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Stasio v. Kocsis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2007

LUCIE MAY DE STASIO (WITTER) AND TOM MAY, PLAINTIFFS-RESPONDENTS,
v.
CYNTHIA KOCSIS, M.D., ANDREW ELKWOOD, M.D., CENTRASTATE MEDICAL CENTER, DIANA WALTZ, MARY KELLY AND LINDA DONADEI, DEFENDANTS, AND RIVERVIEW MEDICAL CENTER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1058-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 9, 2007

Before Judges Stern, Sabatino and Lyons.

In this medical negligence case, defendant Riverview Medical Center ("Riverview" or "the hospital") appeals the jury's verdict adjudging it ten percent liable for damages sustained by plaintiff, Lucie May DeStasio Witter.*fn1 The hospital principally argues that the trial proofs were insufficient to support a finding that its nursing staff's error in documenting plaintiff's pre-operative medical chart proximately caused her injuries. The hospital also contends that certain remarks made by plaintiff's counsel in summation were improper. We affirm.

I.

The facts adduced at trial showed that plaintiff, a woman thirty years of age, underwent reconstructive breast surgery at Riverview on August 31, 2000. The surgery was performed by Andrew Elkwood, M.D., a co-defendant. Following that particular surgery, plaintiff developed complications due to infection. The complications resulted in plaintiff having several additional surgeries. Eventually plaintiff had full bilateral mastectomies performed by another surgeon at St. Barnabas Medical Center in August 2002.

Plaintiff filed a medical negligence action in March 2002 against Riverview, Dr. Elkwood and several other defendants. Among her various claims, plaintiff contended that defendants deviated from the applicable professional standards of care in connection with the August 31, 2000 surgery. Plaintiff alleged that the negligence caused her deformities, pain and suffering, and that it contributed to the dissolution of her marriage.

The August 31, 2000 surgery at issue in this case was preceded by many years in which plaintiff had medical problems with her breasts. When plaintiff was a teenager, she had multiple surgeries on her breasts to remove a total of thirteen to fourteen tumorous lumps. Those prior surgeries were mainly performed at Centrastate Medical Center by Dr. Cynthia Kocsis.*fn2

In early 2000, plaintiff again visited with Dr. Kocsis, as several lumps in both breasts had reappeared. Dr. Kocsis recommended a new plan of action. The plan involved Dr. Kocsis performing a subcutaneous mastectomy in each of the breasts, with another surgeon, Dr. Elkwood, thereafter conducting reconstructive surgery. The reconstructive surgery involved placing tissue implants, (or "expanders") underneath the skin, muscle and chest wall.*fn3

On June 2, 2000, Dr. Elkwood performed the first reconstructive surgery on plaintiff at Centrastate Hospital. Plaintiff developed an infection following that surgery. This prompted her to return to Dr. Elkwood, who removed the expanders in an office procedure on July 24, 2000. The plan was to reinsert new expanders after plaintiff's infection healed. On August 2, 2000, Dr. Elkwood examined plaintiff and determined that the infection had apparently subsided. A second reconstructive surgery was scheduled for August 31, 2000, this time at Riverview.

When plaintiff was admitted to Riverview for the August 31, 2000 surgery, nurses*fn4 on the hospital's staff completed a pre-operative assessment form as part of the patient's chart. The first line of that form asks whether the patient has had a complete blood count ("CBC") within the last fourteen days. A CBC is a test that reveals, among other things, a patient's red and white blood cell counts, as well as a patient's hemoglobin levels. Three different nurses on Riverview's staff (at the unit, at the holding room, and in the operating room) sequentially noted on the pre-operative form that plaintiff had received a CBC within the preceding fourteen days, i.e., on or after August 17, 2000.*fn5 In actuality, the last CBC performed on plaintiff had been three months beforehand, on May 26, 2000, at Centrastate Hospital. No CBC had been done within the fourteen-day period preceding the August 31, 2000 surgery.

Notwithstanding these incorrect entries on plaintiff's pre-operative chart, the August 31, 2000 surgery went forward. Following the surgery, plaintiff again had complications from infection. Plaintiff contended that those complications could have been avoided had Dr. Elkwood and the Riverview nurses adhered to the applicable standards of care.

The sole expert witness who testified in the litigation was Dr. Michael Valdes, a Board-certified plastic surgeon retained by the plaintiff.*fn6 With respect to the August 31, 2000 surgery, Dr. Valdes opined that there was already an infection present in plaintiff's breasts before Dr. Elkwood performed it. The expert testified that had a recent CBC been conducted on plaintiff prior to August 31, 2000, there was "a reasonable chance that it would have shown an elevation of [plaintiff's] white blood cell count[,]" and that the test "could well have revealed that there was a smoldering infection there." Consequently, Dr. Valdes opined that the August 31, 2000 surgery "should never have been done" because the insertion of expanders, as foreign objects, into plaintiff's breasts exacerbated her infection. According to Dr. Valdes, the failure of the August 31, 2000 surgery created a "snowball effect," and left plaintiff in a position where her breasts could never be reconstructed to appear normal.

Dr. Valdes further testified that the results of plaintiff's earlier CBC test in May 2000 would have been of little use at the time of her August 2000 surgery. He noted that the May 2000 test had been conducted prior to plaintiff's first failed surgery with Dr. Elkwood in June 2000, and that it was that first surgery that had resulted in the infection. As such, Dr. Valdes opined that the May 2000 CBC results had no bearing on whether plaintiff would suffer an infection months later.

Dr. Valdes concluded that Riverview's medical staff deviated from accepted standards of medical practice by incorrectly reporting on plaintiff's chart that she had received a CBC within fourteen days of the August 2000 surgery. According to Dr. Valdes, "[y]ou simply can't justify a document that's in a medical chart that a doctor is going to look at or may look at." He emphasized that what is written in a chart must "accurately reflect the reality." Although Dr. Valdes acknowledged that the hospital's policy did not generally require a CBC on surgical patients under the age of forty, he opined that the hospital staff's failure in plaintiff's case to document accurately her CBC status "increase[d] the risk of what occurred to [her]." In that regard, the expert testified that if "the test had been done and it was available for review[,] . . . the doctor could have seen that there was an elevation [in her white blood count] and cancel[led] the surgery . . . ."

Riverview's counsel stressed at trial that it was Dr. Elkwood, not the hospital staff, who made the ultimate decision to proceed with plaintiff's August 2000 surgery. The record showed that Dr. Elkwood had not, in fact, ordered a CBC test on plaintiff in anticipation of the August 2000 surgery. When questioned on these points on cross examination, Dr. Valdes acknowledged that a nurse is neither obligated nor qualified to order a CBC test. However, Dr. Valdes also emphasized that hospitals have "a system of checks and balances," in which the hospital staff plays an important role in making physicians aware of test results, and in "assuring that things are done in a timely and appropriate fashion."

Plaintiff also testified in her case-in-chief. Her testimony mainly concerned her course of treatment by her physicians, her pain and suffering, and other issues not germane to the issues on appeal.

Dr. Elkwood, who settled with plaintiff before trial,*fn7 testified about these matters in a videotaped de bene esse deposition. The videotape was played for the jury as part of the defense case. On his direct examination, Dr. Elkwood asserted that because plaintiff "had prior [CBC's] that were in the normal range[,] [he] felt that there was no need for additional testing" before the August 31, 2000 surgery. Dr. Elkwood stated that a CBC test "may or may not" detect the presence of an active infection in a patient's body. He noted that blood work is often conducted in hospitals for "pro forma" reasons, and that those reasons are less important than the "clinical ramifications and implications in an individual case." Before proceeding with the August 31, 2000 surgery, Dr. Elkwood perceived, by his clinical observations, that the plaintiff's infection from the June 2000 surgery had "resolved and [that] she was back to a general state of good health . . . ."

During the course of his testimony, Dr. Elkwood attempted to minimize the relevance of the mistaken CBC entries on plaintiff's chart. In fielding questions on that subject, Dr. Elkwood frequently responded with qualified phrases such as "not necessarily," "not typically," and "not particularly." By way of illustration, the doctor offered these responses on his direct examination:

Q: Okay. The Riverview Medical Center admission chart from August 31st of 2000 contains a pre[-]operative assessment form that was completed by the nurses before that surgery. Is that a form that you look at before surgery?

A: Not typically.

Q: Okay. Why is that?

A: Just the nursing form, amongst numerous nursing forms is just part of the paperwork associated with the chart, which is not necessarily tantamount to my care of a patient.

Q: Okay. The form itself has a column that reads [CBC] within [fourteen] days. And handwritten in that column, the nurses wrote the word yes. Even though that checklist says that, were you aware of the fact that no [CBC] had been obtained within 14 days of that surgery?

A: Quite frankly, I can't recall, six years later.

Q: Okay. You certainly knew that you had not ordered a [CBC] within [fourteen] days of the procedure; correct?

A: Again, I can't recall the details. That would be a very routine event and something I would not necessarily take particular notice of.

Q: Okay. Because -- well, tell me why, again, why you wouldn't even look at this form.

A: Because that form -- the nurses have a lot of paperwork that they need to do for their own documentation on their own behalf and so on and so forth. It doesn't necessarily affect the decision-making process in taking care of a patient nor is it documentation that I would normally pay attention to. It doesn't really affect me or the patient from my standpoint.

Q: Okay. And if it had been brought to your attention that there was no blood work within [fourteen] days, would that have changed your decision regarding this particular patient on August 31st?

A:Not necessarily.

[Emphasis added.]

Dr. Elkwood gave similar qualified answers on cross-examination:

Q: Now, you operated on [plaintiff] on August 31, 2000, at Riverview Medical Center; correct?

A: Correct.

Q: And in that medical chart, there are some notations about the history; correct?

A: I would presume so.

Q: And as part of that history, there's also some notations about, I think you testified on direct examination, regarding what the nurses put in the records involving blood work, other preliminary things.

A: I believe I did testify that I don't pay particular attention to the nurses' notation of reiteration of my documentation. Q Now, you indicated, however, that you do not specifically recall, as you sit here today, six years later, whether or not you ordered a [CBC].

A: I don't specifically recall that.

Q: Was it your practice, when a patient went through an infectious process and had to have implants or expanders removed, to reorder a [CBC] before proceeding with further surgery, including the reimplantation of either implants or expanders?

A: Not necessarily.

Q: On occasion, did you do that?

A: Each occasion stands on its own.

Q: Would a normal [CBC] between mid and late August 2000 have been a reassuring factor in combination with your clinical judgment?

A: Not particularly.

[Emphasis added.]

By testifying about the CBC results in these rather equivocal terms, Dr. Elkwood did not rule out the significance of accurate pre-operative CBC counts. Indeed, the doctor acknowledged that if a CBC had been performed, he would have looked at it "if it was pertinent." In essence, he took the position that such CBC data would not have affected his decision-making in this particular case:

Q: Does -- would the [CBC] test increase the ability to determine whether or not an infectious process existed between mid-August and late August 2000?

A: My answer would be no because I didn't think the infectious process was going on at the time based upon, again, my clinical judgment. So, the answer's no.

Q: Would the fact that a statement in the hospital record indicated that a [CBC] had been performed within [fourteen] days, assuming you had known that, would that have been reassuring to you --

A: At the time

Q: In addition to your judgment?

A: At the time I felt that she did not have an ongoing infectious process for whatever -- based upon my clinical judgment at the time.

The jury also heard testimony from two of the hospital nurses, Diana Waltz and Mary Kelly, who had been involved in plaintiff's pre-operative care before the August 31, 2000 surgery. Both nurses acknowledged that they had erroneously notated "yes" in plaintiff's chart as to whether a CBC had been done in the preceding fourteen days. The nurses explained that their common mistake stemmed from seeing in plaintiff's file a copy of the CBC previously performed at Centrastate in May 2000. One of the nurses recalled that the hospital's form had changed over time regarding whether a CBC had been taken within the previous fourteen days, and that the form used in this case happened to be an "old form." The nurses both recalled that Dr. Elkwood had not ordered a new CBC for plaintiff.

On cross-examination of the nurses, plaintiff's counsel extracted certain concessions regarding the division of responsibilities within the hospital for a patient about to undergo surgery. For instance, Nurse Waltz agreed that one of her duties is to go through the checklist on a patient's pre-operative form "for purposes of patient safety." Likewise, Nurse Kelly acknowledged that her responsibilities "[a]bsolutely" included patient safety, and that if something did not appear to be correct in a patient's chart, she agreed that she would "notify someone." Nurse Kelly also agreed that the chart is supposed to be checked three times -- by the unit nurse, the holding nurse and the O.R. nurse -- "so that there are no mistakes made when a patient's going into the operating room." Nurse Kelly agreed that those checks are part of "a system of checks and balances."

After all of the proofs were presented, counsel had a charge conference with the trial judge. Unfortunately, a verbatim record of the conference was not created.*fn8 Apparently, plaintiff's counsel during the conference requested the judge to render a so-called "Gardner" instruction to the jury pursuant to Model Jury Charge (Civil) § 5.36E (2002). Such an instruction is appropriate where the plaintiff's allegations in a medical negligence case concern a failure to perform a diagnostic test, which allegedly increased the risk of the patient's harm. See Gardner v. Pawliw, 150 N.J. 359, 387 (1997).

In this case, plaintiff's theory was that the hospital nurses' erroneous entries on her chart enhanced her risk of harm, because had such CBC testing actually been performed within fourteen days of her August 31, 2000 surgery, it could have revealed an elevated white cell count as a sign of infection. Under the Gardner charge, if it "is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the plaintiff does not have to prove that the test would have resulted in avoiding the harm." Model Jury Charge (Civil) § 5.36E. "In such cases the plaintiff must merely demonstrate that the failure to give the test increased the risk of harm from the preexistent condition." Ibid. Moreover, the charge instructs that "[a] plaintiff may demonstrate an increased risk of harm even if such tests are helpful in a small proportion of cases." Ibid. In essence, plaintiff's theory, as supported by her expert Dr. Valdes, was that a CBC should have been taken from her on the eve of her August 31, 2000 surgery, and that the nurses' reporting error was a substantial factor contributing to the failure to have that pre-operative diagnostic test performed.

Based on ensuing statements placed on the record following the charge conference, the record reflects that defense counsel opposed the issuance of a Gardner charge. The record also reflects that the judge ruled that a Gardner charge was inappropriate in this case, and that the ordinary proximate cause charge for a negligence case was warranted. See Model Jury Charges (Civil) §§ 7.10 (1998) and 7.11 (1999). The record does not, however, enlighten us on the specific grounds for defense counsel's objection to the proposed Gardner charge, nor the trial judge's reasoning in rejecting the charge request other than his conclusion that this was not an increased-risk case but rather "a negligence and causation case." In any event, the judge did in fact issue the conventional two-pronged charge on proximate cause, asking the jurors to consider whether (1) the harm to plaintiff would not have occurred "but for" the negligence of the Riverview nurses and (2) that negligence was a "substantial factor" in bringing about the harm.

During the course of its deliberations, the jury submitted a written question asking the court to provide "in writing" the definition of the term "proximate cause." After conferring with counsel regarding this request, the judge called the jurors back into the courtroom and repeated the standard proximate cause charge, without supplying the jury with a written version of that charge. The jury then resumed its deliberations.

Later that day, the jury rendered its verdict. It unanimously determined that the hospital's nursing employees had deviated from accepted standards of medical practice. On the question of proximate cause, the jury decided by a 6-to-1 vote that the hospital was a proximate cause of plaintiff's injuries. The jury likewise found that Dr. Elkwood had deviated from professional standards of care, and unanimously found that his own deviation was a proximate cause of plaintiff's harm. As to damages, the jury awarded plaintiff $750,000 for the pain and suffering, disability, impairment, and lost enjoyment of life "proximately caused by the defendants[.]" The jury allocated fault for those damages, by ascribing 90% to Dr. Elkwood and 10% to the hospital.

Consistent with the verdict, the judge entered a judgment in favor of plaintiff on May 18, 2006 in plaintiff's favor in the amount of $75,000, i.e. ten percent of $750,000, plus an additional $9,900 pre-judgment interest, for a total of $84,900.*fn9

The judge that day also denied the hospital's post-trial motion for judgment notwithstanding the verdict. The court stayed the judgment pending appeal, upon the hospital's posting of a supersedeas bond. This appeal followed.

II.

The hospital first argues that the verdict against it should be vacated for lack of sufficient proof of proximate cause. The centerpiece of its argument is that Dr. Elkwood never acknowledged that he would have acted differently had he known that the nurses' entries on plaintiff's chart concerning recent CBC testing were erroneous. Absent such an acknowledgment by the surgeon, the hospital contends that its nurses' mistakes were inconsequential as a matter of law. We disagree.

As charged in this case, the ordinary question of proximate cause involves a two-pronged assessment: (1) whether the alleged negligent conduct of the defendant was a "but for" cause of harm, and (2) whether that cause was a "substantial factor" in producing that harm. See Model Jury Charge (Civil) §§ 7.10 and 7.11; see also Conklin v. Hannoch Weisman, P.C., 145 N.J. 395, 417 (1996); Camp v. Jiffy Lube, 309 N.J. Super. 305 (App. Div.), certif. denied, 156 N.J. 386 (1998). The "substantial factor" language in the standard charge is included to guide the jury's deliberations in those cases where the harm may have been sustained even if the defendant had not been negligent. See Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 294-95 (App. Div.), certif. denied, 122 N.J. 333 (1990).

Plaintiff presented at trial a nuanced theory of proximate cause, one not uncommon in medical negligence cases, positing that the hospital nurses' errors on her chart increased her risk of harm associated with the August 31, 2000 surgery. She alleged that the surgery, which went forward after the nurses' errors, worsened her pre-existing condition, a condition that Dr. Valdes described as a "smoldering infection." As we have noted, under Gardner such an increased-risk theory does not require the plaintiff to establish that the accurate results of a diagnostic test would have actually prevented her harm, since we cannot, in hindsight, ever know for sure what such a test would have shown and whether it would or would not have changed the doctor's approach or the patient's outcome. For reasons that are not documented to us, defense counsel chose to object to such an increased-risk charge. He did so even though the charge would have entitled the hospital to the benefit of special interrogatories asking the jury to apportion damages from the "ultimate injury" between those caused by the underlying pre-existing condition and those associated with the negligently-increased risk. See Model Jury Charge (Civil) § 5.36E, "Jury Interrogatories"; see also Gardner v. Pawliw, supra, 150 N.J. at 389-90; Scafidi v. Seiler, 119 N.J. 93, 102 (1990).

Defendant now criticizes the trial court for sustaining a verdict that was predicated on an ordinary finding of proximate cause. To the extent that the finding was the consequence of any error in the court failing to render a Gardner charge to the jury, defendant's criticisms must be rejected under the doctrine of invited error. That is because defendant opposed such a charge that might well have been more suitable to this factual record and the gist of plaintiff's expert's testimony.*fn10 See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996).

Recognizing that it was defendant, not plaintiff, that insisted on the jury being issued a conventional proximate cause charge, we now consider whether the proofs sufficed to support the jury's finding that those conventional elements were established by a preponderance of the evidence. Our standard of review in this respect is limited to whether there was substantial credible evidence to support the jury's finding. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

Having considered the trial record as a whole, and with particular attention to Dr. Elkwood's testimony, we are persuaded that the jury had a sufficient basis to determine that the hospital nurses' deviation from the standards of care proximately caused injury to the plaintiff. Although Dr. Elkwood, the settling defendant, never stated that an accurate recent CBC would have "necessarily" affected his decision to go forward with the August 31, 2000 surgery, the jury had ample circumstantial grounds to disbelieve his retrospective assertion. Plaintiff's expert Dr. Valdes rationally explained the importance of an accurately-reported CBC before proceeding with a surgery to implant foreign objects into plaintiff's breasts, which had previously been infected when the same procedure was unsuccessfully attempted in June 2000. The nurses' testimony explaining their own functions within the pre-operative setting also supplied a useful context for the jury in assessing the credibility of Dr. Elkwood's responses. As a matter of credibility, the jury was entitled to disbelieve Dr. Elkwood's after-the-fact assertions that he would likely have proceeded with the surgery regardless of the presence or absence of a recent CBC. See Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000) ("jurors may infer a causal connection based on the surrounding circumstances").

Moreover, the jury's implicit rejection of Dr. Elkwood's credibility on this issue is buttressed by two other things. First, as we have already noted, Dr. Elkwood repeatedly couched his answers in equivocal language, hedging his statements with terms such as "not necessarily" and the like. The jury may well have regarded his testimony as weaker, and less persuasive, than if the doctor had been more definitive in his choice of words.

Second, in denying the hospital's post-trial motion on this issue, the trial judge observed that Dr. Elkwood's demeanor, as presented on the videotape, was unpersuasive. The judge noted that Dr. Elkwood's explanations had been "given with a somewhat drop-off and/or even potentially mumbling sentence at times . . . ." The judge also expressed skepticism about the defense claim that the pre-operative forms essentially "were for hospital internal purposes only . . . ." The judge observed that such a viewpoint would render the forms "a totally unnecessary nullity." The judge was impressed that the contrary was shown: that the forms "exist for a reason and a purpose, and they record information which is then [to be] looked at by the appropriate medical professional, a doctor handling a case." The judge also made the following pertinent observations:

This doctor's testimony was not so one-sided as to indicate he would never have looked at them anyway. He clearly backed off that one isolated statement and rendered testimony that was not so one-sided and, if believed by a jury, would support its determination of proximate cause for the injuries also by the hospital. And this jury did just that.

Although we are not bound by the judge's observations, we also appreciate the significance of his perspective in having had the first-hand opportunity to observe the demeanor of all of the trial witnesses. Monogram Credit Card Bank of Ga. v. Tennesen, 390 N.J. Super. 123, 126 (App. Div. 2007).

With a recognition that reasonable minds can differ on the issue, we are satisfied that the jury's factual determination of probable cause here was sufficiently supported by the evidence. A jury's verdict should not be set aside unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law. Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969); Law v. Newark Bd. of Educ., 175 N.J. Super. 26, 37 (App. Div. 1980); see also R. 2:10-1. No such miscarriage of justice is demonstrated here. We thus affirm the verdict and the trial judge's denial of the post-trial motion to set it aside.

III.

The hospital also contends that the verdict should be set aside because of alleged improper comments in the summation of plaintiff's counsel. Specifically, the hospital contends that the judge should have declared a mistrial because of opposing counsel's following underscored remarks:

So, when the defense argues, aha, that's not the point. The point is we don't know, in August of 2000, what the problems was, if any, in her blood. You cannot blame Lucy for that. You can blame Dr. Elkwood for that. Dr. Valdes reviewed everything and he said Dr. Elkwood deviated from accepted standards of practice. And you can blame the hospital for that. They didn't do their job.

How do you evaluate this case? The nurses not -- they don't check, they don't double check, they triple check. And on the issue of the [CBC] within [fourteen] days, a triple check was wrong. It was never done. The system as Dr. Valdes says, there is a system of checks and balances. And as I mentioned to you, the hospital and its nurses, trained personnel are not potted plants. They have a role to play and they should play that role for patient safety. [Emphasis added.]

The trial judge denied the defense motion for mistrial, determining that the comments were reasonable and had fairly asked the jury to infer that the nurses had failed to fulfill their independent duties of care in this case.

We need not address this issue at length. Trial counsel have broad prerogatives in summation to "argue from the evidence any conclusion which a jury is free to arrive at" from what is reasonably suggested by the proofs. Spedick v. Murphy, 266 N.J. Super. 573, 590 (App. Div.), certif. denied, 134 N.J. 567 (1993); see also Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div 1999) (noting that counsel are to be afforded "broad latitude in summation," and may even ask the jury to make improbable inferences "unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence").

We disagree with the hospital's contention that the underscored comments of plaintiff, including the "potted plant" reference, impermissibly invited the jury to conclude that the nurses had the authority to order a CBC test or to otherwise override Dr. Elkwood's medical decision to proceed with the August 2000 surgery. Counsel's remarks, using a well-known legal metaphor popularized in the Congressional investigation of Oliver North,*fn11 merely suggested that the nurses failed to perform their own duties in this case by presenting false information on plaintiff's chart, and that the nurses had an important role to play in plaintiff's overall care. We discern no manifest injustice in the circumstances, as the comments were within the bounds of fair advocacy. Moreover, the judge issued the customary general instruction that the jury should not consider the remarks of counsel to be evidence or to be an accurate statement of the pertinent legal standards.

IV.

For all of the foregoing reasons, the judgment against the hospital is affirmed.


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