400 A.2d 147 (N.J.Super.L. 1979), Friel v. Vineland Obstetrical and Gynecological Professional Ass'n

CourtSuperior Court of New Jersey
Writing for the Court[10] Miller
Citation166 N.J.Super. 579,400 A.2d 147
Docket Number.
PartiesBetty FRIEL et al., Plaintiffs, v. VINELAND OBSTETRICAL AND GYNECOLOGICAL PROFESSIONAL ASSOCIATION et al., Defendants.

Page 147

400 A.2d 147 (N.J.Super.L. 1979)

166 N.J.Super. 579

Betty FRIEL et al., Plaintiffs,

v.

VINELAND OBSTETRICAL AND GYNECOLOGICAL PROFESSIONAL

ASSOCIATION et al., Defendants.

Superior Court of New Jersey, Law Division.

February 26, 1979

Page 148

[166 N.J.Super. 581] Nelson C. Johnson, Hammonton, for plaintiffs (Bertman, Johnson & Sahli, Hammonton, attorneys).

Jeffery A. April, Atlantic City, for defendant Newcomb Hospital (Cooper, Perskie, Katzman, April, Niedelman & Wagenheim, Atlantic City, attorneys).

A. Michael Barker, Atlantic City, for defendants Vineland Obstetrical and Gynecological Professional Ass'n, etc. (Horn, Kaplan, Goldberg & Gorny, Atlantic City, attorneys). [166 N.J.Super. 582]

MILLER, J. S. C.

May a mother whose child is tortiously caused to be prematurely delivered and who herself sustained a compensable injury therein, include as damages not only those proximately related to her own injuries but for her fright, anxiety and shock sustained by the premature delivery and uncertainty as to the child's normality during the formative years of development to the stage where educational testing may be had?

This case comes before the court on defendants' motions for summary judgment. Plaintiffs sued alleging medical malpractice in obstetrical care provided to a mother and daughter. Defendants argue that because the infant has apparently recovered from her injuries, plaintiffs' complaint must be dismissed by way of summary judgment. In order to dispose of this motion it is necessary to consider the elements of damage presented in such cases. For the reasons stated herein this court holds that, at least in cases of alleged obstetrical malpractice, anxiety of the parents of a child living but potentially brain damaged is includable as an element of damage. Thus, for the above reason and other reasons set forth below, defendants' motions are denied.

The factual events of this case began on April 30, 1976, when plaintiff Betty Friel was in her thirty-first week of pregnancy. She noticed vaginal bleeding on that date. She called defendant doctors, who were treating her through the course of her pregnancy, and was advised to take aspirin and a shot of whiskey. A few days later an office visit occurred due to plaintiff's continued bleeding and cramps. The doctor diagnosed a bladder infection and prescribed medication for that suspected ailment. By May 7 plaintiff's vaginal bleeding had become quite heavy and her cramps and pain markedly increased. She went to defendant Newcomb Hospital where the doctor examined her, reaffirmed his diagnosis, and advised plaintiff to go home. Plaintiff William Friel insisted on a second

Page 149

examination. A second member of the doctors' group examined her, agreed with his colleague's diagnosis, and plaintiffs were sent home. On May 9 Betty Friel became violently [166 N.J.Super. 583] ill, suffered convulsions and continued to bleed. In a nearly hysterical state, she was admitted to the hospital at about 8 p. m. that evening. She received medication, including Demerol and intravenous oxytocin. Plaintiffs allege that no one checked on her regularly after she was in the labor room. At 10 p. m. a third member of the defendant doctors' group examined plaintiff and indicated that it would be some time before the baby was born and left. At 10:26 p. m. the infant plaintiff was born. No anesthesia was administered, no epesiotomy was done, and plaintiffs allege that no member of defendant doctors' group was present when Betty Friel delivered the child. The final diagnosis was that Betty Friel had suffered an Abruptio placenta.

The infant plaintiff, Amanda Beth, was three pounds, six ounces at birth. She was cyanotic, suffered apnea, and later tests showed intracranial hemorrhaging and central nervous system difficulties. Amanda spent the first 51/2 weeks of her life in a Pennsylvania hospital, came home one week, and was rushed back against after respiratory failure.

Expert Testimony

Defendant hospital argues that plaintiffs' cause of action against it must be dismissed for failure to produce an expert. E. g., Carbone v. Warburton, 11 N.J. 418, 94 A.2d 680 (1953); Toy v. Rickert, 53 N.J.Super. 27, 146 A.2d 510 (App.Div.1958). The hospital argued that even assuming that no one attended plaintiff, that no one checked the medication and plaintiff's condition while receiving medication, expert testimony must be required to show that the medication was harmful and that it is beyond the common knowledge of jurors how often a person should be checked or attended upon admission to a hospital and while receiving medication. Plaintiff's expert, however, clearly addresses that issue in his report:

The contribution of the intravenous oxytocin stimulation to the injuries this infant suffered is not clear, inasmuch as there are no Nurse's Notes contained in this record. It is considered customary [166 N.J.Super. 584] practice that during intravenous oxytocin stimulation the following biologic parameters are carefully monitored every ten minutes; the blood pressure, the rate of flow of oxytocin, the frequency and intensity of the uterine contractions and the fetal heart rate. We have no record of these observations having been made and that omission, in itself, is a departure from customary standards.

Thus, assuming all that defendant assumes, plaintiff in fact does have an expert to testify to the standard of care and deviation therefrom. Whether or not a nurse attended plaintiff during this period is obviously a material factual issue that must not be disposed of on summary judgment. R. 4:46-2; E. g., Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75, 110 A.2d 24 (1954).

Thus, in light of plaintiff's expert report, further discussion as to whether the argument of "common knowledge" doctrine applies to plaintiffs' claims regarding negligent administration of "harmful" medications is unnecessary. However, insofar as plaintiffs allege an utter lack of attendance, particularly at the time the baby was delivered, the question of malpractice in that regard would appear to be within the province of the jury of laymen, depending upon the proofs submitted. "There are basic aspects of childbirth procedure within the common knowledge of the laity." Lewis v. Read, 80 N.J.Super. 148, 170, 193 A.2d 255, 267 (App.Div.1963), certif. granted 41 N.J. 121, 195 A.2d 17 (1963). Attendance of a patient in labor at or near the moment of giving birth would seem to be an aspect particularly within that knowledge.

For the above reasons, defendant Newcomb Hospital's motion for summary judgment on the basis of a failure to produce an expert and the nonapplicability of the "common knowledge" doctrine is denied on the present state of discovery.

Page 150

Damages

Defendants' argument that there were no actionable damages in this case is premised on a letter written by Amanda's physician, Dr. Boggs, on August 16, 1977. Amanda [166 N.J.Super. 585] was then 16 months old. Dr. Boggs characterized her condition as follows: " * * * she is an active bright young lady who has equalled or surpassed her five older siblings in attaining her motor landmarks to date." Defendants assert that since the child has apparently recovered, according to Dr. Boggs' letter, the damage element of plaintiffs case is lacking and must be dismissed. They also argue that due to Amanda's prematurity, any attempt to establish a causal connection between defendants' acts and/or omissions and Amanda's injuries is merely speculative.

Causation problems in cases involving prenatal injuries have been noted by the Supreme Court in Smith v. Brennan, 31 N.J. 353, 157 A.2d 497 (1960). The court noted that many types of cases present causation problems, but that "the mere difficulty of proving a fact is not a very good reason for blocking all attempts to prove it." Id. at 365, 157 A.2d at 503. See also, Knutsen v. Brown, 93 N.J.Super. 522, 536, 226 A.2d 460 (Law Div.1966), aff'd 96 N.J.Super. 229, 232 A.2d 833 (App.Div.1967).

Furthermore, in the reports filed with this motion, plaintiffs' expert, Dr. Nathanson, explicitly recognizes the problem that prematurity plays in this case. His report of June 9, 1977 states: " * * * premature infants are occasionally known to suffer intracranial hemorrhage without apparent cause. There would seem sufficient reasons in this case for traumas to the head to produce such injury. I refer specifically to the use of intravenous oxytocin, the omission of epesiotomy, etc." Where expert testimony will be involved, courts should be particularly cautious in granting summary judgment. Ruvolo v. American Cas. Co., 39 N.J. 490, 500, 189 A.2d 204 (1963).

Defendants' argument that since Amanda has apparently recovered there are no actionable damages ignores the immediate injuries that Amanda may have suffered due to defendants' malpractice. Her pain and suffering during the lengthy hospitalizations subsequent to her birth are compensable. Doud v. Newark Housing Auth., 75 N.J.Super. 340, 346, 183 A.2d 149 (App.Div.1962). Pain is a subjective reality. This [166 N.J.Super. 586] infant may be too young to testify that reality as felt by her, but a jury can determine from her parents' and physicians' testimony of her injuries and her physical actions and responses what is "fair and reasonable" compensation for her suffering. Lewis v. Read, supra, 80 N.J.Super. at 173-174, 193 A.2d 255. See generally, Botta v. Brunner, 26 N.J. 82, 138 A.2d 713 (1958).

Even if this court were inclined to accept defendants' argument, the facts would not permit it. From Dr. Boggs' report, read in conjunction with Dr. Nathanson's report, a doubt arises as to whether Amanda has effected a complete recovery. Dr. Boggs recommends a repeat electroencephalogram, and, if it is normal, discontinuance of medication. Dr. Nathanson concludes that plaintiff probably began suffering...

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8 practice notes
  • 404 A.2d 8 (N.J. 1979), Berman v. Allan
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • June 26, 1979
    ...can endure for a period of time after the birth of the child. E. g., Friel v. Vineland Obst. and Gynecological Professional Assoc., 166 N.J.Super. 579, 400 A.2d 147 (Law Div.1979) (damages may be awarded for anxiety and shock as well as the uncertainty as to child's normality during formati......
  • 417 A.2d 521 (N.J. 1980), Portee v. Jaffee
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • July 29, 1980
    ...v. West Jersey R. R. Co., 52 N.J.L. 265, 19 A. 254 (Sup.Ct.1890); see also Friel v. Vineland Obstetrical and Gynecological Prof. Ass'n, 166 N.J.Super. 579, 400 A.2d 147 (Law Div.1979) (physical impact of birth found to permit liability based on negligent medical [5] A failure to recognize t......
  • 545 A.2d 139 (N.J. 1988), Giardina v. Bennett
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • August 10, 1988
    ...It is the profound and abiding sentiment of parental love." See Friel v. Vineland Obstetrical & Gynecological Ass'n., 166 N.J.Super. 579, 587-92, 400 A.2d 147 (Law Div.1979) (mother of a child born prematurely due to defendant doctor's negligence could recover for the uncertainty a......
  • 471 A.2d 405 (N.J. 1984), Evers v. Dollinger
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • February 8, 1984
    ...a bus, even though her baby was born normal and healthy three weeks later); Friel v. Vineland Obstetrical & Gynecological Ass'n, 166 N.J.Super. 579, 400 A.2d 147 (Law Div.1979) (awarded damages to a mother for the mental distress over possible brain damage to her child as well as damage......
  • Request a trial to view additional results
8 cases
  • 471 A.2d 405 (N.J. 1984), Evers v. Dollinger
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • February 8, 1984
    ...a bus, even though her baby was born normal and healthy three weeks later); Friel v. Vineland Obstetrical & Gynecological Ass'n, 166 N.J.Super. 579, 400 A.2d 147 (Law Div.1979) (awarded damages to a mother for the mental distress over possible brain damage to her child as well as damage......
  • 545 A.2d 139 (N.J. 1988), Giardina v. Bennett
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • August 10, 1988
    ...It is the profound and abiding sentiment of parental love." See Friel v. Vineland Obstetrical & Gynecological Ass'n., 166 N.J.Super. 579, 587-92, 400 A.2d 147 (Law Div.1979) (mother of a child born prematurely due to defendant doctor's negligence could recover for the uncertainty a......
  • 622 A.2d 1279 (N.J. 1993), Carey v. Lovett
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • April 6, 1993
    ...in the sense that she was unprepared for the result. See Friel v. Vineland Obstetrical & Gynecological Professional Association, 166 N.J.Super. 579, 582, 400 A.2d 147 (Law Div.1979) (recognizing claim of pregnant woman "for her fright, anxiety and shock sustained by the premature d......
  • 417 A.2d 521 (N.J. 1980), Portee v. Jaffee
    • United States
    • New Jersey United States State Supreme Court (New Jersey)
    • July 29, 1980
    ...v. West Jersey R. R. Co., 52 N.J.L. 265, 19 A. 254 (Sup.Ct.1890); see also Friel v. Vineland Obstetrical and Gynecological Prof. Ass'n, 166 N.J.Super. 579, 400 A.2d 147 (Law Div.1979) (physical impact of birth found to permit liability based on negligent medical care). [5] A failure to reco......
  • Request a trial to view additional results

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