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Das v. Thani

May 08, 2002

WALTER DAS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF EMMANUEL ANDREWS DAS, AND AS ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF EMMANUEL ANDREWS DAS, AND REGI ANDREWS DAS, H/W, PLAINTIFFS-APPELLANTS,
v.
SURESH R. THANI, M.D., DEFENDANT-RESPONDENT, AND JAMES L. KUSNIERZ, M.D., JOHN DOE, M.D., A FICTITIOUS PERSON, AND JANE DOE, A FICTITIOUS PERSON, DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

This matter sounds in obstetrical medical negligence. Dr. Suresh R. Thani assessed fetal movement in a gestational-diabetic patient during her pregnancy by asking her to count the number of times she felt the fetus kick in her womb, a technique referred to as maternal fetal monitoring, rather than by using modern ultrasound, electronic fetal monitoring, and biophysical profile methods that were available in his office. The issue raised in this appeal is whether the trial court was obligated to instruct the jury that the medical judgment defense was unavailable to Dr. Thani if it accepted the theory that it was a deviation from the accepted standard of care for Dr. Thani not to have used the more modern fetal monitoring techniques.

Dr. Thani was a specialist in obstetrics and gynecology. Regi Das became Dr. Thani's patient in the spring of 1994 when she was pregnant with her first child. On October 5, 1994, Dr. Thani informed Regi that she was diabetic and prescribed her insulin. In her thirty-ninth week of pregnancy, Regi went to the hospital because she could not feel any fetal movement. At the hospital, doctors performed an ultrasound, electronic fetal monitoring, and a biophysical profile. Those tests revealed that there was fetal movement but the fetal heart rate was abnormal and the amniotic fluid volume was low, indicating that the fetus was not getting enough oxygen. The doctors explained that this condition had developed over a prolonged period of time and that the baby had to be delivered immediately. Regi delivered a son by Caesarian section. The child needed immediate resuscitation and died four days later.

Regi Das and her husband, Walter, sued Dr. Thani, alleging that he was negligent in failing to use modern methods to monitor the fetus, resulting in the premature birth and death of their baby. Throughout Regi's pregnancy, Dr. Thani did not use equipment that was in his office to perform ultrasound examinations, fetal monitoring, or biophysical profiles to monitor the health and development of the fetus. Instead, he used maternal-fetal monitoring and finger measurements to determine fetal health and growth.

The Das' presented an expert at trial who opined that Dr. Thani should have used more accurate and standard methods of ultrasound examinations, fetal monitoring, and biophysical profiles once he had prescribed insulin during Regi's thirty-second week of pregnancy. The expert asserted that those tests should be performed prior to fetal maturity in cases of gestational diabetes because insulin-dependent diabetics are at a greater risk for fetal death in the third trimester. According to the expert, testing was necessary to determine if this high-risk pregnancy should be terminated early to save the fetus. The expert further testified that each of the monitoring procedures that Dr. Thani should have used had been available for many years prior to Regi's pregnancy. It was the opinion of the expert that Dr. Thani breached the standard of care by not performing those tests.

Dr. Thani also provided expert testimony at trial. Dr. Thani's expert acknowledged that the tests referred to by the Das' expert had been in use for fifteen years, but opined that maternal-fetal monitoring complied with the standard of care. Dr. Thani stated that it was simply for "medical reasons" that he did not use the more accurate tests that his office was equipped to perform.

At the conclusion of trial, the judge submitted the case to the jury with a medical judgment charge. The jury returned a verdict for Dr. Thani. The Das's moved for a new trial. The trial court denied the motion, reasoning that the case came down to a "battle of the experts" and the jury believed the defense expert.

On appeal, The Das's argued that the trial court failed to tailor the medical judgment charge to the facts of the case, thereby allowing the jury to excuse Dr. Thani's negligence as medical judgment. The Appellate Division affirmed the decision of the trial court. On petition for certification granted, the Supreme Court remanded the case to the Appellate Division in light of the decision in Velazquez v. Portadin. On remand, the Appellate Division acknowledged that the trial court failed to tailor the jury instruction to the facts of the case but, nonetheless, reaffirmed its prior decision. The Supreme Court again granted certification.

HELD: The trial court was obligated to instruct the jury that the medical judgment defense was unavailable to Dr. Thani if it accepted the theory that it was a deviation from the accepted standard of care for Dr. Thani not to have used the more modern fetal monitoring techniques. The failure to appropriately tailor the charge to the particular facts and specify what actions may constitute a proper exercise of medical judgment was reversible error.

1. Because the Das's failed to object to the jury charge at the time of trial, any error in the jury charge is reviewable only as plain error. Clear and correct jury charges are essential to a fair trial, and the failure to provide them may be plain error. (pp. 9-13)

2. To constitute medical judgment, a medical decision generally must involve misdiagnosis or the choice of one of two or more generally accepted courses of action. In the latter category, the course of treatment followed must be an "equally acceptable approach" in order not to be considered a deviation from the appropriate standard of care. If the medical judgment rule were misapplied to a case that involves only the exercise of reasonable care, the aspect of the rule that excuses a doctor for mistTo constitute medical judgment, a medical decision generally must involve misdiagnosis or the choice of one of two or more generally accepted courses of action. In the latter category, the course of treatment followed must be an "equally acceptable approach" in order not to be considered a deviation from the appropriate standard of care. If the medica

3. The trial court failed to tailor the jury charge to the theories and facts presented. The failure to specify what actions may constitute a proper exercise of medical judgment was reversible error. The jury should have been instructed that in order for Dr. Thani to prevail based on the exercise of medical judgment, the jury had to find that maternal fetal monitoring represented an equally acceptable approach to the other, more modern alternatives. (pp. 16-17)

4. Because the jury was not properly instructed regarding medical judgment based on the evidence and legal theories presented, the jury was free to excuse Dr. Thani's actions by using a lesser standard. The jury was not properly instructed that it could believe the defense expert testimony -- that using modern equipment was not required by the appropriate standard of care-- only if the decision not to use the modern equipment represented an equally acceptable and objectively reasonable determination baseBecause the jury was not properly instructed regarding medical judgment based on the evidence and legal theories presented, the jury was free

5. The medical judgment charge was grossly inadequate when viewed in the context of the evidence presented and the claims made by the Das'. Because these inadequate jury instructions had the tendency to mislead the jury, there was plain error that was clearly capable of producing an unjust result. (pp. 18-19)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division for a new trial.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE COLEMAN'S opinion.

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

Argued February 11, 2002

This is an obstetrical medical malpractice case in which the defendant treating physician relies on the medical judgment rule. Defendant Dr. Suresh R. Thani chose to assess fetal movement by asking the mother-to-be to count the number of times she felt the fetus kick, a technique referred to as maternal fetal monitoring, rather than by using modern ultrasound, electronic fetal monitoring and biophysical profile methods that were available in his office. Based on expert testimony for the defense that it was a question of medical judgment which technology to use, the trial ...


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