On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4963-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and Harris.
In this medical malpractice action, defendants Dr. Kenneth Cartaxo and Pascack Emergency Services, P.A. (PES) appeal from a judgment entered in accordance with a jury verdict returned in favor of plaintiff Christopher Calbi, individually and as administrator of the estate of the decedent, Matthew Calbi, and from the denial of defendants' motion for a new trial and/or remittitur. We affirm.
We discern the following factual and procedural history from the record. Fourteen-year old Matthew Calbi (Matthew) arrived at Pascack Valley Hospital's emergency room at 1:10 p.m. on August 17, 2003, and was immediately seen by a triage nurse. Matthew told the nurse that he had been kicked by his mother in the face earlier that day and was experiencing sharp pain on the right side of his face and his right shoulder. He rated his level of pain as ten on a ten-point scale (ten being most painful) and indicated that the pain began that day. The nurse classified his case as "non-urgent," the lowest of three triage scores.
When a different nurse, Josephine Drew, evaluated Matthew at 2:30 p.m., she found no discoloration in Matthew's neck and only slight swelling. Matthew did not appear to her to be in visible pain or distress. Matthew vomited in nurse Drew's presence at 2:30 p.m., but she did not bring that fact to Dr. Cartaxo's attention.
Dr. Cartaxo, the only emergency room doctor working the 7:00 a.m. to 7:00 p.m. shift, first examined Matthew at 3:30 p.m. According to Dr. Cartaxo's testimony, he was told that "there was some kind of scuffle between [Matthew's mother and him]" and that "when he was on the floor his neck was turned and all of a sudden he felt this pain." Upon examining Matthew, Dr. Cartaxo found "a significant swelling of his neck, which was . . . pretty alarming[,]" but Matthew's vital signs were stable, he appeared comfortable, and his skin was warm and dry. His face, neck, shoulders, and chest were free of redness or bruising and the only sign of trauma was a "small little hemorrhage in the white part of his eye." Dr. Cartaxo was baffled because Matthew's lack of bruising or associated injuries did not give an explanation as to the significant swelling in his neck. He felt Matthew's neck and found that it was not pulsatile - i.e., it did not throb with the beating of Matthew's heart - which meant that the injury was less likely to be an arterial aneurism or bleed. Dr. Cartaxo believed that Matthew appeared "pretty comfortable" at that time and was not in extreme pain.
After the 3:30 p.m. examination, Dr. Cartaxo made a "differential diagnosis"*fn1 that identified four possible causes for the "sudden onset of swelling" to Matthew's neck. The four possible causes listed in Dr. Cartaxo's differential diagnosis were: (1) paratonsillar abscess (a collection of pus near the tonsils caused by infection); (2) posterior pharyngeal abscess (a collection of pus in the wall of the pharynx); (3) vascular injury (an injury to an artery or vein); and (4) thoracic aneurysm (a ballooning of the wall of an artery or vein in the thorax, or upper part of the trunk).
Dr. Cartaxo ordered a soft tissue x-ray to determine whether Matthew's airway was obstructed by the swelling. Matthew vomited again while in the x-ray room. Dr. Cartaxo read the x-ray and found that "there was a lot of soft tissue swelling pushing the trachea . . . out of position." Dr. Cartaxo re-examined Matthew at 4:30 p.m. and felt that at that point Matthew "remained stable" and looked "relatively comfortable."
Dr. Cartaxo decided to discuss Matthew's case with a head and neck surgeon, Dr. Steckowych. He called Dr. Steckowych at 4:32 p.m. and asked her to come in and examine the patient. Dr. Steckowych advised Dr. Cartaxo that Matthew should undergo a CAT scan and to call her with the results.
At 5:00 p.m., Dr. Cartaxo administered two milligrams of morphine sulfate to help ease Matthew's pain. Nurse Drew observed at 5:30 p.m. that Matthew's "color was good," that he was "active" and "not asleep." Matthew received an additional one-milligram dose of morphine sulfate at 6:30 p.m. Nurse Drew did not observe that the swelling of Matthew's neck increased beyond a "minimal" level or changed color throughout her shift, which, like Dr. Cartaxo, ended at 7:00 p.m. A requisition for a CAT scan of Matthew's neck was placed at 5:16 p.m. and a requisition for a CAT scan of Matthew's chest was placed at 5:35 p.m. The CAT scan of Matthew's neck was performed at 5:47 p.m. and the CAT scan of his chest was performed at 5:55 p.m. Dr. Steckowych arrived in the emergency room at about 6:16 p.m.
Matthew was hooked up to a monitor at 6:26 p.m. He had been admitted to the emergency room with a heart rate of eighty-two beats per minute, but by 6:26 p.m., his heart rate had climbed to 118 beats per minute, which meant that he was undergoing tachycardia, or a faster-than-normal heart rate. Tachycardia is often caused by low blood volume, but Dr. Cartaxo believed that this was not an indication of a serious problem, and he maintained that Matthew's vital signs remained stable during the time he waited for the results of the CAT scan.
Dr. Anna Kelly, the radiologist on call working remotely at home, received a call at 6:19 p.m. from the technologist who administered the CAT scans. The technologist had attempted to send the digital films to Dr. Kelly at 6:09 p.m., but the transmission failed. The second transmission, sent from the hospital at 6:21 p.m., was successful. Dr. Kelly read the images and spoke briefly to Dr. Cartaxo to obtain more clinical information about the patient. According to Dr. Kelly, Dr. Cartaxo told her that the patient history was "somewhat unclear." Dr. Kelly found extensive soft tissue mass encasing and compressing the right jugular vein, and suspected that Matthew was suffering from a "jugular injury with venous hemorrhage." Dr. Cartaxo received Dr. Kelly's report at 6:46 p.m. Dr. Kelly then left her house to attend a wake, not knowing that there were additional CAT scan images of Matthew's chest that she had not read.
Because the neck CAT scan results confirmed that Matthew was suffering from a vascular injury, Dr. Cartaxo called the vascular surgeon on call, Dr. Roxana G. Kline, whom he reached at 6:50 p.m. Dr. Kline, a co-defendant at trial, recognized that she did not have the training to do what was required to stem the bleeding: to perform a median sternotomy, a procedure in which the surgeon opens the patient's sternum, makes an excision into the neck, and removes a part of the collarbone. Only a thoracic surgeon could perform such an operation. Dr. Cartaxo called Dr. Ignatius Zairis, the thoracic surgeon on call, at 7:07 p.m. but he did not come to the hospital or return several calls placed by doctors in the emergency room in the next hour.
Dr. Cartaxo's shift ended at 7:00 p.m., and Dr. Steven Schreiber, who settled his liability with plaintiff before trial, began his shift as the emergency room doctor. By 7:15 p.m., Dr. Schreiber had assumed care of Matthew, and Dr. Cartaxo remained in the hospital until about 7:30 p.m. finishing his charts. Dr. Cartaxo's final understanding of Matthew's case when he left the hospital was that "there was a venous injury that . . . would need a vascular surgeon" and that "the vascular surgeon was on her way in and the thoracic surgeon had also been notified."
At 7:15 p.m., Matthew described his pain as ten-out-of-ten. Matthew's blood work specimens were collected at 7:20 p.m. Dr. Cartaxo recalled that he ordered blood work at about the same time as the x-ray and specified that it be completed as quickly as possible. He did not know why Matthew's blood was not taken until several hours later. Matthew's blood count showed a hemoglobin level of 11.7, which, according to one expert, was far below normal and indicated that Matthew had already lost two or more pints of blood. Dr. Kline testified, however, that Matthew's hemoglobin was not far from the low normal of 12.5.
Dr. Kline first examined Matthew at about 7:50 p.m. She testified that at about that time, she considered Matthew's blood pressure normal, but his heart rate "seemed on the high side." Dr. Kline found no evidence of trauma to the head, but a blood spot on the right eye and swelling at the top of the chest and bottom of the neck.
Dr. Kelly called the emergency room at 7:48 p.m. and spoke with Dr. Kline. She told Dr. Kline that she had found another series of images that she had not considered in her initial diagnosis; the second set of images showed that an artery was bleeding in addition to the venous bleeding she observed in her first report. Dr. Kelly faxed a second report to the hospital at 7:57 p.m. containing her amended findings. At that point, Dr. Kline recognized Matthew's situation as life-threatening.
Dr. Zairis, the thoracic surgeon, called the emergency room at 8:10 p.m. and spoke with Dr. Kline. Dr. Kline testified that she provided Dr. Zairis with "the information [she] had gathered from the blood test, the X rays, the CAT scan, [and] Dr. Kelly's conversation about the updated CAT scan" in which she noted there was "active bleeding from [the] right subclavian artery[.]" She told him about Matthew's 11.7 hemoglobin level. Dr. Zairis's memory of that conversation differed somewhat; he testified that his conversation with Dr. Kline gave him the impression that there was no active bleeding and led him to believe that Matthew was in stable condition, with no tachycardia.
The doctors agreed that Matthew would have a better outcome if transferred to Westchester Medical Center (Westchester), a level-one trauma center, where he could be treated by a pediatric thoracic surgeon and pediatric residents. According to Dr. Kline, Dr. Zairis told her that he could not perform the surgery at Pascack Valley Hospital because he did not have the team or equipment to do so there. At 8:30 p.m., Dr. Kline spoke with plaintiff and obtained consent to transfer Matthew to Westchester. The transfer to Westchester was not completed because Matthew's condition began to deteriorate at around 9:45 p.m.
Between 9:46 p.m. to 10:01 p.m., Matthew's heart rate climbed from 135 to 176 beats per minute. He began "screaming out" in pain at roughly 10:00 p.m. and quantified his pain as fifteen out of ten at that time. By 10:02 p.m., his blood pressure had dropped to 43/28. "Total cardiovascular collapse" occurred at 10:20 p.m. The medical experts believed that at some time around 10:00 p.m., Matthew's pleura gave way, allowing blood to flow freely into Matthew's chest cavity.
Dr. Zairis received another call from the hospital at about 10:48 p.m.; he was told that Matthew was in shock and was de-compensating; in other words, his heart was failing to maintain adequate circulation due to loss of blood. Dr. Zairis went to the hospital and examined Matthew at 11:15 p.m. He made his first incision at 11:30 p.m. When Dr. Zairis opened Matthew's chest, he found "massive venous bleeding coming from the internal jugular vein as well as from the subclavian vein." Matthew's pericardium was filled with 200 cubic centimeters of venous blood, while his pleural cavity was filled with two-and-a-half liters of arterial blood. Dr. Zairis's operative report stated that he was able to control the venous bleeding by repairing the internal jugular vein and subclavian vein with sutures. Dr. Zairis also repaired the tear in Matthew's subclavian artery, but only after he had gone into cardiac arrest, and a cardiac massage was performed. Matthew was pronounced dead on the operating room table at 12:50 a.m.
Plaintiff's expert, Dr. Marc Borenstein, the chairman of emergency medicine at Newark Beth Israel Medical Center, was certified as an expert in emergency medicine and testified concerning whether Dr. Cartaxo met the standard of care for an emergency room doctor. Dr. Borenstein concluded that Dr. Cartaxo's failure to diagnose and treat Matthew's injury in a timely manner increased the risk of harm to Matthew and caused his death. Dr. Borenstein examined the x-ray of Matthew's neck before the jury and noted that the windpipe was being pushed out of its normal position to a "dramatic" degree. Dr. Borenstein opined that, given the sudden swelling of the neck following a physical altercation, "the only thing that can [cause that kind of swelling] in this kind of setting is blood." He dismissed the other potential causes for the swelling listed in Dr. Cartaxo's differential diagnosis as unsupported by Matthew's history or physical exam. Dr. Borenstein further stated that it should have been clear that Matthew's situation was "a major emergency" after the x-ray was read, and that Dr. Cartaxo should have immediately sprung into action to treat the internal bleeding as quickly as possible.
Dr. Borenstein further testified that the standard of care required an emergency room physician, after viewing Matthew's xray, to immediately: (1) order a CAT scan to determine with clarity the extent of the bleeding, (2) order a consultation for vascular surgery to stop the internal bleeding that is pushing the airway out of place, (3) consult an ENT doctor regarding the airway, (4) start monitoring the patient's pulse and blood pressure because pulse measurement is "helpful in determining how much bleeding is going on", (5) gain IV access to the patient's bloodstream ...