The opinion of the court was delivered by: Coleman, J.
On certification to the Superior Court, Appellate Division, whose opinion is reported at 330 N.J. Super. 568 (2000).
This medical malpractice case raises two narrow issues: whether defense counsel has an obligation to communicate material changes in defense witnesses' testimony to counsel for the plaintiffs when defense counsel discovers that there will be such change prior to trial, and whether plaintiffs were entitled to a mistrial when the anticipated change in testimony was not disclosed until after plaintiffs had rested. We conclude that because a mistrial should have been declared, plaintiffs are entitled to a new trial.
Plaintiffs Jannie McKenney (McKenney) and her husband brought this action on behalf of themselves and their infant son, Jarrell, seeking damages for wrongful birth, wrongful life, and injuries sustained during delivery. The complaint alleged that the Jersey City Medical Center (JCMC), the Family Health Center (FHC) (a subsidiary of the JCMC), and several of the JCMC/FHC staff members, failed to provide proper prenatal care and proper care at the time of delivery. On November 24, 1990, McKenney gave birth to Jarrell by vaginal delivery, and at delivery the doctors determined that Jarrell was afflicted with spina bifida. That condition involves a defect in the spinal column consisting of the absence of a vertebral arch through which the spinal membranes may protrude. Stedman's Medical Dictionary 1315 (5th Lawyers' ed. 1982).
In addition, as explained by the Appellate Division:
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." [McKenney v. Jersey City Med. Ctr., 330 N.J. Super. 568, 578 (App. Div. 2000).]
Plaintiffs claim that "sonograms taken August 13, 1990 exhibited the presence of a lemon sign." Ibid. Plaintiffs contend that McKenney would have terminated her pregnancy if she had foreknowledge about Jarrell's condition, and that the doctors aggravated Jarrell's condition by performing a vaginal delivery rather than a caesarian section.
The complaint that was filed in November 1992 also named Dr. Long-Gue Hu; Sipra De; Dr. Alexander Prezioso, who treated McKenney in November 1990; and Dr. Euk Kim, who treated McKenney late in her pregnancy and who was also the director of the FHC in 1990. The claims against Drs. Prezioso, Kim, and Hu are based on their failure to detect the spina bifida in the ultrasound films and/or their failure to order a more targeted ultrasound study.
Plaintiffs also sued Dr. Kim in his capacity as FHC director for failing to ensure continuity of medical care at the FHC. The claims against Drs. Prezioso and Kim -- the latter in his capacity as a treating physician -- were limited to injuries sustained during delivery because those doctors did not treat McKenney until well into the third trimester.
Plaintiffs dismissed their independent claims against the JCMC and FHC because at that time the hospital was subject to a $10,000 limitation on liability, see N.J.S.A. 2A:53A-8, and plaintiffs preferred to risk no recovery than to allow a jury the option of finding only the capped defendants liable. The JCMC and FHC remained in the case solely in a respondeat superior capacity.
The theory of liability against De was that she failed to ensure that the sonogram images she took on August 13 and 16 were read and interpreted by a doctor. The trial court granted summary judgment to De in February 1997, dismissing the complaint for want of proof that De had deviated from the standard of care. The remaining defendants were precluded from using the "empty- chair" defense to argue to the jury that De was negligent. See Bahrle v. Exxon Corp., 279 N.J. Super. 5, 22 (App. Div. 1995), aff'd on other grounds, 145 N.J. 144 (1996).
McKenney became aware that she was pregnant in April 1990 with an anticipated delivery date of December 8, 1990. The FHC treated her from August 1990 until the date of her delivery. She first appeared at the FHC with an appointment on August 10, 1990. At that time it was estimated that she was in the twenty-second or twenty-third week of her pregnancy. McKenney was examined by Dr. Hasanee and instructed to undergo a sonogram. The sonogram was performed on August 13, 1990 at the JCMC by Sipra De, a certified ultrasound sonographer, to determine the gestational age of the fetus. The sonogram normally would have been performed at the FHC, but because the FHC sonogram machine was broken in August 1990, the sonograms for FHC patients were performed at the JCMC. The JCMC is located in a separate building several blocks away from the FHC. According to plaintiff's expert's testimony, one of the sonogram images taken on August 13 clearly indicated that Jarrell had spina bifida. De testified at her depositions that she did not detect a "lemon sign" from the sonograms, but she noted the presence of a "membrane" associated with twins in one of the sonogram images. The JCMC's protocols required De to notify a doctor if anything "questionable" appeared on the sonogram.
Dr. Hu, the chief Obstetric/Gynecological (Ob/Gyn) resident at the JCMC was assigned to the FHC for the month of August. He reviewed the August 13 sonograms, but did not detect spina bifida. However, there is uncertainty concerning when Dr. Hu reviewed the August 13 sonograms. In his depositions, Dr. Hu testified that the August 13 sonograms were probably taken at the FHC, and because he was stationed at the FHC when those sonogram images were taken he admitted that he probably reviewed them on August 13. Dr. Hu changed his testimony at trial, however, stating that upon review of a JCMC sonogram log book that plaintiffs' counsel had sought unsuccessfully to obtain during discovery, he was able to determine that the August 13 sonograms were, in fact, performed at the JCMC. Examination of the log book persuaded Dr. Hu to testify at trial that he probably did not review the August 13 sonograms until near the end of August. That change in testimony was critical because other facts at trial indicated that on August 13, McKenney was at or near twenty-four weeks into her pregnancy, and she would not have been able to secure a legal abortion in New Jersey in 1990 after the twenty-fourth week.
As noted previously, De was named a defendant, but the trial court granted summary judgment dismissing the complaint against her between five and six months before the trial commenced. The August 13 sonogram report contained a number of notations, most of which were attributed to Dr. Hu. One important notation -- "follow-up study suggested" -- was not. At her deposition, De testified that she did not make that notation and did not know who had made it. At trial, however, De admitted that she had made the notation. That admission suggested that, in contrast to her deposition testimony, her skills exceeded those of a "mere" technician.
De testified at her deposition and at trial that a doctor (who plaintiffs were never able to identify) reviewed the August 13 sonograms at the JCMC on August 13. That unidentified doctor informed De that he detected abnormalities on the sonogram images indicating that McKenney might have had a "vanishing twin" (a condition in which the mother is pregnant with twins but one of the twins dies and is absorbed early in the term), and instructed De to order a specialized sonogram study by a "high-risk" radiologist. The accuracy of that surprising trial testimony also was called into ...