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| Awuku v. Zapiel, A-2195-14 (App. Div. 2017)
http://njlaw.rutgers.edu/collections/courts/appellate/a2195-14.opn.html Before Judges Hoffman, O'Connor and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0055- 10.
The Pandos Law Group, LLC, attorneys for respondent/cross-appellant Estate of Akingboju Gbayisomore, M.D. (Debra V. Urbanowicz-Pandos, of counsel and on the briefs; Patricia E. Voorhis, on the briefs). PER CURIAM Plaintiff Sitsofe Awuku appeals from a November 12, 2014 judgment of no cause of action dismissing her medical malpractice claim against Akingboju Gbayisomore, M.D. The case concerns the care received by plaintiff at Newark Beth Israel Medical Center (the Medical Center) in January 2008. Plaintiff arrived at the Medical Center after experiencing weakness and "wobbly" feelings. While there, she suffered a stroke leaving her left-side extremities paralyzed. While plaintiff sued seven other parties, she either dismissed or resolved her claims against those parties before trial began. At trial, plaintiff asserted that if defendant had administered a drug, tissue plasminogen activator (tPA), she would have realized a better outcome. The jury found defendant breached the applicable standard of care but determined this breach did not proximately cause plaintiff's ultimate harm. Plaintiff appeals, arguing primarily that the jury returned an "inconsistent" verdict, and that the inconsistency resulted from an improper instruction on proximate cause and/or incorrect wording of the jury verdict sheet. She argues the court further erred by not instructing the jury on medical records tampering, by limiting the testimony of her economic expert, and by committing other, but less significant, errors that combined to produce an unjust result. Defendant cross-appeals, asserting challenges to the sufficiency of plaintiff's affidavit of merit and the qualifications of plaintiff's sole medical expert. After reviewing the record in light of the applicable law, we conclude plaintiff's arguments lack substantive merit. We therefore affirm the judgment dismissing plaintiff's claim against defendant. We also dismiss defendant's cross-appeal as moot. I. We discern the following facts from the record. Plaintiff came to the United States from Ghana in 1992. She began working at the Medical Center in 1995 as a nursing assistant and became a unit secretary in 2000. While working at the Medical Center, she decided to enter nursing school, and, in January 2008, was close to completing her course work to become a licensed practical nurse. At that time, she was fifty-two years old. Plaintiff began to see defendant, a certified internal medicine specialist, as her primary care physician in 2007, when he treated her for headaches and a ringing in her head. On September 14, 2007, plaintiff woke feeling shaky, lightheaded, and "wobbly." She went to the emergency room at the Medical Center, where a doctor diagnosed her condition as a transient ischemic attack (TIA).2 Defendant did not assist in treating the TIA, but reordered her existing medications. After plaintiff recovered from the TIA, she continued to see defendant as her primary care physician. On January 9, 2008, plaintiff woke around 5:15 a.m. and felt the same "wobbly" feeling. She called a friend who lived nearby, and after taking a shower, called for an ambulance at 5:37 a.m. When emergency medical technicians (EMTs) arrived around 5:44 a.m., plaintiff told them that she "didn't feel [her]self" and wanted to go to the Medical Center. The EMTs transported plaintiff to the Medical Center in an ambulance. A report prepared by the EMTs stated plaintiff told them that when she woke, she was "unable to move" her left side. The report noted that when the technicians arrived, plaintiff was listing to the left side, exhibited facial droop on her left side, was experiencing weakness in her left extremities, and had garbled speech. A report by defendant dated January 9, 2008, added that plaintiff said she had "felt some heavy pauses 'in her ear'" the previous night before going to bed. At trial, plaintiff denied having garbled speech while speaking with the EMTs and saying she could not move her left side. Plaintiff regained movement in her extremities shortly after her arrival at the Medical Center, around 6:20 a.m. Thereafter, Dr. Susan Szapiel, a neurologist, ordered an electroencephalogram (EEG). Dr. Shelley Jones-Dillon testified she came to plaintiff's bedside around 7:00 a.m. Plaintiff told her that she felt "weak" but believed she had "fully recovered" at that time. Dr. JonesDillon gave plaintiff a strength test on both of her legs. She asked plaintiff to push back against pressure and to walk "heeland-toe." Plaintiff did not wobble when she walked, and Dr. JonesDillon told her she was "so strong." However, Dr. Jones-Dillon noted in a report that plaintiff had "four out of five" strength in her left leg, indicating some continuing weakness in that limb. According to Dr. Jones-Dillon, when she examined her, plaintiff had not been monitored long enough for a doctor to decide whether she had suffered another TIA or a stroke; if plaintiff's symptoms fully resolved within a short time, the diagnosis would be a TIA, but if the symptoms persisted, she would be diagnosed with having suffered a stroke. Dr. Jones-Dillon stated that at that time, she felt plaintiff "didn't qualify" to receive tPA because she "woke up with" her symptoms and these symptoms were "improving" but "not resolved." Around 10:00 a.m., plaintiff underwent the ordered EEG, which showed no symptoms of a seizure. Around noontime, plaintiff underwent a computed tomography (CT) scan of her head, at Dr. Szapiel's order. At approximately 12:30 p.m., plaintiff reported weakness and pain in her left arm. Dr. Jones-Dillon returned to her bedside and administered a grip test. Dr. Jones-Dillon discussed plaintiff's care with defendant, who was at plaintiff's bedside at 12:56 p.m. The two decided they needed to consult further with Dr. Szapiel. Dr. Jones-Dillon called Dr. Szapiel, who agreed to act as plaintiff's neurologist. Defendant testified in a deposition taken before his death that he performed a physical examination of plaintiff, during which he checked her ability to move, reflexes, and speech. Following this exam, around 1:15 p.m., defendant wrote orders for plaintiff to receive medication to control her high blood pressure, and lipid and sugar levels. At trial, plaintiff denied defendant saw her in the emergency room or at any time on January 9, 2008. At some point after undergoing the grip test with Dr. JonesDillon, plaintiff discovered she could not move her left arm; she shouted out, and a nurse, Dr. Szapiel, and "other doctors" came to her. At around 4:00 p.m., Dr. Szapiel entered an order to admit plaintiff to the intensive care unit (ICU). Her admission note described plaintiff's condition as an "[e]volving stroke." Defendant did not attend to plaintiff while she was in the ICU. Plaintiff testified that while in the ICU, no doctor gave her "any stroke medication," including tPA. Defendant testified that he discussed with Dr. Szapiel whether plaintiff was eligible to receive tPA after plaintiff's admission to the ICU, and determined she was "not a candidate for" the drug. Defendant said they came to this conclusion because "no one knows when her symptoms started" since she awoke with them, and she had therefore "exceeded the period or the window to give her [tPA]." Plaintiff testified she only learned she had suffered a stroke when defendant told her the next morning, January 10, 2008, after she left the ICU and staff moved her to a "regular floor." At that time, her left arm was "floppy" and she "couldn't move any part of [her] body." Plaintiff remained hospitalized until January 17, 2008, when plaintiff was admitted to Kessler Rehabilitation Center in West Orange. At that time, plaintiff could not stand up and had trouble eating. Plaintiff eventually returned home in March 2008. Thereafter, plaintiff received physical therapy three times per week on an out-patient basis. Plaintiff testified she could not return to work following her stroke. Since 2010, the only income she receives comes from Social Security Disability and pension payments. She described living alone and encountering daily problems dressing, doing laundry, and preparing food. She cannot drive. At the time of trial in 2014, plaintiff no longer used her "quad cane" to walk but needed to proceed very slowly. She could not flex the fingers of her left hand and could not use her left arm "for anything at all." As part of plaintiff's case, the jury viewed a de bene esse videotaped deposition of her medical expert, Dr. Mustapha AlChalabi, a specialist in emergency medicine. Dr. Al-Chalabi explained that an ischemic stroke, like that suffered by plaintiff, occurs when there is a lack of blood supply to the brain. Without proper blood flow, brain cells die due to inadequate oxygen, causing impairments, like paralysis. He described the drug tPA as a "thrombolytic" that breaks up clots obstructing blood flow to the brain, and is used to try and prevent cells from dying; however, a patient should not receive this drug if "the patient has a bleed" in the brain. Dr. Al-Chalabi explained the importance of initiating tPA within three hours of the onset of symptoms. He conceded that when a patient states she woke with stroke symptoms, that is "an absolute exclusion criteria for the use of tPA," because there would be no way to know what time the patient began to have symptoms. He acknowledged that administration of tPA, outside the three-hour "window" after the onset of symptoms, could harm the patient by increasing the chance of, or worsening, bleeding in the brain. Dr. Al-Chalabi opined that based on his review of the medical records surrounding her care on January 9, 2008, plaintiff suffered a TIA in the morning before coming to the Medical Center but made a "full recovery" from that event; thereafter, she suffered a separate stroke. He therefore stated plaintiff presented as an appropriate candidate for tPA at 12:56 p.m., when she experienced significant weakness on her left side, because the three-hour window from the onset of new symptoms began then. Dr. Al-Chalabi opined that plaintiff's medical records showed no other contraindications for the drug; therefore, if a new CT scan had shown no bleeding in her brain, she should have received tPA. However, Dr. Al-Chalabi admitted plaintiff awoke on January 9, 2008, with symptoms that could have been attributable to a stroke, and that the last time she was verifiably "in a normal neurological state" was before she went to sleep the prior night. He also conceded plaintiff's strength tests at the Medical Center showed a strength of "four over five" for her left leg, suggesting that she continued to experience some neurological deficiencies while in the emergency room. He therefore acknowledged he was not "sure" that plaintiff had not suffered a single "evolving stroke" that began at 12:56 p.m., or "waxing and waning stroke" that began before she awoke at 5:15 a.m. Dr. Al-Chalabi explained that studies have shown stroke patients who receive tPA have an increased likelihood of "improved recovery," meaning they "have a better outcome" compared to patients who do not receive the drug. A patient may not recover completely but may be stronger or better able to care for themselves. Dr. Al-Chalabi stated the administration of tPA to a patient with no contraindications for the drug represents a "standard of care" for treating a stroke. He opined defendant's failure to provide tPA to plaintiff constituted a deviation from the appropriate standard of care, and that this failure "proximately and seriously contributed to [her] . . . having to live with a lifetime of neurological deficit." Defendant presented the testimony of his internal medicine expert, Dr. Fong Wei, via a de bene esse videotaped deposition. Dr. Wei testified that an internist summoned to an emergency room to see a patient must evaluate the medical problems at hand, and then "gather a team of experts" who specialize in the treatment of those problems. The internist should treat conditions "that an internist should be able to manage," but may defer to more specialized doctors in the treatment of other conditions. Dr. Wei testified that in his experience, the diagnosis and treatment of a stroke, and specifically the administration of tPA, is not an internist's responsibility because it is not within the ambit of an internist's specialty. Dr. Wei testified that based on the medical records, he believed plaintiff experienced symptoms of a stroke that "waxed and waned" during her time in the Medical Center emergency room on January 9, 2008. He characterized this as an "evolving stroke," which improved but never fully resolved after plaintiff arrived at the Medical Center. Dr. Wei opined that defendant's care for plaintiff was "well within the standards of care" for an internist because defendant appropriately consulted with Dr. Szapiel, a neurologist, about plaintiff's symptoms. In addition, defendant provided plaintiff with medications for her high blood pressure and blood sugar, which were "the conditions that an internist should be able to manage." Defendant presented a second medical expert, Dr. Dara Jamieson, a neurologist; she opined there was "no stroke specific treatment" that could have been given to plaintiff on January 9, 2008, that "would have made any difference in her outcome." She explained the importance of administering tPA only "under appropriate circumstances" because of the risk of causing bleeding in the brain if given to ineligible patients. Dr. Jamieson testified that her review of the record led her to believe that plaintiff "had a stroke from the moment that she woke up," and that her symptoms had "waxed and waned" and "fluctuated" but never completely resolved. As a result, tPA was contraindicated because the last verifiable time plaintiff was "neurologically normal" was before she went to bed on January 8, over three hours before she was brought to the Medical Center and long before she experienced a worsening of symptoms around 12:56 p.m. on January 9. II. We first address plaintiff's argument the jury returned an "inconsistent" verdict, and that the inconsistency resulted from an improper instruction on proximate cause and/or an incorrect wording of the jury verdict sheet. At the outset, plaintiff's argument that the jury's verdict was "inconsistent" lacks merit. An appellate tribunal ordinarily should not "invade the constitutional office of the jury; it may not merely weigh the evidence where it is fairly susceptible of divergent inferences and substitute its own judgment for that of the jury." Hager v. Weber, 7 N.J. 201, 210 (1951). "It is only under exceptional circumstances that jurors are not trusted to act conscientiously." Williams v. James, 113 N.J. 619, 632 (1989) (citation omitted). As a result, a court should disturb a jury's verdict only if it finds that the jury "could not have reasonably used the evidence to reach its verdict." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997). A jury's verdict may be considered inconsistent if "there is no ready, logical or practical manner" in which different parts of the verdict "can be reconciled." JMB Enters. v. Atl. Emp'rs Ins. Co., 228 N.J. Super. 610, 616 (App. Div. 1988) (citations omitted). For example, in Roland v. Brunswick Corp., 215 N.J. Super. 240, 243-46 (App. Div. 1987), an appellate court found an inconsistency requiring remand where the jury found in response to one question on the verdict sheet that the plaintiff's negligence was not a proximate cause of his injuries, but in response to another question allocated 5% of the fault to him. To establish a prima facie case of negligence in a medical malpractice suit, a plaintiff must establish, through expert testimony, "(1) the applicable standard of care; (2) a deviation from that standard of care, and (3) that the deviation proximately caused the injury." Gardner v. Pawliw, 150 N.J. 359, 375 (1997) (internal citations omitted). Because a plaintiff must prove all three prongs to establish a claim, a jury finding of deviation without proximate cause is not inherently inconsistent, as plaintiff contends. Here, while the jury concluded that defendant's treatment of plaintiff was negligent, the jury could have concluded his negligence did not proximately cause the ultimate harm plaintiff sustained because she would have suffered the same injuries as a result of her stroke in any event. While we cannot discern the jury's exact reasoning from the verdict sheet, the jury could have reasonably assessed the evidence to find as it did. Sons of Thunder, supra, 148 N.J. at 415. The testimonial and documentary evidence showed that plaintiff woke on January 9, 2008, with weakness on her left side, and that she suffered a stroke at the Medical Center during which she lost sensation and movement in her left limbs. It would not have been illogical for the jury to conclude that the stroke would have caused the same harm to plaintiff even if she had received tPA, yet also conclude that the standard of care required defendant to administer the drug. We therefore reject plaintiff's argument that the jury returned an inconsistent verdict. Proximate Cause Instruction Although we do not find the verdict inconsistent, we nevertheless evaluate the jury instructions on proximate cause to ensure that an incorrect legal standard did not taint the jury's conclusion, as plaintiff argues. While plaintiff's counsel expressed some concern about how the court worded its causation instruction during a charge conference on October 15, 2014, after the full instructions were read to the jury on October 16, 2014, counsel stated he had no exceptions to the jury instructions as read. As a result, the plain error standard applies, and reversal is not warranted unless any error in the jury charge was "clearly capable of producing an unjust result." R. 2:10-2. "[A] jury charge must correctly state the applicable law, outline the jury's function and be clear in how the jury should apply the legal principles charged to the facts of the case at hand." Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002) (citation omitted). However, an incorrect jury charge constitutes reversible error "only if the jury could have come to a different result had it been correctly instructed." Ibid. An appellate court "must examine the charge as a whole, rather than focus on individual errors in isolation." Ibid. In a typical tort claim, the law requires "proof by a preponderance of the evidence that the injury complained of probably would not have occurred 'but for' the negligent conduct of the defendant." Gardner, supra, 150 N.J. at 377. However, proximate cause is difficult to prove under this standard where harm results from a combination of the plaintiff's preexisting medical condition and the defendant's negligent treatment of that condition, "because the preexisting condition itself serves as a 'but for' cause of the ultimate injury." Ibid. In such cases, a different and more flexible standard has been adopted. Evers v. Dollinger, 95 N.J. 399, 413 (1984) (citations omitted). In Scafidi v. Seiler, 119 N.J. 93, 108 (1996), the Court held that [e]vidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result. As with the but-for causation standard, the plaintiff bears the burden to establish proximate cause under this standard. Koseoglu v. Wry, 431 N.J. Super. 140, 162 (App. Div.) (citation omitted), certif. denied, 216 N.J. 4 (2013). In a medical malpractice case where the plaintiff had a preexisting condition, the jury is first asked whether, as a matter of reasonable medical probability, the defendant's deviation from the applicable standard of care "increased the risk of harm from the preexistent condition." Scafidi, supra, 119 N.J. at 109 (citations omitted). A plaintiff may present proof of what did occur, and also what might have occurred if the defendant had not deviated. Gardner, supra, 150 N.J. at 379. If the first part of the test is satisfied, the jury must next determine whether the deviation, in the context of the preexisting condition, was a "substantial factor" in bringing about the plaintiff's ultimate harm. Scafidi, supra, 119 N.J. at 109 (citations omitted). This inquiry requires that the deviation be "sufficiently significant in relation to the eventual harm as to satisfy the requirement of proximate cause." Greene v. Mem'l Hosp. of Burlington Cty., 299 N.J. Super. 372, 380 (App. Div.) (citations omitted), certif. granted, 151 N.J. 67 (1997) (remanding for reconsideration in the light of Gardner, supra, 150 N.J. 359). Conduct is a substantial factor for purposes of this standard "if it would lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense." Verdicchio v. Ricca, 179 N.J. 1, 24-25 (2004) (citation omitted). "[M]erely establishing that a defendant's negligent conduct had some effect in producing the harm does not automatically satisfy the burden of proving it was a substantial factor." Id. at 25 (citation omitted). While a plaintiff need not show that a defendant's deviation was the only or a primary cause of the harm for it to be considered a substantial factor, he or she must show that the negligent conduct played a role that was more than "remote or . . . inconsequential," and that instead it was "both relevant and significant in bringing about the ultimate injury." Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). In issuing an instruction on proximate cause following the Scafidi "substantial factor" standard, Model Jury Charge (Civil) 5.50E, "Pre-Existing Condition — Increased Risk/Loss of Chance — Proximate Cause" (2014), may be utilized. This charge "requires that the principles of law be charged with reference to the specific facts of the case." Komlodi v. Picciano, 217 N.J. 387, 416 (2014). The court should identify the plaintiff's preexisting condition or disease and the defendant's care that is alleged to be negligent. Id. at 416-17; Model Jury Charge (Civil) 5.50E. Failure to tailor a proximate cause instruction to the facts presented at trial constitutes reversible error "where a different outcome might have prevailed had the jury been correctly charged." Reynolds, supra, 172 N.J. at 289 (citation omitted). Here, on October 15, 2014, the court discussed its instruction on proximate cause with the parties. Plaintiff's counsel expressed concern that the jury would be confused by the use of the word "injury" in the model instruction, and would believe that plaintiff needed to show that defendant caused her stroke. The court stated that the proximate cause charge instructed the jury to consider whether any deviation from the standard of care was a substantial factor in causing the plaintiff to lose a chance of a better result. The court also stated that "this is a Scafidi case" involving a preexisting condition that was allegedly worsened by defendant's lack of proper care, and that the jury would be instructed accordingly. On October 16, 2014, the court issued its instructions to the jury. At the outset, the judge stated that plaintiff contended defendant was negligent in diagnosing and/or treating her and that "such negligence was a substantial factor in causing [her] to lose a chance of being cured and/or obtaining an improved outcome or quality of life," as discussed during the charge conference. Later, the court instructed that if the jury found defendant negligent, it also needed to find that his negligence was a proximate cause of the harm plaintiff suffered before it could impose liability. The court explained to the jury that it must decide "whether the plaintiff's injury is so connected with" defendant's alleged negligent actions that it would be "reasonable" for him to be held wholly or partially responsible. The court then stated plaintiff contended that she suffered damages as a result of defendant's care "after she suffered a stroke," specifically because "she was not administered the tPA." The court explained that plaintiff's stroke "by itself had the risk of causing [her] harm that she ultimately experienced," and stated that plaintiff claimed defendant's negligence "increased the risk of harm and contributed to her ultimate injury." The court then instructed the jury regarding the need to determine the extent to which plaintiff's injuries were caused by her pre-existing medical condition and by defendant's alleged negligence. The court went on to state that [t]o establish the defendant's negligence was a cause of her injuries or damages[,] [t]he plaintiff must first prove that the defendant['s] . . . negligence increased the risk of harm posed by [her] pre-existing condition. Second, the plaintiff must prove that the increased risk was a substantial factor in producing the ultimate harm or injury. The court explained that if defendant's negligence "was only remotely or insignificantly related to the ultimate injury or harm," then it would not constitute a substantial factor. The court further instructed that "defendant's negligence need not be the only cause, or even a primary cause, of the injury for the negligence to be a substantial factor." Plaintiff's arguments that the court's instruction on proximate cause could have confused the jury into believing she needed to prove defendant caused her stroke, or that tPA would have restored her to "pre-stroke condition," find no support in the record. The court said nothing in the instruction that would suggest either erroneous theory of causation to the jury. Rather, the court's instruction followed the formula set out in Model Jury Charge (Civil) 5.50E, by stating that plaintiff had a stroke, which had a risk of causing harm to her, and that she claimed defendant's conduct increased that risk of harm and may have cost her a chance of a better outcome. The court appropriately tailored the charge to the facts of the case, referencing plaintiff's condition and defendant's failure to administer tPA. The instruction clearly stated the "substantial factor" proximate cause standard as set forth in Scafidi and in the Model instruction. We find no error in the language of the court's proximate cause instruction. Plaintiff's contention that the court erred by employing the substantial factor standard also lacks merit. Although on appeal she contends that her position at trial was that defendant's conduct alone produced the harm she suffered, and not that his conduct combined with her stroke to produce that harm, nothing in the record suggests this was the case. Indeed, during the charge conference, when the court indicated its intent to instruct that the deviation was a substantial factor in causing plaintiff to lose a chance of recovery, plaintiff's counsel stated that this would be "correct." When the court stated that it would give a "Scafidi" instruction and would mention plaintiff's preexisting condition, counsel did not argue with this description of the case or intended instruction. Ultimately, counsel did not object to any of the court's instructions as read. Further, plaintiff proposed a verdict sheet, which included interrogatories asking whether plaintiff had established causation under the substantial cause standard, clearly indicating plaintiff believed this to be the correct standard. Plaintiff correctly states that a substantial factor standard is not applicable in all medical malpractice cases. However, cases where this standard should not be utilized are distinguishable from the matter at hand. For example, in Holdsworth v. Galler, 345 N.J. Super. 294, 299-300 (App. Div. 2001), the court found the substantial factor test inappropriate where the plaintiff had a tumor in his colon when the defendant doctor operated on him, but the defendant's deviation from the standard of care — removing the wrong portion of the colon, and the harmful consequences stemming therefrom — bore no relation to the harm that would have been caused by the tumor itself. In that case, the negligent care did not combine with the preexisting condition. Ibid. Similarly, in Anderson v. Picciotti, 144 N.J. 195, 204-09 (1996), the Court found a Scafidi charge inappropriate where the plaintiff alleged that the defendant doctor misdiagnosed her with osteomyelitis and then amputated her toe. The plaintiff in that case did not allege that the amputation was a significant factor that increased the risk of harm from a preexisting condition, because she contended that she did not have the condition in the first place. Id. at 207-12. Here, unlike in Anderson, neither party disputes plaintiff suffered a stroke. Unlike in Holdsworth, the harm that plaintiff suffered, paralysis, was a consequence that could have been brought about by the stroke alone. Plaintiff claimed at trial that the harm caused by the stroke would not have been as serious if defendant had provided treatment adhering to the standard of care. Thus, the trial court appropriately gave a Scafidi instruction, directing the jury to consider whether defendant's care increased the risk of harm to plaintiff posed by the stroke. Finally, plaintiff's argument that this is a "rescue case," requiring the court to instruct the jury to find proximate cause if it found a deviation, clearly lacks merit. We discern no basis for applying the "rescue" case standard here. In a "failure to rescue" case, a plaintiff need only prove that a defendant had a duty to take reasonable measures to save a life, and that there was a substantial possibility of rescue. Hake v. Manchester Twp., 98 N.J. 302, 311 (1985). In such a case, "the concepts of causation and duty are intertwined," and the existence of a reasonable possibility of rescue establishes "both the duty to attempt rescue and the requisite causal connection between breach of that duty and the [decedent's] death." Olah v. Slobodian, 119 N.J. 119, 131-32 (1990) (emphasis in original) (citation omitted). However, this standard only applies in a "narrow class of cases of lost chance of survival." Hake, supra, 98 N.J. at 311. Indeed, the Court in Olah, supra, 119 N.J. at 132-33, concluded this standard is "not as appropriate for medical malpractice cases" as the Scafidi substantial factor test. The Court in Reynolds, supra, 172 N.J. at 286, considered and rejected a formulation of a medical malpractice charge proposed by the plaintiff which would have allowed a jury to impose damages without a finding of "any causal connection between defendant's negligence and the resultant harm." This holding reinforces the requirement in most medical malpractice cases that a plaintiff establish proximate cause as well as the standard of care and deviation. Plaintiff attempts to characterize this case as one where defendant had a duty to "rescue" her dying brain cells; therefore, the issue of causation was intertwined with the issue of breach of a duty, as in duty to rescue cases, like Hake. We reject this reasoning. To take plaintiff's argument to its logical conclusion would mean that a plaintiff could recast almost any medical negligence claim involving loss of life, limb, or organ function as a "duty to rescue" claim, subject to the much more lenient duty to rescue standard, with no proximate cause requirement. This would unfairly impose greater liability on medical practitioners without reason. We find no error in the trial court's issuance of an instruction on proximate cause stating the substantial factor standard. Verdict Sheet Before trial began, plaintiff's counsel submitted to the court a draft verdict sheet proposing detailed questions about defendant's conduct. Of relevance here as to the issue of causation, this verdict sheet asked the jury whether defendant's deviation from the appropriate standard of care "increase[d] the risk of harm posed by [plaintiff's] pre-existing condition, by causing her to lose a chance of being cured and/or obtaining an improved outcome/quality of life." The court rejected plaintiff's proposed verdict sheet, and plaintiff objected, once more expressing concern that if the sheet asked the jury only whether defendant's conduct "increased the risk of harm" to plaintiff, as the court proposed, the jury could incorrectly believe that plaintiff needed to prove defendant caused the stroke. The court noted there was "no one in the courtroom . . . who ha[d] said" that defendant caused plaintiff's stroke or that plaintiff needed to show this. The court decided to use its own verdict sheet, which asked whether defendant's deviation "increase[d] the risk of harm posed by the plaintiff's pre-existing condition" without further elaboration. During its instructions, the court went over the verdict sheet. Ordinarily, a trial court's interrogatories to a jury on a verdict sheet do not constitute grounds for reversal unless they were "misleading, confusing, or ambiguous." Sons of Thunder, supra, 148 N.J. at 418. Additionally, a correct jury charge on an issue "can cure an ambiguity in a jury interrogatory." Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 470 (2000). If a jury instruction is "correct and thorough," it provides the jury with adequate understanding of the issue to prevent confusion. Id. at 470-71. As noted, the court's instruction to the jury on proximate cause was correct, comprehensive, and clear. As a result, the fact that the verdict sheet did not include a detailed description of the proximate cause standard did not render it misleading or ambiguous. In sum, we find no error in the jury instructions or the verdict sheet. Medical Records Tampering We next address plaintiff's argument the court erred by denying her request for a jury instruction on medical records tampering. She asserts she presented "substantial and material evidence of evidence tampering" by defendant at trial, pointing to instances where defendant prepared certain records pertaining to his care of plaintiff a substantial time after January 9, 2008. Plaintiff argues the court should have instructed the jury to draw an adverse inference from this evidence. The court's decision not to instruct the jury on medical records tampering does not require reversal unless this failure was "clearly capable of producing an unjust result." NewmarkShortino v. Buna, 427 N.J. Super. 285, 313 (App. Div. 2012), certif. denied, 213 N.J. 45 (2013). The records plaintiff alleges defendant "tampered with" or "falsified" are as follows. In a "Discharge Summary" dated April 19, 2008, defendant stated that plaintiff came to the Medical Center on January 9, 2008, with "neurological deficit," from which she had only a "transient recovery" while in the emergency room. Defendant prepared another report over a year after plaintiff's stroke, on June 9, 2009. Therein, he wrote that plaintiff was "deemed to have come in" over four hours after she began to exhibit symptoms of a stroke and, therefore, "unfortunately she could not get tPA." Plaintiff's proposed verdict sheet offered before trial included a jury question as to whether defendant "alter[ed] medical records with the intent to deceive or mislead [p]laintiff, the [c]ourt, the [j]ury or anyone." This claim, which included a request the jury assess damages against defendant, did not appear in plaintiff's complaint. The court addressed the inclusion of a medical records tampering count on the verdict sheet during a hearing on September 15, 2014. Plaintiff argued, as on appeal, that defendant attempted to alter her medical records, because the two reports at issue were composed significantly after January 9, 2008. The court ruled that plaintiff could highlight the later dates on defendant's reports to the jury and point out any inconsistencies between the reports and defendant's deposition testimony. During trial, plaintiff stated that she had seen "a lot of falsification" in her hospital record. She "disagreed with" and considered "false" several medical records discussing tests performed on her at the ER and ICU, and her condition when she arrived at the Medical Center. Plaintiff's counsel also questioned one of defendant's experts, Dr. Jamieson, on whether it was standard practice for a doctor to create new records regarding a patient's care a year and a half after the patient's discharge. While discussing jury instructions at a charge conference on October 15, 2014, plaintiff's counsel asked the court to include Model Jury Charge (Civil) 5.50H, "Alteration of Medical Records" (2009). While the court declined to give the charge, it nevertheless made clear the records at issue were "fair game" for comments in counsel's closing statement. The court found there was a "factual issue" for the jury to consider as to defendant's credibility because he prepared some records significantly after January 9, 2008, but found no "need[] to underscore it" with an instruction. The judge also noted plaintiff did not allege that defendant altered medical records, as contemplated in the model charge, only that he created new records a sufficiently long time after the fact to draw his credibility into question. Finally, the court noted plaintiff's complaint failed to plead a claim of medical records tampering, and her answers to interrogatories failed to alert defense counsel to any such claim. Ultimately, the court did not instruct the jury to consider whether defendant tampered with medical records, and the final verdict sheet did not include the question plaintiff proposed. However, the court did instruct the jury about its role as factfinder, and explained that jurors could decide which witness testimony and other evidence to believe. The court stated that jurors should consider any inconsistencies, and explained that if the jury found that any witness or party testified falsely, it could disregard all of that person's testimony. We view the case under review to be similar to NewmarkShortino, supra, 427 N.J. Super. at 311-13, in which we found no error in the trial court's decision not to issue a jury instruction on medical records tampering. In that case, as here, plaintiff alleged the defendant doctor fabricated treatment notes that would cast his care for the plaintiff patient in a more favorable light and inserted them into the plaintiff's hospital chart. Id. at 311. The court noted that in cases where a plaintiff presents evidence that a defendant intentionally altered medical records, "a jury may infer that the records were altered because the physician 'believed that the original record would have been unfavorable in the trial of this matter.'" Id. at 311-12 (quoting Model Jury Charge (Civil) 5:50H, "Alteration of Medical Records" (2009)).
Plaintiff asserts three additional errors that together produced an unjust result meriting reversal. The cumulative error doctrine allows for reversal where each error may not warrant reversal individually, but where the errors together deprived a party of due process. State v. Orecchio, 16 N.J. 125, 129 (1954). This theory will not apply "where no error was prejudicial and the trial was fair." State v. Weaver, 219 N.J. 131, 155 (2014) (citation omitted). Further, where an appellate court finds no errors, it should reject a defendant's invocation of the cumulative error doctrine. State v. Rambo, 401 N.J. Super. 506, 527 (App. Div.), certif. denied, 197 N.J. 258 (2008). First, plaintiff argues that the court erred by permitting defendant to present testimony from Dr. Jones-Dillon, a settling co-defendant. Second, plaintiff argues the court erred by barring the submission into evidence of a document allegedly addressed from the Medical Center to defendant, listing "stroke protocols." Third, plaintiff argues the court erred by refusing her request to provide the jury with a glossary of medical terms during deliberations, and her request to allow jurors to take written notes during the trial. We reject plaintiff's claims of cumulative error, finding the trial court's ruling in each instance represented a reasonable exercise of its discretion. Plaintiff's claims to the contrary lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Because we affirm the no cause jury verdict in favor of defendant, we decline to address the remaining issues raised in this appeal, since they concern plaintiff's damages evidence, and issues that would arise only if we were to reverse. Affirmed. 1 Dr. Gbayisomore passed away before trial. For ease of reference, and intending no disrespect, we refer to both Dr. Gbayisomore and his estate as "defendant." 2 As described by defendant's neurological expert, Dr. Dara Jamieson, "[A] TIA occurs when there's a transient interruption of blood flow to the brain, such that the patient has symptoms due to [a] lack of functioning of cells in the brain, but that interruption of blood flow is just for a short period of time." Directory: cmsAdmin -> uploads uploads -> Farmers State Bank Real Estate uploads -> Farmers State Bank Real Estate uploads -> Farmers State Bank Real Estate Download 2.17 Mb. Share with your friends:
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