On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2556-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
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 ...