August 4, 2009
REMY VALENTE, PLAINTIFF-APPELLANT,
CHRIST HOSPITAL, MAUREEN DEHAVEN, R.N., MITCHELL STEINWAY, M.D., AND BECTON DICKINSON & COMPANY, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-6265-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 1, 2009
Before Judges A. A. Rodríguez, Payne and Newman.
Plaintiff, Remy Valente, appeals from the dismissal of his medical malpractice action against defendants Christ Hospital, Maureen DeHaven, R.N., and Becton Dickinson & Company, following their successful motions for summary judgment. Plaintiff also appeals the dismissal by the trial judge of plaintiff's remaining claim against defendant, Mitchell Steinway, M.D., as the result of the judge's determination that plaintiff's experts had failed to establish a deviation on Dr. Steinway's part.
On appeal, plaintiff raises the following issues:
[THE MOTION JUDGE] ERRED IN DISMISSING PLAINTIFF'S THIRD AMENDED COMPLAINT AS TO CHRIST HOSPITAL, DEHAVEN AND BD [BECTON DICKINSON].
[THE MOTION JUDGE] ERRED IN NOT ORDERING AN ADVERSE INFERENCE CHARGE AGAINST CHRIST HOSPITAL FOR ITS SPOLIATION OF THE BLADE AND SCALPEL.
[THE MOTION JUDGE] ERRED IN NOT DECLARING THIS MATTER BE GOVERNED BY ANDERSON V. SOMBERG.
[THE MOTION JUDGE] ERRED IN NOT ALLOWING ISAAC BACOTE TO BE REINSTATED AS A DEFENDANT.
[THE MOTION JUDGE] ERRED IN NOT ALLOWING THE DE BENE ESSE DEPOSITION OF BRYAN KELLY, M.D., TO TAKE PLACE AT THE TIME OF TRIAL.
[THE TRIAL JUDGE] ERRED IN ALLOWING STEINWAY THE ABILITY TO COMMENT AT TRIAL AS TO OTHER ALTERNATE CAUSES BETWEEN THE SEPARATION OF THE SCALPEL HANDLE AND BLADE AND TO LIMIT THE SCOPE OF STEINWAY'S CROSS-EXAMINATION OF PLAINTIFFS' EXPERTS TO DIRECT EXAMINATION.
[THE TRIAL JUDGE] ERRED IN NOT ALLOWING DR. KELLY'S VIDEOTAPE TO BE PLAYED TO THE JURY.
THE TRIAL COURT ERRED IN CONCLUDING THAT DR. SICHERMAN'S OPINION AS TO LIABILITY WAS A NET OPINION.
The record discloses the following facts of relevance to this appeal. On August 5, 2004, plaintiff underwent arthroscopic right shoulder surgery at Christ Hospital. His surgeon was Dr. Steinway. During the course of the surgery, three circulating nurses successively rotated in and out of the operating room, as did scrub nurse DeHaven, followed by scrub tech Isaac Bacote, and then by scrub nurse Victoria Manzano. As part of her duties, DeHaven assembled a scalpel to be used in the procedure by inserting a number eleven blade into a number three knife handle. The blade was taken from a pre-prepared "shoulder pack" purchased by the Hospital from Cardinal Health, a non-party. The knife handle was taken by DeHaven from the case cart prepared by Hospital employees for plaintiff's surgery. De Haven assembled the two items by inserting the blade, held with forceps, into the collar of the handle. She testified that it was her usual practice to listen for the click occurring when a nipple on the handle passed through a hole in the blade, thereby securing it. DeHaven left the operating room before surgery was commenced and was replaced by Bacote.
During the surgery, Dr. Steinway utilized the scalpel to create posterior and anteriolateral portals in plaintiff's right shoulder, without incident. The doctor testified that during the course of these procedures, he observed nothing wrong with the scalpel. After each use, the doctor replaced the scalpel in a kidney dish, held by Bacote. Bacote, in turn, cleaned the blade to ready it for further use. Because the doctor visualized fragments in the shoulder that required removal, it was necessary for him to make a third, anterior, incision, which he did by extending a switching stick through the pathway created by the existing portals and tenting the skin at the location of the third incision. The doctor then used the scalpel to cut the skin and underlying subcutaneous tissue to create the third portal. Upon examination of the scalpel after its return to the kidney dish, Bacote noticed that the blade was missing. A search of the surroundings and plaintiff's drapes did not reveal the instrument. The doctor therefore ordered a fluoroscopic examination, which disclosed the blade lodged at the site of the third incision in a nearby muscle. To remove the blade, the doctor was required to increase the incision from two and one-half centimeters (slightly more than one inch) to five centimeters. Additionally, the time required for the surgery itself was approximately trebled. Upon examination following removal, the scalpel's blade was found to be intact.
After the blade separation had occurred, the doctor instructed the second circulating nurse, Saturnina Logro, to prepare an incident report, which she did. According to Dr. Steinway, he also "did tell, whoever was the operating room nurse, they change periodically, that if this thing came off then the handle is no good anymore." The doctor testified further:
I told the operating room technician [Bacote] once we found the blade and removed it completely that something is wrong with this. It is in the pan. We all agreed something was wrong, otherwise it wouldn't have come off. What was wrong, I don't know. I said to the circulator in general to make up an incident report because though I have done nothing wrong, I want this documented that this little bugger came off.
The doctor gave no other instructions to the nurses regarding the proper disposition of the blade and handle, relying on their training in this regard. Before the surgery was completed, Logro was replaced as circulating nurse by Myeline Alegra, and Bacote was replaced as scrub nurse by Manzano. In the course of cleaning up the operating room following the surgery, Manzano disposed of the blade in a sharps container, and she returned the blade handle to the Hospital's supply room, where it was intermingled with others. Because blade handles can be used for a period of more than fifteen years, and because, over time, the Hospital has purchased such handles from a number of different manufacturers, it has not been possible to identify what company manufactured the handle at issue. The manufacturer of the blade is likewise unknown. Although the Hospital stated that it directly purchased scalpel blades from Becton Dickinson, this particular blade was taken from a pack supplied by Cardinal Health, and no discovery of its suppliers was undertaken.
As the result of the incident, plaintiff was administered additional doses of the antibiotic Ancef as a precaution against infection, and he was discharged that day. On August 9, 2004, plaintiff returned to Dr. Steinway with complaints of fever and chills. Upon examination, the doctor found the wound site to be infected, and he admitted plaintiff to Christ Hospital, where plaintiff's wound was debrided and intravenous antibiotics were administered. Plaintiff was discharged on August 14 while still on intravenous antibiotics, but was re-admitted to New York Presbyterian Hospital on August 15, 2004 as the result of concerns of infection in the line being utilized to administer the antibiotics. Plaintiff was discharged on August 17, 2004, with orders to continue antibiotic therapy at home.
As the result of complaints of continuing pain and restriction in the right shoulder, plaintiff consulted with a Dr. Warren and then Dr. Kelly, who performed further surgery on June 2, 2005. That surgery disclosed extensive cartilage wear in the glenohumeral joint with significant areas of full thickness wear on the humeral head, as well as the glenoid. In a report dated November 30, 2005, Dr. Kelly stated:
With regard to the relationship between the initial surgery and the progressive pain that he is having, I do think that the postoperative infection that he incurred after the initial surgery did have an effect on his ultimate recovery. It is likely that the morbidity associated with the broken scalpel blade increased Mr. Valente's risk for post-operative infection. Based upon the operative reports from the initial surgery, which only dictated mild arthritic changes, there certainly has been a significant worsening of the cartilage wear and degeneration on the humeral head and glenoid surfaces of the glenohumeral joint subsequent to that procedure based upon the reports initially dictated.
On December 3, 2004, plaintiff filed a complaint against Christ Hospital and fictitious defendants, alleging negligence arising from the separation of the scalpel's blade from its handle. By order entered on July 12, 2005, plaintiff was granted leave to file an amended complaint adding as defendants scrub nurse DeHaven, scrub technician Bacote, scrub nurse Manzano, and circulating nurses Susan Lynch, Logro and Alegra. However, claims against all nurses with the exception of DeHaven and against Bacote were dismissed by stipulations of dismissal without prejudice. Dr. Steinway and Becton Dickinson were added as defendants in a second amended complaint, and in a third amended complaint plaintiff asserted a new claim of fraudulent concealment by the Hospital, arising from the loss of the scalpel blade and handle.
On May 9, 2007, plaintiff filed a motion seeking an order adjourning an impending trial date and for authorization to obtain an out-of-state commission to depose treating physician Kelly. The relief was granted in an order of May 25, 2007 that stated:
Dr. Kelly's deposition for use at trial must be completed by 7-31-07. Alternatively plaintiff shall supply his medical expert report by 7-31-07 in place of Dr. Kelly, or such new expert shall be barred from testifying.
The deposition was not scheduled in a timely fashion, and occurred one day prior to an adjourned trial date of February 19, 2008. Counsel for Dr. Steinway, by then the only remaining defendant, declined to participate in the deposition after determining that it was barred by the May 2007 order, from which plaintiff had sought no relief.
At the conclusion of discovery, Christ Hospital and Becton Dickinson moved for summary judgment, and DeHaven joined in their motions. Plaintiff cross-moved for an order (1) declaring that the matter was governed by Anderson v. Somberg, 67 N.J. 291 (1975); (2) finding that at the time of trial plaintiff was entitled to an adverse inference charge against Christ Hospital for spoliation of evidence; and (3) bifurcating the sixth count of plaintiff's complaint setting forth a claim against the Hospital for fraudulent concealment.
The motions were heard on July 5, 2007. Following argument, the motion judge determined that plaintiff could not require the defendants to demonstrate that they were not at fault in connection with the scalpel blade separation pursuant to principles established in Anderson v. Somberg because plaintiff could not show that all potentially culpable parties were before the court, including the manufacturer of the scalpel blade and handle and including Bacote. The judge denied plaintiff's oral application to vacate the dismissal entered against Bacote, stating: "We're not bouncing people back and forth into this case, not at this particular stage of the proceeding."
The judge additionally granted summary judgment to the Hospital, finding no claim to have been asserted of direct liability for supplying a defective instrument, no evidence of derivative liability as the result of the acts of DeHaven, and no basis in law for plaintiff's claim of fraudulent concealment. Summary judgment in favor of DeHaven was likewise granted because of the lack of any evidence of her negligence in assembling or otherwise handling the scalpel. As the result of lack of expert proof of defect, Becton Dickinson's motion was also granted. At most, plaintiff's expert, Steven Nehmer, M.D., had been able to state:
It is my opinion that the separation of the #11 blade from the scalpel handle, which occurred during the creation of the anterior portal, does not occur in the absence of negligence. It was either defective, improperly attached, or improper force was used. It is impossible to know which of these things occurred based upon the records available to me.
Additionally, the judge denied a motion by Dr. Steinway to take the deposition of Hervey Sicherman, M.D., the expert for Becton Dickinson whose opinion that Dr. Steinway was negligent in inserting the scalpel too deeply, thereby causing the blade to separate, plaintiff sought to adopt. The judge did not directly address plaintiff's argument that he was entitled to an unspecified discovery sanction as the result of the Hospital's spoliation of evidence, treating the spoliation issue as if it were a direct claim of liability, precluded by the Supreme Court's decision in Rosenblit v. Zimmerman, 166 N.J. 391, 406 (2001).*fn1
Plaintiff's case against Dr. Steinway was scheduled for trial on February 19, 2008 before a different judge. To prove that case, in the absence of the burden shifting of Anderson v. Somberg, plaintiff's counsel planned to establish a deviation by Dr. Steinway by relying on the opinion of Dr. Sicherman, who stated in his September 29, 2006 report:
In coming to an opinion, I have relied on my forty-year experience in using Bard-Parker blades, now manufactured by Becton-Dickinson and Co. The only times that I have had "problems" with a blade is when the blade is improperly placed upon the handle, an abnormal torque is applied to the blade, or the entire blade and part of the handle is stabbed into a wound.
After ruling out improper placement of the blade on the handle, the doctor continued:
If the blade is pushed through the skin so that the entire body of the blade is under the skin, it is possible for tissue to dislodge the blade from the handle when the surgeon withdraws the blade. It is improper to plunge the entire blade under the skin, since this can happen.
In view of the previous testimony and the various materials that I reviewed, it is my opinion that the #1 blade, more likely than not, was plunged for its entire length, and in excess of its entire length, during the surgical procedure, which allowed tissue to remove the scalpel blade from the handle and caused the need for the various procedures that followed this occurrence.
Dr. Sicherman was of the opinion that the incident did not give rise to an increased risk of infection. However, Dr. Nehmer, who was unable to conclude that Dr. Steinway had been negligent in his use of the scalpel, opined that the separation of the scalpel blade and its retrieval "caused a substantial increase in the risk of the infection occurring," and plaintiff's counsel sought to use him to establish causation in this regard. Dr. Nehmer's testimony and Dr. Kelly's de bene esse deposition would be utilized to establish that the infection resulted in the damage to the shoulder joint observed during the June 2005 surgery.
On February 20, before trial commenced, the judge heard and ruled on various in limine motions. First, the judge ruled that plaintiff would be barred from using at trial Dr. Kelly's de bene esse deposition, taken the previous day without the presence of defense counsel and in violation of the court's May 25, 2007 order. Significantly, the judge also ruled that Dr. Sicherman's opinion with respect to deviation was net in nature, because he failed to establish the relevant standard of care from which Dr. Steinway deviated. Because no other expert gave an opinion in plaintiff's favor on deviation, the judge dismissed plaintiff's complaint. This appeal followed.
When we consider plaintiff's arguments on appeal, we are mindful that plaintiff's claim requires resolution of three liability issues: (1) did a defendant's negligence or product defect result in injury to plaintiff, consisting of an extended surgery and need for a larger incision, resulting from the separation of the scalpel's blade from its handle and the lodging of the blade in plaintiff's shoulder; (2) did the circumstances of the surgery increase the risk of infection; and (3) was the resulting infection causally related to the damage to plaintiff's shoulder found in 2005. Most of plaintiff's initial arguments relate to the first issue, and we will discuss them in that context.
We commence with plaintiff's argument that the case is governed by the burden-shifting principles of Anderson v. Somberg, supra, 67 N.J. 291. In Anderson, like the present case, the plaintiff claimed injury as the result of the lodging of a foreign object in his body. In Anderson's case, the tip of a pituitary rongeur broke off in his spine during the course of surgery and could not be recovered, causing medical complications. The plaintiff brought suit against the surgeon, alleging his negligence caused the instrument to break; the hospital, alleging it negligently furnished a defective instrument; and both the instrument's distributor and manufacturer, alleging product defect. The Supreme Court reversed a jury verdict in defendants' favor, holding:
[W]here an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to the scope of the surgery (such as cases where foreign objects are left in the body of the patient), those who had custody of the patient, and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment can be called to account for their default. They must prove their nonculpability, or else risk liability for the injuries suffered. [Id. at 298.]
However, the Court held that, for the burden shifting to be applicable, all parties had to be joined "who could reasonably have been connected with [the] negligence or defect." Id. at 303. See also, Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 465 (1999) (holding that "Anderson is an exception limited to a particular set of circumstances: medical malpractice cases in which all the possible defendants are before the court."); Shakil v. Lederle Labs, 116 N.J. 155, 173 (1989).
The difficulty that plaintiff faces here is that he did not join all potential defendants, having failed to identify the manufacturer of the scalpel's blade and its handle, having failed to sue Cardinal Health, and having dismissed his claim against Isaac Bacote. The reinstatement of plaintiff's claim against Bacote, in the interest of justice, pursuant to Rule 4:42-2, would be insufficient to cure the defect in this case, since the product liability defendant or defendants would still be missing from the action. We therefore agree that Anderson's principles cannot be utilized here.
For similar reasons, we agree that principles of res ipsa loquitur are inapplicable in the circumstances presented, and that plaintiff cannot make out a prima facie case against defendants by its use. See Jerista v. Murray, 185 N.J. 175, 193 (2005) ("Although res ipsa does not shift the burden of proof to the defendant, it ordinarily assures the plaintiff a prima facie case that will survive summary judgment."). The doctrine of res ipsa loquitur "permits an inference of defendant's negligence where (a) the 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." Kahn v. Singh, ___ N.J. ___ (2009) (slip op. at 15) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)); see also Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). The doctrine has been expanded to include multiple defendants. Anderson, supra, 67 N.J. at 299.
However, in the present case plaintiff cannot demonstrate that the scalpel was within defendants' exclusive control. The same defect precludes the applicability of res ipsa loquitur as that which precluded the applicability of Anderson v. Somberg:
the absence from the case of the manufacturer of the scalpel's blade and handle.
Because plaintiff assumed that defendants would be required to exonerate themselves from liability pursuant to Anderson, plaintiff did not obtain an expert's opinion that DeHaven was negligent in the assembly of the scalpel. In the absence of such evidence, summary judgment in her favor was properly entered. Likewise, we affirm summary judgment in favor of Becton Dickinson as the result of the lack of evidence of defect in a product manufactured by it.
Plaintiff, claiming a direct cause of action against the Hospital based on its furnishing of a defective instrument, additionally argues that as the result of the Hospital's spoliation of evidence, he was entitled to an adverse inference at trial that the scalpel supplied by the Hospital was defective.
At the outset, we question whether such an inference would have been appropriate in this case. "Spoliation typically refers to the destruction or concealment of evidence by one party to impede the ability of another party to litigate a case." Jerista, supra, 185 N.J. at 201 (citing Rosenblit, supra, 166 N.J. at 400-01). While disposal of the blade and return of the handle to supply without further examination may have been negligent, we question whether any evidence has been presented of an objective to hinder litigation. Scrub nurse Manzano was the person who disposed of the items. There is no evidence that she was aware of the discussion of a possible defect in the instrument, which potentially manifested while Bacote was acting as scrub tech, or that she was present when Dr. Steinway observed that the instrument should not be reused. Moreover, although the separation of the blade from the handle prolonged the surgery and increased the length of one incision, it is unlikely that those circumstances would have given rise to medical malpractice litigation if infection had not occurred, since damages would otherwise have been relatively negligible. And, notably, infection did not manifest until days after the disposal had taken place. In these circumstances, it is unlikely that any party contemplated litigation at the time the destruction of the evidence occurred.
We nonetheless address plaintiff's spoliation claim substantively. The Supreme Court has recognized that a jury may be permitted to draw an adverse inference even in instances of negligent spoliation. Jerista, supra, 185 N.J. at 202. However, if such an inference were drawn against the Hospital as spoliator in this case, and if the jury were permitted to infer that the scalpel blade or handle was defective, proofs would still be insufficient to establish the Hospital's liability to plaintiff. This is so even if we assume plaintiff asserted a direct cause of action against the Hospital for breach of its duty to provide safe instrumentation during surgery, an allegation that does not appear in plaintiff's third amended complaint.
Our review of the record in this matter discloses no evidence suggesting a patent defect in the scalpel blade or handle reasonably discoverable by the Hospital through inspection or of any other negligence on the Hospital's part in the provision of the instruments used by Dr. Steinway in plaintiff's surgery. We are likewise satisfied that a claim of strict liability in this context would not be appropriate. Magrine v. Krasnica, 94 N.J. Super. 228 (Law Div. 1967) (holding that dentist could not be found strictly liable for alleged defect in hypodermic needle that broke off while imbedded In plaintiff's jaw), aff'd o.b. sub nom., Magrine v. Spector, 100 N.J. Super. 223 (1968); aff'd o.b., 53 N.J. 259 (1969); see also Marc L. Carmichael, Annot. Liability of Hospital or Medical Practitioner Under Doctrine of Strict Liability in Tort, or Breach of Warranty, for Harm Caused by Drug, Medical Instrument, or Similar Device Used in Treating Patient, 54 A.L.R.3d 158 (1973). Thus, we conclude that summary judgment was properly entered in the Hospital's favor.
We next address the dismissal of plaintiff's claims against Dr. Steinway, focusing on the trial judge's ruling that Dr. Sicherman gave a net opinion when he determined that Dr. Steinway's likely insertion of the scalpel too deeply caused the blade to separate from the handle. In that regard, we are limited, as was the trial judge, to an examination of the doctor's expert report, since no deposition of the doctor took place.
As we stated earlier, in his expert report, Dr. Sicherman's observed that he had only had "problems" with blade separation when the blade was improperly placed on the handle, "abnormal" torque was applied, or the entire blade and part of the handle was stabbed into the wound. The doctor then ruled out improper assembly as the result of DeHaven's testimony that she would not furnish a scalpel for use in surgery if she did not hear the blade click into the handle. Skipping over the possibility of abnormal torque, the doctor then stated that if a blade were inserted so that its entire body was beneath the skin, it would be possible for tissue to dislodge the blade when it was withdrawn, and that such a technique would be "improper." Dr. Sicherman then concluded that Dr. Steinway "more likely than not" engaged in just such an improper procedure.
In order to establish a prima facie case of negligence in the context of a medical malpractice action, the plaintiff usually must present expert testimony to establish the relevant standard of care, the doctor's breach of that standard, and the causal relationship of that breach to the plaintiff's injuries. Estate of Chin, supra, 160 N.J. at 469. Without such competent expert proof on these three elements, the case is inadequate for consideration by the jury. Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961); Parker v. Goldstein, 78 N.J. Super. 472, 484 (App. Div.), certif. denied, 40 N.J. 225 (1963).
In Taylor v. DeLosso, 319 N.J. Super. 174 (App. Div. 1999), a professional negligence case involving an architect, we observed:
In a professional negligence case, the standard of care must normally be established by expert testimony. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985); F.G. v. MacDonell, 291 N.J. Super. 262, 272 (App. Div. 1996), aff'd in part and rev'd in part, 150 N.J. 550 (1997). This is so because a jury should not be allowed to speculate, without expert testimony, in an area where laypersons have insufficient knowledge or experience. Kelly v. Berlin, 300 N.J.
Super. 256, 268 (App. Div. 1997). Moreover, opinion testimony "must relate to generally accepted . . . standards, not merely to standards personal to the witness." Fernandez v. Baruch, 52 N.J. 127, 131 (1968). In other words, plaintiff must produce expert testimony upon which the jury could find that the consensus of the particular profession involved recognized the existence of the standard defined by the expert. It is insufficient for plaintiff's expert simply to follow slavishly and "accepted practice" formula; there must be some evidential support offered by the expert establishing the existence of the standard. A standard which is personal to the expert is equivalent to a net opinion. [Id. at 179-80.]
See also C.W. v. Cooper Health System, 388 N.J. Super. 42, 64-65 (App. Div. 2006) (finding an expert's personal standard of care to constitute a net opinion); Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001) (finding in a legal malpractice context that "[p]laintiff's expert offered no evidential support establishing the existence of a standard of care, other than standards that were apparently personal to himself.").
In the present case, Dr. Sicherman, like the experts in the cases that we have cited, relied upon a personal standard, and nothing more, in expressing his opinion that it was more likely than not that Dr. Steinway's operative procedure was improper. As such, his opinion constituted a net opinion as that term has been defined. Buckelew, supra, 87 N.J. at 524-25. It was thus proper for the trial judge to have struck that opinion and, in the absence of any other proof of deviation, to have dismissed plaintiff's claim against the doctor.
Because we have affirmed the dismissals granted in this action, we need not address plaintiff's remaining contentions.