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Casey Pellicer v. St. Barnabas Hospital

July 23, 2009

CASEY PELLICER, BY HIS GUARDIAN AD LITEM, ARELI PELLICER AND ARELI PELLICER, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
ST. BARNABAS HOSPITAL AND SAM EDELMAN, M.D., DEFENDANTS, AND J. RUE, R.N., NOW KNOWN AS JEAN SMOGARD-RUE, DEFENDANT-RESPONDENT, AND D. KROPILAK, R.N., NOW KNOWN AS DELPHINE ANDERSON, R.N., ANNE OLESNICKY, M.D., MICHAEL VALLEE, M.D. AND NORMAN ZEIG, M.D., DEFENDANTS-APPELLANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

HOENS, J., writing for a unanimous Court.

Infant plaintiff, Casey Pellicer, was born with spina bifida, a congenital defect of the spine. On September 25, 1998, when Casey was four months old, he underwent spinal surgery at defendant St. Barnabas Hospital. Following surgery, Casey was moved into the Pediatric Intensive Care Unit (PICU). During that transport, an anesthesiologist used a standard procedure referred to as "bagging" to manually force air into the infant's lungs through an endotracheal tube. After Casey reached the PICU, that manual procedure stopped, and his endotracheal tube was connected to a ventilator. Defendant, Delphine Anderson, a registered nurse who was primarily responsible for the infant's care, and defendant Jean Rue, a PICU nurse, were assigned to care for Casey in the PICU. Plaintiff Areli Pellicer, Casey's mother, was also present in the PICU room.

At around 9:50 p.m., there was a concern that the endotracheal tube had become dislodged. Anderson and Rue listened to Casey's lungs and heard breathing sounds leading them to conclude that the tube had not become dislodged. The nurses then disconnected the ventilator and began manually bagging Casey through the tube because manually bagging a patient can be more effective than using a ventilator. Rue assessed the position of the tube and determined that it was still in place. At some point thereafter, the infant's heart rate dropped so low that Anderson began performing chest compressions. At about the same time, Rue administered to Casey the drug Norcuron, a paralytic that deprives one of the ability to move and breathe independently. At around 9:58 p.m., Casey's heart rate dropped, causing Rue to contact the on-call pediatric intensivist, defendant Sam Edelman so that he could assess Casey's airway and could also, if necessary, extubate (remove the tube) or reintubate (reinsert the tube) if it had become dislodged. Edelman was on his way home but immediately headed back to the hospital. St. Barnabas had a code 222 red policy, which governed certain emergencies, including immediate or impending cardiac arrest or respiratory arrest. Certain health care professionals could call the code but an attending nurse like Anderson was primarily responsible for alerting the staff to make the call. Pushing the call button located in the PICU room would immediately summon the code team.

Defendant Anne Olesnicky was the on-call anesthesiologist that night. She had only completed two-and one-half months of her first year of residency and was only qualified to intubate an adult. Olesnicky testified that she was trained to call an attending anesthesiologist in labor and delivery for assistance if an infant intubation was needed. Defendant Michael Vallee, who was an attending anesthesiologist and the coordinator of the anesthesiology residency program, and defendant Norman Zeig, who was chairman of the anesthesiology department and director of residency training, both confirmed that Olesnicky had been trained to call an attending anesthesiologist in labor and delivery if she needed assistance. Vallee testified that she was trained to call a code if the attending physician was unavailable. Both Valle and Zeig testified that the anesthesiology department was not responsible for providing the PICU with coverage by an anesthesiology resident; this was the responsibility of a pediatric intensivist. However, Rue and Anderson testified that it was their practice to call the anesthesia department if the intensivist was not available and that other anesthesiology residents had reintubated infants when called.

At about 10:00 p.m., Olesnicky was paged to report to the PICU "right away." She arrived in the PICU within two minutes and checked Casey's vital signs and listened for breath sounds. Olesnicky did not tell the PICU staff that she was not qualified to intubate an infant. She asked a staff member to immediately page an attending labor and delivery anesthesiologist and, while waiting, she took over manually bagging Casey. At approximately 10:05 p.m., while still en route back to the hospital, Edelman called to speak with Rue about Casey's current condition. Rue claims she reported back to the PICU with a "general announcement" that Edelman had "said to reintubate." Olesnicky administered medication to increase Casey's heart rate but did not attempt to reintubate. By 10:14 p.m., Casey had suffered irreversible brain damage, caused by post-operative oxygen deprivation.

As a result of his injuries, Casey suffers from significant intellectual, verbal, and neuron motor deficits and will require, during his lifetime, substantial, round-the-clock care. Plaintiffs filed a medical malpractice action against the defendants, contending that Casey's injuries were caused by the doctors and nurses who were involved in his post-operative care and by St. Barnabas' inadequate protocols and training. Approximately two weeks into the trial, St. Barnabas alerted the parties and the trial court that it had, for the first time, learned that there were cardiac monitoring strips found in the original hospital file that had not been copied and disclosed during discovery. Counsel for St. Barnabas explained that he had been unaware that the monitoring strips were in the hospital's possession as they were discovered when he met with Anderson and she reviewed the original file. Although the trial continued after discovery of the monitoring strips, eventually Olesnicky moved for a mistrial, arguing that the new information was crucial to her defense theory that the infant was irreparably injured before she arrived in the PICU, a theory now contradicted by the monitoring strips. The trial court granted the motion and imposed sanctions on the hospital for costs related to the discovery violation.

The second trial, which forms the basis of the issues in this appeal, began in October 2004. Shortly before it started, St. Barnabas settled with plaintiffs and new counsel appeared for each of the nurses. At the conclusion of the trial, the jury returned a verdict in favor of plaintiffs, attributing liability in differing percentages against Anderson, Olesnicky, Vallee, and Zeig. Rue was absolved of any liability. The jury awarded plaintiffs total damages in the amounts of $75,967,140. During post trial motions, the court set aside the monetary award to Areli Pellicer for loss of the infant's services, care and companionship. The court denied defendants' requests for a new trial or, in the alternative, for remittitur. After calculating prejudgment interest and molding the verdict to exclude any damages set aside by the court, judgment was entered in the amount of $70,891,781.59.

Defendants Olesnicky, Anderson, Vallee, and Zeig appealed to the Appellate Division, contending in essence that the trial court's inappropriate jury selection methodology, along with numerous other rulings during trial, were biased and unduly prejudicial and that these errors, individually or cumulatively, deprived defendants of their right to a fair trial, inappropriately inflamed the jury, and resulted in a verdict that was both excessive and punitive. The Appellate Division rejected those arguments and affirmed, concluding that the trial court did not abuse its discretion in conducting the jury selection process and that, although there were some improprieties, particularly in plaintiffs' counsel's closing argument, they were not of such magnitude, either individually or cumulatively, to have deprived defendants of a fair trial. In addition, the appellate panel did not find the jury verdict so excessive as to warrant relief.

The Supreme Court granted defendants' petitions for certification to address the issues of whether the verdict was excessive, whether the jury-selection process resulted in a jury that was biased, and whether the trial was tainted by cumulative error. Defendants argue that the grossly excessive jury verdict, on its face, demonstrates that the jury was influenced improperly by inflammatory appeals and motivated by an improper desire to punish defendants rather than fairly compensate plaintiffs. Defendants also argue that the jury selection process utilized by the trial court tainted the entire panel and thereby deprived defendants of a fair, unbiased, and impartial jury. In particular, they argue that by conducting all inquiries of potential jurors about their pre-existing biases against defendants and similar health care providers or facilities in open court, rather than at sidebar, the jurors who were eventually selected were exposed repeatedly to irrelevant and prejudicial views that interfered with their ability to decide the issues fairly and impartially. Defendants further contend that an assortment of events and rulings during the trial operated, either individually or cumulatively, to deprive them of a fair trial. Defendants point to a variety of trial tactics employed by plaintiffs' counsel, with the permission of the trial court, including: disparagement of one of their experts based on his ethnic heritage and his work experience; inflammatory assertions that defendants would profit financially if the infant plaintiff were to die; and accusations that defendants hid or destroyed evidence. Separately, defendants assert that the trial court erred by precluding them from offering expert testimony and evidence relating to use of an annuity to fund the life care plan; singling out one defendant's closing for sua sponte criticism for using a phrase that plaintiffs' counsel had earlier used without similar rebuke; refusing requested curative instructions or proposed jury charges; and permitting plaintiffs' counsel to employ an inflammatory tone throughout the proceedings. Defendants claim that these errors, alone or collectively, entitle them to a new trial.

HELD: Thejury selection process resulted in a jury panel that could not fairly and dispassionately evaluate the difficult and emotionally-charged issues in this case. In addition, the trial was tainted by cumulative error and concerns about the improprieties that infected this trial call the verdict into question because the historic and extraordinary damage award cannot be separated from those errors.

1. Trial courts must ensure that the selection of jurors is conducted in a manner that will effectuate the fundamental right to a fair, unbiased, and impartial jury. In implementing the jury selection process, the trial judge has the discretion to either conduct questioning of jurors in open court or separately at sidebar. The process of selecting a fair, unbiased, and impartial jury in a trial can never be perfunctory or routine. In cases involving personal injuries or medical procedures, the questions posed to jurors frequently delve into sensitive or personal matters and there are questions that evoke strong or harsh personal views that the parties are entitled to explore but may raise issues of potential bias to which others on the jury panel should not be exposed. The court must be mindful that any lack of sensitivity in the voir dire process may result in the expression of a view in open court that will affect the thinking of others in the venire. There is a real risk that such remarks in open court may infect others who hear it and that the exercise of juror challenges may be unable to cure the defect. (Pp. 20-26)

2. The record reveals a stark contrast between the jury selection process the trial court used in the first trial and the one employed after the mistrial was declared. By comparing the two and considering the comments made by the court to justify the decision to change from the first method to the second, it can only be concluded that the process used during the second trial represented a mistaken exercise of discretion. Whether motivated by the expressed desire to be hasty or by lingering irritation about the mistrial, an apparent concern for expedience took the place of the care and sensitivity that the issues continued to demand. Rather than summoning potential jurors to sidebar for follow up on questions that should have alerted the court about potential bias, potential jurors were allowed to voice deep feelings of resentment and bias in open court. It is assumed the trial court intended to impanel a jury that was both impartial and fair, but the repeated expressions of anger, resentment, bitterness and dissatisfaction, much of it directed at the hospital where the tragic events occurred, could not have been ignored by the jurors who overheard them. Compared with the jury selection in the first trial, the trial court's explanations regarding the process utilized in the second trial are insufficient. Because there can be no confidence that the jury-selection process resulted in a jury panel that could fairly and dispassionately evaluate the difficult and emotionally-charged issues in this case, the verdict cannot stand. (Pp. 26-33)

3. In the appropriate circumstances, a new trial may be warranted when there are too many errors that relate to relevant matters that in the aggregate render the trial unfair. Evaluating claims of cumulative error does not simply entail counting mistakes and counsel cannot create cumulative error by repeating a single objection over and over again. Nonetheless, some errors may well cumulate to create an effect of unfairness as in this case. A review of the matters as to which the trial court erred demonstrates that they pervaded the trial. Many of the court's troubling discretionary decisions permitted plaintiffs to shift the jury's focus from a fair evaluation of the evidence to pursue instead a course designed to inflame the jury, appealing repeatedly to inappropriate and irrelevant considerations that had no place in the courtroom. Moreover, the treatment of the parties was not even-handed, with defendants, but not plaintiffs, being limited in their proofs or criticized for their words. A review of the complete record, including the jury selection method and the quantum of the verdict, engenders the distinct impression that defendants were not accorded justice. Taken together, these numerous claims of error cannot be explained away as harmless. The errors are not minor and inconsequential; they are real and repeated errors that cumulated so as to unfairly tilt the balance in favor of plaintiffs and to deprive defendants of a fair trial. (Pp. 33-46)

4. Standing alone, if the verdict had been awarded by a fairly impaneled, dispassionate, and unbiased jury, based on adequate and appropriate testimony and evidence, the award might be sustainable. However, concerns about the improprieties that infected this trial call the verdict into question because this historic and extraordinary damage award cannot be separated from those errors. For all the foregoing reasons, the verdict must be reversed both as to liability for all the defendants and as to damages. The matter must be remanded for a new trial. The claims against Rue are reinstated because a fair presentation of the evidence by plaintiffs must include their claims against all defendants. Further, out of an abundance of caution, the matter on remand should be assigned to a different trial judge. (Pp. 46-50) Judgment of the Appellate Division is REVERSED, the verdict is VACATED, and the matter is REMANDED for a new trial.

The opinion of the court was delivered by: Justice Hoens

Argued November 5, 2008

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, and RIVERASOTO join in JUSTICE HOENS' opinion. JUSTICE ALBIN did not participate.

This matter involves a tragic series of events in which the infant plaintiff Casey Pellicer, then recovering from surgery at defendant St. Barnabas Hospital, was disconnected from a respirator and suffered severe brain damage. In the medical malpractice trial that followed, his mother, plaintiff Areli Pellicer, asserted that his injuries were caused by doctors and nurses who were involved in his post-operative care and by the hospital's inadequate protocols and training. Each defendant denied liability.

After a lengthy trial, the jury returned a verdict that included $50 million for pain, suffering, and loss of enjoyment of life, as well as sizeable compensatory awards. This appeal requires us to consider several issues, including whether the verdict was excessive, whether the selection process resulted in a jury that was biased, and whether the trial was tainted by cumulative error.

I.

The facts on which the trial was based, although complex, need only be summarized*fn1 in order to give context to the issues we address. In doing so, we focus on the assertions made among the parties concerning their theories of liability for the infant plaintiff's injuries.

A.

The infant plaintiff Casey Pellicer was born with spina bifida, a congenital spine defect. On September 25, 1998, when he was four months old, he underwent spinal surgery at defendant St. Barnabas Hospital to remedy certain aspects of that condition. The specifics of that underlying congenital condition and of the surgery are not germane to the issues we are called upon to address because the focus of the litigation was on injuries that plaintiffs assert were sustained by the infant plaintiff during a brief time frame after the surgery itself was performed.

Following the surgery, the infant plaintiff was moved into the Pediatric Intensive Care Unit (PICU). During that transport, an anesthesiologist used a standard procedure referred to as "bagging" to manually force air into his lungs through an endotracheal tube. After the infant reached the PICU, that manual procedure stopped, and his endotracheal tube, which was secured by tape to his mouth, was connected to a ventilator. Defendant Delphine Anderson, a registered nurse who was primarily responsible for the infant's care, and defendant Jean Rue,*fn2 a PICU nurse, were assigned to care for him in the PICU, and his mother, plaintiff Areli Pellicer, was also present in the PICU room.

At approximately 9:50 p.m., Anderson left the room to get tape because she believed that the endotracheal tube was not secure. While Anderson was out of the room, the infant turned his head, and his mother called out because she thought that the tube had been dislodged. Anderson immediately returned to the room along with Rue. According to a monitoring strip, at 9:56 p.m., approximately at the time when the infant turned his head, he had an episode of brachycardia, that is, a very low heart rate, but his oxygen saturation rate was normal.

Anderson and Rue, seeing that the infant was lying on his stomach and that he had turned his head from one side to the other, moved his head back to its original position. They then listened to his lungs, heard breathing sounds, and concluded that the tube had not become dislodged. The nurses then turned the infant onto his back, disconnected the ventilator, and began to manually bag him through the tube, because manually bagging a patient can be more effective than using a ventilator.

Rue again assessed the position of the infant's tube and determined that it was still in place. Nonetheless, at some point thereafter, the infant's heart rate dropped so low that Anderson began performing chest compressions on him. At approximately the same time, Rue administered the drug Norcuron, a paralytic which deprives one of the ability to move and breathe independently, to the infant. The doctor's orders permitted that drug to be given in case of "severe agitation," which referred to either head movement or coughing against the ventilator. Prior to Anderson's departure from the room and prior to the administration of Norcuron, there is no dispute that the infant had been breathing, at least in part, on his own without the assistance of the ventilator and that the administration of Norcuron prevented that from continuing.

Shortly after the drug was given, at approximately 9:58 p.m., the infant's heart rate dropped to fifty to sixty beats per minute, at which point Rue left the room and telephoned defendant Sam Edelman. He was the on-call pediatric intensivist, which is a subspecialist trained to care for critically ill children. Rue called him because she wanted someone who could assess the infant's airway and who could also, if necessary, extubate, that is remove the tube, or reintubate, that is reinsert the tube if it had become dislodged. Edelman was on his way home, but as soon as he received the call, he began driving back to the hospital.

At the time, St. Barnabas had a code 222 red policy, which governed certain emergencies including immediate or impending cardiac arrest or respiratory arrest. Certain health care professionals could call a code, but an attending nurse, such as Anderson, was primarily responsible for alerting the staff to make the call. Pushing a call button located in the PICU room would immediately summon the code team, consisting of: an attending pediatric intensivist; a pediatric hospitalist, who is a pediatrician specializing in the care of hospitalized children; an emergency room attending physician or senior pediatric resident; a nursing supervisor; and the patient's nurse.

On the night in question, defendant Anne Olesnicky was the on-call resident anesthesiologist. She had only completed twoand-a-half months of her first year of residency and was only qualified to intubate an adult. Olesnicky testified that she had been trained to call an attending anesthesiologist in labor and delivery for assistance if an infant intubation were needed. She had never been in the PICU before.

Defendant Michael Vallee, who was an attending anesthesiologist and the coordinator of the anesthesiology residency program, and defendant Norman Zeig, who was the chairman of the anesthesiology department and the director of residency training, both confirmed that Olesnicky had been trained to call the attending anesthesiologist in labor and delivery if she needed assistance. Vallee testified that Olesnicky was also instructed to call a code if the attending physician was not available.

However, both Vallee and Zeig testified that the anesthesiology department was not responsible for providing the PICU with coverage by an anesthesiology resident. As a result, they both contended that they would not expect Olesnicky to be called to any PICU room. Instead, Vallee and Zeig testified that a pediatric intensivist would be called to the PICU to deal with an infant's airway management problems. In contrast, Anderson and Rue, the two nurses, testified that it was their practice to call the anesthesia department if the intensivist was not available and that resident anesthesiologists other than Olesnicky had reintubated infants when called.

At about 10:00 p.m., Olesnicky was paged to report to the PICU "right away." She arrived at approximately 10:02 p.m., listened for breath sounds, and checked the infant's vital signs. Although she determined that she was not trained to manage the situation, she did not tell anyone else in the PICU that she was not qualified to intubate the infant. Instead, she gave an unidentified male staff member the beeper number of the attending labor and delivery anesthesiologist and asked that the doctor be paged immediately. While awaiting his arrival, Olesnicky took over manually bagging the infant. She testified that the infant's oxygen levels increased dramatically, which reassured her that the tube had not been dislodged and that he could be ventilated adequately through it.

At approximately 10:05 p.m., Edelman, who was en route to the hospital, called and spoke to Rue, who reported the infant's vital signs to him. Rue testified that she then returned to the infant's room and made a "general announcement" that Edelman had "said to reintubate." According to Rue, Olesnicky did not respond, except to say that she heard breath sounds. Olesnicky then ordered that the infant be given Atropine to increase his heart rate.

Although Edelman soon called and spoke with Rue for a third time, the phone connection was lost after Rue relayed the infant's vital signs to him. Rue then returned to the room and asked Olesnicky why she had not reintubated the infant. Olesnicky, who Rue described as calm and competent, explained that she had "heard breath sounds." According to Rue, when she asked whether Olesnicky was comfortable with the situation or whether Rue should call a code, Olesnicky said that she was comfortable but asked that the labor and delivery anesthesiologist be summoned.

At approximately 10:10 p.m., Olesnicky again asked Rue to call the labor and delivery anesthesiologist and also asked her to contact the neonatology department. She then ordered that the infant be given a second dose of Atropine, in spite of which his heart rate again declined. At approximately 10:12 p.m., another medication was administered to the infant, resulting in a briefly increased oxygen saturation level. Less than two minutes later, however, the infant's heart rate and oxygen saturation rate both fell so low that Anderson began performing chest compressions on him.

It is undisputed that by that time, which was approximately 10:14 p.m., the infant had suffered irreversible brain damage. Even so, medical personnel continued their efforts, apparently unaware that it was too late. At approximately 10:16 p.m., Edelman, who was still en route to the hospital, called for a fourth time, and Rue again reported the infant's vital signs to him. Olesnicky administered another drug to increase the infant's heart rate because his oxygen ...


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