On certification to the Superior Court, Appellate Division, whose opinion is reported at 243 N.J. Super. 218 (1990).
For affirmance -- Justices Clifford, Pollock and Garibaldi. For reversal and remandment -- Chief Justice Wilentz, and Justices Handler, O'Hern and Stein. The opinion of the Court was delivered by O'Hern, J. Pollock, J., dissenting.
In this medical-malpractice case, a patient undergoing a rather common cataract procedure lapsed into a coma from which she never recovered. There was clear evidence of neglect by the operating-room physicians adduced from the testimony of the physicians themselves. Their testimony independently established that they did not know among themselves who had the duty to terminate the operation when the patient's vital signs declined. The Appellate Division reversed a jury verdict for damages against the operating-room physicians and a consulting internist, primarily on the basis that plaintiff's expert testimony did not establish a deviation from a required standard
of care that was the proximate cause of plaintiff's injuries. We find that the aggregate of the testimony of the parties and the experts was sufficient to sustain the verdict, but we remand for a new trial on other grounds.
Plaintiff's decedent, Anna Lanzet, sustained oxygen deprivation to her brain as a result of cardiac arrest during an eye operation. That deprivation caused brain damage that left her in a persistent vegetative state until her death thirteen months later. During her lifetime, Anna and her husband, Max, instituted this proceeding. Max Lanzet died, and their daughter, Esther Lanzet, has continued the litigation as administratrix ad prosequendum. A jury found all four defendants liable and awarded to the estate of Anna Lanzet damages in the amount of $208,232, the stipulated amount of her medical expenses, and to Max's estate $500,000 on his per quod claim. It awarded nothing to Anna's estate for her pain and suffering. All four defendants moved for judgment notwithstanding the verdict, a new trial, a remittitur on Max's damages, or "any other relief pursuant to Rule 4:49-1 and 2." Plaintiff moved for a new trial on Anna's damages. The trial court denied the motions for judgment notwithstanding the verdict, granted defendants' motions for a new trial on the per quod award, and granted plaintiff's motion for a new trial on Anna's damages, limited to damages arising from her disability and impairment. The Appellate Division denied defendants' motions for interlocutory appeal from the judgment on liability but granted plaintiff leave to appeal. It then affirmed the trial court's order that limited Anna's claim to disability and impairment, explicitly excluding pain and suffering. 222 N.J. Super. 540, 537 A.2d 742 (1988).
On retrial, the jury returned a verdict of $1,300,000 for Anna's disability and impairment and $260,000 on Max's per quod claim. Defendants appealed. The Appellate Division held that plaintiff had failed to prove a prima facie case because the medical expert's testimony had failed adequately to establish the relevant standard of care and causation. The court therefore
held that the defendant physicians were not liable and reversed the order denying judgment notwithstanding the verdict. 243 N.J. Super. 218, 579 A.2d 309 (1990). We granted certification, 122 N.J. 396, 585 A.2d 395 (1990), and now reverse in part the judgment of the Appellate Division. We hold that the evidence sufficed to establish a standard of care, a deviation from that standard, and a causal link between the deviation and the injury. We believe, however, that in the circumstances of this case, because the instructions to the jury did not recite sufficiently the principles of medical causation that applied to the proofs before the jury, the proper appellate response is to order a new trial rather than enter judgment for either party.
Because we are reviewing the denial of a judgment notwithstanding the verdict, we view the facts in the light most favorable to plaintiff. Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969); R. 4:40-2. Judge Antell, writing for the Appellate Division, accurately and concisely summarized what happened in the hospital:
Anna Lanzet was admitted on August 28, 1983, to Greenville Hospital in Jersey City for surgery the following day. Dr. Oen, an internist, examined her on the day of her admission and prescribed Hydro-DIURIL, a diuretic, to lower her blood pressure. Mrs. Lanzet, who was 65 years old, had been treated for high blood pressure for the previous two years. Dr. Oen then cleared the patient for surgery the following morning and recommended a local anesthesia.
On the morning of surgery Dr. Oen was notified that Mrs. Lanzet's blood pressure was again elevated to a reading of 170/100. By telephone, Dr. Oen then prescribed an administration of Lasix, another diuretic. The medication was given and the patient's blood pressure returned to 140/94. She was then again cleared for surgery by Dr. Oen.
Dr. Bekhit, the anesthesiologist, also examined Mrs. Lanzet on the evening of August 28 and again on the morning of surgery. He knew that a drug had been administered to lower the patient's elevated blood pressure, and he concluded from his examination that surgery was not contraindicated. Before the operation, Dr. Bekhit discussed the case with Dr. Greenberg, who, assisted by Dr. Scannapiego, was to perform the cataract surgery. Since it was to be done under a local anesthetic, Dr. Bekhit's role was essentially to monitor the patient and to respond to emergencies involving her vital signs. [243 N.J. Super. at 222-23, 579 A.2d 309.]
We note several additional details regarding the operation for a complete record. Dr. Oen's initial assessment of Anna's readiness for surgery included a review of her radiologist's x-ray report. The radiologist had concluded that she suffered from chronic congestive heart failure and an enlarged heart. Dr. Oen disagreed with that reading. She did not consult with the radiologist about the divergent readings.
The cataract operation was performed under local anesthesia. The anesthetic was injected into the sensory nerves behind the eyeball. That anesthetic will, in many instances, prevent stimulation of the vagal nerve, which in turn will slow the heart rate. The operation consisted of a surgical slice into the eye, removal of the cataract, insertion of a plastic lens, and resealing of the eye.
One of the ophthalmologic surgeons, Dr. Greenberg, performed the surgery. Dr. Scannapiego, also an ophthalmologist, acted as assistant surgeon. Throughout the operation, both of the surgeons had to maintain a constant focus on the patient's eye, each through a separate microscope in the operating room, somewhat as if they were viewing the eye through a twin set of binoculars. The rest of Anna Lanzet's body was under what was described as a tent-like drape. Only her upper face was visible to the eye surgeons.
Throughout the operation, Dr. Greenberg sat at the head of the operating table. Dr. Scannapiego sat just to his left. Dr. Bekhit, the operating-room anesthesiologist, was at Dr. Greenberg's right, beside the patient. He had access to the patient's arm and hand. There was also an electrocardiogram (EKG) machine in the operating room. When attached to the patient, that machine constantly reports a patient's pulse rate and emits (we are told in this case) both audible and visible signals. The former is referred to as a "beep" and the latter as a "monitor," presumably an illuminated numerical reading. A "code" is a signal to available heart emergency teams to report immediately
to the scene of need to administer cardio-pulmonary resuscitation (CPR) to the patient.
Judge Antell recounted the events during the operation:
Surgery began at approximately 11:15 a.m. after the patient had been given 1 cc of Innovar (a very small dose), a sedative which plaintiff's expert acknowledged to be a "perfectly appropriate medication to give preoperatively." At 11:20 a.m. it was noted that the patient's pulse had dropped to 45 from a reading of 65 at 11:10 a.m. Dr. Bekhit responded by administering intravenously .4 milligrams of Atropine and after one or two minutes the rate returned to 60, an acceptable level for surgery. Between 11:32 and 11:35 a.m. the pulse rate resumed its decline and fell below 40. Thereupon another .2 milligram dose of Atropine was administered and a third administration was given between 11:36 and 11:37 a.m. At 11:40 a.m., when the rate dropped to 20 and the patient became cyanotic [blue discoloration attributable to loss of oxygen], a code was called and the operating team applied themselves exclusively to resuscitative measures. By this time, however, the curtailed blood flow to the brain and the resulting oxygen starvation resulted in a global cerebral hypoxia which left Mrs. Lanzet in a chronic persistent vegetative state until her death some 13 months later. [243 N.J. Super. at 223, 579 A.2d 309.]
The qualitative difference between the standard to grant a new trial and the standard to grant a judgment notwithstanding the verdict must be recognized. A motion for a judgment notwithstanding the verdict, R. 4:40-2, like one for involuntary dismissal, R. 4:37-2(b), must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b); see S. Pressler, Current N.J. Court Rules, R. 4:40-2 comment (1991). In each case, "the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could differ, the motion must be denied." S. Pressler, supra, R. 4:40-2 comment (1991); see Dolson v. Anastasia, supra, 55 N.J. at 5-6, 258 A.2d 706 (distinguishing this "rather mechanical" standard from the more discretionary standard that the reviewing court may apply in connection with a new trial motion).
That standard for resolving issues of fact, however, is vastly different from the standard for retrying issues of fact. The latter is a more flexible standard by which the court may set aside the verdict of the jury, if contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice, or partiality. The essence of that standard has been incorporated in Rule 2:10-1, which permits an appellate court to overrule a trial court's ruling on a motion for new trial if "it clearly appears that there was a miscarriage of justice under the law." An appellate court should give considerable deference to a trial court's decision to order a new trial, as the trial court has gained a "feel of the case" through the long days of the trial.
The critical issue in this appeal is whether there is any evidence from which a jury could have inferred that one or more of the physicians had deviated from accepted medical standards in their care of the patient and whether any such deviation was a factor that contributed to cause Anna Lanzet's brain to lose oxygen and to cause her to slip into the coma from which she never recovered.
Some of the confusion below may stem from the scattershot approach that plaintiff took to assess liability against the defendant physicians. At times plaintiff seemed to be pursuing an Anderson v. Somberg, 67 N.J. 291, 338 A.2d 1, cert. denied, 423 U.S. 929, 96 S. Ct. 279, 46 L. Ed. 2d 258 (1975), approach to liability, suggesting that someone had to be responsible for plaintiff's misfortune. This is in no sense an Anderson v. Somberg case, in which one of the defendants had to have been responsible for leaving a broken tip from a surgical instrument in the plaintiff's body. In addition, plaintiff here pursued theories of liability that her expert could not or would not sustain. For example, plaintiff asserted that the reinjection of Atropine following the second decline in the heart rate was a deviation, but plaintiff's expert had to admit on cross-examination
that in his own treatise on anesthesiology he had stated that reinjection is an accepted medical practice when a patient does not respond to the first dosage. Understandably, counsel for defendants argued that plaintiff's expert had exonerated them of liability on a central charge of malpractice. Nevertheless, exoneration of defendants on that theory of liability did not exonerate them on all theories of liability.
One critical aspect of deviation plainly presented a jury question of liability, albeit perhaps under an incorrect theory of responsibility. That aspect questioned the failure of the operating surgeons to heed the anesthesiologist's suggestion to terminate the operation during the critical five-minute period when the patient's heart rate was failing and at a time when catastrophic results might have been avoided.
In considering the issue of sufficiency of the evidence, we cannot limit ourselves to what one witness said or even one expert's theory of neglect. The question under the rule of appellate review is whether, considering "all the evidence" from both plaintiff and defendants, there is an adequate basis in law for a finding of professional neglect. S. Pressler, supra, R. 4:40-2 comment.
By far the clearest examples of the sufficiency of the evidence of malpractice, at least with respect to the three operating-room physicians, came from Dr. Hein, one of the defense experts. A significant amount of trial time was devoted to the cause of Mrs. Lanzet's heart failure. Dr. Hein believed that a mechanical blockage had caused the heart failure and thus the loss of oxygen. As no autopsy was performed, there is no medical certainty about what caused her heart failure. At times the trial was confused by the question of whether the physicians' conduct was the cause of the heart problem. Plaintiff, however, had to establish not that the heart episode was caused by the physicians' neglect but rather that they had insufficiently attended to it when it developed.
Hence, of critical significance to plaintiff's case was whether she had established any deviation on the part of the three operating-room physicians that lessened the patient's chances of recovery. On cross-examination, plaintiff's counsel put to the defense expert, Dr. Hein, an assessment of his opinion in light of the various items of evidence. Plaintiff's counsel, in an extended question, asked the physician to consider all of the evidence favorable to plaintiff's case, including the fact that the cardiac monitor had made a beeping sound with each heartbeat; that Anna Lanzet's heart rate had slowed from sixty to twenty between 11:30 and 11:40; that between 11:35 and 11:40 three additional dosages of Atropine had been given, and each time the anesthesiologist told everyone in the operating room what the response was or was not; that the heart rate had continued to go down; that at about 11:35 the circulating nurse had poked the surgeon in the back and said, "Look over at the monitor"; that the operation had not concluded until 11:40; that when the drapes had been removed from the patient, the nail beds of her right hand were cyanotic or discolored; and that the patient's face or lips had been bluish in color and the patient had been pale and sweating. Dr. Hein was asked if, under those circumstances, he would say that the damage had occurred during the surgery. He replied that it was difficult to answer because he knew from the documents and the testimony that "some of the things that [plaintiff's counsel] asked me were, in fact -- did not happen, and this is why my opinion is based upon what I know as being fact." Plaintiff's counsel followed up the question, asking:
Q. If -- if, in fact, any of the facts that I related are true, then your opinion would not be valid. Is that fair to say?
A. Well, I would say, if -- in answer to that question, it's possible that if the -- if she were attended to faster, it might have made a difference, although I still suspect that the pulmonary embolism was the underlying cause of this, and regardless of what was done and at what time, the same -- the end result would have been exactly the same.
That admission mirrors the opinion of plaintiff's expert, Dr. Stark, that an "earlier intervention would have saved Anna Lanzet's brain."
The standard of care expected of the physicians was not disputed. The trial judge elicited that standard from the defense expert, Dr. Hein. Paraphrasing a question that had been asked by counsel, the court asked:
THE COURT: Postulating standards, whether there's a departure from it or honoring it, adhering to it, is part of the standard that the operating room personnel be attentive to the needs of the patient? I believe that is the question.
THE WITNESS: The answer, judge, would be yes, of course.
[PLAINTIFF'S COUNSEL]: It would be good, sound operating room procedure for everyone in there, including the surgeons and the anesthesiologist, to be aware of the patient's needs. Isn't that fair to say?
There is simply no doubt in this case that there was evidence of a standard of care required of all attending physicians in the operating room. Because the defense expert conceded that "if she were attended to faster, it might have made a difference," all that remained for the jury to determine, by that defense witness's own admission, was whether the "good sound operating room procedure for everyone in there * * * to be aware of the patient's needs" had been followed.
For each of the critical facts concerning "aware[ness] of the patient's needs," plaintiff did not rely on her expert to establish the facts. She established the facts by calling as her own witnesses the physicians who had attended to Mrs. Lanzet, as well as the operating-room personnel. Dr. Bekhit, the anesthesiologist, testified directly from his anesthesiology records, of which a blowup had been made and set up on a chart in the courtroom. He said that at 11:35 the patient's heart rate had dropped. Originally, in his deposition he had said that it had dropped to twenty heartbeats per minute at 11:35, but at trial he said he had made a note: "11:35, rate dropping to 30 and lower." He was asked, "did it continually go down?" He said, "it didn't go up." He was asked if he had informed the attending physicians. He said, "I told them what was there." He was asked if he had suggested that they discontinue the operation. He said, "I did suggest stopping the operation.' (Emphasis added).
Nurse Algeria, the circulating nurse, testified to notations made at 11:35: "Rate dropping to 30 and lower." There was conflicting evidence on exactly when she "poked" the surgeon in the back, but at one point she said that the decline in the heart rate and the poke had "coincided," which would put the time of danger at a full five minutes. She testified that as she had stood at the far end of the operating room table at 11:35, she could hear the patient's heart rate declining. She described the operating room as "very quiet and serene." Dr. Hein, who testified on behalf of Dr. Greenberg, agreed that "every doctor would know what the beeps are signifying." Such a drop in the heart rate was of critical significance because Dr. Bekhit had testified on depositions that the operating team had been made aware of the initial drop in the heart rate at 11:20 and of his initial treatment, and "of the recovery, of course, because if it didn't recover, everything would stop." By 11:35 the rate had dropped to thirty.
All of the operating-room physicians agreed that they were aware that the patient had had an episode of elevated blood pressure that morning and that they were to "monitor the patient closely." Dr. Bekhit conceded that at 11:35 the patient's condition had become serious, although he had still believed that he could maintain her heart function. Dr. Bekhit insisted that he had kept the surgeons informed of her condition. Dr. Greenberg agreed that if the patient had chronic congestive heart failure, a condition that the patient's records disclosed, it "is a serious condition * * * yes it is."
In addition, Dr. Bekhit's examination by plaintiff's counsel established the basis for a finding of inattention by the operating team:
Q. Did you speak to [Dr. Greenberg] more than once?
Q. What did you talk to him about after 11:35?
A. The blood pressure is such and the heart rate is such and it is dropping.
Q. Did you tell him you were giving Atropine?
Q. Did you tell him that the blood pressure and the pulse were continually dropping?
Q. Did you discuss stopping that surgery?
A. I did suggest stopping the operation. Then, they see at what stage and whether it is safe for them to stop the operation and start resuscitation if needed or not. Why do you stop an operation? To do something, right?
Q. Was the patient in any danger during this five-minute interval between 11:35 and 11:40?
A. I can tell you whether she was in danger or not.*fn1 [Emphasis added.]
To hold that a prima facie case of deviation had not been made out would render pointless the extended line of cross-examination of Dr. Stark by one of the defense counsel. He asked Dr. Stark to accept his view of the facts: (1) that Nurse Algeria's "poke" had occurred at 11:40 (not 11:35), and (2) that there had been "no communication between Dr. Bekhit [and the surgeons] as to [the patient's] heart rate between 11:35 and 11:40." He then asked Dr. Stark: "If that were a fact in this case, that would change your opinion with regard to any deviation on the part of Dr. Scannapiego and Dr. Greenberg as well. Correct?" Dr. Stark answered: "Yes." But the question proves the point. If the facts were otherwise, there was a deviation and the jury was uniquely qualified to resolve the factual dispute.
In addition, a reviewing court must consider what it totally misses in a dry record of the case -- that indefinable sense of what went on in the courtroom. That ever-changing dynamic of facial expressions, belief, and disbelief is what inexorably leads a jury to its verdict. The trial court caught the essence of it when it reminded counsel in its letter opinion that a particular defense theory "must be viewed in light of the recapitulation of the evidence [as to the theory] here set forth, the words incapable of conveying the graphic detail of in-court testimony.' (Emphasis added).
This jury could not but have experienced a shattering loss of confidence in the defense version in view of the patently conflicting statements of the physicians themselves. The original report of Dr. Scannapiego dictated contemporaneously with the operation was no longer available. A cassette in the recording machine was said to have run out. Plaintiff's counsel read to the jury a devastating comparison of answers to requests for information about how the operation had proceeded. We summarize but a few of them:
Dr. Bekhit Dr. Greenberg Dr. Scannapiego
The operation on Admits "I have insufficient Admits
Anna Lanzet started knowledge with re-
at 11:15 a.m. on Au- spect to this and ac-
gust 29, 1983 cordingly I am un-
The pulse rate of Admits Denies