January 11, 2012
JESSICA SANTANA, AS PROPOSED GUARDIAN OF JOHN STANFORD, AN INCAPACITATED PERSON, AND JOHN STANFORD, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
IMRAN CHAUDRI, M.D., RUSS GUARINO, M.D., MANUEL VERGARA, M.D., DALE GOODE, M.D., MICHAEL OMAH, M.D., ULYSSES WILLIAMS, JR., M.D., SUN LEE, M.D., DEFENDANTS, AND ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL AT HAMILTON, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8148-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 1, 2011
Before Judges Reisner, Simonelli and Hayden.
Plaintiffs Jessica Santana, the proposed guardian for John Stanford, and John Stanford (Stanford), a patient who suffered severe neurological injuries as the result of alleged malpractice, appeal from several trial court orders. For the reasons stated in this opinion, we decide the following: (a) we affirm the trial court's July 24, 2009 order granting a new trial with respect to Dr. Imran Chaudri; (b) we reverse the trial court's September 25, 2009 order, denying plaintiffs' motion for reconsideration of the court's mid-trial decision to grant a motion filed by Robert Wood Johnson University Hospital at Hamilton (the hospital) for involuntary dismissal at the close of plaintiffs' evidence; and (c) we remand the case for a new trial against the hospital.*fn1 For the parties' guidance on remand, we also confirm that the hospital's potential liability is limited to $250,000 under the Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11.
This was the most pertinent trial evidence.
The hospital is a nonprofit corporation organized for
hospital purposes. On November 16, 2001, Stanford, a forty-year-old
man, arrived at the hospital's emergency room (ER) with complaints of
headache and neck pain. He was seen by Dr. Chaudri, a board-certified
Dr. Chaudri was not a hospital employee; he was employed by Emergency Physician Associates, which had a contract with the hospital to staff the emergency room. Dr. Chaudri had never met Stanford before seeing him in the ER on November 16, and there was no way for Stanford to select the doctor who saw him in the ER. The only indication that Dr. Chaudri was not an employee of the hospital was a sign in the registration area stating that patients would receive a bill from Emergency Physician Associates for the physician's services; Dr. Chaudri did not tell Stanford of his independent-contractor status.
Dr. Chaudri ordered a CT scan for Stanford, which the radiologist reported as showing a nine-millimeter hyperdense rounded lesion, possibly a colloid cyst. The radiologist suggested that a follow-up MRI be performed. Dr. Chaudri testified that he told Stanford to obtain an outpatient MRI, but that instruction was not reflected in Stanford's chart. Dr. Chaudri diagnosed Stanford as suffering from a tension headache and sent him home with a prescription for narcotic painkillers.
Stanford was brought in the next day by ambulance, complaining of worsening headache, an inability to move his right arm, and weakness in his right leg. He was seen again by Dr. Chaudri, who requested a consultation with the on-call neurologist, Dr. Vergara. Like Dr. Chaudri, Dr. Vergara was not a hospital employee. He was an employee of Lawrenceville Neurology Center, a private-practice group. Dr. Vergara had never met Stanford before, did not tell Stanford that he was an independent contractor, and admitted that he had no contact with Stanford that would let Stanford know that he was "there for any reason other than the [that] hospital" wanted him to be there. As Dr. Vergara explained it, Dr. Chaudri looked up the attending neurologist on call and paged him. Stanford had no choice in the doctor that came to see him.
Dr. Vergara diagnosed Stanford with conversion disorder - that is, that there was no organic basis for the symptoms he was experiencing. He did recommend an MRI on either an inpatient or outpatient basis, but he did not believe there was any need to have Stanford admitted for an inpatient MRI. Based on Dr. Vergara's consultation, Dr. Chaudri decided to discharge Stanford with instructions to follow-up with a family doctor the following Monday for an MRI. Like Dr. Vergara, Dr. Chaudri did not believe that an immediate MRI was required.
The next day, November 18, Stanford returned to the emergency room by ambulance and was admitted to the hospital by Dr. Omah, the attending emergency-room physician. An MRI was performed on November 19, which revealed a cerebral aneurysm. Stanford was transferred to Robert Wood Johnson University Hospital in New Brunswick for neurosurgery, but by then he had suffered bleeding from the aneurysm and further damage to the blood vessel, which made the surgery more risky and difficult. Due to complications that developed during and after the surgery, he was left a quadriplegic.
At trial, the issues relevant to this appeal were: (a) whether the
various settling-defendant doctors, as well as the non-settling
defendants, Drs. Chaudri and Omah, deviated from
the standard of care by not promptly ordering an MRI,*fn2
(b) to what degree Stanford's permanent injuries were
attributable to the aneurysm, a pre-existing condition, as opposed to
being attributable to the defendant doctors' negligence, and (c) the
hospital's vicarious liability for the doctors' negligence.
Stanford's emergency-medicine expert testified that the standard of care called for Dr. Chaudri to order an MRI on November 16, the first time that Stanford came to the emergency room. She further opined that if the hospital did not have an MRI machine available, Dr. Chaudri should have arranged for an immediate transfer to a facility with an available MRI. She also testified that, if the hospital's policies did not allow Dr. Chaudri to order an MRI himself, he should have immediately obtained a neurological consultation and asked the neurologist to help him order an MRI.
Dr. Chaudri's emergency-medicine expert, however, testified that Dr. Chaudri met the standard of care on November 16, because he appropriately referred Stanford for a follow-up MRI. He also opined that an emergency MRI was not needed, based on the evidence Dr. Chaudri had available to him at the time. That expert also opined that Dr. Chaudri met the standard of care on November 17, because he reasonably relied on Dr. Vergara's opinion that the MRI could be done on an outpatient basis.
Stanford's expert neurologist testified that if Stanford's aneurysm had been discovered on November 16, there would have been a three percent risk of complication from an aneurysm-repair surgery. By the time the aneurysm was discovered and operated on, that risk had risen to forty percent.
Before the case was submitted to the jury, several of the defendant doctors settled with plaintiffs, and only Drs. Omah and Chaudri remained as defendants. The jury found that Dr. Chaudri was liable for Stanford's injuries but returned a no cause verdict in favor of Dr. Omah. The jury found that Drs. Vergara and Williams, who had settled, were negligent, and that Dr. Guarino, whom plaintiff had voluntarily dismissed from the case, was not negligent. The jury apportioned responsibility for Stanford's injuries as follows: 5.68 percent to Stanford's pre-existing condition; 33.88 percent to Dr. Chaudri; 42.56 percent to Dr. Vergara; and 17.88 percent to Dr. Williams. It awarded Stanford $18.33 million in non-economic damages and $6.67 million for his future medical expenses.
However, by order dated July 24, 2009, the trial court set aside the verdict, granting Dr. Chaudri's motion for a new trial. In a written opinion dated August 17, 2009, the trial judge explained that he was granting a new trial for three reasons. First, in his summation, plaintiffs' counsel made a statistical argument -- that the doctors' negligence had increased Stanford's risk of harm by more than 1000 percent --that had the capacity to mislead the jury. The judge also reasoned that the court's later curative instructions were insufficient. Second, he found that plaintiffs' counsel's argument, that Dr. Chaudri refrained from ordering an emergent MRI because it cost too much, was inaccurate and inflammatory. Third, the judge concluded that he should have given the jury a medical judgment charge and the failure to do so was prejudicial error.
The judge also declined to reconsider his mid-trial ruling granting the hospital's motion for dismissal at the close of plaintiffs' evidence, on charitable immunity grounds.
On this appeal, plaintiffs contend that the trial court erred in granting Dr. Chaudri's motion for a new trial. We disagree, but not entirely for the reasons stated by the trial judge.
We agree with the judge that plaintiffs' attorney improperly introduced the issue of the cost of the MRI into the case, when there was no evidence that Dr. Chaudri or any other doctor refrained from ordering an MRI because it was "too expensive." Fairly read, Dr. Chaudri's deposition testimony did not support an inference that he failed to order an MRI because he believed the procedure was too expensive. By making that argument in his opening statement, and exploring it in the questioning of witnesses, plaintiffs' counsel forced Dr. Chaudri's counsel to also ask questions about the cost issue and to respond to the issue in his summation, thereby highlighting it for the jury. Plaintiffs' counsel repeated the cost argument in his summation, despite the lack of evidence that the expense of the MRI was a factor in Dr. Chaudri's decision.
We also agree with the judge that in his closing argument, plaintiffs' counsel improperly distorted the statistical testimony of his neurology expert. To put this discussion in context, statistics play an important role in malpractice cases involving plaintiffs with dangerous pre-existing conditions. Where a plaintiff has a pre-existing condition which by itself may cause the harm the plaintiff suffered, the plaintiff may nonetheless establish proximate cause by showing that the defendant's malpractice increased the risk of harm posed by the pre-existing condition. Scafidi v. Seiler, 119 N.J. 93, 108-09 (1990).
Evidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result. . . . Because this modified standard of proximate causation is limited to that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm -- as distinguished from cases in which the deviation alone is the cause of harm -- the jury is first asked to verify, as a matter of reasonable medical probability, that the deviation . . . increased the risk of harm from the preexistent condition. [Ibid. (citations omitted).]
If the plaintiff proves an increased risk, the jury must then decide "whether the deviation, in the context of the preexistent condition, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause." Id. at 109 (citations omitted).
However, if the plaintiff proves proximate cause under that formulation, the defendant is still entitled to seek a reduction in the plaintiff's damages by proving the statistical likelihood that the injury would have occurred due to the pre-existing condition alone, even if there had been no malpractice. Id. at 113-14; Fosgate v. Corona, 66 N.J. 268, 272-74 (1974). As the Court explained in Scafidi, which involved alleged negligent medical treatment of a pregnant woman with a pre-existing complication of pregnancy:
Based on the evidence adduced, the jury will be instructed to determine the likelihood, on a percentage basis, that the infant's birth and death would have occurred even if defendant's treatment was faultless.
In the event of a jury verdict against defendant on liability and damages, the trial court will mold the verdict to limit defendant's liability to the value of the lost chance for recovery attributable to defendant's negligence. [Scafidi, supra, 119 N.J. at 114 (emphasis added).]
Once the jury finds that the malpractice was a substantial factor, "[t]he relative weight of an increased risk that is found to constitute a substantial factor can be reflected by the jury in the apportionment of damages between the increased risk and the pre-existing condition." Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). Thus, "[t]he doctrine of increased risk reduces the burden of proof imposed on a plaintiff suffering from a preexistent condition, but it also has the likely effect of reducing the percentage of fault and resultant damages attributable to a negligent physician." Gardner v. Pawliw, 150 N.J. 359, 390 (1997).
In this case, plaintiffs' expert neurologist testified that the risk to Stanford of a poor result from aneurysm surgery would have been 3% if the surgery had been performed on November 16, 2001, but the risk increased to 30% by November 19, and to 40% by the time the surgery was actually performed on November 23. Thus, according to the expert, at most the malpractice increased Stanford's risk of a bad surgical result by 37%. However, in his summation, plaintiffs' counsel repeatedly argued that the defendant doctors' alleged mistakes increased Stanford's risk of injury by 1233%, and that there was a 92.5% probability that Stanford's post-surgical complications resulted from the delay in treatment.
Counsel's argument misstated the expert's testimony and was inconsistent with the legally correct approach to quantifying the increased risk of harm attributable to malpractice where a plaintiff has a pre-existing condition. See Scafidi, supra, 119 N.J. at 113-14. The increased risk is to be expressed as a percentage, with the relative percentages attributable to the malpractice and the pre-existing condition adding up to 100%. However, by extrapolating the expert's testimony into a "percentage of a percentage," plaintiffs' counsel distorted and greatly exaggerated the extent to which the alleged malpractice was responsible for the injuries. The misstatements also had the clear capacity to confuse the jury by convincing them that there was a 92.5% chance that defendants' malpractice was a substantial factor in causing Stanford's injury. Moreover, despite defense counsel's vociferous objections, the trial judge did not instruct the jury to disregard those improper arguments.
Based on our reading of the record, this was a fairly close case on the issue of whether Drs. Chaudri and Vergara committed malpractice. There was conflicting evidence as to whether Stanford's symptoms and test results were consistent with a brain aneurysm or whether his symptoms were rare and idiosyncratic for someone with such an aneurysm. There also was conflicting evidence as to the presence of a "sentinel bleed,"
i.e., minor bleeding from an aneurysm that precedes a more significant, damaging bleed. The interjection of unfair, prejudicial evidence and arguments could have swayed the balance with the jury. See Bender v. Adelson, 187 N.J. 411, 435-36 (2006). The trial judge, having heard the witnesses, had the best feel for the case and was uniquely in a position to appreciate whether the trial errors were "so prejudicial" as to result in "'a miscarriage of justice.'" Id. at 435 (quoting R. 4:49-1(a)). We find no abuse of the judge's discretion in determining that a new trial was warranted. Ibid.
While it makes no difference to our decision, for possible guidance on the re-trial we address the medical judgment charge. In his written opinion, the judge did not explain his reasons for concluding that a medical judgment charge was warranted. Based on our reading of the record, we conclude that the judge's original ruling denying a medical judgment charge, as explained in his oral opinion on October 22, 2008, was correct.
As this case was tried, the critical issue was whether the patient was negligently mis-diagnosed and not whether, exercising medical judgment, the defendant doctors chose one form of medically-accepted treatment over another. The plaintiffs' evidence was that Stanford was having a "sentinel bleed" from an aneurysm, and yet the doctors failed to recommend an immediate MRI or lumbar puncture, in the face of symptoms that should have alerted them to the need for either one of those tests. The defense position was that Stanford was not manifesting symptoms consistent with a bleeding brain aneurysm, he did not in fact have a sentinel bleed, and based on the symptoms he was manifesting, the accepted standard of medical care did not require an emergency MRI or lumbar puncture. On that record, with those issues, a medical judgment charge was not warranted. See Velazquez v. Portadin, 163 N.J. 677, 688-89 (2000).
While there was some testimony that a lumbar puncture was painful and presented some risks to the patient, the parties were not arguing over whether defendants should have given Stanford a lumbar puncture instead of an MRI. And there was no evidence that there were two recognized schools of thought on whether to order an emergency MRI in the face of evidence of a symptomatic aneurysm. See id. at 687; Adams v. Cooper Hosp., 295 N.J. Super. 5, 8-11 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997). The issue in this case was whether there was such evidence and whether the doctors were negligent in misconstruing the symptoms they observed and in failing to promptly order either an MRI or a lumbar puncture in order to rule out the possibility of an aneurysm.
We next address the hospital's potential liability. Plaintiffs argue that, based on our then-recent decision in Estate of Cordero v. Christ Hospital, 403 N.J. Super. 306 (App. Div. 2008), the trial court should have reinstated the complaint against the hospital. We agree.
In Cordero, we held that:
[W]hen a hospital provides a doctor for a patient and the totality of the circumstances created by the hospital's action and inaction would lead a patient to reasonably believe the doctor's care is rendered in behalf of the hospital, the hospital has held out that doctor as its agent. We also hold that when a hospital patient accepts a doctor's care under such circumstances, the patient's acceptance in the reasonable belief the doctor is rendering treatment in behalf of the hospital may be presumed unless rebutted. [Id. at 310-11.]
The holding in Cordero followed from Judge Gibson's well-reasoned opinion in Arthur v. St. Peter's Hospital, 169 N.J. Super. 575 (Law Div. 1979), which the Supreme Court cited with approval in Basil v. Wolf, 193 N.J. 38, 67 (2007).
In Cordero, a hospital provided an independent-contractor doctor to plaintiff, a patient, but did not tell the patient that the doctor was not a hospital employee. Cordero, supra, 403 N.J. Super. at 310-311. The plaintiff had her surgery at Christ Hospital attended by an anesthesiologist employed by an anesthesiology group that had a contract with the hospital. Id. at 310. The anesthesiologist had never met the plaintiff before the day of her surgery; did not wear any identification to disclose her affiliation with the medical group; did not tell the plaintiff that the hospital was not responsible for the care she would provide; and was identified on the hospital's website as a member of the anesthesiology department without reference to the medical group she was employed by. Id. at 311.
We concluded that although the anesthesiologist was an independent contractor, plaintiff had presented enough proof to create a rebuttable presumption that the hospital had given her apparent authority to act on its behalf. Id. at 320. If accepted by a jury, and not rebutted by the hospital, that evidence would support the hospital's vicarious liability for the doctor's negligence. Id. at 312, 319-20.
Relying on Arthur, the Restatement (Third) of Agency (2006), and the Restatement (Second) of Torts (1965), we held that a hospital need not affirmatively mislead a patient about a doctor's status. Id. at 314-16.
Active or explicit misrepresentations of agency by the principal are not required. A principal can manifest assent to a person's action on its behalf by employing an independent contractor and sending that contractor to render performance requested by another without disclosing the relationship. Restatement (Second) of Torts, supra, § 429. And, a principal also may manifest such assent by placing a person in a position from which third parties will infer that the principal assents to acts necessary to fulfill the responsibilities of that position. Restatement (Third) of Agency, supra, § 1.03 comments b, e. [Id. at 315-16.]
Hence, "when a hospital provides a doctor for its patient and the totality of the circumstances created by the hospital's action and inaction would lead a patient to reasonably believe that the doctor's care is rendered on behalf of the hospital, the hospital has held out that doctor as its agent." Id. at 317. Further, a plaintiff need not prove reliance by direct evidence to make out a prima facie case against the hospital. Instead, when a hospital provides its patient with the services of a doctor "without taking action to dispel the appearance of authority implied by [the doctor's] position and action," that doctor will be treated as having apparent authority and "the patient's acceptance in the reasonable belief that the doctor is rendering treatment in behalf of the hospital may be presumed unless rebutted." Id. at 317-18.
In deciding whether a plaintiff has established a case of apparent authority, the relevant factors include: whether the hospital supplied the doctor; the nature of the medical care and whether the specialty, like anesthesiology, radiology or emergency care, is typically provided in and an integral part of medical treatment received in a hospital; any notice of the doctor's independence from the hospital or disclaimers of responsibility; the patient's opportunity to reject the care or select a different doctor; the patient's contacts with the doctor prior to the incident at issue; and any special knowledge about the doctor's contractual arrangement with the hospital. [Id. at 318-19.]
Cordero was decided one day after the jury rendered its verdict in this case, and before the trial judge either entered a final order on the verdict or considered the parties' post-trial motions. Moreover, at that point, the judge had already determined to grant Dr. Chaudri's motion for a new trial, and as a result, the case was going to be re-tried. Therefore, in his August 17, 2009 opinion, the judge properly considered Cordero in ruling on plaintiffs' post-trial motion for reconsideration of the court's mid-trial ruling dismissing the hospital from the case.*fn3 See Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983).
While we agree with the judge's decision to consider Cordero, we disagree with his application of Cordero to the facts plaintiffs presented at the trial. In his original ruling the judge found that plaintiffs failed to produce evidence of agency or Stanford's actual reliance on such evidence. He essentially re-affirmed that decision in denying reconsideration.
A motion for involuntary dismissal "only should be granted where no rational juror could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action." Godfrey v. Princeton Seminary, 196 N.J. 178, 197 (2008). Giving plaintiff the benefit of all favorable inferences from the evidence presented, a reasonable jury could find the following facts concerning Dr. Chaudri.
The hospital contracted for Dr. Chaudri to staff the emergency room. Dr. Chaudri's specialty, emergency medicine, "is typically provided in and an integral part of medical treatment received in a hospital." Cordero, supra, 403 N.J. Super. at 318. While there was a sign in the emergency room stating that patients would receive a separate bill for the emergency room physicians' services, the sign did not explain the reason for the separate billing or state that the doctors were not hospital employees. Stanford had no ability to select Dr. Chaudri as his physician. Stanford had no contact with Dr. Chaudri before meeting him in the emergency room, and had no special knowledge of Dr. Chaudri's contractual relationship with the hospital.
With respect to Dr. Vergara, a reasonable jury could have found these facts. The hospital established the neurology department and created the on-call rotation for neurologists. While neurology is not inherently a hospital practice, consultations with on-call attending specialists are unique to the hospital context. Dr. Vergara admitted that Stanford had no reason to believe that the doctor was "there for any reason other than the hospital" wanted him to be there. Stanford had no opportunity to select a different consulting neurologist. Stanford had not met Dr. Vergara before the consult and had no special knowledge of Dr. Vergara's relationship with the hospital.
Plaintiffs' evidence was sufficient to present a prima facie case of apparent authority with respect to Drs. Chaudri and Vergara, thus requiring the hospital to present its case in rebuttal. Cordero, supra, 403 N.J. Super. at 310-11. The hospital will have that opportunity at the trial on remand. Because the hospital was entitled to a decision on its motion at the close of plaintiff's evidence, R. 4:37-2, and therefore did not present its own evidence in rebuttal, we cannot agree with plaintiffs' argument that they are entitled to judgment as a matter of law on the issue of apparent authority.
Because the case must be re-tried against the hospital on all issues, we need not address the hospital's additional arguments, concerning its due process right to present evidence relevant to malpractice as well as agency.
Finally, in the interest of judicial economy and for the guidance of the parties on remand, we briefly address plaintiffs' argument concerning the limits on the hospital's liability under the Charitable Immunity Act. As "remedial" legislation, the Act must be "liberally construed" to effectuate "the public policy for the protection of nonprofit corporations, societies and associations organized for . . . hospital purposes." N.J.S.A. 2A:53A-10.
The Act does not immunize individual doctors from malpractice actions, or cap their liability, even if the doctors are employees or agents of a non-profit hospital. N.J.S.A. 2A:53A-7a. However, by its unambiguous terms, the Act limits damage recovery against a non-profit hospital to $250,000, regardless of whether the hospital's liability is based on its own negligence or on the negligence of its agents or employees:
[A]ny nonprofit corporation, society or association organized exclusively for hospital purposes shall be liable to respond in damages to such beneficiary who shall suffer damage from the negligence of such corporation, society or association or of its agents or servants to an amount not exceeding $250,000 . . . . [N.J.S.A. 2A:53A-8 (emphasis added).]
See Maciag v. Strato Med. Corp., 274 N.J. Super. 447, 457 n. 4 (App. Div. 1994), overruled on other grounds, Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 465 (1999); Martin v. Perth Amboy Gen. Hosp., 104 N.J. Super. 335, 338 (App. Div. 1969). Plaintiffs' contention -- that because the doctors' liability is not limited by the Act, the hospital's vicarious liability is likewise not limited --- is inconsistent with the plain language of the Act. Plaintiffs' arguments on this point are completely without merit and require no further discussion.
R. 2:11-3(e)(1)(E). If plaintiffs prevail at trial on remand, the hospital's liability will be limited to $250,000.
Affirmed in part, reversed in part, and remanded.