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Baldassano v. Meridian Health System/ Riverview Medical Center


November 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2189-05.

Per curiam.


Argued: November 2, 2009

Before Judges Lisa and Baxter.

In this medical malpractice action, plaintiff Irene Baldassano appeals from a November 12, 2008 order that granted the motion of defendant Peter Litwin, M.D., for involuntary dismissal of plaintiff's complaint, due to the inadequacy of plaintiff's proofs at trial on the issue of causation. We reject plaintiff's argument that she presented sufficient evidence to withstand defendant's motion, and affirm.*fn1


In March 2004, plaintiff consulted her primary care physician because she was "extremely stressed and overwhelmed," and requested medication to "take the edge off" the anxiety that she was experiencing. After several months, plaintiff reported that the medication was causing drowsiness without improving the anxiety she was experiencing. As a result her doctor prescribed a different medication, Klonopin. Plaintiff took the Klonopin as prescribed for four days, but on the fifth day, November 8, 2004, swallowed the fifty pills that remained in the bottle. When plaintiff's husband returned home from work that night, he found his wife semi-conscious. He drove her to Riverview Medical Center, where the medical staff began treatment for the overdose. During a brief period while plaintiff was unattended, she attempted to wrap an IV cord around her neck. Shortly thereafter, in the early morning hours of November 9, 2004, plaintiff was admitted to the psychiatric unit at Riverview, where defendant Peter Litwin, M.D., was assigned as her attending psychiatrist. At the time of her admission to the psychiatric unit, a psychiatrist other than defendant issued an order placing plaintiff on close observation, which required nursing staff to visually observe her every fifteen minutes. Within a few hours of plaintiff's admission to the psychiatric unit, defendant, after examining plaintiff, reduced the frequency of observations of plaintiff to every thirty minutes.

In the early afternoon of the next day, November 10, 2004, plaintiff was discovered, during one of the thirty-minute checks, hanging from a sheet that she had tied to a curtain rod. Although unconscious, plaintiff still had a pulse. She was admitted to the intensive care unit where she was placed on a ventilator. Plaintiff sustained no lasting physical effects from the temporary loss of oxygen to her brain.

Dr. Kenneth Weiss, a psychiatrist, testified on behalf of plaintiff, opining that defendant deviated from accepted standards of psychiatric care by decreasing the frequency of observation of plaintiff from once every fifteen minutes to once every thirty minutes so quickly after plaintiff's admission to the psychiatric unit. In particular, Weiss testified that when defendant relaxed the interval between visual observations to every thirty minutes, he "didn't take into account that the patient had just taken a huge amount of Klonopin, and that when [the Klonopin] wore off she was going to go right back to the state she was in before, which would be within the first day or two." Weiss opined that "by relaxing the checks from every fifteen minutes to every thirty minutes, [defendant] should have known . . . that [plaintiff] would again be at high risk for becoming agitated. And after she stopped getting those relaxing effects from the Klonopin, that she would go back to being distraught."

Weiss described the consequences of defendant's deviation from the standard of care in the following terms:

There is no reason to think that a patient this intent on hurting herself would change simply in the matter of a few hours, and no longer be a threat to herself.

And by disregarding that clinical picture, which I believe any psychiatrist on an in-patient unit would be alert to, [defendant] by relaxing the frequency of the checks put the patient at risk by giving her an opportunity, and the time frame in which to formulate and carry out another attempt, which is indeed, what happened.

The effect of the relaxation [of the frequency of the checks] was simply to permit this patient . . . to again fall victim to her illness. That is, any time you increase the amount of time between checks, is increased opportunity.

On cross-examination, the defense pressed Weiss on the issue of causation:

Q: Now, would it be fair to say that you can't give us any statistics to say that if [plaintiff] was being observed by a member of the staff every 15 minutes, as opposed to every 30 minutes, that that would have prevented this suicide attempt . . ., is that fair to say?

A: Well you don't run statistics on a single person. If the question is, is there a mathematical way to look at it? I don't think it's mathematical. I think it's purely intuitive that if there's someone at risk for doing something which could be prevented or interrupted by observation, the more infrequent, that is the longer distance between the observations, the more risk there would be.

Weiss acknowledged that the staff member who found plaintiff had most likely discovered her shortly after plaintiff made the suicide attempt, because she still had a pulse and respiration and the ill effects of her suicide attempt were transitory.

At the close of plaintiff's case, defendant moved for involuntary dismissal, arguing that: even if [plaintiff] was seen every 15 minutes, there is no indication that she would not have been able to do exactly the same thing that she did. [Dr. Weiss] is speculating that if she had been observed every 15 minutes as opposed to every 30 minutes, that that would have prevented this from happening.

Defendant elaborated, arguing that Weiss "was not able to give an opinion based on reasonable medical probability that this . . . suicide attempt would not have occurred." Defendant maintained that "[a]ll [Weiss] can say is that based upon pure logic, if you're checking on someone every 15 as opposed to every 30 minutes, it's more of a deterrent, or more of a possibility that the patient is going to be seen and helped."

Judge Sullivan concluded that plaintiff had presented sufficient evidence to raise a jury question on the issue of deviation from the standard of care, but concluded that plaintiff failed to establish a causal connection between the decrease in frequency of observation and plaintiff's suicide attempt. He reasoned:

I'm not allowed to apply my own medical judgment to the case. I have to analyze the case within the context that Dr. Weiss has testified to. And Dr. Weiss has said that the only deviation was the difference between half hour periodic checks and 15 minute periodic checks.

So then I have to conclude, is there any evidence whatsoever that can show that doing the checks every half hour, rather than every 15 minutes, contributed to this incident?

They did find [plaintiff] at a point in time where it was obvious what had happened, but there was still time to save her.

That's why you do a periodic check. There is no evidence whatsoever that doing them every 15 minutes would have produced a different result.

On appeal, plaintiff raises a single claim, arguing that "the trial court erred in taking from the jury the issue whether or not decreasing the frequency of observation was a substantial factor in the plaintiff's suicide attempt." Central to plaintiff's argument is her claim that the judge applied an incorrect standard when he framed the issue as whether reducing the frequency of the observations would have prevented the suicide attempt, rather than, as the case law requires, whether defendant's negligence was a substantial factor in bringing about the ultimate result. Stated differently, plaintiff argues that the judge applied a "but for" test, rather than the required "substantial factor" test. Defendant argues that the judge applied the correct legal standard and properly granted defendant's motion for judgment at the close of plaintiff's case.


Where, as here, a defendant moves for judgment at the close of plaintiff's case, the judge must apply the following evidential standard:

[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . . [Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)).]

As the court observed in Verdicchio, the "traditional 'but for' test that applies in most negligence settings 'allow[s] recovery only when the injury is one that would not have occurred 'but for' the wrongful act.'" Id. at 23 (quoting J.D. Lee & Barry A. Lindahl, Modern Tort Law: Liability & Litigation § 4.03 (West Group 2002)). The Court observed that the "but for" test is inapplicable in "concurrent causation cases." Id. at 24. The Court defined the latter as "that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm - as distinguished from cases in which the deviation alone is the cause of harm." Ibid. (quoting Battenfeld v. Gregory, 247 N.J. Super. 538, 549 (App. Div. 1991)).

The Court described the "substantial factor test" in the following terms:

The substantial factor test allows the plaintiff to submit to the jury not whether "but for" defendant's negligence the injury would not have occurred but whether the defendant's deviation from standard medical practice increased a patient's risk of harm or diminished a patient's chance of survival and whether such increased risk was a substantial factor in producing the ultimate harm. Once the plaintiff demonstrates that the defendant's negligence actually increased the risk of an injury that later occurs, that conduct is deemed to be a cause "in fact" of the injury and the jury must then determine the proximate cause question: whether the increased risk was a substantial factor in bringing about the harm that occurred. . . . Under the "substantial factor" test, the defendant's negligence need not be the sole or primary factor producing the injury; it need only be a substantial factor. [Id. at 24-25 (citations and internal quotations omitted).]

In Verdicchio, the Court explained that the issue facing the trial court was whether the negligence of the defendant physician in not diagnosing the plaintiff's cancer, when combined with a pre-existing medical condition, was a "substantial factor" in causing the plaintiff's death from osteosarcoma, a malignant tumor. Id. at 31-33.

Applying the Verdicchio standard to the record before him, Judge Sullivan was required to decide whether defendant's reduction in the frequency of visual observations of plaintiff, in the context of the pre-existing condition, namely plaintiff's predisposition to take her own life, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause. In undertaking that analysis, Judge Sullivan canvassed the record and observed that Dr. Weiss's testimony was limited to an opinion that "by relaxing the frequency of the checks," defendant afforded plaintiff a greater opportunity "to formulate and carry out another attempt." As Dr. Weiss commented, "anytime you increase the amount of time between checks, is increased opportunity."

We agree with Judge Sullivan that Dr. Weiss did not support his "purely intuitive" opinion with any facts that would have supported his conclusion that the decreased frequency of the checks provided a greater opportunity for plaintiff to again attempt to take her life. Missing from the record, and from Dr. Weiss's opinion, is any evidence describing how long it took for plaintiff to remove the bed sheet from the bed, tie it around the curtain rod, and then tie it around her neck. In the absence of such evidence, permitting the jury to consider the question of causation would have permitted the jury to engage in speculation, rather than evidence.

For the same reasons, we held in Parker v. Goldstein, 78 N.J. Super. 472, 484, certif. denied, 40 N.J. 225 (1963), that the absence of any facts -- explaining how the delay in performing a caesarean section caused or contributed to the pulmonary embolism that caused the plaintiff's death --warranted the reversal of the verdict in the plaintiff's favor.

Ibid. In Parker, the record contained the opinion of the plaintiff's expert who opined that "'from the time of [the plaintiff's] admission to the hospital until the time of her death it was the deviation of not taking care of this patient in the proper manner to do the Caesarean section at the time of her admission or soon thereafter that led eventually to the death with pulmonary embolism.'" Id. at 481.

As we observed in Parker, the expert's opinion "boil[ed] down to the premise that defendant was guilty of unwarranted delay in ordering the operation," without providing any explanation of the "anatomical effect of the delay on the pulmonary structure of decedent." Id. at 483. In holding that the proofs on the issue of causation were insufficient and should not have been presented to the jury, we reasoned:

The patient died as a result of a pulmonary embolism - generically, a blood clot in the blood stream. What caused this condition to come into being? Was it the so-called delay? If so, where is the proof in this case of such connection? If it be found at all, it must be in [the expert's] naked assertion that in the entire complex of the facts as given to him, the course of medical conduct pursued by the defendant "led eventually to her death with pulmonary embolism." There was no word of testimony from the witness to explain the physiological reactions of the decedent to the alleged delay, or of the anatomical effect of the delay on the pulmonary structure of decedent. The opinion, thus, was what is commonly described as a "net opinion."

Thus viewed, the complete absence of explanation by [plaintiff's expert] of how, and in what manner, the supposed delay caused or contributed to the pulmonary embolism left an irreparable void in plaintiff's proof. Acceptable medical opinion of causation supported by expert explanation was an integral and indispensable part of plaintiff's case.

Consequently, we are obliged to conclude that plaintiff's case lacked the requisite expert opinion that in the known and uncontrovertible circumstances, defendant violated any medical standard or tenet which was proximately related to [decedent's] death. Accordingly, defendant's motion for a judgment of involuntary dismissal should have been granted. [Id. at 483-84.]

Relying on Parker, we later observed in Crespo v. McCartin, 244 N.J. Super. 413, 422-23 (App. Div. 1990), that when a witness expresses nothing more than his personal opinion, unsupported by facts in the record, such opinion "provides no assistance to the trier of fact" and should be excluded.

Here, the opinion rendered by Weiss suffered from the same defects as the opinions rendered in Parker and Crespo. In particular, neither the testimony of plaintiff's witnesses, or the testimony of Weiss himself, provided any evidence from which a jury could have concluded that reducing the visual observations to thirty-minute intervals was a substantial factor in plaintiff's suicide attempt. Indeed, because Weiss's opinion was, as he himself described it, "intuitive," it was an instance of the "personal opinion," that we forbade in Crespo, supra, 244, N.J. Super. at 423. Moreover, because Weiss's opinion was grounded in no facts, it suffered from the same glaring shortcomings as the opinion we characterized as a net opinion in Parker, supra, 78 N.J. Super. at 483-84. Consequently, we conclude that Judge Sullivan correctly determined that there was "[no] evidence whatsoever that can show that doing the checks every half hour, rather than every 15 minutes, contributed to this incident."


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