Chain of Command

On August 25, 2010, the Superior Court of New Jersey issued an Opinion in the medical malpractice case, Kowalski v. Palav (click here to view case). The Opinion raises the question of how a trial court should handle testimony that is relevant to the failure of a hospital staff to follow “chain of command” procedures but unduly prejudicial to the doctor who allegedly provided negligent treatment and care.

Plaintiff filed a lawsuit alleging among other things that the attending obstetrician was negligent for failing to perform a timely C-section which led to severe birth defects. Prior to the decision to perform a C-section, the attending nurse became worried about the viability of the baby due to her readings of the fetal monitoring strips. She appealed to the obstetrician to perform a C-section but he continued to believe it was not necessary. The attending nurse went up the chain of command to the charge nurse to overturn the decision of the obstetrician. The charge nurse did not bring the attending nurses concerns to anyone’s attention. As a result, the attending nurse sought out the director of nursing and requested she speak to the chief of obstetrics. The director of nursing did not. As a result, Plaintiff also filed a claim against the hospital alleging negligence due to the failure of the chain of command process to work as per hospital guidelines.

During trial, the defendants objected to the testimony of the attending nurse concerning her interpretations of the fetal heart rate after 9:01 p.m. The defendants alleged that the testimony would be highly prejudicial to the treating physician. The trial court permitted the testimony to establish the reason the attending nurse went up the chain of command but not to prove that the treating physician breached the applicable standard of care. The trial court suggested it would provide the jury with a limiting instruction consistent with the ruling. The Hospital objected to the plan and the trial judge asked the parties to reach a decision on what to do. When the parties could not reach a decision, the trial judge said “Let the chips fall where they will. I’ll say nothing.” A week later, the judge decided to issue the limiting instruction. Later, the attending nurse and the hospital were dismissed from the case. As a result, The trial judge instructed the jury that they could not consider the testimony of the attending nurse on the fetal monitoring strips after 9:01 pm for any reason.

The Superior Court reversed and remanded for a new trial. The Superior Court did recognize the relevance of the testimony of the attending nurse as to her factual observations but she was not qualified to present testimony that inferred that the physician deviated from the applicable standard of care. Since, the jury heard expert testimony concerning the fetal monitoring strips from Plaintiff’s experts and would hear such testimony from Defendant’s experts, the testimony should have been excluded as prejudicial. The Superior Court also noted there was sufficient non-prejudicial fetal heart rate evidence that exclusion of the prejudicial evidence would not affect the ability of Plaintiff to present that claim.

The Superior Court speculated that a contemporaneous limiting instruction would have been sufficient to quell the prejudicial effect of the testimony. However, the trial judge’s stated reason for the delay in providing a limiting instruction were unavailing. The trial judge stated he wanted to hear the obstetrician’s testimony about the fetal monitoring strips and determine whether the readings were reliable before offering the limiting instruction. The Superior Court was not persuaded since Plaintiff’s experts already testified to the unreliability of the fetal monitoring strips.

Author Marc Penchansky

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