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Morlino v. Medical Center of Ocean County11/15/1996
The opinion of the court was delivered by
HAVEY, P.J.A.D.
In this medical malpractice case, defendant Jose Dugenio, M.D., prescribed Ciprofloxacin, an antibiotic, to plaintiff who was eight months pregnant. Plaintiff's fetus died one day after plaintiff ingested the drug. She sued defendant Dugenio, Flavius Thompson, M.D., her obstetrician, and the Medical Center of Ocean County, seeking damages for severe emotional distress as a result of the death of the fetus. A jury returned a unanimous verdict in favor of defendants.
On appeal, plaintiff argues that the trial Judge erred by: (1) refusing to instruct the jury that it could consider a violation by Dr. Dugenio of warnings included in the Physicians' Desk Reference (PDR) as evidence of Dr. Dugenio's negligence; (2) giving the "exercise of judgment" instruction to the jury; and (3) refusing to instruct the jury that the testimony of a single witness may be sufficient to convince the jury of an essential element of plaintiff's claim. We affirm.
Plaintiff's due date was April 6, 1990. Her pregnancy was free of complications other than a minor urinary tract infection, upper respiratory infection and vaginitis. On March 20, 1990, plaintiff went to the emergency room of Ocean County Medical Center in Point Pleasant, seeking treatment for a sore throat. Dr. Dugenio, an emergency room physician, took a history from plaintiff. He noted that she was eight months pregnant and had visited the emergency room approximately two weeks earlier on March 5, 1990, complaining of a sore throat, congestion and swollen glands. According to hospital records, on plaintiff's March 5, 1990 visit, she was diagnosed as suffering from acute pharyngitis (sore throat), and was given a prescription for amoxicillin, an antibiotic.
Dr. Dugenio examined plaintiff and ordered blood tests and a throat culture. After examining the blood work and noting the resurgence of plaintiff's previous symptoms, Dr. Dugenio suspected a bacteria known as hemophilus influenzae as the primary cause of plaintiff's condition. He was concerned with the possibility of serious complications. Consequently, Dr. Dugenio administered a 500 milligram pill of Ciprofloxacin to plaintiff. Dr. Dugenio selected Ciprofloxacin because he feared that the hemophilus influenzae bacteria could lead to other illnesses which may pose a serious threat to both plaintiff and the fetus.
The next day, on March 21, 1990, plaintiff was examined by her obstetrician, Dr. Thompson. During the examination, a sonogram revealed fetal demise.
Dr. Steven Clark, plaintiff's expert in obstetrics and maternal/fetal medicine, testified that plaintiff had a severe reaction, known as anaphylaxis, to the Ciprofloxacin, causing low blood pressure and low oxygen intake. As a result, the fetus was deprived of oxygen and blood flow, ultimately causing its demise. It was his view that Dr. Dugenio deviated from the accepted standard of care when he administered Ciprofloxacin for a sore throat to a pregnant patient.
During his testimony, Dr. Clark referred to the following warnings about the use of Ciprofloxacin contained in the PDR:
CIPROFLOXACIN SHOULD NOT BE USED IN CHILDREN OR PREGNANT WOMEN. The oral administration of ciprofloxacin caused lameness in immature dogs. Histopathological examination of the weight-bearing joints of these dogs revealed permanent lesions of the cartilage.
The PDR also placed Ciprofloxacin in "Use-In-Pregnancy Category C," which means:
Risk cannot be ruled out. Human studies are lacking, and animal studies are either positive for fetal risk, or lacking as well. However, potential benefit
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