February 19, 2008
ALLEN HODGSON, ADMINISTRATOR AND ADMINISTRATOR AD PROSEQUENDUM OF THE ESTATE OF CONSTANCE HODGSON, DECEASED, AND ALLEN HODGSON, EXECUTOR OF THE ESTATE OF WILLIAM HODGSON, DECEASED, HER HUSBAND, PLAINTIFF-APPELLANT,
MONMOUTH MEDICAL CENTER, JEFFREY DANIELS, M.D., AND JYOTHI ASTHANA, M.D., DEFENDANTS-RESPONDENTS, AND MONMOUTH CARDIOLOGY ASSOCS., RONALD WEINBERG, M.D., NAOMI KHULUSI, M.D., AND SARAH MORRIS, M.D., DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Monmouth County, L-3520-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 7, 2008
Before Judges Stern, C.S. Fisher and C.L. Miniman.
Plaintiff Allen Hodgson, as the administrator of his parents' estates, appeals from a judgment dismissing his complaint based on a no-cause-for-action verdict in this medical malpractice action as to defendant Jeffrey Daniels, M.D. Hodgson also appeals from an order denying his new trial motion and orders granting summary judgment to Monmouth Medical Center and Jyothi Asthana, M.D.*fn1 We affirm.
On July 17, 1997, Constance Hodgson, plaintiff's mother, fainted in her home and had some seizure activity. Her husband William called her primary care doctor, Dr. Khulusi, and explained that his wife had fainted. At the suggestion of Dr. Khulusi, William called an ambulance to take Constance to the emergency room at Monmouth Medical Center. Constance had been treated for alcoholism, was a heavy smoker and had a history of myocardial infarction, syncopal episode, osteoporosis, heart attack, shortness of breath, peripheral edema, fractures in her hip and shoulder and cancer of the jaw.
The emergency-room physician, Dr. Asthana, recorded Constance's medical history, examined her and admitted her to the telemetry unit on complete bed rest, where she was put on cardiac monitoring. Dr. Khulusi agreed with this plan. Tests revealed that she was anemic, had reduced serum albumen and suffered from sinus-tachycardia. Constance was given a yellow armband designating her as a patient at risk for falls; she was to remain in bed with the side rails up as a precaution and she required assistance to get in and out of bed.
At 7:00 a.m. on July 18, 1997, Dr. Khulusi examined Constance and recommended that she see a cardiologist. Dr. Jeffrey Daniels was to perform a cardiac consultation, which occurred at approximately 4:30 p.m. that day. When he arrived, Constance was lying in bed with the guard rails up. He took her medical history and performed a physical examination, requiring Constance to sit, stand and lie down. Dr. Daniels then left the room to go to the telemetry monitoring station to review her heart rhythms, intending to return to her room when he was finished. In his subsequently dictated consultation report, Dr. Daniels related that "[w]hile watching the monitor, she was standing, had a sudden loss of consciousness, and fell to the floor, lacerating her posterior scalp."*fn2 Other hospital records, however, indicated that Constance fell off the bed, yet at least one nurse, Lolita Jacob, R.N., said that the side rails were up at the time Constance was found on the floor. Plaintiff contends that Dr. Daniels either left plaintiff standing in her room or sitting on the edge of the bed, not lying down.
Dr. Daniels returned to Constance's room and saw her on the floor with a head injury. The floor nurses and Dr. Asthana as the admitting emergency-room resident were called to her room. Constance became comatose and a CT-scan revealed a subdural hematoma and diffuse brain swelling. She underwent a tracheotomy, received a feeding tube and was placed on a respirator. She never regained cognitive function and remained on a respirator and feeding tube until she died on June 22, 1998, almost a year after the fall. However, she did eventually regain consciousness and some movement and ultimately regained some speech. The hospital transferred Constance to a nursing home on September 5, 1997. She had five subsequent hospital admissions to two different hospitals as a result of respiratory complications until her death.
Plaintiff filed a complaint on July 16, 1999. She then obtained a preliminary expert report by Dr. Kevin Bell dated December 11, 1999. Dr. Bell concluded that Constance's death was caused by her being left unattended in the hospital, where she fell and struck her head. Dr. Bell reached no conclusion about which parties bore responsibility, choosing to withhold this decision until after discovery was completed. Defendants deposed Dr. Bell on May 5, 2004. At deposition, Dr. Bell continued to offer no opinion as to who was responsible, instead suggesting that it would be a deviation from the standard of care if Dr. Daniels failed to reposition the guard rails before leaving the room. He proceeded to explain that it would be unlikely for a patient in Constance's condition to get out of bed herself, leaving the doctor or nurses responsible for her injury. Dr. Bell never issued a final report.
At her deposition, Dr. Asthana reviewed the medical history she took from Constance on January 17, 1997, and her notes of her examination. She diagnosed a syncopal episode and wanted to rule out a cardiac or neurologic etiology, recognizing that the syncopal episode may have been caused by alcohol. She ordered blood testing, an EKG and a CT-scan of the head. After the testing was completed, Dr. Asthana admitted Constance to the telemetry unit where she was placed on continuous cardiac monitoring and given oxygen. Dr. Asthana ordered complete bed rest, which the nurses were responsible to ensure. Dr. Asthana took Constance to the telemetry unit and did not see her again until she fell. Dr. Asthana examined Constance after her fall and diagnosed a laceration on the right side of her head and a bruise under her right eye. The laceration was increasing in size and Dr. Asthana wheeled Constance down for a CT-scan "stat." The CT-scan revealed a subdural hematoma and Constance was immediately transferred to the intensive care unit. Dr. Asthana had no further responsibility for her care. She was never told by anyone how Constance fell.
Dr. Asthana moved for a summary judgment dismissing her from the case, which was granted on October 8, 2004. Dr. Asthana argued that case law required the plaintiff to submit an expert report opining that Dr. Asthana deviated from the accepted standard of care. The judge found that "there was nothing in the expert report of Dr. Bell, or in his deposition, where any negligence on behalf of Dr. Asthana was identified." He rejected plaintiff's argument that Dr. Asthana as the admitting physician would be "responsible for any untoward event that happened relative to this patient" as contrary to the law. Relying on Morlino v. Medical Center of Ocean County, 152 N.J. 563 (1998) and Terhune v. Margaret Hague Maternity Hospital, 63 N.J. Super. 106 (App. Div. 1960), the motion judge held "that where medical negligence is alleged, an expert report is necessary in order to establish deviations from accepted standards of care."
In the Spring of 2006 the hospital moved in limine to bar plaintiff's expert from expressing an opinion on deviation as to the hospital on the ground that the expert had only rendered a net opinion. The motion was heard on May 8, 2006, prior to opening statements. The hospital argued that no facts supported Dr. Bell's opinion that its staff was negligent if Dr. Daniels was not negligent. The trial judge found that the common-knowledge doctrine did not apply to the hospital because it was not known how Constance fell and the nurses were not in the room with Dr. Daniels when he examined Constance. He observed that prior to the fall Constance was not unconscious or helpless and it could not be found that she was utterly blameless because there was a possibility that she got out of bed without assistance contrary to the requirement for complete bed rest. As a consequence, the accident did not bespeak negligence. As to Dr. Bell's report and deposition testimony, the judge found that the expert had not identified any duty and breach thereof by the nurses, none of whom were in the room while Dr. Daniels examined Constance. He reasoned that, if the rails were down, only Dr. Daniels would be responsible for the fall. The judge then granted the motion on May 8, 2006, and, consequently, dismissed the hospital from the case just prior to the commencement of trial.
At trial plaintiff and Dr. Bell testified in support of plaintiff's case and Dr. Daniels and Nurse Jacob, the floor nurse, testified for the defense. Dr. Bell testified that Constance, who had a syncopal episode, had a high risk for a fall, which required a yellow band to identify her as at high risk for falling, side rails up and no standing or walking without a healthcare provider. A complete cardiological examination would require having the patient sit up and stand and Dr. Daniels's consultation report indicated that he did this. If Dr. Daniels left Constance standing in her room or sitting on the edge of her bed when he went to the monitoring station, he would have deviated from the standard of care. If he left her sitting or lying in bed with all four side rails raised, he would not have deviated from the standard of care. Nothing in the hospital records indicated how Constance fell. However, Dr. Bell inferred from the evidence that Dr. Daniels must have deviated, although Dr. Bell doubted that Dr. Daniels left Constance standing in the room until he returned, as he intended to do. Given Constance's frail condition, Dr. Bell did not believe that she could have climbed out of the bed over the side rails, especially when she was not agitated, combative or disoriented. Rather, he opined that Dr. Daniels left Constance sitting on the side of the bed with at least one side rail down when he went to the monitoring station in order to see if she had an abnormality in her heart rhythm. He opined that Dr. Daniels was responsible for Constance's care because he was in the midst of doing the consultation at the time that she fell. Dr. Bell opined that Constance's death was a direct result of her fall.
Nurse Jacob was called to the stand by the defense. She testified that on July 18, 1997, she was in charge of the telemetry floor when she heard a call for help and she responded. When she arrived at Constance's room, she saw her primary nurse, Jeremiah Dumas, in the room and Constance on the floor between the two beds. As other staff gathered in the room, they decided to put her back into bed. Someone put the side rails down and they all lifted her onto the bed. Nurse Jacob had no idea how Constance fell. She did not know if all four side rails were raised when she first entered the room because she was focused on Constance. She was only concerned with the rails on the left side of the bed because that was the side of the bed where they found Constance on the floor and it was the closest side for them to get her back into bed. She could not say whether one or two side rails had to be lowered on the left side of the bed. She did not know from which side of the bed Dr. Daniels examined Constance.
Dr. Daniels acknowledged that Constance was at high risk for a fall and stated that he would be very careful getting such patients out of bed to measure their blood pressure. He generally assessed her appearance. He put down the side rails on the side of the bed from which he was examining her. He then had her sit on the edge of the bed for her blood pressure. Then he had her stand up and took her blood pressure again. He then had her sit down again and he palpated her thyroid and listened to her lungs and examined her neck. He palpated her carotid arteries and then had her lie down. He listened to her heart both lying on her back and while she lay on her left side. He palpated her belly and examined her legs and felt her femoral pulses and the pulses in her feet and ankles.
Dr. Daniels testified that before he left Constance's room he was positive that he saw her lying in bed with the upper guard rails up; he could not be sure whether the lower rails were raised. However, he testified that it was his practice for twenty-one years to put the rails up. He then dictated his consultation report. In stating, "While watching the monitor, she was standing, had a sudden loss of consciousness and fell to the floor, lacerating her posterior scalp," he meant to convey that he was in a separate area of the hospital when she fell. He absolutely denied leaving Constance standing or sitting on the edge of the bed and denied that there was any reason for doing so.
On cross-examination Dr. Daniels admitted that all four rails should have been up and admitted that he had both rails on one side down to examine her. He testified that he did not examine her from both sides of the bed but rather examined both sides of her body from one side of the bed, explaining that "[t]o listen to her heart on the left side, I reach[ed] over her. It's all done from one side."*fn3
The jury returned a verdict of no cause for action in favor of Dr. Daniels and this appeal followed the entry of judgment. Plaintiff contends on appeal that summary judgment should not have been granted to Dr. Asthana, that the hospital's in limine motion should not have been granted, and that the verdict of no cause for action was against the weight of the evidence and, thus, the trial judge erred in denying plaintiff's motion for a new trial.
With respect to dismissal of the complaint against the hospital, plaintiff argues that Dr. Bell's testimony should have been admitted to establish the standard of care applicable to the hospital and its duty to protect Constance from falling and that the doctrines of common knowledge and res ipsa loquitur should then apply to the facts of this case, citing Estate of Chin v. St. Barnabas Medical Center, 160 N.J. 454 (1999), and Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S.Ct. 279, 46 L.Ed. 2d 258 (1975). Plaintiff then contends that it was improper to consider a possible negligent act by Constance because defendants bore the burden to prove such negligence, relying on Tobia v. Cooper Medical Center, 136 N.J. 335 (1994), and Kent v. County of Hudson, 102 N.J. Super. 208 (App. Div. 1968), aff'd, 53 N.J. 546 (1969). Finally, plaintiff argues that the complaint sounded in general negligence, not just malpractice, and should have proceeded as such, relying on Nowacki v. Community Medical Center, 279 N.J. Super. 276 (App. Div.), certif. denied, 141 N.J. 95 (1995), and Winters v. City of Jersey City, 120 N.J. Super. 129 (App. Div. 1972), modified, 63 N.J. 7 (1973).
Certainly, Dr. Bell's opinions with respect to the standard of care applicable to the hospital and its duty to protect Constance from falling were not net opinions. They were based on undisputed facts respecting the condition with which Constance presented herself to the hospital and her undisputed need for complete bed rest. The real issue respecting Dr. Bell's report and deposition testimony was whether plaintiff bore the burden to prove a deviation through Dr. Bell and, if so, whether plaintiff satisfied it.
Common knowledge and res ipsa loquitur are two distinct legal doctrines.
In res ipsa cases, plaintiff need only prove his injury, and need not prove a standard of care or a specific act or omission. Ordinarily, the common knowledge doctrine is applied in a malpractice case after the plaintiff proves his injury and a causally related act or omission by the defendant. [Sanzari v. Rosenfeld, 34 N.J. 128, 141 (1961) (emphasis added).]
Clearly, this is not a strict common-knowledge case because plaintiff did not prove a causally related act or omission by the defendants.
Plaintiff argues that Dr. Bell's testimony created an inference of liability under the doctrine of res ipsa loquitur. Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). That doctrine consists of the following elements:
(a) [T]he occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect. [Id. at 525 (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958))]
A plaintiff who produces sufficient evidence to satisfy these three elements has met the burden of going forward and defendants are then required to explain that they did not deviate from the an accepted standard of care. Id. at 526.
Anderson provides an example of a res ipsa loquitur case in which the defendant bore the burden of proof. Anderson, supra, 67 N.J. 291. There, a medical instrument was left in the plaintiff's body during surgery, but it was not clear which of the defendants was responsible. Id. at 294. The Court held that when an incapacitated plaintiff suffers an injury that is outside the scope of a medical procedure, all defendants with any reasonable connection to the injury bear the burden of producing evidence and disproving the presumption of negligence. Id. at 300. The doctrine is reserved for specific medical malpractice cases when it is apparent that the victim is blameless and at least one of multiple defendants are liable.
Common knowledge has a specific meaning when used in the context of res ipsa loquitur. In Buckalew, supra, 87 N.J. 512, the Court held that it was permissible for a medical expert to give "net opinion" testimony to satisfy the first element of res ipsa loquitur by explaining that it is "common knowledge" that the injury would not ordinarily occur in the absence of a physician's negligence. Id. at 527. Common knowledge, in this context, may provide a foundation for a medical expert to opine that "it is common knowledge within the medical community that the type of accident that took place in this case does not ordinarily occur in the absence of . . . negligence." Id. at 528. However, "[t]here must be some evidential support, experiential or the like, offered for the expert's conclusion that the medical community recognized that the mishap in question would not have occurred but for the physician's negligence." Id. at 529.
Dr. Bell admitted that he had no direct evidence linking any of the nurses or the hospital to the injury, but that alone did not permit reliance on common knowledge to satisfy the first prong of res ipsa loquitur. Instead, "when an expert claims that the medical community recognizes that negligence is the most frequent cause of a particular injury, the opinion must be based on medical literature or the expert's experience." Khan v. Singh, 397 N.J. Super. 184, 197 (App. Div. 2007) (emphasis added). Dr. Bell offered neither and did not satisfy the first prong of the res ipsa doctrine.
Neither did plaintiff establish the second prong, which requires a plaintiff to narrow the range of defendants to those in exclusive control. Buckelew, supra, 87 N.J. at 525. This may include multiple defendants when "it is virtually certain that one of two defendants is responsible for plaintiff's injuries." Jackson v. Magnavox Corp., 116 N.J. Super. 1, 7 (App. Div. 1971). Under Anderson the burden may be shifted to defendants when there is "no reasonable suggestion" that the occurrence could have been caused by the plaintiff's negligence. Anderson, supra, 67 N.J. at 294. "The fact pattern to which the principles of Anderson most readily apply is where a plaintiff was 'clearly helpless or anesthetized' when her injury occurred." Estate of Chin, supra, 160 N.J. at 465. This helpless or anesthetized state eliminates the third prong - any voluntary act of the plaintiff that could have contributed to the injury. Dr. Bell conceded that it was possible that Constance got out of bed, stood up and lost consciousness.
To summarize, the fact that Constance fell does not bespeak negligence, the cause of her fall was not within defendants' exclusive control and the circumstances equally suggested Constance's own voluntary act and defendants' negligence. This is not a case where it was clear that one or more defendants were negligent and Constance was blameless.
Tobia and Kent do not mandate a different result. Tobia stands only for the proposition that when a healthcare professional is charged with the duty "to prevent a party from engaging in self-damaging conduct, contributory negligence is barred as a defense." Tobia, supra, 136 N.J. at 341 (barring contributory negligence where the doctor had a duty to prevent his institutionalized patient from committing suicide). Kent is to like effect. Kent, supra, 102 N.J. Super. at 214-25 (decedent, suffering from organic brain syndrome with a previous history of self-induced burns from cigarettes, could not be contributorily negligent when hospital staff failed to follow instructions in his chart that he was not permitted cigarettes unless attended). Here, Dr. Bell specifically testified that there was no need to restrain plaintiff in bed because she was lucid and not agitated, combative or disoriented. Furthermore, Dr. Bell did not testify that any or all of the defendants had a duty to prevent Constance from engaging in self-damaging conduct or to remain in her room twenty-four hours per day. Furthermore, this action did not sound in ordinary negligence.
Plaintiff argues that a hospital fall should be covered by the common knowledge doctrine, which, "transforms the case into an ordinary negligence case where . . . the jury, from its fund of common knowledge, assays the feasibility of possible precautions which the defendant might have taken to avoid injury to the plaintiff." Sanzari, supra, 34 N.J. at 141-42 (a plaintiff must produce evidence indicating that the victim was injured and that the defendant's act or omission caused the injury). Plaintiff analogizes the present facts to cases in which it was held that the alleged breach is so plain that no medical expertise is necessary to explain the duty of care. In Nowacki we held that a plaintiff should not be required to provide a medical expert to explain the standard of care when hospital employees were alleged to have failed to maintain safe hospital conditions. Nowacki, supra, 279 N.J. Super. at 292. In Winters we held that a hospital fall caused by a failure to secure guard rails was not the type of breach of duty that required expert testimony. Winters, supra, 120 N.J. Super. at 135.
The second Sanzari element is missing. Plaintiff has not identified an act or omission by a nurse that he claims to have led to Hodgson's injury and would trigger the liability of the hospital. Sanzari, supra, 34 N.J. at 141. It is impossible to determine whether or not plaintiff was entitled to have the nurses held to a duty of care based on common knowledge because plaintiff did not allege a specific breach.
A failure to provide necessary expert testimony merits an involuntary dismissal under R. 4:37-2. Ordinarily, dismissal occurs at the completion of a plaintiff's case, but if proof of an element of the cause of action rests solely on inadmissible net opinion, then a judge may dismiss the action sooner. Smith v. Keller Ladder Co., 275 N.J. Super. 280 (App. Div. 1994); see Pressler, Current N.J. Court Rules, comment 2.3 on R. 4:37-2 (2007). Because Dr. Bell's testimony provided no basis for a finding of liability against the hospital, the trial court properly dismissed plaintiff's claims against it.
Plaintiff asserts that Dr. Asthana, as the admitting resident, was responsible for Constance's care the entire time she was in the hospital. Plaintiff argues that Dr. Asthana is a necessary party who was required to rebut a presumption of negligence under Anderson. The trial judge correctly concluded that this was not a res ipsa loquitur case. Therefore, because there was no evidence of negligence on the part of Dr. Asthana, who was not even on the telemetry floor until after Constance fell, summary judgment was properly granted.
Plaintiff contends that the jury's verdict as to Dr. Daniels should be reversed because it was against the weight of the evidence, yet he does not explain how that is so. Rather, he presents a smörgasbord of arguments that the dismissal of the hospital prejudiced his case against Dr. Daniels; that all the defendants should have been required to come forward with evidence establishing that they were not negligent; that the trial court erred in failing to apply the doctrines of res ipsa loquitur, alternative liability and common knowledge; and that the trial court erred in permitting defense counsel to suggest to the jury that Constance got out of bed with the rails up. We have already addressed most of these arguments and conclude that the rest lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We briefly address only the first of these arguments.
The standard of review when addressing a claim that a jury verdict is against the weight of the evidence is contained in R. 2:10-1. We must determine whether or not there has been "a miscarriage of justice under the law." Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). We must accept as true all evidence supporting the jury's verdict and draw all reasonable inferences in favor of the party prevailing at trial. Bell Atl. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.), certif. denied, 162 N.J. 130 (1999).
There was certainly sufficient evidence to support the verdict. No one saw Constance get out of bed and fall. As a consequence, the jury was required to draw inferences from all of the evidence. Dr. Daniels might have left a side rail down on the right side of the bed, Constance might have lowered a side rail herself or she may have exited from the bottom of the bed and stood up. Plaintiff's expert admitted these were possibilities. On cross-examination Dr. Bell was asked, "Would you agree that even if you put those protocols into place patients can still fall out of bed?" He replied, "It can happen." He opined that it was unlikely because Hodgson was weak and not combative or disoriented. The jury was not required to accept this opinion. It was incumbent on plaintiff to prove how Constance fell and the jury was well within the scope of the evidence in concluding that plaintiff had failed to meet his burden of proof.