The Estate of MacKenzie Jennings, Etc. v. Diana Vitale, M.D.

• Court: New Jersey Superior Court Appellate Division
• Decided: March 12, 2025
• Docket: A-0307-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0307-23

THE ESTATE OF MACKENZIE JENNINGS, by its administratrix, MICHELLE JENNINGS,

Plaintiff-Appellant,

v.

DIANA VITALE, M.D., ASHLEY PAPAPETROU, D.O., VITALE WOMEN'S HEALTH OBSTETRICS AND GYNECOLOGY, LLC, ST. JOSEPH'S REGIONAL MEDICAL CENTER,

Defendants-Respondents,

and

PETER BALAZS, M.D.,

Defendant.

Argued December 18, 2024 – Decided March 12, 2025

Before Judges Marczyk and Paganelli. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0812-18.

Joseph M. Cerra argued the cause for appellant (Lynch Law Firm, PC, attorneys; Joseph M. Cerra, on the briefs).

Ryan A. Notarangelo argued the cause for respondents Diana Vitale, M.D. and Vitale Women's Health Obstetrics and Gynecology (Dughi, Hewit & Domalewski, attorneys; Rachel M. Schwartz, of counsel and on the brief; Ryan A. Notarangelo, on the brief).

Beth A. Hardy argued the cause for respondents St. Joseph's Regional Medical Center and Ashley Papapetrou, D.O. (Farkas & Donohue, LLC, attorneys; Evelyn C. Farkas, of counsel; Beth A. Hardy, on the brief).

PER CURIAM

Plaintiff, the Estate of Mackenzie Jennings (Mackenzie),1 by its

Administratrix Michelle Jennings (Michelle), appeals from the trial court's July

17, 2023 order granting defendants, Diana Vitale, M.D., Vitale Women's Health

Obstetrics and Gynecology, L.L.C., Ashley Papapetrou, D.O., and St. Joseph's

Regional Medical Center's (St. Joseph's) motions for summary judgment.

Plaintiff further appeals from the trial court's September 29, 2023 order denying

1 Because certain parties share a common last name, we refer to them in this opinion by their first names. We intend no disrespect.

A-0307-23 2 her motion for reconsideration. Following our review of the record and the

applicable legal principles, we reverse.

I.

This medical negligence case involves an alleged failure to order a timely

Cesarean section (C-section) based on abnormal fetal monitor findings

purportedly resulting in the infant, Mackenzie, sustaining a neurological birth

injury. The matter arises from the complications encountered during Michelle's

labor and delivery of Mackenzie in August 2014 at St. Joseph's. After her birth,

Mackenzie suffered numerous medical challenges including severe hypoxic

ischemic encephalopathy. Throughout her life, Mackenzie required intensive

at-home medical care and repeated hospitalizations, until her eventual death at

age four in November 2018.

On August 18, 2014, at 8:26 p.m., Michelle was admitted to St. Joseph's

by order of her private obstetrician, Dr. Vitale, who was not present at the time.

Dr. Papapetrou, a second-year resident, evaluated Michelle upon her admission

and apprised Dr. Vitale of Michelle's condition by telephone. Over the next

hour and a half, Dr. Papapetrou observed Michelle periodically, monitoring her

condition and checking the readouts of the fetal monitoring strips. Dr.

Papapetrou stated she checked Michelle's status "every five to ten minutes."

A-0307-23 3 Dr. Richard Luciani, plaintiff's standard of care expert, testified there were

fetal heart decelerations at 9:30 p.m. and at 9:38 p.m. He stated the fetal

monitoring strips recorded the next deceleration at 9:48 p.m., at which point, an

emergent C-section should have been called to expedite Mackenzie's delivery

by Dr. Papapetrou.

Dr. Luciani opined that when Dr. Papapetrou contacted Dr. Vitale at

approximately 9:58 p.m., "at that point," Dr. Vitale should have ordered an

emergent C-section. Specifically, he noted, "[Dr. Vitale] should have . . . moved

[the patient] to the [operating room] and been on her way to the hospital. If

there was [any other physician] available she should have told the resident . . .

expedite this with anybody that's around." He further noted that if the C-section

"had been called for appropriately at 9:48 [p.m.] . . . or shortly thereafter when

the phone call was initiated [to Dr. Vitale] and . . . the patient was moved to the

[operating room] . . . , obviously the C-section would have been started shortly

after [10:00 p.m.], the delivery obviously could have occurred within five to ten

minutes and the delivery would have occurred probably [fifteen] minutes

quicker."

When asked if a delivery at 10:15 p.m. would have been within the

standard of care, Dr. Luciani testified, "I think the baby getting out that late

A-0307-23 4 would have been a little bit longer than I would have anticipated. I would have

expected this baby to be delivered between 10:05 [p.m.] and 10:10 [p.m.] . . . .

So even if we push it to the limit at 10:10 [p.m.], the baby was delivered at 10:27

[p.m.]," causing a delay of seventeen minutes after 10:10 p.m., and twenty-two

minutes from 10:05 p.m.

Following Dr. Vitale's phone call with Dr. Papapetrou, Dr. Vitale stated

that she was on her way to the hospital. At some point thereafter, Dr. Papapetrou

asked a nurse to find the attending obstetrician on duty, Dr. Peter Balazs, to ask

him to examine Michelle's fetal monitoring strips. The nurse located Dr. Balazs

in the operating room, where he was completing a C-section on another patient,

and asked him to look at Michelle's strips. He testified he was first made aware

of Michelle's situation at approximately 10:12 p.m. He was concerned by

Mackenzie's fetal heart tracings. He had already delivered the baby for his

current patient, so he ensured there was no bleeding and directed his resident to

finish the surgery.

Dr. Balazs stated he proceeded to Michelle's room within one to two

minutes of viewing the strips. He then quickly assessed Michelle, and within

two minutes, determined that Mackenzie should be delivered by emergent C-

section. Dr. Balazs delivered Mackenzie at 10:27 p.m. Dr. Vitale arrived

A-0307-23 5 thereafter and took over from Dr. Balazs, who returned to check on his other

patient.

Plaintiff's causation expert, Dr. Stephen Thompson, opined in his report

that Mackenzie suffered a neurological injury and multiple other medical issues

due to "a delayed delivery of at least [twenty-five to thirty] minutes." He opined

Mackenzie was going to suffer these injuries unless she was delivered by 10:18

p.m., thirty minutes from the 9:48 p.m. deceleration.

In March 2018, plaintiff filed her initial complaint against defendants.

Following Mackenzie's death, plaintiff filed an amended complaint asserting

wrongful death and survival claims in 2019.2 Defendants subsequently moved

for summary judgment. Both motions asserted plaintiff failed to provide

sufficient causation testimony. In November 2020, the court 3 denied both

motions and allowed for additional discovery to be completed.

In May 2023, defendants renewed their summary judgment motions,

advancing similar arguments to those raised previously. On July 17, 2023, the

2 Dr. Balazs was originally named as a defendant but was later voluntarily dismissed by all parties. 3 The initial judge ruling on the summary judgment motions retired, and the motions at issue in this matter were decided by a different judge. A-0307-23 6 trial court granted both motions. On September 29, 2023, the court also denied

plaintiff's motion for reconsideration.

II.

On appeal, plaintiff argues she did not have the burden of proving a doctor

would have been available to perform the emergency C-section, if it had been

timely called, and that the court granted the summary judgment motions based

on issues not raised by defendants. Regardless, she contends the court erred in

concluding Dr. Balazs would not have been available if the C-section had been

timely called. Plaintiff maintains that because Dr. Balazs was never called,

pursuant to the timeframe established by Dr. Luciani, Dr. Balazs was unaware

of the grave danger Mackenzie faced until 10:12 p.m., when it was too late to

have performed a C-section in time to prevent her neurological injuries.

"[W]e review the trial court's grant of summary judgment de novo under

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard is

well-settled.

[I]f the evidence of record—the pleadings, depositions, answers to interrogatories, and affidavits—"together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact," then the trial court must deny the motion. R. 4:46-2(c); see Brill v. Guardian Life Ins.

A-0307-23 7 Co. of Am., 142 N.J. 520, 540 (1995). On the other hand, when no genuine issue of material fact is at issue and the moving party is entitled to a judgment as a matter of law, summary judgment must be granted. R. 4:46-2(c); see Brill, 142 N.J. at 540.

[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016).]

Reconsideration is "within the sound discretion of the [trial court], to be

exercised in the interest of justice." In re Belleville Educ. Ass'n, 455 N.J. Super.

387, 405 (App. Div. 2018) (alteration in original) (quoting Cummings v. Bahr,

295 N.J. Super. 374, 384 (App. Div. 1996)). When reviewing the denial of a

motion for reconsideration, we look for an abuse of discretion. See Branch v.

Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (citing Kornbleuth v. Westover,

241 N.J. 289, 301 (2020)).

In determining whether the trial court correctly interpreted the law, we

begin by "identifying the elements of the cause of action and the standard of

proof governing th[e] claim." Bhagat v. Bhagat, 217 N.J. 22, 39 (2014). "To

establish a prima facie case of negligence in a medical malpractice action, a

plaintiff usually must present expert testimony to establish the relevant standard

of care, the [medical provider's] breach of that standard, and a causal connection

between the breach and the plaintiff's injuries." Rosenberg v. Tavorath, 352 N.J.

Super. 385, 399 (App. Div. 2002) (citing Est. of Chin v. St. Barnabas Med. Ctr.,

A-0307-23 8 160 N.J. 454, 469 (1999)); see also Ptaszynski v. Atl. Health Sys., Inc., 440 N.J.

Super. 24 (App. Div. 2015). "Absent competent expert proof of these three

elements, the case is not sufficient for determination by the jury." Rosenberg,

352 N.J. Super. at 399.

Here, in granting defendants' motions for summary judgment,4 the court

noted, "[n]either . . . [plaintiff] nor . . . [d]efendants dispute that Dr. Balazs could

not have arrived earlier than he did and, in fact, he was dismissed from th[e]

case." Moreover, it also found that Dr. Balazs's "'unavailability until 10:10

[p.m.]' . . . is a key fact on which the case hinges" and that "even if [d]efendants

had called for [a C-section] [ten], [fifteen], or [thirty] minutes earlier, no

attending obstetrician was available to perform it." (emphasis added). We

conclude the court erred in finding it was an undisputed material fact that Dr.

Balazs would have been unavailable had he been contacted earlier regarding the

fetal heart tracings.

Initially, we observe Dr. Papapetrou's motion provided no citation to the

record for the purported undisputed material fact that Dr. Balazs would not have

4 The court observed defendants' motions were "in effect" reconsideration motions. Because we conclude the court erred in granting summary judgment, we need not address plaintiff's argument that defendants did not comply with the procedural requirements for a motion for reconsideration.

A-0307-23 9 been available had he been called earlier. 5 In fact, plaintiff objected to this

statement of fact based on Dr. Papapetrou's failure to properly cite to any portion

of the record. Moreover, Dr. Balazs never testified he would have been

unavailable to assist in performing an emergency C-section if contacted earlier.

Although he was performing a C-section when contacted regarding Mackenzie's

fetal monitor strips at or around 10:12 p.m., he was able to quickly respond to

the emergency.

In addition, it is not clear if Dr. Balazs was in surgery at 9:48 p.m. or 9:58

p.m. Even if he was in surgery, if shown the strips at an earlier time, it is not an

undisputed fact that he could not have had Michelle immediately prepped for a

C-section so that she would have been ready for surgery at an earlier point in

time. As Dr. Luciani noted, if Dr. Balazs had been called at 9:48 p.m. or 9:58

p.m. and advised there was a need to perform an emergent C-section, he could

have moved Michelle to the operating room to "get the process going" so as not

to waste another five or ten minutes. Because this was not done, he opined "time

was wasted." Furthermore, Dr. Luciani testified that it is not clear if there may

5 Likewise, Dr. Vitale's statement of material facts contains virtually no reference to any part of the record for the vast majority of its statement of undisputed facts, and the limited times she does refer to the record, she only makes reference to an entire deposition transcript, with no citation to a page or line number, contrary to Rule 4:46-2. A-0307-23 10 have been someone else other than Dr. Balazs available to do an emergency C-

section.

Dr. Balazs was not contacted until 10:12 p.m., which was after the

timeframe Dr. Luciani opined the C-section should have been completed.

Moreover, it was beyond the time when it would have been possible for Dr.

Balazs to have completed the C-section prior to 10:18 p.m., which Dr.

Thompson opined was the "point of no-return."

Viewing the facts in a light most favorable to plaintiff, as we must for the

purposes of summary judgment, we conclude the trial court erred in granting

summary judgment. The court accepted defendants' argument regarding Dr.

Balazs's unavailability when it was not an undisputed fact in the record. This,

in turn, led the court to improperly grant defendants' summary judgment motions

notwithstanding plaintiff's experts' testimony. When expert testimony shows

"there are circumstances present from which a reasonable [person] could find

that the [defendants'] want of due care was more likely the probable cause [of

the victim's injury,] the issue of liability must go to the jury for dete rmination."

Bondi v. Pole, 246 N.J. Super. 236, 240 (App. Div. 1991) (quoting Germann v.

Matriss, 55 N.J. 193, 208 (1970)).

A-0307-23 11 Because we determine the court should not have granted defendants'

motions for summary judgment, we need not address its order denying plaintiff's

motion for reconsideration. However, we add the following.

The court noted in its reconsideration decision: "There has been no

specific testimony about the cause of the infant's . . . medical problems."

Moreover, it noted Dr. Thompson "conceded" that the severe anemia

experienced by Mackenzie could have caused all her findings exhibited at birth,

and these conditions could "be seen as a consequence of the massive fetal

maternal hemorrhage that occurred." However, Dr. Thompson testified,

unequivocally, that Mackenzie's deficits "were not related to [the] fetal maternal

hemorrhage." Rather, he testified she sustained hypoxic ischemic

encephalopathy as a result of the delay in her delivery. Accordingly, Dr.

Thompson's purported concession should not have formed a basis for the court's

decision on reconsideration.

Regarding the medical causation issue, Dr. Thompson opined Mackenzie

suffered a neurological injury and multiple other medical issues because of "a

delayed delivery of at least [twenty-five to thirty] minutes." Dr. Thompson was

asked during his deposition:

A-0307-23 12 Q. So what I'm asking you is if this baby were born five minutes earlier, would the outcome be the same?

A. Yes.

Q. If the baby was born ten minutes earlier, would the outcome be the same?

A. Most likely, yes, but it's impossible to know. We are not going to be able to know. We can have this -- go ahead.

Q. All right. So, if the baby were born [fifteen] minutes earlier, more likely than not would the outcome be the same?

Q. If the baby were born [twenty] minutes earlier, more likely than not would the outcome be the same?

Q. If the baby were born [twenty-five] minutes earlier, more likely than not, would the outcome be the same.

A. Hang on one second. I wrote [twenty-five] to [thirty] minutes earlier. So at [twenty-five] minutes or longer -- [twenty-five] minutes or more, we might have had a better outcome. We don't know. I wrote [twenty-five] to [thirty] minutes. I can't give you a better answer than what's in my report.

A-0307-23 13 Dr. Papapetrou contends this testimony suggests that Dr. Thompson

opined that "for this baby to have had any chance of a better outcome, she had

to be delivered . . . by 10:02 [p.m]." Dr. Papapetrou states that because Dr.

Balazs was purportedly unavailable, and given Dr. Luciani's standard of care

testimony, the earliest the baby could have been delivered would have been

between 10:05 p.m. and 10:10 p.m., "which is outside Dr. Thompson's window

of opportunity."

However, earlier in the deposition Dr. Thompson was asked: "And your

opinion in this case that an earlier delivery by [thirty] minutes . . . would have

changed the outcome, is based on the MRI report?" He responded:

No. No. I'm not basing my opinion only on the MRI report . . . . What I'm saying is that we know that this baby had abnormal strips [thirty] minutes prior to delivery. . . . [T]he thirty minutes prior to the baby being delivered . . . during which the baby was severely hypotensive, that period of time was sufficient to result in a partial prolonged pattern of hypoxic ischemic injury.

Moreover, Dr. Thompson noted in a supplemental certification that

defendants misconstrued his testimony and his causation opinion is not based

"on the fact that an earlier delivery by [thirty] minutes would have changed the

outcome." He explained that his opinion was based on a calculation of the

twenty-five to thirty-minute period from the observation of the abnormal fetal

A-0307-23 14 strip at 9:48 p.m. Specifically, he noted "Mackenzie was going to suffer her

injuries if she was not delivered by 10:18 [p.m.], the [thirtieth] minute after 9:48

p.m.," and that Mackenzie was not delivered until 10:27 p.m.—thirty-nine

minutes after the abnormal strips at 9:48 p.m., which he characterized as the

"point of no-return." He further emphasized his opinion does not start at the end

of the period to which Dr. Luciani testified.

We are satisfied Dr. Thompson's deposition, read in conjunction with his

report and certification, coupled with the testimony of Dr. Luciani, creates a fact

issue regarding the issue of proximate cause that must be addressed by a fact

finder and cannot be resolved on summary judgment. In the context of a

summary judgment motion, the judge does not weigh the evidence, or resolve

credibility disputes. These functions are uniquely and exclusively performed by

a jury. Parks v. Rogers, 176 N.J. 491, 502 (2003); Brill, 142 N.J. at 540. We

have previously noted that a credibility issue requiring a jury determination is

raised by a witness's inconsistent statements, and a judge may not decide which

of the conflicting versions is more credible. Conrad v. Michelle & John, Inc.,

394 N.J. Super. 1, 14 (App. Div. 2007). Accordingly, the trial court erred in

granting defendants' summary judgment motions and denying plaintiff's motion

for reconsideration.

A-0307-23 15 Reversed.

A-0307-23 16