On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-1849-95.
Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Carchman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Louis Zinterhofer, M.D., a pathologist and Chairman of the Pathology Department at defendant Monmouth Medical Center (the hospital), misread specimen slides of a lesion removed from the leg of plaintiff Karen Keller.*fn1 Zinterhofer's opinion that the specimen revealed a benign intradermal nevus proved inaccurate, as three years later, Zinterhofer examined a new specimen which revealed subcutaneous metastatic malignant melanoma. Upon reviewing the earlier specimen, Zinterhofer revised his apparent misdiagnosis to "focally ulcerated malignant melanoma." Although Keller underwent additional surgeries and treatment at Memorial Sloan-Kettering Hospital to remove and control subsequent metastasises, the cancer ultimately spread throughout her body. She died in April 1995, at the age of forty-seven.
Plaintiff, while alive, filed an action against the hospital, Zinterhofer, and Cyril Arvantis, M.D., the surgeon who removed the lesion, seeking damages based on alleged medical negligence. After, Keller's death, multiple amendments to the complaint were filed to substitute plaintiffs and join as party defendants various administrative personnel and a pathology resident, Rhona Alkana, who was present when Zinterhofer read the original slide. Zinterhofer settled with plaintiff, and after dismissals as to Alkana and the other parties, plaintiff proceeded against the hospital. A jury found in favor of the hospital. Plaintiff appeals, and we affirm.
On appeal, plaintiff raises a number of issues and contends that the trial judge erred by: (1) dismissing plaintiff's claims against Alkana and failing to charge the common knowledge doctrine against both Alkana and the hospital; (2) failing to shift the burden of proof to defendants to disprove negligence; (3) failing to cure prejudice caused by defendants' discovery violations and cross-examination of plaintiff's expert; (4) denying plaintiff's request to admit an undated newspaper advertisement and to charge the jury that the hospital's duty of care was that of a specialized hospital; and (5) not permitting plaintiff to proceed on a vicarious liability theory against the hospital despite plaintiff's settlement with Zinterhofer. Defendants Alkana and the hospital cross-appeal and assert that they were entitled to a dismissal because plaintiff failed to serve a timely expert report and to establish proximate cause and damages prior to trial.
We address plaintiff's claims seriatim.
The basic theory of plaintiff's case was that the 1990 misdiagnosis of her slides resulted from the hospital's failure to have a departmental policy in place requiring a second pathologist to re-read the slides as a matter of course or the employment of a slide-spacing system to separate read slides from unread slides or one patient's slides from another. Fault was attributed to Alkana for failure to ensure that Zinterhofer read and attributed the slides to the proper patient, in this case plaintiff.
There is no question that Zinterhofer misread the 1990 slides. The experts produced by both plaintiff and defendants agreed that the applicable standard of care for any hospital pathology department, whether average or specialized, would not specifically require the routine use of slide-spacing techniques or dual-pathologist readings of all pigmented nevi slides as a matter of course in order to reduce the chance of human error. The experts also established that a pathology resident then assisting a supervising pathologist generally had no duty of care to ensure that the pathologist reviewed and reported the proper patient slides. To summarize the relevant proofs as to this issue, while a resident may have read a slide in tandem with the pathologist, the resident was not responsible for double-checking the pathologist's work.
At the close of plaintiff's case, Judge Chaiet granted defendants' motion to dismiss plaintiff's claims against the hospital's administrative personnel and Alkana. The judge concluded that plaintiff failed to present any expert testimony suggesting that Alkana had a duty of care to ensure that Zinterhofer chose and examined the correct patient slides.
The judge also rejected plaintiff's argument that the jury should have been permitted to consider defendants' culpability under the "common knowledge" theory that no expert testimony was required because whether Alkana should have checked to ensure that Zinterhofer read the proper slides was within the average ken of the jury:
[PLAINTIFF'S COUNSEL]: . . . plaintiff has always asserted through a common knowledge doctrine that there should have been some way where the resident says to the doctor, do we have the right slide? And in that vein we have argued a double check system.
. . . I think that that's within the common province of the jury to think whether or not someone should have double checked that they were looking at the right slide.
THE COURT: And we're here to, there's been no expert testimony in regard to the resident in terms of a double checking. You've heard that testimony. And the fact that the resident did or did not check . . . the slide doesn't go to the standard in this case, which your expert has established and which is the issue that the jury will have to resolve in this case.
We don't really know what the resident did or didn't do in this particular case. Because she doesn't remember.
[PLAINTIFF'S COUNSEL]: That's correct. The defense expert tells us what the resident should have done in the case. And what they do at his hospital.
[PLAINTIFF'S COUNSEL]: But we're not making this argument as to the resident for you to bring the resident back in. This argument is strictly as to the policies and procedures that should have been in effect.
THE COURT: And that's what the case is about.
[PLAINTIFF'S COUNSEL]: Correct.
THE COURT: All right. So, your ...