On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Stein, J. Handler, J., concurring.
[119 NJ Page 121] In this case, as in Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990), also decided today, we consider application of the doctrine of increased risk, see Evers v. Dollinger, 95 N.J. 399,
471 A.2d 405 (1984), in medical-malpractice litigation. The primary issue in this appeal is the correctness of the trial court's instruction to the jury on the causal relationship between the alleged negligence of the defendant-physicians and the patient's death. The trial court instructed the jury that proximate cause would be established if it found that defendant Slobodian's failure to perform an endoscopy increased the risk of harm to plaintiff's decedent and, in combination with other factors, was a substantial factor in causing her death. In an unreported opinion, the Appellate Division held that the charge "correctly recognized the applicability of the 'increased risk' doctrine," but constituted reversible error in failing also to inform the jury that causation is established if there was a "substantial possibility" that the decedent could have survived if properly treated. We hold that the trial court's instruction was correct, but we remand for retrial on other grounds.
On November 29, 1983, defendant Howard Slobodian performed surgery on Lilliann Olah to drain a pancreatic pseudocyst. The surgical procedure established a "window" in the stomach wall to allow built-up fluids to flow from the pseudocyst into the stomach. Mrs. Olah was discharged from the hospital on December 6, 1983. There is no allegation of negligence in the diagnosis of or the surgery on the pseudo-cyst.
On December 14th, paramedics took Mrs. Olah back to the hospital after she had collapsed in her bathroom. She was suffering from nausea, epigastric and lower-back pain, and weakness. Dr. Bretones, Dr. Slobodian's associate in medical practice, admitted Mrs. Olah and made a tentative diagnosis of bleeding of the upper gastrointestinal tract. He ordered two units of whole blood and Mrs. Olah was stabilized.
On December 15th, Dr. Bretones again examined Mrs. Olah, noting that her condition had improved. The following day, December 16th, Dr. Slobodian attended Mrs. Olah. That was
the only day during that hospital stay that Dr. Slobodian saw her. He found her condition improved, prescribed oral medication, and increased her diet. He and Dr. Bretones consulted and agreed that a "GI workup," to determine the source of Mrs. Olah's bleeding, should be scheduled after Mrs. Olah was feeling better.
On December 17th, 18th, and 19th, Dr. Bretones again visited Mrs. Olah and found her condition steadily improving. The December 19th progress report notes no pain, no fever, and "much" improvement. Mrs. Olah was discharged on December 19th.
When she got home from the hospital, Mrs. Olah's nausea returned. She ate crackers to try to settle her stomach. On the morning of December 20th, Mrs. Olah collapsed and vomited blood. Returned, once again, by ambulance to the hospital, she had no palpable blood pressure. Intravenous fluids restored her blood pressure to the palpable range. Informed of Mrs. Olah's condition, Dr. Slobodian responded, and found her being attended by the emergency room crew. He examined her, then consulted with a radiologist, who believed that an arteriogram would not be helpful, and consulted with Dr. Hodes, a gastroenterologist, who is also a defendant in this case.
Dr. Hodes arrived at the hospital at 1:00 p.m., saw the patient, and discussed with Dr. Slobodian the advisability of doing an endoscopy, a procedure that permits visual inspection of the stomach wall by means of fiberoptics. Both Dr. Slobodian and Dr. Hodes agreed that Mrs. Olah should undergo an endoscopy. The only question was when the procedure should be performed. Because emergency surgery was not contemplated, Dr. Hodes preferred to delay endoscopy until the patient had become stabilized. In the event bleeding recurred, however, he would perform the endoscopy on an emergency basis.
Mrs. Olah's condition remained fairly stable, even improved slightly, until just after four in the afternoon. Then she took a
dramatic turn for the worse. She developed a disorder of the blood-clotting mechanism called disseminated intravascular coagulapathy (DIC). The body, in response to a shock such as blood loss, reacts defensively by making the blood extremely clottable. During DIC, this extremely clottable blood begins, spontaneously, to clot in the smallest blood vessels. The formation of these clots throughout the body quickly uses up the clotting factors in the blood. Once that happens, the patient begins to hemorrhage and usually dies. Despite attempts to save her, Mrs. Olah died of blood loss on the evening of December 20th.
This suit for wrongful death centered on allegations that Dr. Slobodian and Dr. Hodes were negligent in their treatment of Mrs. Olah. A claim against Dr. Bretones was severed before trial. There were three distinct allegations of negligence against Dr. Slobodian and one against Dr. Hodes. Plaintiffs' experts testified that Drs. Bretones and Slobodian had negligently failed to recognize signs of continued instability and ongoing bleeding during Mrs. Olah's December 14th-19th hospitalization. Performance of diagnostic tests, including endoscopy, during that period might have led to discovery of the source of Mrs. Olah's bleeding. If the source of her bleeding had been discovered, surgery to repair the site of the hemorrhage would very likely have succeeded.
Plaintiffs' case in this regard was somewhat truncated by Dr. Bretones's absence from the proceedings. Because Dr. Slobodian was deemed not vicariously liable for the omissions of Dr. Bretones, the jury was permitted to consider only Dr. Slobodian's actions during his visit with Mrs. Olah on December 16th. The jury found no causal connection between any alleged negligence on December 16th and the patient's future suffering and eventual death.
Plaintiffs' second allegation was that Dr. Slobodian was negligent in not ordering endoscopy for Mrs. Olah between the hours of one and four in the afternoon on December 20th,
during the period when her condition had temporarily stabilized. The alleged negligence of Dr. Hodes also concerns the decision not to perform endoscopy during this period. Plaintiffs' expert testified that a patient with Mrs. Olah's immediate medical history might start hemorrhaging again at any moment, making it appropriate to perform an endoscopic examination during any period of stability.
Plaintiffs' third allegation was that it was negligent of Dr. Slobodian not to intervene surgically in order to save Mrs. Olah after the onset of DIC. Plaintiffs' expert testified that even after Mrs. Olah's blood had lost the capacity to clot, surgery was appropriate and inaction was negligent. The expert testified that without surgery she was bound to die, whereas surgical intervention offered at least a twenty-percent and possibly as high as a forty-percent chance of survival.
The most sharply disputed issue at trial concerned causation. Defendants argued that there was insufficient evidence for a jury to find that any of the alleged acts of negligence had, within a reasonable medical probability, caused Mrs. Olah's death. The trial court declined to submit to the jury the issue of Dr. Slobodian's alleged negligence in failing to perform exploratory surgery once DIC had set in, concluding that there was insufficient evidence to warrant its consideration by the jury. The court found, however, that sufficient evidence had been offered to submit to the jury the question of negligence during the December 14th-19th hospitalization, as well as the allegations of negligence in failing to perform an endoscopy between one and four in the afternoon on December 20th.
Charging the jury on the question of causation, the trial court applied a standard of causation derived from our opinion in Evers v. Dollinger, supra, 95 N.J. at 417, 471 A.2d 405. The court stated:
Now, in the context of this case, the term "proximate cause" would have to mean that within reasonable medical probability the medical negligence, if you determine it to exist against the particular doctor for not scoping or causing the scope to be ...