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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 another four and a half months, during which time he underwent numerous spinal taps and other procedures.

Bonnie was unable to return to work until after Thanksgiving because she would break down whenever someone asked her about Brandon. After she returned to work, she was able to speak about Brandon's condition, but it still made her depressed. She was worried about him and would cry whenever she spoke of him.

Because we focus our analysis on the asserted errors related to liability, we will forego a fuller discussion of the proofs related to Brandon's physical needs and limitations except as it relates to Bonnie and her claim for damages for emotional distress.

Needless to say, Brandon has required extraordinary and constant care during his life including shunts and other medical devices. He suffers from cerebral palsy, which was defined by plaintiffs' expert pediatric neurologist, Daniel Adler, as "a delay in the acquisition or maybe the complete lack of acquisition of appropriate development in a child[.]" Adler indicated that the asphyxiation that caused Brandon's permanent disabilities occurred in the last half hour prior to his birth. He explained that, as a result of the complications of his birth, "Brandon has what people would characterize as severe cerebral palsy. He doesn't have adequate control of any of his limbs. He has severe stiffness of all of his limbs. He has reduced vision. . . . He has, however, maintained the ability to eat." Adler further explained that Brandon cannot chew, has a small head and can only control his hands enough to press switches and levers. Although Brandon can understand and respond to simple commands, he lacks language skills.

Since his return home in January 1998, Brandon has received continual therapy, and by the time he was a year and a half old, Brandon could roll over, but he was never able to stand. As of trial, his hips had both gone out of joint, so he was unable to walk even with assistance. Bonnie testified that Brandon has some movement and enjoys dancing to music, but she also noted that he has very little visual ability.

According to Ken Kowalski, Bonnie's brother, Brandon changed Bonnie's life dramatically. He said that the family tried to help her whenever possible, but they all have their own families, and Bonnie was particular about who cared for Brandon.

Batcho indicated that Bonnie was "very, very happy" about having her baby when he came home, but that she changed as Brandon got older. Stanislao, on the other hand, portrayed a different picture indicating that Bonnie was unhappy when she came home and was obsessed with caring for Brandon. As a result, he and Bonnie argued all the time, and he left her and the baby after about one year.

Arthur Scott, a friend, noted that Bonnie was a great mom who always looked out for her son, but he noted that her personality changed after Brandon's birth, and she became more serious and stressed. She refused to leave anyone alone with Brandon unless absolutely necessary because she believed she was the only one who could adequately care for him.

Bonnie testified that she allowed Scott and her older nephew to assist her with Brandon because she was unable to afford respite care. She rarely slept for long periods of time because she worried about the possibility that Brandon would have a seizure. Bonnie occasionally managed to sleep when Brandon was at school, but she usually used that time to clean, shop, cook and set up his appointments, leaving no time for herself. She spent hours in the grocery store reading labels because of Brandon's dietary requirements, and it took her longer to prepare his food because it had to be pureed. Bonnie also spent a lot of time doing laundry because Brandon went through about five outfits per day and wet the bed at night.

Whenever she thought about Brandon, Bonnie got pains in her stomach and, ten years after his birth, continued to cry all the time. She constantly worried about Brandon's future and what would happen as he grows. Nonetheless, she never sought help from a psychiatrist, psychologist, sociologist, counselor or priest. Bonnie also admitted that her emotional state did not prevent her from completing her day-to-day activities and noted that, although she had had some numbness around her scar, it did not bother her often.

Brandon has undergone substantial therapy but remains limited in his ability to function, speak or ambulate. With respect to Brandon's future, Adler, the pediatric neurologist, concluded that:

[h]e doesn't have either the cognitive ability or language ability or motor ability to function in any job at any time. He has no ability to care for himself in any activity of daily living so he'll require the full time supervision of adults for the rest of his life.

And he'll need a large number of therapists and/or doctors through supervisor's care.

Brandon will need "lifelong supervision and skilled nursing care either at home or in an institutional setting." Alternatively, had he not been asphyxiated, Brandon would have had "[n]ormal development, go[ne] to school, receive[d] an education, [and would] be gainfully employed." Despite his injuries, however, Adler opined that Brandon's "life expectancy w[ill] not be significantly shortened."

After considering additional testimony as to Brandon's therapy since his birth as well as economic testimony as to Brandon's value as well as the cost of continued home care, the jury returned a verdict finding that Palav deviated from the accepted standard of care and that his conduct increased the harm to Brandon. The jury unanimously found that 20% of Brandon's injuries would have occurred even in the absence of Palav's negligence, and that Donadei was not liable. It awarded Brandon $19.25 million, but awarded nothing to Bonnie for her abdominal scar. The court molded the verdict to $15.4 million plus interest and medical bills, for a total of $18,942,279.33.

The trial judge denied Palav's motion for a new trial, as well as plaintiffs' motions to set aside the verdict as to Donadei and to find that the 20% verdict was against the weight of the evidence.

Thereafter, the judge awarded Brandon fees and costs pursuant to Rule 4:58-2 in the amounts of $284,200 in fees and $43,398.81 in costs, which was a reduction of its initial cost award of $73,435.85. The appeal and cross-appeal followed.


Although the parties raise a number of issues on the appeal and cross-appeal, we first address the dispositive arguments.


Defendant asserts that the trial judge erred by permitting Dina Zeh, the nurse who attended to Bonnie, to testify as to her interpretations of the fetal heart rate after 9:01 p.m. He further argues that the judge's failure to issue a contemporaneous limiting instruction to the jury was an error entitling him to a new trial. We agree.

All relevant evidence is admissible at trial. N.J.R.E. 402. "In determining whether evidence is relevant, the inquiry focuses upon 'the logical connection between the proffered evidence and a fact in issue.'" Verdicchio v. Ricca, 179 N.J. 1, 33 (2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). A trial judge is afforded "broad discretion in determining the relevance of evidence." Id. at 34.

Consistent with N.J.R.E. 403, the exclusion of relevant evidence is permitted when its probative value is outweighed by the risk of undue prejudice or the possibility of confusing the issues or misleading the jury, and a judge's decision to exclude relevant evidence should only be overturned on appeal where it abused its discretion to the extent that a manifest denial of justice was created. Verdicchio, supra, 179 N.J. at 34.

Where total exclusion of the evidence would be improper, a court should, in accordance with N.J.R.E. 105, issue a limiting instruction so as to "restrict the evidence to its proper scope[.]" See Ocasio v. Amtrak, 299 N.J. Super. 139, 159-60 (App. Div. 1997) (noting that where evidence of drug addiction raises concern that jury might use evidence for improper purpose, court could admit evidence with limiting instruction).

We previously noted that as to the fetal heart rate issue, plaintiffs' expert, Pinette, who testified prior to Zeh, stated that the fetal monitoring strips indicated trouble around 9:00 p.m. but were unreliable after 9:10 p.m. Palav, on the other hand, stated that he believed the strips were unreliable between 9:00 p.m. until about 9:30 p.m. due to Bonnie's movement, and his expert, Luciani, agreed. Nonetheless, Zeh testified about the baby's heart rate at 9:05, 9:10 and 9:20, although she admitted she was occasionally unsure about whether she was reading the baby's or Bonnie's rate, and that reasonable people can differ on their interpretations.

When Palav first objected prior to Zeh's testimony, the judge determined that she could testify as to what she believed the baby's heart rate to be, and Palav could cross-examine her as to whether she was sure. The judge determined that her testimony was relevant because it went to the chain of command issue since the heart rate was apparently relevant to her decision to notify her supervisors.

Palav objected again during Zeh's testimony, arguing that although the fetal heart rate testimony was relevant to the chain of command, it was extremely prejudicial. The judge suggested that he allow her to testify as to her interpretations until around 9:10 p.m. or 9:15 p.m., and then he would explain to the jury that the heart rate testimony was admitted solely for the purpose of the chain of command issue and not with respect to any alleged deviations committed by Palav.

The Hospital objected to the judge's proposal, arguing that it did not want the court to draw attention to any particular defendants. In response, the judge inexplicably stated, "How about I just leave it alone then? Then she would whack Dr. Palav. Is that what you want? I'll do that." The judge added:

. . . I've been very careful about this case. I've listened carefully. I know that my proposed solution is the right thing to do. I know it. I know I'm very modest about my opinions and it shows through at times like this, but this is brilliant, though modest, it's brilliant. And I say that for the Appellate Division.

He further explained that, although he believed his proposed instruction was correct, he was very concerned with the potential for the creation of an appellate issue based on the Hospital's objections. He pointed out, however, that allowing the testimony without the instruction would be "deadly" to Palav's case. He then allowed the attorneys to discuss the issue prior to its decision, stating, "Let me know what you want to do. Do you want to destroy Dr. Palav or do you want to preserve an issue on appeal?"

Palav continued to request the instruction, but plaintiffs objected because the Hospital also continued to object. Since the attorneys could not reach a consensus, the judge concluded:

Good. Let the chips fall where they will. I'll say nothing. I'm not creating an Appellate issue. Dr. Palav, start digging your grave, sir, because this is going to kill [you]. If that's what you want to do, so be it. There's nothing I can do.

I'm not going to create an Appellate issue by doing something that someone objects to. Even though I know it's right, it's just, it's right, but who am I to create an Appellate issue?

Palav then pointed out that the judge's failure to do what it knew was the right thing would likely create the appellate issue he was so eager to avoid. The judge attempted again to resolve the issue, but ultimately decided that it would stand by its decision to not issue a limiting instruction. He stated, "Oh, boy, poor Dr. Palav."

After more testimony, the judge again reconsidered its decision. However, he concluded that, prior to deciding whether to issue a limiting instruction, he needed to hear additional testimony from other witnesses, including whether Palav would corroborate Zeh's statements.

One week later, Palav again objected to Zeh's testimony. Ultimately, the judge decided that a limiting instruction was appropriate. Following Palav's testimony one week after Zeh's testimony, the judge addressed the jury:

[H]opefully you remember [Zeh].

She testified last Wednesday. And on this issue of the fetal heart rate, her testimony up to 9:02 p.m. may be considered by you on the issue of Dr. Palav's deviation.

But after 9:02 p.m. you may not consider her testimony against Dr. Palav. You may only consider the testimony from 9:02 afterwards with respect to the deviation as to the hospital or nurses, namely the chain of command.

So, before 9:02, you can consider her testimony as it goes to the deviation of Dr. Palav. After 9:02, this is when the[y] talked about whether it's the mom or the child's heartbeat, so you know what we're talking about. After 9:02 you can only consider her testimony as it pertains to the alleged deviation with respect to the chain of command.

The judge also reminded the jury that Zeh was a fact witness, not an expert, and, therefore, that she could not give opinions on alleged deviations.

Prior to summations, the judge modified its instruction again because it had dismissed the Hospital and nurses from the case. He told the jury that it could not consider Zeh's testimony on the fetal monitoring strips after 9:01 p.m. for any reason.*fn3

In Verdicchio, supra, the Court agreed with the trial judge's decision to admit prejudicial testimony from the decedent's mother that, in the face of a definitive diagnosis of cancer, the defendant doctor continued to deny its existence. 179 N.J. at 34-35. It found that the evidence had a "logical connection to the" question of whether the doctor approached the case reasonably, and it was "one tile in the factual mosaic presented to the jury." Id. at 35.

Here, as in Verdicchio, Zeh's testimony had a logical connection to the case. She testified that, in part based on her opinion that the baby's heart rate was decreasing, she decided to initiate the chain of command. However, her testimony also suggested that Palav deviated from the standard of care because he failed to perform a C-section in the face of her insistence that the baby's condition was deteriorating. Zeh certainly could testify as to her factual observations. She was not qualified, however, to present testimony that could be inferred as an expert opinion that Palav deviated from a standard of care because he did not accede to her view of the action to be taken. Because the jury had heard expert testimony on this issue from plaintiffs and would hear additional expert testimony from defendants, Zeh's prejudicial testimony should have been excluded. Ostrowski v. Cape Transit Corp., 371 N.J. Super. 499, 517 (App. Div. 2004), aff'd, 182 N.J. 585 (2005).

Moreover, as to the chain of command issue, Zeh gave sufficient non-prejudicial fetal heart rate evidence that exclusion of the prejudicial evidence would not have negatively affected plaintiffs' ability to adequately present that claim. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 501 (1999) (holding that inflammatory testimony on plaintiff's racial bias should have been sanitized to "eliminat[e] its prejudicial effect without diminishing its probative value"); Overlook Terrace Corp. v. Excel Props. Corp., 210 N.J. Super. 420, 425 (App. Div. 1986) (noting that admissible prejudicial evidence should be sanitized by redacting most inflammatory portions).

However, even if the judge erred in admitting the testimony, any error would likely have been minimized by issuance of a contemporaneous limiting instruction. Limiting instructions should be issued contemporaneously with admission of prejudicial evidence, and "a prompt delivery . . . , either before, simultaneously with, or immediately after, the admission of [such] evidence is preferable, and--unless there is some compelling reason to do otherwise--should be standard procedure followed by trial courts in all cases." State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), certif. denied, 165 N.J. 138 (2000). Accord State v. Widener, 200 N.J. 231, 256 (2009); State v. Jenkins, 356 N.J. Super. 413, 428-29 (App. Div. 2003), aff'd, 178 N.J. 347 (2004). This is especially true in a lengthy and complex trial such as this where additional, substantive factual and expert testimony will be presented between the time of the admission of the questionable evidence and the ultimate delivery of the limiting instruction. This instruction was given one week after the evidence was proffered and must be given little weight as to its "limitation" given this substantial delay.

One reason offered by the judge for the delay was that he wanted to hear Palav's testimony regarding his interpretation of the fetal monitoring strips and whether he considered them reliable during the disputed time period. That reasoning is unavailing. Plaintiffs' expert, Pinette, had already testified as to their unreliability. The judge also stated that he was concerned about creation of an appellate issue by issuing the instruction in the face of objections. However, he admitted that giving the instruction was "the right thing to do." The judge clearly understood the issue, arrived at the appropriate resolution of the issue but declined to issue the instruction in the face of an objection.

The role of a judge is to "do the right thing" and not defer ruling because an appellate issue is raised by the decision. A party objecting to a suggested course of action that is correct is not a sound basis for not giving a properly warranted limiting instruction. On this record, the Hospital's objection was specious, while at the same time the failure to give a timely instruction was clear and reversible error. As counsel correctly noted, not giving the instruction created the valid appellate issue.

Although the judge's later instruction was accurate and clear, his reasons for delay in issuing it were inadequate under the circumstances, particularly given the highly prejudicial nature of Zeh's testimony. The judge recognized that her testimony would likely "kill" Palav and suggested that the doctor "start digging [his] grave."

Zeh's testimony that she had tears in her eyes while watching the baby's heart rate decrease was highly emotional and memorable. The jury ultimately determined that only Palav was liable for Brandon's injuries, finding that he deviated from the accepted standard of care. The combination of the highly prejudicial nature of Zeh's testimony, and the judge's delay in issuing the limiting instruction constituted an abuse of discretion sufficient to warrant reversal. Verdicchio, supra, 179 N.J. at 34.


We reach a similar result regarding the exclusion of the Criterion Report. Palav argues that the trial judge erred by prohibiting admission of the contents of a Criterion Report prepared by the Hospital's Quality Assurance Committee. First, he contends that the content of the report was not hearsay, and that even if it was, the report should have been admitted either as a business record or because plaintiffs opened the door. Second, Palav argues that the judge misapplied the self-critical analysis privilege, further contending that, regardless of the privilege, the report should have been admitted under the doctrine of completeness. Finally, he submits that exclusion of the report was capable of producing an unjust result requiring a new trial. We agree that the report should have been admitted.

The decision to admit evidence is within the trial judge's discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). We will overturn evidentiary decisions only where there is a clear abuse of discretion. McDarby v. Merck & Co., 401 N.J. Super. 10, 72 (App. Div. 2008).

In their interrogatories, plaintiffs asked Palav to state whether "there were any reviews performed, including investigations undertaken, hearings held or reports prepared, by the Hospital, its medical staff or any officer, committee or agency of the Hospital or any public body or other person or persons concerning the condition that forms[] the basis of the complaint[.]" Palav responded to the question by answering, "No."

During trial, Brandon's counsel served a notice to produce on Riverview requesting any documents related to any reviews or investigations because he did not believe it was possible that Palav was correct in his interrogatory answer. The judge ruled that, if such documents existed, they had to be found and given to plaintiffs.

The Hospital located a "Criterion Report" dated March 25, 1998, a one paragraph document that briefly related the events surrounding Brandon's birth, concluding that the case was "recommended for discussion by atten[ding]" and was to be discussed from an educational point of view, rather than a quality assurance perspective. In response to this discovery, the judge initially found that Palav "lied" in the interrogatories, but later determined that he may not have known the report was prepared.*fn4

The judge decided that, whether Palav knew about the document or not, it was permissible for "the plaintiffs to use [it] in cross-examination and to challenge" Palav's credibility. The judge also noted that Palav was free to explain the document "if he want[ed]."

Subsequently, on cross-examination, Palav admitted that he attended a meeting of the quality assurance committee on March 25, 1998, but insisted that he was unaware of the report until he was asked about it at trial. He explained that he had said there were no reviews conducted because he believed the interrogatory was only asking about "critical reviews," which this particular review was not.

On re-direct, Palav's counsel requested that the judge allow the doctor to read the content of the report for the record. The judge responded that the content was not at issue because the only question was whether he was truthful in his interrogatory answer. He also explained that the content constituted hearsay, a decision Palav disputed based on the fact that he attended the meeting. Nonetheless, the judge determined that because five doctors were present for the meeting, the findings in the report were not necessarily Palav's. The judge concluded that the content was "absolute hearsay. Absolute[ly] blatant."

Prohibited from revealing the report's contents to the jury, Palav's counsel asked him how the issue came before the committee. He responded:

I was a member of the quality assurance committee. And I requested the committee [] bring this case up so that we can learn from this unusual experience of mine in this case. There was no quality assurance on this. This was just an educational purpose that brought this up to the committee.

At that point, the judge informed the jury that he had ruled that it could not be shown the content of the report because "the results of these meetings are not admissible under the law."

Palav then testified that at the time he answered the interrogatory, three and a half years after Brandon's birth, he had never seen any reports from any committee about the case. He reiterated that he considered the discussion by the quality assurance committee to be solely educational due to the unusual nature of the case. He did not mention it in response to the interrogatory because, as he had previously testified, he believed the question only requested information about "critical review[s] of the management of the case or something like that."

During summation, Brandon's counsel raised the issue of the meeting not in the context of impeaching Palav's credibility, but rather as an event relevant to the question of whether Palav deviated from the standard of care. He stated that he was not "the first person to raise with Dr. Palav the issue of what happened there that night. This was discussed at a meeting within his own department. This event, which they want to call an educational event, was first evaluated [at] the quality assurance level. This was a bad event." Similarly, Bonnie's counsel referred to two quality assurance meetings, one of which addressed the case from an educational perspective, and asked the jury to consider why Palav would lie, thereby implying that the meeting results were not in his favor.

Palav first argues that the trial judge erred by characterizing the content of the report as inadmissible hearsay. A statement is considered hearsay when made by someone other than the testifying witness and offered by the witness "to prove the truth of the matter asserted." N.J.R.E. 801(c).

Here, in light of the fact that Palav was unaware of the report's existence, he clearly did not author it. Additionally, contrary to his assertions, the report was not being offered for some reason other than to prove the truth of its content. The Criterion Report consisted of an abbreviated summary of the case as well as an explanation that it was only discussed by the committee for educational purposes. Palav sought to admit the report to prove that the committee's review was educational, rather than critical, thereby rendering the report hearsay by seeking to admit it for the truth of the matter asserted within it.

Palav argues, however, for the first time on appeal, that even if the report is hearsay, it should have been admitted as a business record under N.J.R.E. 803(c)(6). Issues that are raised in general terms below may be considered on appeal. Regan v. City of New Brunswick, 305 N.J. Super. 342, 355 (App. Div. 1997). However,

[i]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." [Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).]

Although Palav's failure to raise the business records exception below would generally preclude discussion of the issue, since we reverse and remand, we consider a discussion appropriate as guidance at the new trial.

N.J.R.E. 803(c)(6) allows for the admission of written statements "made at or near the time of observation by a person with actual knowledge or from information supplied by such person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it[.]"

The admissibility of medical reports is determined in part by the complexity of the procedures used to formulate the conclusions contained within the report. Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2001) (citing State v. Matulewicz, 101 N.J. 27, 30 (1985) (establishing standard in context of Evidence Rule 63(13), precursor to N.J.R.E. 803(c)(6))). Moreover, it is "clearly established that medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or course of the condition in question." Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 282-83 (App. Div.), certif. denied, 141 N.J. 95 (1995).

Here, the report was not part of either Bonnie's or Brandon's medical records, but, rather, was a brief notation of the discussion at a meeting where their case was mentioned. Additionally, it consisted of a one-page computer printout. In accordance with Hanemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 15 (App. Div. 1996), computer printouts must: (1) be authenticated by a person in charge of and familiar with the records; (2) "reflect data recorded contemporaneously with the occurrence of the facts recorded in the usual course of the Hospital's business[;]" and (3) be "recorded in accordance with the Hospital's regular practice."

Palav provided no evidence that the Criterion Reports were made in the regular course of Hospital business. Moreover, the author of the report was unavailable for examination, and the report itself was unauthenticated. Admission of the report under the business records exception to the hearsay rule would have been improper. However, if at the new trial, the issue is raised, with proper authentication and foundation, the document may, in fact, be considered as a business record.

Palav alternatively contends that during cross-examination, plaintiffs opened the door to admission of the report's contents by asking about its existence. "Opening the door" allows for the admission of evidence, "which otherwise would have been irrelevant or inadmissible[,] in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." State v. James, 144 N.J. 538, 554 (1996). In other words, "[t]he doctrine . . . allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence." Ibid; United States v. Lum, 466 F. Supp. 328, 334 (D. Del.) (same), aff'd, 605 F.2d 1198 (3d Cir. 1979).

Similarly, if a witness during cross-examination testifies "as to part of a conversation, statement, transaction or occurrence, under the doctrine of 'completeness' the party calling the witness is allowed to elicit on redirect examination 'the whole thereof, to the extent it relates to the same subject matter and concerns the specific matter opened up.'" James, supra, 144 N.J. at 554 (quoting Virgin Islands v. Archibald, 987 F.2d 180, 188 (3d Cir. 1993)).

In cases where admission might confuse or mislead the jury or where the probative value of the evidence is outweighed by prejudice, it should be excluded. Ibid. "The doctrine of opening the door can be used only to prevent prejudice; it cannot be subverted into a rule for injection of prejudice." Id. at 562.

Here, the judge permitted plaintiffs to raise the existence of the otherwise inadmissible Criterion Report in order to impeach Palav's credibility. See Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 486 (1992) (noting that otherwise inadmissible learned treatises may be admitted for impeachment purposes). Standing alone, that raised a legitimate question as to the admissibility of the document. However, plaintiffs moved beyond the question of whether Palav lied about the existence of reviews or reports and inappropriately implied that his colleagues on the committee made a negative finding against him regarding his handling of the case, referring to the report repeatedly as a "quality assurance" review. The content of the disputed report became a substantive, and not simply a credibility, issue. Palav should have been allowed to rebut this inference and testify as to the otherwise inadmissible contents of the report in order to counter the prejudicial implications of plaintiffs' questioning during cross-examination, which were further emphasized during plaintiffs' summations. James, supra, 144 N.J. at 554.

In fact, the suggestion that not only did Palav lie but the report was critical of his conduct became thematic not only on cross-examination but as part of plaintiffs' summations. At a minimum, the judge should have intervened to insure that the fairness prevailed.

Palav further contends that the trial judge erred by deeming the contents of the report subject to the self-critical analysis privilege despite allowing discovery of the report by plaintiffs. N.J.S.A. 26:2H-12.25(g) provides that "[a]ny documents, materials or information developed by a health care facility a part of a process of self-critical analysis . . . shall not be: (1) subject to discovery or admissible as evidence . . . ." Exceptions exist for "purely factual material" and material which might "facilitate discovery of information not previously found." Christy v. Salem, 366 N.J. Super. 535, 543-44 (App. Div. 2004). Nonetheless, the confidentiality of "internal investigative reports such as . . . peer committee report[s]" should be balanced on a case-by-case basis. Id. at 541. Judges should be aware that exposure of the deliberative findings of such committees could discourage future findings, and should also consider whether the plaintiff has supplied expert testimony on the issue included in the report. Id. at 544-45.

Here, the judge found that the Criterion Report was discoverable. He noted that there was not "anything much new" contained within it, but that "there's a couple of things [plaintiffs] should see." Nonetheless, the judge limited plaintiffs' use of the document to challenging Palav's credibility based on his interrogatory response. He later determined that the "results" of the committee meeting were inadmissible.

Unlike the internal investigative report we considered in Christy, supra, 366 N.J. Super. at 543-44, the Criterion Report does not contain the results of any deliberative process undertaken by the quality assurance committee. Rather, it briefly states the facts of the case and then notes that the attending physician recommended it for discussion from an educational perspective. This report is not of the type warranting privilege under N.J.S.A. 26:2H-12.25(k), and the judge's decision to exclude its contents as such was incorrect.

Lastly as to the privilege, we question whether plaintiffs could assert privilege as a bar to admission. The privilege belongs to the hospital and the doctor. Cf. N.J.S.A. 26:2H-12.25(g). To allow the exercise of privilege here would turn the shield of the privilege into what became a sword wielded against the doctor. The disputed report was nothing more than a statement of facts that were not in dispute. The manner in which it was presented inferred criticism against and withholding of information by defendant. That was not only inaccurate but manifestly unfair and unjust.

We conclude that the judge erred in not allowing Palav to introduce the Criterion Report and such error warrants reversal.


Defendant raises a number of other issues, including a challenge to the trial judge's ruling allowing Pinette to testify as to Palav's deviation from the standard of care in requesting a further consultation from Glassman and the delay that resulted therefrom. In addition, defendant claims that the judge erred in denying the motion that he recuse himself from hearing the case and finally, that the judge erred in awarding fees under Rule 4:58.

Since we have reversed and remanded for a new trial, these claims are now moot on this appeal. The issue of Pinette's testimony may be addressed at a pre-trial motion at the new trial. As to the issue of recusal, the trial judge who presided over this matter is now retired and another judge will be assigned to the case. Finally, any issue as to counsel fees must abide the ultimate outcome of the new trial.

We reach a similar result regarding plaintiffs assertions

1) that the trial judge erred by not finding that the jury's verdict apportioning 20% liability to the pre-existing conditions was against the weight of the evidence, or 2) that allocation of damages under Scafidi*fn5 should have been limited to the risk posed by Brandon's prematurity because no evidence was presented suggesting that Bonnie's bleeding varicosities could have resulted in his injuries. These issues are dependant on the evidence presented, and at the new trial, the nature of the proofs and evidence presented will determine the applicability and scope of Scafidi.


The additional issues raised by plaintiffs on the cross-appeal include a challenge as to the dismissal of plaintiffs' claims against the Hospital, the dismissal of Bonnie's emotional distress claim, the alleged failure of the judge to give a Gardner*fn6 charge, as well as excluding a theory of negligence as to Donadei. We find the arguments are without merit but worthy of further comment.


Plaintiffs assert that the judge improperly dismissed their claims related to the chain of command issue against the Hospital and nurses Crawford and Concepcion. They contend that they presented sufficient evidence such that their claims should have been submitted to the jury. We disagree.

Motions for involuntary dismissal in accordance with Rule 4:37-2(b), as well as motions for judgment occurring at the close of evidence or after the verdict, are all governed by the same evidential standard:

"[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . . " [Verdicchio, supra, 179 N.J. at 30 (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)) (other citations omitted).]

We review the trial judge's decision de novo, applying the same standard as that used below. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009); see Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003) (noting that we review summary judgment decisions de novo under same standard applied at trial).

Here, the judge, "giving the benefit of all legitimate inferences to" plaintiffs, found that it was possible the jury could find that Crawford and Concepcion "deviated from the standard of care by not following the chain of command." However, he noted that plaintiffs were also required to provide proof that the "negligence increased the risk of harm." Although plaintiffs alleged that, had the nurses followed the chain of command to Farber, the head of obstetrics, Brandon would have been delivered earlier, they failed to have Farber confirm this contention. The judge found that the allegation that the nurses failed to follow the chain of command, thereby increasing the risk of harm to Brandon, could only "be established from the testimony of Dr. Farber."

Because plaintiffs failed to call Farber as a witness, the jury had "no idea what he would have done. They [could] only speculate." The judge concluded:

There is no evidence from which this jury can conclude that if the chain of command wasn't followed . . . that that increased the harm and more importantly, that it was a substantial factor in causing the ultimate injury. Especially because of the timing. . . .

If in fact the chain of command would have been followed, I mean, Dr. Farber is there by nine o'clock, not 11:30. And the plaintiffs' own evidence says the major part of this kid's neurological damage was done in the last half hour. We don't know what Farber would have done if he had gotten there.

But they also have to prove that the increased risk of harm was a substantial factor in causing the injury ultimately sustained. Well, here, the evidence is that the last half hour was the key. Even if they followed the chain of command, he would [not] have been there by nine o'clock. They would still have a couple of hours.

There's absolutely no evidence from which this jury could legitimately infer, citing [R.] 4:37-2B, that indeed the failure to follow the chain of command would have increased the risk and that that was a substantial factor in causing the ultimate injury hours later.

In order to establish a prima facie case of negligence in a medical malpractice case, the plaintiff "must present expert testimony establishing (1) the applicable standard of care[]; (2) a deviation from that standard of care[]; and (3) that the deviation proximately caused the injury." Gardner, supra, 150 N.J. at 375 (citations omitted). However, where the plaintiff suffers from a pre-existing condition, he or she must provide "[e]vidence demonstrating within a reasonable degree of medical probability that [the] negligent treatment increased the risk of harm posed by [the] preexistent condition . . . ." Scafidi, supra, 119 N.J. at 108. In satisfying the first Scafidi prong, "[a] plaintiff may present proof 'not only of what did occur, but what might have occurred.'" Gardner, supra, 150 N.J. at 379 (quoting Evers, supra, 95 N.J. at 415).

In Gardner, supra, the plaintiffs alleged that the obstetrician's failure "to perform certain diagnostic tests . . . increas[ed] the risk of harm from a pre-existing condition[.]" 150 N.J. at 362. The Court modified the Scafidi test for cases involving pre-existing conditions in which the alleged deviation is a doctor's failure to perform a diagnostic test. Id. at 387. The "very failure to perform the test may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed." Id. at 380. In such cases, the Court held:

[T]he first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm.

Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the pre-existing condition. [Id. at 387.]

In Gardner, the doctor's failure to perform a test prevented the plaintiff's experts from being able to testify as to what the test results would have shown. In essence, the alleged deviation erased the evidence required to prove that the deviation increased the risk. Here, the nurses did not call Farber, requiring plaintiffs to provide proof of what would or might have occurred if they had called him.

Unlike Gardner, however, the nurses' failure to call Farber did not eliminate the evidence necessary to prove that their failure increased Brandon's risk of harm. Plaintiffs had only to call Farber to testify to ascertain what he would have done. Because, instead, they presented no evidence of what Farber would or might have done, they were unable to satisfy the first Scafidi prong. As a result, had the issue gone to the jury, the jury could have only speculated as to whether the nurses' failure to follow the chain of command increased Brandon's risk. We find no error here.


Plaintiffs further contend that the judge erred by dismissing Bonnie's emotional distress claim. Again, we disagree.

All defendants, with the exception of Donadei, moved to bar Bonnie's emotional distress claim at the start of trial. The judge denied the motion, granting leave for defendants to depose Bonnie on the issue and have her examined. At the close of plaintiffs' case, both Donadei and Palav moved for dismissal of the claim. When queried as to why Bonnie was never sent to a doctor for an examination, plaintiffs replied that to do so one time simply to obtain a report for trial "would have been disingenuous." The judge disagreed, stating that at least then there would be a diagnosis on which to hinge "a causal relationship and a permanency."

As a mother whose fetus was injured during birth, Bonnie was not required to prove the liability portion of the emotional distress claim, although she was still required to show damages. The judge reviewed Bonnie's symptoms and the stresses in her life, including that she was devastated by Brandon's condition, she did not work and had financial difficulties, Brandon's father left her, she worried, and she cried constantly. The judge concluded:

I'm not deciding this strictly on the position that there must be a doctor to establish it. In this case, it was necessary because there's no medical diagnosis. More important than that is there's no causal relationship. This lady had lots of other stresses in her life. Nobody can do anything other than speculate as to whether or not her emotional distress was caused by her husband moving out, her fighting with him over working at the stables, her arguing about finances. The fact that he moves out, Monaco moves in. Impregnates her. Then he leaves her, goes back to his wife.

Loses her job. This lady had a lot of things going on in her life. And in that type of a case, the plaintiff has to have a doctor to causally relate the emotional distress to the malpractice. Don't even have a diagnosis.

In this case, I say, I'm not saying in every case you need a doctor but in this case, with all these extra stresses, a doctor was necessary . . ., without it, the jury can only speculate.

The judge emphasized "that lack of psychological counseling and treatment is not fatal" to these cases in general, but rather only in this limited factual situation. He clarified that, in this particular case, there was "[n]o doctor, no psychiatrist, no psychologist" and no priest, making it impossible for the jury to do more than speculate as to the existence of a causal relationship between Brandon's birth and Bonnie's alleged emotional distress.

In Carey v. Lovett, 132 N.J. 44, 62 (1993), the Supreme Court established the standard for use in cases where parents seek damages for emotional distress resulting from medical malpractice occurring during their baby's birth. The Court recognized that "[a]ny time a doctor negligently injures a child it is foreseeable that the parents will suffer emotional distress." Id. at 58. It noted "that the physical and emotional ties between mother and fetus so unite them that a physician should anticipate that any malpractice that adversely affects the fetus will cause emotional distress to the mother." Id. at 59. Because "[t]he maternal-fetal relationship bespeaks the genuineness of an otherwise-valid claim for emotional distress[,]" a mother need not be "contemporaneously aware of" or "shocked" by the malpractice. Id. at 59-60.

The Court concluded that "to prove a claim for emotional distress arising out of the injury or death of a fetus, the mother must prove that she suffered emotional distress so severe that it resulted in physical manifestations or that it destroyed her basic emotional security." Id. at 62. The Court further explained that neither the normal "worry and stress" accompanying birth, nor "the upset that every parent feels when something goes wrong in the delivery room" are sufficient to sustain a claim for emotional distress. Ibid.

Moreover, although the caselaw does not require a parent to seek counseling or provide expert testimony in support of his or her claim, we have implied that, in order to establish "a level of emotional distress beyond that" which naturally occurs as a result of problems during delivery, expert testimony may be necessary. Fertile v. St. Michael's Med. Ctr., 334 N.J. Super. 43, 55 (App. Div. 2000), aff'd in part and rev'd in part on other grounds, 169 N.J. 481 (2001). There, the baby suffered permanent injuries to her arm when she was delivered vaginally as a result of the doctors' delay in performing a C-section.

Id. at 48-49.

The evidence offered on the emotional distress claim consisted of the mother's testimony "that she felt 'so bad' when she was told of her daughter's" injury, and the mother's brother's statement that she became sad and started attending various different churches hoping for a cure. Id. at 54. We noted that "no expert testimony was offered" and contrasted the case to Portee v. Jaffee, 84 N.J. 88, 92 (1980), in which "the proofs showed that the mother suffered significant emotional consequences including severe depression which required extensive counseling and psychotherapy." Fertile, supra, 334 N.J. Super. at 55. We concluded that, although the evidence demonstrated that the mother in Fertile "certainly suffered shock and unhappiness[,]" it did not rise to the level required to sustain her claim. Ibid.

Although Bonnie testified that she felt "torn to pieces" on learning of Brandon's condition and was unable to work for a period of time following his birth because she broke down discussing her son, she never sought counseling or treatment, as in Fertile and Delgado. Bonnie's brother testified that her life changed dramatically following Brandon's birth, and Bonnie claimed she felt pain and worry whenever she thought about him but admitted that, like the mother in Delgado, her emotional condition had not prevented her from completing day-to-day activities. Moreover, as the trial judge observed, she had numerous other stressors in her life which could have caused emotional upset. Bonnie's proofs were insufficient to demonstrate "that she suffered emotional distress so severe that it resulted in physical manifestations or that it destroyed her basic emotional security." Carey, supra, 132 N.J. at 62. The judge correctly dismissed the claim of emotional distress.


Plaintiffs also contend that the trial judge erred by failing to give a Gardner charge to the jury with respect to Donadei's alleged deviations, thereby entitling them to a new trial. They further contend that omission of a theory of negligence against Donadei in the court's PowerPoint presentation misled the jury and constitutes reversible error. We find no error as to either issue.

Appropriate jury charges are necessary to ensure a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). Proper "[j]ury charges 'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Velazquez v. Portadin, 163 N.J. 677, 688 (2000) (quoting Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966)).

We "must determine whether the charge, 'considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Maleki v. Atl. Gastroenterology Assocs., P.A., 407 N.J. Super. 123, 128 (App. Div. 2009) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)). Reversible error occurs when a judge fails "to tailor a jury charge to the given facts of a case" and "where a different outcome might have prevailed had the jury been correctly charged." Reynolds, supra, 172 N.J. at 289. Nonetheless, if a party fails to object to the charge when given, the reviewing court may only reverse in the event of plain error. Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998); R. 2:10-2.

Here, prior to issuance of the jury instructions, plaintiffs requested changes to slides 25 and 31 of the judge's PowerPoint presentation with respect to Palav's interpretation of the fetal monitoring strips and his failure to order and interpret tests. At that time, plaintiffs made no requests with respect to the slides' depiction of the charges against Donadei.

Addressing those slides to the jury, the trial judge explained:

[P]laintiffs contend that with respect to Dr. Palav that there were multiple delays, failure to properly interpret fetal monitoring strips and failure to order or properly interpret tests which led to the delayed delivery of Brandon Kowalski. That's what they contend, all right?

Plaintiffs contend that with respect to Dr. Donadei that [he] failed to make a proper incision and caused further delays in the delivery of Brandon Kowalski and an abdominal scar on Bonnie Kowalski.

The judge also stated that if the jury found that "Donadei failed to make the proper incision and caused further delays[,]" thereby causing Brandon greater injury than he would otherwise have suffered, it should find Donadei liable for the increase. Slides 25 and 31 echoed the court's instructions.

At a later point in the charge, the judge instructed:

[I]f you determine that either defendant was negligent in not having a diagnostic test performed, in this case an ultrasound or a CAT scan, but it is unknown whether performing the test would have helped to diagnose or treat the pre-existing condition[,] [t]he plaintiff does not have to prove that the tests would have resulted in avoiding the harm.

In such a case the plaintiff must merely demonstrate that the failure to give the tests increased the risk of harm from the pre-existing condition.

A plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small portion of cases.

Slides 33 and 34 of the court's PowerPoint presentation reiterated this portion of the charge.

After the jury retired to deliberate, plaintiffs apologetically pointed out that they neglected to call to the court's attention the fact that slides 25 and 31 did not address the allegation against Donadei regarding his failure to order tests. The judge noted that five or six hours were spent discussing the charge, which gave plaintiffs ample opportunity to raise this issue. Given that the jury was already deliberating, it determined that highlighting the omission "would be too prejudicial[.]"

The judge also noted that slide 41, although not doctor-specific, addressed the issue - if the jury decided "that the standard of care . . . with respect to . . . whether or not to perform an ultrasound or CT scan . . . did not allow for the choices or judgments the defendant doctors made . . ., then one or both of the doctors would be negligent." The judge determined that the issue was properly before the jury, even if it did not appear in slides 25 and 31.

A Gardner charge instructs the jury that, with respect to allegations of failure to conduct diagnostic tests, "the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition." Gardner, supra, 150 N.J. at 387. In Reynolds, supra, the Court took issue with the trial court's failure to instruct the jury as to the significance of the defendant's omission in conducting certain tests despite "the absence of evidence indicating what such tests would have revealed." 172 N.J. at 289. It stated that a Gardner charge was required because, without it, "the jury may have determined that [the] defendant's failure to perform the required diagnostic tests insulated [him] from liability." Ibid.

Here, contrary to plaintiffs' contentions, the trial judge gave the Gardner charge to the jury and also included it in its PowerPoint presentation. The judge's charge mirrors the language of Civil Model Jury Charge 5.50E. Although it did not mention Donadei specifically by name, it made it clear that the Gardner section of the charge applied to both defendants. Moreover, in the section of the charge addressing medical judgment, the judge reiterated that the jury could find one or both defendants liable on the basis that the standard of care required the performance of omitted diagnostic tests.

Plaintiffs' argument that prejudice resulted from the judge's omission from the PowerPoint presentation on a theory of negligence against Donadei is similarly without merit. Although the section of the charge addressing specific theories of negligence only singled out Donadei for failure to make a proper incision, delaying Brandon's birth and causing Bonnie's scar, as was explained above, the judge later made it clear that the question of whether failure to order tests increased Brandon's risk applied to both Palav and Donadei. The jury was aware that it could find Donadei liable if it found he deviated from the standard of care by failing to order an ultrasound or CT scan.

Although the judge might have included this theory on slide 25, the charge, taken as a whole, explained the relevant law and its application and was unlikely to mislead or confuse the jury. Maleki, supra, 407 N.J. Super. at 128. Given the repeated testimony at trial regarding Donadei's failure to order the tests, it is also unlikely "a different outcome might have prevailed had the jury been correctly charged." Reynolds, supra, 172 N.J. at 289.

We find no error in the court's issuance of the Gardner charge and the PowerPoint omission.

The judgment is reversed in part, affirmed in part, and the matter is remanded for a new trial consistent with this opinion.

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