United States District Court, D. New Jersey
Kelli Torres and Ruben Torres, Sr., Hon. Joseph H. Rodriguez Individually and as Administrators Ad Prosequendum of the Estate of Ruben Torres, Jr., Deceased, Plaintiffs,
United States of America, Tracy Shebah, D.O., Ashley N. Long, D.O., Kenneth Poppen, D.O., Sara E. Clymer, D.O., Rachel Morin-Rayburn, D.O., Jessica Balkema, D.O., Crystl Dooley, R.N., Brittany Orzechowski, R.N., Betina Afanador-Perez, R.N., Ryan Federico, R.N., Gina Giuliani, R.N., Eric M. Bonifield, M.D., Tammy L. Sheppard, R.N., Inspira Medical Centers, Inc., Inspira Medical Centers Vineland, Inspira Health Network, Rowan University School of Medicine, Cumberland Ob/Gyn. Defendants.
H. Rodriguez, U.S.D.J.
a medical negligence action arising out of Defendants'
alleged mismanagement of Plaintiff Kelli Torres's labor
resulting in the delayed delivery of Ruben Torres, Jr. who
died four days after his birth. It is presently before the
Court on motions for partial summary judgment filed by
Defendants regarding Plaintiff Ruben Torres's claim for
emotional distress damages. Defendants argue that partial
summary judgment is warranted because Mr. Torres did not
immediately connect any act of malpractice with his
baby's injuries. Plaintiffs argue that he did not have to
make that connection to survive summary judgment. Oral
argument was heard on the record on November 29, 2017 and is
incorporated here. For the reasons placed on the record that
day, and those set forth below, Defendants' motions will
undisputed statement of facts is as follows. Kelli Torres was
admitted to Inspira Medical Centers, Inc., Vineland (Inspira
Vineland) on October 6, 2013 at or about 1916 for induction
of labor. (See Compl. at ¶¶113-114.)
Induction started at or about 1945. (See Compl., at
¶116.) The Plaintiffs' baby, Ruben Torres, Jr., was
delivered 3 days later on October 9, 2013 at 1304.
(See Compl. at ¶299.)
Complaint arises out of Defendants' alleged mismanagement
of Mrs. Torres's labor including misinterpretation of the
electronic monitoring of the fetal heart rate, causing a
delay in delivery and subjecting the fetus to a prolonged
period of intrapartum hypoxia resulting from the fetus being
deprived of oxygen during labor. (See Compl. at
Counts I, II and III.) In 2013 at Inspira Vineland, the data
generated by the electronic fetal monitor was displayed on a
computer monitor. (Dep., Satinderpal Sandhu, M.D.,
131:12-24.) Mr. Torres, who was present for the entire labor,
was able to see the data as it was displayed on the monitor.
(Dep., Ruben Torres, 28:20-23.)
multiple occasions, the monitor lost its signal.
(See Dep., Tracy Shebah Wurm, D.O., 100:11-17.) Mr.
Torres was aware that the monitor was not functioning
properly. (See, Dep., Ruben Torres, 41:2-8.) He also
observed the nurses adjusting the monitor on several
occasions, which he found equally concerning. (Id.
at 31:24-32:9 & 41:9-15.) Mr. Torres was aware that the
monitor was, at times, recording the maternal heart rate in
place of the fetal heart rate. (Dep., Ruben Torres,
49:16-22.) Additionally, on the morning of October 9, Mr.
Torres overheard the health care practitioners discussing the
possible use of a scalp electrode, which is used as an
alternate means of obtaining the FHR when there is difficulty
in accurately monitoring the FHR with an external monitor.
(See Dep., Ruben Torres, 42:6-14 and Dep., Tracy
Shebah Wurm, D.O., 99:3-14, 99:8-14.)
Torres recalled that his wife began pushing at about 10:00
a.m. on the morning of October 9, 2013. (Dep., Ruben Torres,
38:22-39:4.) About an hour after his wife starting pushing,
Dr. Franco came in and told her to stop pushing because the
baby was not “descending all the way down.”
(Dep., Ruben Torres, 40:11-21.) When his wife stopped
pushing, they allowed her to sit up, which concerned him
because earlier that morning he had heard the health care
practitioners discussing that when baby's head was down
low, they did not want the mom sitting up. (Dep., Ruben
Mrs. Torres laid down, the nurses were unable to obtain the
heart rate with the external monitor for nearly 30 minutes.
At that point, someone named “Valerie, ” who Mr.
Torres assumed was a nurse, was brought in to try to obtain
the heart rate. It was Mr. Torres's impression that
“Valerie” was chosen because she was
“supposed to be the best at [finding] a fetus'
heart rate.” (Id. at 46:9-47:2.)
only after “Valerie” was unable to find the heart
rate that “they basically threw everything on top
of Kelli and ran in the hallway.” (Id. at
47:21-23.) According to the records, this occurred at 1248,
several hours after the EFM initially showed difficulty in
differentiating between the fetal and maternal heart rate,
(see Dep., Ylbe Franco-Marx, M.D., 174:10-17), and
after the nurse had offered the resident the fetal scalp
electrode as a means of gaining a better understanding of the
fetal heart rate.
Torres accompanied Mrs. Torres into the operating room. He
was positioned by her head and in front of the privacy drape.
Because he was scared, he did not want to look over the
drape. (Dep., Ruben Torres, 52:18-23.) Within a few minutes
of arriving in the operating room, he was asked to leave.
(Id. at 52:18-53:4.) He went back to the room
“and a little while later a nurse came to the room . .
. and told [him] that when [his son] was born . . . he had to
be resuscitated, and that he's not looking good for him,
and that he's in the NICU.” (Id. at
53:11-25.) The nurse was crying when she told Mr. Torres
about his son. (Id. at 54:18-24.)
baby was born at 1304. His Apgar scores were 1 at 1 minute, 1
at 5 minutes, 1 at 10 minutes, 1 at 15 minutes and 1 at 20
minutes. Based on his initial Apgar score of 1 at 1 minute,
Ruben Torres, Jr. required resuscitation, which initially
lasted 24 minutes. (See Neonatal Resuscitation
Record.) Shortly after, while still in the operating room, he
required a second resuscitation. (See Neonatal
Resuscitation Record.) He was transferred to the NICU at
1339. (See NICU Flowsheet.) Between 1339 and 1400,
Ruben Torres, Jr. underwent a number of medical interventions
including placement of a central catheter, x-ray confirmation
of the catheter and the drawing of blood. (See
to the records, Mr. and Mrs. Torres were first allowed to see
their son sometime between 1400 and 1435. At that time, the
baby was hooked up to lines and intubated. Although his eyes
were open, Mr. Torres testified “there was nothing
there.” He was not moving and he was unable to grasp
Mrs. Torres's finger. (Dep. Ruben Torres, 55:21-56:15.)
were told that their son had to be airlifted to Nemours
because he needed more care than Inspira Vineland had to
offer. (Dep., Ruben Torres, 56:19-57:8.) Mr. Torres saw his
son just before he left for Nemours and was able to watch the
helicopter as it left Inspira Vineland. (Dep., Ruben Torres,
days after his birth, Ruben Torres, Jr. was still unable to
breathe on his own and remained motionless. (See
Nemours Discharge Summary.) An EEG taken on October 11,
showed an absence of brain activity. (Compl. at ¶293.)
Two days after that, on October 13, 2013, on the
physician's recommendations, Plaintiffs withdrew all life
support. (See ...