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Velazquez v. Portadin

May 18, 2000


The opinion of the court was delivered by: Long, J.

Argued January 19, 2000

On certification to the Superior Court, Appellate Division, whose opinion is reported at 321 N.J. Super. 558 (1999).

This case presents another chapter in the continuing saga of the medical judgment charge. Plaintiffs, Barbara and Luis Velazquez, instituted a medical malpractice action against Dr. Ronald Portadin, Vineland Obstetrical & Gynecological Professional Association, and Nurses Eileen Cinotti and Ann Spaltore (collectively defendants). *fn1 Plaintiffs alleged that defendants failed to adhere to the accepted standard of medical care in connection with their daughter Diana's birth, resulting in severe injury to her (cerebral palsy). More particularly, the complainants alleged that defendants had deviated from accepted standards while administering the drug Pitocin to Barbara Velasquez insofar as they negligently monitored Diana's fetal heart beat readings and, as a result, failed to timely discontinue the drug, causing Diana to be deprived of oxygen. Defendants answered, denying the allegations of the complaint. Discovery ensued and the case went to trial.


The facts established at trial were as follows: At about 2:00 a.m. on August 18, 1990, Mrs. Velazquez came to Newcomb Medical Center to deliver her first child after an uneventful pregnancy. When she first arrived at the hospital, she was cared for by Dr. Michelle Torchia, the physician covering for Vineland Obstetrical Associates. Shortly after admission, electronic monitoring of the fetal heart began. That monitoring is carried out by placing a belt containing a transducer around the mother's abdomen. The monitor produces a continuous paper strip. The baby's heartbeat is printed along the top of the strip, and the pattern of the mother's uterine contractions is printed simultaneously along the bottom. The information on the strip allows the reader to examine the fetal heart rate and how it responds to contractions. The relationship between the two may demonstrate problems that the baby may be having.

Dr. Portadin relieved Dr. Torchia at 8:00 a.m. At that time, Eileen Cinotti, R.N., and Ann Spoltore, R.N., began to care for Mrs. Velazquez. Nurse Cinotti, as the primary nurse, was responsible for monitoring Mrs. Velazquez during labor. Nurse Spoltore was the nurse designated to care for the baby after delivery.

At approximately 1:30 p.m., Dr. Portadin determined that a drug called Pitocin should be given to increase uterine contractions and to assist in the descent of the baby down the birth canal. Pitocin is a medication used to increase the intensity and frequency of uterine contractions in women whose contractions are insufficient to deliver the baby. If Pitocin causes the contractions to occur too frequently or last too long, the baby may be harmed because blood flow to the baby slows during contractions. That condition is called hyperstimulation of the uterus. When the uterus is hyperstimulated, the interval between contractions is shortened and there is not enough time for the baby to catch up on its oxygen needs before the start of another contraction. That is why constant monitoring is required.

Shortly after 1:30 p.m., Cinotti, the nurse on duty in the hospital's labor room, began the intravenous infusion of Pitocin at the rate of two milliunits per minute. Soon the fetal monitor strip began to decrease in readability. At about 1:45 p.m., Cinotti increased the Pitocin rate to four milliunits per minute. At about 2:24 p.m., Cinotti was relieved by Spoltore as the nurse on duty in the labor room so that Cinotti could prepare the adjacent delivery room for Mrs. Velazquez. At that time, the Pitocin rate was increased to six milliunits per minute.

At 2:45 p.m., Mrs. Velazquez was disconnected from the fetal monitoring belt and, at about 2:55 p.m., she was transferred to the delivery room. Although defendants claim Mrs. Velazquez was monitored again when she reached the delivery room, those monitor strips are missing. At 3:02 p.m., while still receiving Pitocin, Mrs. Velasquez vaginally delivered Diana. At birth, Diana had virtually no heartbeat and, following resuscitation, was diagnosed as having cerebral palsy.

Plaintiffs presented experts who testified that Diana's problems were due to birth asphyxia. They found no other explanation for her condition. They based their conclusion upon a multitude of evidence, including Diana's blood acidity, her susceptibility to seizures, and her breathing problems. Subsequent health care providers also diagnosed birth asphyxia, and neuroimaging studies were consistent with that diagnosis. The plaintiffs' experts concluded that the oxygen deprivation had occurred within the last one and one-half hours before birth, which was the same time that the Pitocin was being administered. Defendants also presented experts who testified in detail that the genesis of cerebral palsy is unknown and that plaintiffs' contention that it is caused by asphyxia at birth is only a theory.

At trial, all of the experts agreed that it was appropriate for Dr. Portadin to augment Mrs. Velazquez's contractions with Pitocin and that monitoring was necessary. However, the experts disagreed strenuously about whether monitoring, in fact, took place and, more particularly, whether the strips were sufficiently readable to allow defendants to determine Diana's reaction to the Pitocin induced contractions.

In brief, plaintiffs' medical experts testified that because of the risks of Pitocin, constant fetal monitoring is required and there is no evidence in this record that the fetal monitor was read. There is nothing in the hospital chart to indicate that Dr. Portadin saw Ms. Velasquez or monitored the tape between the administration of the Pitocin and the delivery. Nor is there a single notation on the chart indicating that anyone knew that the strips were unreadable or that they showed fetal distress, although Nurse Cinotti claimed at trial that she advised Dr. Portadin that the strips revealed a problem. According to plaintiffs' experts, starting at 1:30 the strips were too intermittent to be read and, to the extent that anything could be gleaned from them, it was fetal heart deceleration.

Plaintiffs' experts were of the opinion that when the strips became unreadable, the nurses should have discontinued the drug and notified Dr. Portadin so that he could determine what course of action to take. According to those experts, Dr. Portadin violated the standard of care by continuing the Pitocin. Among his options were discontinuing the drug until reassuring tracings resumed, or applying an internal fetal monitor to Diana's scalp and reinstituting Pitocin when those readings were more reassuring. Either option, according to plaintiffs' expert, would have avoided Diana's injury. If the monitor strips were readable and were read, the defendants would have seen that Diana was in distress and resuscitated her in the womb. Although there were some infection risks with the internal scalp monitor, stopping the Pitocin would have caused no risk.

Dr. Portadin testified on his own behalf. He could not remember the events surrounding Diana's birth. Thus, he testified as to his normal procedure. He agreed that once Pitocin is administered, some monitor must be in place. However, he cautioned that whether or not to use an internal scalp monitor is a medical judgment; one must examine the information at hand and consider the potential of infection in using a scalp monitor. Dr. Portadin stated that his standard practice is to weigh the costs and benefits of using an internal fetal monitor.

Dr. Portadin disagreed with plaintiffs' experts' interpretation of the monitor strips. Specifically, he testified that there was nothing in the strips that indicated that Diana was experiencing difficulty. He continued administering the Pitocin so that Mrs. Velazquez could spontaneously deliver the baby. Dr. Portadin testified that alternative methods of delivery would take longer than spontaneous delivery. Therefore, by the time the external monitor was not picking up as well as it had been, other delivery options were foreclosed by the passage of time and the risk-benefit analysis. Dr. Portadin stated that it was his procedure to stay with the patient for ten to fifteen minutes after administration of Pitocin and to check her every fifteen to twenty minutes thereafter.

Dr. Kenneth Dollinger, Dr. Portadin's obstetrical expert, and Dr. John Harrison, the nurses' expert, agreed that if the strips were unreadable, Pitocin should have been discontinued. However, both stated that the strips overall were readable, that any unreadable portions were followed by reassuring tracings and that they did not reveal any fetal distress. Dollinger further stated that by the time Mrs. Velazquez was fully dilated in the late stages of labor, it did not matter whether or not she was monitored because natural delivery was imminent and any alternate means of delivery posed a greater risk than proceeding with the delivery as planned. He also testified as to risks attendant upon use of the fetal scalp monitor.

At the close of trial, and over the objection of plaintiffs' counsel, the trial court gave a charge based on the Model Jury Charge on exercise of judgment, Model Jury Charge 5.36A (Civil), 2 Medical Malpractice, Duty and Negligence (May 1997):

[Y]ou should understand that the law recognizes that the practice of medicine and the practice of nursing are not exact sciences. Therefore, the law recognizes that the practice of medicine or nursing according to accepted medical or nursing standards will not always prevent a poor or [un]anticipated result. If the physician or nurse has applied the required knowledge, skill, and care in the diagnosis and treatment of the plaintiff, he or she is not negligent simply because a bad result has occurred. Likewise, where according to accepted medical or nursing practice the manner in which the diagnosis or treatment is conducted is a matter subject to the judgment of the physician or nurse, the physician or nurse must be allowed to exercise that judgment. Where a judgment must be exercised, the law does not require the doctor or nurse [to be] infallible . . . . Thus, a physician or nurse cannot be found negligent so long as he or she employs such judgment as is allowed by . . . accepted medical or nursing practice. If, in fact, in the exercise of his or her ...

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