret the sonogram taken, De was unable to find one. De thus gave the sonogram to the unit secretary for the doctor to sign. The notation, "[f]ollow-up study suggested," appears on a sheet accompanying the sonogram taken on August 16, 1990. In her deposition, De denied that she had written the notation.
We digress to note that summary judgment was granted in favor of De based upon the evidence we have described. Consistent with the view expressed by plaintiffs' expert, the Law Division judge concluded that De had no special expertise in interpreting sonograms, a task that the expert later testified was best left to specialists such as radiologists. The court further determined that De did not deviate from a recognized standard of care when she left the sonogram taken on August 16, 1990 in the file to be reviewed by a physician. In reaching this conclusion, the court stressed that De's conduct in leaving the sonogram with the unit secretary for review by a doctor comported with hospital protocols, and that plaintiffs had presented "no proofs" that De could be found "culpable" for this activity.
De's account of the events at trial, however, differed markedly from her deposition testimony. At trial, De admitted that she had written the notation, "[f]ollow-up study suggested," on both the sonograms taken on August 13, 1990 and August 16, 1990. De testified that on August 13, 1990, she made the notation at the direction of the physician to whom she had given the images for interpretation. According to De's trial testimony, the physician suggested that Mrs. McKenney's sonogram be reviewed by "a high risk" doctor. De further testified that she wrote the same notation on the sheet accompanying the sonogram taken on August 16, 1990, even though not at the direction of a physician. De explained that she "mount[ed] the page" on the sonogram with the expectation that it would ultimately be reviewed by a physician.
Although De's change of testimony in that respect can fairly be characterized as dramatic and substantial, we would be remiss were we to fail to note that English is not her native language. Moreover, uncontradicted evidence was presented that sonograms for high risk pregnancies were routinely conducted on Thursdays on the eighth floor of the JCMC. Thus, De's recollection of the reason for scheduling a sonogram on August 16, 1990 might have developed after her deposition was taken. Of course, we are not clairvoyant. We merely note that there are plausible, innocent explanations for De's change of testimony other than the sinister motivation ascribed to her by the plaintiffs.
Hu, the chief obstetric and gynecological resident at the JCMC, was assigned to the FHC for the month of August. It was undisputed that Hu made various notations in the report pertaining to the sonogram taken on August 13, 1990. More specifically, Hu wrote, "[r]ule out vanishing twin," and "[r]epeat ultrasound in four weeks." Hu also drew an arrow with the word "membrane," signifying his belief there were two sacks, an "abnormal finding." The reference to "vanishing twin" meant that Hu believed there had to have been two fetuses but one had died. According to Hu, the reference indicated that he intended to refer Mrs. McKenney for a level two sonogram, which would show in much greater detail any congenital malformation. Hu noted that there was nothing in the hospital's protocols or policies that required him to make certain that a targeted sonogram was ultimately performed. Although Hu testified that he had no independent recollection of evaluating any of the sonograms taken on August 13, 1990, he testified that he told a technician a level two sonogram was necessary.
In both his deposition and trial testimony, Hu emphasized that his responsibilities did not include interpreting sonograms. Hu nevertheless conceded that he was familiar with how a neural tube defect would appear on an ultrasound. At his deposition, Hu testified that he did not review the sonogram for the purpose of interpretation, but instead because the technician needed a referral in order to conduct another sonogram. Hu admitted, however, that his signature on the sonogram report indicated that he was giving an opinion pertaining to the images on the ultrasound.
Hu's trial testimony differed from his deposition account respecting when he examined the August 13 sonogram. Hu testified that after his deposition but prior to trial he reviewed the hospital logbook and learned that the ultrasound machine at the FHC was not working in August 1990, and that Mrs. McKenney's ultrasound must have been conducted at the JCMC. Because he was assigned to the FHC in the month of August, Hu claimed that he could not have examined the sonogram on the day it was performed. Hu asserted that he was mistaken in his deposition testimony when he said he signed the sonogram report because the technician needed a referral in order to schedule a level two ultrasound. Hu testified at trial that he examined the sonogram and signed the report while assisting the attending physician some time after the ultrasound was taken. Because it took some time before sonograms conducted at the JCMC were delivered to the FHC, Hu contended that he must have reviewed the sonogram toward the end of August, not on August 13 as he had asserted in his deposition testimony. In any event, Hu admitted that a lemon sign appeared on the image of the fetus's head on the August 13, 1990 sonogram. The gist of Hu's testimony was that he first saw Mrs. McKenney's sonogram some time after her twenty-fourth week of pregnancy.
Mrs. McKenney's next appointment following the August 16 sonogram was on September 7, 1990. She was seen by Prezioso, an obstetrician and gynecologist, at the FHC. Prezioso testified that it was not his responsibility to interpret sonograms, although he was familiar with the fact that a "lemon-shaped" skull was a frequent indication of spina bifida. Because the sonogram reports did not contain a diagnosis, Prezioso ordered that an ultrasound be repeated. Prezioso admitted that the sonogram image contained in Mrs. McKenney's chart included a reference to "membrane" and that a membrane in the amniotic sac was consistent with a neural tube defect. At trial, Prezioso was shown several images from the August 13 sonogram which apparently were not contained in Mrs. McKenney's file when he examined her on September 7, 1990. Prezioso admitted that the shape of the fetus's skull was "troubling" and that he would have noted this abnormality had he seen the sonogram image on the date of Mrs. McKenney's visit.
Additional sonograms were performed thereafter - one on October 2, 1990, and another on November 7, 1990. The record is unclear as to whether these sonograms were interpreted by physicians. Although Mrs. McKenney was referred to FHC's high risk clinic because of the possibility of twins and her age, no one apparently suspected the presence of a neural tube defect. After the possibility of twins was discounted, Mrs. McKenney's case was returned to FHC's regular obstetric clinic where on different visits she was attended to by Kim and Prezioso. On November 23, 1990, Prezioso ordered another ultrasound because Mrs. McKenney's chart contained no diagnosis of the images taken in prior sonograms.
The following day, however, Mrs. McKenney began having contractions and was admitted to the JCMC. Jarrell was delivered vaginally by Janasz Mroz, the attending physician, and Johol Chan, a first year resident. Mrs. McKenney heard one of the doctors say, "[w]hat is this on his back that I busted," and then, "[i]t looks like a sac that I busted." Jarrell's ruptured myelomeningocele, a defect of the spine in which the spinal cord is malformed and exposed in a cystic structure, was three or four inches above the buttocks.
Jarrell was born with significant defects. His headsize was below the normal level; his kidney was undersized; his penis was malformed; he suffered from severe hip dislocation and clubbed feet; and he had water on the brain. In the ensuing years, Jarrell underwent nine operations. He still does not have bladder and bowel control, and he is unable to sit or walk without assistance. Mrs. McKenney testified that she would have terminated the pregnancy had she been informed of the neural tube defect.
Melvin Ravitz, a board-certified obstetrician, testified as plaintiffs' expert. According to Ravitz, Hasanee was negligent in failing to order an alpha fetoprotein (AFP) test and a targeted sonogram. An AFP test is generally used to detect spina bifida. Ravitz conceded, however, that it is most effective when administered between the sixteenth and eighteenth weeks of pregnancy and that it has very little, if any, value when performed in the twenty-second or twenty-third weeks of pregnancy. Ravitz also admitted that a basic, level one sonogram is considered adequate under guidelines published by the American College of Obstetrics, and that under generally recognized standards, a targeted, level two sonogram "was not indicat[ed]." The trial court granted Hasanee's motion for an involuntary dismissal on this basis.
Ravitz testified that Hu deviated from the applicable standard of care by failing to make a written request for a level two sonogram and by failing to make certain that such a request was carried out. Ravitz also surmised that Hu did not examine all of the images produced by the August 13, 1990 sonogram. Ravitz conceded, however, that he himself was not qualified to interpret ultrasounds. It was Ravitz's understanding that in 1990 an abortion was permitted "[u]p through [twenty-four] weeks of the pregnancy." The exact basis for this understanding is unclear. At one point, Ravitz testified that an abortion was not a "legal . . . option" after the first twenty-four weeks of pregnancy. At another, Ravitz testified that abortions after the first twenty-four weeks were not considered an appropriate option because of the danger that the fetus had become "viable" at that stage. In any event, Ravitz testified that Mrs. McKenney would have had a "window" of approximately one or two weeks to terminate the pregnancy had the neural tube defect been properly diagnosed on August 13 or August 16, 1990.
According to Ravitz, termination of the pregnancy was not a practical or legal option by the time Prezioso and Kim attended Mrs. McKenney. Ravitz nonetheless claimed that Prezioso was negligent because he failed to insist that a radiologist or a perinatologist read and interpret the sonograms taken on August 13 and August 16, 1990. Ravitz asserted that Prezioso deviated from the applicable standard of care by merely ordering that additional sonograms be performed. Ravitz claimed that Kim was negligent for two reasons. First, Kim was the director of the FHC and was thus duty-bound to maintain a "continuity of care" for the clinic's patients. Ravitz testified that Kim violated that duty by failing to ensure that each physician who attended Mrs. McKenney was aware of the diagnostic tests that had been ordered and the results of those tests. Second, Kim had personally examined Mrs. McKenney late in the pregnancy. Ravitz claimed that Kim, like Prezioso, should have taken steps to have the sonograms taken earlier properly interpreted. Ravitz contended that Prezioso and Kim would have been aware of the presence of a neural tube defect, and armed with that knowledge should have ordered a cesarian section rather than a vaginal delivery.
Plaintiffs also offered the testimony of Roger Berg as an expert in interpreting obstetrical ultrasounds. Berg testified that neural tube defects are detectable in almost all obstetrical ultrasounds. Berg described the lemon sign on the August 13 sonogram as "well depicted." Berg testified that an interpreter of this sonogram should have directed Mrs. McKenney to return to the hospital in an expeditious manner so that the possibility of a neural tube defect could be "confirmed or ruled out." According to Berg, Hu deviated from accepted standards of care by not noting the lemon sign and by failing to diagnose the neural tube defect through further study. Berg contended that Hu should have ordered a targeted sonogram so that the nature and extent of the fetus's spina bifida could be evaluated.
Daniel Adler, an expert in pediatric neurology, testified on plaintiffs' behalf. Adler claimed that Jarrell sustained avoidable injuries because he was vaginally delivered. Adler stressed that the "mode of delivery" had no effect on the "hydrocephal[ic]" condition of Jarrell's brain, his inability to control his bowel or bladder, or his club feet. However, he asserted that Jarrell's "hamstring and glutei function" would have been better had a cesarian section been performed. In addition, Jarrell's hips might not have dislocated but for the vaginal delivery.
We need not recount at length the evidence presented by defendants. Hu's expert witnesses testified that Hu, as a resident, was not responsible for interpreting the sonogram taken on August 13, 1990. They asserted that a resident could not reasonably be expected to be able to recognize a lemon sign because such a "finding is subtle in most instances." One of the experts conceded that a lemon sign appeared on one of the images taken on August 13. However, both experts assumed that Hu did not examine the image containing the lemon sign. Other defense experts testified that Prezioso and Kim did not deviate from recognized standards by failing to diagnose Jarrell's neural tube defect. They further claimed that Jarrell's neurological and physical defects were of a long-standing nature and were not the result of the method of delivery.
It is against this factual backdrop that we consider plaintiffs' arguments. Plaintiffs contend: (1) a mistrial should have been declared because the trial testimony of De and Hu substantially deviated from their deposition testimony, (2) the trial court erred by deciding as a matter of law that an abortion was not a viable option by the time the sonogram images were received by the FHC, (3) termination of the pregnancy was an available option to Mrs. McKenney as a matter of law, (4) Hu should have been estopped from asserting that he reviewed the August 13 sonogram subsequent to the date the ultrasound was conducted, (5) the trial court should have struck the charitable immunity limitation of damages provided by N.J.S.A. 2A:53A-8 because of intentional violations of the discovery rules by the JCMC and the FHC, (6) the trial court erred by granting Hassanee's motion for an involuntary dismissal, (7) the trial court should have shifted the burden of proof to defendants, (8) the jury should have been instructed that it could find the JCMC independently negligent, (9) the trial court committed ...