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Miller v. O'Dowd

March 10, 2010

CARYL MILLER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
THOMAS O'DOWD, M.D., DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND STEVEN HOROWITZ, M.D., JEFFREY DANIELS, M.D., FRANCES KASARDA, M.D., VINCENZO SCOTTO D'ANTUONO, M.D., ANDREW SCHWARTZ, M.D., BORIS LIBSTER, M.D., M. ARIF HASHMI, M.D., JAMES M. PORCELLI, M.D., DAVID AVELLA, M.D., DOMINIC COMPERATORE, M.D., CYNTHIA REICHMAN, M.D., PARAQ MODI, M.D., JAMES BRAVYAK, M.D., THOMAS GRABIAK, M.D., HOWARD WINGATE, M.D., GEORGE HAGER, III, M.D., FREDERICK FISHER, M.D., IRWIN SPIRN, M.D., JOSEPH SOKOLOWSKI, M.D., THOMAS SERGI, M.D., MARK DANNENBAUM, M.D., LUCINDA SCHWARTZ, M.D., MEAGAN VERMEULEN, M.D., DR. ANSARIO, K. DELVISCO, R.N., KATHY HINES, R.N., VIRTUA WEST JERSEY HOSPITAL VOORHEES, SOUTH JERSEY ORTHOPEDIC ASSOCIATES, ALLIED GASTROINTESTINAL ASSOCIATES, WEST JERSEY ANESTHESIA ASSOCIATES, REGIONAL SURGICAL ASSOCIATES, SOUTH JERSEY RADIOLOGY ASSOCIATES, REGIONAL PULMINARY ASSOCIATES, JENNIFER HILDEBRAND, R.N., NANCY RAUCH, R.N. AND FRANCIS EBINGER, R.N., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5792-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 2, 2009

Before Judges Axelrad, Fisher and Espinosa.

In this appeal of a judgment that followed a jury's verdict of no cause in this medical malpractice action, we consider the sufficiency of the trial judge's charge to the jury. Because the judge did not provide adequate instructions regarding proximate cause, we reverse and remand for a new trial.

Plaintiff Caryl Miller elected to have a total hip replacement surgery. At the time of the surgery, which occurred on August 23, 2000, plaintiff was eighty-five-years old. Her orthopedic surgeon was defendant Thomas O'Dowd, M.D. Following the surgery, plaintiff endured catastrophic complications, which she alleged resulted from Dr. O'Dowd's negligence regarding the use of narcotics for pain management as well as the subsequent failure of the nurses and all others named as defendants to adequately communicate or resolve allegedly conflicting orders. Specifically, plaintiff alleged she developed ileus -- a progressive slowing of the bowels -- and, due to the administration of excessive narcotics, she vomited, tore her esophagus and developed aspiration pneumonia, which led to the development of sepsis, adult respiratory distress syndrome, congestive heart failure and disseminated intravascular coagulopathy. Plaintiff remained hospitalized for ninety-nine days; she was ventilator-dependent for all but nine of those days.

After some defendants were dismissed by way of summary judgment, and others settled, plaintiff's claims against Dr. O'Dowd and two nurses, Jennifer Warner and Nancy Rauch, went to trial. Before the trial's conclusion, plaintiff settled with defendants Warner and Rauch. The jury rendered a verdict on plaintiff's claim against Dr. O'Dowd, the only remaining defendant, after ten days of trial. Specifically, the jury determined that Dr. O'Dowd was negligent but his negligence was not a proximate cause of plaintiff's damages.

Plaintiff appealed, arguing that the trial judge erred in failing to sufficiently define proximate cause and in failing to tailor the jury charge to the facts of the case. Dr. O'Dowd cross-appealed, arguing that the trial judge erred in denying his motion for a directed verdict and, also, that in the event we were to hold the charge to be deficient, a new trial on both liability and causation should be ordered.

In considering these arguments, a more detailed description of the parties' disputes is helpful. Plaintiff's theory was that Dr. O'Dowd deviated from the standard of care by ordering post-operative morphine without first communicating with the anesthesiologist, Dr. David Paul Avella, who had provided "clear instructions that all narcotics were to be held." To support this theory, plaintiff called Dr. Anthony Brown, a clinical professor of anesthesiology and pain management at Columbia-Presbyterian Hospital in New York City, and Dr. David Smith, an orthopedic surgeon and former president of the medical staff and director of orthopedic surgery at the Medical Center at Princeton.

Dr. Brown testified that the morphine ordered by Dr. O'Dowd interacted with the epidural fentanyl ordered by Dr. Avella and contributed to the development of ileus:

Q: And how did the use of the patient-controlled analgesia with morphine as ordered by Dr. O'Dowd cause or contribute to the development of ileus?

A: Well, first of all, this is not a -- a common practice, and the reason that it isn't is because you're giving opioids in two different ways and they combine to cause -- to increase the side effects that appear with opioids.

Q: One of which is the development of ileus?

A: Well, one is ileus, and the other one is just routine ...


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