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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 the essential components of a plan that would meet the standard of care for a patient in Deitch's condition.

Dr. Broad also noted that Deitch's urine output was less than normal during the surgery. He did not explain the relationship between the abnormal urine output and Deitch's hypotension or nerve damage. Although Dr. Broad admitted that the team attempted to increase urine output by twice administering Lassix, he did not indicate that this response was inappropriate or identify additional measures that would have resolved the problem and should have been undertaken.

The final contributing deviation Dr. Broad identified was related to the positioning of Deitch during his surgery, a matter in which the expert conceded the surgeon also has a role. According to Dr. Broad, the standard of care requires adjustment of the patient's pressure points during this lengthy surgery to avoid blockage of blood flow at those points. Dr. Broad did not elaborate by describing the intervals at which specific pressure points should or can be repositioned during surgery of the sort Deitch had.

In Dr. Broad's opinion, "ischemia" resulting from low blood pressure and positioning, "and/or direct trauma from positioning pressure are the multifactorial causes" of Deitch's nerve damage and are attributable to the sub-standard care provided by the members of the team. Dr. Broad did not explain the connection between the deviations he alleged to the edema that followed surgery, which, according to Dr. Townsend, ultimately caused the nerve damage.

A reviewing court affirms a grant of summary judgment when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Brill, supra, 142 N.J. at 540. Applying those standards, we affirm.

Negligence is never presumed, and the plaintiff bears the burden of persuasion. Buckelew v. Grossbard, 87 N.J. 512, 526 (1981). To establish medical malpractice, a plaintiff must prove that the practitioner defendant deviated from the accepted standard of care. Wagner v. Deborah Heart & Lung Ctr., 247 N.J. Super. 72, 77 (App Div. 1991). In addition, a plaintiff must prove causation-in-fact, that is, a "reasonable connection between the act or omission of the defendant and the damages which the plaintiff has suffered." Shackil v. Lederle Labs., 116 N.J. 155, 162 (1989) (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts § 41 at 263 (5th ed. 1984)). This link between particular defendant, particular act or omission, and a plaintiff's injury is "ordinarily an indispensable ingredient of a prima facie case." Ibid.

The trial judge issued memorandum decisions to explain his grants of summary judgment and his reasons for denying plaintiffs' motion for reconsideration. We affirm substantially for the reasons set forth in those decisions, with the minor qualifications stated in the remainder of this opinion. In our view, it is plaintiffs' inability to identify the deviations of an individual defendant that entitles each of them to summary judgment.

Plaintiffs, quite properly, do not contend that this case falls within the narrow exception that permits some patients to shift the burden of persuasion to defendants and require them to exculpate themselves. Estate of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 465 (1999); Anderson v. Somberg, 67 N.J. 291, 298-300, cert. denied, 423 U.S. 929, 96 S.Ct. 279, 46 L.Ed. 2d 258 (1975). That exception applies only when (1) plaintiff is "clearly helpless or anesthetized" when the injury occurs; (2) the injury "bespeaks negligence on the part of one or more defendants"; and (3) all the potential defendants are before the court. Estate of Chin, supra, 160 N.J. at 465. Dr. Broad's concession that Deitch could have sustained this injury in the absence of any negligence defeats any claim that the injury bespeaks negligence. The claim is further undermined by Dr. Townsend's opinion, with its focus on the impact of postoperative care.

Recognizing their inability to rely on Estate of Chin and Anderson, plaintiffs suggest allocation of responsibility based on time spent supervising anathesia. They argue, without citation to legal authority, that because Dr. Dearborn and Nardelli were responsible for anesthesia during the majority of the surgery they should be held accountable. In our view, plaintiffs' theory most closely resembles a combination of the "captain of the ship" doctrine and principles of collective liability, both of which our Supreme Court has declined to endorse. Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 346 (1994); Shackil, supra, 116 N.J. at 158. For that reason, we reject the argument.

Left without a viable exception to the general rule, in order to withstand these motions for summary judgment plaintiffs needed enough evidence to permit a jury to find negligence on the part of the individual defendants that was at least a substantial factor in bringing about Deitch's injury. See Lanzet v. Greenberg, 126 N.J. 168, 185 (1991). They did not have that evidence. Dr. Broad did not address the standard of care applicable to Nardelli, and did not offer an opinion as to what she ought to have done differently. Similarly, there is no evidence as to what the doctors should have done at any point in time to address Deitch's low blood pressure, fluid replacement, insufficient urine output or positioning. The passages of Dr. Broad's report and deposition that are most pertinent are strikingly vague and subjective. His assertions are fairly characterized as presuming negligence from the intra-operative blood pressure and fluid readings and the negative outcome. The portions of his report and deposition testimony quoted in the trial judge's decision on the motion for summary judgment are illustrative.

We agree with the trial judge that a showing of negligence as to each doctor in attendance required an articulation of what should or should not have been done during that doctor's watch. Without expert testimony on those points, there is no basis for a jury to find negligence by a particular defendant. In the absence of evidence to support a finding of a deviation by a doctor, liability cannot be assigned to that doctor on the basis of the substantiality of his contribution to the complex of circumstances that led to Deitch's injury.

It is important to note that we do not hold that plaintiffs were required to pinpoint the exact moment of injury. To the extent that the trial judge's decisions can be understood to indicate that they were, we disagree. Dr. Broad's opinion was that the cumulative effect of the anesthesia care during the eight-hour surgery caused the damage. This decision rests on plaintiffs' failure to establish a deviation by any one of the defendants.

Because we have given full consideration to Dr. Broad's report and deposition testimony in affirming the several grants of summary judgment, it is not necessary to consider whether Dr. Broad's opinion is a net opinion.



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