Trial errors

N.J. appeals court topples $19 million verdict in delayed-caesarean case

Case is an illustration of the danger of allowing an influential fact witness to dominate the trial.

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.

"We determine that these errors, either alone or combined, were capable of producing an unjust verdict, and accordingly, we reverse and remand for a new trial on both the issues of liability and damages," the Appellate Division wrote in Kowalski v. Palav, A-5348-07.

The case is an illustration of the danger of allowing an influential fact witness to dominate the trial, as Nurse Dina Zeh seems to have done.

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.

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]."

However, after Palav testified, which was a week after Zeh's testimony, Locascio gave the limiting instruction. He also reminded the jury that Zeh was a fact witness, not an expert, and so could not give opinions on alleged deviations.

Palav's appellate lawyer, John Stapleton of Hangley Aronchick Segal & Pudlin in Philadelphia, calls Locascio's waffling on the instruction "very peculiar."

The jury found that Palav deviated from the proper standard of care, causing harm to Brandon, that 20 percent of his injuries would have occurred even without Palav's negligence, and awarded $19.25 million. The court molded the verdict to $15.4 million plus interest, for a total of $18.9 million.

Appellate Division Judges Philip Carchman, Anthony Parrillo and Marie Lihotz were less than adulatory about Locascio's approach.

They held that Zeh's testimony should have been excluded because it "suggested that Palav deviated from the standard of care because he failed to perform a C-section in the face of her insistence that the baby's condition was deteriorating" and that Zeh "was not qualified ... to present testimony that could be inferred as an expert opinion."

The panel said the error could have been minimized had Locascio issued a contemporaneous limiting instruction, and that he was loath to do so in the face of Riverview's objections, in order to avoid creating an appellate issue.

The panel also held that Locascio should have admitted the "Criterion Report," a one-paragraph document prepared by Riverview's Quality Assurance Committee on the Kowalski birth 11 months after it occurred. It contained a short summary of the case and noted that it had been discussed by the committee only for educational purposes and not, the panel said, as an indication of fault or medical error on Palav's part. Locascio rejected it as hearsay because Palav himself, though on the committee, did not prepare it. "The manner in which it was presented inferred criticism against and withholding of information by" Palav, which was "not only inaccurate but manifestly unfair and unjust."

The plaintiffs lawyer, Brian Drazin of Drazin & Warshaw in Red Bank, did not return a reporter's call for comment.

(Published by Law - September 2, 2010)

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