Judges Petrella, Newman and Braithwaite.
The opinion of the court was delivered by: Petrella, P.J.A.D.
Conor Velazquez (now deceased) and his parents, Charmaine and Jose Velazquez, individually and in representative capacities (plaintiffs) appeal from the entry of judgment n.o.v. sua sponte by the trial judge. A jury trial against Dr. Angela Ranzini, the only remaining defendant, *fn1 resulted in a verdict in favor of plaintiffs and a finding that Dr. Ranzini was 3% negligent.
Plaintiffs contend that the judge erred in sua sponte entering a judgment for defendant Dr. Ranzini n.o.v. and erred in giving the jury a proximate cause instruction which allowed the jury to find a pre-existing condition. Plaintiffs further contend that there was error in: failing to play back certain testimony to the jury and incorrectly answering one of the jury's questions regarding this testimony; excluding from evidence videotapes of a day in the life of Conor; and allowing Dr. Ranzini's expert to testify beyond the scope of his report. Dr. Ranzini *fn2 cross-appeals from a ruling by the trial judge that the Good Samaritan Act (N.J.S.A. 2A:62A-1 to 3) (the Act) did not immunize her from liability.
We agree with plaintiffs that the judge erred in setting aside the jury verdict. Hence, we reverse the judgment n.o.v. As to all other issues raised by plaintiffs we find no reversible error. The claim on the cross-appeal is rejected.
Plaintiffs' original complaint was filed July 26, 1994, against defendants Teresa Jiminez, M.D.; St. Peter's Medical Center (Medical Center); Angela Ranzini, M.D.; Maureen Cernadas, M.D.; Scott Siegel, M.D.; Carlos Benito, M.D.; Melissa Ackerman, M.D.; and Ellen Maak, R .N. The first count alleged that Charmaine Velazquez received negligent obstetrical care from Drs. Jiminez, Ranzini, Cernadas, Ackerman, and Benito; negligent nursing care from Maak; and negligent anesthesiology care from Dr. Siegel at the Medical Center. It also alleged that the Medical Center, as the employer, was responsible for the negligence of all co-defendants and that it negligently promulgated inaccurate regulations or criteria. Count two alleged that Charmaine and Jose Velazquez suffered emotional distress from being present while their son, Conor, was injured by the negligence of the defendants. There was no count three, but a count four alleged that Charmaine suffered laceration of the left uterine artery and loss of blood and sought damages.
On February 10, 1995, plaintiffs filed an amended complaint, naming Mary Ellen Hanley, M.D., as an additional defendant, and adding count three, which sought damages for the loss of Conor's services. On April 4, 1995, plaintiffs filed a second amended complaint naming Dr. Jiminez's medical group as a defendant.
Plaintiffs entered voluntary stipulations of dismissal with prejudice against Drs. Siegel, Ackerman, Benito, Cernadas, and Hanley. On April 2, 1996, plaintiffs settled with Dr. Jiminez for $1,010,000.
On May 9, 1996, plaintiffs filed a third amended complaint adding Jeanene Healy, R.N., as a defendant. After Conor's death, plaintiffs filed a fourth amended complaint adding a count five for wrongful death.
Dr. Ranzini moved for summary judgment on the ground that she was immune from suit under the Good Samaritan Act, N.J.S.A. 2A:62A-1 to -3. The judge denied the motion, reasoning that the Good Samaritan Act was inapplicable to physicians who respond to an emergency within a hospital. We denied Dr. Ranzini's motion for leave to appeal.
On March 11 and 12, 1998, the judge heard argument on various pretrial motions filed by plaintiffs and defendant. Among other rulings, the judge decided that (1) plaintiffs were precluded from showing videotapes of Conor to the jury at trial; and (2) Dr. Ranzini was barred from referring to herself as a "Good Samaritan" or "volunteer." Plaintiffs settled with the Medical Center for $35,000 and voluntarily dismissed the claims against nurses Maak and Healy before trial.
The matter was tried to a jury between March 24 and April 7, 1998. On the second day of jury deliberations, a different judge substituted for the trial judge, who had a doctor's appointment. In response to special interrogatories, the jury found that Dr. Ranzini was negligent and fixed percentages of fault. The jury determined that the ultimate injury resulted from (a) a pre-existing condition (5%); (b) Dr. Jiminez's negligence (92%); and (c) Dr. Ranzini's negligence (3%). The jury also determined that plaintiffs suffered $1 million in damages from the wrongful death of Conor; Charmaine Velazquez suffered $1 million in damages for her emotional distress; and Conor suffered $500,000 in damages for pain and suffering.
On May 15, 1998, the judge, sua sponte, ruled that Dr. Ranzini was not negligent as a matter of law and set aside the jury's verdict against her. Plaintiffs appealed and Dr. Ranzini cross-appealed.
The following facts were developed at the trial. Dr. Jiminez had been Charmaine Velazquez's obstetrician since 1987. She delivered Charmaine's oldest child, Conrad, and provided prenatal care during her pregnancy with Conor. Charmaine had high blood pressure throughout her pregnancy with Conor. Additionally, one of Charmaine's glucose tolerance readings was abnormal, but a retest was normal. An abnormal glucose reading can indicate gestational diabetes, which may lead to an abnormally large baby. During the last six weeks of her pregnancy, Charmaine had difficulty walking and realized that Conor was large, and quit her job. When Charmaine mentioned her concerns to Dr. Jiminez, she dismissed them by stating "it was a lot of fat and fluid."
Around 6:00 p.m. on February 9, 1994, Charmaine became concerned because she could not feel Conor moving and called Dr. Jiminez, who told her to go to the Medical Center. A sonogram showed that Conor's heart rate was normal and that he was sucking, swallowing, and kicking. However, the Medical Center resident expressed concern to Charmaine that Conor was "not active enough." It was decided that Charmaine would stay in the hospital that night to see if she would go into labor. A gel was applied to her cervix to stimulate contractions.
The next morning, Dr. Jiminez examined Charmaine and looked at the fetal heart beat strips. Dr. Jiminez told Charmaine that the baby's heart rate looked strong and that if she did not go into labor soon, she would induce labor. That evening, Dr. Jiminez prescribed Pitocin, a labor-inducing drug. At 9:00 p.m., Dr. Jiminez ruptured plaintiff's membrane. About 11:00 p.m. the baby's heart rate was 150 beats per minute. Throughout that night, the baby's heart beat showed minimal variability. According to Maak, minimal variability of heart beat can indicate a compromised baby. Around 1:50 a.m., the baby's heart beat dropped to an average of 120 beats per minute. When Charmaine was dilated nine centimeters, the nurses told her to begin pushing. Dr. Jiminez then came into the delivery room. Charmaine began to push, but only with great difficulty. At 2:49 a.m., Dr. Jiminez announced that the head had been delivered and urged Charmaine to keep pushing. According to Maak, who was assisting during the delivery, after the head was delivered, she saw that the umbilical cord was loosely wrapped around the baby's neck. Dr. Jiminez flipped the cord over the head so that it was no longer around the baby's neck.
After the head was delivered, the baby was unable to move any further because his shoulders were jammed against plaintiff's pubic bone, a condition called shoulder dystocia and that Dr. Ranzini described as one of the most serious problems in a vaginal delivery. In shoulder dystocia the baby's head has emerged and the baby is trying to breathe, but the baby's body is still in the birth canal because its bony shoulder is hung up inside the bony pelvis of the mother. Unless the baby is delivered quickly he will asphyxiate. Once the baby's head is delivered, its circulation begins to switch from fetal circulation, where the blood is coming through the umbilical cord, to respiratory circulation, where the baby is trying to breathe on its own. If the baby cannot breathe, it will become hypoxic. *fn3 Even if the head is put back in, the baby may become hypoxic.
When confronted with shoulder dystocia the delivering physician normally attempts a number of standard maneuvers. The nurses and Dr. Jiminez tried several maneuvers to deliver the baby, including the McRoberts maneuver where the doctor flexes the mother's legs back on her chest to open up the pelvis and create a larger area for the baby's shoulders to pass through.
Supra pubic pressure was used. Downward pressure was exerted on Charmaine's abdomen to try and help release the shoulder. Maak noted on the chart that fundal pressure was applied around this same time. Fundal pressure is applied at the top of the mother's stomach.
Before 3:00 a.m., Dr. Jiminez called for assistance. Dr. Jiminez testified that this was the worst shoulder dystocia she had ever seen. Dr. Ranzini, who was then at the nursing station checking fetal heart rate monitors, responded. Dr. Ranzini had come on duty on February 10, 1994, at 5 p.m. She had no prior knowledge of Charmaine or her baby. Dr. Ranzini was trained in obstetrics and gynecology with a specialty in maternal fetal medicine, which concerns the care of pregnant women or women who wish to become pregnant who have major medical problems. This specialty also deals with diagnosing fetuses with problems and trying to optimize the outcome for both mother and baby.
In the delivery room Dr. Ranzini saw that Dr. Jiminez was attempting to deliver the baby vaginally. Dr. Jiminez told Dr. Ranzini that she had in place the McRoberts maneuver and had applied supra pubic pressure. Dr. Ranzini observed Dr. Jiminez unsuccessfully try a number of maneuvers. Then, Dr. Jiminez told Dr. Ranzini that she had tried everything and could not get the baby delivered and asked Dr. Ranzini to try. Dr. Ranzini tried to move the baby's shoulder into a different position (the Woods maneuver), but could not reach the shoulder because it was too high. While performing this maneuver, Dr. Ranzini concluded that this was a bilateral shoulder dystocia in that both of the baby's shoulders were stuck on the mother's pubic bone. In a bilateral shoulder dystocia, the baby's neck is "stretched way beyond where it would ordinarily go." This was the first bilateral shoulder dystocia that Dr. Ranzini had handled.
Once Dr. Ranzini realized that this was bilateral shoulder dystocia, she announced that the baby could not be delivered vaginally and that she was going to put the head back (the Zavanelli maneuver) so that an emergency cesarean section ("C-section") could be performed immediately. As Dr. Ranzini pushed, the head recoiled into the uterus or high into the vagina and drenching her with a gush of amniotic fluid which caused her to step backwards.
Dr. Ranzini had handled between ten to fifty cases of shoulder dystocia before 1994. In all these previous deliveries, she was able to deliver the baby vaginally and without using a Zavanelli maneuver. The Medical Center protocols for shoulder dystocia call for the use of cephalic replacement, also called the Zavanelli maneuver, if the other maneuvers fail.
After the Zavanelli maneuver, performed at 2:55 a.m., Dr. Jiminez examined Charmaine internally and announced that there was a cord prolapse. Dr. Ranzini did not observe the cord prolapse. Dr. Jiminez, her hand inside Charmaine's vagina, attempted to hold the baby's head up off the umbilical cord so that it was not pinched off. Dr. Jiminez could feel the cord pulsating, so she knew that she was successfully managing it.
Dr. Ranzini and the nurses disconnected Charmaine's bed and the fetal monitors and moved the bed very quickly to the operating room with Dr. Jiminez riding on the bed while holding the baby's head off the umbilical cord. Dr. Jiminez estimated that it took approximately six to nine minutes to travel from the delivery room to the operating room. The chart showed that a total of four minutes elapsed from the time of the Zavanelli maneuver until Charmaine was in the operating room.
In the operating room Dr. Ranzini observed that there was no other doctor to assist in performing the emergency C-section. Both Dr. Ranzini and Dr. Jiminez anticipated that Dr. Ranzini would perform the C-section while Dr. Jiminez continued to hold up the baby's head. According to Dr. Ranzini, she told Dr. Jiminez, who was still holding the baby's head off the cord, that she would get Dr. Carlos Benito, a fourth year resident, to assist in the surgery. Dr. Ranzini explained at trial that a C-section was always performed with two doctors. When Maak no longer saw Dr. Ranzini in the operating room she believed Dr. Ranzini had gone to find an assistant.
Dr. Jiminez testified that when she got to the operating room, she was surprised that Dr. Ranzini was not there. Because no other doctor was then available to perform the C-section, Dr. Jiminez removed her hand from Charmaine's vagina and began to prepare to operate. Dr. Jiminez conceded that she learned from one of the nurses that Dr. Ranzini had run next door to get a resident to assist with the C-section. Once Dr. Jiminez removed her hand, she was uncertain whether the baby's head had again compressed the cord. However, she also testified that she could no longer feel the cord prolapse and thought that it had replaced itself. Dr. Jiminez said if she had believed that the cord was still prolapsed, she would have asked one of the nurses to manage it.
Nurse Healy, who also assisted, testified that she asked Dr. Jiminez "Where's the cord?" and Dr. Jiminez said "Don't worry I put it back." Maak also saw Dr. Jiminez standing next to Charmaine preparing to do the C-section, but did not hear Dr. Jiminez say anything.
Meanwhile, at about 3:00 a.m., Dr. Ranzini ran to a neighboring operating room to get Dr. Benito. On her way back Dr. Ranzini stopped to scrub at the scrub sink and looked into the operating room where she saw that Dr. Jiminez had taken her hand out of Charmaine's vagina. Dr. Ranzini stopped scrubbing and went into the operating room, asking "what happened to the cord?" Dr. Jiminez replied, "don't worry about the cord prolapse, it's been fixed." After the C- section, Dr. Ranzini asked Dr. Jiminez if Charmaine had been at risk for shoulder dystocia and Dr. Jiminez told her no.
Conor was delivered at 3:07 a.m., February 11, 1994. At birth he showed no heart rate, no signs of respiration, no movement, and was blue as a result of acute profound asphyxia. His Apgar score, which measures a baby's health at birth, was zero out of a possible ten. Conor was aggressively resuscitated and after eight minutes the doctors were able to restore his heartbeat. At this time he had an Apgar score of only three.
Dr. Susan Shen-Schwartz, a staff pediatric pathologist, examined the placenta and umbilical cord after Conor's birth. Shen-Schwartz described the cord as "diffusely hemorrhagic with engorged vessels." She did not believe her observations of this cord were consistent with a compressed cord. The placenta was an abnormal color, gray/white, instead of the normal blue/gray. The chorionic vessels in the placenta were collapsed, which is abnormal and may be a feature of vasospasm, the constriction of the blood vessels in the umbilical cord.
Conor was in a coma and in critical condition after his birth. His birth weight was ten pounds, five or six ounces. He came out of the coma two or three days after his birth and the neonatologists told Charmaine that Conor had suffered acute asphyxiation. Another doctor said that Conor was severely brain damaged, had severe cerebral palsy, would never walk or possibly talk, and would need constant care. Conor had no suck or swallow reflex and needed to be suctioned through his nose and mouth every three to five minutes. He also needed medication to control his seizures, a nasal tube to maintain an adequate oxygen level, and a feeding tube. Conor died on January 5, 1997, with the cause of death listed as pneumonia.
Plaintiffs presented the videotaped testimony of Dr. Bernard Nathanson, an expert in obstetrics, who called the fetus's lack of movement on February 9, 1994, a "very ominous turn of events." He said that babies at or near term who stop moving are generally compromised and less able to cope with hypoxia (a reduction of oxygen to the fetal tissue).
Nathanson noted that when Charmaine was first admitted to the Medical Center, she was given a biophysical profile test to assess the health of the fetus and scored four points out of a possible ten, which "is to be interpreted as probable asphyxia." He said this test "should have been repeated in an hour or two thereafter, because this is right on the borderline of exhaustion of the fetal reserves and fetal decompensation." He opined that Dr. Jiminez's failure to consult with a high-risk perinatalogist after receiving these test results was a deviation from the standard of care. At this point Dr. Jiminez should have delivered the baby by C-section instead of inducing labor because the baby was beginning to be asphyxiated. According to Nathanson, when Dr. Jiminez checked the fetal heart monitor the next morning and found that there was no variability in the heart rate, this was an ominous finding indicating possible fetal brain damage from hypoxia.
Because later that day the baby's head was progressing more slowly than normal Nathanson felt this indicated obstructed labor and Dr. Jiminez should have ordered a C-section at that point. He said that the fact that Charmaine's amniotic fluid was clear at 8:55 p.m. when Dr. Jiminez ruptured the membrane was "relatively reassuring," but did not rule out asphyxia. The heart fetal monitoring strips from around this time were "unremarkable" and did not really indicate anything about the baby's status.
In Nathanson's opinion, Dr. Jiminez's requests for the nurses to apply fundal pressure to Charmaine before and after delivery of the head was a deviation from accepted standards of medical care. Fundal pressure is applied to the top of the mother's uterus in an effort to push the baby out of the birth canal. Before the head is delivered, fundal pressure has the potential to inflict injury on the fetus's head. In the case of shoulder dystocia, fundal pressure makes matters worse because it pushes the baby's shoulder into the mother's pubic bone.
Nathanson testified that Dr. Ranzini deviated from accepted standards of medical care by failing to check for a cord prolapse immediately after the Zavanelli maneuver. In his view, Dr. Ranzini also deviated from the accepted standard of care when she left the operating room to find a resident to assist her, rather than performing a C-section while Dr. Jiminez managed the cord prolapse. He considered it a serious deviation from the standard of care for Dr. Ranzini to fail to manage the cord prolapse after she returned to the operating room and discovered that Dr. Jiminez was no longer managing it.
According to Nathanson, Conor was a macrosomic (abnormally large) baby. Nathanson also said that Charmaine's abnormally large fundal (a portion of the uterus) height during her pregnancy should have indicated to Dr. Jiminez that the fetus was macrosomic. Obese women such as Charmaine, who weighed 241 pounds when she became pregnant, are at greater risk of having a macrosomic baby due to gestational diabetes. Charmaine was screened for diabetes in November and the test showed abnormally elevated levels. A week later the test was repeated and revealed one abnormal value. In Nathanson's opinion, Dr. Jiminez deviated from accepted standards in failing to give the test a third time because Charmaine probably had gestational diabetes.
Dr. John J. Shane, a pathologist, testified for plaintiffs and reviewed Dr. Shen-Schwartz's report on the placenta and umbilical cord. His report said that the cord was diffusely hemorrhagic--that is--the cord contained red blood cells which had escaped from the veins which ran through it. His report also noted that the blood vessels in the cord were engorged, meaning that they were distended and dilated with blood. Moderate deposits of fibrin in the sub- chorionic plate were also noted. Shane opined that the hemorrhagic cord and engorged vessels were caused by cord compression. The diffuse hemorrhagic change of the cord was the result of hypoxia (reduction of oxygen to the baby). In addition, the vascular engorgement implied cord compression that did not allow the blood to circulate. Moderate deposits of fibrin in the chorionic plate indicated hypoxia. The abnormalities found in the cord and placenta were in his opinion from acute changes occurring close in time to the C-section.
Shane stated that Shen-Schwartz's observation that the cord was not flattened was consistent with his conclusion that there had been cord compression because the cord is a shock absorber and it might be flattened during compression, but when the pressure was relieved, it sprang back to normal size. Shane further opined that to produce the type of hemorrhage seen in the cord, it would have to be compressed for five to ten minutes.
Plaintiffs also called Dr. George Peckhan, an expert in pediatrics and neonatology, who testified as to the cause of Conor's brain damage and cerebral palsy. Peckhan opined that Dr. Ranzini's performance of the Zavanelli maneuver led to the cord prolapse because when Conor's head emerged, the cord was around his neck and remained in the vagina and was trapped and compressed by the baby's head.
Peckhan opined that Dr. Ranzini's failure immediately after the Zavanelli maneuver to check for cord prolapse proximately damaged Conor. Compression of the cord reduced blood flow and oxygen to Conor's brain and prevented removal of the baby's waste products, such as the carbon dioxide from the baby's breathing. The obstruction of carbon dioxide leaving the baby can cause damage within minutes.
Peckhan stated that once Dr. Jiminez took her hand out of Charmaine's vagina it was impossible for the umbilical cord to retract into the womb. He estimated from his experience and the results of Conor's cord blood gas studies, that Conor had acute profound asphyxia at birth because he had been deprived of oxygen for approximately fifteen to twenty minutes. In his opinion Dr. Jiminez's removal of her hand from Charmaine's vagina to perform the C- section contributed to Conor's brain damage. However, Dr. Jiminez had no option but to begin to scrub for the operation. Dr. Ranzini's failure to manage the cord after she came back into the operating room proximately caused damage to Conor. Also, Peckhan felt that Dr. Jiminez's failure to do a C- section immediately upon Charmaine's admission to the hospital was not the proximate cause of damage to Conor. Rather, the damage was "very specific and very close to the time of his delivery at 3:07 a.m." He said he saw no evidence of ongoing damage to Conor before that time. Peckhan did not believe that the use of Pitocin (a drug used to cause contractions in the mother) at 6:00 p.m. proximately caused the damage to Conor. Nor did he believe that the fundal pressure that was applied proximately caused the damage.
Peckhan admitted that in an earlier report (April 13, 1995) in which he listed the causes of Conor's injuries, he did not mention Dr. Ranzini's actions as a cause. Rather, in that report, he attributed the damage to Conor to the actions of Dr. Jiminez, including, failure to recognize the lack of fetal movement; failure to examine Charmaine for fourteen hours after admission to the hospital; failure to refer her to the High Risk Maternal Fetal Division when she was admitted to the Medical Center; failure to recognize that her labor was dysfunctional; negligence in the administration of Pitocin because in the case of shoulder dystocia, the contractions force the baby's shoulders into the mother's pelvis; and application of fundal pressure which may compress the umbilical cord and compromise fetal circulation. This earlier report stated that if Charmaine had been referred to the high-risk division, she would not have undergone a vaginal delivery. It was not until nine months later, when Peckhan wrote a second report dated January 18, 1996, that he focused on Dr. Ranzini.
Dr. Michael Kreitzer, an expert in obstetrics, testified for Dr. Ranzini and opined that she did not deviate from medical standards in her care of Charmaine. He emphasized that Dr. Ranzini did "a remarkable job under the circumstances." Shoulder dystocia is an emergency that can lead to injury and even death to the baby and mother. He explained that if the head is delivered the baby will try to breathe, but it cannot move air inside its lungs because they are still within the mother's abdomen. Absent prompt delivery the baby would die.
Kreitzer also stated that Dr. Ranzini did not violate the standard of care when she failed to check for cord prolapse after the Zavanelli maneuver. As a result of the Zavanelli maneuver, Dr. Ranzini was drenched with a gush of amniotic fluid. He considered it a normal response for Dr. Ranzini to momentarily step back, and at this point, it was appropriate for her to allow Dr. Jiminez to step in and check the cord.
Neither did Kreitzer believe that Dr. Ranzini violated the standard of care by running to get Dr. Benito to assist in the C-section. He said that procedure required at least two people and he considered the short time between the Zavanelli maneuver and the C-section as "remarkable."
Kreitzer also opined that it was not a deviation from the standard of care for Dr. Ranzini not to try to manage the cord in the operating room after Dr. Jiminez told her that she had replaced it because if the cord had been replaced successfully then there was no need to try to keep the baby's head from compressing it. In Kreitzer's opinion, Dr. Ranzini's presence at the delivery contributed to the baby being born alive, rather than dead.
In responses to special interrogatories, the jury found that Dr. Ranzini was negligent for not "checking or managing the condition of the cord immediately after the Zavenelli maneuver in the labor and delivery room." However, the jury found that Dr. Ranzini was not negligent for not "checking or managing the cord after reentering the operating room."
Plaintiffs assert that the judge erred in sua sponte entering judgment for Dr. Ranzini n.o.v. They argue that the judgment for Dr. Ranzini was in error because the judge entered it based on a mistaken understanding of the record and the law of substantial factor. Plaintiffs also argue that the judge's action was flawed procedurally because ...