On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-8112-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and S.L. Reisner.
Plaintiff Dolores Cardinale, individually and as Administratrix Ad Prosequendum of the Estate of Patrick Cardinale (Patrick), her husband, appeals from two rulings of the Law Division: (1) an order granting summary judgment to defendant Dr. Douglas Jackson on statute of limitations grounds; and (2) a directed verdict in favor of defendant Dr. Jacques Losman at the conclusion of plaintiff's proofs at trial.
Sometime in 1999, Patrick consulted Dr. Losman for an evaluation of treatment options concerning a heart murmur he had since childhood. Dr. Losman, a cardiac surgeon, examined Patrick in late 1999 and recommended an elective surgery to repair the heart murmur. On January 6, 2000, Dr. Losman performed the surgery at St. Michael's Medical Center in Newark, without incident. Although the surgery was uneventful, immediately after surgery Patrick developed malignant hypokalemia - a potentially life-threatening condition defined by an abnormally low potassium level. This condition is considered almost entirely idiosyncratic. It is thought to be a type of reaction to anesthesia that cannot be predicted, and has never been considered the fault of any physician. The malignant hypokalemia caused a temporary condition of acute kidney failure, severe left ventricular dysfunction, as well as respiratory insufficiency, requiring Patrick to be maintained on a ventilator. While on the ventilator, Patrick was conscious and communicated with his wife and family.
Following his surgery, Patrick came under the care of Dr. Jackson, a physician who was the director of cardiac anesthesia and the cardiothoracic intensive care unit at St. Michael's Medical Center. Dr. Jackson assisted in the care of all patients who had open-heart surgery, including Patrick, once they arrived at the cardiothoracic intensive care unit. At that point, Patrick's care became a collaborative effort between Dr. Jackson, Dr. Losman and a cardiologist.
At her deposition, plaintiff's wife testified that in the days following her husband's surgery, she was frequently present at the hospital and had many conversations with both Dr. Losman and Dr. Jackson. She knew that her husband experienced some complications as the result of the surgery and it was her understanding that Dr. Losman and Dr. Jackson were "jockeying medications to get him balanced out." Plaintiff testified at her deposition as follows:
Q: Did you speak to more than one doctor on the 7th?
A: There were a lot. I don't know. I know at least two.
Q: Who were the two doctors that you remember speaking to on the 7th?
A: Dr. Jackson and Dr. Losman.
Q: And do you remember which of those you spoke to first?
Q: And who was Dr. Jackson, as you understood it?
A: I believe he was in charge of the recovery room.
Indeed, Dr. Jackson's orders for the care of Patrick, both written and verbal, appear repeatedly in Patrick's hospital record for the post-surgical period.
On January 9, 2000, Dr. Jackson ordered that Patrick be given Propulsid. Dr. Jackson testified that Propulsid is a medication that is often employed in the critical care setting. Dr. Losman explained at his deposition that when critical patients on respirators are given liquid nutrition, the effects of their conditions and the sedation they are under can significantly decrease the motility of the digestive system, causing the liquid to accumulate in the stomach. Dr. Losman stated that this presented the potential for a "deadly danger" that the patient will vomit and aspirate some of the stomach contents into the lungs. Both Dr. Losman and Dr. Jackson explained that Propulsid was ordered for Patrick to assist in emptying his stomach.
In the five days following the surgery, Patrick's condition slowly improved. By January 13, 2000, the malignant hyperthermia was essentially resolved in that Patrick was noted to have clear lungs, normal renal function and a normal cardiac index. At that time he was being weaned from the ventilator. Despite the improvement, on January 14, 2000, Patrick experienced an episode of ventricular fibrillation and cardiac arrest. As a result of that occurrence, he sustained a massive brain injury, causing a permanent vegetative state. Subsequent exams by neurologists and other experts confirmed that Patrick was essentially brain-dead and would never recover. As a result, he was removed from a ventilator and died on May 6, 2000.
Plaintiff testified that she and her family were not satisfied with the explanations they subsequently received from Dr. Losman regarding Patrick's case. On a number of occasions prior to Patrick's death, Dr. Losman allegedly stated that Patrick's condition was the fault of the attending nurses, who permitted his potassium levels to get too low, inducing the cardiac arrest. Based on Dr. Losman's suggestion of nursing malpractice, plaintiff had Patrick's 1000 page medical chart reviewed by a nursing expert, Audrey Stephan. In a report dated November 20, 2000, Ms. Stephan concluded that there was no negligence by the nurses or the hospital. However, she suggested other causes for Patrick's death having to do with the administration of Propulsid (generic name cisaprid) postoperatively.
As a result of Ms. Stephan's report, plaintiff had the entire medical chart, as well as all other medical records, reviewed by Dr. Jack Rosenberg, Pharm.D, Ph.D., an expert pharmacologist. In a report dated May 6, 2001, Dr. Rosenberg criticized the administration of pharmacological substances, particularly Propulsid, to patients, such as Patrick, with depleted levels of potassium. Dr. Rosenberg's report did not state that Dr. Losman ordered Propulsid for Patrick; rather, the report was silent regarding the physician or physicians who ordered Propulsid. At his deposition, however, Dr. Rosenberg testified that at the time he prepared his report, he knew from his review of the hospital records that the order for Propulsid was made by Dr. Jackson:
Q: Do you know when the Propulsid was ordered for the first time?
A: I have on the 19th he received an order from Dr. Jackson, 10 milligrams every six hours for high residuals on the 19th.
A: On the 9th. I'm sorry. On the 9th.
Q: Where does it say Dr. Jackson ordered that?
A: I remember that's what he said.
Q: You remember it from where?
A: From the case that it was Jackson who wrote this order.
Q: So when you wrote your report back in May of 2001, you knew that Jackson had written the order for the Propulsid; is that right?
A: When I looked at it, yes, I did know that.
Dr. Rosenberg later certified that he was confused by counsel's questions, and in fact his report was meant to refer to Dr. Losman as the doctor who prescribed the Propulsid. Based on Dr. Rosenberg's report, plaintiff filed suit on August 8th, 2001, against Dr. Losman, St. Michael's Medical Center and a number of John Doe defendants.
In his answer to Uniform Form C Interrogatory No. 7 that requests:
If you contend that the plaintiff's damages were caused or contributed to by the negligence of any other person, set forth the name and address of the other person and the facts upon which you will rely in establishing that negligence,
Dr. Losman responded, "we make no such claims at this time."
In response to a request to "state the names and addresses of all consultants or other physicians who saw, examined and treated plaintiff at your request," Dr. Losman ...