Lewis v. Read

• Decision Date: 26 June 1963
• Docket Number: A--25,Nos. A--24,s. A--24
• Citation: 80 N.J.Super. 148,193 A.2d 255
• Parties: Margaret Ruth LEWIS, an infant, by her guardian ad litem, William Lewis; William Lewis, individually, and Frances Lewis, Plaintiffs-Respondents, v. Jessie D. READ; St. Barnabas Medical Center, Defendants-Appellants, and Milton Prystowsky, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 148

80 N.J.Super. 148

193 A.2d 255

Margaret Ruth LEWIS, an infant, by her guardian ad litem William Lewis; William Lewis, individually, and Frances Lewis, Plaintiffs-Respondents, v. Jessie D. READ; St. Barnabas Medical Center, Defendants-Appellants and Milton Prystowsky, Defendant.

Nos. A--24, A--25.

Superior Court of New Jersey Appellate Division.

Argued March 25, 1963.

Decided June 26, 1963.

William P. Braun, Newark, for appellant Jessie D. Read (Braun & Hoey, Newark, attorneys, Mark F. Hughes, Jr., Newark, of counsel).

Joseph A. Clarken, Jr., Newark, for appellant St. Barnabas Medical Center (Mead, Gleeson, Hansen & Pantages, Newark, attorneys, Joseph A. Clarken, Jr., Newark, of counsel and on the brief).

Annamay T. Sheppard, Livingston, for respondents (William O. Barnes, Jr., Newark, attorney, William O. Barnes, Jr., Newark, and Annamay T. Sheppard, Livingston, of counsel and on the brief).

Before Judges PRICE, SULLIVAN and LEWIS.

The opinion of the court was delivered by

LEWIS, J.A.D.

This is an obstetrical malpractice case which resulted in a unanimous jury verdict awarding $175,000 to the infant plaintiff Margaret Ruth Lewis (herein child, infant or baby Margaret) against defendants '(Dr.) Jessie D. Read' (herein Dr. Read) and 'The Hospital of St. Barnabas' (herein hospital), and $75,000 in favor of the infant's parents, William Lewis and Frances Lewis, against the defendant Dr. Read only, and a verdict of no cause of action in favor of the codefendant '(Dr.) Milton Prystowsky' (herein Dr. Prystowsky). In denying motions for a new trial, the judge opined, 'For the Jury to have found otherwise would, in my opinion, have constituted a miscarriage of justice.' Defendants Dr. Read and the hospital appeal.

The infant plaintiff has suffered an impairment of the central nervous system, including the brain. She is blind, deaf, unable to speak, without sense of touch or muscular control, subject to twitching and convulsive seizures, substantially underweight, and unable to consume food except through an eyedropper or teakettle-type cup. The crucial and primary question before the jury was whether her condition of abnormality was caused by defendants' negligence or was the result of a congenital infirmity existing In utero at the time of nativity.

We note In limine that plaintiffs' initial pleading was a complaint in the Superior Court, Law Division, against Dr. Read, and that successively amended complaints were filed to join the hospital and Dr. Prystowsky as defendants. The hospital, by its answer, denied liability, pleaded separate affirmative defenses and cross-claimed against Dr. Read, and by its amended answer additionally pleaded charitable immunity under N.J.S.A. 16:1--48. Dr. Read's answers joined issue with the complaint, the amended complaints and the cross-claim. The pleadings on behalf of the hospital were filed by its then independent counsel. Prior to the pretrial conferences, however, Dr. Read's attorneys were substituted as counsel to also represent the hospital, and the latter's cross- claim against the former was thereafter withdrawn. During the course of the trial, the amended complaints representing the derivative suits of the parents against the hospital and Dr. Prystowsky, respectively, having been barred by the statute of limitations, were on appropriate motion eliminated. The hospital's counsel appearing before this court were substituted after the entry of judgment and the filing of the notices of appeal. Separate briefs In extenso were filed on behalf of Dr. Read and the hospital.

The several grounds for appeal assigned by the defendants may, in substance, be summarized and categorized as follows:

--The verdict was against the weight of the evidence. It was so far contrary to the quantitative and qualitative proofs in favor of the defendants, and the amounts thereof were so excessive, that a conclusion of resultant mistake, partiality, prejudice or passion is inescapable. The trial court accordingly abused its discretion in denying defendants' motion for a new trial.

--Plaintiffs' expert witness was not qualified in the field of obstetrics to testify as to the applicable standards of medical care and the alleged deviations therefrom; consequently, prejudicial harm was committed in permitting his testimony as an expert.

--Numerous trial errors, in the segregate and aggregate, deprived defendants of a fair trial.

In approaching the resolution of those contentions, we shall in sequence consider: (1) a chronicle of basic facts which stand essentially unrefuted in the record; (2) the area of conflict, aside from the testimony of the expert witnesses; (3) evidence proffered by the medical specialists; (4) the issue of liability; and (5) the question of damages.

I.

Plaintiff Frances Lewis was 45 years of age at the time of trial. She was the mother of five children, three born prior to and one after the birth of baby Margaret, and all except the latter have enjoyed 'excellent health.' While pregnant with Margaret, the mother, in addition to the discharge of usual family responsibilities, pursued her musical career, including the daily rendering of violin lessons. Aside from a mild peripheral neuritis, 'secondary to changes of pregnancy,' her prenatal interval was relatively uneventful. The obstetric services and advice of Dr. Read and her associates Dr. John McGeary and Dr. Daniel G. Jarvis (sometimes referred to as 'The Trio') were rendered to Mrs. Lewis commencing in May 1955.

On or about noontime on January 25, 1956 the mother experienced the onset of mild labor pains and Dr. Read was notified. Mrs. Lewis was taken to the hospital by her husband and was admitted, about 1:45 P.M., to the 'labor floor' by nurse Lena Blessing. A telephone call was relayed to Dr. Read by nurse Catherine M. Roche (in charge of the delivery room). Dr. Bausch, an intern, proceeded with a routine predelivery examination of the mother.

Nurse Laura Wogisch (hereafter Wogisch) came on duty at 3 P.M. (to relieve nurses Roche and Blessing, whose shifts of duty on that day were from 7 A.M. to 3:30 P.M.). Upon the arrival of Wogisch, Mrs. Lewis was experiencing uterine contractions at five-minute intervals, progressively 'becoming stronger.' The membrances ruptured shortly thereafter. Dr. Read appeared at the hospital at approximately 'a quarter to four,' reviewed the results of the intern's examination, and then proceeded to see Mrs. Lewis who was at that time in the labor cubicle. The expectant mother's general condition was 'good' and 'she was in active labor, near the time to deliver.' The patient was moved into the adjoining room for delivery 'around four o'clock.' Sedation had not been given to the mother pursuant to her request for natural childbirth (as was the case with her prior three children), and a notation to that effect was made in the ante-partum record furnished to the hospital by the obstetrical 'Trio.' Dr. Read, however, had given standing orders for sedation, and an unpleasant discourse ensued between her and nurse Roche because the instructions had not been carried out. The doctor, in referring to Mrs. Lewis, reacted with the exclamation: 'One of those multi-para so-and so's (profane word) that like to make noise.'

For a better understanding of relevant testimony, we briefly mention the physical layout and facilities of the delivery room. The area is rectangular in shape and the delivery table, with appropriate accessories, was stationed in the center of the room. The additional equipment included an anesthesia machine, an E & J resuscitator, an air lock machine, a crib (heated by light bulb under mattress), an instrument table, two other small tables, and a wall clock. It is clear from the photographic exhibits admitted in evidence that two windows are recessed in the tile wall of the room to the right of the entrance and under each window is a flat-top radiator covered by white cloth. Between the radiators and extending along the same wall, opposite to and paralleling the right side of the delivery table, are two flat-top tables, also covered by white cloth material. The surface of the aforesaid wall tables vary in height and are slightly higher than the tops of the radiators. The distance between the small tables and the delivery table was estimated to be four feet.

When Mrs. Lewis was transferred from the stretcher to the delivery table, she was made ready for delivery. Dr. Read performed the catheterization. The medical complement in the room at that time was Wogisch, a circulating nurse, Dr. Abdul Islami, the acting anesthetist (also house physician), an intern Dr. Bausch, and the defendant Dr. Read. The latter two doctors had been 'scrubbed,' gloved and gowned, and were positioned within the sterile field.

When Dr. Islami announced that the patient was not under sedation, Dr. Read allegedly replied, 'This one likes to make noise.' The mother cried out as the antiseptic (Zepheran) swab was applied, whereupon the anesthetist administered to her, through a face mask, 'some laughing gas' (oxygen and nitrous oxide). During the final three uterine contraction pains (a minute apart) immediately preceding the delivery expulsion, the patient intermittently inhaled additional gas, 'three or four whiffs,' which according to Dr. Islami usually last 'five or ten seconds' each. Its effect was analgesic, causing relaxation and insensitivity to pain; she was not given an anesthetic to produce sleep or loss of sensation. The depositional testimony of Dr. Read as to the mother's condition at the time is significant:

'Question: Now, when the gas oxygen ceased to be administered and the baby was delivered, was Mrs. Lewis, in your opinion, rational?

Answer: May I have a definition of rational?

Question: Yes. Did she know what was going on around her and could she converse normally?

Answer: She was rational.'

Baby Margaret was born at 4:14 P.M. She weighed 6 pounds 10...