On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-0208-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Alvarez, Waugh, and St. John.
Plaintiff Doris Fields appeals the June 22, 2010 jury verdict in favor of defendant Daniel Dragone, M.D. We affirm.
We discern the following facts and procedural history from the record on appeal.
Fields, who was sixty-three years old at the time, underwent a total knee replacement on her left knee on July 12, 2006. The surgery was performed at Hackensack University Medical Center (Medical Center). Dragone was the anesthesiologist for the surgery. Fields contends that Dragone inserted the anesthesia needles into her spinal canal at the T12-L1 or L1-L2 level, whereas the applicable standard of care called for insertion at or below the L3-L4 level. She further contends that Dragone's failure to follow the standard of care caused her permanent injury.
Fields filed a medical malpractice action against Dragone and the Medical Center in January 2008. The complaint was amended in June. The claims against the Medical Center were dismissed, and the action proceeded against Dragone only. Following a jury trial and two days of deliberation in June 2010, the jury returned a defense verdict. This appeal followed.*fn1
On appeal, Fields argues that the trial judge erred in restricting the testimony of one of her expert witnesses, while declining to restrict the testimony of Dragone's expert. She also argues that the judge erred in refusing to give a missing-witness charge after Dragone's counsel decided not to present testimony from several defense experts who were identified as witnesses. Finally, she argues that Dragone's counsel acted unfairly by failing to notify Fields' counsel in advance that he would not be calling all of Dragone's experts.
We start our discussion with the issues related to the trial judge's evidential rulings.
The admissibility of expert testimony lies in the sound discretion of the trial court. Carey v. Lovett, 132 N.J. 44, 64 (1993); Muise v. GPU, Inc., 371 N.J. Super. 13, 58 (App. Div. 2004). Our scope of review of a trial judge's evidential rulings requires that we grant substantial deference to the judge's exercise of that discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Rulings on evidence will not provide a basis for reversal unless they reflect an abuse of that discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Reversal is not warranted unless the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
At trial, Fields presented Alexander Weingarten, M.D., a board-certified anesthesiologist, as one of her expert witnesses. He testified concerning the proper spinal-cord location for the administration of epidural anesthesia. He was then asked by Fields' attorney about the standard of care for sedation prior to the epidural. Dragone's counsel objected and the objection was sustained.
Fields sought to present testimony that Dragone was negligent in administering five milligrams of midazolam*fn2 prior to the epidural, which he opined could have caused Fields to be unresponsive to pain from the insertion of the epidural needle in her lower back. The issue was whether that opinion was reflected in Weingarten's report or deposition.
Regarding Fields' preoperative sedation, Weingarten's report states: "The patient was given IV sedation consisting of 5 mg of midazolam upon arrival to the operating room." The following appears under the comment section of the report:
The patient was also given [midazolam] 5 mg at the start of anesthesia which is a short-acting sedative and anxiolytic. It also is an effective drug in blunting recall by the patient of intraoperative events.
In performing a spinal/epidural anesthetic, the patient should not be heavily sedated because successful spinal and epidural anesthesia requires patient participation to: 1. Maintain good position[;] 2. Evaluate block height[; and] 3. Indicate to the anesthesiologist about paresthesias, if the needle contacts neural elements.
Weingarten's conclusion states:
As a result of the anatomical variations as to where the spinal cord terminates, it is generally safe to perform the procedure at the L3 level and below. The resulting paresis of the left lower extremity and pain which was noted by the patient in the early postoperative period was a direct result of spinal cord trauma as evidenced above. The patient had no prior neurological complaints preoperatively.
I therefore find that [Dragone] deviated from accepted medical standards in his anesthetic management of Doris Fields for the reasons noted above. This deviation was the proximate cause of the patient's present disabilities.
Weingarten did not opine that the administration of midazolam or the quantity administered was a deviation from the standard of care.
The following testimony was given during Weingarten's deposition:
DRAGONE'S COUNSEL: Have you ever had a patient experience any of these kind of complaints post needle placement in your career?
WEINGARTEN: Well, it's very common that patients get paresthesia where you go in at L3-4 and they complain of a shooting pain down the leg. That's why we do these patients awake, so you withdraw the needle, because nerves can't be seen going in, and you redirect the needle until you don't have these complaints.
You never go into an area or continue to go in when the patient is complaining of electric shock down the leg. Besides spearing the nerve, which the needle is doing, if you inject medicine through the needle, while it's spearing the nerve, you get an intraneural into the nerve injection, and that can cause permanent injury to the nerve.
When the patients complain of paresthesias, shooting pain, protocol and safety and the standard of care is to withdraw the needle, document that the paresthesia went away, the patient has full neurological function, you have them lift their leg while doing the procedure, you document that, you reinsert it and make sure it doesn't happen again. Then give them the medicine.
DRAGONE'S COUNSEL: Was this patient awake? WEINGARTEN: The patient was sedated.
DRAGONE'S COUNSEL: You used the term awake when you described how this procedure is done so that the patient can tell you whether or not . . . he or she has experienced any temporary weakness or nerve damage resulting from ...