Medical Malpractice Case of the Month
October 1999

Plaintiff Angela Morlino visited the emergency room at the Point Pleasant facility of the Medical Center of Ocean County ("Medical Center"), complaining of a sore throat. Morlino received a prescription for amoxicillin, an antibiotic in the penicillin family. Two weeks later, when she was eight-and-one-half months pregnant, Morlino returned to the Medical Center complaining of the same condition. The emergency room physician, Dr. J. Dugenio, diagnosed her condition as a sore throat and ordered a variety of tests. Two days later, the results of Morlino's throat culture confirmed the presence of a bacteria that was resistant to numerous antibiotics, including penicillin. Before receiving those results, Dugenio consulted the Physicians Desk Reference ("PDR") regarding the drug Ciprofloxacin ("Cipro"). The PDR contained a warning against using Cipro for children and pregnant women but stated that potential benefits may justify the potential risk. Based on these warnings, Dugenio believed that he should prescribe Cipro for a pregnant patient only if the potential benefit to the patient outweighed the risk of harm to her and the fetus. In the instant case, Dugenio was concerned that if the bacteria causing Morlino's condition was left untreated, it could lead to a more serious illness for both Morlino and her fetus. Dugenio concluded that the potential risk to the fetus posed by prescribing Cipro outweighed the risks of more serious illnesses to Morlino and her fetus. Without warning Morlino of the potential risks, Dugenio have Morlino a 500 milligram Cipro pill and a prescription for 250 milligrams of Cipro. The following day, Morlino's obstetrician was unable to detect a fetal heartbeat during a routine examination and a sonogram revealed that the fetus had died.

Morlino sued Dugenio, the Medical Center and her obstetrician in a New Jersey trial court, claiming that the ingestion of Cipro had caused her to suffer an allergic reaction that caused the fetus' death. At trail, plaintiff's counsel sought admission of the PDR warning as evidence of Dugenio's standard of care. Plaintiff also requested an instruction modifying Model Jury Charge 5.36 (A), which pertains to the role of judgment in the practice of medicine. The trial court denied each request, and the jury returned a verdict in favor of defendants. Plaintiff appealed.

The New Jersey Superior Court, Appellate Division, held that the trial court did not err by refusing to instruct the jury that it could consider the PDR references, along with expert testimony, to define the standard of care. However, the appellate criticized the trial court's use of the Model Jury Charge 5.36(A) "exercise of judgement" instruction. Nevertheless, the appeals court declined to reverse the judgment for defendants because the Model Charge was in accord with prior case law. The panel also noted that the instruction did not prejudice Morlino, given the compelling evidence that Dugenio conformed to the prevailing medical standards by weighing the risk of administering Cipro against its benefits. Plaintiff appealed.

The New Jersey Supreme Court held that the trail court did not commit reversible error in refusing to read to the jury the two warnings in the PDR because PDR entries do not, as a matter of law, establish the standard of care for negligence. The high court stated that a jury may consider PDR references when they are supported by expert testimony to determine the appropriate standard of care in a medical malpractice case, but because the drug manufacturers do not design PDR entries to establish a standard of medical care, the evidence must be accompanied by expert testimony. The supreme court ruled that the physician's failure to adhere to PDR warnings does not, by itself, constitute negligence, and held that PDR references alone do not establish that standard of care.

The supreme court also ruled that the trail court did not commit reversible error in charging the jury in accordance with Model Jury Charge 5.36 (A), because, when read in its entirety, the charge did not have the capacity to mislead the jury. The court stated the Model Jury charge 5.36 (A) as a whole correctly describes the relationship between judgment and the standard of care and does not suggest that a physician is immune from liability as long as he or she does his or her best. However, the high court found one sentence in the Model Charge was problematic - "[t]he physician cannot be held liable if, in the exercise of his judgment, he nevertheless made a mistake." The high court also criticized the Model Charge for its repetitive use of the term "exercise of judgment." The supreme court remanded Model Jury Charge 5.36(a) to the Supreme Court Committee on Model Jury charges to determine whether fewer than eleven references to judgment would adequately communicate to the jury that medicine is not an exact science and that physicians and surgeons must exercise judgement. The high court opined that because of its potential to confuse the jury, the revised charges should eliminate the sentence suggesting that a doctor is not liable for a mistake that results form the exercise of judgement. The high court affirmed the appeals court's judgment as modified.

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