On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1058-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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.
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: 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 ...