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Liguori v. Elmann

June 25, 2007

PATRICIA LIGUORI, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF GERALDINE LIGUORI, AND AS EXECUTRIX OF THE ESTATE OF JOHN J. LIGUORI, AND JOHN C. LIGUORI, PLAINTIFFS-APPELLANTS,
v.
ELIE M. ELMANN, M.D., JAMES B. HUNTER, M.D. AND CARDIAC SURGERY GROUP, P.A., DEFENDANTS-RESPONDENTS, AND PETER PRAEGER, M.D., DIANE ANDERSON, R.N., LYNNANN ANDERSON, R.N., NILO ANTONIO, R.N., SHARON BREADY, R.N., ELLY CALLIAS, R.N., TOM CAREN, R.N., JESSICA CONNERS, R.N., LUCY COVINO, R.N., TERRY DAVOREN, R.N., BETH DRONEY, R.N., KATHY ENRIGHT, R.N., ERIN GIARRUSSO, R.N., LAURA HYNES, R.N., JENNIFER KRAWAIK, R.N., ISELA LAZICKI, R.N., MELANIE LENDIS, R.N., ANNE LOBASSO, R.N., PATRICIA LOPEZ, R.N., LUZ MALIT, R.N., RACHEL MARCHIONY, R.N., BARBARA MARTIN, R.N., CESAR MARTOS, R.N., KELLIE MCGUIRE, R.N., CILA MERRIAM, R.N., WENDY MITCHELL, R.N., PATRICE O'CONNOR, R.N., SUE PATLOCK, R.N., KATHY PAWLOSKI, R.N., JEANNE POLLEY, R.N., PATRICE PULFORIO, R.N., ALICIA QUINN, R.N., ANNIE READIE, R.N., SHEILA RHODES, R.N., DIANE RICHARD, R.N., DEBBIE RODITSKI, R.N., KEVIN ROONEY, R.N., PRATIVA SAHU, R.N., SHEILA SCOLLO, R.N., DONNA SENNA, R.N., GLADYS SILLERO, R.N., JOHN STANTON, R.N., BECKY THUM, R.N., DAWN TRUSIO, R.N., SUE TUDDA, R.N., MARIA VILLALONGO, R.N., TES WELCH, R.N., ALISON WRIGHT, R.N., JANET H. KILROY, R.N., GAIL VANDERHOVEN, R.N., HEATHER CASSIDY, R.N., LUCY XXX, R.N. (LAST NAME FICTITIOUS), STEPHANIE ZZZ, R.N. (LAST NAME FICTITIOUS), ELLEN ZOE, R.N., PATRICE MOE, R.N., ROE BOES 1-10, HACKENSACK UNIVERSITY MEDICAL CENTER, JOHN DOES 1-100 AND ABC CORPORATIONS 1-20, DEFENDANTS.



On appeal from and certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This appeal presents the Court with four medical malpractice jurisprudence issues: The dividing line between specialists and general practitioners for purposes of determining the applicable standard of care; the extent to which medical emergencies fall outside the doctrine of informed consent; whether post-surgical communications from a physician to the members of a patient's family may give rise to a fraud-based cause of action or, in the alternative, to a claim based on lack of informed consent; and, whether a discovery violation that inures to plaintiffs' benefit nonetheless entitles plaintiffs to a new trial.

On December 9, 1999, Dr. Elie Elmann, a cardiovascular and thoracic surgeon, performed quadruple coronary artery bypass surgery on Mrs. Geraldine Liguori at Hackensack University Medical Center (HUMC). He was assisted during the surgery by Dr. James Hunter, who at the time was a cardiac surgery assistant/fellow. Following the surgery, Mrs. Liguori was sent to the cardiac intensive care unit (ICU). At approximately 2:30 p.m., a nurse informed Elmann that a chest x-ray revealed that Mrs. Liguori had developed a pneumothorax, a condition commonly referred to as a collapsed lung. Because Elmann was then in the middle of operating on another patient, he directed Hunter to assess Mrs. Liguori's status and, if necessary, to insert a chest tube to alleviate the condition. Elmann testified that he warned Hunter to "be careful" because Mrs. Liguori had an enlarged heart.

After assessing Mrs. Liguori's situation, Hunter determined that it would be necessary to insert a chest tube to relieve the air pressure in the chest cavity. Hunter testified that he knew Mrs. Liguori's heart was enlarged and that he took precautions to avoid injuring it. Hunter made a small incision and used a clamp to create a hole between the ribs so he could insert the tube. He described the whole procedure as "pretty uneventful." Hunter was "totally satisfied that the tube was functioning [and] that the problem was relieved. There was no evidence of bleeding and the blood pressure was stable."

A few minutes after Hunter had returned to the operating room, a nurse contacted Elmann who was still performing surgery on the other patient. That nurse told him that Mrs. Liguori was experiencing substantial bleeding. Elmann sent Dr. Peter Praeger to assess Mrs. Liguori's condition. Upon performing exploratory surgery, Dr. Praeger discovered a hole in the left ventricle of her heart, which he repaired. He noted that the hole was "related to the insertion of the chest tube" and advised Elmann of Mrs. Liguori's status.

Patricia Liguori, Mrs. Liguori's daughter, was in the cardiac waiting room throughout the time of the surgery and the chest tube insertion. Her brother, John J. Liguori, was present for part of the bypass operation. According to Hunter, he would have spoken to Mrs. Liguori's family if he had known they were at the hospital and if there had been time. Elmann and experts who appeared for both plaintiffs and defendants all testified that a collapsed lung that occurs right after surgery constitutes a medical emergency. Elmann spoke to Patricia and John at approximately 6:30 p.m., though the parties' recollection of the substance of that conversation is sharply in dispute. Significantly, according to Patricia and John, Elmann did not tell them about the collapsed lung, did not reveal that Hunter had inserted the chest tube and failed to mention that the chest tube had caused the injury to Mrs. Liguori's heart. Elmann, however, testified that he informed Patricia and John completely about the chest tube and its complications.

On January 17, 2000, Dr. Leonardo DiVagno, a cardiologist who was assisting Elmann with Mrs. Liguori's care, told Patricia that Mrs. Liguori had sustained a significant amount of bleeding following the laceration to her heart during the insertion of the chest tube. According to Patricia, she was shocked, immediately called her brother, and they transferred their mother to a hospital in North Carolina, where John lived. However, Mrs. Liguori suffered from a series of "cascading complications," resulting in her death from septic shock on February 12, 2000.

In December 2001, John and Patricia Liguori filed a wrongful death complaint against, among others, Drs. Elmann and Hunter, asserting a variety of theories of recovery including medical malpractice, lack of informed consent, battery and fraudulent misrepresentation. The jury returned a verdict in favor of defendants. Plaintiffs raised thirteen issues on appeal to the Appellate Division. In an unpublished decision, the Appellate Division rejected all thirteen arguments and affirmed the jury verdict. One of the Appellate Division judges filed a dissent, which was limited to a single issue. He asserted that the trial judge erred in the jury charge relating to the appropriate standard of care applicable to Hunter in two respects. First, he reasoned that Hunter should have been held to the standard of care applicable to a specialist rather than the one appropriate for a general practitioner. Second, he suggested that, in circumstances where there is doubt about a physician's level of expertise for purposes of the standard of care, the issue should be decided separately by the jury.

Because of the dissent, the question concerning the applicable standard of care is before the Supreme Court as an appeal of right. R. 2:2-1(a)(2). In addition, the Court granted plaintiffs' petition for certification of four other questions relating to informed consent, fraudulent misrepresentation, and discovery of experts.

HELD: The trial judge's instruction to the jury on the appropriate standard of care applicable to Dr. Hunter, though not entirely in keeping with the Model Jury Charge, nonetheless did not result in error; the Court is satisfied that the jury concluded that Hunter's actions were reasonable in light of all of the facts relating to the emergency he confronted; the Court finds no error in the trial court's dismissal of the fraud claim or in the Appellate Division's analysis of plaintiffs' argument on appeal; and, because the change in the expert's opinion, although significant, was one which brought his opinion into alignment with plaintiffs' expert, the Court does not perceive, in these circumstances, any prejudice to plaintiffs.

1. Our Model Jury Charge on medical negligence and standard of care, in relevant part, charges the jury that "[n]egligence is conduct which deviates from a standard of care" and that "[t]he determination of whether a defendant was negligent requires a comparison of the defendant's conduct against a standard of care." The trial court had the option of instructing the jury on the standard of care for specialists or the standard of care for general practitioners. Each of these options advises the jury that defendant is to be judged, in essence, against others of like skill, training and knowledge. The trial judge opted for a hybrid charge, using general practitioner language, but also referring to Hunter's job title, assistant cardiac surgeon or assistant cardiac thoracic fellow. The appellate division majority concluded that the general practitioner standard was appropriate because Hunter was not a surgeon and did not hold himself out as a surgeon. More significantly, however, to the majority was the undisputed trial testimony, which made plain that chest tube insertion is not a procedure reserved for specialists. Even if the Supreme Court was to agree with the dissenting judge that Hunter should have been held to a standard of care other than that of a general practitioner, the Court would conclude that there was no reversible error here. The trial judge's effort to span what he perceived to be a gap in the Model Charge by referring to Hunter's job title, while not entirely in keeping with the Model Charge, nonetheless did not result in error. (Pp. 19-26)

2. Plaintiffs contend that the trial court erred in dismissing their informed consent and battery claims, to the extent that those claims were based on Hunter's insertion of the chest tube without first seeking their permission. They suggest that the Court adopt a rule of law that would require physicians to secure consent, even in the context of a medical emergency, unless it is "truly impossible" and urge the Court to conclude that the record here does not support dismissal of their claim under that theory. In 1989, our Legislature enacted a statutory patient "bill of rights" providing protections for hospital patients. That statute is consistent with our case law that recognizes the existence of an exception to the informed consent doctrine for medical emergencies. Although some emergencies might well present physicians with sufficient time to seek consent, the Court declines to adopt plaintiffs' rigid formulation of the circumstances in which their failure to do so would be permissible. The Court is satisfied that the jury concluded that Hunter's actions were reasonable in light of all of the facts relating to the emergency he confronted. (Pp. 26-29)

3. Plaintiffs also urge the Court to recognize a separate cause of action against Elmann sounding in fraud and arising from what plaintiffs characterize as his post-surgical misrepresentations. A patient generally has three avenues for relief against a physician, namely, "(1) deviation from the standard of care . . . ; (2) lack of informed consent; and (3) battery." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 (2002). In Howard, the Court declined to create a "novel fraud or deceit-based cause of action" arising from a doctor's pre-treatment misrepresentation about his professional qualifications. The Court, however, did not address the potential for a post-surgical fraud claim, but cited a New York decision addressing the circumstances in which a fraud claim might arise and rejecting the creation of a new fraud based claim in a medical malpractice case. The Court sees nothing in this record that suggests that it should now deviate from Howard. The claims raised against both Elmann and Hunter are based on asserted lack of informed consent and deviations from the applicable standard of care. The harms suffered by Mrs. Liguori cannot be separated from the insertion of the chest tube, regardless of what Elmann did or did not say about those events. Therefore, the Court finds no error in the trial court's dismissal of the fraud claim or in the Appellate Division's analysis of plaintiffs' argument on appeal. (Pp. 29-31)

4. Plaintiffs also contend that the trial court erred in converting their fraud claim into a separate claim based on a lack of informed consent, and that the Appellate Division erred in failing to reverse that decision. As the Appellate Division correctly concluded, plaintiffs' claim against Elmann relating to what he did or did not say after the insertion of the chest tube and the surgical repair is in reality an argument that they were not given sufficient information on which they could decide whether or not to permit defendants to proceed to care for Mrs. Liguori. Seen in that light, the claim is indeed one arising out of an asserted lack of informed consent. The trial court properly converted plaintiffs' fraud claim into a lack of informed consent claim. (Pp. 31-32)

5. Finally, the Court addresses plaintiffs' assertions that they were deprived of a fair trial because they were not alerted in advance of trial to a change in the causation opinion that would be offered by defendants' expert, Dr. Richard Kline. Approximately two weeks prior to trial, Dr. Kline advised counsel for defendants that he believed that the injury was caused by the clamp, whereas earlier he had opined that the injury could have been caused directly by the insertion of the clamp or by a sudden shift of the heart in the chest cavity, causing the heart to strike the clamp. In effect, this change in his testimony brought his view about causation directly into alignment with the views of plaintiffs' expert. The Court does not retreat from the views it has previously expressed about the significance of a failure to abide by the requirements of the discovery rules. However, because the change in the expert's opinion, although significant, was one which brought his opinion into alignment with plaintiffs' expert, the Court does not perceive, in these circumstances, any prejudice to plaintiffs. (Pp. 32-35)

The judgment of the Appellate Division is AFFIRMED.

CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE HOEN's opinion.

The opinion of the court was delivered by: Justice Hoens

Argued March 5, 2007

This appeal calls upon us to consider several issues that are significant to our medical malpractice jurisprudence. First, we consider the dividing line between specialists and general practitioners for purposes of determining the applicable standard of care. Second, we consider the extent to which medical emergencies fall outside the doctrine of informed consent. Third, we consider whether post-surgical communications from a physician to the members of a patient's family may give rise to a fraud-based cause of action or, in the alternative, to a claim based on lack of informed consent. Finally, we consider whether a discovery violation that inures to plaintiffs' benefit nonetheless entitles plaintiffs to a new trial.

I.

Plaintiffs Patricia Liguori and John J. Liguori are the son and daughter of the decedent, Mrs. Geraldine Liguori. Acting in their individual and representative*fn1 capacities, they filed their action in the Law Division asserting that Mrs. Liguori's death was caused by medical malpractice. More particularly, they alleged that defendant Dr. James Hunter negligently performed a post-surgical procedure on Mrs. Liguori that eventually led to her death, that he and defendant Dr. Elie Elmann failed to secure informed consent for that procedure, and that Elmann engaged in fraud and misrepresentation in his descriptions to plaintiffs of the post-surgical course of events. Prior to trial, the misrepresentation claim was dismissed and tried as part of the informed consent claim. The matter therefore proceeded to trial against Hunter and Elmann,*fn2 on the medical malpractice and informed consent theories only. We derive our statement of the facts from the extensive trial record.

The events that gave rise to plaintiffs' claims began on December 9, 1999. On that date, Elmann, a cardiovascular and thoracic surgeon, performed quadruple coronary artery bypass surgery on Mrs. Liguori at Hackensack University Medical Center (HUMC). He was assisted during the surgery by Hunter, who at the time was a cardiac surgery assistant/fellow. That surgery lasted approximately until noon, following which Mrs. Liguori was sent to the cardiac intensive care unit (ICU).

At approximately 2:30 p.m., Patrice Pulford, a nurse in the cardiac surgery ICU, informed Elmann that a chest x-ray revealed that Mrs. Liguori had developed a pneumothorax, a condition commonly referred to as a collapsed lung. Because Elmann was then in the middle of operating on another patient, he told Hunter to attend to Mrs. Liguori. Elmann directed Hunter to assess her status and, if necessary, to insert a chest tube to alleviate the condition. Elmann testified that he warned Hunter to "be careful" because Mrs. Liguori had an enlarged heart.

Hunter immediately left the operating room and quickly arrived at Mrs. Liguori's bedside. He observed that Mrs. Liguori's ventilator was sounding an alarm that indicated to him that there was significant pressure in her airway. At the same time, he detected that she was experiencing respiratory distress as evidenced by the asymmetrical expansion and retraction of her chest. He also noted that she was "bucking the respirator" which he described as being "akin to a big cough." Hunter examined the post-surgical x-ray that had been taken approximately an hour and fifteen minutes earlier.

He testified that he was concerned that Mrs. Ligouri had a condition known as "tension pneumothorax," which involves a buildup of air pressure in the chest cavity. That condition, according to Hunter, can cause certain of the organs in the chest, including the heart, to shift. Hunter was concerned because tension pneumothorax can reduce or potentially eliminate blood flow to the heart and can lead to a cardiovascular collapse.

Hunter testified that he determined it would be necessary to insert a chest tube to relieve the tension pneumothorax. He decided that the proper placement of the tube was on the patient's left side between the sixth and seventh ribs. He could not remember where he had actually inserted the chest tube, but testified that he knew that Mrs. Liguori's heart was enlarged and that he took precautions to avoid injuring it.

According to Hunter, he made a small incision and "dissected down to the chest wall through the adipose tissue." He said that when he reached Mrs. Liguori's ribs, he used a clamp to separate the subcutaneous tissue and to create a hole between the ribs so he could insert the tube. Hunter explained that doctors know when they have reached the chest cavity because there is a sound or feel of air being released. In his words, "you'll know when you're in there and that's the point you stop." He testified that he recalled hearing a rush of air when the clamp was inserted.

According to Hunter, he then inserted his finger into the incision and felt Mrs. Liguori's heart, which was very close to the chest wall. He then slid the chest tube in the cavity over his finger and at an upward angle, embedding the tube into the pleural space and causing Mrs. Liguori's lung to reinflate. He then sutured the tube into place, completing the procedure, which he described at trial as "pretty uneventful."

Hunter recalled that he remained at Mrs. Liguori's bedside for approximately ten, fifteen, or twenty minutes following insertion of the chest tube. He was then "totally satisfied that the tube was functioning [and] that the problem was relieved. There was no evidence whatsoever of bleeding and the blood pressure was stable." He then left the cardiac ICU and returned to the operating room where he began again to assist Elmann with the other patient's surgery.

Hunter testified that he had "absolutely no indication at that time . . . that there was ...


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