August 8, 2013
JOEVEL EDWARDS and DEAN HOLLAND, Plaintiffs-Appellants,
NEWARK BETH ISRAEL MEDICAL CENTER, DAWN FITTS, and DOROTHY IBABUCHI, R.N., Defendants-Respondents, and DR. GUILLERMO GUZMAN and DR. KENNETH TREADWELL, Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2011
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6592-08.
Frank J. Zazzaro argued the cause for appellants (Law Offices of Frank J. Zazzaro, attorneys; Bridget Saro, on the brief).
Robert J. Logan argued the cause for respondents (Vasios, Kelly & Strollo, attorneys; Mr. Logan, on the brief).
Before Judges Fuentes, Graves, and Koblitz.
Plaintiffs Joevel Edwards and Dean Holland filed a medical malpractice action against defendants Newark Beth Israel Medical Center (Beth Israel), certified nurse midwife (CNM) Dawn Fitts, and Nurse Dorothy Ibabuchi,  alleging that defendants' professional negligence caused Edwards to deliver a stillborn baby girl. The Law Division granted defendants' summary judgment motion and dismissed plaintiffs' cause of action. The motion judge found plaintiffs did not present competent expert testimony establishing a causal link between defendants' alleged negligence and the baby's death. We affirm.
Because the trial court dismissed plaintiffs' case as a matter of law, we will consider all of the facts at issue in the light most favorable to plaintiffs, including any rational inferences that may be drawn from the record before us. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c).
On August 23, 2006, nineteen-year-old Edwards came into Beth Israel for a routine prenatal visit. She was in the third trimester of her pregnancy. She was examined at around three o'clock that afternoon. The examination did not reveal any problems with either Edwards or the fetus. She returned home at around four o'clock, ate, and slept briefly; when she woke up, she went outside and watched television, all without incident.
Edwards felt her first contraction at around six o'clock that same day. The next came at around nine o'clock in the evening. She felt the third contraction about fifteen minutes later and then felt "back to back contractions" until 10 p.m. She arrived at Beth Israel Hospital's emergency room at approximately 11:23 p.m., complaining of contractions and spontaneous rupture of membrane, which CNM Fitts defined as indicative that "she broke her water." Nurse Ibabuchi and CNM Fitts were assigned to monitor and assist in Edwards's delivery.
According to plaintiffs, Ibabuchi and Fitts both testified that they were concerned about Edwards's delivery, because she had an elevated temperature of 100.6 degrees, a history of a ruptured membrane and was dilated to four centimeters, and had the presence of meconium and foul-smelling amniotic fluid. Plaintiffs claim that Ibabuchi and Fitts admitted that these are well-known risk factors to the health of the fetus.
Again accepting plaintiffs' account of events for purposes of this appeal, the fetus's heart rate was traced only intermittently, as it accelerated and decelerated over three hours. These factors are indicators of the fetus's distress. Edwards delivered a stillborn baby girl at 5:15 a.m. on August 24, 2006. The autopsy identified the cause of the baby's death as pneumonia suffocation due to the presence of excessive amniotic debris and extensive meconium aspirated in the baby's lungs. The two autopsy physicians opined that the "most likely cause of fetal demise was the infection and the perinatal axphyia both of which are probably related to each other."
Plaintiffs presented only the report of Kathleen M. Bizal, a registered nurse (RN) certified in in-patient obstetrics, then licensed as a RN only in the State of Pennsylvania. Bizal described the standard of nursing care applicable to the treatment of women who are about to give birth. She also opined as to the standard of care applicable to Fitts, as a CNM.
In her report and in a certification submitted by plaintiffs in opposition to defendants' summary judgment motion, Bizal opined that both Ibabuchi and Fitts deviated from the standard of care and were negligent in their treatment of Edwards. She cited numerous instances of negligence by these defendants throughout their interaction with Edwards.
Bizal concluded her certification by stating:
It is my opinion to a reasonable degree of medical and nursing probability and knowledge that the failure to adequately and properly assess the fetal heart rate and act upon the non-reassuring fetal heart rate resulted in a delay in the delivery of this baby which contributed to her death while in utero.
Defendants argued, and Judge Martin Cronin agreed, that Bizal's certification was not sufficient to establish a causal nexus between Ibabuchi's and Fitts's alleged negligence and the baby's death. N.J.S.A. 45:11-23b defines, in relevant part, the practice of registered nursing as:
diagnosing and treating human responses to actual or potential physical and emotional health problems, through such services as casefinding, health teaching, health counseling, and provision of care supportive to or restorative of life and well-being, and executing medical regimens as prescribed by a licensed or otherwise legally authorized physician or dentist. Diagnosing in the context of nursing practice means the identification of and discrimination between physical and psychosocial signs and symptoms essential to effective execution and management of the nursing regimen within the scope of practice of the registered professional nurse. Such diagnostic privilege is distinct from a medical diagnosis. Treating means selection and performance of those therapeutic measures essential to the effective management and execution of the nursing regimen. Human responses means those signs, symptoms, and processes which denote the individual's health need or reaction to an actual or potential health problem.
Based on this statutory definition, Judge Cronin concluded that RN practice does not include the authority to make medical diagnosis or act independent of a regimen imposed by a licensed physician. We agree. As our Supreme Court has recently reaffirmed:
Our Rules [of Evidence] have fixed, clear guidelines that govern the admissibility of expert opinions and against which trial courts must make their evaluations. See N.J.R.E. 702, 703. Expert testimony must be offered by one who is "qualified as an expert by knowledge, skill, experience, training, or education" to offer a "scientific, technical, or . . . specialized" opinion that will assist the trier of fact, see N.J.R.E. 702, and the opinion must be based on facts or data of the type identified by and found acceptable under N.J.R.E. 703.
[Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (alteration in original).]
We have also addressed this issue directly in the context of a medical malpractice case:
To establish a prima facie case of negligence in a medical malpractice action, a plaintiff usually must present expert testimony to establish the relevant standard of care, the doctor's breach of that standard, and a causal connection between the breach and the plaintiff's injuries. Absent competent expert proof of these three elements, the case is not sufficient for determination by the jury.
[Rosenberg v. Tavorath, 352 N.J.Super. 385, 399 (App. Div. 2002) (citations omitted).]
Against these well-established legal principles, Judge Cronin correctly concluded that plaintiffs had failed to present competent expert testimony establishing that defendants' alleged negligence was a proximate cause of the baby's demise. We thus affirm substantially for the reasons expressed by Judge Cronin in his oral opinion delivered from the bench on March 30, 2011.