Tapia v. Alam

KYLIE TAPIA, an infant by her Guardian ad Litem MARIA TAPIA,and MARIA TAPIA and OCTAVIO TAPIA, Individually, Plaintiffs-Respondents, v. ABU S. ALAM, MD, ABU S. ALAM, PA, RICHARD H. BLUM, MD,ATLANTIC MATERNAL-FETAL MEDICINE AT OVERLOOK MEDICAL CENTER,ATLANTIC HEALTH SYSTEM, and SVETLANA PORTNOW, RDMS, Defendants,andGARRY FRISOLI, MD, Defendant-Appellant.

DOCKET NO. A-2611-18T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued February 11, 2020

September 28, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Hoffman, Currier, and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0694-15.

Beth A. Hardy argued the cause for appellant (Farkas & Donohue, LLC, attorneys; Beth A. Hardy, of counsel and on the briefs).

Dennis M. Donnelly argued the cause for respondents.

The opinion of the court was delivered by

HOFFMAN, J.A.D.

In this medical malpractice case, defendant Gary Frisoli, M.D. appeals from the denial of his motion for a new trial after a jury found him at fault for failing to diagnose fetal distress, which would have resulted in the earlier delivery of plaintiffs' daughter, Kylie.¹ Defendant argues the trial judge committed reversible error when she failed to declare a mistrial after his attorney became ill during the trial; on a related issue, defendant contends the judge erred "in failing to allow [him] to supplement the record concerning [his] trial counsel's impairment." Alternatively, defendant contends that errors in the juryverdict sheet and other trial errors warrant reversal. Following our review of the trial record and the parties' briefs, we affirm.

I

In 2006, Maria Tapia became pregnant with twins. At that time, she came under the care of Dr. Alam, who delivered her first child. Because of the twin pregnancy, Dr. Alam, a general obstetrician, referred Maria to defendant, a maternal fetal medicine specialist, for prenatal testing, including fetal ultrasounds.

On December 8, 2006, defendant performed a routine anatomy scan at twenty weeks and four days gestation, which was within normal limits and showed both twins were concordant or growing equally. On March 2, 2007, defendant evaluated the growth of the twins at thirty-two weeks gestation; at that time, he found a discordancy² in the weight of the twins, as the estimatedfetal weight (EFW) for Twin A³ had decreased from the fiftieth percentile to the sixteenth percentile, while Twin B's EFW had increased from the fiftieth percentile to the sixty-sixth percentile. Defendant further noted that Twin A's abdomen was "significantly smaller" than Twin B's, "suggestive of asymmetric fetal growth restriction."

As a result of these findings, defendant performed a biophysical profile⁴ (BPP), which was normal for both twins. He also performed umbilical artery Doppler studies to assess the blood flow of the placentas, and determined those studies were also within normal limits and reassuring. In a report faxed to Dr. Alam, defendant advised he wanted to see Maria again in two to three weeks for additional ultrasound scans and Doppler studies. In the meantime, herecommended that Dr. Alam perform weekly non-stress tests⁵ (NSTs) in his office.

The next BPP and Doppler studies were completed on Thursday, March 22, 2007, when defendant was not in his office. Svetlana Portnoy, a registered ultrasonographer, performed the studies in defendant's absence and did not note anything requiring immediate communication to a physician. Defendant reviewed the scans when he returned to the office on March 26. At that time, he observed continued discordancy between the twins; however, because Twin A had grown 500 grams since the last exam, and the BPP and Doppler studies were normal, he found the test results reassuring. Nevertheless, since the discordancy now demonstrated borderline growth restriction, defendant recommended in his report to Dr. Alam that Maria return in one week for follow-up scans, and in the interim, that Dr. Alam should perform NSTs "twice a week." Unbeknownst to defendant, Dr. Alam never followed his recommendation to perform NSTs, as Dr. Alam did not place any clinical value in NSTs when the BPP is normal.

When Maria returned to defendant on March 30, 2007, her Doppler studies were abnormal. According to defendant,

[T]he Dopplers . . . showed me that now there was impedance or resistance of placental blood flow across the placenta to the baby. That was what caught my eye, the abnormal Dopplers. And that abnormal Doppler is what made me do a [NST] right [then] and there on her. And when I saw that the non-stress test was non-reactive, combined with the abnormal Doppler, that . . . precipitated my recommendation to have the baby delivered that day as soon as possible, as I felt that there was a significant change that I had not seen before.

Defendant recounted that he then "escorted Maria to labor and delivery," called the covering physician,⁶ "explained to him the situation[,] and gave him my recommendations to have the patient delivered that day as soon as possible." The covering physician delivered the twins later that day. Plaintiffs contend this delivery should have occurred four days earlier, on March 26, when defendant reviewed the results of the March 22 testing. During those next four days, plaintiffs contend Kylie endured increasing hypoxia,⁷ which caused her to sustain severe brain damage.

At trial, plaintiffs asserted that defendant's failure to timely diagnose and treat intrauterine growth restriction⁸ (IUGR) resulted in a four-day delay of the twins' C-section delivery; a timely C-section would have prevented Kylie from sustaining permanent brain damage. Defendant denied all allegations of negligence and contended that a preexisting condition, gestational alloimmune liver disease⁹ (GALD) - a condition that could not be diagnosed prior to delivery - caused Kylie's brain damage.

As argued by plaintiffs, and not challenged by defendant, both sides appear to agree on the following undisputed foundational facts:

• On March 30, 2008, for the third time, defendant performed the pre-birth surveillance test, BPP, which he was using to monitor the well-being of the twins.

• Defendant had special, extra training and was a maternal fetal medicine specialist, and because of that, he had been asked by Maria's regularobstetrician, Dr. Alam, who would normally deliver the twins, to periodically complete BPPs throughout this higher-risk twin pregnancy.

• On March 30, 2008, defendant saw Maria and did a series of tests, which revealed three abnormal results for Kylie, two from his BPP and one from an NST. Defendant considered the results "alarming." Those abnormal results were:

a.) an estimated fetal weight for Kylie of less than the tenth percentile on the ultrasound component of the BPP;

b.) a failing total score (four out of eight) on the BPP;

c.) Kylie's fetal monitor tracing was "non-reactive," meaning the absence of heartbeat accelerations with fetal movement.

• As a result, defendant recommended a Caesarian section (C-section) delivery "as soon as possible."

• Notwithstanding the C-section delivery, Kylie sustained catastrophic injuries and remains blind, unable to talk, and confined to a wheelchair.

• Some growth discrepancy between the twins had been occurring for the last month of this pregnancy and had progressed to IUGR for Kylie on the March 22 BPP, which defendant's technician performed, and defendant read on March 26.

• Side-by-side growth charts and an immediate post-birth photo of the twins visually illustrated the extent of fetal growth discordancy between the twins.

According to plaintiffs, beyond these foundational facts, "both sides completely and diametrically disagreed on what reasonable inferences flowed from and must be accepted by the jury from those foundational facts as to bothwhat was required of [defendant] under the standard of care (negligence) and what caused Kylie's brain damage and when it occurred (causation)."

Plaintiffs' Experts

According to plaintiffs' experts, Kylie's IUGR was caused by nutritional placental insufficiency which was depressing her oxygen and would foreseeably progress to brain damage. Where there is IUGR, even a perfect BPP score is only good for four days. With IUGR, interim fetal surveillance was critically important, requiring defendant to urgently call Dr. Alam on March 26, 2008 and confirm that his NST results remained reassuring.¹⁰ In fact, Kylie was suffering sub-acute distress from nutritional insufficiency that was causing her IUGR; by March 26, 2008, she had already begun suffering early - but still not permanent - brain damage from hypoxia. Thus, if done on March 26, 2008, plaintiffs' experts opined that Kylie's NST would have been nonreactive, requiring adelivery on March 26 or 27, 2008, before she sustained permanent hypoxic oxygen-deprivation brain damage. Kylie did not suffer from GALD.

Defendant's Experts

According to defendant's experts, the IUGR on March 22 and 30, 2008, was barely below ten percent, was not significant, and did not cause any brain damage; instead, the brain damage was caused by GALD. Kylie's perfect eight out of eight BPP score on March 22, 2008, proved she had not suffered brain damage and was good for seven days. Although recommended by defendant at thirty-four weeks in this twin pregnancy, interim surveillance by NST was not required. Defendant's repeat of BPP in eight days on March 30, 2008, constituted good medical practice. Since Kylie had neither suffered brain damage in utero nor acute hypoxia at birth based on negative cord blood testing, nothing defendant did or failed to do was a substantial factor in causing her brain damage or increasing the risk of her sustaining...