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Galvin v. Mizuho Medical Corp.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 5, 2008

DENNIS J. GALVIN, AS THE ADMINISTRATOR AD PROSEQUENDA FOR THE HEIRS-AT-LAW OF DENNIS J. GALVIN, DECEASED, AND IN HIS INDIVIDUAL CAPACITY, MAUREEN A. GALVIN, THE WIFE OF DENNIS J. GALVIN, DECEASED, AND LAURA G. HAUSCHILD, AND JOAN G. MCDERMOTT, INDIVIDUALLY, AND AS THE HEIRS-AT-LAW OF DENNIS J. GALVIN, DECEASED, PLAINTIFFS-APPELLANTS,
v.
MIZUHO MEDICAL CORP., MIZUHO AMERICA INC., MIZUHO IKAKOGYO CO., LTD., MIZUHO MEDICAL CO. LTD., DOWNS SURGICAL CO., INC., SIMS SURGICAL INC., MERIDIAN HOSPITALS CORP., INC., MERIDIAN HEALTH SYSTEM INC., MERIDIAN HEALTH SYSTEM - JERSEY SHORE MEDICAL DIVISION, JERSEY SHORE MEDICAL CENTER, JERSEY SHORE ANESTHESIA ASSOCIATES, SHORE PULMONARY, P.A., OCEAN NEUROSURGICAL ASSOCIATES, CLEMENT KREIDER, M.D., CLEMENT KREIDER, JR., M.D., DAVID YAZDAN, M.D., CARMINE VACCARRO, M.D., JONATHAN LUSTGARTEN, M.D., MICHAEL AQUINO, M.D., MICHAEL L. AMOROSO, M.D., WILLIAM J. RAHAL, M.D., DEAN P. CINDRARIO, M.D., DANIEL J. MARKOWITZ, M.D. AND GUSTAVO DE LA LUZ, M.D., DEFENDANTS, AND ALAN DEUTSCH, D.O., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2556-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 25, 2008

Before Judges Winkelstein, Fuentes and Gilroy.

Plaintiff, the Estate of Dennis Galvin, filed this medical malpractice suit alleging wrongful death and survivorship claims. Galvin died after surgery to correct a cerebral aneurism. Plaintiff's theory of liability against defendant Alan Deutsch, D.O., the attending neurologist, was premised on his failure to order post-operative diagnostic testing (CT scan) on an emergent basis. According to plaintiff's expert, decedent's post-operative symptoms should have alerted Deutsch that something had gone seriously wrong with the surgery.

Plaintiff appeals from a no cause verdict, arguing that the trial court erred in charging the jury regarding the applicable standard of care, and permitting the jury to consider the negligence of a co-defendant who had settled with plaintiff prior to the commencement of the trial. Plaintiff also argues that a defense expert's testimony should have been excluded because he did not understand the legal standard of "within a reasonable degree of medical probability." We reject these arguments and affirm.

I.

These are the facts based on the evidence presented at trial. On June 23, 1998, Dennis Galvin suffered a sudden seizure; he was taken to the Jersey Shore Medical Center emergency room, where he underwent a CT scan evaluation and was placed on seizure medication. Dr. Deutsch saw Galvin for the first time the following morning for a neurological consult. The CT scan revealed evidence of a "subarachnoid hemorrhage," meaning the release of blood into the brain. Dr. Deutsch believed the subarachnoid hemorrhage was the result of an aneurysm; an angiogram confirmed that Galvin had an "anterior communicating artery aneurysm that had ruptured."

On June 25, 1998, Dr. Clement Kreider, a neurosurgeon, performed brain surgery on Galvin to repair the ruptured aneurysm. The surgery consisted of "clipping of the aneurysm," so there was no further risk of hemorrhaging. Dr. Deutsch did not attend or participate in the surgery.

The morning after the surgery, at about 8:00 a.m., Dr. Deutsch performed a neurological examination on Galvin. He testified that his examination was "limited" by the fact that Galvin's brain surgery had taken place only eight or nine hours earlier and he was sedated by medication. According to Dr. Deutsch, Galvin was "rousable" and having "spontaneous respirations," but was "sluggishly reactive to light" and had a "possible hemiparesis"*fn1 on his left side. He suspected hemiparesis because Galvin's right hand grip had greater strength than his left; his reaction to painful stimuli was slight, but "looked perhaps greater on the right side than the left side."

After considering the diagnostic possibilities, which included cerebral vasospasm,*fn2 subarachnoid hemorrhage, ischemia, stroke, hydrocephulas, recurrent hemorrhaging, and infection or abscess, all of which could be life threatening, Dr. Deutsch decided to continue the post-operative treatment plan, which included Nimodipine therapy, a prophylaxis against vasospasm. If the "possible hemiparesis" remained, and there was no significant improvement, Dr. Deutsch planned to perform a CT scan the next day. He decided not to perform a CT scan that day because his "index of suspicion that something major was going on was extremely low," and he believed it would be "extremely risky" to move Galvin so soon after the surgery.

Dr. Deutsch examined Galvin the following morning, June 27, 1998. He was unable to determine whether the "possible left hemiparesis" was still present because Galvin had been "heavily sedated" prior to the examination. Unlike the day before, however, Galvin had no reaction to painful stimulus in his extremities. Dr. Deutsch ordered a CT scan to determine if there were any complications from the subarachnoid hemorrhage.

At this point, it had been over twenty-four hours since the surgery. Dr. Deutsch concluded it was now safe to transport Galvin and perform the scan. According to Dr. Deutsch, he did not order that the CT scan be administered "stat" (immediately) because his "index of suspicion" that there were any complications, was still low; he still believed that Galvin's symptoms were attributable to the sedation.

The CT scan ordered by Dr. Deutsch that morning was not performed until much later that evening at 9:34 p.m. Dr. Deutsch saw Galvin again the following morning on June 28, 1998. The results of the CT scan showed that Galvin had a right anterior stroke or infarction. Dr. Deutsch suspected that the cause of the stroke was probably a vasospasm or edema. The stroke and the swelling associated with the stroke caused herniation of the brain and the brain stem. According to Dr. Deutsch, although he prescribed treatment, the prognosis for "herniation syndrome" is "almost invariably fatal." Galvin died on June 29, 1998.

An autopsy report commissioned by decedent's family indicated that the silver surgical clip, which Dr. Kreider should have placed on the artery or the neck of the aneurysm during the surgery, was found loose in the "interhemispheric cerebral fissure," the space between the left and right hemispheres of the brain. The report also noted that Dr. Kreider was present in the room with the body, and had "accidentally dislodged the clip from its placement" before the pathologist began to perform the autopsy. No evidence of vasospasm was found. Dr. Deutsch testified that this finding was contrary to his earlier suspicions that a vasospasm cause Galvin's stroke.

II.

With the exception of the claims against Drs. Deutsch and Kreider, all claims against other originally named defendants were dismissed during the pre-trial discovery period. Plaintiff settled with Dr. Kreider (the neurosurgeon who performed the surgery on decedent) before commencement of trial.

Plaintiff filed a motion in limine prior to trial to preclude any reference to plaintiff's settlement with Dr. Kreider. Plaintiff argued that the settlement was not relevant, since defendant did not have expert testimony stating that Dr. Kreider deviated from the requisite standard of care. In response, Dr. Deutsch argued that both Dr. Lilly (plaintiff's expert) and his expert witness, Dr. Edward Feldmann, would provide testimony about Dr. Kreider's alleged deviation from the applicable standard of care. The trial court denied plaintiff's motion.

Plaintiff presented the testimony of Galvin's children, and two expert witnesses: Dr. Ralph B. Lilly, a specialist in neurology, and Royal Bunin, an expert in the field of economics. In Dr. Lilly's opinion, Dr. Deutsch's postoperative care of decedent deviated from the relevant standard of care. According to Dr. Lilly, once Dr. Deutsch observed Galvin's hemiparesis he should have been concerned about whether there was a re-bleed from the aneurysm, a spontaneous bleed, an infection or a seizure. Specifically, Dr. Deutsch should have been concerned about a "vasospasm, which is spasm of the blood vessels caused by the irritation of the blood pouring all over them." This event could lead to a stroke, and if left untreated, be life threatening. Dr. Deutsch should have performed a "stat" or an "urgent and emergent" CT scan that day, so the "proper interventions" could be taken.

Dr. Lilly opined that if the CT scan had been performed on June 26, 1998, it would have shown "evidence of a stroke" and a "beginning edema," or swelling of the brain. Once detected, therapies could have been used to "reduce the increasing cranial pressure and the swelling." In Dr. Lilly's opinion, the failure to provide any therapy at this critical juncture resulted in Galvin's death.

Dr. Lilly further testified that from June 26 to June 27 there was an "extraordinary negative regression" of Galvin's condition. His symptoms, including not responding to painful stimuli, were indicative of a "severe brain injury and brain stem dysfunction." This "regression" required that a CT scan be performed and read "immediately." Dr. Deutsch's failure to order the CT scan "stat" was a "deviation from acceptable standards of medical care." Dr. Lilly concluded that the delay was "a substantial contributing factor" to Galvin's death because the delay "resulted in the . . . abnormality progressing beyond any therapeutic benefits, beyond recovery."

Had Galvin's condition been diagnosed earlier, "therapeutic interventions would in all probability have resulted in his survival." Although Galvin would likely "have had some neurological deficits, including left sided weakness or paralysis, and probably would have a seizure disorder," he would have survived.

On cross-examination, Dr. Lilly agreed that the neurosurgeon who actually performs the surgery has "prime responsibility for the management of a postoperative patient." Thus, it was Dr. Kreider who was primarily responsible for ordering a CT scan on June 26, 1998.

Dr. Deutsch testified on his own behalf. He also called Dr. Feldmann as an expert witness in neurology and strokes. According to Dr. Feldmann, Dr. Deutsch "met the standards of care for taking care of this patient" because he had no medical basis for ordering a CT scan on June 26, 2008. Galvin was receiving medication to prevent a vasospasm and the risk of other complications was low. In his opinion, Dr. Deutsch was properly concerned about transporting Galvin so soon after the surgery.

Dr. Feldmann was also critical of Dr. Kreider's conduct. Although the purpose of the surgery was to clip the aneurysm, Dr. Kreider failed to do so; instead, he clipped "the second part of the anterior cerebral artery" or a "normal artery." He postulated that Dr. Kreider did not clip the aneurysm because it would have "shrivel[ed] and disappear[ed]." The autopsy report's reference to the aneurysm was evidence that it did not disappear. There was also a blood clot outside the aneurysm, suggesting that the aneurysm had leaked blood; this would not have occurred if it was clipped.

Dr. Kreider's operation notes also failed to identify all the arteries in the region prior to placement of the clip, which makes it harder to determine whether the correct artery was clipped. As Dr. Feldmann explained, it is often difficult during surgery to identify the correct artery. If a surgeon is having difficulty, he should have a radiologist perform an angiogram, while the patient is still in the operating room, to confirm that the clip was properly placed. According to Dr. Feldmann, Dr. Kreider did not have a radiologist perform an angiogram.

Thus, Dr. Feldmann opined that, even if the clip was left in place longer during the autopsy, it was "very clear" that the clip went on a "normal artery" and not the aneurysm. This caused Galvin to have a second "extreme" stroke. When the artery was clipped, the whole front right side of the brain, which was getting blood from the "normal artery," died and "swell[ed] massively." This swelling, added to the existent swelling from the subarachnoid hemorrhage itself (the first stroke) and the surgery, led to Galvin's death.

Once the clip was placed on the wrong artery, causing the second stroke, the symptoms of the stroke were irreversible after six to ten hours. Therefore, by the time Dr. Deutsch saw Galvin the next morning, eight to twelve hours after the surgery, it was too late to save his life. Under these circumstances, Dr. Feldmann opined that by the time a CT scan or an angiogram was ordered and performed and Galvin was diagnosed any treatment would be futile.

The following exchange occurred during Dr. Feldmann's cross-examination concerning the meaning of the phrases "standard of care" and "medical probability."

[PLAINTIFF'S COUNSEL]: Now, Doctor you were testifying on the standard of care that Dr. Deutsch did not deviate from an acceptable standard of medical care. Do you recall that you gave that testimony?

[DR. FELDMANN]: Yes.

[PLAINTIFF'S COUNSEL]: And you understand that standard of care means what most reasonable neurologists in the locality where Dr. Deutsch practices would do?

[DR. FELDMANN]: Yes.

[PLAINTIFF'S COUNSEL]: We're talking about the geographic locality, is that correct?

[DR. FELDMANN]: Right. Well sometimes it's the whole country too because it's a common problem.

[PLAINTIFF'S COUNSEL]: When you testified at your deposition, you testified that you understood standard of care to mean what most reasonable neurologists in the locality would do, correct?

[DR. FELDMANN]: Yes.

[PLAINTIFF'S COUNSEL]: What does the phrase, medical probability mean?

[DR. FELDMANN]: I guess the chance that a medical event would occur.

[PLAINTIFF'S COUNSEL]: Now you understand that this medical standard of care requires that a specialist, in this case Dr. Deutsch, possess and employ the knowledge and the skill that would be expected from an average neurologist, is that correct?

[DR. FELDMANN]: Yes.

[PLAINTIFF'S COUNSEL]: Okay. And if they [then] fail to employ that skill and knowledge that's a deviation from the standard of care, is that correct?

[DR. FELDMANN]: Yes.

At the conclusion of Dr. Feldmann's testimony, plaintiff's counsel moved to strike his testimony in its entirety. Counsel offered two reasons for the motion. First, Dr. Feldmann's testimony applied a standard of care, which was limited to "the locality in New Jersey or in the locality where Dr. Deutsch practices," which is contrary to New Jersey's case law requiring application of a nationwide standard. Second, Dr. Feldmann did not know the definition of "medical probability." The trial court denied plaintiff's motion. With respect to Dr. Feldmann's application of the so-called "locality rule," the court found no case law that required the expert to testify based on a national standard.

Plaintiff's counsel next argued that there should not be any jury instruction given about the negligence of Dr. Kreider because "there ha[d been] no testimony presented by the defense that Dr. Kreider deviated from any standards of acceptable medical care applicable to a neurosurgeon." Although Dr. Feldmann was critical of Dr. Kreider, he never actually "used th[e] words" and definitively stated "that this is the standard" and there was a deviation. Counsel did not dispute that Dr. Feldmann, as a neurologist, was qualified to offer an opinion about the standard of care applicable to Dr. Kreider as a neurosurgeon.

Defense counsel argued that both Dr. Lilly's and Dr. Feldmann's testimony established that Dr. Kreider deviated from the requisite standard of care. Dr. Lilly testified that Dr. Deutsch deviated from the applicable standard of care by not ordering a CT scan. He also testified that Dr. Kreider had the same obligation as Dr. Deutsch did to order a CT scan. In fact, according to Dr. Feldmann, Galvin died because of Dr. Kreider's failure to identify and clip the correct aneurysm during the surgery.

The court rejected plaintiff's argument, finding that it was proper to instruct the jury about Dr. Kreider's negligence because Dr. Feldmann testified that Dr. Kreider deviated from the applicable standard of care. The court reasoned that even if Dr. Feldmann had not uttered the words "standard of care," he established the applicable standard by testifying about what "should have been done."

The court thus instructed the jury that the standard of care applicable to Dr. Deutsch was that established by the expert witnesses. If the jury were to find that Dr. Deutsch was negligent, it should then consider whether or not Dr. Kreider was also negligent. If the jury found that both physicians were negligent, it would then have to apportion the fault between them. After deliberating as instructed, the jury returned a verdict of no cause in favor of Dr. Deutsch, finding that he had not deviated from the applicable standard of care.

III.

Against this backdrop, we will now address the arguments raised by plaintiff. Plaintiff argues that the trial court erred by not striking the testimony of Dr. Feldmann because his testimony was based on a local rather than a national standard of care. Dr. Deutsch urges us to reject this argument, because outside of Dr. Feldmann's "affirmative response to a vague question on cross-examination" there is no evidence that he testified based on a local standard. We agree with Dr. Deutsch in this respect.

Certain states do not apply a national standard of care in medical malpractice cases; rather they apply a "same or similar locality" rule, which requires a physician to exercise a standard of care similar to those who engage "in the same type of practice in similar localities." Sheeley v. Memorial Hosp., 710 A.2d 161, 165-66 (R.I. 1998).

The standard of care in New Jersey is not dependent upon the location where the medical professional practices. In Jedel v. Tapper, 13 N.J. Misc. 809 (Sup. Ct. 1935) a dentist sued the defendants for payment for dental services he had rendered. The trial court directed a verdict for the plaintiff against one of the defendants and the court reversed, noting that the trial court had applied an incorrect standard of care to the dentist. Id. at 809-10. The trial court found that the doctor exercised skill "consistent with his locality." Id. at 810. In contrast, the Supreme Court explained that "[t]he correct principle of law in such cases is that a physician or a dentist undertakes, in the practice of his profession, that he is possessed of that degree of knowledge and skill therein which usually pertains to other members of his profession." Ibid. (citing Woody v. Keller, 106 N.J.L. 176, (E. & A. 1930); Lolli v. Gray, 101 N.J.L. 337 (E. & A. 1925); Ely v. Wilbur, 49 N.J.L. 685 (E. & A. 1887); Smith v. Corrigan, 100 N.J.L. 267 (Sup. Ct. 1924)).

Thus, in New Jersey, "[a] physician must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field." Velazquez v. Portadin, 163 N.J. 677, 686 (2000); see also Marshall v. Klebanov, 188 N.J. 23, 33-34 (2006).

Here, plaintiff's argument is predicated upon an isolated "yes" answer given by Dr. Feldmann in response to counsel's question, which can be fairly characterized as a "gotcha" question. This kind of sophistry is not useful to either the court or the fact-finder, as they each go about their respective roles in this search for the truth.

We are satisfied that, when considered in its totality, Dr. Feldmann's testimony correctly stated the applicable standard of care. In fact, even after answering "yes" to counsel's question, Dr. Feldmann also agreed that the "medical standard of care requires that a specialist, in this case Dr. Deutsch, possess and employ the knowledge and the skill that would be expected from an average neurologist." This is the correct standard under New Jersey law.

Plaintiff also argues that the trial court erred in refusing to strike Dr. Feldmann's testimony because he did not know the definition of "medical probability." We disagree.

When an expert is providing an opinion about medical causation, his testimony "must be couched in terms of reasonable medical probability; opinions as to possibility are inadmissible." Eckert v. Rumsey Park Associates, 294 N.J. Super. 46, 50 (App. Div. 1996), certif. denied, 147 N.J. 579 (1997) (citing Johnesee v. Stop & Shop Companies, Inc., 174 N.J. Super. 426 (App. Div. 1980)). "Reasonable medical probability or certainty refers to the general consensus of recognized medical thought and opinion concerning the probabilities of conditions in the future based on present conditions." Schrantz v. Luancing, 218 N.J. Super. 434, 439 (Law Div. 1986) (citing Boose v. Digate, 246 N.E.2d 50 (Ill. App. Ct. 1969)). If an expert's testimony does not set forth that the causal connection rises to the level of a reasonable medical probability a court may find that the conclusion is merely a net opinion. Eckert, supra, 294 N.J. Super. at 51 (citing Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).

In Eckert, supra, the trial judge excluded expert testimony, which it found was not based on a reasonable degree of medical certainty or probability. Id. at 50. The expert, a psychologist, testified that there was a "strong relationship and connection" between the plaintiff's injury and her current psychological state, but she refused to testify about "causation." Id. at 49. We concluded that the trial court committed reversible error by excluding the expert's testimony. Id. at 47. In so doing, we cited with approval Aspiazu v. Orgera, 535 A.2d 338 (Conn. 1987), a Connecticut case holding that it was unnecessary for an expert to use "'talismanic' or 'the particular combination of magical words represented by the phrase "reasonable degree of medical certainty"'" Id. at 342 (quoting Matott v. Ward, 399 N.E.2d 532 (1979).

Here, we take the opportunity to reaffirm that the testimony of an expert is admissible as long as the court is "persuaded that 'the doctor was reasonably confident of the relationship between the plaintiff's injury and his . . . diagnosis and treatment.'" Ibid. (quoting Aspiazu, supra, 535 A.2d at 343). As we explained in Eckert, the causation requirement "is not to be satisfied by a single verbal straightjacket alone, but, rather, by any formulation from which it can be said that the witness' 'whole opinion' reflects an acceptable level of certainty." Eckert, supra, 294 N.J. Super. at 52 (quoting Matott v. Ward, 399 N.E.2d 532, 534 (N.Y. 1979)).

Plaintiff nevertheless argues that Dr. Feldmann's testimony should be stricken because he defined "medical probability" as "the chance that a medical event would occur." We disagree. Dr. Feldmann's testimony shows that he was "reasonably confident of the relationship between [Galvin's death] and his . . . diagnosis and treatment." See id. at 51 (citing Aspiazu, supra, 535 A.2d 338). He testified that the cause of Galvin's death was Dr. Kreider's incorrect placement of the clip on a normal artery, and that Dr. Deutsch's conduct did not contribute to Galvin's death.

As Dr. Feldmann explained, when the artery was clipped the whole front right side of the brain, which was getting blood from the "normal artery," died and "swell[ed] massively." This swelling added to the existent swelling from the subarachnoid hemorrhage, the first stroke, the surgery, and the second stroke, led to Galvin's death. Thus when viewed as a whole, it is clear that Dr. Feldmann's testimony reflects an "acceptable level of certainty." Eckert, supra, 294 N.J. Super. at 52 (citing Matott, supra, 399 N.E.2d at 534).

Plaintiff's final arguments concern the trial court's instructions to the jury. Plaintiff maintains that the trial court erred in instructing the jury about the standard of care applicable to Dr. Deutsch. Plaintiff's argument is unavailing because, as the following citation illustrates, the trial court properly instructed the jury on the applicable standard of care.

Specialists in the field of medicine, such as Dr. Deutsch here was a neurologist, represent that they will have and employ not really [sic] the knowledge and skills of a general practitioner, but that they will have and will employ the knowledge and skill normally possessed and used by the average specialist in the field.

[T]he standard of practice by which a physician's conduct is to be judged must then be furnished by expert testimony. That's why you had them in this case. That is to say by the testimony of persons who have knowledge, training or experience and are deemed qualified to testify and express their opinions on medical subjects.

Here a juror should not [ ] speculate or guess about the standard of care by which the defendant should have conducted himself in the diagnosis and treatment of plaintiff. Rather, you must determine the applicable standard of care from the testimony of the expert witnesses you have heard in this case.

Plaintiff did not object to this charge at trial and the instruction complies, almost verbatim, with the Model Jury Charge. See Model Jury Charges (Civil), § 5.50A Duty and Negligence (Mar. 2002).

Plaintiff next argues that the trial court erred in instructing the jury to consider the negligence of Dr. Kreider because there was no expert testimony presented to establish Dr. Kreider was negligent. Dr. Deutsch argues that both Dr. Lilly and Dr. Feldmann testified concerning Dr. Kreider's deviation from the applicable standard of care. We reject plaintiff's argument.

It is well-settled that a non-settling defendant has the right to have a settling defendant's liability apportioned by the jury. Green v. General Motors Corp., 310 N.J. Super. 507, 545-46 (App. Div.), certif. denied, 156 N.J. 381 (1998) (citing Mort v. Besser Co., 287 N.J. Super. 423, 431-32 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997)). The non-settling defendant must prove that liability; a mere settlement is not proof of liability. Id. at 546. If the non-settling defendant does not present an issue of fact as to the liability of the settling party, then the jury cannot be asked to consider the proportionate liability of the settler. Ibid. (citing Young v. Latta, 233 N.J. Super. 520, 526 (App. Div. 1989)).

In order to establish that a physician was negligent, competent expert testimony must opine that the physician deviated from generally accepted medical practices and that the deviation was a proximate cause of the patient's injury.*fn3

Adamski v. Moss, 271 N.J. Super. 513, 518 (App. Div. 1994). "Ordinarily, medical practitioners' standards of care and deviations therefrom must be established by expert testimony, as average jurors lack the 'requisite special knowledge, technical training and background' to make those determinations without an expert's assistance." Lucia v. Monmouth Medical Center, 341 N.J. Super. 95, 103 (App. Div.), certif. denied, 170 N.J. 205 (2001) (quoting Kelly v. Berlin, 300 N.J. Super. 256, 264 (App. Div. 1997)).

Here, the trial court found that Dr. Feldmann testified that Dr. Kreider deviated from the applicable standard of care. Even if Dr. Kreider did not use the words "standard of care" or "deviation" the trial judge found, and the record supports, that Dr. Feldmann still established the applicable standard by testifying about what should have been done."

Dr. Feldmann discussed Dr. Kreider's conduct extensively and his testimony established a basis for the jury to find that Dr. Kreider deviated from generally accepted medical practices and that the deviation was a proximate cause of Galvin's injury. See Adamski, supra, 271 N.J. Super. at 518. He explained that Dr. Kreider's goal in performing the surgery was to "get rid of the aneurysm" by placing a tight clip across the neck of the aneurysm. He opined that instead of clipping the aneurysm, Dr. Kreider incorrectly clipped a "normal artery" and he concluded that this led to Galvin's death.

Dr. Lilly's testimony also established a basis to find that Dr. Kreider was negligent. Dr. Lilly opined that Dr. Deutsch deviated from acceptable standards of medical care in not ordering a CT scan be performed on June 26, 1998, and in not ordering a CT scan be performed "stat" on June 27, 1998. On cross-examination, Dr. Lilly acknowledged that the neurosurgeon had "prime responsibility for the management of a post-operative patient."

In this context, the trial court correctly instructed the jury as follows:

You are not to speculate as to the reasons why the plaintiff and Dr. Kreider settled their dispute. You should not be concerned about the amount, if any, that may have been paid to resolve the claim against Dr. Kreider. You must decide the case based on the evidence that you find credible, and the law presented at this trial.

For all of the foregoing reasons, we affirm the various rulings made by the trial court as challenged by plaintiff, and uphold the verdict of the jury in favor of defendant Dr. Deutsch.

Affirmed.


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