SILVIA V. PEDERSON v. MANUEL ALVAREZ, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SILVIA V. PEDERSON,

Plaintiff-Appellant,

and

GUNNAR G. PEDERSON,

Plaintiff,

v.

MANUEL ALVAREZ, M.D.,

Defendant-Respondent,

and

YAAKOV ABDELHAK, M.D.,

Defendant.

__________________________________

January 17, 2014

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4280-09.

Douglas S. Grossbart argued the cause for appellant (Seigel Capozzi Law Firm, LLC, attorneys; Mr. Grossbart, on the brief).

Walter F. Kawalec, III, argued the cause for respondent (Marshall Dennehey Warner Coleman & Goggin, attorneys; Robert T. Evers and Mr. Kawalec, on the brief).

PER CURIAM

In this medical malpractice action, plaintiff Silvia Pederson asserted negligence and lack of informed consent claims against defendant, Dr. Manuel Alvarez, arising out of the care and treatment he provided to plaintiff during her pregnancy. After a five-day trial, the jury entered a verdict of no cause in favor of defendant on both claims. On October 26, 2012, the trial court denied plaintiff's motion for a new trial and, on December 21, 2012, the court denied her motion for reconsideration. Plaintiff has now appealed the October 26 and December 21, 2012 orders and contends that the jury's verdict on her informed consent claim represented "a miscarriage of justice under the law."1 We disagree and affirm.

We discern the following facts from the trial record. Plaintiff became pregnant. She testified that because of her diabetes, "advanced age[] and somewhat elevated blood pressure," her obstetrician referred her to Dr. Alvarez, a specialist in "high risk obstetrics," at Hackensack Medical Center. Plaintiff first saw Dr. Alvarez on November 14, 2006. She had regular monthly appointments with defendant's office throughout her pregnancy and often saw other doctors who were in Dr. Alvarez's practice, including Dr. Abdelhak.

In February 2007, plaintiff was hospitalized for "[a]pproximately one week" for "possible preeclampsia,[2] elevated blood pressure[.]" Plaintiff was also admitted to the hospital to manage her chronic hypertension and gestational diabetes on two other occasions in March and April 2007.

Plaintiff testified that, on the evening of April 30, 2007, she noticed a decrease in fetal movement. The next day, May 1, 2007, she went to Dr. Alvarez's office for a non-scheduled visit. On that date, plaintiff was thirty-six weeks and four days along in her pregnancy, which is technically three days short of the thirty-seven week period after which delivery would no longer be "premature."

Neither Dr. Alvarez nor any of his associates saw plaintiff on May 1, 2007. However, staff administered an ultrasound and a "biophysical profile," which measures the health of the fetus during pregnancy, was generated. A biophysical profile is a "real time sonographic evaluation of the activity and behavior" of the fetus. The test looks at four specific indicators: fetal tone, fetal breathing, fetal movement, and amniotic fluid level. Each of the four parameters receives a score from zero to two, with two being the highest. Thus, the best possible score is eight out of eight. Plaintiff's fetus scored eight out of eight on the profile.

The heart rate of the fetus was documented at 175 beats per minute. Plaintiff testified that staff "told me everything looked fine" and sent her home. Plaintiff had a regular appointment scheduled for the next day.

Later on May 1, 2007, Dr. Alvarez came to the office and reviewed plaintiff's ultrasound and biophysical profile. There was no indication in the report that plaintiff had complained of decreased fetal movement. Dr. Alvarez testified that it was not unusual for a patient to come in as an unscheduled "add on" or to undergo a biophysical profile and that plaintiff had underwent a number of similar profiles in the course of her pregnancy.

From reviewing the ultrasound, Dr. Alvarez found that there had been no change in the placenta from plaintiff's previous "ten or so ultrasounds[.]" He stated that "the placenta is not getting calcified and is not being run down." The report stated that the fetus's amniotic fluid level was in the fifty-first percentile, which was "completely normal[.]" Dr. Alvarez noted that the fetus had scored eight out of eight on the biophysical profile. He testified that "this was a normal biophysical profile, that it had the quality that the baby was safe at that time."

With regard to the fetus's heart rate of 175 beats per minute, Dr. Alvarez testified that this had no "significance" to him. The heart rate was measured from "a sonographic picture, which basically captures at the moment that the heartbeat is beating they just take a snapshot and the computer, the . . . ultrasound machine just gives you the number." This "snapshot" is not the fetus's baseline heart rate, which is usually measured with a different test that evaluates the heart rate over several minutes.

On cross-examination, plaintiff's attorney asked Dr. Alvarez whether "it's a problem" if the fetus's baseline heart rate is 175 beats per minute. Dr. Alvarez replied, "Not necessarily." The doctor explained:

There's a lot of things that [a]ffect the baseline of a baby. In any patient one of the things that could [a]ffect the baseline is medications. Anytime we take medications into our bodies, especially blood pressure medicine, thyroid medicine, or things of this sort, it could cross the placenta and create the baseline which could be lower of higher depending on what the underlying conditions are.

Plaintiff's attorney then asked, "Well doctor, it could be this and it could be that, but it also could be indicative of fetal distress. Correct?" Dr. Alvarez replied, "It could."

After completing his review, Dr. Alvarez signed the report. He did not contact plaintiff to discuss it. The next day, May 2, 2007, plaintiff saw Dr. Abdelhak for her regularly scheduled visit. She testified that she told Dr. Abdelhak that she had noticed decreased fetal movement. Dr. Abdelhak told her to return on May 9, 2007 for her final doctor's appointment. If she had not given birth by that time, the plan was to induce delivery on May 16. Plaintiff testified that, over the course of the week between May 2 and May 9, she did not "recall much" fetal movement.

On May 9, 2007, plaintiff returned to see Dr. Abdelhak. At that time, an ultrasound revealed the fetus had died. Dr. Abdelhak admitted plaintiff to the hospital and a caesarian section was performed. The cause of death was not conclusively determined.

Plaintiff brought suit against both Dr. Alvarez and Dr. Abdelhak, asserting medical malpractice and lack of informed consent. She settled her claims against Dr. Abdelhak prior to trial.

At trial, plaintiff presented the testimony of Dr. Robert Eden, who was qualified as an expert "in the fields of obstetrics/gynecology and maternal fetal medicine." Dr. Eden testified that "fetal tachycardia" occurs when a fetus's heart rate exceeds 160 beats per minute. When this condition exists, Dr. Eden stated that "it behooves us to evaluate the fetus, the entire fetus to make sure this baby isn't developing fetal distress."

Thus, Dr. Eden opined that the fetus's heart rate of 175 beats per minute on May 1, 2007 should have been a cause for concern for Dr. Alvarez when he reviewed the report. Dr. Eden stated that the heart rate might have simply been an "acceleration" at the moment the ultrasound was performed. However, it might have also represented the baseline heart rate of the fetus. Dr. Eden opined that plaintiff "should've been sent over to the hospital for a non-stress test to verify if [the heart rate] was reactive and there was no fetal heart rate decelerations." Dr. Eden testified that Dr. Alvarez's failure to "perform the appropriate test" increased the risk that the fetal condition would not be detected. Dr. Eden also opined that, while there was an increased risk in delivering a fetus before thirty-seven weeks, it would have been a risk worth taking here considering how close plaintiff was to the completion of her term.

Plaintiff testified that, if she had been told on May 1 or May 2, 2007 "that there was or might be a slight risk to [the fetus] delivering him a few days before term, but on the other hand the environment in the womb was going down hill," she "would have asked to be delivered." She stated:

In fact, when I went in on the 1st and 2nd I thought for sure after . . . having suffered so many hospitalizations and such a terrible pregnancy that I was going to be delivered because of the decreased fetal movement but the doctor reassured me everything was fine.

She reiterated that, on May 2, she had seen Dr. Abdelhak and that she did not see Dr. Alvarez on either May 1 or May 2.

Dr. Alvarez presented the testimony of Dr. Stuart Weiner, who qualified as an expert "in the field of obstetrics, gynecology, and maternal fetal medicine." Dr. Weiner testified that the fetus's biophysical profile score of eight out of eight on May 1, 2007 indicated "that this fetus is feeling well. In fact, it's probably the gold standard test of fetal well-being, because it has such a high accuracy." Dr. Weiner noted that there was no indication in the report that was provided to Dr. Alvarez for review that plaintiff had complained of decreased fetal movement. However, the perfect score on the biophysical profile would have been sufficient to allay any concern. Dr. Weiner explained that the profile demonstrated that there was fetal breathing movement and "there's body movement, it's twisting and turning. And there has to be extension and flexion of a major joint to get two points. So, it's moving its arms and legs. So that really kind of cancels out any concerns about mom perceiving decreased fetal movement."

Dr. Weiner stated that the ultrasound report indicating that the fetus's heart rate was 175 beats per minute was also not a cause for concern. He opined that "the standard of care" required that Dr. Alvarez do "[n]othing" based on the heart rate documented by the ultrasound. Such a heart rate was "[n]ot necessarily" high and could be seen as "reassuring, actually." Again, the heart rate shown in the report was from one moment in time and did not indicate that the 175 beats per minute rate was "persistent" or the fetus's baseline rate.

Dr. Weiner testified that a heart rate between 120 and 160 beats per minute is "normal." While he stated that a baseline heart rate of 175 beats per minute "[c]ould be" indicative of fetal tachycardia, Dr. Weiner opined that the normal biophysical profile contradicted such a finding. Dr. Weiner stated that a heart rate of 175 beats per minute as determined by the ultrasound "can be expected. It can be normal in a term fetus. . . . This fetus had fetal heart rates over 170 earlier in the pregnancy with normal biophysical profile[s] and normal follow up for weeks. So, that's not concerning."

Dr. Weiner testified that there was no reason to admit plaintiff to the hospital on May 1 for further evaluation or testing because the biophysical profile was "a very reassuring report, so there's really nothing else that needs to be done." He opined that the standard of care did not require that Dr. Alvarez contact plaintiff "to discuss delivery or possible delivery." He explained that the positive report meant "all's good[,] hold the course" and that there were "risks of harm from being delivered early." Plaintiff had not completed the full thirty-seven-week term and Dr. Weiner testified that "early delivery" is only recommended "if there's a reason. And in this case it was clearly no reason."

At the conclusion of the trial, the jury was asked the following question:

"Did Dr. Alvarez fail to provide . . . plaintiff with such information that a reasonable person in plaintiff's position would expect a doctor to disclose so that plaintiff might make an informed decision about the course of treatment?

The jury unanimously answered this question in the negative.3

Plaintiff filed a motion for a new trial, limited to the issue of informed consent. She argued that Dr. Alvarez should have contacted plaintiff on May 1, 2007 to advise her that the fetal heart rate of 175 beats per minute was a cause for concern and to review the risks and benefits of inducing the premature delivery of the fetus at that time. After hearing oral argument, Judge Charles Powers, Jr. denied plaintiff's motion in a written decision. The judge found:

that the jury's verdict was based on substantial evidence and that there [w]as no miscarriage of justice. The Plaintiff did not produce sufficient evidence or expert testimony that imposed an obligation on May 1, 2007, for [Dr. Alvarez] to obtain additional information on the condition of the Plaintiff or that a failure to review the file at that time was a deviation from the accepted standard of care. In addition, a jury could reasonably find that the Plaintiff did not adequately show that [Dr. Alvarez] failed in his obligation to the Plaintiff on May 1, 2007, to divulge information regarding her treatment so that the Plaintiff could make an informed decision regarding her treatment.

Thereafter, Judge Powers denied plaintiff's motion for reconsideration. This appeal followed.

On appeal, plaintiff argues that "[t]he jury's verdict on the informed consent question clearly and convincingly represents a miscarriage of justice under the law" and that "[t]he jury's verdict amounts to a deprivation . . . of a fair trial." Having reviewed these arguments in light of the record and applicable law, we affirm.

We begin with a recognition of the fundamental principle that jury trials are a bedrock part of our system of civil justice and that the factfinding functions of a jury deserve a high degree of respect and judicial deference. See, e.g., Caldwell v. Haynes, 136 N.J. 422, 432 (1994). In terms of its assessment of the relative strength of the proofs, a jury verdict is "'impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.'" Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).

Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Jury verdicts are thus "entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)); see also Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) ("Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice."), certif. denied, 186 N.J. 242 (2006).

In reviewing a trial judge's decision on a motion for a new trial, we view the evidence in a light most favorable to the party opposing the new trial motion. Caldwell, supra, 136 N.J. at 432. Moreover, we give substantial deference to the trial judge, who observed the same witnesses as the jurors, and who developed a "feel of the case." See, e.g., Carrino, supra, 78 N.J. at 361; Baxter, supra, 74 N.J. at 597-98; Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Applying these principles here, we are satisfied that the evidence was such that the jury could reasonably have found that Dr. Alvarez did not fail to provide plaintiff with sufficient and appropriate information to make an informed decision about the course of her treatment.

"[T]o sustain a claim based on lack of informed consent, the patient must prove that the doctor withheld pertinent medical information concerning the risks of the procedure or treatment, the alternatives, or the potential results if the procedure or treatment were not undertaken." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 548 (2002) (citing Perna v. Pirozzi, 92 N.J. 446, 460 (1983)). Plaintiff argues that Dr. Alvarez withheld pertinent medical information from her when he did not contact her after he reviewed the biophysical profile and found that the fetus's heart rate had been measured on the ultrasound at 175 beats per minute. Pointing to the testimony of Dr. Alvarez and Dr. Weiner that such a heart rate would "not necessarily" indicate that the fetus was in danger, plaintiff argues that the two physicians were "in effect admitting that at least in some cases this high heart rate could be a concern." Thus, plaintiff argues that Dr. Alvarez should have told her that there was a risk to the fetus if she continued her pregnancy to the conclusion of its term and advised her of the risks and benefits of inducing an earlier delivery. We disagree.

Contrary to plaintiff's contention, the jury was not required to consider the highlighted testimony in isolation. Dr. Alvarez testified that a baseline heart rate of 175 beats per minute would "[n]ot necessarily" be a problem. Here, however, a baseline heart rate was not established for the fetus on May 1, 2007. The heart rate was taken from the ultrasound and was only a "snapshot" of that moment in time. Because the heart rate of a fetus can fluctuate from moment to moment due to a wide number of factors, including fetal movement, Dr. Alvarez was not concerned with the heart rate when he reviewed the report and, therefore, there was nothing for him to report to plaintiff. The jury was certainly able to credit this testimony in finding that Dr. Alvarez did not withhold pertinent information from plaintiff.

Similarly, Dr. Weiner was testifying about a possible baseline heart rate of 175 when he indicated it "could be" indicative of fetal tachycardia. But, a baseline heart rate was not determined on May 1, 2007. Dr. Weiner testified that a heart rate of 175 beats per minute as documented by the ultrasound "can be expected" and "can be normal in a term fetus." He told the jury that the fetus "had fetal heart rates over 170 earlier in the pregnancy with normal biophysical profile[s] and normal follow up for weeks. So that's not concerning." Again, the jury was permitted to rely upon this testimony, rather than plaintiff's contrary argument, to conclude that Dr. Alvarez was not required to advise plaintiff that the fetus was in danger and to apprise her of the risks and benefits of inducing labor before the completion of her term.

Both Dr. Alvarez and Dr. Weiner also testified that any concern that might have been caused by the fetus's heart rate was allayed by the perfect score the fetus received in the biophysical profile. The profile demonstrated that the fetus was breathing and moving. According to Dr. Weiner, the profile was "reassuring" and he opined that there was "nothing else that need[ed] to be done" in terms of advising plaintiff of any possible change in "the course" of treatment. This evidence, if believed, was sufficient for the jury to conclude that plaintiff was given all of the information material to a reasonable patient's informed decision.

In sum, there was ample evidence in the record from which the jury could have concluded that Dr. Alvarez did not withhold any pertinent medical information from plaintiff and that he was not aware of any material risks that he was required to disclose to her. We therefore discern no basis for disturbing Judge Powers's decision denying plaintiff's motion for a new trial and her subsequent motion for reconsideration.

1 Plaintiff's husband, Gunnar Pederson, joined as a plaintiff in this action and asserted an emotional distress claim against Dr. Alvarez and his associate, Dr. Yaakov Abdelhak. On March 30, 2012, the court dismissed Mr. Pederson's claims against the two physicians after they moved for summary judgment and, on May 11, 2012, it denied his motion for reconsideration. While plaintiff's notice of appeal indicates she is also appealing from the March 30 and May 11, 2012 orders, she does not address these orders in her brief. We therefore conclude that the challenge to the March 30 and May 11, 2012 orders has been abandoned. Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002) (holding that an issue raised in notice of appeal but not briefed is abandoned).

2 Plaintiff's medical expert defined "preeclampsia" as "a hypertensive disorder: characterized by "elevated blood pressure," that occurs after "20 weeks" of pregnancy. The affliction "occurs in about one out of [twelve] pregnancies in the United States in women who are first[-]time pregnant."

3 The jury also unanimously found that Dr. Alvarez was not negligent and did not deviate from the standard of care in his treatment of plaintiff.