JOSEPH GREENLEAF, JR. v. BELINDA SILVERTHORN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0937-07T30937-07T3

JOSEPH GREENLEAF, JR. by his

Guardian ad litem, KIMBERLEE

GREENLEAF, JOSEPH GREENLEAF

SR. and KIMBERLEE GREENLEAF,

individually,

Plaintiffs-Appellants,

v.

BELINDA SILVERTHORN, CAM;

WARREN OB-GYN ASSOCIATES, and

WARREN HOSPITAL,

Defendants-Respondents.

___________________________

 

Argued June 3, 2008 - Decided

Before Judges Fuentes, Grall and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Warren County, Docket No.

L-225-05.

Richard A. Grodeck argued the cause for

appellants (Feldman Grodeck, attorneys;

Mr. Grodeck, on the brief)

Philip F. Mattia argued the cause for

respondents (Philip F. Mattia and Associates,

attorneys; Mr. Mattia, on the brief)

PER CURIAM

Plaintiffs, Joseph Greenleaf, Sr. and Kimberlee Greenleaf, as guardian ad litem for the minor Joseph Greenleaf, Jr. and Kimberlee Greenleaf, individually, filed this medical malpractice action against defendants Belinda Silverthorn, a certified nurse midwife, and Warren OB-GYN Associates, Silverthorn's employer, alleging that they were negligent in the delivery of the infant plaintiff; and, as a proximate cause of such negligence, Joseph suffered a permanent injury to his left arm known as a brachial plexus injury.

The matter was tried for five days before a civil jury that returned a verdict of no cause for action. Plaintiffs now appeal arguing that the trial court committed reversible error in: (1) limiting the testimony of their expert pediatric neurologist, Dr. Adler; and (2) prohibiting their expert in obstetrics and gynecology, Dr. Ravitz, from bolstering his credibility by testifying that he donates his witness fees to charity.

After carefully reviewing the record, and in light of prevailing legal standards, we affirm. We will limit our factual recitation to those facts necessary to address plaintiffs' arguments on appeal.

I

Kimberlee Greenleaf was admitted to Warren Hospital on August 14, 2003, at approximately 3:00 a.m., complaining of labor pains after her "water broke." She was accompanied by her husband Joseph Greenleaf; Joanne Greenleaf, Joseph Sr.'s mother, arrived minutes later. Kimberlee was taken to the delivery room where an anesthesiologist administered an epidural injection; members of the nursing staff were also in contact with her.

The Greenleafs had agreed to have midwife Belinda Silverthorn deliver their child. Silverthorn examined Kimberlee to confirm dilation, at least once prior to the baby's birth. Kimberlee became fully dilated after about three hours and twenty minutes after her arrival at the hospital. At that point, Silverthorn instructed her to begin pushing.

Along with Silverthorn and Nurse Susan Wade, Joseph, Sr. and his mother Joanne were also present in the delivery room. A few minutes after Kimberlee began to push, Silverthorn, who was at the foot of the bed between Kimberlee's legs, abruptly directed Kimberlee to stop pushing. According to Silverthorn, she directed Kimberlee to stop pushing because she had seen a "turtle sign," which she defined as a situation where the baby's head comes out of the mother's vaginal canal, but then is pulled back, "like a turtle head is going back into its shell."

Silverthorn testified that a "turtle sign" is indicative of shoulder dystocia, a situation in which, after the delivery of the baby's head, the shoulders are impacted and do not promptly follow through with normal obstetrical movements. The shoulders do not deliver because they "hang up" or become "stuck behind a bony part of the mother's pelvis."

Once she detected the sign of shoulder dystocia, Silverthorn lowered the head of Kimberlee's bed and began to perform the "McRobert's maneuver," an obstetrical procedure used to free the baby's shoulder by retracting the mother's legs toward her chest and applying suprapubic pressure, or pressure to the lower part of the mother's abdomen.

At this point, Nurse Wade, who had been just observing, grabbed and pulled back Kimberlee's right leg, climbed over the top of her and started pressing on her lower stomach. According to Kimberlee, no one pulled on her left leg. Her mother-in-law Joanne testified, however, that her son Joseph Sr. was pulling back on Kimberlee's left leg. Joseph Sr. and Silverthorn both had no recollection as to whether Joseph Sr. held Kimberlee's leg. Silverthorn testified that while this was taking place, she was applying gentle downward and outward traction on the baby's head, as she would do during any normal delivery. Nurse Wade corroborated her testimony in this respect.

The baby was delivered soon after these procedures were performed. Kimberlee testified that the infant's left arm was "twisted and pale, [and] lifeless." According to Kimberlee, after the baby was taken from the room, Silverthorn came in and apologized. Silverthorn denied that she ever apologized.

Pediatric neurologist Dr. Trevor DeSousa examined the baby approximately one month after his birth. After physical and occupational therapy did not result in significant improvement to the arm, Dr. Sousa referred Joseph to neurosurgeon Dr. Rahul Nath, of Houston, Texas.

When Joseph was about one year old, Dr. Nath performed surgery on the child's arm at Texas Children's Hospital in Houston. The operation "involved loosening tendons and then reconnecting tendons," in an effort to enable the child to lift his arm away from his body and above his head. In May 2006, Dr. Nath performed a "triangular tilt procedure," at Hermann Memorial Hospital in Houston. This surgery "involve[d] cutting away pieces of bone from the clavicle as well as the shoulder blade. And anchoring down or tightening the position of the shoulder blade so that it[ was] in a more normal position."

Joseph's arm was in a brace for twenty-four hours a day for thirteen weeks following both surgeries. He wore the brace for an additional six weeks thereafter, but could remove it for some daytime hours. Both surgeries significantly improved Joseph's condition. At the time of the trial, Joseph continued to wear a brace overnight, which caused him to have difficulty sleeping. He is expected to continue with therapy in an effort to maintain muscle mass and increase strength and muscle function.

II

At trial, plaintiffs presented the testimony of two expert witnesses, Dr. Daniel Adler, a board certified pediatric neurologist and Dr. Melvyn J. Ravitz, specializing in obstetrics and gynecology. As a pediatric neurologist, Dr. Adler treats children with brachial plexus, the kind of injury sustained by Joseph in this case.

On cross examination, during the voir dire, Dr. Adler specifically testified that he does not have any training in obstetrics or in the field of midwifery. He further conceded that he is "not qualified to give opinions regarding deviation or departure from standard practice" in the fields of obstetrics and midwifery. It was not his "intention to criticize any member of the delivery team" or "offer any opinions regarding deviation."

Based on his examination of the child, Dr. Adler testified that Joseph has "a brachial plexus injury involving the fifth and sixth cervical nerves of his left brachial plexus," which is a permanent condition also referred to as "Erb's palsy." In an October 4, 2006 report prepared for this case, Dr. Adler opined as follows:

Today's examination demonstrates a pattern of weakness that indicates the fifth and sixth cervical nerves of the brachial plexus have been injured. These neurological disabilities are permanent. The lack of complete recovery indicates that there has been nerve root avulsion or nerve rupture at a location distal to the exit of the root from the spinal column. During a vaginal delivery, this type of injury can only be caused by excessive traction on the nerves of the brachial plexus. It cannot occur on an intrauterine basis. The health care providers involved in the delivery of this child supplied the excessive traction.

According to Dr. Adler, Joseph's delivery was complicated by shoulder dystocia; after delivery, there were bruises on his face and his left arm. He testified that the bruising on his arm was "very significant," because it indicated the arm was exposed to "a measure of trauma" during the delivery process.

Based on a neurological consultation and physical examination primarily focused on the arm, he found that the child's arm has a "Clarion sign," indicating "some of the rotational movement[s] of the shoulder are abnormal." Joseph is unable to "fully flex" or "fully extend" his arm; he also has difficulties rotating his arm both externally and internally.

Dr. Adler also diagnosed Joseph with suffering from a "winged scapula," meaning that the "scapula moves way from the chest wall because the muscles that attach it to the chest wall are weak." The child's left arm is also shorter than his right arm by an inch. He examined Joseph in the presence of the jury to demonstrate the arm's limited range of motion.

In Dr. Adler's medical opinion, the injuries to Joseph's arm occurred during his birth when his shoulder "got stuck"; the efforts to free the shoulder and deliver the baby caused "a stretching of the nerves of the brachial plexus." The nerves stretched beyond their "mechanical limit[s]," causing a "ripping or tearing of the fifth and sixth cervical nerves of the left brachial plexus." Thus, the injury was not caused by a compression of the nerve.

Disputed Testimony

At this point during the testimony, plaintiff's counsel asked Dr. Adler whether this injury "happened . . . under the natural forces of labor and delivery." This prompted an immediate objection from defense counsel, who argued that the question sought to elicit opinion testimony that went beyond Dr. Adler's qualifications. Although he conceded that Dr. Adler could testify that Joseph suffered a "traction injury," resulting from severe stretching of the nerve, defense counsel maintained that he was not qualified to relate that statement to the labor process. Such testimony, according to defense counsel, amounted to an opinion on deviation, a topic outside the witness's field of expertise.

Plaintiff argued that Dr. Adler would not testify about whether or not the delivery team deviated from the required standard of care. Plaintiff asserted, however, that Dr. Adler was qualified to offer his opinion that this injury occurred during the birthing process, and that the injury could have been caused by "forces of labor and delivery." Plaintiff further argued that Dr. Adler was familiar with "neurological literature" that described how these injuries occur, and was thus competent to opine that the child's injury did not occur in utero.

Specifically, Dr. Adler testified that in reaching this conclusion he relied on Neurology of the Newborn, edited by Dr. Joseph Volpe, a text he mentioned during his pretrial deposition. A copy of the text was provided to defense counsel. It states, in pertinent part:

Brachial plexus injury is thought to result from stretching of the brachial plexus, with its roots anchored to the cervical cord, by extreme lateral traction. The traction is exerted via the shoulder, in the process of delivering the head with breech deliveries, and via the head, in the process of delivering the shoulder in cephalic deliveries. The upper roots of the plexus are most vulnerable, but with marked traction all roots are affected and total paralysis results. The relatively rare occurrence of intrauterine injury to the brachial plexus has been secondary to abnormalities of fetal position or of uterine structure.

The trial judge conducted a N.J.R.E. 104 hearing to establish the parameters of Dr. Adler's testimony. In response to plaintiff's counsel's questions, Dr. Adler testified that this injury occurs after the delivery of the head "during efforts supplied by the delivery team to deliver the shoulder." In this light, the trial judge sustained defendants' objection, finding that the proffered testimony "definitely crosses the line over into deviation." The court permitted Dr. Adler to testify that this type of injury may occur if there is pulling; however, he could not testify about "how it got pulled and who did it."

The court also permitted Dr. Adler to testify that this injury occurred during the birthing process, after the delivery of the baby's head, but he could not testify about "specific actions someone might have taken in the delivery room." The court further precluded Dr. Adler from testifying about whether the injuries could have been caused by intrauterine events. The court reasoned that such testimony needed to come from an obstetrician.

When the trial reconvened, Dr. Adler testified that Joseph's injury occurred after the delivery of his head, as a result of traction or the nerve being stretched and torn during the birthing process. He explained that the medical text Neurology of the Newborn supported his opinion. He then read the following passage for the jury: "[b]rachial plexus injury is thought to result from stretching of the brachial plexus, with its roots anchored to the cervical cord, by extreme lateral traction." The court directed the jury to disregard his testimony that after delivery of the head, "the head is moved and the nerves are stretched."

With respect to Joseph's future development, Dr. Adler testified that Joseph's injuries are permanent; the size discrepancy between his arms will increase from one to two inches by the time he is twenty-one; and he will have difficulty performing tasks which require heavy lifting and balance.

On cross examination, Dr. Adler indicated that twenty-five percent of his professional time is spent giving expert testimony, and he has testified as an expert over one hundred times. He has been retained on behalf of children who are bringing lawsuits against their physicians in ninety-five percent of these cases. Approximately one-third of his income comes from medical legal work.

III

Plaintiff's second expert was Dr. Melvyn J. Ravitz, a specialist in obstetrics and gynecology. Before Dr. Ravitz took the stand, the trial court heard arguments from both sides about whether or not Dr. Ravitz should be permitted to testify that he donates his expert witness compensation to charity. Defendants objected to this testimony, arguing that it had no relevance and that any possible probative value was outweighed by its prejudicial effect. Plaintiffs responded that the evidence was admissible to bolster the witness's credibility under N.J.R.E. 607. The trial court found this area of inquiry inadmissible and stated:

[I]t's an interesting question, it's a close question, but he is still getting paid and then he has the luxury, the benefit, the ability to then turn around and give it to a group or organization he favors and gets the pleasure of being altruistic. It's hard to be purely altruistic because you will, you always derive some satisfaction from doing something, so plus, so to me he's getting paid. What you choose to do with your money thereafter I think it just invokes 403 issues, but I don't think that it's relevant. He's still being paid and whether he chooses to buy a new car or give it to charity, it's still his choice, that's what he is getting satisfaction from, probably a better word.

Dr. Ravitz testified at length on the question of whether the treatment administered to Kimberlee during the delivery deviated from the applicable standard of care. In his opinion, "the management of the delivery process fell beneath the standard of care and, hence, was negligent resulting in a permanent injury" to Joseph. He concluded that Silverthorn deviated from the standard of care when she "applied excessive traction to the baby's head in delivering the anterior shoulder, the left shoulder, which was impacted under the pubic symphysis"; this force "stretched the brachial plexus of [Joseph] resulting in" an Erb's palsy.

In Dr. Ravitz's opinion, when shoulder dystocia is encountered the delivery team can use various maneuvers to free the shoulder, including the McRobert's maneuver, as used here by Silverthorn. In this scenario, it is reasonable to apply "gentle downward traction" to guide the baby's shoulders out. Here, Silverthorn improperly used "excessive lateral traction," resulting in the injury sustained by the infant. Dr. Ravitz also opined that there were no intrauterine events which could have caused this injury. Although intrauterine events such as, a septate uterus or amniotic fluid bands could cause a brachial plexus injury internally, neither of these conditions were present here.

On cross examination, Dr. Ravitz testified that as an expert ninety percent of the time he represents plaintiffs. He conceded that there are medical articles which opine that the "mere impaction of the shoulder on the [pubic] symphysis can cause Erb's palsy." Thus, even if a doctor "does everything right" a baby could still have a permanent Erb's palsy injury. He also acknowledged that no one saw Silverthorn apply excessive traction.

IV

Against this limited factual recitation, we will now address plaintiffs' arguments. We start by reaffirming certain principles which will guide our analysis. "The determination of an expert's competency to testify and of the sufficiency, as distinguished from the weight of the testimony, is primarily for the discretion of the trial judge." Fantini v. Alexander, 172 N.J. Super. 105, 109 (App. Div. 1980). "A court's witness-qualification decision is subject to essentially an abuse-of-discretion standard of review and will only be reversed for 'manifest error and injustice.'" State v. Jenewicz, 193 N.J. 440, 455 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)). Here, the trial judge found that Dr. Adler was not qualified to testify about: (1) "specific actions someone might have taken in the delivery room," including movements of the baby's head; and (2) whether or not Joseph's injuries could have been caused by intrauterine events. With respect to the first limitation, the trial court permitted Dr. Adler to testify that the injury occurred after the delivery of Joseph's head and that it was caused by "efforts to free [Joseph's] shoulder" which ripped and tore his nerves. He simply could not testify about specific actions taken by Silverthorn, because such testimony entered the area of deviation. With respect to the second limitation, which prohibited Dr. Adler from testifying about intrauterine events, the court found that Dr. Adler was not qualified to opine in this area because "what is going on in utero" is an area best addressed by an obstetrician.

We discern no legal error in this approach. See Crespo v. McCartin, 244 N.J. Super. 413, 420-21 (App. Div. 1990). Dr. Adler was given wide latitude to discuss the details of the child's injuries, including describing, from a medical text, how those injuries ordinarily occur. He was permitted to explain the forces necessary to cause this traumatic injury to the nerves and shoulders. It must also be emphasized that plaintiffs presented their case on liability through the testimony of Dr. Ravitz. Thus, their case on deviation went to the jury unhampered by this ruling.

With respect to the limitation placed on Dr. Ravitz's testimony concerning his charitable contribution of his expert witness fees, we discern no abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)).

Affirmed.

 

Warren Hospital was initially named as a party defendant. Plaintiffs voluntarily dismissed the claims against the Hospital.

(continued)

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A-0937-07T3

July 30, 2008