Weiss v. GoldfarbWeiss v. Goldfarb
This is a medical malpractice case. Plaintiff‘s decedent, Robert A. Wood, died following a cardiac arrest while undergoing dialysis at St. Michael‘s Medical Center. He had come to the dialysis unit from the hospital‘s telemetry unit where, because of a variety of arrythmia problems, his heart had been continuously monitored since his arrival at the hospital two days earlier. He was not connected to a monitor in the dialysis unit. The gravamen of the
Decedent, then 67 years old and suffering from long-term hypertension and various coronary and renal problems, was admitted to St. Joseph‘s Hospital in June 1989 complaining of chest pain. He was there diagnosed as suffering from non-sustained ventricular tachycardia and atrial fibrillation, as well as from chronic kidney failure. An angiogram revealed some blockage of a coronary artery. He was placed on a heart monitor and also began to receive dialysis treatments on a three-day-a-week schedule, remaining on the monitor during the treatments. His cardiologist, Dr. Cohen, concerned that the arrhythmia problems might be life-threatening in that they posed a risk of fatal ventricular fibrillation, wanted defendant to submit to electro-physiological diagnosis as the basis for a treatment plan. Since St. Joseph‘s did not have an electro-physiology service, Dr. Cohen referred decedent to the telemetry unit at St. Michael‘s and to the care there of Dr. Irwin Goldfarb as attending cardiologist and Dr. Donald
Decedent arrived at St. Michael‘s on Thursday, July 13, 1989, two weeks after his admission to St. Joseph‘s. He was immediately placed in the telemetry unit under the care of Drs. Goldfarb and Rubenstein. Being placed in the telemetry unit meant that the patient was connected automatically to a cardiac monitor under continuous observation. Dr. Rubenstein performed a series of electro-physiological tеsts on Friday, July 14. He concluded that the major arrythmia problem, the ventricular tachycardia, was “benign” in that it could not be electrically induced. In an attempt to control the arrythmia with medication, he prescribed two drugs, Tenormin and Quiniglute. Late Friday afternoon, Dr. Goldfarb, with whom Dr. Rubenstein had been conferring, left for the weekend and turned decedent‘s general cardiac management over to Dr. Adolph Senft, the cardiologist who was covering for him. In the meantime, decedent had missed his Friday dialysis treatment, and after inquiry from his family, Dr. Goldfarb, on that Friday evening, telephoned Dr. W.R. Chenitz, chairman of St. Michael‘s nephrology department, to arrange to have decedent dialyzed the next day, Saturday. As Dr. Chenitz was also planning to be away that weekend, he turned decedent‘s nephrology care over to another nephrologist, Dr. Bassam Haddad.
Dr. Haddad visited decedent in the telemetry unit at 7:30 a.m. on Saturday. He reviewed the chart, noted the electro-physiologically confirmed diagnosis of non-sustained ventricular tachycardia as well as decedent‘s various other diagnoses, gave decedent a physical examination, and was satisfied that his condition was stable. It was his judgment that the dialysis could and should proceed, and he wrote the order for a three-and-a-half hour dialysis treatment to take place that afternoon. Half an hour later, at 8 a.m., Dr. Senft was telephoned by a telemetry-unit nurse who advised him that decedent had developеd a junctional rhythm, an abnormality indicating potentially serious risk to the patient. Dr. Senft immediately went to the unit, verified that that
Decedent was taken to the dialysis unit at about noon. It is undisputed that he arrived there unconnected to a cardiac monitor although no order had been written in decedent‘s chart discontinuing the monitoring. It is also undisputed that Dr. Haddad‘s dialysis order did not mention monitoring although the dialysis unit had a monitor. It was never clearly established by whom or by whose order decedent was disconnected before leaving the telemetry unit. Apparently, although the decedent‘s full chart accompanied him to the dialysis unit, the practice in the dialysis unit was for the dialysis nurse to concern herself only with the nephrologist‘s dialysis order. Angelina Forshage, the original attending nurse, was not even aware that decedent had come to dialysis from the telemetry unit. In any event, in preparing decedent for dialysis, she noted that he had an irregular heartbeat. She did not, however, report this finding to a physician although she did discuss with Dr. Haddad, by telephone, details regarding the dialysis solution he had prescribed.
The dialysis treatment began at about 12:30 p.m. Forshage checked decedent‘s vital signs half an hour later, again twenty minutes later, and then forty-five minutes after that. At 2 p.m., after making her last check, she left for lunch and turned decedent over to another nurse, Lily Matulac. Matulac first checked decedent‘s vital signs at 2:25 p.m. She found him unresponsive with no blood pressure. An alert code was called, and decedent was eventually resuscitated. He had, however, sustained irreversible brain damage as a result of loss of oxygen and remained in a coma. He died a month later without regaining consciousness. Plaintiff‘s experts all opined that had his heart been monitored
Plaintiff Nancy Weiss, executrix of decedent‘s estate and of the estate of his widow, Christine Wood, who died a year after he did, commenced this malpractice action against St. Michael‘s; the two nurses; two residents, Drs. Matthews and Guma, who had attended decedent in the telemetry unit; and all the attending doctors, Drs. Rubenstein, Goldfarb, Senft, Haddad and Chenitz. Prior to trial, partial summary judgments were granted dismissing Dr. Chenitz and the two residents. Following the close of plaintiff‘s proofs at trial, her claims against Dr. Goldfarb and the two dialysis nurses were dismissed pursuant to
As to the partial summary judgments, we carefully reviewed the record, and we are satisfied that plaintiff‘s proofs against Dr. Chenitz and the two residents failed to make a prima facie case against any of them. See Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146 (1995). We affirm those judgments substantially for the reasons stated by the respective motion judges.
That leaves plaintiff‘s claims against the nephrologist, Dr. Haddad, and the two nurses in the dialysis unit. We conclude that it was error for the trial judge to have dismissed as against Nurse Forshage but not as against Nurse Matulac. We are also satisfied that plaintiff‘s case against Dr. Haddad was substantially prejudiced by the trial court‘s error in not permitting plaintiff to call Dr. Chenitz as a rebuttal witness or to use his deposition on cross-examination. There must consequently be a new trial as to these two defendants.
Our analysis of the case against Dr. Haddad and Nurse Forshage and our conclusion of error affecting their exculpation from liability, one by the judge and the other by the jury, is premised on the unanimous assertion by all the cardiologists who testified, both parties-defendant and experts for both sides, that decedent should not have been disconnected from the cardiac monitor when he went from the telemetry unit to the dialysis unit or, at least, that if he needed to be disconnected for purposes of transport from one unit to the other, he should have been reconnected when he got to the dialysis unit. The leitmotif of that expert testimony is not only that decedent needed the monitoring because of the complex and threatening nature of his cardiac problems, but, even more significantly, that once monitoring has been ordered by a physician, medical and hospital protocol requires a specific order to discontinue monitoring before a patient can be disconnected. There is no question that there was no order in decedent‘s chart for the discontinuation of monitoring. Drs. Rubenstein and Senft testified, moreover, that without such an order, which neither gave nor would have given at that juncture, it was their assumption that monitoring would be maintained in the dialysis unit. The question
While the inference is unavoidable that decedent was disconnected from the monitor before leaving the telemetry unit, there is nothing in the record to suggest who in fact did the disconnecting or under whose authority it was done. This brings us to Dr. Haddad‘s testimony. Dr. Haddad, to be sure, examined dеcedent and read his chart, including the arrythmia studies, on the fateful Saturday morning before the onset of the junctional rhythm. He ordered the dialysis for that afternoon, therefore, without knowledge of that subsequent event, and there is nothing in the record to indicate that he reviewed the chart again or had any other contact with decedent or his cardiologists between the 7:30 a.m. examination and the 12:30 p.m. start of dialysis. In any event, it was his testimony that when he evaluated decedent that morning, he was satisfied that his condition was entirely stable, his vital signs were good, and he was on appropriate rhythm-controlling medication. And although he was aware that decedent, as a telemetry unit patient, was on a cardiac monitor and had also been monitored while being dialyzed at St. Joseph‘s Hospital, he noted that decedent had tolerated that treatment well and with no problems. He made the judgment, therefore, that decedent did not need to be monitored while on dialysis that afternoon and his dialysis order was silent on that subject.
Thus, on cross-examination, Dr. Haddad was specifically asked if he had made “a decision on July fifteenth that Mr. Wood did not need to be monitored,” and his answer was an unequivocal affirmative. He also denied that there was then in place a hospital policy requiring the nephrologist to consult, on a case-to-case basis, with the cardiologist caring for the patient to determine whether cardiac monitoring during dialysis was indicаted. Dr. Haddad‘s expert witness, also a nephrologist, opined that Haddad‘s non-monitoring judgment was entirely unexceptionable based on decedent‘s physical condition when Haddad evaluated him, testifying further that patients with non-sustained ventricular
We cannot, of course, know why the jury exculpated Dr. Haddad.3 It is, however, as likely as not that it accepted as professionally sound Dr. Haddad‘s judgment that decedent did not require a monitor while he was being dialyzed and that Dr. Haddad, even though a nephrologist and not a cardiologist, was professionally competent to make that independent judgment. If this were all, we would be constrained to conclude that the evidence would support that view of the matter. The problem, however, is this. Plaintiff intended to call Dr. Chenitz, the chairman of the nephrology department at St. Michael‘s, as a rebuttal witness to counter the testimony of Dr. Haddad and his expert witnеss in this regard. There was no question as to the nature of the proffer. As plaintiff made clear to the trial court, she was seeking testimony from Dr. Chenitz consistent with his pretrial deposition, at which he testified that the hospital policy respecting the cardiac monitoring of dialysis patients was for the decision to be made on a case-to-case basis. As to who was to make that decision, Dr. Chenitz had explained that
... it would depend on the circumstances of the individual case. However, in the final analysis, procedures ordered in dialysis are ultimately the responsibility of the
nephrologist, but the discretion for ordering cardiac monitoring in, say a patient who was primarily the responsibility of the cardiologists, and who is being treatеd by the cardiologists for a cardiac condition, would be evolved in consultation with the cardiologists. It would not be appropriate for a nephrologist to singlehandedly determine the protocol for monitoring that kind of patient.
We think it plain that testimony of this tenor was highly relevant to the issue of Dr. Haddad‘s liability. There was certainly evidence from which the jury could have inferred that the dialysis order written by Dr. Haddad should have included an order for cardiac monitoring. After all, what went on in the dialysis unit was his responsibility, there was a cardiac monitor available there, and he certainly was aware that the dialysis nurses who execute the dialysis order take their instructions only from the dialysis order without reference to the complеte chart. It is therefore inferable that had he not made the independent judgment that decedent did not need monitoring despite the fact that he was in the telemetry unit and had been monitored while on dialysis in St. Joseph‘s, he would have included monitoring in his dialysis order. As such, Dr. Chenitz‘s proffered testimony would have been the only unequivocal evidence in the case that even at St. Michael‘s, the decision about monitoring a patient such as decedent was, as a matter of proper medical practice and department policy, not the nephrologist‘s alone to make. We are also satisfied that the jury could well have inferred from the evidence that Dr. Haddad should have consulted with the cardiologists, and had he dоne so, they would have insisted on continuing the monitoring during dialysis with the probable result that decedent would not have died as and when he did. We have no doubt, therefore, that Dr. Chenitz‘s testimony was material. Since it was directly responsive to the testimony of Dr. Haddad and his expert, we are satisfied that it was an entirely proper subject for rebuttal.
We recognize that as a general rule the trial court has a wide range of discretion regarding the admissibility of proffered rebuttal evidence. See, e.g., Dalton v. Gesser, 72 N.J. Super. 100, 117, 178 A.2d 64 (App.Div. 1962). Nevertheless, it is clear that the court mistakenly exercises that discretion when, as here, its ruling unfairly prevents a plaintiff from attempting to rebut a material
Plaintiff also complains about being barred from using Dr. Chenitz‘s deposition testimony on her direct case as the deposition of a party pursuant to
We conclude differently with respect to the cross-examination of Dr. Haddad‘s expert. Any deposition may be used to impeach any witness.
For these reasons, we conclude that there must be a new trial with respect to Dr. Haddad‘s liability.
With respect to Nurse Forshage, we do not understand the dismissal as against her at the close of plaintiff‘s proofs. Plaintiff‘s nephrology expert, as we have noted, runs a dialysis unit in a major metropolitan hospital. Part of his responsibility is the supervision of nursing practices and standards. We think it plain that his area of expertise encompassed standards of nursing practice in the dialysis unit. He testified that when a dialysis nurse detects an irregular heartbeat, she is obliged immediately to so notify the physician. Nurse Forshage failed to do so when she noted decedent‘s irregular heartbeat before dialysis was started. The jury was free to find that that failure constituted a deviation from the applicable standard of care by a dialysis nurse and contributed to the tragic outcome of this dialysis treatment.
Plaintiff also argues that both nurses were negligent in not making more frequent checks of decedent‘s vital signs. The fact of the matter, however, is that Nurse Forshage left the unit before the cardiac arrest and that Nurse Matulac followed the unit‘s practice of vital-sign checks every twenty minutes or so. The actions of neither in this respect can be regarded either as deficient or causative.
Although we remand for a new trial on the liability of Dr. Haddad and Nurse Forshаge, we consider issues related to the hospital‘s adjudicated liability. To begin with, we see no reason why that issue should be relitigated. None of the errors we have identified affects the question of the hospital‘s liability at all. We are also satisfied that there is no reason not to bind all parties to the damages award. The jury was instructed to set damages at an amount that would fairly compensate plaintiff for the total
One final issue remains. Plaintiff argues that she was entitled to have the jury given an “ultimate outcome” charge, namely, an instruction that irrespective of the amount of the verdict returned against the hospital, the hospital was, as a matter of law and by reason of
In rejecting plaintiff‘s argument that the jury should have been instructed as to the hospital‘s limited liability, this court had this to say:
Plaintiff was of the view that at trial defendants sought to cast the entire blame for the tragic disconnection of Mrs. Johnson‘s respirator upon the Hospital itself. If successful, that tactic would shield the individual defendants, whose potential liabilities, unlike that of the hospital, were unlimited. To counteract that tactic, plaintiff requested the trial judge to instruct the jury that if the hospital was negligent, plaintiff‘s recovery against it would be limited to $10,000. The trial judge declined to charge as requested. Plaintiff argues that this ruling was error. If the requested instruction was to have any effect upon a jury‘s verdict, it could only be to persuade the jury to shift to the other defendants some amount for which it had concluded the hospital, and not the other defendants, was justly responsible. By the enactment of
N.J.S.A. 2A:53A-8 , the legislature determined that, as a matter of social policy, an injured beneficiary of the hospital‘s works, can shift only a limited share of the consequences of the hospital‘s negligence to the hospital itself. But there is no reason to believe that a purpose of the statute was to shift any part of those consequences to other parties merely because they happen to be caught up in the same lawsuit as the hospital. We agree with the trial judge that a charge leading to that result would be unfair and inappropriate. In that respect, we think that the situation presented by this case is different from situations in which an ultimate outcome charge has been held to be required. See Roman v. Mitchell, 82 N.J. 336, 345-347, 413 A.2d 322 (1980); Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518, 485 A.2d 338 (Law Div. 1984). [Footnote omitted.][Johnson, 239 N.J. Super. at 325, 571 A.2d 318.]
Our reexamination of the Johnson holding leads us to a different view. It is certainly true, as Johnson points out, that the individual defendants may be prejudiced if the jury knows that the hospital is only liable to the extent of $10,000 since, in that case, the jury might be inclined, out of sympathy for the plaintiff, to attach liability to those whom it might otherwise find not liable at all. But there is another side to that coin. If the jury does not know that the hospital‘s liability is limited, it might just as well conclude that plaintiff‘s full recovery can be had against the corporate party, which it may well assume to have the deeper pocket, and it may therefore believe that it can more certainly
In our view, the right of a plaintiff to an ultimate outcome charge in comparative negligence cases offers the closest and most instructive analogy. In dealing with that issue as a matter of first impression, the Supreme Court, in Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322 (1980), concluded that with respect to the allocation of percentages of fault, a jury should not operate in a vacuum or based on a possible mistaken notion of how the applicable statute operates. This is so because “a jury informed of the legal effect of its findings as to percentages of negligence in a comparative negligence trial is better able to fulfill its fact finding function.” Id. at 346, 413 A.2d 322. (Emphasis added.) The Supreme Court has recently reaffirmed the principle that where the legal right of a plaintiff to recover the damages the jury has awarded is at stake, the jury can best and most fairly perform its fact-finding function if it understands exactly how the law applies to its verdict. Thus in Fischer v. Canario, 143 N.J. 235, 670 A.2d 516 (1996), the Court held that in a Scafidi4 case, an ultimate outcome charge should be given for this reason:
The value of an ultimate outcome charge in lost-chance cases is that it informs the jurors of the effect of their causation apportionment. The charge makes clear to
jurors that they are to award full damages, and the trial court will make any necessary adjustments in light of their findings. Without the charge, there is the risk that the jurors will reduce their damage award in light of the apportionment of fault they find as part of their verdict. Then, once the trial court makes the same reduction, the plaintiff would receive an inadequate recovery. When a Scafidi damage-apportionment rule is applicable, an ultimate outcome charge generally should be given. [Fischer, 143 N.J. at 254, 670 A.2d 516.]
Fischer makes it plain, moreover, that this extension of the ultimate outcome charge to Scafidi cases is a natural and ineluctable progression from Roman v. Mitchell, supra. Thus, the Fischer Court noted that in Roman,
[w]e emphasized that “a jury informed of the legal effects of its findings ... is better able to fulfill its fact finding function.” Id. at 345-46, 413 A.2d 322. See also State v. Mejia, 141 N.J. 475, 485, 662 A.2d 308 (1995). (“As we have repeatedly stated, trial courts ... must inform juries of the effect of their findings.” (citations omitted)); Campo v. Tama, 133 N.J. 123, 140, 627 A.2d 135 (1993). (“We have always emphasized that juries must understand the import of their findings.“) (O‘Hern, J., dissenting); Chavanne v. Clover Financial Corp., 206 N.J. Super. 72, 80-81, 501 A.2d 1024 (App.Div. 1985) (holding that ultimate outcome charge should be used to inform a jury of fact that its award will be subject to court‘s control until child reaches age of maturity); Dimogerondakis v. Dimogerondakis, 197 N.J. Super. 518, 485 A.2d 338 (Law Div. 1984) (holding that ultimate outcome charge, which would inform jury that any damages awarded to plaintiff in personal injury action would be molded to reflect only that percentage of liability which jury attributes to nonsettling defendant, was warranted).
[Fischer, 143 N.J. at 252, 670 A.2d 516.]
We see no fundamental jurisprudential difference between Roman and Fischer on the one hand and this case on the other. The underlying issue is the same, namely, how the jury‘s damages award, as a matter of substantive law, will translate into the plaintiff‘s right to recover it.
We reject the argument that a jury‘s knowing about the statutory limit on a hospital‘s liability is akin to its knowing whether or not a defendant is insured. Insurance goes to the question of whether a plaintiff, as a matter of fact, will be able to collect the damages the jury has awarded. The statutory limit on a hospital‘s liability, like comparative negligence and Scafidi apportionments, goes, however, to the issue of plaintiff‘s legal right to recover the damages awarded. It implicates, in Roman terms, a “legal effect
With respect to the “sympathy” factor that defendants fear, we say only this. Our entire system for the administration of justice is built upon our trust in the jury system and our abiding confidence that juries act conscientiously and diligently in following the instructions given them by the judge. We trust juries to find all kinds of facts — in life and death issues as well as the full range of less consequential ones. Our jurisprudence is committed to the proposition that juries can and will follow the judge‘s charge and will do so best if they understand the legal consequences of their findings. A jury‘s potential passion and prejudice that may favor one or the other of the parties can most effectively be averted by cautionary instructions accompanying a charge that tells it fully and correctly how the law will affect its findings of fact.
We add this final caveat. The 1991 amendment of
The partial summary judgments dismissing the complaint as to defendants Chenitz, Matthews, and Guma are affirmed. The order entered at the close of plaintiff‘s proofs dismissing the complaint as to Dr. Goldfarb and Nurse Matulac is affirmed. The order entered at the close of plaintiff‘s proofs dismissing the complaint as to Nurse Forshage is reversed. We reverse the judgment of no cause for action in favor of defendant Dr. Haddad. We affirm the judgment of liability against St. Michael‘s Medical Center and the damages award of $150,000. We remand for a new trial against Dr. Haddad, Nurse Forshage, and the hospital consistent with this opinion.