Opinion
DOCKET NO. A-0360-13T3
04-07-2016
BRIAN GATESY, Plaintiff-Appellant/Cross-Respondent, v. SCHUBERT PEROTTE, M.D., Defendant-Respondent/Cross-Appellant, and ELAINE ELLIOTT, R.N., BRUNILDA ROSARIO, R.N., JEFF PAN, M.D., MARK A. SINGER, M.D., ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL AT RAHWAY, PHOENIX HEALTH CARE NURSING AGENCY, THOMAS CADMUS, DANIEL WOLF, LINDEN EMERGENCY MEDICAL SERVICES, CITY OF LINDEN, EMCARE OF NEW JERSEY, INC., AND RADIOLOGY ASSOCIATES, P.A., Defendants.
Bruce H. Nagel argued the cause for appellant/cross-respondent (Nagel Rice, L.L.P., attorneys; Barry M. Packin, of counsel and on the brief; Mr. Nagel and Andrew Pepper, on the briefs). Sean P. Buckley argued the cause for respondent/cross-appellant (Buckley Theroux Kline & Petraske, L.L.C., attorneys; Mr. Buckley, of counsel; Ellen L. Casagrand, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Leone and Whipple. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3552-09. Bruce H. Nagel argued the cause for appellant/cross-respondent (Nagel Rice, L.L.P., attorneys; Barry M. Packin, of counsel and on the brief; Mr. Nagel and Andrew Pepper, on the briefs). Sean P. Buckley argued the cause for respondent/cross-appellant (Buckley Theroux Kline & Petraske, L.L.C., attorneys; Mr. Buckley, of counsel; Ellen L. Casagrand, on the briefs). PER CURIAM
Plaintiff, Brian Gatesy, appeals from a July 1, 2013 judgment and an August 27, 2013 order denying his motion for a new trial. We affirm.
I.
On January 26, 2008, plaintiff and his friends rented a motel room in Linden, so that they could socialize and play cards. During the course of the evening, plaintiff and his friends engaged in some playful wrestling. Plaintiff's friend, Brian Groger, flipped plaintiff onto the bed, and he landed on his head and neck. Plaintiff fell unconscious. Plaintiff's friends subsequently placed him in the shower in an attempt to wake him up. The shower did not succeed in waking plaintiff. His friends then put plaintiff to bed, thinking that he needed to sleep.
The following morning, plaintiff awoke and thought he was having an asthma attack. He had difficulty breathing and had pain in his neck. His friends accordingly called 9-1-1. Linden Emergency Medical Services technicians (the EMTs) arrived at the motel. The EMTs put plaintiff in a wheelchair because he could not walk. Their report indicated that plaintiff's motor response was normal and that he was able to move his arms and legs. The report also indicated that plaintiff reported no numbness or loss of feeling. The EMTs did, however, record that plaintiff complained of neck pain.
Plaintiff was transported to the Robert Wood Johnson University Hospital's Rahway emergency department (ED), and arrived at 10:35 a.m. An ED nurse performed triage on plaintiff, and recorded that plaintiff complained of shortness of breath and weakness, but no pain. Defendant, Schubert Perotte, M.D., the attending emergency physician, examined plaintiff, who was awake, alert, and talking, at 11:30 a.m. Plaintiff did not complain of neck pain at that time, but indicated shortness of breath and wheezing. Perotte did not receive or review the EMT report. Perotte wrote on plaintiff's chart at 11:30 a.m. that plaintiff was suffering from an asthma attack and treated him for that ailment.
At 12:30 p.m., another ED nurse wrote on plaintiff's chart that he was complaining of neck pain, after plaintiff told her about wrestling at the motel and that he believed he might have injured himself. The nurse called Perotte and informed him of plaintiff's neck pain and observed that plaintiff refused to move his neck. Perotte re-examined plaintiff who told him about injuring his neck the night before, and informed Perotte that he had trouble moving his neck. After confirming a limited range of neck movement, Perotte applied a hard cervical collar and told plaintiff to stay in bed and keep his head still. Perotte ordered an x-ray of plaintiff's cervical spine. At 1:52 p.m., Perotte reviewed plaintiff's x-ray and, believing that plaintiff's injuries could cause a long-term spinal cord injury, sent the x-ray films to Dr. Mark Singer, an orthopedic radiologist for confirmation. Singer confirmed that plaintiff had suffered a subluxation injury.
Perotte called the on-call neurosurgeon, Dr. Jeff Pan, to discuss plaintiff's condition sometime between 2:20 and 3:00 p.m. Perotte, Singer, and Pan ultimately agreed that a CT scan of plaintiff's neck should be performed. The CT scan was performed at 3:02 p.m. and revealed that plaintiff's subluxation injury was causing a spinal cord compression, and that plaintiff had suffered a stable neck fracture with locked facets in the same area of his neck which contributed to the compression. At that time, Perotte did not immobilize plaintiff's neck beyond the earlier-prescribed cervical collar.
At 4:00 p.m., plaintiff complained of numbness in both upper limbs. The nurse did not update plaintiff's chart until 6:10 p.m., and Perotte was not informed. No adjustments were made to plaintiff's care at that time. At 5:02 p.m., Perotte and Singer discussed the CT scan and shortly thereafter, Perotte informed plaintiff that he had a neck fracture and that he needed to lay still. At 5:30, Perotte ordered Decadron, a steroid anti-inflammatory, for plaintiff.
At 6:50 p.m., Perotte updated plaintiff's chart to reflect the results of the CT scan. He also reevaluated plaintiff's medical condition. He advised Pan of the results of the CT scan. Pan told Perotte he was coming to see plaintiff. Perotte then discussed plaintiff's case with the hospital's admitting physician, Dr. Mesiq, and both agreed that Dr. Mesiq should admit plaintiff to the intensive care unit (ICU). Plaintiff was administratively admitted, but physically remained in the ED. At that point, however, the ED (including Perotte) was no longer authorized to provide medical care, except in a life-threatening emergency. Pan ordered an MRI of the cervical spine but had still not seen plaintiff.
Between 9:00 p.m. and 10:00 p.m., a nurse informed Perotte that plaintiff's condition had worsened. Perotte spoke with Pan and related his fears of possible spinal cord injury. Pan arrived at the ED after 11:00 pm, and evaluated plaintiff. Pan undertook procedures to reduce the dislocation, reestablish normal spine alignment, and affirmatively immobilize plaintiff's head and neck at approximately 12:00 a.m. By the time Pan initiated treatment, plaintiff had already progressed to clinical paralysis and loss of normal neurological function, which had steadily declined since plaintiff was brought to the hospital.
Plaintiff filed the initial complaint on September 30, 2009 and named multiple parties in the instant suit, including Perotte, who was alleged to have deviated from the standard of care with respect to plaintiff's medical care and treatment. Perotte filed an answer, including cross-claims against his co-defendants for contribution, indemnification, and/or a settlement credit, asserting the right to seek allocation pursuant to Young v. Latta, 123 N.J. 584 (1991) against any settling defendant. Prior to the trial, all parties settled with plaintiff except Perotte and one nurse. On the eve of trial, plaintiff settled with Dr. Pan, the neurosurgeon.
Plaintiff settled with the nurse during trial.
At trial, plaintiff moved in limine to bar Perotte from asserting any arguments that Pan or any other settling defendants were negligent pursuant to Young, supra, 123 N.J. at 586, 597. Plaintiff argued that a defendant who seeks to solicit opinions against a settling defendant must support those opinions with his own expert or that of another party and must allege the causative fault of a co-defendant well before trial. Plaintiff argued that because Perotte had not named an expert and had not adopted plaintiff's expert against Pan in interrogatory answers, he was precluded from asserting that Pan was at fault. The trial judge disagreed, explaining:
I think the law [is] clear that a non-settling defendant has the right to have a settling defendant's liability apportioned by the fact-finder. That's the reason for the model jury charges . . . . The Young court identified two factors that [c]ourts should consider in determining whether non — settling defendants are entitled to a credit.
One, whether the settling defendant has produced an expert witness and, two, whether the non-settling defendant has alleged well before trial the causative fault of the co-defendant, citing Young at 123 N.J. 584, 597.
However, as I pointed out . . . the language of the opinion does say that, "[A] defendant who produces no expert report (whether its own or that of another party)" — and they emphasize "or another party" — "and fails to allege well before trial the causative fault of a co-defendant may" — and I note the language is not must, but may — "be preclude[ed] from asserting at trial that co-defendant's fault — in the event of a settlement."
. . . .
I think that the plaintiff was certainly on notice that both the remaining two medical malpractice defendants were asserting claims against the settling defendants . . . .
Now, the more specific or difficult question here is whether the non-settling defendants have produced expert's reports . . . . [I]n order to establish liability of a settling defendant, the non-settling defendants in this case must point to expert testimony from a medical expert in the same field as the settling defendant . . . .
The trial judge indicated that because an expert report attributing causative fault to Dr. Pan was provided by plaintiff well before trial, "if there is an opportunity for defendants to use that to prove their cross-claims against a settling defendant, I intend to allow it."
Plaintiff also moved to sever co-defendant Goger. The trial judge ordered severance, indicating that there was no clear-cut decision regarding whether doctors have a right of contribution against a prior tortfeasor. Perotte filed a cross-appeal asserting the trial judge erred in severing Goger. Because we affirm, we need not address Perotte's cross-appeal.
At trial, several doctors testified for plaintiff on the issue of liability. Dr. Roger Berg was offered as an expert in radiology. Berg reviewed the expert reports, medical tests, and the depositions of the other experts, as well as plaintiff's deposition. Berg noted that plaintiff had a fracture dislocation of the spinal column and opined that because plaintiff had an unstable spine, his condition worsened between the time when the x-ray was taken, and when the CT scan and MRI were performed. Berg disagreed with defendant's expert's opinion that plaintiff's injury was stable and that there was no change in his condition between the x-ray and the CT scan and MRI, but conceded that defendant's use of a hard collar was an attempt to prevent plaintiff's neck from moving.
Dr. Singer, the orthopedic radiologist who interpreted plaintiff's CT scan, testified that after plaintiff sustained his injuries, the scan showed that the area around plaintiff's spinal cord had narrowed. After interpreting the CT scan at 3:52 p.m., Singer told Perotte that plaintiff needed to see a neurosurgeon immediately in order to reduce the spinal dislocation. Around 5:00 p.m., Singer informed Perotte via telephone that Perotte had misidentified the precise location of plaintiff's injury.
Dr. Ronald Paynter, plaintiff's expert in emergency medicine, summarized his review of the records and reports and opined that Perotte deviated from the standard of care by failing to look at the EMTs report. Paynter also offered other deviations from the standard of care, and noted that when Pan did not come to the ED immediately, Perotte should have contacted another neurosurgeon. Paynter concluded that the ED's failure to immobilize plaintiff's head and neck resulted in his ultimate spinal cord injury, concluding that plaintiff did not yet have a spinal cord injury during the period in which he could still move his arms and legs. He opined that plaintiff's spinal cord injury occurred between 1:00 p.m. and 4:00 p.m.
A de bene esse deposition of Dr. James Macon, a neurological surgeon acting as plaintiff's causation expert, was presented to the jury by video. During cross-examination of Macon, Perotte elicited testimony that it was Pan's deviation and failure to treat plaintiff in a timely manner that caused plaintiff to suffer a spinal cord injury in the ED. In his closing, defense counsel reiterated Macon's opinions to the jury, which generally provided that plaintiff had a grade-three subluxation that caused a compression of the spinal cord. Macon had opined that, if Pan had visited with plaintiff earlier in the day, plaintiff's injuries may not have progressed to complete and permanent quadriplegia.
Two experts testified on liability for Perotte. Dr. George DiGiacinto, a neurosurgeon, testified that plaintiff's injury from wrestling caused the fracture, the dislocation of his spine, and the contusion of his spinal cord. The injury set a progression of events in motion that included the swelling of his spinal cord, loss of motor function over the course of twenty-four to forty-eight hours, and neurological deficit. DiGiacinto testified that, once the initial injury occurred, there was nothing that could have been done to stop it. The use of immobilization would have had no positive effect on plaintiff's injuries.
Dr. Gregory Henry, an emergency room physician with experience in treating severe neurological injuries, testified on Perotte's behalf and agreed that there was nothing that Perotte could have done that would have changed the outcome of plaintiff's injuries. He opined the spinal cord was contused when the original injury occurred, which was after hitting the floor while wrestling. When plaintiff had been flipped onto the bed, the resulting spinal contusion caused him to lose consciousness and started an unstoppable swelling process. Dr. Henry agreed that an earlier immobilization would have had no effect on plaintiff's injuries.
Henry also opined that that Perotte did not deviate from the standard of care for an ED physician by not reading the EMT patient care report, because Perotte was able to speak to plaintiff. Henry opined that, based on plaintiff's history and complaints, and because Perotte applied a cervical collar and ordered the x-ray, Perotte did not deviate from the standard of care when he evaluated plaintiff. Henry concluded that Perotte acted appropriately because Perotte performed an examination of plaintiff based on plaintiff's complaints, called the correct specialists, and proceeded to get care for plaintiff on the basis of that information.
At the conclusion of the trial, the jury concluded that Perotte deviated from accepted standards of medical practice, but that the deviations did not increase the risk of harm posed by plaintiff's pre-existing condition so as to be a substantial factor in producing the ultimate injury. Plaintiff moved for a new trial on July 17, 2013. The trial judge denied the motion on August 27, 2013. This appeal followed.
II.
Plaintiff raises several issues on appeal. Most notably, relying upon Young v. Latta, 123 N.J. 584 (1991), plaintiff argues that the trial judge erred by permitting the jury to consider the fault of Dr. Pan despite the fact that Perotte had not named an expert critical of Pan or adopted plaintiff's expert report. We disagree.
The trial judge's decision to permit the jury to consider Dr. Pan's fault is an issue of law. We accordingly review the trial judge's decision de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366. 378 (1995).
In Young, our Supreme Court determined that a defendant may assert the liability of a settling defendant and seek a credit against a judgment in every case, whether or not a cross-claim for contribution has been filed. Young, supra, 123 N.J. at 596-97. A defendant at trial has the right to have a settling defendant's liability apportioned by the jury. Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112-13, 166 (2004). In order to avoid surprise, however, a defendant who stands trial may not "assert the liability of a settling defendant without first providing the plaintiff with fair and timely notice" of an intent to do so. Young, supra, 123 N.J. at 597; R. 4:7-5(b), (c). "A defendant who produces no expert report (whether its own or that of another party), and fails to allege well before trial the causative fault of a co-defendant well before trial, may be precluded from asserting at trial that co-defendant's fault in the event of a settlement." Young, supra, 123 N.J. at 597 (emphasis added). But when the requirements of notice and proof are met, a defendant at trial may obtain an allocation of fault to the settling defendant. Town of Kearny v. Brandt, 214 N.J. 76, 100 (2013) (citing Young, supra, 123 N.J. at 596-97).
Here, Perotte specifically provided fair and timely notice that Pan's alleged fault would be an issue at trial when he demanded:
[C]ontribution from the co-defendants pursuant to N.J.S.A. 2A:15-5.3 and N.J.S.A. 2A:53A, for indemnification, and in the alternative [defendant] contends that in the event that the proofs developed in discovery or at trial establish a basis for liability on the part of any other defendant and such defendant or defendants enter into a settlement agreement, in whole or in part, with plaintiff(s) then the answering party(s) assert a claim for credit reducing the amount of judgment in favor of plaintiff(s) against the answering parties to reflect the degree of fault allocated to the settling defendant or defendants pursuant to the decision in Young v. Latta, 123 N.J. 584 (1991).
Perotte also satisfied the proof prong of Young, which requires a non-settling defendant seeking to allocate fault to a settling defendant to establish fault. See Brandt, supra, 214 N.J at 100 (citing Young, 123 N.J. at 596-97). Plaintiff's expert, Macon, established Pan's fault through his own cross-examination testimony. Although plaintiff contests Perotte's use of Macon's testimony to establish Pan's fault in his report and in his testimony on cross-examination, we reject plaintiff's argument. Generally, the trial court has discretion to permit testimony on cross-examination on matters that were not discussed on direct examination. N.J.R.E. 611(b). We will only disturb such rulings if the trial court's decision evinces "clear error and prejudice." State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990) (citations omitted). We discern no such abuse of discretion here. We also note that there is "a fundamental judicial policy in this State that a party may not deprive the opposing party of relevant information and testimony by bringing a lawsuit, or engaging an identified expert, and then claiming proprietary entitlement to information and opinions of knowledgeable witnesses." In re Pelvic Mesh/Gynecare Litig., 426 N.J. Super. 167, 185 (App. Div. 2012).
III.
Plaintiff next argues that the court erred by compressing all of Perotte's breaches of the standard of care into one jury interrogatory, instead of making five separate interrogatories for each individual deviation. We disagree.
Each of the five inquiries plaintiff proposed sought to address a different time of the day at which plaintiff alleged Perotte deviated from the standard of care by failing to immobilize plaintiff's neck. The court rejected plaintiff's request, and instead submitted a seven-question interrogatory to the jury. The first two questions pertained to Perotte. The third and fourth interrogatories pertained to Pan; the fifth pertained to Perotte's burden of proof; the sixth asked the jury to allocate a percentage to each of the potential causes of plaintiff's injuries; and the final question asked what amount of money would compensate plaintiff for his injuries. The jury only answered questions one and two when it concluded that Perotte had deviated from the standard of care, but that any deviation by him did not increase the risk of harm posed by plaintiff's pre-existing condition and was not a substantial factor in producing plaintiff's ultimate injury.
The jury interrogatory specifically read:
1) Did the Defendant, Dr. Schubert Perotte, deviate from accepted standards of medical practice?
Yes ___ If your answer is "Yes," proceed to question 2.
No ___ If your answer is "No," return a verdict for Dr. Perotte.
2) Did the Defendant's, Dr. Perotte's, deviation(s) increase the risk of harm posed by the Plaintiff's pre-existing condition and was the increased risk of harm a substantial factor in producing the ultimate injury?
Yes ___ If your answer is "Yes," proceed to question 3.
No ___ If your answer is "No," return a verdict for Dr. Perotte.
Jury interrogatories should be tailored to avoid confusion on the part of the jury. Ponzo v. Pelle, 166 N.J. 481, 492 (2001). Errors in interrogatories given to the jury are not grounds for reversal unless they were "misleading, confusing, or ambiguous." Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997) (citations omitted). We review the interrogatories in the context of the jury charge as a whole. Ponzo, supra, 166 N.J. at 491 (citation omitted).
Plaintiff, relying on Ponzo, asserts the jury interrogatories were improper. In Ponzo, a single jury interrogatory encompassed the issues of negligence, injury, causation, the extent of the plaintiff's injuries, and damages. Ibid. Here, the jury interrogatories were broken into separate questions addressing the alleged deviations, the issue of proximate causation, and damages. The interrogatories were specific and well-defined enough such that they were not "misleading, confusing, or ambiguous." Sons of Thunder, supra, 148 N.J. at 418. The interrogatories addressed whether there were deviations from the standard of care by Perotte or by Pan; whether those deviations increased plaintiff's risk of harm due to plaintiff's pre-existing condition; and whether the increased risk of harm was a substantial factor in producing plaintiff's ultimate injury.
Considering the interrogatories in relation to the jury charge as a whole, we discern no error. The charge instructed the jury that multiple deviations from the standard of care were at issue for the jury to resolve. The jury was aware that, based on both the charge and the interrogatories, they were to consider all of the deviations of care on January 27, 2008.
Plaintiff further asserts that the court failed to properly instruct the jury on the complex and intertwined medical malpractice allegations. We reject this contention. Plaintiff does not specify the charge that should have been provided, or the problems with the charge that was given to the jury. State v. Thompson, 59 N.J. 396, 411 (1971) (explaining that no party is entitled to have the jury charged in his or her own words).
We also reject plaintiff's arguments regarding the court's instructions generally. The trial judge reviewed the factual scenario that plaintiff claimed led to his quadriplegia, explained plaintiff's burden of proof and the types of evidence such as direct and circumstantial, and the types of testimony that the jury heard during the trial.
The trial judge defined negligence for the jury, and related the definition of negligence to the facts as they pertained to Perotte and Pan. The judge explained complex notions of pre-existing injuries and their possible relation to defendant's negligence in detail. The trial judge gave a correct charge regarding plaintiff's pre-existing condition, a possible increased risk of harm, and whether Perotte's negligence was a substantial factor in producing plaintiff's quadriplegia. The trial judge also reviewed Perotte's burden of showing the percentage of plaintiff's injuries that would have occurred even if he had not been negligent and provided instructions regarding how the jury should award damages. In the event that the jury found in favor of plaintiff, the trial judge detailed the law governing damages in relation to the specific facts of the case. Finally, the trial judge reviewed each of the interrogatories with the jury. We are satisfied that the trial judge provided properly tailored jury instructions that explained the complexity of the medical malpractice issues.
Plaintiff contends that the court also erred in its jury interrogatory pursuant to Scafidi v. Seiler, 119 N.J. 93, 108-09 (1990). Under Scafidi, a medical malpractice plaintiff must demonstrate what applicable standard of care applies; the defendant's deviation from that standard of care; and that the deviation proximately caused the injury. Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). In cases where a defendant's negligence combines with a patient's pre-existing condition to cause harm, a modified three-prong test applies in which the plaintiff must demonstrate: the applicable standard of care; that a deviation from that standard increased the risk of harm from the pre-existing condition; and that the increased risk was a substantial factor in producing the ultimate result. Scafidi, supra, 119 N.J. at 104. Once a plaintiff makes such a showing, the defendant is held liable for all harm unless he can show both the divisibility of the harm and the proportion for which he is responsible. Id. at 110.
A "substantial factor" need not be the sole or primary factor. Verdicchio, supra, 179 N.J. at 25. In Velazquez v. Jiminez, we held that a defendant's mere three percent liability for a patient's injury was sufficient for substantial factor causation. 336 N.J. Super. 10, 31-32 (App. Div. 2000), aff'd, 172 N.J. 240 (2002). Velazquez clarified that the substantial factor analysis is not dependent on the apportionment of fault. However, a factor is not substantial if one or several other contributing factors had such a "predominant effect" in bringing about the harm that the defendant's negligence was "insignificant." Verdicchio, supra, 179 N.J. at 25. Ultimately, it is the province of the jury to determine whether an increased risk of harm from negligence is a substantial factor. Id. at 26.
As we stated previously, the Scafidi interrogatory was clear, was not confusing and correctly required the jury to determine whether there was a deviation from the accepted standards of care. The second interrogatory required the jury to engage in the two-pronged substantial-factor analysis. Although this interrogatory combined the analysis, the inquiry in the present case still contained the necessary two Scafidi components. In light of the judge's correct and detailed instructions on this issue, the combined question had no capacity to confuse the jury or to produce an unjust result. R. 2:10-2.
We also reject plaintiff's assertion that the court erred by rejecting his proposal that "the jury be charged that a finding of at least 3% [of fault] satisfies the substantial factor requirement under the law." We explained in Battenfeld v. Gregory, 247 N.J. Super. 538, 548 (App. Div. 1991), the phrase "substantial factor" is clear enough to a jury that it is unnecessary, and undesirable, to reduce the amount into percentage terms. Any variation in the jury interrogatory from the jury charge was inconsequential because the jury charge was clear and not confusing. Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (citing Fischer v. Canario, 143 N.J. 235, 254 (1996)).
We also reject plaintiff's argument that the trial court erred when it refused to give the charge on abandonment and improperly based its ruling on plaintiff's expert's failure to render an opinion that Perotte abandoned plaintiff after Dr. Mesiq admitted him into the hospital. Abandonment occurs when a medical practitioner fails to continue to provide service to the patient when it is still needed, where the physician has assumed responsibility and from which he or she has not been properly relieved, Marshall v. Klebanov, 188 N.J. 23, 34 (2005) (citations omitted), and constitutes the "unwarranted forsaking of a patient without notice or without providing a competent substitute physician." Clark v. Wichman, 72 N.J. Super. 486, 492 (App. Div. 1962).
Perotte was unable to provide medical care, to provide treatment, or to order tests for plaintiff after plaintiff had been admitted as Dr. Mesiq's patient. Plaintiff's expert, Dr. Paynter, confirmed that Dr. Mesiq was the admitting physician as of 6:50 p.m. and was responsible for submitting orders for plaintiff's medical care. There was no evidence or testimony presented to demonstrate that Perotte had not been properly relieved of his responsibilities to plaintiff.
IV.
Plaintiff next argues that the court erred when it declined to provide the jury with a charge pursuant to Gardner v. Pawliw, 150 N.J. 359, 388-91 (1997), which instructs a jury to consider whether a medical test that had not been performed would have been helpful to the care of a plaintiff. The court denied plaintiff's request to provide a charge pursuant to Gardner because no expert stated that a failure to perform a diagnostic test, or even a failure to perform a test earlier in the day, was linked to plaintiff's injury. After reviewing the record, we discern no error in that determination.
We reject plaintiff's argument that the court erred when it excluded the hospital's policies and procedures, which were encompassed in the hospital's accreditation manual, from evidence to establish the standard of care. Plaintiff failed to demonstrate the policies' relevance to Perotte. The trial court correctly relied on Johnson v. Mountainside Hosp., 239 N.J. Super. 312, 324 (App. Div.), certif. denied, 122 N.J. 188 (1990), to hold that portions of the hospital's accreditation manual could only be used against the hospital and not against the individual physicians.
Plaintiff finally asserts that the cumulative effect of the court's errors, including the implicit approval of improper behavior by defense counsel, warrants a new trial. Plaintiff contends that defense counsel flagrantly violated the proposition that trials should be conducted fairly and with courtesy. However, we discern no instances where defense counsel was overtly discourteous to any party, counsel, witness, or the court. Plaintiff's remaining claims are without sufficient merit to warrant further discussion in a written 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