(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 6, 1997 -- Decided July 14, 1997
STEIN, J., writing for a majority of the Court.
The issue in this appeal is whether the trial court erred in dismissing plaintiffs' complaint for
medical malpractice. The complaint alleges that the treating obstetrician 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-term fetus.
On June 1, 1988, plaintiff Linda Gardner, six weeks pregnant, consulted with Dr. Pawliw, a board-certified obstetrician and gynecologist. Mrs. Gardner was referred to Dr. Pawliw after requesting a
recommendation for an obstetrician with experience treating high-risk pregnancies and infertility problems.
During the initial meeting, Mrs. Gardner explained in detail her prior gynecological and obstetrical history,
which included two first-trimester miscarriages and the use of fertility drugs to help achieve pregnancy. Mrs.
Gardner expressed her desire for “special care” to help maintain her pregnancy, and Dr. Pawliw assured her
that he had had experience treating previously infertile and high-risk patients.
Mrs. Gardner continued to receive treatment at a fertility clinic in Philadelphia during her
pregnancy. Dr. Pawliw was aware of the clinic's treatment of Mrs. Gardner, but did not assume
responsibility for its management.
From June through November, Dr. Pawliw saw Mrs. Gardner on a monthly basis. Her due date was
January 20, 1989. Beginning in the third trimester, Mrs. Gardner saw Dr. Pawliw every two weeks.
On December 21, 1988, Mrs. Gardner noticed a significant decrease in the frequency of fetal
movement and a watery vaginal discharge. Later that day, at her regularly scheduled appointment with Dr.
Pawliw, Mrs. Gardner described her symptoms and expressed her concerns. She testified that Dr. Pawliw
acted impatiently towards her, and had difficulty finding the fetal heart beat. Dr. Pawliw attempted to
reassure her that the fetus was sleeping and there was nothing wrong. Dr. Pawliw did not perform any other
diagnostic tests during the visit.
From December 21 through December 24, 1988, Mrs. Gardner experienced the same level of
decreased fetal movement. On December 25, Mrs. Gardner noticed increased fetal activity. On December
26, Mrs. 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, there was still no fetal
movement. The Gardners immediately called Dr. Pawliw's office, and were told to come in and be
examined. Dr. Pawliw failed to find a fetal heartbeat, although he did not so inform the Gardners. Dr.
Pawliw sent the Gardners to a nearby facility for further testing. Dr. Pawliw eventually informed the
Gardners by telephone that the fetus had died, and asked the Gardners to come to his office later that
evening to discuss the various options for delivering the dead fetus. A nurse delivered the stillborn fetus.
This action followed. The complaint alleged that Dr. Pawliw's failure to perform diagnostic tests,
specifically a Non-Stress Test and a Biophysical Profile, on December 21, 1988, after Mrs. Gardner had
informed him of the decreased fetal movement and watery discharge, had caused an increased risk that the
fetus would not survive and that the increased risk was a substantial factor in the fetus's death.
At trial, Mrs. Gardners' key expert on causation, Dr. Kalafer, testified by videotaped deposition.
Dr. Kalafer stated that given Mrs. Gardner's history, Dr. Pawliw's failure to perform any tests when Mrs.
Gardner reported a decrease in fetal activity on December 21, 1988, constituted a deviation from the
accepted standard of prenatal care. When asked for his opinion as to whether Dr. Pawliw's failure to
conduct testing on December 21 increased the risk that the baby would die, Dr. Kalafer stated, “If a study
would have been performed such as the nonstress test and biophysical profile, one could utilize that
information; and if it was abnormal, the baby could have been delivered most likely in a setting more
appropriately, and the baby could most likely live in the outside world.” On cross-examination, Dr. Kalafer
admitted that because no testing was done, he could not state “within a reasonable degree of medical
probability” that the tests would have revealed a problem had they been performed on December 21, 1988.
Dr. Pawliw's expert, Dr. Wilchins, testified that “as a medical certainty,” the result of any testing on
December 21, 1988, had it been performed, would have been perfectly normal. He based this conclusion on
the fact that the ultrasound performed on December 27, 1988, showed a normal amniotic fluid, as well as the
autopsy finding that the fetus and placenta exhibited only faint meconium staining. Dr. Wilchins testified
that given these results, the fetus had been severely stressed only for twenty-four to forty-eight hours before
death, not a week earlier.
At the close of Dr. Pawliw's case, defense counsel moved for dismissal pursuant to Rule 4:40-1.
The trial court granted the motion, holding as a matter of law that the Gardners had failed to show a causal
connection between the failure to administer the tests and the death of the fetus. The trial court noted that,
without an abnormal test result there would have been no intervention. And, it further noted that the
Gardners' expert, Dr. Kalafer, could not state that there was a “probability” that the tests would, in fact,
have shown abnormalities. The trial court interpreted his testimony to establish only a “possibility” of such
a result, which it found insufficient as a matter of law. The Appellate Division affirmed the trial court's
dismissal of the complaint, relying on the Court's opinions in Evers v. Dollinger,
95 N.J. 399 (1984), and
Scafidi v. Seiler,
119 N.J. 93 (1990).
The Court granted the Gardners' petition for certification.
HELD: When the prevailing standard of care indicates that a diagnostic test should be performed and that it
is a deviation not to perform it, but it is unknown whether performing the test would have helped to
diagnose or treat a preexistent condition, a plaintiff is not required to demonstrate a reasonable medical
probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate a
reasonable degree of medical probability that the failure to give the test increased the risk of harm, which
may be established even if such tests are helpful in only a small proportion of cases.
1. The Court has lessened the traditional burden of proof on a plaintiff asserting a medical-malpractice
claim for establishing proximate cause in the case of a plaintiff suffering from a preexistent condition. In
Scafidi, the Court established a two-prong test for proving causation in such cases, holding that evidence
demonstrating with a reasonable degree of medical probability that negligent treatment increased the risk of
harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial
factor in producing the ultimate result. (pp. 21-27.)
2. A complication is presented when a physician's deviation from the prevailing standard of care consists of the failure to perform a diagnostic test, because that very failure may eliminate a source of proof necessary to enable a medical expert to testify to a degree of reasonable medical probability concerning what might have occurred had the test been performed. The Gardners argue that when a physician fails to perform a standard or appropriate medical test, that physician should not benefit form an expert's inability to prove what the unperformed test would have revealed. The Court has previously rejected a requirement that plaintiff's proofs quantify the likelihood that the physician's failure to perform diagnostic tests would have avoided the harm, explaining that the possibility of avoiding harm is subsumed in the jury's conclusion that
the failure to test deviated from accepted practice and increased the risk of harm. (pp. 27-38.)
3. Where it is a deviation not to perform a diagnostic test, but it is unknown whether the test results would
have helped to diagnose or treat a preexistent condition, the plaintiff is not required to demonstrate a
reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff
must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the
risk of harm from the preexistent condition. The Court reaches that conclusion to avoid the unacceptable
result that would accrue if trial courts in such circumstances invariably denied plaintiffs the right to reach the
jury, thereby permitting defendants to benefit from the negligent failure to test and the evidentiary
uncertainties that the failure to test created. The testimony of the Gardners' expert here was sufficient to
satisfy their threshold burden of proof. They should have been permitted to submit for the jury's
determination the questions of whether, based on the parties' expert testimony, the failure to give the tests
had increased the risk that the fetus's condition would not be detected, treated or corrected and whether
that increased risk had been a substantial factor in causing death. (pp. 38-41.)
4. In holding that the Gardners' proofs were sufficient to present a jury question on causation, the Court
does not imply that the likely significance of the test results is irrelevant to the outcome of the litigation.
Under the second prong of Scafidi, the jury must weigh the testimony and other evidence presented at trial
and determine whether any increased risk due to the failure to test was a substantial factor in causing the
fetus's death. Additionally, assuming that the jury finds that the failure to perform tests was a substantial
factor causing the fetus's death, the jury would also be required to apportion fault according to comparative
fault principles. (pp. 41-44.)
The judgment of the Appellate Division is REVERSED, and the matter is remanded to the Law
Division for a new trial.
JUSTICE POLLOCK, dissenting, is of the view that even under the majority's extension of the
increased-risk test, the Gardners' case founders on the failure of their expert to offer anything more than a
net opinion that the failure to conduct the diagnostic tests increased the risk that the fetus would die.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, O'HERN, GARIBALDI, and COLEMAN
join in JUSTICE STEIN's opinion. JUSTICE POLLOCK has filed a separate dissenting opinion.
SUPREME COURT OF NEW JERSEY
A-
82 September Term 1996
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.
Argued January 6, 1997 -- Decided July 14, 1997
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
285 N.J. Super. 113 (1995).
Albert J. Brooks, Jr. argued the cause for
appellants (Sheller & Associates, attorneys).
Hugh Francis argued the cause for 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-term 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 (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 (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 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.See footnote 1 Plaintiffs also alleged that Dr.
Pawliw's negligent failure to deliver the fetus had caused Linda
Gardner's husband emotional distress. A jury trial was held
between June 7 and June 10, 1994.
At trial, the Gardners presented testimony by two expert
witnesses, Dr. James Lewis, a forensic pathologist, and Dr.
Marvin Kalafer, a board-certified obstetrician and gynecologist.
Dr. Lewis testified that the autopsy results had indicated that
the fetus had died because of umbilical cord and placenta
abnormalities. The umbilical cord had been shorter than normal
and had attached on the edge, or margin, of the placenta, not in
the center where it normally attaches. Additionally, the cord
had been in a "filamentous" state, which had resulted in a
superficial attachment to the placenta. As a result, the fetus
had received an insufficient amount of nutrients and oxygen from
the placenta, which eventually had resulted in its death. See 4C
Roscoe N. Gray & Louise J. Gordy, Attorney's Textbook of Medicine
§ 305.51 (3d ed. 1990).
On cross-examination, Dr. Lewis noted that several of the
fetus's internal organs, namely her heart, adrenal glands and
kidneys had been smaller than average, falling within the lowest
percentiles of fetal development at that stage of gestation. The
fetus itself was of normal size. Dr. Lewis opined that the fetus
had died on December 24 or 25, 1988. He concluded that the fetus
"had to be" alive on December 21, 1988, due to the state of
tissue samples analyzed during the autopsy.
Dr. Kalafer's expert testimony was presented by videotaped
deposition. The Appellate Division described in detail the
content of Dr. Kalafer's testimony and the issues that it
generated:
Dr. Kalafer testified that Mrs. Gardner's
"marked decrease in fetal activity" was "very
significant" because "[i]t is something that
often alerts the physician that there might
be a potential problem." He also expressed
the opinion that defendant's failure to
perform any tests when Mrs. Gardner reported
a decrease in fetal activity constituted a
deviation from the accepted standard of
prenatal care:
I feel that . . . in this setting,
a patient who is considered a
high-risk individual who has had
miscarriages in the past who has
received extra medication during
pregnancy, that it was important to
follow-up on that particular
complaint of a patient and perhaps
perform a study which would help
determine if the baby was in an
environment that was normal.
Specifically, I feel it would be
important to perform a nonstress
test along with the biophysical
profile at that time.
When asked whether the baby would have
survived if it had been delivered on December
21, Dr. Kalafer testified:
I don't know. However, if one
would have performed a study and if
that study indicated that there was
a smoldering in utero environment,
one would have acted on that and
most likely the baby would have
been able to survive on the outside
being given the fact that even
though this is not a term baby, it
is very close to term; and in the
setting such as a neonatal
intensive care unit, one could
monitor the baby, and the biggest
concern really at that point might
be lung maturation.
Plaintiffs' counsel then asked the
following question:
Do you have an opinion held to
a reasonable degree of medical
probability as to whether it was
probable that if Dr. Pawliw
performed tests on the day of
December 21, that it would have
shown any effects of the placental
and cord abnormalities?
After an objection by defendant's
counsel and colloquy among counsel and the
witness, Dr. Kalafer responded:
My answer is yes.
. . . .
I feel that if a study would
have been performed, one could
utilize that knowledge to help
better manage the pregnancy. If
the test would have been normal, it
would have been reassuring. If the
test would have been abnormal, then
I believe one would have been
pushed to deliver this baby."
When asked for his opinion as to whether
defendant's failure to conduct testing on
December 21 increased the risk that the baby
would die, Dr. Kalafer stated:
If a study would have been
performed such as the nonstress
test and biophysical profile, one
could utilize that information;
and if it was abnormal, the baby
could have been delivered most
likely in a setting more
appropriately, and the baby could
most likely live in the outside
world.
And when asked whether the baby's death was
substantially caused by defendant's failure
to conduct testing on that date, Dr. Kalafer
answered:
[I]f these studies were performed,
it would have helped the doctor to
continue the in utero life or
basically either decide that this
baby does not have to be delivered
or just continue close monitoring.
On cross-examination, Dr. Kalafer gave
the following testimony regarding the tests
that he asserts defendant should have
conducted on December 21:
Q. Now, a nonstress test is either
reactive or nonreactive, is that
correct, sir?
A. That is how it is qualified,
yes.
Q. Would it be fair to say, sir,
that you cannot state within a
reasonable degree of medical
probability that a nonstress test,
had one been done on December 21,
1988, would have been nonreactive?
A. I cannot state that, that is
right, since one wasn't done.
. . . .
Q. Correct me if I am wrong, doctor, but it is my understanding
that a biophysical profile is
either reassuring or
non-reassuring, is that the
terminology that you used, sir?
A. That is one way to describe it,
but you can also quantify it
perhaps a little bit better.
Q. Would it be fair to say, sir,
that you cannot state within a
reasonable degree of medical
probability that had a biophysical
profile been performed on December
21, 1988 it would have been
non-reassuring?
A. I can't state that because one
wasn't done.
On re-direct examination, Dr. Kalafer
testified:
Q. Doctor, you said that you cannot
state with certainty or probability
what a nonstress test would have
shown if performed on December 21.
I want to ask you: Can you say to
a reasonable degree of medical
probability as to whether by
failing to do a nonstress test
there was an increased risk that a
condition which could cause the
baby's death would not be
recognized?
A. Yes.
. . . .
Q. Similarly you said that you
cannot state with medical
probability what a biophysical
profile would have shown if
performed on December 21. I want
to ask you: Can you state with a
reasonable degree of medical
probability as to whether by
failing to do a biophysical profile
there was an increased risk that a
condition which could cause the
baby's death would not be
recognized?
. . . .
A. Yes.
[285 N.J. Super. at 116-18
(emphasis added).]
Dr. Kalafer also stated that although there were no
discernable fetal abnormalities, the autopsy report revealed that
there were placental abnormalities and a short cord. When asked
whether those abnormalities were significant he stated, "I think
this could help explain perhaps why the patient felt decreased
movement. It might have been indicative of the fact that this
placenta was not nourishing the baby appropriately."
Defendant presented expert testimony from Dr. Stanley
Wilchins, a board-certified obstetrician and gynecologist. Dr.
Wilchins testified that Gardner's complaints concerning a
decrease in fetal activity had not been significant because "as
all pregnancies approach toward the end of the third trimester,
there normally is a decrease in fetal movement. But in
association with other medical conditions, it can be of
significance." Dr. Wilchins also testified that the content of
any watery discharge at this point in a pregnancy should be
analyzed to determine its source. However, he concluded that Dr.
Pawliw had not deviated from accepted standards of medical care
by not ordering the NST or BPP tests on December 21, 1998,
"because there was absolutely nothing going on which warranted
it."
When asked whether, if the tests had been performed on
December 21, 1988, the results would have been abnormal, Dr.
Wilchins testified that "not as a probability but as a medical
certainty" the test results would have been "perfectly normal."
He based this conclusion on two findings. First, because the
ultrasound performed on December 27, 1988, showed a normal amount
of amniotic fluid, he opined that the fetus could not have been
compromised on December 21, 1988. Second, based on the autopsy
finding that the fetus and placenta exhibited only faint meconium
staining,See footnote 2 he opined that the in utero environment could not
have been very stressed on December 21, 1988. Had it been
stressed, the meconium staining would have been markedly darker.
Accordingly, he concluded that the fetus had been severely
stressed only twenty-four to forty-eight hours before death, that
is on December 25 or 26, "not a week earlier on the 21st."
Dr. Wilchins further testified that neither an NST nor a BPP
test would have revealed the presence of an abnormally short cord
or of a marginal insertion of the cord into the placenta. He
testified that those tests merely reveal whether a fetus is
experiencing stress at the moment the test is given, not whether
stress may occur at some point in the future:
THE COURT: Well what if the baby was showing
stress, would that be -- sometimes be
reflected?
THE WITNESS: Stress does turn up sometimes when tests are performed, that is correct. But
that's an ongoing present event
occurring now. In other words, the
fetus has to be experiencing stress now
in order for that test to reveal
stresses going on. It doesn't say that
stresses will occur three or four or
five days from now.
When asked whether the tests would have revealed fetal
distress if they had been administered on December 21, Dr.
Wilchins replied: "I think to the contrary. Based upon the
findings of the normal amniotic fluid and the faint meconium, I
think that that testing would have showed up perfectly normal or
one could not have had a normal amniotic fluid index and the just
faint staining of meconium." When asked by plaintiffs' counsel
whether a Level II ultrasound would have revealed smaller-sized
internal organs or other abnormalities, Dr. Wilchins stated,
"[I]t may, it may not."
At the close of defendant's case, defense counsel moved for
dismissal, pursuant to Rule 4:40-1, which the trial court
granted. The trial court found that plaintiffs could reach the
jury on the issue of negligence, because their expert had
testified that a failure to order the tests had deviated from the
prevailing standard of care. Additionally, the trial court found
that it was unrefuted that the fetus's death resulted from the
pre-existing condition of the placenta and umbilical cord
abnormalities. Furthermore, it accepted Dr. Kalafer's testimony
as sufficient to reach the jury on whether the fetus would have
survived had Dr. Pawliw induced labor on December 21, 1988.
However, the trial court held as a matter of law that
plaintiffs had failed to show a causal connection between the
failure to administer the tests and the death of the fetus,
noting the limitations in Dr. Kalafer's testimony:
Now the question, was there any reason to
have any intervention. And the testimony is
unrefuted that unless there was a negative
test there was no reason for medical
intervention. So the critical question [is],
. . . "Do you have an opinion held to a
reasonable degree of medical probability as
to whether it was probable that if Dr. Pawliw
performed tests on the day of December 21st
that it would have shown any effects of the
placental and cord abnormalities?"
[Defendant's attorney] objects. Why he
objects, I don't know. But he decides to
interrupt, because it's a critical question
to the answer. . . .
But Ms. Rhoads -- the next thing that happens
is [plaintiffs' attorney] says, "Can you
answer that?" And [Dr. Kalafer] says, "No, I
can't answer that question."
"Can you say to a degree of medical certainty," . . . My answer is yes."
"Why is that?"
"I feel that if the study would have been performed one could utilize that knowledge to help manage the pregnancy." Not the question. We're not managing the pregnancy. It is a clear issue, rather like taking the X-ray on the day in question. "If the test would have been normal it would have been reassuring." Of course. "If the test would have been abnormal, then I believe one would have been pushed to deliver the baby." Agreed. Unrefuted.
In effect, the trial court found there was an insufficient
showing of probability that the tests in fact would have shown
abnormalities, even though there was a possibility of such a
result:
You need an abnormal test, Dr. Kalafer
has clearly said, to push for the delivery.
That's the critical issue. Had there been an
abnormal test, and there was a possibility -
unrefuted. Had this doctor listened to Mrs.
Gardner, had he determined at that point to
have a test, there is a possibility that it
would have been abnormal, and that would have
caused this doctor to push for delivery of
the baby. And Mr. and Mrs. Gardner have
every right to want every possibility
explored. If there was a one percent chance
that that test would have shown this baby in
stress and there could have been a careful
intervention, I understand exactly why they
would have wanted it done. . . . That's not
the standard the law requires of the doctor.
. . . That's not the test for the law. The
law says there has to be a degree of medical
probability that the tests not taken would
have provided guidance to the physician and
that his failure to take that test then is a
proximate cause of the injury which follows,
the death of the child.
[Emphasis added.]
Although the court did not state what minimum threshold would
have established a medical probability in the present case, it
found that Dr. Kalafer had not reached the threshold because he
had declined to state definitively what the tests would have
shown:
[H]e refuses to answer the question. Now it
is a very interesting answer. We don't know
what the result would have been, therefore I
won't say whether to a reasonable degree of
medical probability an abnormal test would
have refer [sic]. There might have been a
one percent chance or a 10 -- by the way, the
doctor's never asked to quantify it. Let's
say it's 50-50. Is that to a degree of
medical probability? I don't know. I don't
reach it. It is not enough for a doctor to
say, I cannot state since the test wasn't
done whether or not there would have been an
abnormal test. He is refusing to answer the
question, and thus in not answering is not
providing the basis that is necessary for the
plaintiff to get to the Jury.
. . . .
So the doctor refuses to give the critical -
that there is to a degree of medical
probability, not 100 percent -- and by the
way, I don't know that the law has ever
required -- what is probability? Fifty-one
percent? Maybe I find it enough to be 40
percent. I don't know. I'm not confronted
with that. Some probability that this test,
not some possibility the test.
So we have one doctor who will not answer the question in deposition as to whether this test, to a degree of medical probability. It might have turned out abnormal. That's the best we have. There is a possibility it would have been abnormal. Possibility in the law is not enough. There must be a probability that this test would have been normal. And I don't know how to quantify that. Maybe 30 percent is enough. Maybe 40 percent. We don't have that testimony. But a possibility is not enough. Unless there was an abnormal test there would be no reason for intervention by this gynecologist in an early delivery. That is clear from all of the testimony. And that's not defeated. It becomes critical, then, as a matter of proximate cause, a causative link under Scaffiti [sic] that the doctor's failure to take this test had to increase the risk that the child's stress would be undiagnosed and timely intervention not had. And that's the testimony Dr. Kalafer will not give.
[Emphasis added.]
The Appellate Division affirmed the trial court's dismissal of plaintiffs' complaint, concluding that plaintiffs had failed to present adequate evidence that defendant's failure to perform the tests on December 21, 1988, had increased the risk of harm posed by the preexistent condition. 285 N.J. Super. at 122. The holding reflected the Appellate Division's application of the modified standard of causation, adopted by this Court in Evers v. Dollinger, 95 N.J. 399 (1984), and Scafidi v. Seiler, 119 N.J. 93 (1990), that controls cases where a physician's medical malpractice combines with a patient's preexistent condition to cause harm. The Appellate Division articulated the plaintiff's burden as follows:
Under this modified causation standard, plaintiff must present "[e]vidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition." If plaintiff satisfies this burden, it "raises a jury question whether the increased risk was a substantial factor in producing the ultimate result."
[285 N.J. Super. at 121 (quoting Scafidi,
supra, 119 N.J. at 108).]
The Appellate Division found that plaintiffs had failed to satisfy their burden of proof because they had not presented "any evidence" to show the required causal connection between
defendant's alleged malpractice and the death of the fetus. Id. at 122. The Appellate Division noted that the only expert opinion offered at trial on the issue of the fetus's condition on December 21, 1988, was that of defendant's expert, Dr. Wilchins, who had opined that the tests would not have revealed any abnormality in the fetus. In contrast, plaintiffs' medical expert, Dr. Kalafer, had declined to offer any opinion concerning the state of the fetus on December 21, 1998. Therefore, the panel concluded that plaintiffs could not prove that, had defendant performed the NST and BPP tests on December 21, 1988, a stressful environment would have been revealed, thereby necessitating induction of labor to save the fetus. Ibid. The court acknowledged Dr. Kalafer's affirmative answer to the question concerning whether the failure to perform the tests increased the risk that the doctor would fail to recognize a condition that could cause the fetus's death. However, the court characterized that answer as a "bare conclusion," which was unsubstantiated because of Dr. Kalafer's inability to address the fetus's condition on December 21, 1988, due to the lack of the NST and BPP test results. Id. at 122-23. The Appellate Division determined that a remote possibility or slight chance that the failure to order the tests increased the risk of ultimate harm was insufficient to meet plaintiffs' burden of proof of causation. Id. at 123. It concluded that if the tests would not have revealed an abnormality, then the failure to perform them
would not have resulted in an increased risk of harm to the
fetus.
II
To establish a prima facie case of negligence in a medical
malpractice action, a plaintiff must present expert testimony
establishing (1) the applicable standard of care, see Rosenberg
v. Cahill,
99 N.J. 318, 325 (1985); (2) a deviation from that
standard of care, see Clark v. Wichman,
72 N.J. Super. 486, 496
(App. Div. 1962); and (3) that the deviation proximately caused
the injury, see Germann v. Matriss,
55 N.J. 193, 205 (1970).
This Court has lessened the traditional burden of proof on a
plaintiff asserting a medical-malpractice claim for establishing
proximate cause in the case of a plaintiff suffering from a
preexistent condition. See Anderson v. Picciotti,
144 N.J. 195,
205-07 (1996); Scafidi, supra, 119 N.J. at 108-09; Evers v.
Dollinger,
95 N.J. 399, 417 (1984). A plaintiff suffering from a
preexistent condition must prove that, as a result of a
defendant's negligence, she experienced an increased risk of harm
from that condition, and that the increased risk of harm was a
substantial factor in causing the injury ultimately sustained.
Anderson, supra, 144 N.J. at 210.
The majority of jurisdictions has similarly modified the
traditional "but for" causation standard of proof in cases where
the injury allegedly resulted in part from a defendant's
negligence and in part from a preexistent condition to permit
such plaintiffs to submit for jury consideration the questions of
whether the defendant's deviation from standard medical practice
increased a patient's risk of harm or diminished a patient's
chance of survival and whether such increased risk was a
substantial factor in producing the ultimate harm. See, e.g.,
McBride v. United States,
462 F.2d 72, 75 (9th Cir. 1972)
(applying Hawaii law); O'Brien v. Stover,
443 F.2d 1013, 1017-18
(8th Cir. 1971) (applying Iowa law); Hicks v. United States,
368 F.2d 626, 632-33 (4th Cir. 1966) (applying Virginia law); James
v. United States,
483 F. Supp. 581, 585-87 (N.D. Cal. 1980);
Thompson v. Sun City Community Hosp., Inc.,
688 P.2d 605, 613-16
(Ariz. 1984); Northern Trust Co. v. Louis A. Weiss Mem'l Hosp.,
493 N.E.2d 6, 11-12 (Ill. 1986); Mayhue v. Sparkman,
653 N.E.2d 1384, 1389 (Ind. 1995); DeBurkarte v. Louvar,
393 N.W.2d 131,
135-38 (Iowa 1986); Roberson v. Counselman,
686 P.2d 149, 159-60
(Kan. 1984); Aasheim v. Humberger,
695 P.2d 824, 827-28 (Mont.
1985); Roberts v. Ohio Permanente Med. Group, Inc.,
668 N.E.2d 480, 482-84 (Ohio 1996); McKellips v. Saint Francis Hosp., Inc.,
741 P.2d 467, 475 (Okla. 1987); Hamil v. Bashline,
392 A.2d 1280,
1284-89 (Pa. 1978); Herskovits v. Group Health Coop. of Puget
Sound,
664 P.2d 474, 477-79 (Wash. 1983). See generally John D.
Hodson, Annotation, Medical Malpractice: "Loss of Chance"
Causality,
54 A.L.R.4th 10 (1987) (listing various rules applied
by jurisdictions allowing substantial factor standard of
causation).
This Court first adopted the doctrine of increased risk in
medical-malpractice litigation in Evers v. Dollinger, supra, in
which the plaintiff alleged that a physician negligently failed
to perform diagnostic tests that would have revealed a malignant
tumor in her breast. 95 N.J. at 404. As a result of the
physician's alleged negligence, the plaintiff's tumor grew
unchecked for a period of seven months. The plaintiff claimed
that, because of the delay in detection and treatment, she
suffered an increased risk that the cancer would spread. After
receiving treatment, the cancer returned and metastasized
throughout her body. Ibid.
In a routine tort claim, the law requires proof by a
preponderance of the evidence that the injury complained of
probably would not have occurred "but for" the negligent conduct
of the defendant. Id. at 415; see W. Page Keeton, et al.,
Prosser and Keeton on the Law of Torts § 41 (5th ed. 1984). The
Evers Court recognized that proximate cause can be difficult to
prove in the context of harm that results from a combination of a
plaintiff's preexistent condition and a defendant's negligent
discharge of a duty related to that condition, because the
preexistent condition itself serves as a "but for" cause of the
ultimate injury. However, the physician's duty encompasses the
protection of the patient against harm from preexistent
conditions. See Evers, supra, 95 N.J. at 414. In Evers,
therefore, the Court adopted the doctrine of increased risk,
establishing a more flexible standard for proving causation in
cases concerning an increased risk of injury from a preexistent
condition than that used in conventional tort claims, recognizing
the "difficulties of identifying, defining and proving injury" in
such cases. Id. at 413.
In adopting a more flexible burden of proof for a plaintiff
suffering from a preexistent condition, this Court relied in part
on section 323(a) of the Restatement (Second) of Torts (1965),
which provides in relevant part:
One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for
the protection of the other's person or
things, is subject to liability to the other
for physical harm resulting from his failure
to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care
increased the risk of such harm.
The Evers Court also relied on the reasoning expressed by the
Pennsylvania Supreme Court in Hamil, supra, which approved the
application of the rule of law stated in the Restatement (Second)
of Torts § 323(a) to medical-malpractice cases:
[D]efendant was charged with having failed in
a duty to protect against harm from another
source; hence the fact-finder must consider
not only what did occur but also what might
have occurred:
Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequence of his negligent conduct, Section 323(a) [of Restatement (Second) of Torts]
tacitly acknowledges this
difficulty and permits the issue to
go to the jury upon a less than
normal threshold of proof.
[Evers, supra, 95 N.J. at 415 (quoting Hamil,
supra, 392 A.
2d at 1287-88 (footnote
omitted).]
The Evers Court ordered a remand to the trial court to
permit the plaintiff to
demonstrate, within a reasonable degree of medical
probability, that the seven months delay resulting
from defendant's failure to have made an accurate
diagnosis and to have rendered proper treatment
increased the risk of recurrence or of distant
spread of plaintiff's cancer, and that such
increased risk was a substantial factor in
producing the condition from which plaintiff
currently suffers.
[Id. at 417]
In the companion cases of Scafidi, supra, and Olah v.
Slobodian,
119 N.J. 119 (1990), the Court further developed the
doctrine of increased risk, establishing a two-prong test for
proving causation in cases where a plaintiff's injuries are due
in part to a preexistent condition. The Court in Scafidi, supra,
held that "[e]vidence demonstrating within a reasonable degree of
medical probability that negligent treatment increased the risk
of harm posed by a preexistent condition raises a jury question
whether the increased risk was a substantial factor in producing
the ultimate result." 119 N.J. at 108. The Court explained:
The rationale underlying the use of a
two-pronged jury instruction bears
elaboration. Because this modified standard
of proximate causation is limited to that
class of cases in which a defendant's
negligence combines with a preexistent
condition to cause harm -- as distinguished
from cases in which the deviation alone is
the cause of harm -- the jury is first asked
to verify, as a matter of reasonable medical
probability, that the deviation is within the
class, i.e., that it increased the risk of
harm from the preexistent condition.
Assuming that the jury determines that the
deviation increased the risk of harm from the
preexistent condition, we use the
"substantial factor" test of causation
because of the inapplicability of "but for"
causation to cases where the harm is produced
by concurrent causes. The "substantial
factor" standard requires the jury to
determine whether the deviation, in the
context of the preexistent condition, was
sufficiently significant in relation to the
eventual harm to satisfy the requirement of
proximate cause.
[Id. at 108-09 (citations omitted)(emphasis added).]
When applying the Scafidi test, trial courts must closely
analyze the evidence presented to determine whether
it is sufficient to permit a jury to decide,
as a matter of reasonable medical
probability, that both prongs of the two-part
test are satisfied. First, the evidence must
permit a jury to find that defendant was
negligent and that defendant's negligence
increased plaintiff's risk of harm from an
established preexistent condition. If that
prong is satisfied, then there are concurrent
causes of the harm . . .[and] the "but for
causation" standard may not be charged to a
jury.
[Anderson, supra, 144 N.J. at 206.]
If the first prong is satisfied, then the jury will be instructed by the trial court to apply the "substantial factor" standard of causation. Id. at 206-07. Additionally, the trial court will instruct the jury when it considers damages to apportion the defendant's liability in accordance with comparative negligence principles, on the basis of the percentage of the ultimate harm
that directly resulted from the defendant's conduct. Id. at 208.
The tortfeasor will be "`charged only with the value of the
interest he [or she] destroyed.'" Scafidi, supra, 119 N.J. at
112 (quoting Joseph H. King, Jr., Causation, Valuation, and
Chance in Personal Injury Torts Involving Preexisting Conditions
and Future Consequences, 90 Yale L. J. 1353, 1356 (1981)).
To satisfy the threshold of the first prong of the Scafidi
test, a plaintiff must prove to a reasonable degree of medical
probability that a physician's deviation from the standard of
care increased the risk of harm from the preexistent condition.
Id. at 109. A plaintiff may present proof of "not only what did
occur, but what might have occurred." Evers, supra, 95 N.J. at
415. A plaintiff will typically use expert medical testimony.
See Rosenberg, supra, 99 N.J. at 325. A plaintiff necessarily
must establish that a chance of avoiding the harm existed. See
Olah, supra, 119 N.J. at 133.
A complication is presented when a physician's deviation
from the prevailing standard of care consists of the failure to
perform a diagnostic test, because that very failure to perform
the test may eliminate a source of proof necessary to enable a
medical expert to testify to a degree of reasonable medical
probability concerning what might have occurred had the test been
performed. Defendant argues, and the lower courts held, that the
failure of plaintiffs' expert to testify that there was a
reasonable probability that the tests given on December 21, 1988,
would have disclosed the fetus's preexistent condition resulted
in a failure to establish the first prong of Scafidi. Plaintiff
contends that the lower courts' analysis is too stringent and
deviates from the policy underlying Scafidi and Evers. Plaintiff
argues that when a physician fails to perform a standard or
appropriate medical test, that physician should not benefit from
the plaintiff's expert's inability to prove what the unperformed
test would have revealed. The question is whether proof that the
failure to perform a diagnostic test was a deviation from
standard medical practice and that the unperformed test might
have yielded information resulting in the avoidance of harm from
the preexistent condition is sufficient to demonstrate, as a
matter of reasonable medical probability, that the defendant's
deviation increased the risk of harm to the plaintiff, thereby
satisfying the first prong of Scafidi.
The Supreme Court of Pennsylvania in Hamil, supra,
considered the question of the degree of certainty required of
expert medical testimony to establish the causal relation between
the harm suffered by a patient and the alleged negligence of a
health care provider who fails to properly diagnose and treat the
plaintiff's preexistent condition in a manner that might have
prevented the harm. 392 A.
2d at 1282-83. In Hamil, the
plaintiff's decedent-husband was suffering from severe chest
pains, and the plaintiff brought him to the defendant-hospital's
emergency room. Following the hospital's inability to locate the
emergency room physician, another physician ordered the
performance of an electrocardiogram (EKG). Id. at 1283. When
the EKG machine failed to function, the physician ordered that
another machine be brought to the emergency room and then
proceeded to leave the hospital. Ibid. However, another machine
could not be located. Without receiving any treatment or
diagnosis from the defendant-hospital, his wife took decedent to
a private physician's office, where while undergoing an EKG
decedent died. The cause of death was a myocardial infarction.
Ibid. The plaintiff's medical expert testified that with proper
diagnosis and treatment by the hospital, the decedent would have
had a seventy-five percent chance of surviving the attack. Ibid.
The defendant's expert testified that decedent would have died
irrespective of any treatment provided by the defendant hospital.
Ibid. The Pennsylvania Supreme Court held that the plaintiff's
expert testimony of a seventy-five percent chance of recovery
with prompt treatment was sufficient for the plaintiff to reach
the jury for its consideration of the causation question. Id. at
1289.
The Hamil court stated that
Once a plaintiff has introduced evidence that
a defendant's negligent act or omission
increased the risk of harm to a person in
plaintiff's position, and that the harm was
in fact sustained, it becomes a question for
the jury as to whether or not that increased
risk was a substantial factor in producing
the harm.
[Id. at 1286.]
It relied in part on a policy argument articulated by the Fourth
Circuit in Hicks, supra:
When a defendant's negligent action or
inaction has effectively terminated a
person's chance of survival, it does not lie
in the defendant's mouth to raise conjectures
as to the measure of the chances that he has
put beyond the possibility of realization.
If there was any substantial possibility of
survival and the defendant has destroyed it,
he is answerable. Rarely is it possible to
demonstrate to an absolute certainty what
would have happened in circumstances that the
wrongdoer did not allow to come to pass. The
law does not in the existing circumstances
require the plaintiff to show to a certainty
that the patient would have lived had she
been hospitalized and operated on promptly.
<