On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0028-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Miniman and Waugh.
Joseph Carino, individually and as the executor of the Estate of his wife Grace Carino,*fn1 appeals the dismissal of his complaint alleging medical malpractice against defendant Christopher Muenzen, M.D., following a jury verdict of no cause of action. We affirm.
We discern the following factual and procedural history from the record.
On the evening of January 1, 2005, Grace experienced a severe headache. The pain was so intense that she asked Joseph to call 9-1-1, which he did immediately. The emergency medical services (EMS) unit arrived within five to ten minutes. An EMS worker checked Grace's vital signs, which were normal. She had no complaints of dizziness or nausea. Grace did not go to the hospital and apologized for having called 9-1-1, telling the EMS worker that everything was "fine."
The next day, January 2, Grace complained that her headache would not go away. She decided to seek medical treatment. On January 3, 2005, she drove herself to see Muenzen, an internist, whom she had been seeing since November 2004. She had a history of spinal stenosis, a fairly significant form of arthritis.
Grace told a nurse at Muenzen's office about the headache she had on January 1. She initially described it as a sudden and severe headache, all over her head. She had no vomiting, nausea, fever or photophobia. Based on the absence of those symptoms, Muenzen concluded that it was nearly impossible for there to be bleeding in her brain.
When examined by Muenzen, Grace told him that the headache she experienced on January 1 began more mildly, in the front of her head. Muenzen explained at trial that catastrophic headaches start out suddenly, "as if somebody came and whacked you on the back of the head with a baseball bat." According to Muenzen, the fact that Grace's headache started out slowly drew his thinking away from a catastrophic type of headache. The length of time she had the headache was also significant because, with intracranial bleeding, a headache would not go away in fifteen or twenty minutes. Consequently, in Muenzen's mind, Grace's headache was not indicative of a subarachnoid hemorrhage.
Muenzen performed a physical exam, focusing on Grace's neck. She had normal flexion and extension (up and down motion), but decreased range of lateral (rotational) motion.
According to Muenzen, the physical exam excluded any meningeal problem, anything dealing with the brain that might affect the tissues that surround the brain and go down into the spinal cord. Grace's decreased range of lateral or rotational motion suggested a "process" in her neck, such as a disc, a bone, or nerve problem.
Muenzen prescribed Mobic, an anti-inflammatory sometimes used to treat migraine headaches. Nausea is a known side-effect of Mobic. He also ordered lab work to rule out conditions such as Lyme disease and temporal arteritis.
Based on Grace's history and his examination, Muenzen made a primary differential diagnosis of migraine. While he had not entirely ruled out a subarachnoid hemorrhage, Muenzen did not discuss that possibility with Grace because it was not "[his] habit to scare somebody with that possibility unless you feel certain that that's what you're dealing with, or unless the next procedure would be to deal with that."
Although low on his differential diagnosis list, Muenzen nevertheless wanted to rule out a subarachnoid hemorrhage because it is potentially fatal. Consequently, he sent Grace for a CAT scan, which he ordered be done "stat" (immediately). Grace drove to Morristown Memorial Hospital, where the CAT scan was performed that day. The CAT scan was negative.
In ruling out a subarachnoid hemorrhage, Muenzen relied on the negative CAT scan, the results of Grace's physical exam, and her history, specifically the fact that her severe headache was preceded by a frontal headache, which was indicative of "a much more benign origin of headache." He did not discuss with Grace the fact that a negative CAT scan is only between ninety-three and ninety-five percent accurate in excluding subarachnoid hemorrhages, nor did he inform her that a spinal tap, a procedure during which spinal fluid is removed from the spinal canal for the purpose of diagnostic testing, would be definitive.
On January 5, Grace still did not feel well. She went to see Muenzen again, and was accompanied by Joseph. She presented with a cough, back pain, ear pain, nausea, photophobia, and generalized body aches. According to Muenzen, the new symptoms drew him further away from a subarachnoid hemorrhage. He had never seen a cough associated with one. And, although nausea and photophobia can be associated with a subarachnoid hemorrhage, both are common with migraines. He did not associate them with a subarachnoid hemorrhage because Grace's headaches were not getting worse, her neck problem was a decreased range of lateral motion rather than flexion and extension, and she was not vomiting.
Muenzen's differential diagnosis on January 5 remained a migraine. He believed the diagnosis was confirmed because Grace's headache was accompanied by mild nausea and mild photosensitivity and also increased with activity, which he described as classic migraine findings.
According to Joseph, Muenzen never mentioned the possibility of bleeding in the brain, a subarachnoid hemorrhage, or the potential of an emergent, life threatening condition. Muenzen did not suggest that Grace go to the emergency room.
Muenzen recommended that Grace follow up with a neurologist, but did not state that there was an urgent need for it. He gave Grace and Joseph a list of four neurologists. Joseph called them right away, but could not get Grace an appointment until January 13. Neither Joseph nor Grace informed Muenzen that they were having trouble getting an appointment, or that the earliest appointment they could get was on January 13.
Muenzen also ordered MRIs of the head and neck. Grace drove to get the MRIs on January 6. The MRI of the neck was performed that day. It revealed a bulging disc at C4 and C5, as well as significant arthritis in the neck. Muenzen called Grace that day with the results. According to Muenzen, those findings were consistent with her neck pain on lateral or rotational motion.
Muenzen also told Grace that she should go back for the second MRI. On January 7, Grace drove herself to get the MRI of her head. The second MRI was negative, as Muenzen advised Grace by telephone.
Muenzen called Grace on Saturday, January 8, to see how she was doing. She reported that she still had a mild headache. He did not ask her if she had seen or made an appointment with a neurologist.
On the morning of January 13, prior to her appointment with the neurologist, Grace lost consciousness and fell face forward to the ground. She was taken to Morristown Memorial Hospital. Upon arrival, she was unresponsive and in a coma. Both a CAT scan and a CT angiogram were performed.
According to Felix Garcia Perez, M.D., the Director of Trauma and Critical Care Services at Morristown Memorial, the CAT scan showed that Grace had two different types of bleeds in the brain; a subdural hematoma and a subarachnoid hemorrhage. He concluded that both bleeds could have been the result of the fall, but added that subarachnoid hemorrhages could occur without trauma. The CAT scan also revealed "that there was pressure over the right side of the brain pushing [against] the left side of the brain, which [is] call[ed] a shift." A CT angiogram performed to determine if there was an aneurysm was inconclusive.
A neurosurgeon performed brain surgery to release the pressure on the brain by removing the subdural hematoma. Grace was admitted to the Neuro Special Care Unit following the surgery. However, her post-operative examinations were consistent with brain death. She was pronounced dead on January 14.
Flores Alfonso, M.D., the pathologist at Morristown Memorial, performed an autopsy. It revealed a ruptured Berry aneurysm, which is a "dilatation" of one of the vessels in the bottom of the brain. The subarachnoid hemorrhage, which was at the base of the brain, resulted from the ruptured aneurysm. The autopsy also showed a subdural hematoma resulting from Grace's fall.
According to Alfonso, the chain of events leading to Grace's death appeared to have been an acute rupture of the Berry aneurysm, which caused the subarachnoid hemorrhage, leading to a loss of consciousness and the fall, with secondary trauma to the head resulting in a subdural hematoma. The cause of death was determined to be foramen magnum herniation, which is a herniation of the hole at the base of the brain through which the spinal cord passes, caused by the intracranial bleeding and related pressure.
Because Alfonso was not concerned at the time of the autopsy about whether there had been bleeding from the aneurysm prior to Grace's fall, he did not perform tests to identify prior bleeding. However, he did not see any signs of prior bleeding.
In January 2007, Joseph filed a medical malpractice action against Muenzen, alleging that he had deviated from accepted standards of medical care in treating Grace. The complaint also alleged that Muenzen failed to provide Grace "with an opportunity of an informed consent." Muenzen filed an answer in March 2007, denying Joseph's allegations of malpractice.
The jury trial started on May 14, 2009. During jury selection, Joseph's counsel began using a laptop computer to access the internet, intending to obtain information on prospective jurors. Defense ...