On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1302-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez, Lyons and Kestin.
Donato S. Russo, M.D. and Marianne K. Herrighty, M.D., both OB-GYNs, appeal from a verdict awarding damages in a wrongful birth action to Hailey DoOuteiro, through her mother and guardian, Anna DoOuteiro, and to her parents, Anna and Paul DoOuteiro, individually (collectively "plaintiffs"). We reverse and remand for a limited trial to apportion liability.
These are the salient facts. Anna became pregnant with her second child in early November 2001. Defendants provided her with prenatal care, as they had during her first pregnancy.
On January 16, 2002, defendants wrote Anna a prescription for an "OB ultrasound for anatomy." The ultrasound was performed by Lawrence G. Seltzer, M.D. In a report dated February 5, 2002, Seltzer indicated the results of the ultrasound. He specifically noted, "The spinal column is parallel with no evidence of a spina bifida." The report makes no mention of the cerebellum. On July 3, 2002, Hailey was born with spina bifida.
According to expert testimony adduced at trial, spina bifida is a condition caused by an opening in the bone surrounding the spinal cord, which can result in paralysis and a loss of sensation below the defect. Ultrasounds detect approximately ninety percent of spina bifida cases. Spina bifida is best detected in an ultrasound view of the cerebellum, which will exhibit an abnormal "lemon sign" in the skull or "banana sign" in the cerebellum, both caused by a loss of cerebral spinal fluid. A view of the spinal column is a less-effective means of detecting spina bifida.
Plaintiffs filed suit against defendants and Seltzer, alleging they negligently failed to detect evidence of Hailey's severe birth defects, which in turn deprived Anna of her right to terminate the pregnancy. Defendants filed an answer that included a "Demand and claim for contribution under the terms and conditions of the Joint Tortfeasors Contribution Act and the Comparative Negligence Act . . . against all named co-defendants." The answer also included a "Notice of Allocation," which provided:
Pursuant to R. 4:7-5(c) and Young v. Latta, 123 N.J. 584 (1991), this defendant hereby advises that if any co-defendant settles the within matter prior to conclusion of trial, the liability of any settling co-defendant shall remain an issue and this defendant shall seek an allocation of percentage of negligence by the finder of fact against such settling co-defendant and/or a credit in favor of this defendant consistent with such allocation.
Defendants' expert, Allen Donnenfeld, submitted a report that did not discuss any problems with the ultrasound or with Seltzer's analysis. However, at deposition, Donnenfeld stated that he could not make any assessments based on the ultrasound images because the copies of the films he received were "very dark, blurry, and very small." Donnenfeld noted that Seltzer's report did not mention the cerebellum and that "the standard of care is to evaluate the cerebellum and to document if you see it and you measure it; and if you don't see it, that you don't see it."
Before trial, plaintiffs settled with Seltzer. Shortly thereafter, defendants attempted to submit a supplemental letter, without supporting certification, in which Donnenfeld opined that Seltzer deviated from the standard of care.
In a series of rulings, the judge permitted the parties to inform the jury that another defendant had settled out of the case, but denied defendant's request that the jury be permitted to apportion fault to Seltzer. Donnenfeld was permitted to testify as to the standard of care for conducting a prenatal ultrasound but could not testify, consistent with his supplemental letter, as to whether Seltzer had deviated from the standard of care.
The jury returned a verdict finding defendants liable for Hailey's wrongful birth, apportioning fault fifty-one percent to Russo and forty-nine percent to Herrighty. The jury awarded $197,678 to compensate Hailey for her for extraordinary medical expenses until she reached the age of eighteen, $1,071,323.70 to compensate Hailey for such expenses ...