Opinion
DOCKET NO. A-3657-13T4
12-29-2015
DANIEL R. RATCHFORD, for himself and as Administrator, ad prosequendum of the ESTATE OF MADINAH RATCHFORD, deceased, Plaintiff-Appellant, v. HACKENSACK UNIVERSITY MEDICAL CENTER, Defendant, and TIMOTHY LANCASTER, M.D., and ARTHUR ALBERT, M.D., Defendants-Respondents.
Wendy R. Fleishman (Lieff Cabraser Heimann & Bernstein, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant (Daniel R. Leathers (Lieff Cabraser Heimann & Bernstein, LLP) and Ms. Fleishman, attorneys; Mr. Leathers and Jeremy J. Troxel (Lieff Cabraser Heimann & Bernstein, LLP), on the briefs). Craig S. Combs argued the cause for respondent Timothy Lancaster, M.D. (Giblin & Combs, LLC, attorneys; Michael J. Smith, on the brief). Michael J. McBride argued the cause for respondent Arthur Albert, M.D. (Mattia & McBride, P.C., attorneys; Philip F. Mattia, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1930-10. Wendy R. Fleishman (Lieff Cabraser Heimann & Bernstein, LLP) of the New York bar, admitted pro hac vice, argued the cause for appellant (Daniel R. Leathers (Lieff Cabraser Heimann & Bernstein, LLP) and Ms. Fleishman, attorneys; Mr. Leathers and Jeremy J. Troxel (Lieff Cabraser Heimann & Bernstein, LLP), on the briefs). Craig S. Combs argued the cause for respondent Timothy Lancaster, M.D. (Giblin & Combs, LLC, attorneys; Michael J. Smith, on the brief). Michael J. McBride argued the cause for respondent Arthur Albert, M.D. (Mattia & McBride, P.C., attorneys; Philip F. Mattia, on the brief). PER CURIAM
Plaintiff Daniel R. Ratchford, individually and as executor of the estate of Madinah Ratchford, his wife (decedent), appeals from a final jury verdict for defendants Timothy Lancaster, M.D. and Arthur Albert, M.D., rendered in this medical negligence matter. Among plaintiff's arguments on appeal are the following challenges of error: (1) that the trial judge erroneously denied plaintiff's request to exclude the medical judgment charge and, even if inclusion of the charge was not error, the charge was phrased erroneously; and (2) the court failed to follow required procedure during voir dire by, for example, failing to ask at least three open-ended questions of each potential juror and failing to ask each juror the requisite qualifying questions. We disagree with plaintiff's arguments, and, accordingly, affirm.
All of the other listed defendants named in the complaint, as amended, were dismissed from the litigation at or before the time of trial.
I.
The following facts are taken from the trial record. This medical malpractice case stems from the allegation that defendants deviated from accepted standards of care when examining and treating decedent, a twenty-nine-year-old who died at Hackensack University Medical Center (HUMC) on February 4, 2009.
After two days of vomiting and stomach pain, on the evening of February 2, 2009, an ambulance brought decedent to HUMC. Decedent insisted on going to HUMC because she said her doctor worked there. Decedent had an extensive medical history concerning a blood clotting disorder, including a stroke and the loss of both of her legs below the knees.
Upon arrival at the emergency room, Lancaster was assigned as decedent's attending doctor. HUMC's initial intake records describe decedent's complaints of nausea and epigastric and upper abdominal pain at a level of seven out of ten. She indicated that the pain was similar to the last time she had pancreatitis. She had a high fever and a very high heart rate.
A resident physician interviewed and examined her. He indicated three differential diagnoses: pancreatitis, pyelonephritis and systemic inflammatory response syndrome (SIRS). Lancaster included pancreatitis, SIRS and ischemic bowel in his differential diagnoses. He ordered blood tests and a CT-Scan with intravenous (IV) contrast of her abdomen. Albert, the radiologist on duty, interpreted decedent's CT scan and did not report observing any blood clots in her superior mesenteric artery. Based on these tests, Lancaster ruled out his initial diagnoses.
Decedent received IV Zofran for nausea. She was administered two milligrams of IV morphine at 9:20 p.m. and another two milligram dose at 10:40 p.m. Her pain abated by 12:45 a.m. Lancaster diagnosed her condition as gastroenteritis, and discharged her in the morning hours of February 3 (the discharge) with the instruction that she should "follow-up with [her] doctor . . . if [she] [has] any worsening symptoms."
In the morning hours of February 4, decedent told her husband that she was in pain and vomiting. An ambulance transferred her to HUMC, but she was ultimately pronounced dead at HUMC. The autopsy revealed that she died from a blood clot in her superior mesenteric artery.
During trial, plaintiff's board certified emergency medicine expert, Diane Sixsmith, M.D., testified that, based on decedent's history and symptoms, Lancaster had enough information to know that decedent needed to be in the hospital "as we would with any high risk patient like this. . . . [N]egative tests don't mean they are well . . . ."
However, Lancaster's emergency medicine expert, Gerard Brogan, M.D., testified that Lancaster's decision to discharge decedent "was clearly within acceptable standards of care, and there was absolutely no deviation from acceptable standards of care."
Plaintiff presented a radiologist expert, who testified that Albert's interpretation of decedent's CT scan deviated from the standard of care. Albert's radiologist expert testified that his interpretation of the CT scan was within the standard of care for a board certified radiologist.
Plaintiff argues the trial judge erred by denying his request to exclude the medical judgment charge when instructing the jury regarding Lancaster's decision to discharge the decedent. Plaintiff contends the evidence adduced at trial demonstrates the discharge decision was a deviation from the standard of care, and not a medical judgment. Lancaster counters that the discharge decision was not a deviation but the exercise of a valid medical judgment. The court ruled, in effect, that Lancaster made a judgment call in discharging the decedent based on his diagnosis.
II.
We acknowledge that proper jury charges are essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). The failure to provide clear and correct jury charges may constitute plain error. Das v. Thani, 171 N.J. 518, 527 (2002). Generally, "an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).
Not all medical decisions implicate the medical judgment rule. Adams v. Cooper Hosp., 295 N.J. Super. 5, 8 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997). A physician will be responsible for the consequences of decisions that depart from the requirements of acceptable medical practice. Schueler v. Strelinger, 43 N.J. 330, 346 (1964). If, however, a defendant-doctor's actions constitute an exercise of acceptable medical judgment, he or she will be excused from liability for a poor result. Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 632 (1999).
During the jury charge conference, Lancaster argued that the medical judgment charge was appropriate, which plaintiff opposed. The trial court provided the charge only with regard to Lancaster.
On March 4, 2014, plaintiff renewed his objection to the inclusion of the charge. On March 5, 2014, the charge was read as follows:
THE COURT: A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative treatment choices may be in accordance with accepted medical standards.The judge limited the charge to the admitting or discharging decision and followed the model jury charge then in effect. See Model Jury Charge (Civil), § 5.50(G), "Medical Judgment" (2009).
MR. COMBS: No, Judge, must be.
THE COURT: However, alternative treatment choices must be in accordance with accepted standard medical practice. Thank you. Therefore, your focus should be on whether standard medical practice allowed judgment to be exercised as to diagnosis and treatment alternatives and, if so, whether what the doctor actually did to diagnose or treat this patient was accepted as standard medical practice.
In this case, if you determine that the standard of care for treatment or diagnosis with respect to Dr. Lancaster admitting or discharging Ms. Madinah Ratchford on the early morning hours of February 3rd, 2009 did not allow for the choices or judgments the defendant doctor made here, then the doctor would be negligent.
The medical judgment charge was updated in June 2014. --------
In deciding whether to provide the jury with a medical judgment charge as part of its instruction on the standard of care, the facts must present a "'misdiagnosis or the selection of one of two or more generally accepted courses of treatment.'" Das, supra, 171 N.J. at 527 (quoting Velazquez v. Portadin, 163 N.J. 677, 687 (2000)). When a physician's decision involves a clear choice between medical alternatives, "the course of treatment followed must be an 'equally acceptable approach' in order not to be considered a deviation from the appropriate standard of care." Id. at 527-28 (quoting Velazquez, supra, 163 N.J. at 690). See also Shectman v. Bransfield, 403 N.J. Super. 487, 497-500 (App. Div. 2008) (holding that the trial court erred by failing to give the charge, where experts testified there were two different "schools of medical treatment" with respect to how a psychiatrist monitors a patient, and that the choice was a matter of judgment); Saks v. Ng, 383 N.J. Super. 76, 95-97 (App. Div. 2006) (holding that the defendants were entitled to the charge where the issue related to choice of anesthesia), certif. denied, 186 N.J. 605 (2006). "Otherwise, '[i]f the exercise of judgment rule is inappropriately or erroneously applied in a case that involves only the exercise of reasonable care, the aspect of the rule that excuses a physician for mistakes would enable the physician to avoid responsibility for ordinary negligence.'" Das, supra, 171 N.J. at 528 (alteration in original) (quoting Aiello, supra, 159 N.J. at 632).
Here, the trial court granted Lancaster's request to give the charge after considering arguments offered during the charge conference and after the expert testimony was presented. Medicine remains an inexact science. Crego v. Carp, 2 95 N.J. Super. 565, 574 (1996), certif. denied, 149 N.J. 34 (1997). Lancaster's decision to discharge decedent, after all the ordered tests based on his diagnosis proved normal and her condition had stabilized, was an exercise of his medical judgment. As such, the charge was not in error. Hofstrom v. Share, 295 N.J. Super. 186, 195 (App. Div. 1996) (upholding trial court's instruction of "exercise of judgment" charge in misdiagnosis case), certif. denied, 148 N.J. 462 (1997).
Plaintiff argues next that, assuming the court correctly provided the jury with a medical judgment charge, the court erroneously failed to tailor the charge to the facts of the case. Although the trial court failed to address the conflicting opinions expressed by the experts, we find that the failure does not warrant reversal.
A trial court should tailor the medical judgment charge "to the theories and facts presented in the case," Das, supra, 171 N.J. at 528; the court should advise the jury as to which issues implicate medical judgment and which do not. Ibid. Failure to "specify what action may qualify as an appropriate exercise of judgment may result in an overly broad charge that has 'the potential to improperly insulate defendants from liability.'" Ibid. (quoting Velazquez, supra, 163 N.J. at 690-91).
We conclude that the medical judgment charge provided to the jury substantially conformed to the Model Jury Charge. Consistent with Velazquez and Das, the court instructed the jury to determine whether defendant established that two medically accepted alternative approaches existed regarding his decision to discharge the decedent. If so, defendant was entitled to have his discharge decision evaluated in terms of his medical judgment.
The trial court properly instructed the jury that if defendant failed to prove that two alternative treatments, "each consistent with an accepted standard medical practice," were available in his discharge of decedent, the jury was not to consider Lancaster's discharge decision as one of medical judgment. Likewise, the court instructed the jury that if it found Lancaster deviated from the required standard of care, it could not excuse defendant's negligence on the basis of medical judgment.
We are satisfied the trial court did not need to tailor the charge further than it did. The court's medical judgment instruction concerning the discharge provided the jury with adequate guidance in answering this single, straightforward question. Contrary to Velazquez, the court's instruction was not so broad to where it had "the potential to improperly insulate [Lancaster] from liability." Velazquez, supra, 163 N.J. at 690-91.
Finally, plaintiff challenges the sufficiency of the voir dire process adopted by the court during jury selection, including not asking a sufficient number of open-ended questions. Prior to jury selection, the court conducted an extensive conference to determine the areas of inquiry during voir dire. R. 1:8-3(f). The judge noted that she "included questions that were requested" by counsel, and that she modified the requested questions so that their language conformed to the standard format. The judge stated to counsel, "[m]y hope is that I've asked very open questions that yield all the information that one would hope to get." The court then proceeded to review the proposed questions and incorporated some changes proposed by plaintiff. The court then requested open-ended questions from all counsel.
Lancaster's counsel proposed one open-ended question, which was not incorporated by the court. Plaintiff's counsel proposed a series of open-ended questions. Although characterized as open-ended, most of the questions could be answered with a yes or no. The court did not include plaintiff's proposed questions, but did offer to ask potential jurors whether they had "any experiences so good or so bad in the medical field and/or with any physician, they should tell us about it."
Plaintiff's counsel then asked to be heard, stating, "I'm particularly concerned about the advertising landslide that has occurred in connection with tort reform and specifically in connection with — —." To which the court responded, "that's why I asked tort reform questions in the general questions . . . ."
Plaintiff's counsel then inquired whether he would be permitted to ask additional voir dire questions of prospective jurors and the court responded affirmatively. At the conclusion of the voir dire conference, although plaintiff did propose several open-ended questions which were not accepted, plaintiff did not lodge any objection to the questions or the selection process.
Importantly, the record reflects that plaintiff's counsel actively participated in the jury selection process and asked questions directly of prospective jurors. Many of the questions asked by plaintiff's counsel were open-ended.
There is no question that all trial courts are bound to follow administrative directives governing the jury voir dire process. State v. Morales, 390 N.J. Super. 470, 472 (App. Div. 2007) (reversing, on the State's motion for leave to appeal, an order of the trial court proposing a deviation from the Directive). Nevertheless, we have recognized that deviation from a directive addressing jury voir dire warrants relief only when it results in "'a miscarriage of justice,' R. 2:10-1." Gonzalez v. Silver, 407 N.J. Super. 576, 596 (App. Div. 2009).
Although judges have the affirmative obligation to adhere to administrative directives, counsel has a similar obligation to raise any objection to the jury selection process promptly. In Gonzalez, the court tacitly recognized counsel's "seeming[] satisf[action] with the court's voir dire questions," supra, 407 N.J. Super. at 597, and the resultant suggestion of waiver.
Although questions were proposed, because plaintiff did not specifically object to the voir dire procedure at trial, we consider whether, in the interests of justice, we should recognize plain error. See R. 2:10-2. We must determine whether any error in the procedure had the clear capacity to produce an unjust result. R. 2:10-2. Failure to object to the jury selection at trial raises the presumption that trial counsel perceived no prejudice affecting the plaintiff's substantial rights. See State v. Wilbely, 63 N.J. 420, 422 (1973).
We emphasize that trial judges must fully comply with the mandates of the administrative directives. We also urge trial judges first to closely examine the proposed voir dire questions to ensure each juror will provide a broader narrative response to open-ended questions as sought by the directives, and, second, to ask follow-up inquires of those jurors who vocalize only limited responses.
In this matter, when considering plaintiff's counsel's participation and the entire voir dire, we are satisfied the inquiry employed, although not perfectly matched to the directives, adequately assured fairness in this jury selection process and does not warrant the verdict be set aside. Velazquez v. Portadin, 321 N.J. Super. 558, 574 (App. Div. 1999), rev'd on other grounds, 163 N.J. 677 (2000).
We find plaintiff's remaining contentions regarding the sufficiency of the court's jury selection process to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION