On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-1817-96.
Before Judges Petrella, Newman and Wells.
The opinion of the court was delivered by: Newman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
During surgery at defendant Burdette Tomlin Medical Center ("Burdette Tomlin"), plaintiff Woodrow Hall suffered a cardiac arrest and as a result remains in a persistent vegetative state. Plaintiffs*fn1 presented two theories of liability at trial: one, that defendants Baltazar Rodricks, an anesthesiologist, and John Marstella, a certified registered nurse anesthetist, failed to properly ventilate plaintiff during the surgery, and two, that Robert Salasin, a surgeon, failed to transfuse blood prior to surgery. The jury returned a verdict in favor of plaintiffs for $7,828,420 against Marstella and Rodricks, finding Marstella sixty percent at fault and Rodricks forty percent at fault. The jury found Salasin negligent, but did not find that his negligence was a proximate cause of the injury. Marstella and Burdette Tomlin, his employer, (referred to jointly as "defendants") and Rodricks have filed separate appeals from the same judgment. Plaintiffs have filed a cross-appeal, contending the court erred in dismissing their loss of parental consortium claim.
Defendants and Rodricks argue that the court erred in: 1) instructing the jury that failure to communicate was negligence, in failing to define the terms "medically significant" and "communication," and in charging a "one-sided" recitation of the facts; 2) permitting plaintiffs' and Salasin's experts to testify that Marstella and Rodricks had deviated from the experts' personal standards of care, as opposed to the established standards of care for an anesthesiologist and nurse anesthetist; 3) allowing testimony regarding Marstella's failure to set the alarms on the monitoring machines and failure to keep legible records; 4) admitting portions of a medical textbook under the learned treatise exception to the hearsay rule because the experts did not rely on the text in formulating their opinions for trial; 5) restricting their cross-examination of Salasin regarding bias; 6) instructing the jury to consider whether Salasin's conduct involved the exercise of judgment; 7) instructing the jury as to Rodricks's duty to supervise Marstella because the charge was not supported by substantial credible evidence and the language of the charge was erroneous; 8) instructing the jury that in assessing future medical expenses plaintiff had a right to be cared for at home; 9) awarding prejudgment interest on the future loss damages; and 10) limiting closing argument to one hour.
Defendants, but not Rodricks, also argue that: 1) the court erred in denying their application to dismiss juror number four after she commented that plaintiff's children were lovely; and 2) denying their motion for a change in venue.
Because of the commonality of issues, we consolidate the appeals for the purpose of this opinion. We affirm both the direct appeal of defendants and Rodricks and the cross-appeal of plaintiffs.
Since we are only publishing issues relating to damages, our discussion of the facts will be limited to the damages testimony and to the legal issues involving the jury instruction and plaintiff's right to be cared for at home in assessing future medical expenses and awarding prejudgment interest on the future loss damages.
[At the court's direction, the facts relating to liability have been redacted for publication purposes.]
With regard to damages, it was undisputed that plaintiff was in a persistent vegetative state and needed daily medical care for all of his bodily functions, including feeding through a tube, and breathing by way of a tracheostomy tube. At the time of trial, plaintiff had been moved to Crest Haven Nursing Home in Cape May County. Michelle Grimmer, a registered nurse at the nursing home, testified that plaintiff was "healthy" and "very stable" and given his condition, had relatively few medical problems. She also testified that Sandra Hall visited plaintiff every day and took care of all his laundry and some of his basic hygiene needs. At the time of trial, plaintiff had incurred medical and nursing home bills totaling $743,855.14.
Sandra Hall testified that she wanted to care for plaintiff at home because he had previously expressed a desire not to be placed in that particular nursing home, and because it would be easier for her and the children to spend time with plaintiff. The Hall children, Carly, who was sixteen years old at the time of trial, Woody, who was thirteen years old at the time of trial, and Ryan, who was ten years old at the time of trial, also testified that they wanted plaintiff cared for at home.
Lorraine Buchanan, plaintiffs' expert rehabilitation nurse and life care planner, testified that plaintiff needed continuous care because he could not control his movements or bodily functions. That care could be provided by Sandra Hall and other medical support personnel at home, at a total cost of approximately $180,492.91 annually, which included $163,027.50 for medical and medical support expenses and $17,465.41 for equipment expenses. Buchanan admitted that home care cost twenty to forty percent more than nursing home care and that Crest Haven charged approximately $50,000 annually. However, she stated that Sandra Hall could decide where plaintiff would be cared for and that she had prepared his life care plan accordingly.
M. Elizabeth Sandel, plaintiffs' expert in rehabilitative medicine, testified via videotaped depositions, that plaintiff had a life expectancy of fifteen to twenty years.
Joel Posner, defendants' expert in the care and treatment of immobilized patients, testified that plaintiff had a life expectancy of two to five years, even though he admitted that at least two individuals in a persistent vegetative state had lived for thirty-seven and forty-one years respectively. He was of the opinion that it was not medically reasonable or necessary for plaintiff to be cared for at home, although the choice of home or institutional care was the family's. He ...