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Kowalski v. Palav

August 25, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4433-99.

Per curiam.


Argued March 2, 2010

Before Judges Carchman, Parrillo and Lihotz.

In this medical-malpractice case, following an extensive trial, a jury returned a verdict in favor of plaintiff Brandon Kowalski, an infant by his guardian ad litem and mother Bonnie Kowalski*fn1 against defendant Aravind B. Palav, M.D. (Palav or defendant). The jury found against plaintiff in his claim against defendant Carlos A. Donadei, M.D. The jury also rejected Bonnie's direct claim for damages caused by emotional distress. During the course of the trial, the judge dismissed a "chain-of-command" claim against defendants Barbara Crawford, R.N., Glenda Concepcion, R.N. and Riverview Medical Center. Plaintiff appeals, and defendant cross-appeals.

We conclude that the trial judge committed reversible error by failing to promptly limit the testimony of Nurse Dina Zeh as to her interpretation of the fetal monitor strips and give a prompt and definitive limiting instruction. We also conclude that the judge erred in failing to permit defendant to introduce a report, identified as the Criterion Report, into evidence. We determine that these errors, either alone or combined, were capable of producing an unjust verdict, and accordingly, we reverse and remand for a new trial on both the issues of liability and damages as to defendant Palav. As to the additional issues raised on the appeal and cross-appeal, we conclude that they are without merit and affirm.


Our analysis of the issues requires that we provide an expansive recitation of the relevant facts.*fn2 Bonnie, age thirty-nine at the time of the pregnancy, had her first prenatal visit with Palav on April 15, 1997. Palav, who had been a practicing physician for thirty-seven years and a specialist in OB/GYN for thirty-three years, considered her a high risk because of her age. Bonnie's amniocentesis was normal, as was an ultrasound performed two days prior to Brandon's birth.

Early on the morning of September 11, 1997, when she was thirty-weeks pregnant, Bonnie "woke up with just indigestion or a little cramping[,]" which she attributed to her dinner. She arose at approximately 7 a.m., had a light breakfast and, about fifteen minutes later, felt pains in her stomach and vomited. She rested briefly and, once she felt better, left for work. Her stomach pains began again around 4:45 p.m., after which she vomited and started having difficulty standing up. After ten minutes, Bonnie left work and returned home, where, once she laid down in bed, she was unable to get up again or call Monaco Stanislao, Brandon's father, for help.

When Stanislao returned home, he found Bonnie in pain, an observation confirmed by a friend, Robin Batcho, who arrived at the house around 5:45 p.m. for dinner. According to Batcho, Bonnie was "in severe pain and . . . was basically [i]nconsolable."

Palav noted that Bonnie called him around 6:30 p.m. or 6:45 p.m., and he told her he would meet her at Riverview Medical Center. Although another hospital was closer to Bonnie's home, Palav had admitting privileges at Riverview and wanted to treat her himself.

Michael Pinette, an OB/GYN with a specialty in maternal fetal medicine and plaintiff's expert, opined that Palav's decision to send Bonnie to Riverview created "a substantial delay to start with[]" and was the first deviation in the standard of care. However, Richard Luciani, Palav's OB/GYN expert, countered that:

Dr. Palav appropriately said to [Bonnie] . . . to come to his hospital . . . because he would obviously be the one that would be able to evaluate her and treat her. And obviously he would be comfortable in his own hospital should she have a problem in getting people to help him . . . . [I]t was appropriate for him to send her to that hospital.

Although at trial Palav recalled that, during their phone conversation, Bonnie only told him about her abdominal pain, in his deposition he remembered that she discussed all of her symptoms. Palav's initial impressions ruled out placental abruption because there was no vaginal bleeding. Pavlav also ruled out general obstetrical problems based on the phone call and the fact that he had seen her two days before. After completing his conversation with Bonnie, Palav called labor and delivery to inform them that he had a patient coming to the emergency room with abdominal pain. He instructed that she should not be left sitting in the emergency room, and that they were to call him immediately once she arrived. Luciani determined that these actions met the relevant standards of care; Pinette, however, opined that Palav also should have had a sonographer ready upon her arrival.

Palav was not at the Hospital to meet Bonnie in the emergency room, a fact Pinette characterized as a deviation. However, as Palav had instructed, when Bonnie arrived she was taken to labor and delivery where Nurse Dina Zeh (also referred to in the record as Dina Tricarico) took her blood pressure and temperature, finding that the former was high and the latter was 97.7 degrees. At 7:50 p.m., Zeh called Palav and "asked him to come to the Hospital right away[,]" because Bonnie "was having very severe abdominal pain and . . . the baby's heart rate was too high." The baseline fetal heart rate is normally between 120 and 160, and Zeh noted that "the baby's heart rate was in the 170s." Pinette explained that accelerations in the baby's heart rate "are generally thought to be reassuring[, while] [d]ecelerations . . . are generally thought to be non-reassuring." Furthermore, "[e]levations in baseline rates are not reassuring."

Pinette further explained that when a mother loses blood, both her heart rate and the baby's might increase, although the baby's rate is not necessarily dependent on the mother's. However, he noted that "at some point, the baby will . . . start to get a loss of oxygen that will actually try to slow down its heart . . . ." Decelerations following accelerations indicate that a baby is attempting to compensate for a decline in available oxygen. As decelerations progress, a baby becomes more and more hypoxic and begins to produce lactic acid. The acid causes tissue destruction, including damage to tissue in the brain and heart. Pinette testified that once a baby's pH level drops to 7.15, actual damage is occurring.

Palav arrived at 8:15 p.m. He admitted that the standard of care for someone with Bonnie's symptoms required evaluation as soon as possible but would not go so far as to say he was required to examine her within an hour. Upon his arrival, Palav knew that the baby was showing signs of tachycardia, but he stated that the baby's heart rate "settled down a little later to around 160." Pinette agreed that, when Bonnie arrived at the Hospital, the baby was "okay" and was "not hypoxic."

During his examination, Palav found that, consistent with her complaints of severe pain all over, she had tenderness on her right side. He also found that her white blood cell count was significantly elevated, which is a sign of infection, but noted that her other blood counts were stable and did not indicate blood loss. Her temperature at 8:20 p.m. was 99 degrees. According to Luciani's review, the baby's heart beat during the exam was fluctuating within the normal range, which was reassuring. Palav did a pelvic exam and basic ultrasound to determine whether there were problems in the uterus. "[H]e felt that obstetrically that the patient was very, very stable. And that was appropriate based on what he saw."

Palav believed Bonnie's "condition was more serious than the baby's condition. I had to prioritize according to her symptoms. Because I felt that she had an acute abdomen and ha[d] to be taken care of as soon as possible." He never believed the baby was in jeopardy. Bonnie's "[a]cute abdominal pain along with vomiting[,]" on the other hand, led Palav to believe she had appendicitis. Luciani concurred, opining at trial that "[a]ll signs pointed to appendicitis."

Palav determined that he did not need to conduct additional tests because he knew Bonnie needed surgery, but, as an OB/GYN, he also knew he needed a surgical consult to confirm his diagnosis and perform the surgery. The first surgeon he called was too far away to assist. He then learned that Donadei was performing surgery in the Hospital and went to the operating room around 8:45 p.m. to request his help. Donadei informed Palav that as soon as he was finished with his current surgical patient, he would examine Bonnie. Donadei indicated that it was his practice to only work on one patient at a time, and that he never ordered tests on a new patient without seeing the patient first. Robert Shack, Donadei's surgical expert, confirmed that surgeons should not order tests prior to examining patients.

In the meantime, Zeh indicated that at 8:45 p.m., she reestablished the baby's baseline heart rate at 170-175 with a deceleration to 150 for about one minute. Zeh noted that she had some trouble maintaining a reading because Bonnie was moving around due to pain.

Palav returned to labor and delivery and stated that, at 8:50 p.m., the fetal monitoring strips showed the baby's baseline at 160 with a short term variation that did not concern him. Zeh informed him of her earlier readings and her worry, but Palav told her that "he was concerned about the mom." She responded that she was concerned about both patients. Of critical importance to the issues in this appeal, Zeh told Palav that she believed Bonnie needed a C-section, and she had Bonnie sign consent forms for both a C-section and vaginal delivery because she "knew that the baby needed to come out . . . ." Similarly, Pinette opined that, from 8:50 p.m. on, the baby exhibited "a worrisome pattern" of accelerations and decelerations that indicated hypoxia, but Luciani disagreed because the rate was fluctuating around the baseline, which he stated was a good thing.

At approximately 9:00 p.m., Palav placed the baseline at 150, which he considered normal. Zeh, however, asserted that she told Palav, at 8:58 p.m., that the baseline was at 150-170, with a deceleration to 135-140 for sixty to eighty seconds.

According to Zeh, "[i]t was [] a very traumatic night[,]" and she tried multiple times to communicate to Palav that she did not believe the baby was doing well. At 9:05 p.m., Zeh was unable to obtain accurate readings because of Bonnie's movements, but she testified that at 9:10 p.m. the baby's heart rate had dropped to 65-90.

Zeh ultimately decided to go over Palav's head because she "felt nothing was getting done. I thought the baby was in distress and that [Palav] wasn't [as] concerned as I was. And I had to go over his head to try to get this baby delivered." She went to Crawford, the charge nurse, at 9:10 p.m. and activated the chain of command. Zeh indicated that "at this point I had tears in my eyes and I was very upset because I wanted to protect my patient and I felt like what I was doing wasn't achieving that. So I was very teary eyed and very upset" when speaking to Crawford. She stated that Palav also saw the tears in her eyes as she repeatedly expressed her concerns about the baby's condition.

From 9:00 p.m. and until approximately 9:30 p.m., Palav believed the fetal heart rate readings were unreliable due primarily to Bonnie's continuous movement. Luciani agreed that it was difficult to ascertain the baby's heart rate during that period. Pinette believed that the tracings at 9:10 p.m. indicated that the baby was in trouble, and the doctors had thirty minutes to an hour to deliver him without damage, but also critical to the issue, he agreed that the strips were unreliable from about 9:10 p.m. forward.

Zeh testified that, at 9:05, the baby's heart rate was down to 70-90, although it was difficult for her "to obtain [a] continuous tracing due to [Bonnie] moving because of pain." She also testified that, at 9:10 p.m., the fetal heart rate was 65-90, and that Palav was aware of that fact. She admitted, however, that, around 9:20 p.m., she was unsure whether the monitor was showing the baby's heart rate or Bonnie's, although she wrote that the baby's rate was 110-120, with a deceleration to 90, and Bonnie's was 110.

Zeh also admitted that it is possible for reasonable people to differ when interpreting the fetal monitoring strips that, on occasion, the readings can appear poor even when the baby is healthy. Pinette agreed that two physicians could interpret the strips in different ways.

Donadei arrived at 9:10 p.m., examined Bonnie until about 9:25 p.m. and concurred with Palav's diagnosis of appendicitis. He asserted that, based on her symptoms, acute appendicitis would be correct 99% of the time. Shack agreed that "[t]he number one cause o[f] surgical complication[s] of pregnancy is that of acute appendicitis."

Based on their shared diagnosis, Palav and Donadei decided that Bonnie required immediate surgery to conduct an exploratory laparotomy, a decision Shack noted was consistent with the standard of care. Despite Pinette's contentions that the doctors erred by failing to order additional tests, Shack explained that delaying the surgery to order an ultrasound or CT scan would have been of "[n]o benefit" and could have "potential[ly] [caused] great harm." Moreover, Luciani observed that tests are generally intended to determine treatments, and were unnecessary here because the doctors already knew how they were going to treat Bonnie.

From a surgical perspective, Donadei also believed there was no time to order additional tests in light of Bonnie's acute abdomen and the fact that he did not expect to learn anything new from the tests. However, David Befeler, plaintiffs' general surgery expert, opined that an abdominal ultrasound "was absolutely vital" under the circumstances. Leslie Scoutt, a radiology professor at Yale University, asserted that an ultrasound would "almost certainly" have shown fluid in the belly which could have changed the differential diagnosis and noted that, contrary to Donadei's and Shack's contentions, it could have been performed quickly without any risk. However, Scoutt admitted that a CT scan would have been more risky given the possibility of irradiating the baby.

While Donadei and Palav were diagnosing Bonnie and deciding on a treatment plan, Zeh notified Crawford at 9:10 p.m. of the decreased fetal heart rate, and testified that she expected Crawford "to go up the next step in the chain of command" and notify the nursing supervisor, Concepcion, of Zeh's concerns. However, because Crawford failed to do so, Zeh went over her head. She told Concepcion that she disagreed with Palav, believed the baby was in distress and had to be delivered, and requested that Concepcion continue up the chain of command to the head of Obstetrics, Robert Farber. According to Zeh, she "looked her straight in the eyes and I said this patient needs the C-section."

Pinette opined that neither Crawford nor Concepcion met the standard of care because neither voiced their concerns or Zeh's concerns to the doctors. Gail Johnson, a registered nurse, opined that "Crawford had the responsibility to try and resolve the conflict. And typically that would have been to hear what [Zeh] had to say and then approach the physician with the situation and ask him to take another look and hear what he had to say as well." She stated that, for the chain of command to stop, the initial reporting nurse must be satisfied. Johnson noted that, just as Crawford failed to do what was required, Concepcion did not meet the standard of care because she did not appear to understand her role. Given that Zeh's concerns remained unresolved, Farber should have been consulted, and Crawford and Concepcion's failure to do so deviated from the requisite standard of care.

However, according to Luciani, under the circumstances, an immediate C-section, as Zeh requested, would have been improper because: (1) there were no indications it was needed; (2) doctors should avoid premature C-sections where possible; and (3) if Palav had performed a C-section before addressing the appendicitis, he could have introduced infection to the uterus. Moreover, Palav stated that it is not a nurse's duty to determine when a patient requires a C-section.

Palav indicated that he was concerned with both Bonnie and the baby but knew that if he did a C-section without a surgical consult, there was a chance Bonnie would have died. He explained that any obstetrician has to consider both mother and baby, but that "you have to prioritize according to the symptoms of the patient. And in this particular case, it was the mother's problems more than the fetus." Luciani agreed, stating that he would deliver a baby only when "delivery [would] not . . . compromise the mother." He indicated, "if you look me in the eye and ask me to make a decision, in my career, that if I had to sacrifice a mother or a baby, the mother will come first every single time and it will always be that way."

At about 9:30 p.m., Palav determined that the baby's heart rate was 110, below normal, for about four or five minutes, after which it went over 130 and then dropped again. Zeh reported that the fetal heart rate was 100-120 at 9:40 p.m., when Concepcion arrived, although she admitted she was still unsure whether she was picking up Bonnie's pulse or the baby's heart. At 9:50 p.m., she noted that the baby's heart rate was 130-140, with a deceleration to 122 for fifty seconds.

At that point, Bonnie was taken to the operating room, and anesthesia commenced at 10:15 p.m. According to Pinette, Bonnie's heart rate was increasing during this time, which indicated blood loss, although the baby had not yet necessarily suffered damage. Palav determined that the baby's heart rate was 132, a number he considered "regular." Luciani concurred that there was no evidence the baby was in distress at the time Bonnie went into surgery. At 10:30 p.m., Donadei made the first incision.

Believing that Bonnie was suffering from appendicitis, Donadei chose to use a McBurney's incision, a small incision in the lower right quadrant of the abdomen that is specifically used for appendicitis. Palav concurred in Donadei's decision.

Pinette, however, testified that the McBurney's incision was improper under the circumstances because: (1) "there [we]re a lot of other diagnoses that need[ed] to be entertained[]" given Bonnie's symptoms; and (2) the appendix in a pregnant patient is pushed higher up so that the McBurney's would not allow for the best access to that area. Pinette asserted that a vertical midline incision would have been more suitable because it would have allowed Donadei "to be able to easily -- first off, get quickly into the abdomen, and be able to easily look at both the right and left sides, so he has access to the entire abdominal cavity. He does not have to do a lot of extensions of incisions."

Befeler agreed with Pinette, explaining that the midline incision is quick and easily extendable, whereas the McBurney's takes fifteen minutes to create and, for extension, requires the doctors to cut across muscles and permanently change the patient's abdominal wall. He opined that, while the McBurney's is the proper incision for appendicitis, "[i]t [was] absolutely the wrong incision in this case." Had Donadei performed an ultrasound, he would have known that Bonnie was not suffering from appendicitis and would have avoided the delay caused by extending the McBurney's incision.

Shack disagreed with Pinette and Befeler, however, indicating that a midline incision on a pregnant patient would prove problematic during the healing process because of the patient's still-expanding abdomen. Donadei also opted against the midline because, in a thirty-weeks pregnant patient with suspected appendicitis, the midline would expose the uterus but would not provide easy access to the appendix. Moreover, exploring other parts of the abdomen would require shifting the uterus, which could initiate labor.

As the doctors opened Bonnie's abdomen, they saw approximately 3500 milliliters, or 3.5 liters, of blood, over 50% of her total blood volume. As Luciani noted, stopping the bleeding then became their primary priority given that, if it was not stopped, Bonnie would "go into shock and die." The doctors spent fifteen-to-twenty minutes removing the blood and extended the incision so that they could examine the rest of Bonnie's abdomen, beginning with the spleen.

According to Shack, when a surgeon finds blood in the abdomen, the appropriate response is to "pack off all four quarters and do a logical, sequential, carefully controlled exploration." He explained that it "would be a critical tactical error if [the doctors] didn't do a complete exploration." The proper procedure according to Shack required examination of Bonnie's entire abdomen, even if some bleeding on the uterus had been observed. However, because they had properly packed the uterus while they were checking for bleeding sites, the doctors did not see the varicosities at that point.

Palav observed Donadei conducting the exploration, searching "practically every organ[] in the abdomen, [including the] spleen, liver, appendix, bowel, small, large, and any big vessel[s,]" all of which are, according to Luciani, "the most common places that people can bleed from inside the abdomen."

Pinette, on the other hand, opined that, while it was proper for Donadei to extend the incision once he discovered the bleeding, it was not proper for him to examine the other organs first. He stated that Donadei should have looked in the pelvic region first.

Palav and Donadei, after ruling out bleeding from any other sources, found the varicosities on the uterus. Palav saw the varicosities on top of the uterus, while Donadei stated they were underneath and, therefore, would not have been visible even if he had performed a midline incision initially. He did, however, admit that Bonnie was bleeding from other places on the uterus but insisted that the posterior bleed was the worst.

Both Palav and Donadei commented that, in all their years of practice, they had never seen bleeding uterine varicosities. Because such bleeding varicosities are so rare, Luciani explained that the uterus would not be the first place doctors would look to find the source of bleeding. Donadei and Palav attempted to suture the veins and applied pads for pressure, after which the bleeding seemed controlled but the varicosities continued to ooze. At this point, Donadei indicated that the situation became an obstetrical problem.

Palav thought that if he "were able to control the bleeding, [he] would like to have the baby continue in utero and continue the pregnancy." He was concerned that a C-section would result in additional blood loss that could negatively effect Bonnie's condition. Luciani asserted that a C-section would have caused loss of another liter of blood, which would have "guarantee[d] that [Bonnie] would have died on that operating table before they ever got a chance to even take care of her."

Although the 3.5 liters of blood Bonnie had already lost would cause concern about the baby, Luciani stated that Palav's primary concern was stabilizing Bonnie. He stated, "when you're in the middle of an operating room with a belly full of blood and a mother that can literally die on you at any time, you don't have great parameters to be able to do something about that in terms of the baby." Pinette, however, disagreed, testifying that as soon as the varicosities were discovered, the baby should have been delivered. He stated that an obstetrician would be more aggressive about getting the baby out knowing it is premature because it is crucial that such babies be delivered in the best possible health.

Bonnie received her first transfusion at 11:15 p.m., and a second at 11:30 p.m. Luciani explained:

[T]hey've got a little bit of blood in. They've controlled these varicosities to the point where at least they're just oozing now.

And Dr. Palav who has zero experience with this, like myself and most other obstetrician[s] in the United States, says, you know I'm not 100 percent sure of what to do now in terms of the baby. The baby was pretty good on the fetal monitor. I think I better get another opinion. You know, let's call somebody in.

Palav decided to call a senior obstetrician in the department, Glassman, because he believed Glassman may have seen similar cases. Luciani considered Palav's actions consistent with the standard of care because, when confronted with a stable thirty-week premature baby and a "once in a lifetime" case, "it's totally appropriate to get a quick second opinion before you make a life altering decision as far as a fetus is concerned."

Glassman arrived at approximately 11:50 p.m., at which point Donadei, prior to leaving, showed him what they had found. Glassman first tried to suture the bleeding vessels. When, at midnight, the suturing was still unsuccessful, Palav and Glassman decided to perform a C-section. They realized that if they did not empty the uterus, they would have been unable to stop the bleeding and Bonnie would have bled to death.

Brandon was delivered sometime between 12:13 a.m. and 12:30 a.m. on September 12, 1997. The doctors then closed the C-section and repaired the bleeding. On delivery, Brandon's heart rate was 80 beats per minute, which indicated significant distress. Because his vital signs were depressed, he was given to a neonatologist to be taken to the nursery. Due to a lack of oxygen, Brandon suffered an intraventricular brain hemorrhage, an event Pinette opined could have been avoided had he been delivered around 11:45 or 11:50 p.m.

Pinette believed the delays, starting with the McBurney's incision, failing to look at the uterus first, attempting to suture the varicosities, calling Glassman, waiting for his arrival and then attempting further suturing "caused substantial injury" and "contribut[ed] to [Brandon's] poor condition at birth." He stated, "[d]uring this whole process of delay, . . .

[t]he baby is becoming sicker, sicker, and things are going down a continuum, onto the point where the baby at the very end[] . . . was very, very sick because of all the delays[.]" Pinette opined that Brandon was damaged most during "[t]he last piece of time right before delivery[,]" approximately twenty or thirty minutes prior to birth.

Given Brandon's pH on delivery of 6.8, he noted that "it was a miracle that he lived, no great surprise to me that he has major damages. That's a profound[ly] acidotic child." Pinette believed Brandon became profoundly acidotic after 10:00 p.m., over two hours prior to his delivery. He admitted, however, that, on rare occasions, prematurity alone could cause the injuries Brandon suffered.

Pinette also conceded that, had the doctors not found the varicosities, which were a pre-existing condition and had likely been bleeding for two or three hours prior to Bonnie's arrival at the Hospital, both mother and baby would have died. Luciani, disagreeing with Pinette's conclusions, determined that "[t]here was nothing that any doctor should have been doing differently than what Dr. Palav . . . did. [He] should be commended for saving [Bonnie's] life."

Palav monitored Bonnie until 7:00 a.m. and returned to the Hospital around 9:00 a.m. to check on her. He continued to monitor her every morning and night until her discharge on September 19, 1997. Following discharge, Bonnie saw Palav four times, but did not return for her yearly exam in April 1998.

Bonnie learned Brandon had problems when her sister showed her pictures of him, and she felt "torn to pieces." She stated that she was on Percocet during most of her stay at Riverview, and she did not know much about Brandon's status until the day before her discharge. Following her discharge, she went immediately to the neonatal unit to see Brandon, who remained in the Hospital for ...

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