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Estate of Abuaf v. Saint Barnabas Medical Center
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| Estate of Abuaf v. Saint Barnabas Medical Center (App. Div. 2017)
http://njlaw.rutgers.edu/collections/courts/appellate/a3468-14.opn.html Before Judges Yannotti, Fasciale and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9278-11. Michael B. Zerres argued the cause for appellants (Blume, Forte, Fried, Zerres & Molinari, P.C., attorneys; Mr. Zerres, of counsel and on the brief). Walter F. Kawalec, III argued the cause for respondents Elizabeth Junker, M.D., Elizabeth Bella, N.P., and Emergency Medical Associates (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, Frank P. Leanza, and Rosalind B. Herschthal, on the brief). Philip F. Mattia argued the cause for respondent Ruchika Singla, M.D. (Mattia & McBride, P.C., attorneys; Mr. Mattia, Haley K. Grieco, and Anelia Dikovytska, on the brief). Craig S. Combs argued the cause for respondents Mark Goldberg, M.D. and Consultants in Cardiology (Giblin, Combs & Schwartz, L.L.C., attorneys; Mr. Combs, of counsel; Erica C. Avondoglio, on the brief). Louis A. Ruprecht argued the cause for respondent Amit Malhotra, M.D. (Ruprecht, Hart, Weeks & Ricciardulli, L.L.P., attorneys; Mr. Ruprecht, of counsel and on the brief). PER CURIAM In this medical malpractice lawsuit, plaintiffs appeal from several orders entering a judgment of no cause of action dismissing their complaint after a jury trial.1 We affirm. At approximately 5:00 p.m., on September 20, 2010, decedent went to the emergency room at Saint Barnabas Medical Center (SBMC) complaining of a nosebleed. She was initially seen by a nurse practitioner, who treated her nosebleed with nasal packing. After the nasal packing was placed in her left nostril, decedent complained of left-side facial pain and a left-sided headache of varying degrees of severity. At approximately 2:00 a.m., on September 21, 2010, decedent was admitted to SBMC for "hypertensive urgency." At approximately 7:00 p.m., decedent lost consciousness and collapsed. A subsequent CT scan revealed that decedent had suffered a subarachnoid hemorrhage. Testing revealed that she was clinically brain dead. Her life support was discontinued and she died on September 22, 2010, after having been transported to another hospital. During her time at SBMC, decedent was seen by defendants Elizabeth Junker, M.D., Mark Goldberg, M.D., and Ruchika Singla, M.D. Although decedent had complained of a headache, even describing her pain as "excruciating" at one point, none of these defendants ordered a CT scan of the head, as they attributed decedent's headache to the nasal packing. Defendant Amit Malhotra, M.D. saw decedent after she lost consciousness. Plaintiffs alleged that Drs. Junker, Goldberg, and Singla were negligent by failing to order a CT scan of decedent's head, and that defendant Malhotra was negligent by failing to see and examine decedent after she was assigned to him and before she lost consciousness. Plaintiffs also sued defendants Consultants in Cardiology, a medical practice that Dr. Goldberg, is affiliated with and Emergency Medical Associates, a medical practice that Dr. Junker is affiliated with. 2 On appeal, plaintiffs argue the judge erred by (1) charging medical judgment, or inappropriately giving that charge without tailoring it to the facts of this case; (2) limiting them to three additional peremptory challenges; (3) precluding questioning of Dr. Junker and former defendant Nurse Practitioner Elizabeth Bella on the applicable standard of care; and (4) barring questioning of witnesses as to Nurse Bella's extensive experience of nasal packing and lack of excruciating headache complaints following the insertion of nasal packing. I. We begin by addressing plaintiffs' jury-charge arguments, that the court erred by providing the medical judgment charge to the jury, and even if the charge was warranted, that the judge failed to tailor it to the facts of this case. Proper jury charges are essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). The failure to provide clear and correct jury charges may constitute plain error. Das v. Thani, 171 N.J. 518, 527 (2002). "Jury charges must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . ." Reynolds, supra, 172 N.J. at 289 (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000)). Generally, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)). In fact, "[c]ourts uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights." Fisch v. Bellshot, 135 N.J. 374, 392 (1994). "A physician must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field." Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 626 (1999) (citing Walck v. Johns-Manville Prods. Corp., 56 N.J. 533, 560 (1970)). "The law recognizes that medicine is not an exact 6 A-3468-14T4 science," and that "good [medical] treatment will not necessarily prevent a poor result . . . ." Schueler v. Strelinger, 43 N.J. 330, 344 (1964). Accordingly, our courts do not hold physicians liable for "an honest mistake in diagnosis or in judgment as to the course of treatment taken." Aiello, supra, 159 N.J. at 627 (quoting Schueler, supra, 43 N.J. at 344-45). "To constitute a medical judgment, a medical decision generally must involve 'misdiagnosis or the selection of one of two or more generally accepted courses of treatment.'" Das, supra, 171 N.J. at 527 (quoting Velazquez, supra, 163 N.J. at 687). "Importantly, even where a physician is permitted to exercise medical judgment, the physician will be liable for malpractice if the exercise of such judgment 'represent[s] a departure from the requirements of accepted medical practice.'" Aiello, supra, 159 N.J. at 627 (alteration in original) (quoting Schueler, supra, 43 N.J. at 345). "Consequently, the Model Charge provides that doctors may not rely on the 'exercise of medical judgment' excuse to avoid liability for ordinary negligence[.]" Ibid. Therefore, the medical judgment charge must specify what action qualifies as an appropriate exercise of judgment. Velazquez, supra, 163 N.J. at 690. "Court and counsel should analyze the parties' testimony and theories in detail, on the record, to determine whether the charge is applicable at all and, if so, to which specific issues." Ibid. The court and counsel should then tailor the charge to the facts of the case. Ibid. Otherwise, an overly broad medical judgment charge may improperly insulate the defendant from liability. Id. at 689-91. Dr. Junker's counsel requested the court charge medical judgment. Plaintiffs' counsel objected, and the following colloquy ensued: THE COURT: Well, are you . . . suggesting that no one has testified on behalf of any defendant . . . that there was an option . . . that a reasonable doctor could well have ordered the CT . . . scan and a reasonable doctor, under the circumstances, could not have ordered a CT scan. You're saying there was no testimony to that regard? . . . .
[PLAINITFFS' COUNSEL]: . . . It's not a matter of a judgment in the diagnosis because there's no diagnosis without the test . . . under the clinical circumstances, they should have ordered the CAT scan. It's not that they could have made the diagnosis of a subarachnoid hemorrhage or sentinel bleed or aneurism clinically, so I don't thin[k] that this language is appropriate. [DR. JUNKER'S COUNSEL]: . . . At the time she saw the patient, she did not have to have a subarachnoid as her final differential or her top differential and [Dr. Junker] had no reason, based on her judgment, to order a CAT scan . . . . [A]s to Dr. Junker, based on her evaluation of the symptoms and the clinical condition at that time, in her judgment . . . the diagnosis or differential of subarachnoid was reasonably excluded and based on her judgment, she had no reason to order a CAT scan. THE COURT: It certainly seems to me to be in the case, [plaintiffs' counsel] . . . . [T]he testimony [is] that it's perfectly reasonable and within the standard of care . . . based upon what was presented to them by this patient to do exactly what it is that they did. Charging medical judgment leaves open the argument that . . . even if standard medical practice provided an option and that even if it might have been a good idea from the plaintiffs' perspective that the CAT scan be done, that nevertheless, that doesn't mean that the choices that they made at the time were not reasonable because there were other reasonable approaches to take . . . and there's reasonable choices to make under the circumstances being the ones that they chose. It seems to me to be right at the heart of this case. The judge overruled plaintiffs' objection and essentially followed the Model Jury Charge (Civil), 5.50(G), "Medical Judgment" (June 2014). The judge instructed the jury: A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis and treatment choices must be in accordance with accepted standards of medical practice. Therefore, your focus should be on whether accepted standards of medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice. If you determine that the accepted standards of medical practice for treatment or diagnosis did not allow for the diagnosis or treatment alternatives the defendant doctors made here, then the doctors would be negligent. If you determine the accepted standards of medical practice for treatment or diagnosis did allow for the diagnosis or treatment alternatives the defendant doctors made here, then the doctors would not be negligent. We see no error in giving the medical judgment charge. Here, plaintiffs' experts testified that defendants deviated from the accepted standards of medical care by not ordering a CT scan of decedent's head. Defendants' experts concluded that they did not, testifying that based on decedent's complaints and symptoms, a CT scan was not indicated or required. Drs. Junker, Singla, and Goldberg maintained that they were each presented with specific complaints and symptoms by decedent, and they were required to use their medical judgment in their diagnosis of her. Decedent did not initially present with a headache, and she did not complain of one until after the placement of the nasal packing. And her headache was localized to the leftside of the head, which was on the same side as the nasal packing. Therefore, Drs. Junker, Singla, and Goldberg used their expertise and medical judgment to determine what tests to order or not to order in response to decedent's headache in the presence of hypertension. Alternatively, plaintiffs contend for the first time that the medical judgment charge read to the jury was overly broad. We consider this contention applying the plain error standard. As a result, reversal is unwarranted unless any error was "of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. As applied to jury instructions, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The charge must be read as a whole in determining whether there was any error. [State v. Torres, 183 N.J. 554, 564 (2005) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).] "Where there is a failure to object, it may be presumed that the instructions were adequate," and "that trial counsel perceived no prejudice would result." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J. 572 (2003). Moreover, pursuant to Rule 1:7-2, "a [party] waives the right to contest an instruction on appeal if he does not object to the instruction." Torres, supra, 183 N.J. at 564. We see no error, let alone plain error. As noted, the judge's charge tracked the Model Jury Charge (Civil), 5.50(G), "Medical Judgment" (June 2014). The contentions of the parties were explained, in detail, in both the general introduction and the instruction regarding the aggravation of a preexisting condition. Specifically, the court explained: Now, in this case, it is alleged that the [decedent] had a pre-existing condition, either an aneurysm that's contended by the plaintiff, or an undetectable blood vessel which had the capacity to rupture, as contended by the defendants, either of which, by itself, had a risk of causing the plaintiff the harm she ultimately experienced in this case. The plaintiff contends that [decedent]'s cerebral aneurysm was present and detectable when the defendants treated her on September 20th and 21st of 2010. Plaintiff contends that if the defendants . . . had earlier ordered a CAT scan on [decedent]'s head, in accordance with the standard of care, then a sentinel bleed would have been detected, and that this would have led to the detection and treatment of a cerebral aneurysm significantly increasing [decedent]'s chance of survival. If you determine that the defendants were negligent, then [you] must also decide what is the chance that [decedent] would not have died of her preexisting condition if the defendants had not been negligent. We can presume the jury understood this charge. They found Drs. Junker, Singla, and Goldberg, the three who treated decedent before she lost consciousness, were not negligent by failing to order the CT scan. However, they found Dr. Malhotra, who had not seen decedent before she lost consciousness, negligent. In finding no proximate cause as to Dr. Malhotra, the jury credited the testimony of Dr. Goldberg's expert witness, who testified that "[t]here is no evidence on any of the studies that we have that there was a ruptured aneurysm," and that this case fell within the fifteen percent of cases where there was no discernible reason known for the subarachnoid hemorrhage. II. We also reject plaintiffs' argument made for the first time that the trial court erred by limiting their additional peremptory challenges to nine. Rule 1:8-3(c) affords each party in a civil action six peremptory challenges, except that parties represented by the same attorney are deemed to be a single party for purpose of the rule. It also provides: Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, accord the adverse party such additional number of peremptory challenges as it deems appropriate in order to avoid unfairness to the adverse party. The purpose of peremptory challenges is "to eliminate extremes of partiality on both sides, [and] to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them and not otherwise." State v. Tinnes, 379 N.J. Super. 179, 185 (App. Div. 2005) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 468 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)). "Although peremptory challenges are not constitutionally mandated, . . . New Jersey has long acknowledged their significance through legislation and court rule." State v. Scher, 278 N.J. Super. 249, 262 (App. Div. 1994) (citing N.J.S.A. 2A:78–7(c); R. 1:8–3(d)), certif. denied, 140 N.J. 276 (1995). "Our laws and rules are designed, albeit imperfectly, to assure the empaneling of a jury that, to the greatest extent possible . . . will reach its verdict solely on the evidence with complete fairness and impartiality." State v. Singletary, 80 N.J. 55, 80 (1979) (Handler, J., dissenting). The decision to grant or deny extra peremptory challenges rests within the trial court's discretion, but that decision may not be rendered in an arbitrary fashion with no analysis or explanation from the trial court. Velazquez, supra, 163 N.J. at 692. Rather, "the lawyers and the court must parse out the theories of the parties in detail for the record so that an identity determination can be made." Ibid. Bare conclusions regarding the existence or absence of an identity are inadequate. Ibid. However, the issue is whether plaintiffs were prejudiced by the decision. Russell v. Rutgers Cmty. Health Plan, Inc., 280 N.J. Super. 445, 456 (App. Div.), certif. denied, 142 N.J. 452 (1995). Here, the following colloquy between the court and counsel occurred: [PLAINTIFFS' COUNSEL]: . . . So the plaintiff, I believe only has six peremptory challenges compared to the 24 [defendants have], and is requesting a commensurate amount of peremptory challenges so that the playing field is fair with respect to the dismissal of potential jurors. . . . .
. . . . [PLAINTIFFS' COUNSEL]: -- defense peremptory challenges compared to six. So I was looking to level the playing field a little bit. I know you're not going to give me 24, so that one for one, but -- THE COURT: But you're asking for 24? [PLAINTIFFS' COUNSEL]: But I am. THE COURT: Okay. Anybody want to take a position on that? [JUNKER'S COUNSEL]: Judge . . . there is no community [of] interest which is really . . . the standard by which it is determined whether or not the additional peremptory challenges should be granted . . . to the plaintiff. I have no objection with some additional ones. Twenty-four is ridiculous. But I think it should be, you know, quite limited. My . . . guess would be like eight to nine. THE COURT: Anybody else? [SINGLA'S COUNSEL]: Agreed. THE COURT: Okay. [PLAINTIFFS' COUNSEL]: Nine. THE COURT: Nine. [PLAINTIFFS' COUNSEL]: Nine additional? THE COURT: No. Nine. [PLAINTIFFS' COUNSEL]: Total? THE COURT: Total. [PLAINTIFFS' COUNSEL]: Oh, all right. Thank you, Your Honor. THE COURT: Okay. I think you'll manage with that. Especially since we have such a long trial. Plaintiffs' counsel did not object to the award of three additional peremptory challenges so that the court would be alerted to plaintiffs' dissatisfaction. To the contrary, plaintiffs' counsel stated "all right" and thanked the court for the additional challenges. Moreover, plaintiffs' counsel did not parse out the theories of the parties in detail for the record so that an identity determination could be made. Plaintiffs did not argue "commonality of interest" or "substantial identity of interest," and the court did not determine that there was any such interest. Rather, Dr. Junker's counsel argued there was no such interest. Plaintiffs' counsel did not respond to Junker's community of interest argument, and said it was "all right" when the judge allowed only a total of nine. And, after defendants did not use all twenty-four challenges, plaintiffs' counsel did not voice any dissatisfaction with the empaneled jury. To the contrary, plaintiffs' counsel advised the court that the jury selected was "[s]atisfactory." Finally, plaintiffs have failed to show any prejudice because they did not identify any juror they would have excluded if they had additional peremptory challenges. Russell, supra, 280 N.J. Super. at 456. III. Plaintiffs contend that the court erred by precluding the admission and read-in of certain deposition testimony of Dr. Junker about the applicable standard of care, and by precluding plaintiffs' counsel from questioning her about that testimony. They argue that Dr. Junker's deposition testimony was both relevant and probative, and therefore it was admissible. They also argue that the standard of care may be established by testimony from a defendant physician. At trial, Dr. Junker's counsel objected to one of the proposed read-ins from Dr. Junker's deposition testimony. He stated: "I advised [plaintiffs' counsel]. I think Your Honor is going to have to make a ruling on it." However, the subsequent sidebar discussion was "inaudible," and the record does not reflect any ruling as to Dr. Junker's counsel's objection or the admissibility of the proposed read-in. After the sidebar discussion, plaintiffs' counsel read several portions of Dr. Junker's deposition testimony to the jury. On appeal, plaintiffs do not cite to the trial court's alleged ruling in the record. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (indicating that the court is not obligated to search the record to substantiate argument in appellate brief). Plaintiffs argue the judge ruled counsel could not question Dr. Junker regarding the standard of care. We are unable to locate such a ruling in the record, and the citations set forth in plaintiffs' merits brief do not support this contention. There is no record to review, and plaintiffs did not avail themselves of the procedures in Rule 2:5-5(a) (providing that "[a] party who questions whether the record fully and truly discloses what occurred in the court . . . below shall . . . apply on motion to that court . . . to settle the record"). Instead, they submitted, for the first time on appeal, a certification of their trial counsel. However, that certification is of limited use. The certification does not attempt to recreate or explain the court's ruling. Rather, it merely states: "The record of trial indicates that the sidebar discussion regarding this issue, as well as the Trial Court's ruling, were inaudible." As a result, we decline to consider this argument. IV. Plaintiffs contend that the court erred by precluding the admission and read-in of certain deposition testimony of former defendant nurse practitioner Bella about the applicable standard of care, and by precluding plaintiffs' counsel from questioning her about that testimony. They argue that the trial court erred by precluding Bella from testifying about her experience placing nasal packing. At trial, plaintiffs sought to introduce and read into the record certain deposition testimony of Bella. Dr. Malhotra's counsel objected because she was asked and answered hypothetical questions, and she was not an expert witness qualified to give expert testimony against any of the physician defendants. Dr. Singla's counsel joined in the objection, arguing "that even if she was an expert, as a nurse she couldn't give testimony that would impact on the defendant physicians," and therefore, her testimony was "irrelevant." The judge precluded plaintiffs from introducing Bella's deposition testimony, but permitted plaintiffs to solicit factual testimony from Bella, stating: She can testify, I think, that this is what she did and -- or didn't do and this is why she did or didn't do what she did. If it's couched in terms of in her opinion, if so and so, would you have done so and so, that's offering opinions as to standard of care which she's not qualified to offer. She can testify to the facts as to what she did and what she didn't do and why. I think . . . that that's factual. Plaintiffs' counsel chose not to call Bella as a witness. Plaintiffs' argument that Bella was precluded from giving factual testimony is belied by the record. And Bella was unqualified to give testimony about the standard of care applicable to any of the defendant physicians. Bella was a nurse practitioner, while Dr. Junker was an emergency room physician, Dr. Goldberg was a cardiologist, and Drs. Singla and Malhotra were internists. To be so qualified Bella was required to be equivalently credentialed in the same specialty or subspecialty as these defendants. See Nicholas v. Mynster, 213 N.J. 463, 468 (2013); Buck v. Henry, 207 N.J. 377, 389 (2011); and Ryan v. Renny, 203 N.J. 37, 52 (2010). Affirm. 1 A February 18, 2015 order as to defendant Amit Malhotra, M.D.; a February 24, 2015 order as to defendants Mark Goldberg, M.D. and Consultants in Cardiology; a March 10, 2015 order as to defendant Ruchika Singla, M.D.; and a March 13, 2015 order as to defendant Elizabeth Junker, M.D. and Emergency Medical Associates, P.A. 2 Plaintiffs also sued other parties. On the first day of trial, plaintiffs dismissed their claims against St. Barnabas Medical Center, St. Barnabas Healthcare System, and nurse practitioner Bella. Estate of Cyckowski v. Stylman, A-1642-15T2 (App. Div. 2017) http://njlaw.rutgers.edu/collections/courts/appellate/a1642-15.opn.html Before Judges Reisner, Rothstadt and Mayer. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7062-13. David Parker Weeks argued the cause for appellant/cross-respondent (Ruprecht Hart Weeks & Ricciardulli, attorneys; Mr. Weeks, of counsel and on the brief; Andrea G. Miller Jones, on the brief). James Lynch argued the cause for respondent/cross-appellant (Lynch, Lynch, Held & Rosenberg, attorneys; Mr. Lynch, on the brief). PER CURIAM Anna Marie Cyckowski (Ms. Cyckowski or the patient), a seventy-four year old woman, experienced complications after her esophagus was punctured during surgery to repair a hiatal hernia. She died a few weeks later. Plaintiff, her estate, claimed that the operating surgeon, defendant Dr. Jay Stylman, did not render proper medical treatment after the surgery. Plaintiff also claimed lack of informed consent. The jury returned a no-cause verdict on the informed consent claim. However, the jury found that defendant deviated from accepted medical standards in treating Ms. Cyckowski. The jury also found that the deviation was a substantial factor in causing her injuries, and defendant did not prove that some portion of her injuries would have occurred even if he had not deviated. Defendant appeals from the resulting December 7, 2015 judgment, consisting of $200,000 in pain and suffering damages, plus about $240,000 in medical expenses. Plaintiff filed a protective cross-appeal, asserting that if we reverse the malpractice judgment and remand the case for a re-trial, we should also order a re-trial of the informed consent claim. In challenging the verdict, defendant presents the following points of argument: I. DEFENDANT'S MOTION FOR A DIRECTED VERDICT THAT DEFENDANT HAD PROVEN SOME PORTION OF PLAINTIFF'S INJURIES WOULD HAVE OCCURRED EVEN IF DEFENDANT HAD NOT BEEN NEGLIGENT SHOULD HAVE BEEN GRANTED II. THE JURY'S FINDING THAT NO PORTION OF PLAINTIFF'S INJURIES WAS DUE TO THE PREEXISTING CONDITION WAS AGAINST THE WEIGHT OF THE EVIDENCE III. THE TESTIMONY OF GASTROENTEROLOGIST DR. ELFANT SHOULD HAVE BEEN LIMITED, NOT BARRED IN ITS ENTIRETY IV. THE FACT THAT DR. STYLMAN HAD NOT PREVIOUSLY PERFORMED THIS SPECIFIC PROCEDURE LAPAROSCOPICALLY AS PRIMARY SURGEON SHOULD NOT HAVE BEEN PRESENTED TO THE JURY V. DR. BELSLEY'S PERSONAL INFORMED CONSENT PRACTICES SHOULD NOT HAVE BEEN ALLOWED TO BE ELICITED BY PLAINTIFF'S COUNSEL VI. THE WHOLLY INADEQUATE RECORD PROVIDED BY THE COURT PREJUDICED DR. STYLMAN'S ABILITY TO CONTEST ALL APPEALABLE ISSUES RAISED AT TRIAL DUE TO A COMPLETE LACK OF RECORDING OF KEY SIDE-BAR DISCUSSIONS Defendant did not perfect the appeal as to his point VI, by filing a motion to reconstruct the trial record. See R. 2:5-5(a). Nor has he articulated which of the un-recorded sidebar rulings allegedly constituted, or might have constituted, prejudicial error. Consequently, we decline to further address this point. After reviewing the record including the trial transcripts, we find no merit in any of defendant's remaining appellate arguments, and we affirm on the appeal. We therefore need not address the cross-appeal. I
Dr. Angelo Scotti, plaintiff's expert in internal medicine and infectious diseases, described the patient's condition and the development of the infection. Dr. Scotti explained that Ms. Cyckowski had a hiatus hernia, which he described as "an opening where the esophagus goes and some of the intestinal contents can get up into the chest wall." During the surgery to repair this problem, she suffered a perforation of her esophagus. The perforation allowed bacteria to enter the mediastinum, which eventually developed into a mediastinal infection. Dr. Scotti testified that the infection eventually entered her blood stream, which caused her to go into septic shock, i.e., "her blood pressure dropped and her entire body was responding to this infection." According to Dr. Scotti, Ms. Cyckowski continued to get sicker and eventually died from complications of the surgery. Dr. Scotti explained that an esophageal perforation is a medical emergency, because "you have acid from the stomach that goes through the hole and starts destroying tissues because acid is for digesting things. And then the bacteria there get in there and set up infection and that's what happened here." He provided the following analogy for an esophageal perforation: If you're in a boat and you have a hole in your boat and you really want to stay afloat and you keep bailing, bailing, bailing, well, if you have an esophageal perforation, you aren't plugging the hole. So that water keeps coming in, you bail it out, it keeps coming in. So if you plug the hole in the boat, then the water stops and you can bail it out and you'll have a floating boat. So, again, when you have a perforation of the esophagus and that infection is being set up and you have a collection of infection, like, abscess, if you close the perforation, then between the antibiotics and your immune system you have a good chance of healing that. But if [it] keeps open, you still have bacteria and acid coming into the area, so you're fighting a losing battle. You're [basically] bailing a boat that still has a hole in it. Dr. Scotti further testified that bacteria continues to enter through the perforation even if the "patient has antibiotics, a feeding tube, and drains" and the infection cannot be eradicated. He then detailed Ms. Cyckowski's decline starting on April 10 through her release from the hospital at the end of May. During that testimony, he detailed how the lack of appropriate treatment allowed the patient to develop septic shock: Q: She had now gone from the 10th to the 27th with continued contamination from this open perforation. Is that fair to say? A: Of her esophagus into her mediastinum, yes. Q: Do you have an opinion as to the affect this had on the patient? A: Well, it drastically decreases her prognosis. In other words, she's at more risk of dying. Just to start back when she had septic shock on 4/16, April 16th, when you have septic shock, if you don't get treatment for septic shock, you -- you start dying. Septic shock is 100 percent fatal if it's not treated. And the mortality increases by 7 percent for each hour of treatment that's missed. So if it's delayed an hour you increase your [mortality] to 7 percent, by two hours it's 14 percent. Now, she didn't die at that point because they were at least partially treating her. They were giving antibiotics and they were giving fluids. So they were partially keeping up with this contamination, but not enough to cure her because of the perforation. He opined that, throughout this time period, the infection was getting worse, Ms. Cyckowski was getting sicker and her prognosis was worsening. Dr. Scotti concluded that had the perforation been blocked "within three or four, five days of surgery," Ms. Cyckowski probably would have healed completely. Dr. Scotti explained that, had the perforation been diagnosed and treated earlier: [S]he would have avoided the -- all the other procedures. She would have avoided having -- she would have avoided dying for one thing. But she would have avoided the various procedures that were done. The plural infusion, they had to put a chest tube and take her infusion. She probably would have avoided intubation, so she wouldn't have had the tube in and would not have gotten pneumonia. She would have avoided the shock, so she wouldn't have had a central venous line. Basically, all of the procedures that she had to keep her alive would have been avoided. She would avoided being transferred to another hospital because she most likely would have recovered and left the hospital after her surgery. Dr. Scotti testified that, on May 22, Ms. Cyckowski was transferred to the Kendrick subacute rehabilitation center, where she was "pretty much bedridden." While at this facility, "she developed decubitus ulcers . . . [that] are the pressure sores you get when you're laying on bony prominences for a period of time." Finally, Dr. Scotti explained the association between her death and the esophageal perforation: I mean, when she went into the hospital she was cleared medically and reasonably so. In other words, she was judged a reasonable medical risk. She had, you know, none of these. She had a history of asthma and she had no serious heart disease. And then she goes on to die a cardiovascular death, you know, weeks -- months after her surgery. But she never gets better. So the surgery, the perforation sets up a crescendo. The mediastinal infection, systemic infection, shock, respiratory failure, urinary tract infection, decubitus ulcers, all of those things result in really taxing your body and put you on an inflammatory response -- that's inflammatory response we talked about. That inflammatory response makes your heart work harder, it makes you more likely to clot. So some combination of those things caused her to die. There was no autopsy, so I can't pinpoint of what all the things I mentioned which one of those or which combination caused her to die. Dr. Robert Aldoroty, a board certified general surgeon, testified about defendant's deviation from accepted medical standards in treating the patient after the surgery. Dr. Aldoroty testified that esophageal perforation is a known risk to Ms. Cyckowski's operation. It is important to be aware of the potential of an esophageal perforation, because of "the potential enormity of the complications" of a perforation. Dr. Aldoroty detailed the events starting with Ms. Cyckowski's surgery. He opined that defendant was not necessarily negligent in the surgery, because "[perforation] can happen under the best of circumstances." However, Dr. Aldoroty explained that defendant deviated from the standard of care with respect to his post-operative treatment: So the issue really, the first issue is the delay in getting Ms. Cyckowski to the remedial surgery. Okay? It's four or five days delay. It's entirely unacceptable. We spoke about this, but any surgeon who operates on the esophagus is doing paraesophageal hernias. When a patient isn't doing well, an esophagus perforation is in the short list. And it's in the short list because delays in diagnosis and treatment of an esophageal perforation have significant health consequences for the patient. . . . I'm not upset with the postoperative day one unless an esophageal perforation wasn't in Dr. Stylman's mind, and I don't know what was in Dr. Stylman's mind. But what’s in the chart is reasonable. But postoperative day two, where she goes into florid respiratory distress and needs to be intubated and sent to an ICU, there is a short list of postoperative complications that can do that: pulmonary embolus, esophageal perforation, cardiac event, myocardial infarction, a heart attack, pneumothorax. And that’s the short list. . . . My problem at that point is that she's sitting in an ICU and no one is ordering any tests to find anything out. And Dr. Stylman should have that short list and should be clunking through it very expeditiously in the first few hours. . . . . So I think in my opinion any reasonable doctor or surgeon would have gotten a CT of the chest, abdomen and pelvis . . . .
And would have gotten a CT that was appropriate, appropriately done to look for pulmonary embolus. The ICU would have taken care of the EKG, the proponent ruling out the cardiac event. Dr. Aldoroty concluded that the surgeon should notify the members of the ICU of the potential surgical complications and to recommend the appropriate testing. In order to rule out an esophageal perforation, Dr. Aldoroty said that defendant should have ordered a CT scan. Dr. Aldoroty opined that defendant deviated from the standard of care by not ordering a CT scan on post-operative days two and three. Then when he ordered a scan, and realized Ms. Cyckowski had an esophageal perforation, it was a deviation not to perform the surgery immediately. Further, Dr. Aldoroty testified that defendant deviated from the standard of care by failing to call a gastroenterologist from April 15 through April 24. He testified that had the perforation been diagnosed earlier, on April 12 or 13, "the more likely it is that the patient will recover quicker . . . and will be less likely to succumb from the perforation." He concluded that Ms. Cyckowski's death was ultimately due to the delay in diagnosing the esophageal perforation. Plaintiff also presented Dr. Peter Salvo, who gave detailed testimony concerning the pain and suffering Ms. Cyckowski experienced and the timing of her suffering. Dr. Salvo first described the pain that Ms. Cyckowski suffered starting a few days after the surgery. He testified that later, during her hospital stay, Ms. Cyckowski developed decubitus ulcers, which cause significant pain. Dr. Salvo provided the following opinion regarding her pain while she was at Kindred: I think there are two things you need to know. I think that no pain medicine is 100 percent effective. You would like to take down the pain as much as you can. But those of us who deal in pain every day realize that pain is one of the most fundamental deep-seeded neurologic reflexes we have. . . . So we try to get at the pain as best we can. Narcotics work. They make your life better, truly they do. But they don't make it 100 percent better. And she was described as feeling short of breath. That's -- that's not pain, that's distress. She said on the 10th of June "I can't breathe." She was anxious. She complained of pain in her sacral area where that decubitus was on May 6th. On May 27th she had lower extremity pain. On the 31st of May she complained of buttock pain. She had facial grimacing on the 24th of June. I think it's fair to say that not every note at Kindred says that she was in terrible pain and that's probably true. Pain comes and goes. But her baseline, her general life was painful. And sometimes it was worse, sometimes it was better, sometimes the meds worked better, sometimes they didn't. This is biology, it's not physics. The best you can do is often, unfortunately, good enough, that's it. Defendant's case was directed at establishing that he did not deviate from the standard of care. In his testimony, defendant detailed the procedure he performed on Ms. Cyckowski and concluded,"it went very well." The first day after the surgery, defendant believed Ms. Cyckowski was doing well. The second day after surgery, April 12, defendant noted in his chart: "[p]atient sedated, relatively stable, on vent support. Increased fluid --increased fluids rather. Abdomen soft, non-tender. Continue CRR management." Defendant explained that something happened that affected "her ability to breathe properly where the carbon dioxide was building up in her lungs. And that's an emergency that requires a ventilator to support her, which they did in the ICU."At this point, defendant did not believe Ms. Cyckowski had an infection, because she did not show any signs of one. On April14, defendant testified that a culture came back positive for bacteria in Ms. Cyckowski's lungs, and he ordered a CT scan. Defendant was notified early in the morning on April 15 that Ms. Cyckowski had a leak in her esophagus in the surgical area. But defendant did not report to the hospital to perform surgery immediately, for two reasons. First, he wanted to review the films with a radiologist, and second, performing surgery in the middle of the night does not generally lead to the best results for the patient. Defendant testified that the second procedure, on April 15,was "a much more serious, dangerous, complicated procedure. . . ." During the procedure, defendant placed multiple drains in Ms. Cyckowski to remove any fluid build-up in her abdomen, buthe did not locate the perforation in the esophagus. At this time, defendant believed that the hole would heal since he inserted the drains. After the procedure on April 15, defendant did not immediately attempt to put a stent in because he thought it was too risky given Ms. Cyckowski's condition. Defendant explained his thought process each day from April 16 through April 25, telling the jury why he though his actions were reasonable based on the circumstances. He explained that he did not call the gastroenterologist until April 25, because "the signs were pointing to the fact that it seemed like the drainage wasdecreasing. . . . And it seemed like everything was going alongin the right direction as far as the . . . leak was going whilethere were many other problems that were happening at the same time." Next, defendant called his only expert, Dr. Scott Belsley, aboard certified general surgeon. Dr. Belsley testified that the surgery was "straightforward" and initially everything was fineafter the surgery. He testified that it was appropriate to obtain a CT scan on April 14 and it was important that defendant inserted drains, "because the vast majority of all these perforations healby just letting the body do its own thing."Dr. Belsley testified that defendant performed the initialoperation on April 10 in accordance with the standard of care. Further, he testified that the first sign of an infection was from the "positive respiratory culture" on April 14. He went on to explain: Even having said that then we can argue okay,is that normal bacteria, is that abnormal bacteria? So, when you're trying to decide what's happening while it's happening, in these situations you put the patient on antibiotics, you get some x-rays, you run some cultures and you're trying to figure out whileit's happening, and it's not -- during the whole process. But I would say on the 14th, that's when we would have a -- a really positive indication that there was an infection. He opined that defendant did not deviate from the standard of care by not diagnosing the infection and perforation before April 15. He also opined that Ms. Cyckowski suffered a delayed perforation, because if the perforation had occurred during surgery, she would have had an elevated heart rate and a fever sooner. Regarding the second operation on April 15, Dr. Belsley explained that defendant was not negligent in waiting until the morning instead of performing the operation in the middle of the night. He also testified that defendant was not negligent in refraining from calling in a gastroenterologist prior to April 27. Dr. Belsley primarily based that opinion on his view that the typical treatment provided by gastroenterologists - the placement of stents to block the puncture - was ineffective. He admitted, however, that his was a minority view in the medical profession. In Dr. Belsley's experience, esophageal perforations will heal "greater than 90 percent of the time with drainage alone . . . ." Dr. Belsley summarized his opinion regarding defendant's overall treatment of Ms. Cyckowski: There was absolute no deviation in any aspect in this case. . . . .
I mean the basis of -- is a very serious medical problem, surgical problem, which is likely going to kill a sick patient within two years, it's a very risky operation. This is a known complication of the operation, this is accepted. This is what every surgeon will say yes, of course it can happen. It's not common, but yes, this is a possibility. And when they did notice this, when they have absolute evidence with the CAT scan, they got all the right people involved, they did got rushing in in [sic] the middle of the night, he performed a very smart, very technically correct operation to deal with the problem. [He] had specialists that were taking care of her throughout the hospitalization, but unfortunately she succumbed. She was a very sick lady. Dr. Belsley testified that Ms. Cyckowski's death "was related to her preexisting conditions." Further he explained that "you can't basically reduce it to one event, and discount all of the preexisting things." He was not asked to quantify or apportion which of the patient's injuries were attributable to her preexisting conditions and which were attributable to any deviations, assuming, hypothetically, that defendant had deviated from accepted medical standards. II Defendant's first two points concern his right to apportionment of damages under Scafidi v. Seiler, 119 N.J. 93, 108 (1990), which applies when a defendant's malpractice aggravates or increases the risk posed by a patient's pre-existing medical condition. Initially, defendant contends he was entitled to a directed verdict on apportionment. See R. 4:40-1. We review the issue de novo, and find no error in the trial court's decision. See Smith v. Millville Rescue Squad, 225 N.J. 373, 397 (2016). In the trial court, plaintiff agreed that this was a case to which Scafidi applied, because there was no dispute that Ms. Cyckowski had one or more pre-existing conditions, which plaintiff contended were aggravated by defendant's malpractice. However, as set forth in Scafidi, defendant had the burden of proof on the apportionment issue: [W]here the malpractice or other tortious act aggravates a preexisting disease or condition, the innocent plaintiff should not be required to establish what expenses, pain, suffering, disability or impairment are attributable solely to the malpractice or tortious act, but that the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are. [Scafidi, supra, 119 N.J. at 110 (quoting Fosgate v. Corona, 66 N.J. 268, 272-73 (1974)).] At the close of the evidence, defense counsel moved for a directed verdict on jury question #8, which asked whether defendant had proven that some portion of the patient's injuries would have occurred, even if defendant had not deviated from the standard of care. Defense counsel argued that plaintiff's expert, Dr. Aldoroty, had testified that even if defendant had realized earlier that more surgery was needed and had performed the surgery on April 12 instead of April 15, "the attendant recovery from that surgery would [still] have taken place." The judge reserved decision on the motion, and denied it immediately after the jury returned its verdict.1 See R. 4:40-2(a) (the trial court may reserve decision on a motion for a directed verdict and decide it within ten days after the jury returns its verdict). We find no error in the result. On a motion for judgment under Rule 4:40-1, "[t]he court must accept as true all evidence supporting the position of the non-moving party, according that party the benefit of all legitimate inferences that can be deduced from such evidence. If reasonable minds could differ, the court must deny the motion." Rena, Inc. v. Brien, 310 N.J. Super. 304, 311 (App. Div. 1998); see Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). Viewing the evidence in the light most favorable to plaintiff, the jury did not necessarily need to find that the three-day delay from April 12 to April 15 constituted the deviation that caused the patient's injuries. Plaintiff also presented evidence that defendant negligently delayed for ten days after the surgery before calling in a gastroenterologist on April 25. Defendant's Rule 4:40-1 motion did not even address that deviation or the resulting injuries and suffering caused by that delay. Moreover, defendant's case, as presented through his witnesses, was that there was no deviation. He did not present testimony that, even if there had been a deviation, a certain percentage of the patient's injury was attributable to the preexisting condition. Neither defendant nor Dr. Belsley provided any testimony that would have enabled the jury to make the percentage apportionment Scafidi requires. It was defendant's burden to present that evidence. "If a defendant seeks to reduce his liability by asserting that part of the harm is not attributable to his tortious conduct, the burden of proving both that the plaintiff's injury is capable of apportionment and what the apportionment should be should rest on the defendant." Anderson v. Picciotti, 144 N.J. 195, 211 (1996) (citation omitted); see also Holdsworth v. Galler, 345 N.J. Super. 294, 305-06 (App. Div. 2001). In addition, even if defendant had presented testimony on apportionment, it would have been the jury's province to decide if the testimony was credible. As a result, we conclude that defendant was not entitled to a directed verdict on question #8. Defendant's second argument - that the jury's verdict as to question #8 was against the weight of the evidence - was waived for purposes of appeal when he failed to file a motion for a new trial on that ground. R. 2:10-1; Gebroe-Hammer Assocs. v. Sebbag, 385 N.J. Super 291, 295 (App. Div.), certif. denied, 188 N.J. 219 (2006). Moreover, even if we consider the issue, the verdict was not a miscarriage of justice. R. 2:10-1
Next, defendant argues that the trial judge should not have barred the testimony of Dr. Elfant, a board certified gastroenterologist. We review a trial judge's decision to admit or exclude expert testimony for abuse of discretion. See Townsend v. Pierre, 221 N.J. 36, 52-53 (2015). We find none here, and we affirm substantially for the reasons stated by the trial judge in ruling on plaintiff's in limine motion on October 28, 2015. We add these comments. Defendant was a board certified general surgeon. He concedes that under the New Jersey Medical Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-41, he could not present the testimony of a gastroenterologist to opine as to the standard of care or as to whether defendant's conduct met that standard. See Nicholas v. Mynster, 213 N.J. 463, 468 (2013). Defendant argues that Dr. Elfant was not going to testify about the standard of care, but rather was going to testify about proximate cause and damages. However, having read Dr. Elfant's expert report, we conclude that it was clearly aimed at establishing the standard of post-operative care for a patient who has undergone hiatal hernia surgery and establishing that defendant did not deviate from that standard. In fact, the report began by stating: "Plaintiff's expert alleges a number of deviations in the care of Mrs. Cyckowski which I would like to address[.]" Moreover, in arguing the in limine motion, defense counsel did not make a proffer that Dr. Elfant would testify about proximate cause and damages. He stated: The only thing I intend to elicit from Elfant is that he is a gastroenterologist[,] is familiar with and often will treat perforations conservatively before stenting. And that's after the 15th of April 2012. And it's not saying anything about standard of care. It's just saying this is a recognized treatment. The judge rejected that argument, noting that "since that care was not performed by a gastroenterologist, a general surgeon should address that issue on behalf of the defense." We agree. On the record presented to the trial judge at the time she decided the in limine motion, it was clear that the defense proposed to use Dr. Elfant's testimony as a back-door means of providing standard-of-care testimony prohibited by the PFA. It was not an abuse of discretion to grant plaintiff's pre-trial motion to bar the expert.2 Defendant's remaining two arguments relate to evidence of his lack of prior experience with the type of surgery he performed on Ms. Cyckowski, and to a testifying expert's practice with respect to obtaining informed consent from patients. We conclude that the arguments are without sufficient merit to warrant discussion beyond these brief comments. R. 2:11-3(e)(1)(E). The evidence was primarily presented to support the informed consent claim. Plaintiff asserted that defendant misrepresented to the patient that he had prior experience in performing the surgery when, according to plaintiff, he had no such experience. See Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 555-57 (2002). Because the jury returned a no-cause verdict on the informed consent claim, any errors in admitting evidence on that issue would have been harmless. R. 2:10-2. Evidence that defendant had never performed this surgery before was also relevant to whether he might, for that reason, have been unfamiliar with the proper way to deal with an esophageal puncture, which was a known but uncommon risk of the surgery. Thus, it was pertinent to the malpractice claim. It was up to the jury to decide what weight, if any, to give that evidence. Affirmed. 1 The judge indicated that she would provide reasons for her decision, as is required, but would do so at a later time. See Atlas v. Silvan, 128 N.J. Super. 247, 250 (App. Div. 1974). From the record provided to us, it is not clear whether the judge did so.
www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a3544-13.pdf Before Judges Koblitz, Kennedy, and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0199-11. Steven J. Greenstein argued the cause for appellants/cross-respondents (Tobin, Kessler, Greenstein, Caruso, Weiner & Konray, P.C., and The Gruber Firm, L.L.C., attorneys; Mr. Greenstein, of counsel and on the brief; Saul G. Gruber, on the brief). Neil Ptashnik argued the cause for the respondents/cross-appellants (Ansa Assuncao, L.L.P., and Ptashnik & Associates, L.L.C., attorneys; John P. Mueller and Mr. Ptashnik, on the brief). PER CURIAM Joseph Gamma ("Joseph") died from injuries he suffered when he fell on the floor of a nursing home. His Estate and wife, as Administrator Ad Prosequendum (collectively "plaintiffs"), filed an action against defendants, alleging that Joseph's death was the result of falling off a bed without bedrails. At the close of trial, the trial judge granted a directed verdict in favor of defendants on the counts under the New Jersey Nursing Home Responsibilities and Residents' Rights Act (the Act), N.J.S.A. 30:13-1 to -17, and the jury returned a verdict of no-cause on the remaining negligence count. Plaintiffs appeal and claim multiple errors, including that the trial judge erred when he failed to ask prospective jurors open-ended questions, as mandated by Administrative Directive #4- 07, "Jury Selection – Model Voir Dire Questions Promulgated by Directive #21-06 – Revised Procedures and Questions" (the Directive). See Administrative Directive #4-07, "Jury Selection – Model Voir Dire Questions Promulgated by Directive #21-06 – Revised Procedures and Questions" (May 16, 2007), http://www.njcourts.gov/attorneys/assets/directives/dir_04_07.pd f. Defendants cross-appeal contending that the motion court improperly permitted hearsay evidence. For the following reasons, we affirm the trial court's directed verdict and the motion court's decision to admit Joseph's statement, but reverse and remand for a new trial because the trial judge erred in not following the Directive. I. The facts are established in the trial record. In the early morning hours of January 8, 2009, Cedar Hill Nursing Home's (Cedar Hill) staff observed Joseph, a patient at Cedar Hill, asleep in his bed. Approximately twenty minutes thereafter, staff observed Joseph on the floor next to his bed with injuries to his toes. According to staff notes, Joseph stated that he rolled out of his bed while asleep. The staff transferred Joseph to Clara Maass Hospital, where he again told hospital staff that he fell out of his bed. After an examination, the hospital concluded Joseph suffered only toe lacerations. He was returned back to Cedar Hill. On January 12, 2009, Joseph complained of left side weakness and back spasms. He was readmitted to Clara Maass and again referenced his fall on January 8. Over the following months, Joseph experienced additional complications. He was eventually admitted to another hospital, where he was diagnosed with respiratory failure, among other issues. In defiance of hospital staff warnings, Joseph's wife fed him solid food, which led to cardiopulmonary arrest and ultimately, his death on March 12, 2009. Joseph's wife filed a complaint individually and as the Administrator Ad Prosequendum of the Estate, alleging that the fall on January 8, 2009, was a result of Cedar Hill's failure to outfit the bed with bedrails and caused Joseph's death. The complaint asserted violations of a resident's rights under the Act, violations of defendants' responsibilities under the Act, general negligence, negligence per se, deviation from the standard of care and gross neglect, negligent supervision and negligent hiring, punitive damages, consumer fraud, survivorship, and wrongful death. Prior to trial, defendants moved for summary judgment. Defendants argued that plaintiffs' entire case rested upon a single hearsay statement. The motion court dismissed many of the claims, including the wrongful death count. However, the motion court denied summary judgment as to the claims of negligence and violations of the Act. The motion court also rejected defendants' hearsay argument. The matter then proceeded to trial on the claims of violations of the Act and negligence. At the close of trial, the court directed a verdict in favor of defendants on the claims under the Act, and thereafter, the jury found that plaintiffs failed to prove the negligence claim and returned a verdict of no cause. II. On appeal, plaintiffs make the following arguments: 1) reversal is required as the trial court erred in failing to comply with the Directive and failed to ask three open-ended questions; 2) the trial court erred in dismissing plaintiffs' claims under the Act; 3) the trial court erred in not granting a mistrial after the parties discovered during the trial that the certified chart relied upon was for a different patient; 4) the trial court erred in admitting evidence of a stroke; 5) the trial court erred in not admitting statements made by Joseph to the emergency room staff; and 6) the trial court committed plain error in its jury instructions. Defendants cross-appeal and argue that the motion court should have precluded Joseph's statement to the Cedar Hill staff as inadmissible hearsay. We address only the following arguments: 1) whether the trial court properly directed the verdict on counts brought under the Act; 2) whether the motion court properly denied the defendants' motion for summary judgment as it relates to the admissibility of Joseph's statement; and 3) whether the trial court committed reversible error by not following the Directive. After a review of the record and relevant law, we affirm the trial court's directed verdict and the admissibility of Joseph's statement. However, we hold that the trial court improperly disregarded the Directive by failing to ask open-ended questions during selection of the jury. Consequently, we are constrained to vacate the judgment, reverse, and remand for a new trial on the negligence claim. A. The Trial Court's Directed Verdict At the close of trial, the court directed the verdict on plaintiffs' claims under the Act. The court reasoned that plaintiffs could not maintain an action based on the evidence presented at trial. Although we find alternative grounds for directing the verdict, we uphold the result. On appeal, plaintiffs contend that any violation of a state or federal regulation, rule, or statute by a nursing home automatically constitutes a violation of the Act. See N.J.S.A. 30:13-3(h). We disagree. The Act "was enacted in 1976 to declare 'a bill of rights' for nursing home residents and define the 'responsibilities' of nursing homes." Ptaszynski v. Atl. Health Sys., Inc., 440 N.J. Super. 24, 32 (App. Div. 2015), certif. denied, 227 N.J. 357 (2016). The patient's "rights" are enumerated in n N.J.S.A. 30:13- 5(a) to (n). The nursing home's "responsibilities" are enumerated in N.J.S.A. 30:13-3(a) to (j). One such responsibility of a nursing home is to "ensur[e] compliance with all applicable State and federal statutes and rules and regulations." N.J.S.A. 30:13- 3(h). In addition, the Act includes two sections of enforcement for violations of these sections: N.J.S.A. 30:13-8(a) and N.J.S.A. 30:13-4.2. N.J.S.A. 30:13-8(a) provides, in pertinent part, that: Any person or resident whose rights as defined herein are violated shall have a cause of action against any person committing such violation. The Department of Health and Senior Services may maintain an action in the name of the State to enforce the provisions of this act and any rules or regulations promulgated pursuant to this act. N.J.S.A. 30:13-4.2 provides, in pertinent part, that: A person shall have a cause of action against the nursing home for any violation of this act [C.30:13-4.1, 30:13-4.2]. The Department of Health may maintain an action in the name of the State to enforce the provisions of this act and any rules and regulations promulgated pursuant to this act. We have held that neither section bestows upon an individual the unbridled right to bring a cause of action against the nursing home; rather, the statutes permit enforcement of the Act in limited circumstances. See Ptaszynski, supra, 440 N.J. Super. at 33-36. Under N.J.S.A. 30:13-8(a), a person can only bring an action for violation of one of the enumerated residents' "rights," set forth in N.J.S.A. 30:13-5. N.J.S.A. 30:13-8(a) does not "authorize a person to bring an action to enforce the nursing home's 'responsibilities' as defined in the law." Ptaszynski, supra, 440 N.J. Super. at 36. Furthermore, under N.J.S.A. 30:13-4.2, an individual can only bring an action as it pertains to security deposits, not for a nursing home's failure to fulfill its responsibilities under N.J.S.A. 30:13-3(h). Ptaszynski, supra, 440 N.J. Super. at 34-36. It follows that an individual does not have a private cause of action for a nursing home's violation of its responsibilities. An individual may have a cause of action against a nursing home for violations of the individual's rights. However, the Act simply does not provide the avenue for relief requested by plaintiffs. As such, the trial court's decision to direct the verdict was correct. B. Defendants' Cross-Appeal We next turn to defendants' cross-appeal. Defendants argue that the motion court erred by admitting Joseph's hearsay statement and denying summary judgment. Defendants contend that the motion court erroneously admitted the statement pursuant to a hearsay exception, and without the statement, plaintiffs' case falls apart. We do not agree.
regardless of the availability of a declarant: Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment. Thus, "statements which describe present or previous symptoms, pain or sensations [] or their history are admissible to prove the truth of the statements if the statements are relevant to an issue of the declarant's condition." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 803(c)(4) (2015). However, "[s]tatements as to the cause of injury, when the cause is irrelevant to diagnosis or treatment, are inadmissible under the exception." Palmisano v. Pear, 306 N.J. Super. 395, 400 (App. Div. 1997). The rationale underlying previous decisions "is that such statements possess inherent reliability because 'the patient believes that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides the physician.'" R.S. v. Knighton, 125 N.J. 79, 87 (1991) (quoting McCormick on Evidence § 292 at 839 (3d ed. 1984)). New Jersey cases faced with this issue have "demonstrate[d] an unwavering adherence to that rationale[,]" with varying results. Knighton, supra, 125 N.J. at 87. Some courts have held statements to be inadmissible if a declarant lacked the "treatment motive" or if the cause was irrelevant. See, e.g., Cestero v. Ferrara, 57 N.J. 497, 501 (1971); State v. D.R., 214 N.J. Super. 278, 288-89 n.4 (App. Div. 1986), rev'd on other grounds, 109 N.J. 348 (1988). Others have held that the cause of injury was relevant to diagnosis and treatment. Rose v. Port of N.Y. Auth., 61 N.J. 129, 138 (1972); Bober v. Indep. Plating Corp., 28 N.J. 160, 170-72 (1958); Greenfarb v. Arre, 62 N.J. Super. 420, 437 (App. Div.), certif. denied, 33 N.J. 454 (1960). We find Greenfarb instructive. There, a wife sued her husband's company for her husband's death. Greenfarb, supra, 62 N.J. Super. at 422. The wife alleged that her husband died due to two work-related injuries: when he tripped over a handtruck and when he lifted a 300-pound piece of dough. Ibid. After her husband felt ill, she called his physician for an examination. Ibid. The husband was hospitalized and diagnosed with a heart attack. Id. at 423-24. Eventually, this led to the husband's death. Id. at 424. At trial, the physician testified that the decedent had lifted the dough. Ibid. The physician also testified about the existence of a causal relationship between the lifting of the dough and the injury that caused the decedent's death. Ibid. We determined that the physician's statements as to the cause of injury were relevant to treatment and therefore admissible. Id. at 426-27, 437. In employing a flexible view of the hearsay exception, we considered the trustworthiness of the declarant at the time of the statement, the temporal nature of the statement, the condition of the declarant when speaking to the medical professional, and whether the medical professional pursued the inquiry to arrive at a diagnosis or treatment. Id. at 434. Here, applying these principles, we conclude that the motion court did not abuse its discretion in admitting the statement, and thus, the denial of summary judgment was not erroneous. Similar to Greenfarb, it is reasonable to conclude that Joseph's statement that he fell off the bed would help a diagnosis or treatment. Cf. Greenfarb, supra, 62 N.J. Super. at 426-27. The statement could have provided nuanced details to medical professionals that compelled additional tests or questions. Furthermore, nothing in the record suggests that Joseph's statement was made for the purposes of "collecting compensation benefits." Id. at 427. We agree with the motion judge's determination that Joseph's statement was trustworthy and not made with compensation in mind. As such, there was no abuse of discretion. 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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