ESTATE OF RUBEN TORRES JR. et al v. UNITED STATES OF AMERICA et al, No. 1:2016cv02232 - Document 76 (D.N.J. 2017)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 12/19/2017. (tf, )
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ESTATE OF RUBEN TORRES JR. et al v. UNITED STATES OF AMERICA et al Doc. 76 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY Kelli Torres and Ruben Torres, Sr., Individually an d as Adm inistrators Ad Prosequendum of the Estate of Ruben Torres, J r., Deceased , Plaintiffs, v. United States of Am erica, Tracy Shebah, D.O., Ashley N. Long, D.O., Kenneth Poppen, D.O., Sara E. Clym er, D.O., Rachel Morin-Rayburn, D.O., J essica Balkem a, D.O., Crystl Dooley, R.N., Brittany Orzechowski, R.N., Betina Afan ador-Perez, R.N., Ryan Federico, R.N., Gina Giuliani, R.N., Eric M. Bonifield, M.D., Tam m y L. Sheppard, R.N., Inspira Medical Centers, Inc., Inspira Medical Centers Vineland, Inspira Health Network, Rowan University School of Medicine, Cum berland Ob/ Gyn. Defendants. : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : Hon. J oseph H. Rodriguez Civil Action No. 16-0 2232 OPINION This is a m edical negligence action arising out of Defendants’ alleged m ism anagem ent of Plaintiff Kelli Torres’s labor resulting in the delayed delivery of Ruben Torres, J r. who died four days after his birth. It is presently before the Court on m otions for partial sum m ary judgment filed by Defendants regarding Plaintiff Ruben Torres’s claim for em otional 1 Dockets.Justia.com distress damages. Defendants argue that partial sum m ary judgment is warranted because Mr. Torres did not im m ediately connect any act of m alpractice with his baby’s injuries. Plaintiffs argue that he did not have to m ake that connection to survive summary judgment. Oral argument was heard on the record on November 29, 20 17 and is incorporated here. For the reasons placed on the record that day, and those set forth below, Defendants’ m otions will be granted. Background Plaintiffs’ undisputed statem ent of facts is as follows. Kelli Torres was adm itted to Inspira Medical Centers, Inc., Vineland (Inspira Vineland) on October 6, 20 13 at or about 1916 for induction of labor. (See Com pl. at ¶¶113-114.) Induction started at or about 1945. (See Com pl., at ¶116.) The Plaintiffs’ baby, Ruben Torres, J r., was delivered 3 days later on October 9, 20 13 at 130 4. (See Com pl. at ¶299.) Plaintiffs’ Com plaint arises out of Defendants’ alleged m ism anagem ent of Mrs. Torres’s labor including m isinterpretation of the electronic m onitoring of the fetal heart rate, causing a delay in delivery and subjecting the fetus to a prolonged period of intrapartum hypoxia resulting from the fetus being deprived of oxygen during labor. (See Com pl. at Counts I, II and III.) In 20 13 at Inspira Vineland, the data generated by the 2 electronic fetal m onitor was displayed on a com puter m onitor. (Dep., Satinderpal Sandhu, M.D., 131:12-24.) Mr. Torres, who was present for the entire labor, was able to see the data as it was displayed on the m onitor. (Dep., Ruben Torres, 28:20 -23.) On m ultiple occasions, the m onitor lost its signal. (See Dep., Tracy Shebah Wurm , D.O., 10 0 :11-17.) Mr. Torres was aware that the m onitor was not functioning properly. (See, Dep., Ruben Torres, 41:2-8.) He also observed the nurses adjusting the m onitor on several occasions, which he found equally concerning. (Id. at 31:24-32:9 & 41:9-15.) Mr. Torres was aware that the m onitor was, at tim es, recording the m aternal heart rate in place of the fetal heart rate. (Dep., Ruben Torres, 49:16-22.) Additionally, on the m orning of October 9, Mr. Torres overheard the health care practitioners discussing the possible use of a scalp electrode, which is used as an alternate m eans of obtaining the FHR when there is difficulty in accurately m onitoring the FHR with an external m onitor. (See Dep., Ruben Torres, 42:6-14 and Dep., Tracy Shebah Wurm , D.O., 99:3-14, 99:8-14.) Mr. Torres recalled that his wife began pushing at about 10 :0 0 a.m. on the m orning of October 9, 20 13. (Dep., Ruben Torres, 38:22-39:4.) About an hour after his wife starting pushing, Dr. Franco cam e in and told her to stop pushing because the baby was not “descending all the way 3 down.” (Dep., Ruben Torres, 40 :11-21.) When his wife stopped pushing, they allowed her to sit up, which concerned him because earlier that m orning he had heard the health care practitioners discussing that when baby’s head was down low, they did not want the m om sitting up. (Dep., Ruben Torres, 44:9-17.) After Mrs. Torres laid down, the nurses were unable to obtain the heart rate with the external m onitor for nearly 30 m inutes. At that point, someone nam ed “Valerie,” who Mr. Torres assumed was a nurse, was brought in to try to obtain the heart rate. It was Mr. Torres’s im pression that “Valerie” was chosen because she was “supposed to be the best at [finding] a fetus’ heart rate.” (Id. at 46:9-47:2.) It was only after “Valerie” was unable to find the heart rate that “they []basically[] threw everything on top of Kelli and ran in the hallway.” (Id. at 47:21-23.) According to the records, this occurred at 1248, several hours after the EFM initially showed difficulty in differentiating between the fetal and m aternal heart rate, (see Dep., Ylbe Franco-Marx, M.D., 174:10 -17), and after the nurse had offered the resident the fetal scalp electrode as a m eans of gaining a better understanding of the fetal heart rate. Mr. Torres accompanied Mrs. Torres into the operating room . He was positioned by her head and in front of the privacy drape. Because he was 4 scared, he did not want to look over the drape. (Dep., Ruben Torres, 52:1823.) Within a few minutes of arriving in the operating room, he was asked to leave. (Id. at 52:18-53:4.) He went back to the room “and a little while later a nurse came to the room . . . and told [him ] that when [his son] was born . . . he had to be resuscitated, and that he’s not looking good for him, and that he’s in the NICU.” (Id. at 53:11-25.) The nurse was crying when she told Mr. Torres about his son. (Id. at 54:18-24.) The baby was born at 130 4. His Apgar scores were 1 at 1 minute, 1 at 5 m inutes, 1 at 10 m inutes, 1 at 15 m inutes and 1 at 20 m inutes. Based on his initial Apgar score of 1 at 1 m inute, Ruben Torres, J r. required resuscitation, which initially lasted 24 m inutes. (See Neonatal Resuscitation Record.) Shortly after, while still in the operating room , he required a second resuscitation. (See Neonatal Resuscitation Record.) He was transferred to the NICU at 1339. (See NICU Flowsheet.) Between 1339 and 140 0 , Ruben Torres, J r. underwent a num ber of medical interventions including placem ent of a central catheter, x-ray confirm ation of the catheter and the drawing of blood. (See Neonatal Flowsheet.) According to the records, Mr. and Mrs. Torres were first allowed to see their son sometim e between 140 0 and 1435. At that tim e, the baby was hooked up to lines and intubated. Although his eyes were open, Mr. Torres 5 testified “there was nothing there.” He was not m oving and he was unable to grasp Mrs. Torres’s finger. (Dep. Ruben Torres, 55:21-56:15.) Plaintiffs were told that their son had to be airlifted to Nem ours because he needed m ore care than Inspira Vineland had to offer. (Dep., Ruben Torres, 56:19-57:8.) Mr. Torres saw his son just before he left for Nem ours and was able to watch the helicopter as it left Inspira Vineland. (Dep., Ruben Torres, 57:16-19.) Two days after his birth, Ruben Torres, J r. was still unable to breathe on his own and remained m otionless. (See Nem ours Discharge Sum mary.) An EEG taken on October 11, showed an absence of brain activity. (Com pl. at ¶293.) Two days after that, on October 13, 20 13, on the physician’s recom mendations, Plaintiffs withdrew all life support. (See Com pl. at ¶294.) The baby died a few m inutes later in his parents’ arm s. (Com pl. at ¶294.) In his answers to interrogatories, Mr. Torres explained how his son’s death has affected him . Mr. Torres has had difficulty expressing himself with increased bouts of anger, headaches, crying spells, seclusion and an inability to participate in norm al activities. (Plaintiffs’ Answer to Interrogatory 18 of Defendants Shebah, Long, Poppin, Clym er, MorinRayburn and Balkem a.) 6 Sum m ary J udgment Standard “Sum m ary judgment is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law.” Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). Thus, the Court will enter sum m ary judgment in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any material fact by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “m aterial” if, under the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences 7 drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum mary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate time for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party 8 cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Discussion The issue before the Court is lim ited to whether Mr. Torres’s claim for em otional distress dam ages survives the Defendants’ m otions for summ ary judgm ent. In Frame v. Kothari, 560 A.2d 675 (N.J . 1989), the New J ersey Suprem e Court set forth the standard for an indirect claim for em otional distress resulting from a m edical m alpractice action. The Fram e standard is a m odification of the bystander liability standards articulated in Portee v. J affee, 417 A.2d 521 (N.J . 1980 ). “In an appropriate case, if a fam ily m ember witnesses the physician’s m alpractice, observes the effect of the m alpractice on the patient, and im mediately connects the m alpractice with the injury, that m ay be sufficient to allow recovery for the fam ily m ember’s em otional distress.” Fram e, 560 A.2d 675, 681 (N.J . 1989). 9 In that case, however, the parents’ claim s for em otional distress resulting from the m edical m isdiagnosis of their ten-m onth-old who had fallen down a set of stairs was disallowed because there was no close, tem poral connection between the m isdiagnosis and blood clot that led to the infant’s death. “Merely being on the scene may not be enough. The injury m ust be one that is susceptible to im m ediate sensory perception, and the plaintiff m ust witness the victim when the injury is inflicted or im m ediately thereafter.” Id. at 678. While the negligent physician was exposed to claim s for personal injuries and wrongful death, because hours separated the “m isdiagnosis, the m anifestation of injury to the patient, and the fam ily m em ber’s observation of the injury,” id. at 678, “[t]he chain of circum stances, although deeply tragic, were not ‘shocking.’” Id. at 681. In Carey v. Lovett, 622 A.2d 1279 (N.J . 1993), the New J ersey Suprem e Court established the standard for use in cases where parents seek dam ages for em otional distress resulting from medical m alpractice occurring during their baby’s birth. There, health care providers negligently treated the plaintiffs’ baby as deceased during labor and delivery, even though the baby was alive. The Court recognized that “[a]ny tim e a doctor negligently injures a child it is foreseeable that the parents will suffer em otional distress.” Id. at 1286. However, neither the norm al “worry and 10 stress” accom panying birth, nor “the upset that every parent feels when something goes wrong in the delivery room ” are sufficient to sustain a claim for em otional distress. Id. at 1288. Rather, the Carey Court noted “that the physical and em otional ties between m other and fetus so unite them that a physician should anticipate that any m alpractice that adversely affects the fetus will cause em otional distress to the m other.” Id. at 1286. Because “[t]he m aternal-fetal relationship bespeaks the genuineness of an otherwise-valid claim for em otional distress[,]” a m other need not be “contem poraneously aware of” or “shocked” by the m alpractice. Id. at 1287. However, the Court reiterated the “special requirem ents” applicable to indirect claim s involving m edical malpractice brought by the father, who is required to show that he had “contem poraneously observe[d] the m alpractice and its effects on the victim ” and “the injury to the victim was ‘shocking’ in the sense the father did not have tim e to prepare for the injury.” Id. at 1288. 1 “The special requirem ents for establishing an indirect The Third Circuit has interpreted Carey as holding, “a father should have his own claim if he experiences [severe em otional and m ental] distress, provided he stands in an intim ate fam ily relationship to the m other and the fetus, contem poraneously observes the m alpractice and the effect on the [victim ], and is shocked by the results.” Abdallah v. Callender, 1 F.3d 141, 147 (3d Cir. 1993). 1 11 claim for em otional distress that is based on m edical m alpractice are strictly applied.” Gendek v. Poblete, 654 A.2d 970 , 973 (N.J . 1995) (citing Fram e, 560 A.2d 675). In Gendek, the New J ersey Suprem e Court did not allow for parents’ em otional distress dam ages arising out of the death of their infant son who was born in apparent good health but developed profound respiratory problem s post-birth, resulting in the loss of oxygen to the brain and severe brain dam age, and eventually the rem oval of life support. In the 24 hours after the baby’s birth, the newborn’s coloring was abnormal several tim es. When Mrs. Gendek inform ed a nurse that her baby’s hands and feet were purple, the nurse responded, “he’s fine, honey, just cover him up with two blankets.” Id. at 971. Approxim ately 24 hours after the baby was born, nurses found him unresponsive and began cardiopulm onary resuscitation. Several nurses ran into Mrs. Gendek’s room , told her that her baby was having a problem, and that “she should go to the nursery at once.” She observed a m edical team huddled around her son, “pum ping his chest,” and a m inister was present. One of the nurses told her to call her husband and a fam ily priest, if she had one. Mrs. Gendek called her husband and told him to “com e to the hospital im m ediately because [the baby] was ‘not breathing.’” Id. at 972. 12 The baby’s heartbeat was restored. During the subsequent course of treatm ent, he was transferred to another hospital and back to the original m edical center. Doctors im planted perm anent ventilator and nutritive tubes in his body. Nurses’ notes from both facilities reflect that Mr. and Mrs. Gendek were constantly at their son’s bedside, where “they witnessed [him ]experiencing severe convulsions, undergoing suction treatm ent, treatm ent, and enduring num erous intravenous treatments, exam inations, and tests, including ice water in his ears, fingers down his throat, and poking of his eyes.” Id. Forty-five days after the baby’s birth, the Gendiks decided to withdraw artificial life support and their baby died. The Gendek Court noted that neither Mr. nor Mrs. Gendek observed any act of m alpractice; Mrs. Gendek observed only the non-negligent resuscitative efforts of the m edical team and Mr. Gendek arrived after the baby had been resuscitated. “More im portantly, neither Mr. nor Mrs. Gendek im mediately connected any act of m alpractice with [their baby’s] respiratory failure or the need to perform emergency m edical procedures.” Id. at 975. Sim ilarly, here, Mr. Torres has not shown that he contem poraneously observed the m alpractice and its effects on the victim and that he had been shocked by the results, as required by Carey and Gendek. The Gendek Court 13 acknowledged that “[m ]edical m alpractice giving rise to em otional-injury claim s can involve obstetrical m alpractice that occurs in the course of pregnancy with resultant serious or fatal injuries to the fetus or newborn and consequent severe em otional distress suffered by the parents.” Id. at 973. The Court insisted, however, “that an im m ediate, close, and clear involvem ent or connection be present between a person suffering em otional distress and the conduct of the professional healthcare providers whose fault has contributed to the grave or fatal injuries of a related loved one.” Id. at 976. While Mr. Torres was troubled as he observed the nurses adjusting the m onitor on several occasions, sim ilar to the efforts to resuscitate the Gendek baby, looking for a fetal heart rate was not negligent. Additionally, the record does not support a finding that Mr. Torres im m ediately connected any act of m alpractice with injury to his son. Conclusion For these reasons, and the concerns expressed during oral argument, Defendants’ m otions for partial summ ary judgment on Plaintiff Ruben Torres’s claim for em otional distress dam ages [37, 40 , 43] will be granted. An appropriate Order will issue. Dated: Decem ber 19, 20 17 / s/ J oseph H. Rodriguez J oseph H. Rodriguez U.S.D.J . 14
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