Opinion
DOCKET NO. A-3468-14T4
01-25-2017
ESTATE OF PERLET ABUAF, by Her Administrator, NISO ABUAF, and NISO ABUAF, Individually, Plaintiffs-Appellants, v. SAINT BARNABAS MEDICAL CENTER and SAINT BARNABAS HEALTH CARE SYSTEM, Defendants, and ELIZABETH JUNKER, M.D.; ELIZABETH BELLA, N.P.; EMERGENCY MEDICAL ASSOCIATES; MARK GOLDBERG, M.D.; CONSULTANTS IN CARDIOLOGY; RUCHIKA SINGLA, M.D.; and AMIT MALHOTRA, M.D., Defendants-Respondents.
Michael B. Zerres argued the cause for appellants (Blume, Forte, Fried, Zerres & Molinari, P.C., attorneys; Mr. Zerres, of counsel and on the brief). Walter F. Kawalec, III argued the cause for respondents Elizabeth Junker, M.D., Elizabeth Bella, N.P., and Emergency Medical Associates (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, Frank P. Leanza, and Rosalind B. Herschthal, on the brief). Philip F. Mattia argued the cause for respondent Ruchika Singla, M.D. (Mattia & McBride, P.C., attorneys; Mr. Mattia, Haley K. Grieco, and Anelia Dikovytska, on the brief). Craig S. Combs argued the cause for respondents Mark Goldberg, M.D. and Consultants in Cardiology (Giblin, Combs & Schwartz, L.L.C., attorneys; Mr. Combs, of counsel; Erica C. Avondoglio, on the brief). Louis A. Ruprecht argued the cause for respondent Amit Malhotra, M.D. (Ruprecht, Hart, Weeks & Ricciardulli, L.L.P., attorneys; Mr. Ruprecht, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti, Fasciale and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9278-11. Michael B. Zerres argued the cause for appellants (Blume, Forte, Fried, Zerres & Molinari, P.C., attorneys; Mr. Zerres, of counsel and on the brief). Walter F. Kawalec, III argued the cause for respondents Elizabeth Junker, M.D., Elizabeth Bella, N.P., and Emergency Medical Associates (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, Frank P. Leanza, and Rosalind B. Herschthal, on the brief). Philip F. Mattia argued the cause for respondent Ruchika Singla, M.D. (Mattia & McBride, P.C., attorneys; Mr. Mattia, Haley K. Grieco, and Anelia Dikovytska, on the brief). Craig S. Combs argued the cause for respondents Mark Goldberg, M.D. and Consultants in Cardiology (Giblin, Combs & Schwartz, L.L.C., attorneys; Mr. Combs, of counsel; Erica C. Avondoglio, on the brief). Louis A. Ruprecht argued the cause for respondent Amit Malhotra, M.D. (Ruprecht, Hart, Weeks & Ricciardulli, L.L.P., attorneys; Mr. Ruprecht, of counsel and on the brief). PER CURIAM
In this medical malpractice lawsuit, plaintiffs appeal from several orders entering a judgment of no cause of action dismissing their complaint after a jury trial. We affirm.
A February 18, 2015 order as to defendant Amit Malhotra, M.D.; a February 24, 2015 order as to defendants Mark Goldberg, M.D. and Consultants in Cardiology; a March 10, 2015 order as to defendant Ruchika Singla, M.D.; and a March 13, 2015 order as to defendant Elizabeth Junker, M.D. and Emergency Medical Associates, P.A.
At approximately 5:00 p.m., on September 20, 2010, decedent went to the emergency room at Saint Barnabas Medical Center (SBMC) complaining of a nosebleed. She was initially seen by a nurse practitioner, who treated her nosebleed with nasal packing. After the nasal packing was placed in her left nostril, decedent complained of left-side facial pain and a left-sided headache of varying degrees of severity.
At approximately 2:00 a.m., on September 21, 2010, decedent was admitted to SBMC for "hypertensive urgency." At approximately 7:00 p.m., decedent lost consciousness and collapsed. A subsequent CT scan revealed that decedent had suffered a subarachnoid hemorrhage. Testing revealed that she was clinically brain dead. Her life support was discontinued and she died on September 22, 2010, after having been transported to another hospital.
During her time at SBMC, decedent was seen by defendants Elizabeth Junker, M.D., Mark Goldberg, M.D., and Ruchika Singla, M.D. Although decedent had complained of a headache, even describing her pain as "excruciating" at one point, none of these defendants ordered a CT scan of the head, as they attributed decedent's headache to the nasal packing. Defendant Amit Malhotra, M.D. saw decedent after she lost consciousness.
Plaintiffs alleged that Drs. Junker, Goldberg, and Singla were negligent by failing to order a CT scan of decedent's head, and that defendant Malhotra was negligent by failing to see and examine decedent after she was assigned to him and before she lost consciousness. Plaintiffs also sued defendants Consultants in Cardiology, a medical practice that Dr. Goldberg, is affiliated with and Emergency Medical Associates, a medical practice that Dr. Junker is affiliated with.
Plaintiffs also sued other parties. On the first day of trial, plaintiffs dismissed their claims against St. Barnabas Medical Center, St. Barnabas Healthcare System, and nurse practitioner Bella. --------
On appeal, plaintiffs argue the judge erred by (1) charging medical judgment, or inappropriately giving that charge without tailoring it to the facts of this case; (2) limiting them to three additional peremptory challenges; (3) precluding questioning of Dr. Junker and former defendant Nurse Practitioner Elizabeth Bella on the applicable standard of care; and (4) barring questioning of witnesses as to Nurse Bella's extensive experience of nasal packing and lack of excruciating headache complaints following the insertion of nasal packing.
I.
We begin by addressing plaintiffs' jury-charge arguments, that the court erred by providing the medical judgment charge to the jury, and even if the charge was warranted, that the judge failed to tailor it to the facts of this case.
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). "Jury charges must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . ." Reynolds, supra, 172 N.J. at 289 (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000)).
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)). In fact, "[c]ourts uphold even erroneous jury instructions when those instructions are incapable of producing an unjust result or prejudicing substantial rights." Fisch v. Bellshot, 135 N.J. 374, 392 (1994).
"A physician must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field." Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 626 (1999) (citing Walck v. Johns-Manville Prods. Corp., 56 N.J. 533, 560 (1970)). "The law recognizes that medicine is not an exact science," and that "good [medical] treatment will not necessarily prevent a poor result . . . ." Schueler v. Strelinger, 43 N.J. 330, 344 (1964). Accordingly, our courts do not hold physicians liable for "an honest mistake in diagnosis or in judgment as to the course of treatment taken." Aiello, supra, 159 N.J. at 627 (quoting Schueler, supra, 43 N.J. at 344-45). "To constitute a medical judgment, a medical decision generally must involve 'misdiagnosis or the selection of one of two or more generally accepted courses of treatment.'" Das, supra, 171 N.J. at 527 (quoting Velazquez, supra, 163 N.J. at 687).
"Importantly, even where a physician is permitted to exercise medical judgment, the physician will be liable for malpractice if the exercise of such judgment 'represent[s] a departure from the requirements of accepted medical practice.'" Aiello, supra, 159 N.J. at 627 (alteration in original) (quoting Schueler, supra, 43 N.J. at 345). "Consequently, the Model Charge provides that doctors may not rely on the 'exercise of medical judgment' excuse to avoid liability for ordinary negligence[.]" Ibid.
Therefore, the medical judgment charge must specify what action qualifies as an appropriate exercise of judgment. Velazquez, supra, 163 N.J. at 690. "Court and counsel should analyze the parties' testimony and theories in detail, on the record, to determine whether the charge is applicable at all and, if so, to which specific issues." Ibid. The court and counsel should then tailor the charge to the facts of the case. Ibid. Otherwise, an overly broad medical judgment charge may improperly insulate the defendant from liability. Id. at 689-91.
Dr. Junker's counsel requested the court charge medical judgment. Plaintiffs' counsel objected, and the following colloquy ensued:
THE COURT: Well, are you . . . suggesting that no one has testified on behalf of any defendant . . . that there was an option . . . that a reasonable doctor could well have ordered the CT . . . scan and a reasonable doctor, under the circumstances, could not have ordered a CT scan. You're saying there was no testimony to that regard?
. . . .
[PLAINITFFS' COUNSEL]: . . . It's not a matter of a judgment in the diagnosis because there's no diagnosis without the test . . . under the clinical circumstances, they should have ordered the CAT scan. It's not that they could have made the diagnosis of a subarachnoid hemorrhage or sentinel bleed or aneurism clinically, so I don't thin[k] that this language is appropriate.
[DR. JUNKER'S COUNSEL]: . . . At the time she saw the patient, she did not have to have a subarachnoid as her final differential or her top differential and [Dr. Junker] had no reason, based on her judgment, to order a CAT scan . . . . [A]s to Dr. Junker, based on her evaluation of the symptoms and the clinical condition at that time, in her judgment . . . the diagnosis or differential of subarachnoid was reasonably excluded and based on her
judgment, she had no reason to order a CAT scan.
THE COURT: It certainly seems to me to be in the case, [plaintiffs' counsel] . . . . [T]he testimony [is] that it's perfectly reasonable and within the standard of care . . . based upon what was presented to them by this patient to do exactly what it is that they did. Charging medical judgment leaves open the argument that . . . even if standard medical practice provided an option and that even if it might have been a good idea from the plaintiffs' perspective that the CAT scan be done, that nevertheless, that doesn't mean that the choices that they made at the time were not reasonable because there were other reasonable approaches to take . . . and there's reasonable choices to make under the circumstances being the ones that they chose. It seems to me to be right at the heart of this case.
The judge overruled plaintiffs' objection and essentially followed the Model Jury Charge (Civil), 5.50(G), "Medical Judgment" (June 2014). The judge instructed the jury:
A doctor may have to exercise judgment when diagnosing and treating a patient. However, alternative diagnosis and treatment choices must be in accordance with accepted standards of medical practice. Therefore, your focus should be on whether accepted standards of 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.
If you determine that the accepted standards of medical practice for treatment or diagnosis did not allow for the diagnosis or treatment
alternatives the defendant doctors made here, then the doctors would be negligent. If you determine the accepted standards of medical practice for treatment or diagnosis did allow for the diagnosis or treatment alternatives the defendant doctors made here, then the doctors would not be negligent.
We see no error in giving the medical judgment charge. Here, plaintiffs' experts testified that defendants deviated from the accepted standards of medical care by not ordering a CT scan of decedent's head. Defendants' experts concluded that they did not, testifying that based on decedent's complaints and symptoms, a CT scan was not indicated or required.
Drs. Junker, Singla, and Goldberg maintained that they were each presented with specific complaints and symptoms by decedent, and they were required to use their medical judgment in their diagnosis of her. Decedent did not initially present with a headache, and she did not complain of one until after the placement of the nasal packing. And her headache was localized to the left-side of the head, which was on the same side as the nasal packing. Therefore, Drs. Junker, Singla, and Goldberg used their expertise and medical judgment to determine what tests to order or not to order in response to decedent's headache in the presence of hypertension.
Alternatively, plaintiffs contend for the first time that the medical judgment charge read to the jury was overly broad. We consider this contention applying the plain error standard. As a result, reversal is unwarranted unless any error was "of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. As applied to jury instructions, plain error requires demonstration of
"[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." The charge must be read as a whole in determining whether there was any error."Where there is a failure to object, it may be presumed that the instructions were adequate," and "that trial counsel perceived no prejudice would result." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J. 572 (2003). Moreover, pursuant to Rule 1:7-2, "a [party] waives the right to contest an instruction on appeal if he does not object to the instruction." Torres, supra, 183 N.J. at 564. We see no error, let alone plain error.
[State v. Torres, 183 N.J. 554, 564 (2005) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
As noted, the judge's charge tracked the Model Jury Charge (Civil), 5.50(G), "Medical Judgment" (June 2014). The contentions of the parties were explained, in detail, in both the general introduction and the instruction regarding the aggravation of a preexisting condition. Specifically, the court explained:
Now, in this case, it is alleged that the [decedent] had a pre-existing condition, either an aneurysm that's contended by the plaintiff, or an undetectable blood vessel which had the capacity to rupture, as contended by the defendants, either of which, by itself, had a risk of causing the plaintiff the harm she ultimately experienced in this case. The plaintiff contends that [decedent]'s cerebral aneurysm was present and detectable when the defendants treated her on September 20th and 21st of 2010.
Plaintiff contends that if the defendants . . . had earlier ordered a CAT scan on [decedent]'s head, in accordance with the standard of care, then a sentinel bleed would have been detected, and that this would have led to the detection and treatment of a cerebral aneurysm significantly increasing [decedent]'s chance of survival. If you determine that the defendants were negligent, then [you] must also decide what is the chance that [decedent] would not have died of her preexisting condition if the defendants had not been negligent.
We can presume the jury understood this charge. They found Drs. Junker, Singla, and Goldberg, the three who treated decedent before she lost consciousness, were not negligent by failing to order the CT scan. However, they found Dr. Malhotra, who had not seen decedent before she lost consciousness, negligent. In finding no proximate cause as to Dr. Malhotra, the jury credited the testimony of Dr. Goldberg's expert witness, who testified that "[t]here is no evidence on any of the studies that we have that there was a ruptured aneurysm," and that this case fell within the fifteen percent of cases where there was no discernible reason known for the subarachnoid hemorrhage.
II.
We also reject plaintiffs' argument made for the first time that the trial court erred by limiting their additional peremptory challenges to nine.
Rule 1:8-3(c) affords each party in a civil action six peremptory challenges, except that parties represented by the same attorney are deemed to be a single party for purpose of the rule. It also provides:
Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, accord the adverse party such additional number of peremptory challenges as it deems appropriate in order to avoid unfairness to the adverse party.
The purpose of peremptory challenges is "to eliminate extremes of partiality on both sides, [and] to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them and not otherwise." State v. Tinnes, 379 N.J. Super. 179, 185 (App. Div. 2005) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 468 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)). "Although peremptory challenges are not constitutionally mandated, . . . New Jersey has long acknowledged their significance through legislation and court rule." State v. Scher, 278 N.J. Super. 249, 262 (App. Div. 1994) (citing N.J.S.A. 2A:78-7(c); R. 1:8-3(d)), certif. denied, 140 N.J. 276 (1995). "Our laws and rules are designed, albeit imperfectly, to assure the empaneling of a jury that, to the greatest extent possible . . . will reach its verdict solely on the evidence with complete fairness and impartiality." State v. Singletary, 80 N.J. 55, 80 (1979) (Handler, J., dissenting).
The decision to grant or deny extra peremptory challenges rests within the trial court's discretion, but that decision may not be rendered in an arbitrary fashion with no analysis or explanation from the trial court. Velazquez, supra, 163 N.J. at 692. Rather, "the lawyers and the court must parse out the theories of the parties in detail for the record so that an identity determination can be made." Ibid. Bare conclusions regarding the existence or absence of an identity are inadequate. Ibid. However, the issue is whether plaintiffs were prejudiced by the decision. Russell v. Rutgers Cmty. Health Plan, Inc., 280 N.J. Super. 445, 456 (App. Div.), certif. denied, 142 N.J. 452 (1995).
Here, the following colloquy between the court and counsel occurred:
[PLAINTIFFS' COUNSEL]: . . . So the plaintiff, I believe only has six peremptory challenges compared to the 24 [defendants have], and is requesting a commensurate amount of peremptory challenges so that the playing field is fair with respect to the dismissal of potential jurors.
. . . .
THE COURT: . . . Anybody have a position on any of that? That would give him -- he's not going to get that much. Let's put it that way. It would be nice if we had -- if we can get an agreement on it. Does anybody want to be heard?
. . . .
[PLAINTIFFS' COUNSEL]: -- defense peremptory challenges compared to six. So I was looking to level the playing field a little bit. I know you're not going to give me 24, so that one for one, but --
THE COURT: But you're asking for 24?
[PLAINTIFFS' COUNSEL]: But I am.
THE COURT: Okay. Anybody want to take a position on that?
[JUNKER'S COUNSEL]: Judge . . . there is no community [of] interest which is really . . . the standard by which it is determined whether or not the additional peremptory challenges should be granted . . . to the plaintiff. I have no objection with some additional ones. Twenty-four is ridiculous. But I think it should be, you know, quite
limited. My . . . guess would be like eight to nine.Plaintiffs' counsel did not object to the award of three additional peremptory challenges so that the court would be alerted to plaintiffs' dissatisfaction. To the contrary, plaintiffs' counsel stated "all right" and thanked the court for the additional challenges. Moreover, plaintiffs' counsel did not parse out the theories of the parties in detail for the record so that an identity determination could be made.
THE COURT: Anybody else?
[SINGLA'S COUNSEL]: Agreed.
THE COURT: Okay.
[PLAINTIFFS' COUNSEL]: Nine.
THE COURT: Nine.
[PLAINTIFFS' COUNSEL]: Nine additional?
THE COURT: No. Nine.
[PLAINTIFFS' COUNSEL]: Total?
THE COURT: Total.
[PLAINTIFFS' COUNSEL]: Oh, all right. Thank you, Your Honor.
THE COURT: Okay. I think you'll manage with that. Especially since we have such a long trial.
Plaintiffs did not argue "commonality of interest" or "substantial identity of interest," and the court did not determine that there was any such interest. Rather, Dr. Junker's counsel argued there was no such interest. Plaintiffs' counsel did not respond to Junker's community of interest argument, and said it was "all right" when the judge allowed only a total of nine.
And, after defendants did not use all twenty-four challenges, plaintiffs' counsel did not voice any dissatisfaction with the empaneled jury. To the contrary, plaintiffs' counsel advised the court that the jury selected was "[s]atisfactory." Finally, plaintiffs have failed to show any prejudice because they did not identify any juror they would have excluded if they had additional peremptory challenges. Russell, supra, 280 N.J. Super. at 456.
III.
Plaintiffs contend that the court erred by precluding the admission and read-in of certain deposition testimony of Dr. Junker about the applicable standard of care, and by precluding plaintiffs' counsel from questioning her about that testimony. They argue that Dr. Junker's deposition testimony was both relevant and probative, and therefore it was admissible. They also argue that the standard of care may be established by testimony from a defendant physician.
At trial, Dr. Junker's counsel objected to one of the proposed read-ins from Dr. Junker's deposition testimony. He stated: "I advised [plaintiffs' counsel]. I think Your Honor is going to have to make a ruling on it." However, the subsequent sidebar discussion was "inaudible," and the record does not reflect any ruling as to Dr. Junker's counsel's objection or the admissibility of the proposed read-in. After the sidebar discussion, plaintiffs' counsel read several portions of Dr. Junker's deposition testimony to the jury.
On appeal, plaintiffs do not cite to the trial court's alleged ruling in the record. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977) (indicating that the court is not obligated to search the record to substantiate argument in appellate brief). Plaintiffs argue the judge ruled counsel could not question Dr. Junker regarding the standard of care. We are unable to locate such a ruling in the record, and the citations set forth in plaintiffs' merits brief do not support this contention. There is no record to review, and plaintiffs did not avail themselves of the procedures in Rule 2:5-5(a) (providing that "[a] party who questions whether the record fully and truly discloses what occurred in the court . . . below shall . . . apply on motion to that court . . . to settle the record").
Instead, they submitted, for the first time on appeal, a certification of their trial counsel. However, that certification is of limited use. The certification does not attempt to recreate or explain the court's ruling. Rather, it merely states: "The record of trial indicates that the sidebar discussion regarding this issue, as well as the Trial Court's ruling, were inaudible." As a result, we decline to consider this argument.
IV.
Plaintiffs contend that the court erred by precluding the admission and read-in of certain deposition testimony of former defendant nurse practitioner Bella about the applicable standard of care, and by precluding plaintiffs' counsel from questioning her about that testimony. They argue that the trial court erred by precluding Bella from testifying about her experience placing nasal packing.
At trial, plaintiffs sought to introduce and read into the record certain deposition testimony of Bella. Dr. Malhotra's counsel objected because she was asked and answered hypothetical questions, and she was not an expert witness qualified to give expert testimony against any of the physician defendants. Dr. Singla's counsel joined in the objection, arguing "that even if she was an expert, as a nurse she couldn't give testimony that would impact on the defendant physicians," and therefore, her testimony was "irrelevant."
The judge precluded plaintiffs from introducing Bella's deposition testimony, but permitted plaintiffs to solicit factual testimony from Bella, stating:
She can testify, I think, that this is what she did and -- or didn't do and this is why she did or didn't do what she did. If it's couched in terms of in her opinion, if so and so, would you have done so and so, that's offering opinions as to standard of care which she's not qualified to offer. She can testify to the facts as to what she did and what she didn't do and why. I think . . . that that's factual.Plaintiffs' counsel chose not to call Bella as a witness. Plaintiffs' argument that Bella was precluded from giving factual testimony is belied by the record. And Bella was unqualified to give testimony about the standard of care applicable to any of the defendant physicians. Bella was a nurse practitioner, while Dr. Junker was an emergency room physician, Dr. Goldberg was a cardiologist, and Drs. Singla and Malhotra were internists. To be so qualified Bella was required to be equivalently credentialed in the same specialty or subspecialty as these defendants. See Nicholas v. Mynster, 213 N.J. 463, 468 (2013); Buck v. Henry, 207 N.J. 377, 389 (2011); and Ryan v. Renny, 203 N.J. 37, 52 (2010).
Affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION