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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. ...