David Breymeier was born March 21, 2000, weighing five pounds, six ounces, slightly small for his gestational age, like the oldest of the parents’ other children, but healthy with excellent Apgar scores. A little less than an hour after birth, however, David was observed by hospital staff to have a blood sugar reading of twenty-nine, with forty-five being normal. Fifteen minutes later, the reading had dropped to twenty-four. A half hour after that reading, nurses fed David Similac formula, and his blood sugar rose to thirty-four. A half hour after that, his sugar level had risen to fifty-one. David’s last blood sugar reading, a little more than two hours after his birth, was forty-seven. Low blood sugar readings in the first couple of hours after a baby’s birth are typical.

David’s mother testified that the defendant pediatrician said “nothing about low blood sugar, nothing about jaundice, no instructions on anything, just to call [his office] in two weeks . . . to make the two-week appointment for David.”
She testified she thought she was “taking home a healthy baby” and “had no concerns.”

A couple of days after arriving at home with David, the mother testified she took David directly to the NIC unit at the hospital, as instructed by the defendant’s colleague. The neonatologist who treated David on his readmission, Jane Ierardi, testified David had a seizure shortly after admission while a nurse was trying to establish an IV line, and his glucose level was twenty. She testified her note from that day stated, “Mom reports he fed poorly at home and refused all breastfeeding attempts for the 18 hours prior to admission.” Dr. Ierardi confirmed her assessment from that date — that David was “a three-day-old term, small for gestational age male with hypoglycemia [and] dehydration,” which was “likely secondary” to “[l]ack of receiving any nutrition or fluids by mouth.”

David’s treating neurologist, David Clancy, testified that David’s neonatal hypoglycemia caused an acute brain injury three days after his birth, resulting in chronic static encephalopathy, which in David’s case includes serious cognitive deficits, visual impairment and a seizure disorder, “significantly impair[ing] his ability to ever live independently.” Dr. Clancy conceded, however, on cross-examination that David demonstrated no signs of hypoglycemia before he was discharged from the hospital two days after he was born.

The New Jersey medical malpractice jury, by a vote of seven to one, found the defendant pediatrician was negligent and that he deviated from the standard of care. The jury also found, however, by the same vote count, that plaintiffs did not prove defendant’s negligence increased the risk of harm to David from his pre-existing condition. The plaintiffs appealed.

The Superior Court of New Jersey Appellate Division held in its September 12, 2023 Per Curiam opinion: “Our review of this extensive record convinces us the trial court was correct in finding the jury could have reasonably concluded based on Dr. Herzlinger’s testimony that defendant was negligent in failing to order additional glucose testing, but that such testing would not have reduced David’s risk of harm in light of Dr. Lorenz’s testimony that David’s hypoglycemia did not arise until after discharge, when he fed poorly or not at all overnight. The jury could also have reasonably credited Dr. Lorenz’s testimony that defendant’s discharge instructions were consistent with the standard of care. Thus, we reject plaintiffs’ claim that the verdict was hopelessly inconsistent, resulting in a miscarriage of justice.”

Source Breymeier v. Virtua Health, Inc., Docket No. A-0964-21.

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