Gardner v. Pawliw

• Decision Date: 14 July 1997
• Citation: 150 N.J. 359,696 A.2d 599
• Parties: Linda GARDNER and Thomas Gardner, her husband, Plaintiffs-Appellants, v. Myron PAWLIW, M.D., Defendant-Respondent, and John Doe, said name, John Doe, being fictitious, jointly, individually and in the alternative, Defendant.
• Court: New Jersey Supreme Court

Page 359

150 N.J. 359

696 A.2d 599

Linda GARDNER and Thomas Gardner, her husband, Plaintiffs-Appellants, v. Myron PAWLIW, M.D., Defendant-Respondent and John Doe, said name, John Doe, being fictitious, jointly individually and in the alternative, Defendant.

Supreme Court of New Jersey.

Argued Jan. 6, 1997.

Decided July 14, 1997.

Albert J. Brooks, Jr., Philadelphia, PA, for plaintiffs-appellants (Sheller & Associates, attorneys).

Hugh Francis, Morristown, for defendant-respondent (Francis & Berry, attorneys; Beth A. Hardy, on the briefs).

The opinion of the court was delivered by

STEIN, J.

The primary issue in this appeal concerns whether it was error for the trial court, following a three-day jury trial, to dismiss plaintiffs' complaint. That complaint alleged that the treating obstetrician had negligently failed to perform certain diagnostic tests, thereby increasing the risk of harm from a preexistent condition, which resulted in the ultimate demise of a nearly full- fetus. The trial court acknowledged that plaintiffs had met their burden of proof concerning negligence, preexistent condition, and the potential for survival of the fetus had an early induction of labor been performed by the treating obstetrician. However, that court dismissed plaintiffs' complaint on the basis that plaintiffs had failed to prove a proximate causal relationship between defendant's alleged malpractice and the death of the fetus.

The Appellate Division affirmed the trial court's dismissal of the complaint. 285 N.J.Super. 113, 666 A.2d 592 (1995). That court concluded that plaintiffs had presented inadequate evidence on the issue of causation because their medical expert failed to express an opinion regarding (1) the fetus's condition on the day the obstetrician failed to perform certain diagnostic tests and (2) the probability or possibility that those tests would have revealed any abnormalities as of that date. We granted certification. 146 N.J. 496, 683 A.2d 199 (1996). We hold that the trial court erroneously precluded the jury from determining whether the obstetrician's failure to perform diagnostic tests increased the risk that plaintiffs' fetus would not survive and whether that increased risk was a substantial factor in causing the fetus's death.

I

On June 1, 1988, plaintiff Linda Gardner, six weeks pregnant, consulted defendant Dr. Myron Pawliw, a board-certified obstetrician and gynecologist. Gardner had sought a recommendation from the Princeton Medical Center for an obstetrician with experience treating high-risk pregnancies and infertility problems. She was referred to Dr. Pawliw. During the initial meeting, Gardner explained in detail her prior gynecological and obstetrical history, which included two first-trimester miscarriages and ongoing treatment for a hormonal insufficiency known as luteal phase defect. She expressed her desire for "special care" to help maintain this pregnancy, emphasizing that she was quite anxious that she might suffer another miscarriage. Dr. Pawliw assured her that he had had experience treating previously infertile and high-risk patients. He stated that he could help her achieve a successful pregnancy.

Gardner received continued supervision and hormonal monitoring by a fertility clinic in Philadelphia during the first trimester of her pregnancy. That supervision was necessary because Gardner had taken fertility drugs to help achieve the pregnancy. Her use of fertility drugs had required close monitoring by the fertility clinic of her hormonal levels and follicle development before she became pregnant. Following Gardner's discovery that she was pregnant, the clinic continued to monitor her progesterone level to help support the pregnancy, as required by her luteal phase defect. Gardner travelled twice weekly to the Philadelphia clinic for testing of her hormone progesterone serum levels. In the first trimester of pregnancy progesterone is normally produced by the corpus luteum, the follicle that remains following the release and fertilization of an ovum. Women with luteal phase defect fail to produce sufficient progesterone to maintain a pregnancy, and thereby require a progesterone supplement, which can be ingested orally, inserted vaginally or injected by syringe. Throughout the first trimester, Gardner was required to use all three methods to sustain sufficient levels of progesterone.

Gardner continued to receive close monitoring of her progesterone levels beyond the first trimester, when the placenta normally takes over the production of the progesterone necessary to sustain the pregnancy. The clinic continued to monitor Gardner's progesterone levels by performing blood tests two times a week and supplemented her progesterone levels throughout the pregnancy. The parties dispute whether standard obstetrical protocol for luteal phase defect includes continued supplementation of progesterone beyond the first trimester, as was provided to Gardner. Dr. Pawliw was aware of the clinic's treatment of Gardner, but did not assume responsibility for its management.

From June through November, Dr. Pawliw saw Gardner on a monthly basis. Her due date was January 20, 1989. Defendant signed orders requiring Gardner to take a medical disability leave for the duration of the pregnancy. Reports from the fertility clinic following its performance of two ultrasound evaluations and an amniocentesis indicated normal fetal development. Early in the third trimester, Gardner saw Dr. Pawliw's associate after she experienced contractions. The contractions dissipated and Gardner's pregnancy continued normally. Beginning in the third trimester, Gardner saw Dr. Pawliw every two weeks.

On December 21, 1988, Gardner noticed a significant decrease in the frequency of fetal movement and a watery vaginal discharge. She had a regularly scheduled appointment with Dr. Pawliw later that day. Gardner testified that she had felt concerned during the appointment and that defendant had acted impatiently towards her. Dr. Pawliw performed an internal examination and determined that Gardner's cervix was partially effaced and dilated. He measured the height of the fundus, which serves as an indicator of fetal growth based on the growth of the uterus. Defendant also took Gardner's blood pressure and performed a urinalysis, which appeared normal. Gardner testified that Dr. Pawliw had had difficulty finding the fetal heartbeat, and that the fetal heartbeat had sounded different than at earlier visits. Dr. Pawliw indicated in his notes that he had found the fetal heartbeat and that it was normal. When Gardner voiced her concerns about the amount of time it took Dr. Pawliw to find the fetal heartbeat, Dr. Pawliw responded curtly, asking if she had always counted the time it took him to find the heartbeat. He told Gardner not to get too worried, warning her that she could develop high blood pressure if she was not careful. When Gardner continued to voice her concerns about the decreased movement, defendant attempted to reassure her by explaining that the fetus was sleeping and that there was nothing wrong.

Defendant did not perform any other diagnostic tests during that visit. The parties dispute whether defendant provided Gardner with any verbal instructions to count the episodes of movement that she experienced from morning until noon, and to call him if she failed to perceive at least ten episodes during that time period. Gardner contends that she received no such instructions, emphasizing that she would have followed any instructions to the letter given her anxiety concerning the fetus's well-being. Gardner acknowledged that defendant had given her written instructions concerning when to call him (if she had frequent contractions, started bleeding, her water broke or if she did "not know what was going on."). At the end of the visit, Gardner was reassured by defendant's remark that she might deliver the fetus as early as Christmas.

From December 21 through December 24, 1988, the same level of decreased fetal movement continued. On December 25, Gardner noticed increased fetal activity. On December 26, Gardner did not notice any fetal movement and thought, based on the explanation previously offered by Dr. Pawliw, that the fetus was sleeping. On the morning of December 27, Gardner and her husband perceived a complete lack of fetal activity. She immediately called defendant's office and was told to come in to be examined. Dr. Pawliw failed to find the fetal heartbeat, although he did not so inform the Gardners. When Gardner suggested that the heartbeat that he had found was hers, not the fetus's, Dr. Pawliw told her that she was wrong. He sent the couple to a nearby facility for an ultrasound scan and biophysical profile. The results were not provided for several hours, although both Gardner and her husband made numerous phone calls to defendant's office. Defendant eventually informed the Gardners by telephone that the fetus had died and asked them both to come to his office later that evening to discuss the various options available for delivering the dead fetus. The Gardners elected to induce labor that evening by the use of prostaglandin suppositories. Dr. Pawliw told them that he would be there to help them through the delivery, but he missed the delivery. Instead, Gardner's husband and a nurse delivered the stillborn fetus.

On March 20, 1990, the Gardners filed a medical malpractice action against Dr. Pawliw, alleging that his failure to perform diagnostic tests, specifically a Non-Stress Test (NST) and Biophysical Profile (BPP), on December 21, 1988, after Gardner informed him of the decreased fetal movement and watery discharge, had caused an increased risk that their fetus would not survive and that the increased risk was a substantial factor in the fetus's death. ¹ Plaintiffs also alleged that Dr. Pawliw's negligent failure to deliver the fetus had caused Linda Gardner's husband emotional...