Before Judges Havey, A. A. Rodr¡guez and
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Essex County.
Following a jury trial in this birth trauma medical malpractice action, verdicts were rendered against defendants St. Michael's Medical Center and Dr. Angela Buontempo and in favor of the infant Danialie Fertile in the amount of $15 million and $3 million to her mother Marlene for her emotional distress. Defendants' motion for a new trial on liability was denied, but the trial judge remitted the damage award to $5 million for Danialie and $250,000 for Marlene. Plaintiffs initially accepted the remittitur. However, defendants appealed the verdict as to both liability and damages, and plaintiffs cross-appealed from the order of remittitur.
Marlene Fertile's labor began on June 23, 1994, at home. In the early morning hours of June 24, 1994, she went to St. Michael's Medical Center for delivery. She was in labor throughout the day. From about 6:45 p.m. to 9:15 p.m., the fetal monitor indicated that Danialie's heart decelerated during each contraction and returned to normal when the contraction ended. According to Marlene's physician, second-year resident Cecil Holgado, such decelerations were normal and posed no risk to the baby.
At about 9:00 p.m., Dr. Holgado noted that Marlene's cervix had stopped dilating, probably because the baby was bigger than a normal pelvis. Because labor was not progressing, Dr. Holgado concluded that delivery by caesarean section would be necessary. Assuming that Marlene's labor would not progress further, Dr. Holgado stopped administering a drug to induce contractions, explaining that once labor stops birth will not occur without surgical intervention. Because the baby showed no signs of distress, Dr. Holgado determined that there was no emergency and that the caesarean delivery could occur after he assisted with another caesarean delivery. He confirmed his decision with his supervisor, attending physician Debra Rosenzweig, and called Dr. Buontempo, a second-year resident, to observe Marlene.
Dr. Buontempo arrived sometime between 9:00 and 9:15 p.m. She reviewed Marlene's chart and examined her. She found that Marlene was fully dilated and that the baby was progressing into the pelvis with the top of the baby's head one finger width from the vaginal opening. This meant to Dr. Buontempo that labor was no longer arrested.
After 9:15 p.m., the fetal monitor changed. According to Dr. Holgado, who reviewed the tape at trial, this indicated possible compromise to the baby. Dr. Buontempo testified that if the baby's heart rate slows and does not quickly return to normal following a contraction, the oxygen supply to the baby is impaired. As a result the baby may experience hypoxia and suffer brain damage.
At 9:40 p.m., Dr. Buontempo observed that Marlene's labor had progressed, that she was fully dilated and that her baby had moved further down the birth canal. Because the baby's head was right at the vaginal opening, Dr. Buontempo concluded that a caesarian section was no longer an appropriate option and that the baby had to be delivered vaginally. Accordingly, she sent a nurse to the operating room to inform Dr. Rosenzweig, who along with Dr. Holgado was performing a caesarian section on another patient.
Dr. Buontempo summoned three nurses and a pediatrician for assistance. She recognized the potential that Danialie would be a large baby, given Marlene's obesity and her substantial weight gain during pregnancy. Large babies present a greater risk of shoulder dystocia, which occurs when the baby's shoulder is stuck against the mother's pubic bone and obstructed in its passage from the vagina.
Danialie was large, and her shoulder wedged behind Marlene's pubic bone. Dr. Buontempo freed the baby by changing Marlene's position, pressing down above Marlene's pubic bone and enlarging the surgical incision to expand Marlene's vagina. In the course of her birth Danialie was injured, resulting in an atrophied and partially paralyzed arm.
Plaintiffs' expert obstetrician, Dr. Stephen Leviss, testified at trial that by delivering Danialie vaginally rather than by caesarian section, Dr. Buontempo deviated from acceptable standards of care and that Danialie's injuries were proximately caused by that deviation. He said that Marlene had experienced an arrest of labor by 9:00 p.m. probably because the baby's size or shape prevented it from descending into the mother's pelvis, and that Dr. Holgado properly determined that a caesarian section should have been performed. He stated that women who have labored for eighteen hours without dilating sufficiently are unlikely to safely deliver vaginally because the mother's uterus is not contracting hard enough, either because the baby is too large or because it is improperly positioned.
Dr. Leviss explained that shoulder dystocia was abnormal labor in which the baby's shoulder became stuck after the baby's head had been delivered. During a contraction, the baby's head is pushed out of the vagina, stretching the neck. After the contraction, the head is drawn back into the vagina toward the stuck shoulders.
In Dr. Leviss's opinion the fetal monitor tracing through 9:30 p.m. was acceptable and indicated that the baby was in no danger. But when changes began to occur at about 9:15 p.m., the child should have been delivered by caesarian section.
Dr. Leviss opined that the changes in the fetal heart rate just prior to delivery resulted from head compression. In his opinion the distress shown in the fetal tracings was the result of Dr. Buontempo's attempts to deliver Danialie, as Marlene pushed and the nurse applied super-pubic pressure. According to Dr. Leviss, proper treatment would have consisted of relieving the head compression through a caesarian section or stopping the contractions "to get the patient to caesarian section to go back to normal because there's good variations with variability here."
Dr. Leviss maintained that, despite contrary statements in the medical records, the baby's head had not fully passed through the vagina. Nor did he believe the notation in the medical records that Marlene was fully dilated by 9:45 p.m. In his opinion the baby was two to three hours from delivery, and vaginal delivery should not have been attempted.
Moreover, Dr. Leviss testified that vaginal delivery was never an option because of the history of Marlene's labor. He said that Marlene's physicians should have anticipated shoulder dystocia and therefore delivered the baby by a caesarian section within a reasonable amount of time. He contended that a properly performed caesarian section would have prevented Danialie's injuries and been less risky for both Marlene and Danialie.
Dr. Sidney Wilchins, defendants' expert obstetrician, agreed that because labor was not progressing at 9:00 p.m., the decision to deliver Danialie by caesarian section was appropriate. However, he opined that once Marlene's cervix had fully dilated and Danialie had begun to move through the birth canal, the necessity for a surgical delivery was eliminated.
Dr. Wilchins interpreted the fetal monitor strips to reveal signs of fetal compromise. That is, the baby was experiencing an environmental insult that caused its heart rate to change and was incapable of overcoming the insult to return to a normal heart rate. He said that environmental insults could include such things as compression of the umbilical cord of the baby's head. In the face of such fetal compromise, Dr. Wilchins said that the physician's first obligation is to attempt to correct the situation by changing the mother's position to improve blood flow, to administer oxygen or to give the ...