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Weiss v. Goldfarb

November 20, 1996


On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Approved for Publication November 20, 1996.

Before Judges Pressler, Stern and Wecker. The opinion of the court was delivered by Pressler, P.j.a.d.

The opinion of the court was delivered by: Pressler

The opinion of the court was delivered by PRESSLER, P.J.A.D.

This is a medical malpractice case. Plaintiff's decedent, Robert A. Wood, died following a cardiac arrest while undergoing dialysis at St. Michael's Medical Center. He had come to the dialysis unit from the hospital's telemetry unit where, because of a variety of arrythmia problems, his heart had been continuously monitored since his arrival at the hospital two days earlier. He was not connected to a monitor in the dialysis unit. The gravamen of the plaintiff's case is that the hospital and the physicians and nurses responsible for decedent's care were negligent in permitting the dialysis to take place without decedent's heart being monitored and that had it been monitored, the cardiac arrest would have been observed and counteracted and his life would have been spared. The jury found the hospital alone to have been negligent, returning a verdict against it of $150,000, of which only $10,000 was collectible by reason of the limitation of N.J.S.A. 2A:53A-8. *fn1 Plaintiff appeals from both Judge and jury findings of non-liability in respect of the other defendants and from the Judge's refusal, based on the authority of Johnson v. Mountainside Hospital, 239 N.J. Super. 312, 571 A.2d 318 (App. Div.), certif. denied, 122 N.J. 188 (1990), to apprise the jury of the statutory damages limitation in favor of the hospital. We affirm in part and reverse in part. Decedent, then 67 years old and suffering from long-term hypertension and various coronary and renal problems, was admitted to St. Joseph's Hospital in June 1989 complaining of chest pain. He was there diagnosed as suffering from non-sustained ventricular tachycardia and atrial fibrillation, as well as from chronic kidney failure. An angiogram revealed some blockage of a coronary artery. He was placed on a heart monitor and also began to receive dialysis treatments on a three-day a week schedule, remaining on the monitor during the treatments. His cardiologist, Dr. Cohen, concerned that the arrhythmia problems might be life-threatening in that they posed a risk of fatal ventricular fibrillation, wanted defendant to submit to electro-physiological diagnosis as the basis for a treatment plan. Since St. Joseph's did not have an electro-physiology service, Dr. Cohen referred decedent to the telemetry unit at St. Michael's and to the care there of Dr. Irwin Goldfarb as attending cardiologist and Dr. Donald Rubenstein, a specialist in arrhythmia problems and director of St. Michael's electro-physiology unit.

Decedent arrived at St. Michael's on Thursday, July 13, 1989, two weeks after his admission to St. Joseph's. He was immediately placed in the telemetry unit under the care of Drs. Goldfarb and Rubenstein. Being placed in the telemetry unit meant that the patient was connected automatically to a cardiac monitor under continuous observation. Dr. Rubenstein performed a series of electro-physiological tests on Friday, July 14. He concluded that the major arrythmia problem, the ventricular tachycardia, was "benign" in that it could not be electrically induced. In an attempt to control the arrythmia with medication, he prescribed two drugs, Tenormin and Quiniglute. Late Friday afternoon, Dr. Goldfarb, with whom Dr. Rubenstein had been conferring, left for the weekend and turned decedent's general cardiac management over to Dr. Adolph Senft, the cardiologist who was covering for him. In the meantime, decedent had missed his Friday dialysis treatment, and after inquiry from his family, Dr. Goldfarb, on that Friday evening, telephoned Dr. W.R. Chenitz, chairman of St. Michael's nephrology department, to arrange to have decedent dialyzed the next day, Saturday. As Dr. Chenitz was also planning to be away that weekend, he turned decedent's nephrology care over to another nephrologist, Dr. Bassam Haddad.

Dr. Haddad visited decedent in the telemetry unit at 7:30 a.m. on Saturday. He reviewed the chart, noted the electro-physiologically confirmed diagnosis of non-sustained ventricular tachycardia as well as decedent's various other diagnoses, gave decedent a physical examination, and was satisfied that his condition was stable. It was his judgment that the dialysis could and should proceed, and he wrote the order for a three-and-a-half hour dialysis treatment to take place that afternoon. Half an hour later, at 8 a.m., Dr. Senft was telephoned by a telemetry-unit nurse who advised him that decedent had developed a junctional rhythm, an abnormality indicating potentially serious risk to the patient. Dr. Senft immediately went to the unit, verified that that was so, and called Dr. Rubenstein. Dr. Rubenstein had decedent get out of bed and walk around. After about half an hour, his heart returned to a normal sinus rhythm, leading Dr. Rubenstein to believe that the episode of junctional rhythm had been caused by decedent's protracted lying in bed or the Tenormin or a combination of the two. He therefore wrote an order discontinuing the Tenormin and continuing the Quiniglute.

Decedent was taken to the dialysis unit at about noon. It is undisputed that he arrived there unconnected to a cardiac monitor although no order had been written in decedent's chart discontinuing the monitoring. It is also undisputed that Dr. Haddad's dialysis order did not mention monitoring although the dialysis unit had a monitor. It was never clearly established by whom or by whose order decedent was disconnected before leaving the telemetry unit. Apparently, although the decedent's full chart accompanied him to the dialysis unit, the practice in the dialysis unit was for the dialysis nurse to concern herself only with the nephrologist's dialysis order. Angelina Forshage, the original attending nurse, was not even aware that decedent had come to dialysis from the telemetry unit. In any event, in preparing decedent for dialysis, she noted that he had an irregular heartbeat. She did not, however, report this finding to a physician although she did discuss with Dr. Haddad, by telephone, details regarding the dialysis solution he had prescribed.

The dialysis treatment began at about 12:30 p.m. Forshage checked decedent's vital signs half an hour later, again twenty minutes later, and then forty-five minutes after that. At 2 p.m., after making her last check, she left for lunch and turned decedent over to another nurse, Lily Matulac. Matulac first checked decedent's vital signs at 2:25 p.m. She found him unresponsive with no blood pressure. An alert code was called, and decedent was eventually resuscitated. He had, however, sustained irreversible brain damage as a result of loss of oxygen and remained in a coma. He died a month later without regaining consciousness. Plaintiff's experts all opined that had his heart been monitored during the dialysis, the arrest could have been avoided altogether or counteracted in time to avoid consequential brain damage.

Plaintiff Nancy Weiss, executrix of decedent's estate and of the estate of his widow, Christine Wood, who died a year after he did, commenced this malpractice action against St. Michael's; the two nurses; two residents, Drs. Matthews and Guma, who had attended decedent in the telemetry unit; and all the attending doctors, Drs. Rubenstein, Goldfarb, Senft, Haddad and Chenitz. Prior to trial, partial summary judgments were granted dismissing Dr. Chenitz and the two residents. Following the close of plaintiff's proofs at trial, her claims against Dr. Goldfarb and the two dialysis nurses were dismissed pursuant to R. 4:37-2(b). The case went to the jury against Drs. Rubenstein, Senft and Haddad and the hospital. The jury returned a verdict finding no cause for action against the doctors but finding that the hospital was negligent. It awarded total damages of $150,000 of which, as we have noted, only $10,000 is collectible. Plaintiff's motion for a new trial was denied, and she appeals from the partial summary judgments, the jury verdict, and the denial of her new trial motion. She raises these primary contentions: (1) the court erred in refusing to permit her to use the deposition of Dr. Chenitz during trial or to call him as a rebuttal witness, (2) there were sufficient disputed facts respecting liability to have precluded the grant of the partial summary judgment motions and the motions under R. 4:37-2(b), (3) the jury verdict was against the weight of the evidence, and (4) plaintiff was entitled to an ultimate outcome charge in respect of the statutory limit on the hospital's liability.

As to the partial summary judgments, we carefully reviewed the record and we are satisfied that plaintiff's proofs against Dr. Chenitz and the two residents failed to make a prima facie case against any of them. See Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146 (1995). We affirm those judgments substantially for the reasons stated by the respective motion Judges.

Before considering the remaining issues plaintiff raises in respect of the remaining defendants, we refer more specifically to the proofs. Plaintiff's experts included a cardiologist, a cardiologist with an electro-physiological sub-specialty, and a nephrologist. Each of the defendant physicians produced an expert in his own field of practice. *fn2 With respect to the three cardiology defendants, plaintiff's experts opined that particularly in view of the development of the junctional rhythm on Saturday morning, one or the other of them should have put off the dialysis, one or the other of them should have discussed decedent's case with the nephrologist before dialysis instead of leaving the nephrologist to the notes in the chart, and Dr. Rubenstein should immediately have discontinued the Quiniglute as well as the Tenormin. Drs. Rubenstein and Senft testified in great detail respecting their management of decedent's care in the telemetry unit and the reasons for their challenged decisions, and their experts fully supported the professional competence of their judgments and actions. Our careful review of the record convinces us that the jury's verdict of no cause in respect of these two cardiologists, contrary to plaintiff's assertion, comported with the weight of the evidence. We are also satisfied that the R. 4:37-2(b) dismissal of the claim against Dr. Goldfarb was entirely proper. He had turned over decedent's care to Dr. Senft before the appearance of the junctional rhythm, he had made the required contact with the nephrology department, and he had made clear, detailed, and appropriate notes in decedent's chart. There was no case against him. We note, moreover, that since the jury found no liability on the part of Dr. Rubenstein and Dr. Senft, both of whom were considerably more involved with decedent's care as matters turned out, we are persuaded that even if the case against Dr. Goldfarb had continued, the likelihood of a verdict against him was a most remote possibility.

That leaves plaintiff's claims against the nephrologist, Dr. Haddad, and the two nurses in the dialysis unit. We conclude that it was error for the trial Judge to have dismissed as against Nurse Forshage but not as against Nurse Matulac. We are also satisfied that plaintiff's case against Dr. Haddad was substantially prejudiced by the trial court's error in not permitting plaintiff to call Dr. Chenitz as a rebuttal witness or to use his deposition on cross-examination. There must consequently be a new trial as to these two defendants.

Our analysis of the case against Dr. Haddad and Nurse Forshage and our Conclusion of error affecting their exculpation from liability, one by the Judge and the other by the jury, is premised on the unanimous assertion by all the cardiologists who testified, both parties-defendant and experts for both sides, that decedent should not have been disconnected from the cardiac monitor when he went from the telemetry unit to the dialysis unit or, at least, that if he needed to be disconnected for purposes of transport from one unit to the other, he should have been reconnected when he got to the dialysis unit. The leit motif of that expert testimony is not only that decedent needed the monitoring because of the complex and threatening nature of his cardiac problems, but, even more significantly, that once monitoring has been ordered by a physician, medical and hospital protocol requires a specific order to discontinue monitoring before a patient can be disconnected. There is no question that there was no order in decedent's chart for the discontinuation of monitoring. Drs. Rubenstein and Senft ...

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