Walking The Line In Medical Malpractice Cases: New Jersey Appellate Division Vacates $19 Million Birth Injury Award

A recent medical malpractice case from the bought-yourself-an-appeal department:

Citing multiple trial errors, a New Jersey appeals court has reversed an $18.9 million verdict against an obstetrician whose delay in ordering a Caesarean delivery a jury found to have caused cerebral palsy in the child.

The panel found that Monmouth County Superior Court Judge Louis Locascio failed to limit the testimony of a labor-and-delivery nurse, to issue the jury a contemporaneous limiting instruction on the nurse’s testimony and to allow the defendant to admit into evidence a report that had exculpatory value for the obstetrician.

Zeh, the nurse on duty during plaintiff Bonnie Kowalski’s labor at Riverview Medical Center in Red Bank, N.J., testified that she repeatedly told Dr. Aravid Palav, the obstetrician, that she was concerned about the dropping fetal heart rate and believed that Kowalski required a C-section without delay.

But Palav, who had ordered Kowalski admitted to the hospital due to severe stomach pains, believed she was likely suffering from appendicitis and that the baby was not in danger.

Zeh ended up “going over his head” and reporting the issue to her charge nurse and nursing supervisor, though they never relayed her concerns to the head of obstetrics.

Kowalski’s child, Brandon, suffered an intraventricular hemorrhage because of a lack of oxygen, which the plaintiffs expert said could have been avoided had he been delivered a half-hour earlier. He is afflicted with cerebral palsy and will require full-time care for life.

At trial, Zeh was allowed to testify as to her concerns about the baby’s heart rate that evening, though she admitted it often was unclear whether she was reading the baby’s heart rate or that of Kowalski, who was writhing in pain and thus making the monitoring difficult.

In response to my post earlier this week about emulating great trial lawyers by pushing boundaries in the courtroom, John Day, who knows a thing or two about medical malpractice trials, commented:

Your ultimate goal – win the calls you should win, lose the ones you should lose (and you will want to lose some) and win the discretionary calls.

Why would you “want to lose some?”

There’s an old saying among trial lawyers that they need to be careful about exactly what evidence they try to admit and what arguments they advance, because there is always the risk that the judge will let them go forward with an improper argument, thereby causing the trial lawyer to “buy themselves an appeal,” or rather a reversal on appeal.

And that’s what happened in New Jersey:

When Palav objected that the potential prejudicial effect of that evidence outweighed its probative value, Locascio determined that Zeh’s testimony was relevant only to Zeh’s decision to go up the chain of command to press for immediate delivery, not to Palav’s alleged deviations from the standard of care.

Locascio said he would explain that distinction to the jury, but Riverview objected, arguing that the court should not draw attention to any one defendant.

Locascio told counsel that allowing the testimony without the limiting instruction would be “deadly” to Palav’s case. Nevertheless, the hospital and the plaintiffs continued to object, leading the judge finally to say: “Good. Let the chips fall where they will. I’ll say nothing. I’m not creating an Appellate issue. Dr. Palav, start digging your grave, sir, because this is going to kill [you].”

The trial judge ended up giving an instruction to the jury at the end of the trial anyway, but, by then — at least in the appellate court’s opinion — it was too late, the damage had been done. The subsequent instruction could not rectify the prejudicial effect on the jury.

Was the nurse’s testimony so prejudicial that a contemporaneous instruction obviously should have been given? Not at all. But it was close enough to the line that the plaintiff’s lawyer should have been worried about it, and should not have objected to the instruction.

The fact that the hospital also objected to a contemporaneous instruction from the judge — likely because the hospital wanted to pin all the blame on the doctor — probably made the plaintiff feel like they were on solid ground.

But they weren’t. Medical malpractice cases truly are different, particularly complex cases like birth injury. Little issues that routinely happen in other trials, like a highly-knowledgeable witness slipping from factual testimony into opinion testimony, take on exaggerated importance in medical malpractice cases. When you’ve got an unqualified witness arguably opining on the standard of care — no matter how close they were to the action, no matter if they are also a “medical professional” — you should thank your lucky stars the testimony is going in at all and should be more than willing to accept a contemporaneous instruction in exchange for allowing the testimony.

Of course, hindsight is 20-20. It is a lot easier for me to tell the lawyers what they should have done, now that I know the consequences, than it is to make these judgment calls in the heat of battle.

One more thing: let’s not forget that this case revolves around a seriously injured child, the apparent victim of blatant malpractice (Appendicitis? Didn’t follow the heartbeat? Really?), who will need care for the rest of his life. I’m of course not privy to whatever settlement offers and demands have been made, but whoever’s the unreasonable holdout needs to take a step back and consider the big picture.

Read more about our birth injury and cerebral palsy legal services.


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