Battenfeld v. Gregory

• Decision Date: 02 May 1991
• Citation: Battenfeld v. Gregory, 247 N.J.Super. 538, 589 A.2d 1059 (N.J. Super. App. Div. 1991)
• Parties: Darleen BATTENFELD and Paul Battenfeld, Plaintiffs-Respondents, v. Thomas V. GREGORY, M.D., James J. Tabasso, M.D., Atlantic OB/Gyn Group, P.A., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 538

247 N.J.Super. 538

589 A.2d 1059

Darleen BATTENFELD and Paul Battenfeld, Plaintiffs-Respondents, v.Thomas V. GREGORY, M.D., James J. Tabasso, M.D., Atlantic OB/Gyn Group, P.A., Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued April 9, 1991.

Decided May 2, 1991.

Robert E. Paarz, for defendants-appellants(Horn, Kaplan, Goldberg, Gorny & Daniels, attorneys; Robert E. Paarz, Atlantic City, on the brief).

Blanca I. Rodriguez, for plaintiffs-respondents(Kreindler & Kreindler, attorneys; Francis G. Fleming and Noah H. Kushlefsky, New York City, on the brief).

Before Judges DEIGHAN, BAIME and ARNOLD M. STEIN.

The opinion of the court was delivered by

BAIME, J.A.D.

PlaintiffDarleen Battenfeld instituted this action against her obstetricians defendantsThomas Gregory and James Tabasso, claiming that they were negligent in failing to diagnose her infectious ruptured appendix in a timely fashion.Plaintiff claimed that the delay in surgically removing her appendix resulted in severe pelvic adhesions and the consequent loss of fertility.Following a lengthy trial, the jury found both physicians negligent and awarded plaintiff $246,400 and her husband $24,640 on his per quod claim.We find substantial errors in the trial court's charge and thus reverse the judgment.

I.

Because the issues raised on this appeal concern solely the trial court's jury instructions, we need not recount the facts at length.Plaintiff became pregnant in 1984 and came under the care of defendants, who specialize in obstetrics and gynecology.Defendants had previously treated plaintiff during her earlier successful pregnancy.

On December 18, 1984, plaintiff, who was then approximately five months pregnant, began experiencing severe nausea, vomiting and diarrhea.She immediately contacted defendants' office and was told by a receptionist to take an over-the-counter drug.On December 20, plaintiff began experiencing sharp abdominal pains.Plaintiff was taken to a nearby Coast Guard base clinic where she was examined by a medical officer.Recognizing that plaintiff was very ill, the physician contacted Dr. Gregory who agreed to meet her at the Shore Memorial Hospital.

Shortly thereafter, plaintiff was examined in the emergency room by Dr. Gregory and Dr. George Robb, a consulting surgeon, and was admitted to the maternity ward.At approximately 10:30 p.m., plaintiff began to miscarry.Dr. Gregory was present with plaintiff in the labor room, but left to change his clothes after her "water broke."He was not present when the fetus and placenta were delivered.These were sent to the pathology department for evaluation.A pathology report was later prepared, indicating that "[t]he placenta appears incomplete" and a "[c]linical correlation is suggested."

Plaintiff's symptoms greatly improved over the next 48 hours.At approximately 9:00 a.m. on December 22, she was seen by Dr. Tabasso.During the visit, plaintiff noted that she was feeling much better and wanted to go home to be with her family.Dr. Tabasso recommended that she remain in the hospital until her temperature was normal for 24 hours.He volunteered, however, that she could "sign herself out" of the hospital if she executed a form acknowledging that she was leaving "against medical advice."At trial, plaintiff testified that she would have remained in the hospital had she known that her temperature, elevated white blood cell count and rapid pulse were suggestive of a serious underlying infection.Dr Tabasso allegedly failed to apprise her of this information and she therefore executed the release and discharged herself from the hospital.

Plaintiff remained at home for the next five days.However, on December 27, Dr. Gregory, having reviewed plaintiff's file and noting her elevated white blood count, directed her to come to his office immediately.On the doctor's advice, plaintiff was readmitted to the hospital where a dilation and curettage was performed.Her condition deteriorated markedly on December 28 and 29.On December 31, the doctor performed an exploratory laparotomy, expecting to find an infection in plaintiff's reproductive system.Instead, the surgery revealed a ruptured appendix, which was then removed.According to the doctors, the appendix was retrocecal, i.e., situated behind the cecum and slightly displaced from its normal location in the body.

After recovering from the surgery, plaintiff was discharged on January 5, 1985.Although her recovery initially appeared to be complete, plaintiff's attempts to have additional children were unsuccessful.At trial, plaintiff contended that her reproductive organs were permanently damaged by defendants' failure to timely diagnose and remove her ruptured appendix.In support of this theory, plaintiff's expert testified that defendants' negligence allowed the ruptured appendix to fester for some 11 days.According to the witness, "the longer an inflammatory process is [permitted] to dwell within the abdomen," the greater the body responds by developing adhesions.According to Dr. Edwin Jones of the Yale Fertility Clinic, the extensive scarring that resulted did not prevent ovulation or conception, but instead precluded a fertilized egg from implanting in the womb, resulting in infertility.

Defendants denied that they were negligent in failing to timely diagnose plaintiff's condition.They urged that because the appendix was displaced from its normal location, the natural and reasonable assumption was that plaintiff's symptoms related to an underlying problem with her reproductive system.Defendants also claimed that plaintiff's infertility was the result of hormonal and ovulation problems unrelated to the pelvic adhesions.

In formulating its instructions, the trial court essentially accepted plaintiff's theory that defendants' negligence created an increased risk of harm flowing from her preexistent appendicitis condition and was a substantial factor in producing the ultimate result.However, the court also agreed with defendants' argument that both the "substantial factor" and more stringent "but for" theories of proximate cause were applicable.Moreover, the court, over the vigorous objection of both attorneys, determined that the concept of "substantial factor" required clarification, necessitating a definition encompassing percentage quantifications.Because defendants' arguments relate to the instructions given, we quote verbatim from substantial portions of the charge:

Plaintiffs further contend that this negligence increased the risk of injury to Darleen.By that I mean that defendants' negligence increased the risk of ultimate injury from above the level of risk, which would have resulted from non-negligent treatment.They contend further that this increased risk was a substantial factor in causing her infertility for which disability and pain and suffering she seeks money damages at your hands.

Now, the defendants deny they were negligent.They deny there was any increased risk to plaintiff or that any of their actions or inactions were a substantial factor in bringing about plaintiff's infertility or resulted in any additional pain, suffering, disability or damages to plaintiff.Therefore, in this case initially, the plaintiff must show that first, the defendants' action or inaction led to a delay in diagnosis and operation by December 22, and that this was a substantial--this was a deviation from accepted medical practice and if their activity or inactivity was not a deviation, then the defendants were not negligent.That's the first evaluation you have to make.Was there negligence and you determine that based upon whether or not there was a deviation from accepted medical standards in the practice.If their action or inaction by December 22[was] a deviation from accepted medical practice, then defendants were negligent, as I said, and in that event you must determine if this negligence increased the risk of infertility to the plaintiff.If this did not increase the risk of infertility, there can be no recovery.If it did, you must then determine if that increased risk was a substantial factor in producing plaintiff's infertility.If the increased risk was not a substantial factor in causing infertility, there can be no recovery, but if it was a substantial factor plaintiffs will be entitled to recover for those damages approximately resulting from their activity or inactivity.

* * * * * *

Now, there are different kinds of burdens of proof in this and I hope I can make you understand the difference between them.It is plaintiff's burden of proof to show her disability; that is, her infertility resulted from an increased risk created by a defendant or defendants' negligence which increased risk was a substantial factor in causing the infertility.However, the resultant damages arising from the increased risks substantial factor process must be proximately caused by this process.

By proximate cause I mean that the negligent process [which] was a substantial factor in causing the damages to plaintiffs defines a cause which has naturally and properly led to and might have been expected to produce the injuries and damages claimed.Plaintiffs must show that the injury, for which they seek compensation, was a natural and probable result of the negligent process and it isn't enough to prove mere possibility of a particular claim, an item of damage was caused by the negligent process.Speculation isn't enough.It must be shown that there was a natural and probable consequence of this negligent process.

Let me--I think the best way to demonstrate the difference between proximate cause and substantial factor is, proximate cause is something more than 50%.Substantial factor is something less than 51%.It's not as great.Burden of proof in establishing substantial factor is less than the burden of proof in establishing proximate cause.And so, a proximate cause must...