May 14, 2013
MARGARET HAND, as Executrix of the Estate of Francis Hand and Margaret Hand, Individually, Plaintiff-Appellant/Cross-Respondent,
ST. MICHAEL'S MEDICAL CENTER, Defendant, and CONSTANTINO COSTEAS, M.D., Defendant-Respondent, and MICHAEL PHUNG, M.D., Defendant-Respondent/Cross-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 11, 2012
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2491-08.
Frank J. Nostrame argued the cause for appellant/cross-respondent.
Jeremy P. Cooley argued the cause for respondent Constantino Costeas, M.D. (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Michael A. Pattanite, Jr., on the brief).
Jeffrey T. LaRosa argued the cause for respondent/cross-appellant Michael Phung, M.D. (Schenck, Price, Smith & King, LLP, attorneys; Mr. LaRosa, of counsel and on the brief).
Before Judges Grall, Simonelli and Accurso.
Plaintiff Margaret Hand, as executor of her husband's estate and on her own behalf, appeals judgments in favor of defendants Dr. Constantino Costeas, M.D., and Dr. Michael Phung, M.D., that were entered in an action on an amended complaint charging them with medical malpractice. The claim against Dr. Phung was dismissed on summary judgment, and the claims against Dr. Costeas were tried and dismissed at the close of plaintiff's case pursuant to Rule 4:37-2(b). Finding no reversible error in any of the determinations challenged on appeal, we affirm.
Plaintiff's husband was sixty years old and had several serious conditions when he died on May 27, 2007. These conditions include chronic obstructive pulmonary disease (COPD), coronary disease, renal disease, hypertension, hypercholesterolemia and peripheral arterial disease. Before 2005, decedent had undergone coronary bypass surgery and lower extremity arterial bypass surgery.
Dr. Phung served as Hand's cardiologist starting in June 2005. At that time, Hand was taking Digoxin to slow his heart rate, which his general practitioner had prescribed.
Between January 2006 and May 2007, Hand was hospitalized three times, and on each occasion his irregular heart beat was problematic. In January 2006, Hand was admitted to Christ Hospital with an infection, but his heart was also in atrial fibrillation. Hand's Digoxin level was very low on admittance, and his atrial fibrillation was controlled when he left the hospital after a ten-day stay.
The following January, Hand went to Christ Hospital because he was short of breath. An atrial flutter was detected and attributed to his COPD, which can interfere with heart rhythm. On this hospitalization, Hand's Digoxin level was good and his heart rate was not too rapid, but his heart's rhythm was abnormal. Because of the irregular rhythm, which was present despite the normal heart rate, Dr. Phung determined that Hand needed Coumadin, a blood thinner, to reduce the risk of his throwing a fatal blood clot.
In May 2007, Hand returned to Christ Hospital with breathing problems. Again, his heart was in atrial fibrillation. As in January 2006, Hand's Digoxin level was low, and his heart rate and rhythm returned to normal range after a few days.
In Dr. Phung's opinion, as long as Hand's heart rhythm was abnormal he would need Coumadin to reduce the risk of a blood clot. Thus, Dr. Phung recommended that Hand transfer from Christ Hospital to see Dr. Costeas at St. Michael's Medical Center for an evaluation to determine whether Hand was a candidate for a Radiofrequency Catheter Ablation (RFA).
The RFA is an invasive procedure. Using probes inserted through catheters into the veins and heart, it addresses abnormal electrical circuits with a burst of radiofrequency energy that burns the abnormal area and eliminates the irregularity. It is a high-risk procedure.
Dr. Phung spoke to Dr. Costeas twice before Hand was transferred to St. Michael's. He described Hand's medical condition and the steps that had been taken to address it. According to Dr. Phung, he told Dr. Costeas that Hand was on medication to slow his heart rate and thin his blood, and he shared his concern that Hand, who was apparently not taking his Coumadin regularly, would throw a clot if his heart were not put in a regular sinus rhythm.
The ultimate decision about the benefits and risks of the RFA was for Dr. Costeas. Hand arrived at St. Michael's on May 16, 2007, and Dr. Costeas met with him in his room that day. Hand was alone, and Dr. Costeas did not take notes during their discussion. Dr. Costeas, however, recalled discussing Hand's heart rhythm with him and explaining the various therapeutic options available and their respective pros and cons. He recommended Hand undergo the RFA as the best way to address his heart rhythm, and he explained the risks. At the end of their conversation, Dr. Costeas suggested Hand think about everything overnight.
During his testimony, Dr. Costeas discussed therapeutic measures that are alternatives to RFA. He identified medications that regulate the heart's rhythm, as opposed to its rate, and explained why each was contraindicated for Hand because of its ability to exacerbate either his COPD or his renal or coronary disease. Dr. Costeas' impression was that the medications Hand had been taking either were not working or Hand was not tolerating them.
The day after Hand met with Dr. Costeas, Hand signed a consent form. The form explains the purpose of RFA and identifies the risks, including bleeding at the catheter sites, damage to the heart's normal electric system, stroke, heart attack, lung puncture and death. Dr. Costeas acknowledged that RFA is not an emergent procedure and is a high-risk procedure with a success rate between sixty and ninety percent.
There is no dispute that Dr. Costeas successfully completed the RFA. Hand's problems came after the procedure. He developed a hematoma at the site of a sheath inserted in his neck through which a probe had been inserted, and he was having difficulty swallowing and breathing. After the hematoma developed, Dr. Costeas removed the sheath and applied direct pressure to stop Hand's bleeding but that did not work. Hand was intubated to maintain his oxygen level and had a second surgery to stop the bleeding.
According to plaintiff, Hand never regained consciousness after that surgery. He was maintained on a respirator for ten days, and expired within minutes of its removal. Hand's death certificate lists respiratory insufficiency, bleeding in the neck, and cardiac arrhythmia as the causes of death.
Plaintiff contends Dr. Phung was not entitled to summary judgment. She argues that a jury could conclude he gave Dr. Costeas false information about Hand's medical history that Dr. Costeas relied upon to obtain Hand's consent to the RFA. Specifically, plaintiff argues Dr. Phung led Dr. Costeas to believe that Hand's atrial fibrillation was not responsive to medication or that Hand could not tolerate it, which led Dr. Costeas to recommend this risky and unnecessary procedure.
In reviewing a grant of summary judgment this court uses the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Where a defendant's motion is granted, the question is whether the evidence, viewed in the light most favorable to plaintiff and giving plaintiff the benefit of all favorable inferences, is sufficient to permit a jury to find each element essential to prove plaintiff's claim. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 (1995).
There are only three claims a patient can pursue against a physician: "(1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002). Although plaintiff couches the issue in terms of informed consent, her claim rests in negligence - Dr. Phung's failure to give Dr. Costeas accurate and material information.
In her amended complaint, plaintiff alleged that Dr. Phung deviated from the standard of care, but she had no evidence establishing the standard of care governing a referring doctor's obligation to convey information to a specialist. Plaintiff's expert, Dr. Schneller, did not address that issue in his report.He only discusses Dr. Costeas' failure to obtain sufficient information about Hand's condition and his medications before proceeding with the RFA.
There is no question that expert testimony on the standard of care is essential to establish medical negligence in all but the rare cases where a deviation is sufficiently obvious to fall within the common knowledge of an ordinary person. Klimko v. Rose, 84 N.J. 496, 503-04 (1980). This allegation involves an assessment of what information would be material to the specialist and whether the referring doctor would be expected to know what was material to the specialist. In the absence of expert evidence on those points, Dr. Phung was entitled to summary judgment.
Moreover, there is no factual foundation for plaintiff's claim that Dr. Phung provided misinformation. Plaintiff argues that this can be inferred from Dr. Costeas' testimony that prior attempts to regulate the rhythm of Hand's heart with medication were unsuccessful. Given Hand's serious arrhythmia on three hospitalizations within eighteen months, the inference that Dr. Costeas based his opinion about the ineffectiveness of Hand's medication on misinformation is not reasonable. The fact that the irregularity was brought under control in the hospital does not suggest that the medication was effective or that Dr. Costeas was misinformed. Plaintiff's assumption that Dr. Costeas was misinformed about the temporary stabilization of the fibrillation is based on speculation about a fact that may well have been immaterial to Dr. Costeas' conclusion about the effectiveness of the medications Hand was taking. Neither immaterial factual assertions nor those based on speculation defeat a motion for summary judgment. Brill, supra, 142 N.J. at 529.
To the extent plaintiff argues that Dr. Phung had any duty to obtain Hand's informed consent, the law does not support her. Referring physicians have no duty to obtain informed consent for procedures done by specialists. Herrara v. Atlantic City Surgical Grp., 277 N.J.Super. 260, 266 (Law Div. 1994). In Herrara, the plaintiff brought an informed consent action against two family practitioners and one oncologist (among others) because they recommended a mastectomy without informing her of possible alternatives. Id. at 263-65. The court reasoned that because these defendants "were not physicians who subjected plaintiff to a course of treatment or performed the surgery, they had no duty to inform plaintiff of the material risks of, and options to, her surgery." Id. at 270.
Plaintiff also argues that the court erred in barring her expert, Dr. Schneller, from testifying that Dr. Costeas deviated from the standard of care by removing the catheter sheath before Hand's active clotting time (ACT) fell to 170. The judge barred that testimony on the ground that Dr. Schneller's report did not include that opinion and allowing the testimony would violate the discovery rules.
Pursuant to Rule 4:17-4(a) and (e), if a party utilizes interrogatories to require a copy of an expert report, R. 4:10-2(d)(1), the answering party must provide the expert's entire report, which "shall contain a complete statement of the person's opinions and the basis therefor." R. 4:17-4(e). If the answering party fails to comply, Rule 4:23-5(b) permits the court to exclude the testimony. While exclusion is not mandatory and amendments are to be liberally permitted, the proper response is a question "left to the sound discretion of the trial court." Nicholl v. Reagan, 208 N.J.Super. 644, 652 (App. Div. 1986). "Factors that should 'strongly urge' a trial court not to impose sanctions include '(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence.'" Amaru v. Stratton, 209 N.J.Super. 1, 11 (App. Div. 1985) (quoting Westphal v. Guarino, 163 N.J.Super. 139, 146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978)).
In this case, Dr. Costeas availed himself of the protection Rule 4:10-2(d)(1) affords by demanding a copy of plaintiff's expert report. As the trial court found, the report does not state an opinion that Dr. Costeas deviated from the standard of care by removing the catheter sheath when he did. Rather, Dr. Schneller opines that Dr. Costeas deviated from the standard of care in "performing an invasive procedure without regard for the hemorrhagic effects" of medication Hand was taking, and that the explanation of RFA Dr. Costeas gave Hand deviated from "the standard for informed consent."
With respect to the removal of the sheath and Hand's bleeding, Dr. Schneller's opinion focused on the anticoagulant medication - Plavix - that Hand was taking. He mentions the removal of the sheath in describing the events that led to his conclusion about Plavix:
It is my opinion to a reasonable degree of certainty that bleeding in the right neck and the expanding hematoma that caused respiratory compromise requiring intubation and emergency vascular surgery and that led to the patient's death was caused by the combined effect of anticoagulant and antiplatelet therapy. Dr. Costeas testified that he was unaware of the ACT at the time that he removed the right internal vein sheath when he noted the development of a right neck hematoma shortly after the ablation procedure. He had planned to delay removal of the sheath until the ACT had declined to 170 seconds. The records suggest that the ACT was considerably higher than this value when the sheath was removed consequent to right neck bleeding. Plavix, an antiplatelet theinopyridine, irreversibly damages platelets and impairs clotting. The drug increases the risk of bleeding and, in the event of bleeding, promotes further bleeding. This combined effect of anticoagulant therapy and antiplatelet therapy increased the risk of bleeding in this case and led to the expanding right neck hematoma.
This opinion suggests the RFA should not have been performed when it was, not that the removal of the sheath was a deviation from the standard of care under the circumstances.
Plaintiff argues that the judge abused his discretion because the defense was not prejudiced by this alternate theory of deviation. She correctly notes that both defense experts addressed the removal of the sheath and opined that Dr. Costeas complied with the standard of care in removing it when he did. She also notes, correctly, that Dr. Schneller addressed the removal of the sheath during his depositions.
In his first deposition, Dr. Schneller testified that the medical records did not clearly indicate whether the hematoma developed before or after the sheath was removed. He noted that if the hematoma developed before removal then Dr. Costeas conformed to the standard of care because the hematoma gave him good reason to remove the sheath despite the fact that Hand's ACT had not fallen to 170. Conversely, Dr. Schneller opined if the hematoma developed after the sheath was removed and before Hand's ACT fell to 170, then its removal would deviate from the standard of care.
In Dr. Schneller's second deposition, he was asked whether it was fair to say that he did not find any deviation from the standard of care based on the removal of the sheath because Dr. Costeas had to make a judgment based upon the information before him at the time. Dr. Schneller acknowledged that the attorney correctly stated his opinion.
In light of the fact that Dr. Costeas' experts addressed the issue, the question of prejudice is close in this case. But there is no basis for this court to conclude that the judge's decision was sufficiently wide of the mark to amount to an abuse of discretion. His determination is not inconsistent with this court's decision in Nicholl, where we affirmed the exclusion of expert testimony on the ground that the expert's report failed to adequately address the issue. 208 N.J.Super. at 651.
Moreover, even if we were to find that the court erred, we would conclude that the error was harmless. There was no factual foundation for the deviation alleged - removal prior to a hematoma. Two witnesses confirm that the hematoma developed before the sheath was removed, and there was no testimony or evidence casting doubt upon their statements.
We also reject plaintiff's claim that the trial court erred in granting Dr. Costeas' motion to dismiss her informed consent claim at the close of her case. We agree that the evidence was inadequate to permit a decision in her favor.
On a defendant's motion to dismiss at the close of the plaintiff's case pursuant to Rule 4:37-2(b), the court must give the plaintiff the benefit of all favorable evidence and every favorable inference. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). The court is concerned with the existence of the evidence, not its weight. Id . at 5-6; see Brill, supra, 142 N.J. at 536. This court applies the same standard in reviewing the trial court's determination. Barsotti v. Merced, 346 N.J.Super. 504, 512 (App. Div. 2002). The question must be resolved in defendant's favor if the evidence does not support a finding of each essential element of the claim. Brill, supra, 142 N.J. at 533.
To prevail on an informed consent claim a plaintiff generally must prove that:
(1) the physician failed to comply with the applicable standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of plaintiff's injuries.
[Bennett v. Surgidev Corp., 311 N.J.Super. 567, 572 (App. Div. 1998).]
Stated generally, the standard of disclosure requires an explanation of "'the nature of the treatment, substantial risks, and alternative therapies'" including non-treatment and observation. Caputa v. Antiles, 296 N.J.Super. 123, 133 (App. Div. 1996) (quoting In re Conroy, 98 N.J. 321, 346 (1985)). Typically, expert testimony is required.
Although, under [the reasonable patient standard], no medical expert is required to prove that an undisclosed risk would have been material to the patient's consent, it must first be shown that the risk was one of which the physician should have been aware, and that it was recognized within the medical community.
[Febus v. Barot, 260 N.J.Super. 322, 327 (App. Div. 1992).]
The only evidence pertinent to informed consent was the consent form Hand signed and the deposition testimony given by Drs. Costeas and Phung, which was read at trial.
As previously noted, the consent form identified the risks, including the risks of bleeding and death. And by Dr. Costeas' account, "I discussed with [Hand] this rhythm problem that he was referred to me about and I discussed with him what the different therapeutic options were. And I discussed the different issues which pertained to him regarding the pros and cons of each treatment . . . ." Dr. Costeas added, that his patient "was as informed as you can get."
Plaintiff contends that Dr. Costeas' testimony about the ineffectiveness of Hand's medications gives rise to an inference that Dr. Costeas did not advise Hand that compliance with his medication schedule would address his heart's abnormal rhythm, as it had while Hand was hospitalized.
Plaintiff's arguments rest on dual inferences - that Hand's medications were an alternative to RFA and that Dr. Costeas did not discuss that option. Both lack supporting evidence. Dr. Phung and Dr. Costeas both testified that Digoxin slows the heart rate and Coumadin thins the blood to reduce risk of clotting that accompanies abnormal rhythm. Moreover, Dr. Costeas listed the medications available to alter heart rhythm and explained why they could not be given to Hand without exacerbating his lung, kidney or coronary disease. In short, there was no evidence that the medication Hand took in the past or any other medication he could safely take would do what the RFA was intended to do - restore normal rhythm and eliminate his need for Coumadin. As discussed in Part A, Dr. Phung's ability to eliminate acute fibrillation and flutter during Hand's hospitalizations said nothing about the feasibility of addressing the source of the arrhythmia with medication.
In granting Dr. Costeas' motion for dismissal, the court determined: (1) plaintiff failed to establish, by expert testimony or other acceptable means, risks or alternatives to the RFA procedure known to the medical community; (2) plaintiff failed to present any evidence from which a jury could conclude that the defendant breached his duty to obtain the decedent's informed consent; and (3) plaintiff failed to provide any evidence from which a reasonable jury could conclude that a reasonable patient in Hand's condition would have opted not to have the RFA if properly informed. Based on our review of the record and the arguments plaintiff presents on appeal, we agree with those determinations.