(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued January 19, 2000 -- Decided May 18, 2000
LONG, J., writing for a unanimous Court.
This appeal addresses the propriety of the medical judgment charge. In addition, the Court addresses
whether the way in which the trial court conducted jury voir dire was prejudicial.
Barbara and Luis Velazquez instituted a medical malpractice action against Dr. Ronald Portadin, Vineland
Obstetrical and Gynecological Professional Association, and Nurses Eileen Cinotti and Ann Spaltore (collectively
defendants) alleging that defendants failed to adhere to the accepted standard of medical care in connection with the
birth of their daughter, Diana, resulting in Diana's cerebral palsy. According to the Velazquezes, defendants
deviated from accepted standards of care while administering the drug Pitocin to Barbara to hasten her contractions
during labor, because they negligently monitored Diana's fetal heart rate and, as a result, failed to timely discontinue
the use of Pitocin, causing Diana to be deprived of oxygen. Defendants denied the malpractice claims.
At trial, the experts testifying on behalf of the Velazquez family (the Velazquez experts) opined that
Diana's cerebral palsy was caused by birth asphyxia. The Velazquez experts concluded that the oxygen deprivation
occurred within the last one and one-half hours of birth while Pitocin was being administered. All experts agreed at
trial that it was appropriate for Dr. Portadin to give Pitocin to enhance the contractions and that fetal monitoring was
necessary. However, the experts strongly disagreed about whether monitoring actually took place and whether the
monitoring strips were sufficiently readable to determine Diana's reaction to Pitocin.
According to the Velazquez experts, there is no evidence that the fetal monitor was ever read, that the strips
were unreadable and that they showed fetal distress. According to these experts, when the strip became unreadable,
the nurses should have discontinued the Pitocin and notified Dr. Portadin so that he could determine the appropriate
course of action. In addition, Dr. Portadin deviated from accepted standards of care by continuing the Pitocin.
Instead, he should have discontinued the drug until reassuring tracings resumed or applied an internal fetal monitor
to Diana's scalp and reinstitute Pitocin when those reading were more reassuring. According to the Velazquez
experts, either option would have avoided Diana's injury.
Dr. Portadin testified on his own behalf. He stated that the decision to use an internal scalp monitor is a
medical judgment that requires the weighing of the risk of infection with the benefits of the monitor readings. Dr.
Portadin testified that the monitoring strips did not indicate that Diana was experiencing difficulty; that the options
offered by the Velazquez experts would have taken longer than spontaneous delivery; and that other delivery options
were foreclosed by the passage of time and the risk-benefit analysis. In addition, Dr. Portadin's obstetrical expert as
well as the nurses' expert testified that the strips overall were readable, that any unreadable portions were followed
by reassuring tracings, and that the strips did not reveal fetal distress.
At the conclusion of trial, the trial court, over objection of the attorney representing the Velazquezes, gave a
charge based on the Model Jury Charge on exercise of judgment. That charge basically states that a physician or
nurse cannot be found negligent if exercising judgment so long as he or she bases his or her judgment on accepted
standards of medical or nursing practice.
After deliberating, the jury determined that the defendants had not deviated from accepted standards of
medical care.
The Velazquezes appealed to the Appellate Division, which affirmed the lower court decision.
The Supreme Court granted the Velazquezes' petition for certification.
HELD: In a medical malpractice action, the court and counsel, on the record, should analyze the parties' testimony
and theories in detail to determine whether the medical judgment charge is applicable and, if so, to which
specific issues. The charge should then be tailored accordingly. Because the exercise of judgment charge
was not tailored to the facts of this case, its coverage was overbroad and had the potential to improperly
insulate defendants from liability.
1. The application of the medical judgment charge is generally limited to medical malpractice actions concerning
misdiagnosis or the selection of one of two or more generally accepted courses of treatment. (Pp. 11-14)
2. Appropriate and proper charges are essential for a fair trial. Jury charges must outline the function of the jury, set
forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury
should apply the legal principles to the facts as they may find them. Thus, a trial court must not only administer the
exercise of judgment charge solely in cases where the charge is appropriate, but it must separate out those aspects of
the medical care that involved judgment and those that did not. The failure to do so constitutes reversible error
where the jury outcome might have been different had the jury been properly instructed. (Pp. 14-16)
3. The trial court failed to tailor the charge to the theories and facts presented. The court failed to explain that it was
the jury's duty to determine whether the defendants monitored Mrs. Velazquez while she was on Pitocin. The issue
should have been presented as one involving the deviation from the standard of care without reference to the medical
judgment charge. In addition, the issue of whether the strips were readable was not a judgment call and the charge
was inapplicable to this aspect of the case. Moreover, the issue of the propriety of discontinuing the Pitocin and
whether there was or was not fetal distress were standard of care issues, not requiring a exercise of judgment charge.
The only issue of judgment was whether to utilize an internal monitor because the decision to do so involved
choosing between two equally acceptable approaches. (Pp. 16-19)
4. Although the grant or denial of extra peremptory challenges is a matter of discretion, it may not be an arbitrary
exercise. The court is required to analyze the positions of the multiple parties for identity purposes to determine
whether the adversary will be prejudiced unless more peremptory challenges are awarded. The trial court failed to
address the substantial identity of interests of the defendants. Because this case must be retried, the Court need not
decide the effect of the trial court's denial of additional challenges. Merely concluding that there is or is not an
identity of interests is not enough, a statement of reasons is required. (Pp. 19-22)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division
for a new trial consistent with the principles stated.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN, COLEMAN, and VERNIERO
join in JUSTICE LONG'S opinion.
SUPREME COURT OF NEW JERSEY
A-
12 September Term 1999
DIANA VELAZQUEZ, an infant by
her guardian ad litem,
BARBARA VELAZQUEZ and BARBARA
and LUIS VELAZQUEZ,
Individually,
Plaintiffs-Appellants,
v.
RONALD PORTADIN, M.D.,
NEWCOMB MEDICAL CENTER,
EILEEN CINOTTI-MAGEE, R.N.,
ANN SPOLTORE, R.N. and
VINELAND OBSTETRICAL &
GYNECOLOGICAL PROFESSIONAL
ASSOCIATES,
Defendants-Respondents,
and
DR. MICHELLE TORCHIA, M.D.,
JOHN DOES, M.D.'s (fictitious
names), PATRICIA KNECHT,
R.N., JANE ROES, R.N.'s
(fictitious names), ROBERT
SMITHS (fictitiously named
health care providers),
Defendants.
Argued January 19, 2000-- Decided May 18, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
321 N.J. Super. 558 (1999).
Carol L. Forte argued the cause for
appellants (Blume, Goldfaden, Berkowitz,
Donnelly, Fried & Forte, attorneys).
Melvin Greenberg argued the cause for
respondents Ronald Portadin, M.D. and
Vineland Obstetrical & Gynecological
Professional Associates (Greenberg, Dauber &
Epstein, attorneys).
Richard A. Grossman argued the cause for
respondents Newcomb Medical Center and
Eileen Cinotti-McGee, R.N. (Grossman,
Kruttschnitt, Heavey & Jacob, attorneys;
Roberta DiBiase, on letter brief).
Timothy M. Crammer argued the caused for
respondent Ann Spoltore, R.N. (Paarz,
Master, Koernig, Crammer, O'Brien, Bishop &
Horn, attorneys).
The opinion of the court was delivered by
LONG, J.
This case presents another chapter in the continuing saga of
the medical judgment charge. Plaintiffs, Barbara and Luis
Velazquez, instituted a medical malpractice action against Dr.
Ronald Portadin, Vineland Obstetrical & Gynecological
Professional Association, and Nurses Eileen Cinotti and Ann
Spaltore (collectively defendants).See footnote 11 Plaintiffs alleged that
defendants failed to adhere to the accepted standard of medical
care in connection with their daughter Diana's birth, resulting
in severe injury to her (cerebral palsy). More particularly, the
complainants alleged that defendants had deviated from accepted
standards while administering the drug Pitocin to Barbara
Velasquez insofar as they negligently monitored Diana's fetal
heart beat readings and, as a result, failed to timely
discontinue the drug, causing Diana to be deprived of oxygen.
Defendants answered, denying the allegations of the complaint.
Discovery ensued and the case went to trial.
I
The facts established at trial were as follows: At about
2:00 a.m. on August 18, 1990, Mrs. Velazquez came to Newcomb
Medical Center to deliver her first child after an uneventful
pregnancy. When she first arrived at the hospital, she was cared
for by Dr. Michelle Torchia, the physician covering for Vineland
Obstetrical Associates. Shortly after admission, electronic
monitoring of the fetal heart began. That monitoring is carried
out by placing a belt containing a transducer around the mother's
abdomen. The monitor produces a continuous paper strip. The
baby's heartbeat is printed along the top of the strip, and the
pattern of the mother's uterine contractions is printed
simultaneously along the bottom. The information on the strip
allows the reader to examine the fetal heart rate and how it
responds to contractions. The relationship between the two may
demonstrate problems that the baby may be having.
Dr. Portadin relieved Dr. Torchia at 8:00 a.m. At that
time, Eileen Cinotti, R.N., and Ann Spoltore, R.N., began to care
for Mrs. Velazquez. Nurse Cinotti, as the primary nurse, was
responsible for monitoring Mrs. Velazquez during labor. Nurse
Spoltore was the nurse designated to care for the baby after
delivery.
At approximately 1:30 p.m., Dr. Portadin determined that a
drug called Pitocin should be given to increase uterine
contractions and to assist in the descent of the baby down the
birth canal. Pitocin is a medication used to increase the
intensity and frequency of uterine contractions in women whose
contractions are insufficient to deliver the baby. If Pitocin
causes the contractions to occur too frequently or last too long,
the baby may be harmed because blood flow to the baby slows
during contractions. That condition is called hyperstimulation
of the uterus. When the uterus is hyperstimulated, the interval
between contractions is shortened and there is not enough time
for the baby to catch up on its oxygen needs before the start of
another contraction. That is why constant monitoring is
required.
Shortly after 1:30 p.m., Cinotti, the nurse on duty in the
hospital's labor room, began the intravenous infusion of Pitocin
at the rate of two milliunits per minute. Soon the fetal monitor
strip began to decrease in readability. At about 1:45 p.m.,
Cinotti increased the Pitocin rate to four milliunits per minute.
At about 2:24 p.m., Cinotti was relieved by Spoltore as the nurse
on duty in the labor room so that Cinotti could prepare the
adjacent delivery room for Mrs. Velazquez. At that time, the
Pitocin rate was increased to six milliunits per minute.
At 2:45 p.m., Mrs. Velazquez was disconnected from the fetal
monitoring belt and, at about 2:55 p.m., she was transferred to
the delivery room. Although defendants claim Mrs. Velazquez was
monitored again when she reached the delivery room, those monitor
strips are missing. At 3:02 p.m., while still receiving Pitocin,
Mrs. Velasquez vaginally delivered Diana. At birth, Diana had
virtually no heartbeat and, following resuscitation, was
diagnosed as having cerebral palsy.
Plaintiffs presented experts who testified that Diana's
problems were due to birth asphyxia. They found no other
explanation for her condition. They based their conclusion upon
a multitude of evidence, including Diana's blood acidity, her
susceptibility to seizures, and her breathing problems.
Subsequent health care providers also diagnosed birth asphyxia,
and neuroimaging studies were consistent with that diagnosis.
The plaintiffs' experts concluded that the oxygen deprivation had
occurred within the last one and one-half hours before birth,
which was the same time that the Pitocin was being administered.
Defendants also presented experts who testified in detail that
the genesis of cerebral palsy is unknown and that plaintiffs'
contention that it is caused by asphyxia at birth is only a
theory.
At trial, all of the experts agreed that it was appropriate
for Dr. Portadin to augment Mrs. Velazquez's contractions with
Pitocin and that monitoring was necessary. However, the experts
disagreed strenuously about whether monitoring, in fact, took
place and, more particularly, whether the strips were
sufficiently readable to allow defendants to determine Diana's
reaction to the Pitocin induced contractions.
In brief, plaintiffs' medical experts testified that because
of the risks of Pitocin, constant fetal monitoring is required
and there is no evidence in this record that the fetal monitor
was read. There is nothing in the hospital chart to indicate
that Dr. Portadin saw Ms. Velasquez or monitored the tape between
the administration of the Pitocin and the delivery. Nor is there
a single notation on the chart indicating that anyone knew that
the strips were unreadable or that they showed fetal distress,
although Nurse Cinotti claimed at trial that she advised Dr.
Portadin that the strips revealed a problem. According to
plaintiffs' experts, starting at 1:30 the strips were too
intermittent to be read and, to the extent that anything could be
gleaned from them, it was fetal heart deceleration.
Plaintiffs' experts were of the opinion that when the strips
became unreadable, the nurses should have discontinued the drug
and notified Dr. Portadin so that he could determine what course
of action to take. According to those experts, Dr. Portadin
violated the standard of care by continuing the Pitocin. Among
his options were discontinuing the drug until reassuring tracings
resumed, or applying an internal fetal monitor to Diana's scalp
and reinstituting Pitocin when those readings were more
reassuring. Either option, according to plaintiffs' expert,
would have avoided Diana's injury. If the monitor strips were
readable and were read, the defendants would have seen that Diana
was in distress and resuscitated her in the womb. Although there
were some infection risks with the internal scalp monitor,
stopping the Pitocin would have caused no risk.
Dr. Portadin testified on his own behalf. He could not
remember the events surrounding Diana's birth. Thus, he
testified as to his normal procedure. He agreed that once
Pitocin is administered, some monitor must be in place. However,
he cautioned that whether or not to use an internal scalp monitor
is a medical judgment; one must examine the information at hand
and consider the potential of infection in using a scalp monitor.
Dr. Portadin stated that his standard practice is to weigh the
costs and benefits of using an internal fetal monitor.
Dr. Portadin disagreed with plaintiffs' experts'
interpretation of the monitor strips. Specifically, he testified
that there was nothing in the strips that indicated that Diana
was experiencing difficulty. He continued administering the
Pitocin so that Mrs. Velazquez could spontaneously deliver the
baby. Dr. Portadin testified that alternative methods of
delivery would take longer than spontaneous delivery. Therefore,
by the time the external monitor was not picking up as well as it
had been, other delivery options were foreclosed by the passage
of time and the risk-benefit analysis. Dr. Portadin stated that
it was his procedure to stay with the patient for ten to fifteen
minutes after administration of Pitocin and to check her every
fifteen to twenty minutes thereafter.
Dr. Kenneth Dollinger, Dr. Portadin's obstetrical expert,
and Dr. John Harrison, the nurses' expert, agreed that if the
strips were unreadable, Pitocin should have been discontinued.
However, both stated that the strips overall were readable, that
any unreadable portions were followed by reassuring tracings and
that they did not reveal any fetal distress. Dollinger further
stated that by the time Mrs. Velazquez was fully dilated in the
late stages of labor, it did not matter whether or not she was
monitored because natural delivery was imminent and any alternate
means of delivery posed a greater risk than proceeding with the
delivery as planned. He also testified as to risks attendant
upon use of the fetal scalp monitor.
At the close of trial, and over the objection of plaintiffs'
counsel, the trial court gave a charge based on the Model Jury
Charge on exercise of judgment, Model Jury Charge 5.36A (Civil),
2 Medical Malpractice, Duty and Negligence (May 1997):
[Y]ou should understand that the law
recognizes that the practice of medicine and
the practice of nursing are not exact
sciences. Therefore, the law recognizes that
the practice of medicine or nursing according
to accepted medical or nursing standards will
not always prevent a poor or [un]anticipated
result. If the physician or nurse has
applied the required knowledge, skill, and
care in the diagnosis and treatment of the
plaintiff, he or she is not negligent simply
because a bad result has occurred. Likewise,
where according to accepted medical or
nursing practice the manner in which the
diagnosis or treatment is conducted is a
matter subject to the judgment of the
physician or nurse, the physician or nurse
must be allowed to exercise that judgment.
Where a judgment must be exercised, the law
does not require the doctor or nurse [to be]
infallible . . . . Thus, a physician or
nurse cannot be found negligent so long as he
or she employs such judgment as is allowed by
. . . accepted medical or nursing practice.
If, in fact, in the exercise of his or her
judgment, a doctor or nurse selects one or
two or more courses of action each of which
in the circumstance has substantial support
as proper practice by the medical or nursing
profession, the doctor or nurse cannot be
found negligent if the course chosen produces
a poor result.
The jury was instructed to return its verdict by answering a
multi-question verdict sheet. The jury began its deliberations
on September 24, 1997, at 3:40 p.m. and returned twenty minutes
later with its verdict. The jurors unanimously answered “no” to
verdict sheet questions 1, 3, and 5:
1. Did Ronald Portadin deviate from accepted
standards of medical practice?
3. Did Nurse Eileen Cinotti deviate from
accepted standards of nursing practice?
5. Did Nurse Ann Spoltore deviate from
accepted standards of nursing practice?
Verdict sheet questions 2, 4, and 6 were not answered because
they dealt with proximate cause.
Plaintiffs filed a notice of appeal. The Appellate Division
affirmed. Velazquez v. Portadin,
321 N.J. Super. 558 (App. Div.
1999). We granted plaintiffs' petition for certification on
September 22, 1999.
162 N.J. 130 (1999).
Plaintiffs' main argument on appeal is that the improperly
tailored instruction on the medical judgment charge constituted
error. They also contend that they were prejudiced by the way
that the trial court conducted the voir dire. We agree with
plaintiffs that the trial court's failure to untangle the facts
in relation to the medical judgment charge left the jury free to
excuse defendants based on the evidence of judgment in areas
where no judgment was exercised. Because that error was not
harmless, a new trial is necessary.
II
A physician must act with that degree of care, knowledge,
and skill ordinarily possessed and exercised in similar
situations by the average member of the profession practicing in
the field. Walck v. Johns-Manville Prods. Corp.,
56 N.J. 533,
560 (1970). Model Jury Charge 5.36A, which governs medical
malpractice actions, articulates that governing standard of care:
“A person who is engaged in the general practice of medicine
represents that he/she will have and employ knowledge and skill
normally possessed and used by the average physician practicing
his/her profession as a general practitioner.” Model Jury Charge
5.36A (Civil), supra, at 2. That standard, “recognizing that
'medicine is not an exact science,' holds physicians responsible
for their negligence without making them guarantors of the health
of their patients.” Aiello v. Muhlenberg Reg'l Med. Ctr.,
159 N.J. 618, 626 (1999)(quoting Schueler v. Strelinger,
43 N.J. 330,
344 (1964)).
In Schueler, we recognized that “good treatment will not
necessarily prevent a poor result.” Schueler, supra, 43 N.J. at
344. “[W]hen a surgeon selects one of two courses . . . either
one of which has substantial support as proper practice by the
medical profession, a claim of malpractice cannot be predicated
solely on the course pursued.” Id. at 346. That is so because
when “a matter [exists] about which there are differing schools
of medical opinion[,] . . . the plain inference is that the
matter must be left to the good faith judgment of the experienced
attending surgeon.” Ibid. That notion has been incorporated
into the exercise of judgment instruction portion of the Model
Charge. However, the physician will be held negligent if his or
her action “represent[s] a departure from the requirements of
accepted medical practice[.]” Schueler, supra, 43 N.J. at 345.
Because the distinction between the “exercise of judgment” and a
deviation from accepted practice is sometimes complicated, the
Model Charge was amended to provide that doctors may not rely on
the “exercise of medical judgment” to avoid liability for
ordinary negligence:
[A] doctor who departs from standard medical
practice where no judgment is permitted
cannot excuse himself/herself from the
consequences by saying that it was an
exercise of his/her judgment. Or, to state
it a different way, if the exercise of a
doctor's judgment causes him/her to do that
which standard medical practice forbids, the
doctor would be negligent. Similarly, a
doctor whose judgment causes him/her to omit
doing something which is required by standard
medical practice is also negligent.
[Model Jury Charge 5.36A (Civil), supra, at
5-6.]
Given the relationship between medical judgment and the
standard of care, our courts have often struggled in determining
whether the facts of a particular case call for the application
of the judgment charge. We have generally limited the
application of the judgment charge to medical malpractice actions
concerning misdiagnosis or the selection of one of two or more
generally accepted courses of treatment. Aiello, supra, 159 N.J.
at 628-29; see Patton v. Amblo,
314 N.J. Super. 1, 9 (App. Div.
1998)(finding that doctor was not entitled to "exercise of
judgment" charge where alleged malpractice involved making
scalpel incision too deep because alleged deviation was in
manner doctor performed procedure); Adams v. Cooper Hosp., 295
N.J. Super. 5, 10-11 (App. Div. 1996)(holding that court did not
err by refusing to charge jury with "exercise of judgment"
instruction where issue was whether nurse had duty to constantly
monitor patient because case did not involve selection between
one of two courses of treatment or two schools of thought),
certif. denied,
148 N.J. 463 (1997).
Indeed, the Model Charge itself is facially limited to cases
in which the physician exercised judgment in selecting among
acceptable courses of action:
If ... in the exercise of his/her judgment a
doctor selects one of two or more courses of
action, each of which in the circumstances has
substantial support as a proper practice by the
medical profession, the doctor cannot be found
negligent if the course chosen produces a poor
result.
[Model Jury Charge 5.36A (Civil), supra, at 5.]
It is fundamental that "[a]ppropriate and proper charges to
a jury are essential for a fair trial." State v. Green,
86 N.J. 281, 287 (1981). Jury charges "must outline the function of the
jury, set forth the issues, correctly state the applicable law in
understandable language, and plainly spell out how the jury
should apply the legal principles to the facts as it may find
them . . . ." Jurman v. Samuel Braen, Inc.,
47 N.J. 586, 591-92
(1966); Navarro v. George Koch & Sons, Inc.,
211 N.J. Super. 558, 570 (App. Div.), certif. denied,
107 N.J. 48 (1986).
Pursuant to those principles, a trial court must not only
administer the exercise of judgment charge solely in cases where
the charge is appropriate, but it must also separate out those
aspects of the medical care that involved judgment and those that
did not. Patton, supra, 314 N.J. Super. at 8-9. The failure to
do so constitutes reversible error where the jury outcome might
have been different had the jury been instructed correctly. Id.
at 10.
It is often difficult to determine what evidence must be
presented in order to entitle a defendant to the exercise of
judgment charge. However, that is an important determination
because “[i]f the exercise of judgment rule is inappropriately or
erroneously applied in a case that involves only the exercise of
reasonable care, the aspect of the rule that excuses physicians
for 'mistakes' would enable the physician to avoid responsibility
for ordinary negligence.” Aiello, supra, 159 N.J. at 632. In
other words,
[t]he “mistake” that inheres in negligence,
that is, failure to exercise reasonable care,
is not the kind of mistake that is excusable.
If, therefore, the physician's professional
conduct implicates only the exercise of
reasonable care in the performance of a
medical procedure and not the exercise of
medical judgment in selecting among
acceptable and medically reasonable courses
of treatment, the medical judgment rule
should not be invoked.
[Ibid.]
That point is driven home in a footnote to the most recent Model
Charge:
If a case does not involve a legitimate
judgment call or two schools of thought, then
the Trial Judge should omit this portion of
the charge. See Adams v. Cooper Hospital,
295 N.J. Super. 5, 8 (App. Div. 1996). If a
case involves judgment issues on some
theories of liability, but not on others, the
charge should be tailored to those facts.
Patton v. Amblo,
314 N.J. Super. 1 (App. Div.
1998), (trial judge committed reversible
error when he failed to separate out what
aspects of care involved judgment and which
did not) and see Campos v. Firestone Tire and
Rubber Company,
98 N.J. 198, 210 (1984).
Medical malpractice practitioners should
assist the court in framing tailored,
objective statements of those issues which do
involve legitimate dispute issues of judgment
or two schools of thought. To give one
example among many, if a distinct issue in a
case involved a doctor who ordered a test and
never received the result, the jury would
appropriately be charged that there was no
exercise of judgment or two schools of
thought defense to that claim. In contrast,
what steps to take in response to a test
result might involve one or more issues of
judgment.
[Model Jury Charge 5.36A(Civil), 2 Medical Malpractice,
Duty and Negligence (April 1999).]
Here, the trial court failed to tailor the charge to the
theories and facts presented. First, he neglected to explain
that it was the jury's duty to determine whether the defendants,
in fact, monitored Mrs. Velazquez at all while she was on
Pitocin. All experts agreed that monitoring was required and
that if it was not done, it was a deviation from the standard of
care. There was evidence from which the jury could have
concluded that defendants failed to monitor Mrs. Velazquez and
that the reason they did not take action when the strips became
unreadable was that they were unaware of it. That issue had to
be presented to the jury as involving a deviation from the
standard of care without reference to the judgment charge.
Second, the issue of whether the strips were readable was
not a judgment call. Experts testified on both sides as to the
standard for readability. It was for the jury to decide which
standard was correct and to determine whether there was a
deviation. The judgment charge was thus inapplicable to that
aspect of the case.
Third, if the jury found that the strips were not readable,
and no other meaningful monitoring technique was in place, all
experts agreed that the Pitocin should have been stopped. That
was not a judgment issue.
Fourth, if the jury found the strips were, in fact,
readable, the issue was whether they revealed fetal distress. If
there was no fetal distress, no action was required. If fetal
distress was evident, the issue was whether continuing the
Pitocin without remedying that distress comported with the
standard of care. Again, no judgment was required.
The defense experts emphasized the fact that by 2:30 to 2:45
it was too late to deliver Diana any other way but vaginally.
Assuming that was correct, the judgment charge was inapplicable
for that very reason -- defendants had no choice at that point.
Moreover, that determination could not insulate defendants from
liability because plaintiff's theory was that it was the failure
to monitor from l:30 onward that violated the standard of care
and caused the later predicament.
The only issue of judgment was whether to utilize an
internal monitor because that decision apparently involved
choosing between two equally acceptable approaches. In short,
the bulk of this case implicated the question of deviation from
the standard of care, not judgment. The able defense lawyers,
knowing the power of the judgment charge, took every opportunity
to lead the court and jury into thinking that the entire case
revolved around the exercise of judgment. It did not. Although
one or possibly a few judgment issues may have been implicated,
the heart of the case was about whether there was a deviation
from the standard of care. The undifferentiated instruction on
medical judgment misled the jury and thus improperly insulated
defendants from liability.
We engaged in a rather painstaking factual analysis here to
reaffirm for trial judges the nature of the inquiry that is
essential when a medical judgment charge is at issue. Court and
counsel should analyze the parties' testimony and theories in
detail, on the record, to determine whether the charge is
applicable at all and, if so, to which specific issues. The
charge should then be tailored accordingly. Only such an
approach will avoid the error that occurred in this case.
Because the judgment charge was not tailored to the facts of
this case, its coverage was overbroad and had the potential to
improperly insulate defendants from liability. Accordingly, a
new trial is required.
III
Although the ordering of a new trial makes it unnecessary
for us to grapple with plaintiffs' complaints about the voir
dire, we take this opportunity to make several observations. The
first is in connection with plaintiffs' application for
additional peremptory challenges.
Plaintiffs contend that under Rule 1:8-3(c) they were
entitled to additional peremptory challenges beyond the six
granted under normal circumstances because defendants had
eighteen peremptory challenges between them and a substantial
identity of interest in one or more issues.
Rule 1:8-3(c) provides:
In civil actions each party shall be entitled to 6
peremptory challenges. Parties represented by the
same attorney shall be deemed 1 party for the
purposes of this rule. Where, however, multiple
parties having a substantial identity of interest
in one or more issues are represented by different
attorneys, the trial court in its discretion may,
on application of counsel prior to the selection
of the jury, accord the adverse party such
additional number of peremptory challenges as it
deems appropriate in order to avoid unfairness to
the adverse party.
The reason for the rule is that when there is a substantial
disproportion between the number of plaintiff's peremptory
challenges, and the collective peremptory challenges of the
defendants, the “[p]laintiff is thus placed at an extreme
disadvantage in the rejection of prospective jurors . . . [and
the] right to have [the] case heard by an impartial panel is
severely compromised. . . .” George v. Bergen Pines Hospital,
217 N.J. Super. 548, 55l (Law Div. 1987).
Here, plaintiffs used all available challenges and were
nonetheless dissatisfied with the jury. Thus, the fundamental
requirement for seeking extra peremptory challenges was met.
Russell v. Rutgers Community Health Plan, Inc.,
280 N.J. Super. 445, 456 (App. Div. 1995), certif. denied,
142 N.J. 452 (1995).
The trial court cursorily found that the defendants “had
individual clients with individual theories presented against
them,” and denied the additional challenges.
Although the grant or denial of extra peremptory challenges
under Rule 1:8-3(c) is a matter of discretion, that does not mean
that it may be an arbitrary exercise. On the contrary, the court
is required to analyze the positions of the multiple parties for
identity purposes to determine whether the adversary will be
prejudiced unless more peremptory challenges are awarded.
Here, the trial court failed to address the substantial
identity of interests of these defendants. All three defended
the case on the basis of the exercise of judgment; the unknown
etiology of cerebral palsy; the claim that Mrs. Velasquez
constantly was monitored while on Pitocin; the claim that the
monitor strips were readable; and the claim the information
revealed by the strips gave defendants no reason to stop the
Pitocin or otherwise intervene. What was required of the trial
court was a focus on the specific facts and theories of the
parties, followed by a reasoned judgment about the identity of
their interests and the need for plaintiffs to be awarded
additional peremptory challenges.
Because the case must be retried, we need not pass on the
effect of the denial of the extra challenges. This much is clear
however: when a request is made for additional peremptory
challenges under Rule 1:8-3(c), the lawyers and the court must
parse out the theories of the parties in detail for the record so
that an identity determination can be made. Merely concluding
that there is or is not such an identity is inadequate; a
statement of reasons for ruling is required.
IV
The judgment of the Appellate Division is reversed. The
case is remanded to the Law Division for a new trial consistent
with the principles stated.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, GARIBALDI, STEIN,
COLEMAN, and VERNIERO join in JUSTICE LONG's opinion.
NO. A-12 SEPTEMBER TERM 1999
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
DIANA VELAZQUEZ, etc., et al.,
Plaintiffs-Appellants,
v.
RONALD PORTADIN, M.D., et al.,
Defendants-Respondents,
and
DR. MICHELLE TORCHIA, M.D., et al.,
Defendants.
DECIDED May 18, 2000
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1Dr. Michelle Torchia and Nurse Patricia Knecht were originally named as defendants and later dismissed by stipulation.