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Deitch v. Dearborn

October 18, 2010


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0199-06.

Per curiam.


Argued September 20, 2010

Before Judges Rodríguez and Grall.

Plaintiffs Adrian J. and Linda Lee Deitch appeal orders granting summary judgment to defendants. Plaintiffs alleged medical malpractice by the members of the anesthesiology team that attended Adrian Deitch (Deitch) during lumbar spinal fusion surgery. Linda Deitch's claims are per quod. The defendants are Drs. Peyton Dearborn, Igor Tsyganov and C. Scott Salkeld, Certified Registered Nurse Anesthesiologist Nardelli and Advanced Anesthesia Associates, P.C. Because plaintiffs' expert evidence is insufficient to permit a jury to assign negligence to a member of the team, we affirm the grants of summary judgment in favor of each defendant.

These are the facts viewed in the light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Deitch is a trauma surgeon who was having difficulty bending and standing for long periods of time. After consulting with a neurosurgeon, he elected to undergo lumbar fusion surgery on January 24, 2004. Prior to the surgery, Dr. Dearborn and Nurse Nardelli, conducted a pre-anesthesia evaluation. The five-foot, four-inch Deitch weighed 207 pounds and had a history of hypertension, gout, increased cholesterol, peripheral vascular disease, coronary artery disease, chronic renal insufficiency and previous surgeries to address degenerating discs. Deitch and his wife told Dr. Dearborn and Nardelli that he had problems with fluid management and urine output during his prior operations.

During the nearly eight-hour surgery, Deitch was positioned face down on a table that flexed upward from the center to elevate the torso. His face was cushioned in a foam protector and pressure points were padded. The anesthesiology report reflects that Deitch's face was massaged at forty-five minute intervals, but does not indicate any repositioning or manipulation of other pressure points.

Dr. Dearborn and the other two defendant anesthesiologists took turns supervising Nardelli. Dr. Dearborn covered for Nardelli when she took a break and had lunch, and he was the doctor attending during the majority of the operation; Dr. Tsyganov supervised for about an hour and a quarter, and Dr. Salkeld supervised for about forty-five minutes.

Following the surgery, edema in Deitch's face was evident, and he suffered acute renal failure, low potassium levels, and acidosis that had to be treated by a nephrologist. By January 25, 2004, Deitch had right calf pain with palpitation and was complaining of pain on touch. On January 26, a physical therapist noted redness and mottling of his lower right extremity and bilateral hand swelling with decreased range of motion. His acute renal failure resolved by January 27, but he still had pain in his right leg, which he rated at twelve on a scale of one to ten. On January 28, he complained of decreased strength in his right leg and left arm. By January 30, his ability to bear weight on his right leg was diminished, and on January 31, he had a "drop foot" on the right side. Deitch was discharged on February 3, 2004. On February 16, he had an operation to relieve compartment syndrome, which was diagnosed after his discharge. That surgery was done at a different hospital.

Dr. John B. Townsend, III, was plaintiffs' expert on the cause of the disabilities Deitch sustained after the surgery on his lumbar spine - peroneal/tibial neuropathy, which affected his right leg and foot, and a more diffuse neuropathy that reduced use of his hands and made them sensitive to cold. Dr. Townsend attributed the nerve damage to the compartment syndrome that resulted from Deitch's "substantial edema" post-operation and its delayed diagnosis and treatment coupled with Deitch's post-operative hypotension, low oxygen saturation and anemia.

Dr. Townsend did not connect Deitch's post-operative conditions with anything a member of the anesthesiology team did or failed to do. With respect to Deitch's blood pressure during and after surgery, Townsend observed that there was no "substantial fluctuation" during the surgery but that his pressure fluctuated while he was in the post-operative care unit. Townsend's report includes a discussion of Deitch's hypotension after, but not during, the surgery.

Dr. Todd Broad was the expert through whom plaintiffs attempted to establish negligence by the defendant members of the anesthesiology team that proximately caused Deitch's nerve damage. Although Dr. Broad acknowledged that Deitch's nerve damage could have occurred even if none of the defendants were negligent, in his opinion the anesthesiology team deviated from the applicable standard of care in several ways that combined to cause the nerve injury during surgery.

In Dr. Broad's opinion, Deitch's low blood pressure was one factor. He explained that a patient's low blood pressure is not a result of negligence but that an anesthesiology team's failure to address it is negligent. According to Dr. Broad, Deitch's blood pressure was below the level generally recognized as appropriate for about eighty percent of the eight-hour surgery. Dr. Broad did not specify the points during the operation when action to elevate the pressure was required or what should or could have been done to elevate the pressure at any particular point in time. He simply suggested that fluid replacement was key.

Dr. Broad indicated that the team failed to provide sufficient fluid to Deitch during the operation and identified the deficit. He did not indicate the points during the surgery when replacement fluids should have been provided, but noted that the team had left that to the judgment of those in attendance. In short, he implied that there should have been a plan for fluid replacement ahead of time without identifying ...

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