Opinion
DOCKET NO. A-4773-11T3
09-04-2014
JAMES CARATOZZOLO by his Guardian ad Litem Kathleen Caratozzolo, and KATHLEEN CARATOZZOLO, individually, Plaintiffs-Appellants, v. PATRICK DAVIS, M.D., MIN SU, M.D., KENNETH S. STERNBERG, D.O., EMERGENCY MEDICAL ASSOCIATES OF NEW JERSEY, P.A., UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY, ROBERT WOOD JOHNSON UNIVERSITY MEDICAL GROUP, ROBERT WOOD JOHNSON UNIVERSITY MEDICAL GROUP, P.C., MEDICOR CARDIOLOGY, P.A., BARBARA JO McGARRY, M.D., and SEBASTIAN T. PALMERI, M.D., Defendants, and JEFFREY P. LEVINE, M.D., NORMA CORTINAS, M.D., ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL, ROBERT WOOD JOHNSON HEALTH SYSTEM, ROBERT WOOD JOHNSON HEALTH CARE CORP., DANIEL SHINDLER, M.D., and CYNTHIA CHRISTENSEN, C.S., Defendants-Respondents.
Susan B. Fellman argued the cause for appellants (Breuninger & Fellman, attorneys; Ms. Fellman and Kathleen P. Ramalho, on the briefs). Rudolph A. Socey, Jr., argued the cause for respondents Jeffrey P. Levine, M.D. and Norma Cortinas, M.D. (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Mr. Socey, on the brief). Paul Daly argued the cause for respondents Robert Wood Johnson University Hospital, Daniel Shindler, M.D., and Cynthia Christensen, C.S. (Hardin, Kundla, McKeon & Poletto, attorneys; Mark S. Kundla and Zachary D. Wellbrock, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Carroll and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7495-06. Susan B. Fellman argued the cause for appellants (Breuninger & Fellman, attorneys; Ms. Fellman and Kathleen P. Ramalho, on the briefs). Rudolph A. Socey, Jr., argued the cause for respondents Jeffrey P. Levine, M.D. and Norma Cortinas, M.D. (Lenox, Socey, Formidoni, Giordano, Cooley, Lang & Casey, LLC, attorneys; Mr. Socey, on the brief). Paul Daly argued the cause for respondents Robert Wood Johnson University Hospital, Daniel Shindler, M.D., and Cynthia Christensen, C.S. (Hardin, Kundla, McKeon & Poletto, attorneys; Mark S. Kundla and Zachary D. Wellbrock, on the brief). PER CURIAM
After a nearly three-month medical malpractice trial, the jury returned a no cause of action verdict on February 3, 2012. Two months later, plaintiffs' Rule 4:49-1 motion for a new trial was denied. We affirm.
Plaintiffs are James Caratozzolo and Kathleen Caratozzolo, his wife, individually and as James' guardian ad litem. Plaintiffs allege that injuries resulted from failure to timely diagnose and treat Caratozzolo's aortic dissection by defendants Patrick Davis, M.D., Jeffrey P. Levine, M.D., Min Su, M.D., Norma Cortinas, M.D., Kenneth S. Sternberg, D.O., Robert Wood Johnson University Hospital (RWJUH), Robert Wood Johnson Health System, Robert Wood Johnson Health Care Corp., Emergency Medical Associates of New Jersey, P.A., University of Medicine & Dentistry of New Jersey (UMDNJ), Robert Wood Johnson University Medical Group, Robert Wood Johnson University Medical Group, P.C., Medicor Cardiology, P.A., Barbara Jo McGarry, M.D., Daniel Shindler, M.D., Sebastian T. Palmeri, M.D., and Cynthia Christensen, C.S.
This and other references to "Caratozzolo" are only to James.
The jury found only Cortinas, a third-year family medicine resident, and Christensen, a certified cardiac sonographer, deviated from the applicable standard of care. The jury also determined, however, that the deviations did not increase the risk of harm posed by Caratozzolo's condition and the surgery necessary to correct it. This appeal is from the no cause verdicts returned as to Levine, Cortinas, Shindler, Christensen, RWJUH, and UMDNJ.
We recite the following from our review of the record. At approximately 5:00 p.m. on September 19, 2004, Caratozzolo, who was then forty-four, experienced significant chest pain while cutting tree limbs in his yard. When he arrived at the emergency room at RWJUH, he complained of constant chest pain, tingling in his fingers and the left side of his face, blurry vision, sweating, nausea, and vomiting. Davis, an emergency room physician, ordered a variety of tests, including an EKG and blood work. Although the tests suggested a myocardial ischemia, the results did not rule out either a myocardial infarction (MI) or heart attack. He was administered nitroglycerine, which relieved his chest pain. Shortly thereafter, Caratozzolo complained of chest pressure and began repeating questions, a neurological symptom known as "perseveration." A CT scan of the head was negative.
Caratozzolo was transferred out of the emergency room into the care of Su, the family medicine resident on call that night. At 1:45 a.m. on September 20, Su examined Caratozzolo, who at that point had no complaints of chest pains or other symptoms. Because he kept forgetting questions he was asked, Su obtained Caratozzolo's medical history from his wife. At that juncture, his blood pressure, respiration, pulse rates and chest x-ray were normal. Caratozzolo was not in acute distress.
Upon discovering a new heart murmur, Su called the attending family medicine physician, McGarry, who was responsible for the care and treatment provided by the on-call resident, Cortinas. Su and McGarry reviewed Caratozzolo's symptoms, test results, and history. McGarry thought Caratozzolo's troponin level, which would indicate damage to one heart muscle, was elevated but agreed that a single test was not enough to diagnose a heart attack. She ordered serial enzymes drawn over the next twenty-four hours.
In order to ascertain the cause of the murmur, McGarry and Su decided to obtain a cardiology consult and a "stat" two-dimensional echocardiogram. McGarry knew the hospital's echo lab was closed until morning and that cardiac fellows were available to read echocardiograms but did not know if they would come to the hospital during the night to test a stable patient. For that reason, McGarry and Su decided Caratozzolo's stat two-dimensional echocardiogram could wait until morning.
At 8:00 a.m. on September 20, Levine, the attending physician on the family medicine hospital service met with Cortinas and Su to discuss Caratozzolo's status. Levine and Cortinas then assumed responsibility for his care. After being informed of the new murmur, Levine directed Cortinas to get the echo test results; it was her responsibility to obtain them. Levine, like McGarry, understood that a cardiac fellow would not come to the hospital at night to read a stat echo on a patient who was stable and free of chest pain.
Because of the murmur and the perseveration, Levine requested consults with Stephanus Busono, M.D., a neurologist, and Sternberg, a cardiologist. Levine considered an aortic dissection possible, but unlikely given plaintiff's age, symptoms, x-ray findings, and relief on treatment.
At 10:20 a.m., a nurse wrote on Caratozzolo's chart that he complained of tingling in his right hand and coldness and numbness in his right arm. Cortinas confirmed that his right pulse was weak, but she was not concerned because uneven pulses were not uncommon. Cortinas could not recall if she told Levine about Caratozzolo's complaints or discussed her assessment with him. At some point during the day, she informed Levine that Caratozzolo's uneven pulses resolved.
In September 2004, Shindler was the medical director of the echo lab at RWJUH, Palmeri was the cardiologist who also read echoes, and Denise Cleary was a sonographer, the lab supervisor, and lead technician. Shindler and Palmeri worked for UMDNJ; Cleary worked for RWJUH.
Cleary trained the technicians, including Christensen, who were required to bring severe abnormalities to her attention, including dilated aortic roots that measured 5.0 centimeter (cm.) or greater at the cusp. Technicians were not required to report such measurements found further up the aorta. The technicians would record their preliminary findings on a worksheet mainly used for educational purposes. Cleary reported to Shindler, whose role was to ensure that the lab complied with national accrediting standards and guidelines, supervised the work of the medical and technical staff, and determined the quality and appropriateness of the care provided.
Christensen had been working at the echo lab for about eighteen months and was sufficiently qualified to perform such studies on her own. She was not trained to look for intimal flaps, defined as a piece of the aorta's inner lining that, if depicted on the study, would indicate a tear in the aorta's wall or an aortic dissection.
Protocol required the first person who arrived in the echo lab to print and review all requisitions to determine if there were any stats to be completed. Once the studies were prioritized, the technicians would determine if the patients could be brought to the lab. The morning of September 20, Caratozzolo was brought to the lab where, from 11:45 a.m. to 12:12 p.m., Christensen performed a 2D echo with Doppler. She took the required views of the heart, measured the aortic valve at the cusp as 3.9 cm., and recorded the measurement on her worksheet.
Because she observed aortic insufficiency, Christensen took additional views at the aortic valve. She measured the root size in the ascending aorta as 6.17 cm. Christensen testified that she did not know that this measurement indicated a dilated aortic root, that she had never received training on how to recognize dilated aortas, and that she did not record this measurement on her worksheet. She was required to make one measurement of the aortic valve, which she had already done at the cusp. Christensen took additional views of plaintiff's aorta, did not observe the presence of an intimal flap, but recorded on her worksheet that Caratozzolo had trace mitral regurgitation and moderate aortic insufficiency.
After Christensen finished the study, she indicated on Caratozzolo's chart that the 2D echo was done on "9/20/04," and the chart was returned with the patient. His worksheet, requisition form, and billing sheet were placed in the jacket or sleeve of the tape with his echo, along with the worksheets and paperwork for two non-stat echoes she had performed earlier that morning and recorded on the same tape. On the cover, Christensen wrote the names of the patients and the numbers identifying where their studies could be located on the tape. The tape was then placed on a table for a physician to read.
Christensen testified that lab protocol did not require her to identify the study as having been completed on a stat basis, to place a stat study in a special area, or to take it directly to Shindler, Palmeri, or Cleary. The doctors would read the tapes on the table with the accompanying paperwork, and tapes on the table without paperwork could be used again for other studies.
Christensen testified that stat echoes were treated the same as non-stat echoes. She did not recall any special procedures for bringing these results to the attention of the physician, and she understood the word "stat" to mean merely that the reading should occur within twenty-four hours. Christensen was required to report the results immediately to a physician if she found one of three abnormalities: a cardiac tamponade, a very large pericardial effusion, and stenosis. Other abnormalities she recorded on her worksheet.
Shindler agreed that sonographers should attempt to avoid using tapes left on the table with paperwork attached. At 1:52 p.m., however, another sonographer used the tape with plaintiff's echo to begin a fourth study which ended at 4:16 p.m. This study was completed before the other three echoes were read.
Shindler confirmed that stat-ordered echoes were not read more quickly than non-stat ones. Priorities depended on additional circumstances such as calls from ordering physicians, or requests by sonographers based on abnormalities that they observed when conducting the test. Had Caratozzolo's treating physician requested the study be given priority status, it would have been read earlier. Had the requisition form listed certain diagnoses, such as a new murmur, it would have been read earlier. The lab received up to thirty studies each day, including many stats. Cardiology fellows would complete stat echocardiograms during the night if requested to do so.
In 2004, there was no written policy regarding giving a priority reading to a stat echo, for using separate tapes, grouping stat echoes separately, or bringing stat echoes to the attention of the lab physicians. In Shindler's view, it was safer to put all the tapes in the same place based on his twenty-five years of experience. There was no policy regarding labeling of a completed study as stat-ordered. Labels or notes on tapes at times fell off and got lost, and verbal communications were therefore encouraged. Stats had been handled in this fashion since 1986.
The goal, however, was to read all in-patient studies by the end of the day. At the end of each day, Shindler looked at all of them to determine if they could wait. There were two tapes of in-patients on the table on the night of September 20, 2004, including Caratozzolo's. Stat studies were rarely left for the next day, although it happened on occasion. Sonographers sometimes used tapes with paperwork for additional studies or taped over earlier ones, although the practice was discouraged. Sonographers were required only to perform the studies, not to make diagnoses.
Contrary to Christensen's testimony, however, Shindler said sonographers were required to bring to his attention any observations they made of conditions that they did not understand. He expected sonographers to look at the aortic root, to recognize whether it was dilated, and to let him know if it measured 5.5 cm. or greater. Although sonographers' worksheets were used solely for teaching purposes, he reviewed them before going home at night to determine which could be left for the following day.
Cleary expected an experienced sonographer to recognize a severely dilated aorta read of 5.0 cm or greater. They were instructed to measure the aortic root in the area of the aortic valve or cusp and to record it on the worksheet, which Christensen did. Cleary trained sonographers to advise her of severe abnormalities and to make a note on their worksheet. In her view, Christensen met and exceeded standard protocol by taking additional views when she saw moderate aortic insufficiency.
Palmeri agreed that there was no lab policy regarding priority reading of stat ordered echoes. The speed with which it was read depended on contacts from the physician who ordered the test. Generally, his testimony agreed with that of the others insofar as the reading of test results.
After hospital rounds on September 20, 2004, Palmeri returned to the echo lab by 2:00 p.m. He was asked by a sonographer to read the fourth study on plaintiff's tape, the one that had been completed at 4:16. He did not, however, read the first three studies on the tape until the following day.
Returning to September 20, sometime between 12:00 and 1:00 p.m., before leaving the hospital to see patients, Levine met with Cortinas. He assumed that Cortinas would have confirmed whether the test had been performed. He did not call the lab. Levine expected the reading physician to notify him if results were abnormal and for the consulting cardiologist to pursue the test results.
Cortinas acknowledged that by midday she would have seen Christensen's note that the echo had been completed. She did not contact the lab for the results, believing that it was the responsibility of the consulting cardiologist to follow up.
At 12:12 p.m. on September 20, Busono examined Caratozzolo, who was awake, alert, and oriented but continued to have abnormal short-term memory recall. Busono felt that this indicated some compromise of oxygen to the area of the brain that controlled memory and recommended a higher dose of aspirin, an MRI of the brain to rule out a stroke, and a workup for cardiac ischemia. He noted that Caratozzolo seemed to be stabilizing.
Sternberg, board certified in internal medicine, examined Caratozzolo around 2:00 p.m. He noted that the initial symptoms had begun to resolve, and that Caratozzolo's EKG, chest x-ray, CT scan of the head, and bloodwork were normal, except for borderline elevated troponin levels. He had a regular heart rate and rhythm with two murmurs, one at the aortic area as well as a long diastolic murmur. Because of Caratozzolo's stability since arriving at the hospital, none of the conditions he wanted to rule out included aortic dissection. In Sternberg's limited experience, patients with aortic dissections arrived in the emergency room in shock, in pain, and with low blood pressure and became hypertensive after suffering the aortic tear. He had only diagnosed two in the emergency room during his seventeen-year career as a physician because it was a rare circumstance.
Sternberg's handwritten note indicated that the "echo report/tape" should be checked; in his view, anyone with a new heart murmur needed an echo to determine which valve was affected. The results of the 2D echo were nonetheless not urgent because Caratozzolo was stable. He did not intend to go to the lab to read the tape and it was not his role to do so. Sternberg assumed that if an abnormality was found, he would be contacted by a physician from the lab or a resident. Cortinas and Levine, however, understood Sternberg's note to mean that Sternberg would get the results from the cardiologist or personally review the tape.
Sternberg recommended a carotid Doppler, aspirin and Plavix, an anti-platelet medication. He recommended the Plavix based on Caratozzolo's chest pain and risk factors, and the marginally abnormal readings on the two troponin tests. That combination of aspirin and Plavix was regularly employed for patients with acute coronary syndrome to prevent blood clots. They were typically administered before stent surgery or catheterizations. Should open heart surgery become necessary, he would deal with bleeding complications later. Sternberg administered Plavix to ninety-nine percent of all patients with acute coronary syndromes who appeared in the emergency room, with the exception of patients who arrived with active bleeding.
At 2:36 p.m., Cortinas ordered the Plavix. Caratozzolo received his initial dose at 4:00 p.m. on September 20.
None of the clinicians, including attending physicians from four different specialties, believed that Caratozzolo was having an aortic dissection. Around 6:30 p.m. on September 20, 2004, Caratozzolo complained of tightness in his mid-chest and throat, and felt uneasy and anxious. After examining him, Cortinas attributed his symptoms to anxiety. She did not recall speaking to Levine about those complaints or her assessment. There was no indication on his chart that Cortinas called the echo lab before her shift ended. Prior to September 2004, she never had a patient with an aortic dissection, and believed the classic signs would have been a tearing pain and a widened mediastinum, neither of which Caratozzolo experienced.
At 5:50 a.m. on September 21, Su examined Caratozzolo, who continued to appear to be improving. Su told Cortinas to check on the status of the echo test, which was his routine. He did not believe the patient displayed symptoms of aortic dissection. In fact, prior to Caratozzolo's case he had never seen or treated a patient with the condition. On September 21, Levine saw Caratozzolo, who continued to stabilize and whose memory had improved. Now, however, Caratozzolo developed a diastolic murmur.
Palmeri read the echo study on September 21, 2004. He indicated in the report that Caratozzolo had a "markedly dilated proximal aortic root," "severe aortic insufficiency, trace mitral regurgitation," "normal left atrium size," and "normal left ventricular size and contractility." He identified neither an intimal flap nor aortic dissection.
That morning, Caratozzolo underwent a carotid Doppler at the vascular lab, an ultrasound of the carotid arteries to determine if there was blockage. Sternberg received a call from the lab advising that Caratozzolo had a dissected left carotid artery that might have traveled into the aorta. Sternberg had a nurse or technician call the echo lab, only to learn that he had a markedly dilated aortic root and severe aortic insufficiency.
Sternberg recommended a CT scan of the chest, which Cortinas ordered, and Tyrone Krause, a cardiothoracic surgeon, was contacted. The chest scan was completed at 12:12 p.m. confirming an "aneurysmal dilation of the ascending thoracic aorta with associated type A dissection." Additionally, the chest scan showed plaintiff's aorta was dilated to slightly greater than 8 cm.
Type A dissections involved the ascending aorta and required surgery, whereas Type B dissections involve descending aorta and were usually managed with medicine. Sternberg testified that every hour a patient had an untreated ascending aortic dissection, the risk of death is one to two percent. Levine agreed that Type A dissection was a medical emergency requiring surgery.
Krause's operating room record noted "severe disease life at risk." Before surgery, Krause reviewed Caratozzolo's chart and determined that he was hemodynamically and neurologically stable. Krause met with Caratozzolo to explain the benefits and risks of the procedure, including bleeding and stroke. To counteract the Plavix, Krause gave him platelets and tried to minimize the risk of bleeding by moving the surgery quickly.
Caratozzolo's aortic wall was very thin and friable because of the split layers. During surgery, Krause manipulated the area near the major vessels that went directly to the brain. As he explained to the jury, he warned Caratozzolo that this manipulation could result in a clot breaking off or air entering the vessels. It was difficult to eliminate these possibilities, which could result in a stroke. Although the procedure itself was unremarkable, Caratozzolo experienced an unusual amount of bleeding and his chest was left open to be closed later once he was stable.
Twenty-five minutes after arriving in the critical care unit, Caratozzolo's blood pressure dropped. Over the next two hours and fifteen minutes, at least three litres of blood was suctioned from his chest. Following this episode, he was sedated, making it impossible for a neurological examination to be conducted.
On September 24, Caratozzolo had surgery to remove an embolus or blood clot in his right leg. On September 26, 2004, a CT scan of his head showed that he suffered multiple strokes after his surgery. During his post-operative period, he also suffered kidney, liver, brain, and intestinal failure, as well as cardiac arrest.
Krause explained that Caratozzolo suffered an embolic stroke. When asked by a defendant's attorney how the stroke likely occurred, Krause replied "[w]ell, certainly it was something I did."
Krause said that Caratozzolo was at risk from the moment of the dissection until its correction and that in his opinion the timing of the surgery did not affect the risks. He also testified that in reviewing Caratozzolo's bleeding, "it's hard to separate out how much Plavix affect versus bad aorta, and just the technical problems." In Krause's opinion, with aortic dissections, the extent of bleeding that will result is always unknown. He also stated that in his experience, when an aortic dissection occurs, "it happens all at once." Although it was possible that it stretched over a few days, Krause could not know. It was unusual to see multiple strokes, as happened to Caratozzolo. The risks of stroke and of bleeding are products of the dissection and the surgery that follows.
When released from the hospital approximately a month later, Caratozzolo was transferred to the brain trauma unit of John F. Kennedy Medical Center (JFK) with a list of twenty-three diagnoses. He was discharged in November, and as of the time of trial was driving, taking the train to New York City to visit camera shops, going to the gym, and attending therapy sessions at Kean University. He was able to do some yard work and watch television, and attended his daughter's soccer games, during which he took photographs.
Krause also testified that most patients suffering from a Type A dissection died from ruptured aortas, massive heart attacks, or shock before they reached the hospital. He named a popular actor as well as his hospital chief as examples. He stated that plaintiff was at risk from the moment of the dissection until its correction, that the timing of the surgery did not affect the risks, that in his experience a dissection usually occurs at once and did not get bigger over time, and that patients who undergo open heart surgery have a one- or two-percent chance of going back to the operating room for bleeding. The chances are higher for aortic dissection, about five percent. In Krause's view, the Plavix increased the risk by at least a few more percentage points.
Plaintiff presented experts in the fields of family medicine, emergency medicine, cardiology, cardiothoracic surgery, echocardiography, neurology, as well as a cardiologist who was the medical director of an echo lab. Relevant to the issues Caratozzolo raises on appeal is the testimony of Russell S. Breish, M.D., a board certified specialist in family medicine.
Breish testified, among other things, that Cortinas deviated from the standard of care by failing to call or go to the echo lab for plaintiff's test results after the early morning, mid-afternoon, and evening meetings on September 20. He considered Levine and Cortinas to have been responsible for Caratozzolo's care and Levine's expectation that Cortinas would obtain the results to be a deviation from the standard. Breish opined that both Levine and Cortinas deviated by assuming an employee at the lab would contact them if there were abnormalities on the test results. Breish also opined that Cortinas deviated by failing to: check Caratozzolo's blood pressure in both arms to determine if his pulse differential was trivial or important, perform follow-up examinations, and contact Levine.
Breish also considered Levine to have deviated if he was aware of the diminished pulses and did nothing, as a persistent difference could indicate damage to a blood vessel. Breish testified that Cortinas deviated by failing to consider the possibility of an aortic dissection by the early evening when Caratozzolo complained regarding tightness in his chest. He acknowledged the difficulty of diagnosing a Type A dissection and that they more commonly occurred in patients over age fifty-five. Breish further acknowledged that many patients were administered Plavix before their need for surgery was assessed. In his twenty-five years of practice, he had never diagnosed a thoracic aortic dissection.
Also relevant was the testimony of Allan Stewart, M.D., plaintiffs' expert in cardiothoracic surgery. He testified that forty percent of those suffering from a Type A aortic dissection die immediately and those remaining will sometimes be profoundly ill. When treated, they were generally in shock from cardiac tamponade, meaning blood had escaped the aorta and surrounded the heart, would be in the midst of a massive heart attack or stroke, or experiencing rapid onset of heart failure. Others arrived in pain. The "per hour mortality" rate was one percent per hour for patients who did not immediately go into surgery.
Stewart opined that Caratozzolo's risk of complication was five percent when he first presented to the emergency room and that his stable vital signs and lack of neurological deficits at the time of surgery should have enabled him to respond well. He further opined that as long as the ascending aorta was subjected to pressure, the aortic tissue would become more difficult to sew. Stewart said that Caratozzolo's risks increased because, in addition to the administration of Plavix, the diagnosis was not made until forty hours after admission.
Stewart agreed that the risks, even when surgery is performed expeditiously, included bleeding, infections, strokes, respiratory problems, additional tears, neurological deficits, sepsis, and even death. The rate of risk of such complications was about five percent.
Maureen McDonald testified as plaintiffs' expert in echocardiography, ultrasound technology, and 2D echoes. Although she characterized Christensen's 2D study as complete, accurate, and more than required by the hospital, because she took additional views, she opined that Christensen deviated from the standard of care by failing to: recognize a markedly dilated aortic root and record the dilated measurement of 6.17 cm on her worksheet. She also thought Christensen deviated by failing to recognize the intimal flap, a sign of aortic dissection, or even to recognize it as an abnormal feature.
In McDonald's view the greatest deviation was Christensen's failure to immediately communicate her findings about the aortic root size to the lab director or some other physician. A sonographer is required to recognize abnormalities, explore possible pathological conditions, and provide physicians with the information that they need to properly diagnose.
Matthew E. Fink, M.D., testified as the expert in the field of neurology. He told the jury that the forty-hour delay in diagnosis increased Caratozzolo's risk of strokes because as the dissection progressed, more clots formed within the walls of the damaged aorta. He opined that the administration of Plavix blocked proper platelet function and that Krause was well aware of this because he gave Caratozzolo a platelet transfusion in the hopes of reversing the effects of the drug in addition to keeping his chest partially open post-surgery so that proper steps could be taken in the event that bleeding occurred. Caratozzolo, due to his age, had no more than a five-percent risk of stroke at the time of admission, but the risk increased over time as his dissection progressed. It was this increased risk that was a substantial factor in bringing about the strokes. Fink acknowledged on cross examination that potential complications of cardiothoracic surgery included strokes.
Farooq Chaudhry, M.D., an associate chief of cardiology and medical director of the echo lab at a hospital at Columbia University, testified as to the care provided by Shindler, Palmeri, and Christensen. He believed that once the abnormalities were noted on plaintiff's 2D echo, additional tests such as an MRI or CT scan should have been completed immediately. Although Chaudhry stated that Christensen performed a thorough 2D echo, he considered her to have deviated from the standard of care by failing to recognize major abnormalities and report them.
Chaudhry also opined that Palmeri deviated from the standard of care by failing to immediately notify the referring or ordering physician that the echo showed a dilated aortic root and severe aortic root agitation, and by failing to recognize an intimal flap. He further opined that Palmeri deviated by failing to immediately read the 2D echo and recommend additional studies to confirm the diagnosis. Chaudhry believed that Shindler was responsible for communicating appropriate lab policies and procedures to sonographers, which included the immediate completion of stat studies. Furthermore, after completion, the results of stat studies should be immediately brought to the attention of the referring physician. He considered mixing stat studies with more routine exams to be a deviation.
Defendants also had an array of experts who testified in their behalf, mirroring the qualifications of Caratozzolo's experts. Needless to say, generally they refuted the opinions of Caratozzolo's experts.
Thomas Kwiatkowski, M.D., an expert in emergency medicine, testified as to the difficulty in diagnosing an aortic dissection, compounded by Caratozzolo's atypical symptoms. He also noted that millions of patients went to the emergency room each year with chest pain for whom CT scans were not ordered. In addition to the cost, the dye used in the scan could affect the patient's kidney while affording little additional information for the majority of patients, who, when presenting with Caratozzolo's symptoms, were ordinarily suffering from some cardiovascular difficulty.
Robert Perkel, M.D., testified as an expert in family medicine who reiterated that aortic dissections were rare compared with coronary artery disease. Perkel believed Levine and Cortinas followed accepted standards in evaluating plaintiff and developing a treatment plan as they immediately called for a consultation by a cardiologist. Given that Caratozzolo was clinically stable, they would have had no reason to expedite the echo lab results.
Perkel opined that Cortinas's evaluation of Caratozzolo on September 20 followed accepted standards of care for a third-year resident in that she interpreted Sternberg's entry in Caratozzolo's file to mean that Dr. Steinberg would pursue the echo report and get back to Levine. She also followed accepted standards by ordering the administration of Plavix as Sternberg ordered.
Mark Hochberg, M.D., a cardiothoracic surgeon, testified that in the overwhelming majority of cases of aortic dissection, the patient would hemorrhage and die before receiving medical treatment. Like Krause, he did not believe a dissection continued to extend or propagate over time. He opined that the full extent of plaintiff's dissection occurred within seconds of the event and extended to the orifice of the carotid arteries, thereby increasing the risk of stroke. He also believed the dissection was contained during the time in which Caratozzolo's symptoms stabilized, even somewhat improved with medications and fluids. In his view, the passage of time to the onset of surgery was not consequential and the risk of stroke would have been the same whether the operation occurred on the day that he was admitted to the hospital or at the time that it was performed. Once having survived to the operating room, Caratozzolo was "essentially home free and the clock restart[ed]."
Hochberg opined based on the post-operative CT scan of Caratozzolo's head completed on September 26, 2004, that he had suffered embolic strokes caused by a shower of debris creating small blockages or infarcts in the brain. Whereas Krause described operating on the blood vessel as similar to operating on wet tissue paper, Hochberg described a dissected aorta as being as difficult to stitch as "wet toilet paper" and that despite a surgeon's best efforts to reinforce it, "sometimes there's horrific bleeding afterwards." He did not believe the passage of time to surgery contributed towards the deterioration of the aortic walls. Although the combination of Plavix and aspirin certainly contributed to the risk of bleeding, it did not create a problem during the surgery and was overcome afterwards.
Martin Goldman, M.D., the director of the echocardiography department at a hospital in New York, testified as Christensen's expert. He opined that Christensen went above and beyond standard protocol by obtaining additional views when she suspected aortic insufficiency. That she failed to identify the intimal flap Goldman did not consider a deviation, as it was rare and difficult to recognize without specific training and experience. He similarly did not believe Christensen deviated from the standard of care by failing to recognize a dilated aorta because she was simply never trained to recognize one. She measured the aorta at the valve cusps as she had been taught and recorded the measurement.
In his written decision denying the motion for a new trial, the trial judge found that the jury's verdict was not against the weight of the evidence and that a new trial was not warranted. Any deviation by Cortinas and Christensen did not increase the risk of harm to Caratozzolo. He also noted that Caratozzolo's application repeatedly made reference to "undisputed and uncontroverted" evidence, which in his opinion simply did not exist. All issues were disputed in the trial and raised questions requiring the jury to arrive at answers based on their conclusions of "the believability and credibility of the expert witnesses." And in the main, the jury found in favor of defendants. He did not believe that a miscarriage of justice resulted.
Caratozzolo's symptoms certainly appeared to mimic those of a heart attack and were not the classic symptoms of an aortic dissection. The number of physicians who believed that Caratozzolo was suffering from cardiac issues included the emergency room doctor, two residents, two family practice doctors, and a cardiologist. Although the echocardiogram reading was delayed for approximately twenty hours and as a result during that time Caratozzolo was given Plavix, he was stable at the time the proper diagnosis was made and the operation took place.
Having heard the extensive testimony on the possible effects of the delay and the administration of Plavix, by both Caratozzolo's experts and defendants' experts the jury nonetheless had the option to find defendants' expert witnesses credible. As he put it,
[i]n other words, since this [p]laintiff was hemodynamically and otherwise stable, had not had a stroke, and was in good condition going into surgery for the preexisting condition of an aortic dissection, there really was no increased risk of harm or injury to [p]laintiff that resulted. Rather, the credible evidence was that the clock had been reset . . . .The judge reiterated Krause's testimony that he did not believe the administration of Plavix "had any significant impact on [p]laintiff, nor resulted in injury or harm." The injuries in this case were among the known risks of surgery and may have resulted from Krause's ministrations in an effort to save Caratozzolo's life. The judge perceived no inconsistency in the jury's conclusion that there was some deviation by Cortinas and Christensen, while finding no deviation by Sternberg, the cardiologist, who ordered the Plavix. In any event, Caratozzolo's proofs simply did not connect the alleged deviation to the stroke.
[(emphasis omitted).]
With regard to Caratozzolo's application that Krause's testimony be limited, the court relied upon Stigliano v. Connaught Labs., Inc., 140 N.J. 305 (1995), in concluding that as the treating physician, his information is admissible. He noted, "apparently, as a matter of strategy, neither party took a deposition . . . although both sides knew of the critical nature of his testimony." Caratozzolo did not even discuss Krause's testimony with him in advance of trial. Leading questions posed by defendants' attorneys were consistent with the case law and were not objected to when posed to the witness.
On appeal, Caratozzolo raises the following points of error:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING PLAINTIFFS' MOTION TO LIMIT DR. KRAUSE'S TESTIMONY TO OPINIONS RELATED TO HIS CARE AND TREATMENT OF PLAINTIFF. INSTEAD, DR. KRAUSE GAVE EXPERT TESTIMONY, ALTHOUGH NOT NAMED AS AN EXPERT. FURTHER, THESE OPINIONS SHOULD HAVE BEEN EXCLUDED UNDER RULE 403.
A. Stigliano Permits a Treating Doctor to Give Opinions Related to the Care and Treatment of the Patient.
B. Dr. Krause's Opinions Related to His Care and Treatment of Plaintiff Were Relevant and Admissible under Stigliano. However, the Trial Court Erroneously Allowed Him to Give Expert Opinions That Unduly Prejudiced Plaintiffs.
C. The Court's Ruling Permitting Dr. Krause to Testify Without Restriction, Injected into the Case Opinions by a Treating Doctor Unrelated to His Care and Treatment; and as Such Were Not Relevant as "Factual" but Were Expert Opinions by a Doctor Not Named as an Expert.
D. The Probative Value of Dr. Krause's Expert Opinions Were Manifestly Outweighed by Their Undue Prejudice.
POINT TWO
DEVASTATING EFFECT OF DR. KRAUSE'S TESTIMONY APPEARS EVIDENT BASED ON JURY'S VERDICT AS TO INCREASED RISK WITH REGARD TO DEFENDANTS CORTINAS AND CHRISTENSEN.
POINT THREE
ERRONEOUS "CAPTAIN OF THE SHIP" JURY CHARGE AND RELATED ERRORS WERE SO IMPROPER AS TO CAUSE THE JURY TO BE SERIOUSLY MISLED - ERRORS CLEARLY CAPABLE OF CAUSING AN UNJUST RESULT WITH RESPECT TO THE VERDICTS AS TO DR. LEVINE AND DR. SHINDLER.
A. Standard of Review.
B. The "Captain of the Ship" Doctrine.
C. "Captain of Ship" Jury Charge Was Highly Misleading With Respect To Dr. Levine.
D. The Court's "Curative Instruction" And Subsequent "Captain of the Ship["] With Regard To Dr. Shindler Was Misleading And Unduly Prejudicial.
I.
Certainly, the boundaries of Krause's testimony were contested even before the case began. During opening statements, counsel for the RWJUH defendants stressed the importance of Krause's testimony with regard to risks and complication of aortic dissection. As a result, Caratozzolo's counsel moved for a mistrial, which application was denied. Caratozzolo's counsel made a further application to limit the scope of his testimony to his care and treatment, to prohibit defense counsel from asking leading questions, and to bar questions regarding Krause's credentials and experience. The court ruled that, given defendants' competing interests, no restriction of cross examination would be ordered. There was no factual or legal basis to limit Krause's testimony in the manners sought by plaintiffs. Like in Stigliano, the court proposed allowing Krause to testify as to his treatment, the diagnoses, risks and complications of the disease and the surgery, and his experiences with regard to the outcome of surgical repairs.
The decision to grant a mistrial rests in the sound discretion of the trial court. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); Battista v. Olson, 213 N.J. Super. 137, 142 (App. Div. 1986). A reviewing court should not disturb a trial court's ruling unless the failure to grant a mistrial was an abuse of discretion. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 376 (2001).
A trial judge must grant a motion for a new trial pursuant to Rule 4:49-1(a) "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Generally, a new trial motion is addressed to the sound discretion of the trial court. Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997). The standard for appellate review is substantially the same as the trial court's standard except that an appellate court must defer to the trial judge's "feel of the case," including the credibility of witnesses. Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (internal quotation marks omitted); Okulicz v. DeGraaff, 361 N.J. Super. 320, 329 (App. Div. 2003) (internal quotation marks omitted); see R. 2:10-1. A reviewing court, therefore, cannot substitute its judgment for that of the jury without canvassing the record and weighing the evidence "to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson v. Anastasia, 55 N.J. 2, 6 (1969) (internal quotation marks omitted).
The conduct of a trial, including the scope of cross examination and the use of leading questions, is within the discretion of the trial court. See Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003); see also N.J.R.E. 611. An appellate court will not interfere unless there is a clear abuse of discretion that has deprived a party of a fair trial. Persley, supra, 357 N.J. Super. at 9.
It is well-established that a treating physician may testify about his or her patient's diagnosis and treatment. Carchidi v. Iavicoli, 412 N.J. Super. 374, 381 (App. Div. 2010). Such testimony may also include the cause of the patient's disease or injury, "[b]ecause the determination of the cause of a patient's illness is an essential part of diagnosis and treatment[.]" Stigliano, supra, 140 N.J. at 314. A treating physician, therefore, while testifying as a fact witness, may discuss his or her diagnosis and treatment and opine as to the cause of the patient's illness. Ibid.; see Ginsberg v. St. Michael's Hosp., 292 N.J. Super. 21, 32 (App. Div. 1996) (holding trial court committed reversible error by prohibiting treating physician from opining on a patient's cause of death).
We conclude that the judge's reliance on Stigliano was correct. Krause's testimony was not unfairly prejudicial to plaintiff.
In Stigliano, a child's treating physicians were permitted to testify that a child's epileptic seizures were not the result of infant vaccines. See Stigliano, supra, 140 N.J. at 309, 314. The Court said that a treating physician may testify about any subject relevant to his patient's evaluation and treatment. Ibid.
If in Stigliano it was proper for the physicians to testify as to their belief regarding the cause of the plaintiff child's seizures, it certainly appears proper in this case for Krause, the operating surgeon, to testify regarding his belief that the surgery he performed caused the stroke, unaffected by either the delay in the procedure or the administration of the Plavix. The information was clearly relevant, admissible, and not unfairly prejudicial. As the Court said in Stigliano, "[w]e would ill-serve the cause of truth and justice if we were to exclude relevant and credible evidence only because it might help one side and adversely affect the other." Stigliano, supra, 140 N.J. at 317. Since "the ultimate objective of a trial [is] the determination of the truth," it would be improper to exclude the treating doctor's testimony.
Krause was testifying as a fact witness as to his belief that the surgical procedure caused the strokes. He had nothing to gain or lose from the testimony and was not paid as an expert. We do not disagree with Caratozzolo's position that his testimony stood to carry great weight with the jury. However, this did not make the testimony inadmissible.
Furthermore, in this case, Caratozzolo's own counsel asked several of the questions in which Krause refined his core testimony — that the delay did not increase the risk of harm built into the procedure. Questions were posed on causation, and Caratozzolo cannot now take the position that similar questions being posed by defendants' attorneys created harmful error. Krause's testimony was elicited on direct in response to nonleading questions. There was nothing improper about the process followed in this case.
II.
Caratozzolo also contends that the court erred in denying his motion for a new trial as to Cortinas and Christensen because the jury's conclusions were inconsistent. It is well-established that "[j]ury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) certif. denied, 186 N.J. 242 (2006). That simply is not the case here.
It was logically consistent for a jury to find that even if Cortinas and Christensen deviated, presumably by Cortinas's delay in obtaining the echo results and Christensen's failure to report what she perceived to be abnormalities in the test studies, ultimately, the risk that Caratozzolo would suffer a stroke was not thereby increased. There was evidence that the delay did not increase the size of the dissection. So too, the jury heard that the administration of the Plavix, although it increased the bleeding, did not contribute to the harm leading to the injuries suffered by this plaintiff. There is no clear injustice in the jury's verdict with regard to Cortinas and Christensen.
Although Cortinas and Christensen deviated from the standard of care, the jury could surely find that their negligence was not the proximate cause of Caratozzolo's injuries. Krause testified unequivocally that the main risks of surgery were bleeding, stroke, and heart attack and that plaintiff was at risk of these sequelae from the moment of dissection until its repair. The timing of the surgery did not affect the risks, complications, or length of the operation. Because of Krause's necessary manipulation of blood vessels during surgery, the risk of stroke could not be eliminated. Clots could break off, or get in, and, as a result, two or three out of every hundred patients had a stroke.
When the surgery began, Caratozzolo was clinically stable. Patients who underwent the procedure while clinically stable had better outcomes.
The jury's role is to determine the credibility, weight, and probative value of an expert's opinion. Lanzet v. Greenberg, 126 N.J. 168, 186 (1991); James v. City of E. Orange, 246 N.J. Super. 554, 563 (App. Div. 1991). The jury's verdict suggests that it found Krause and defendants' experts more credible. The jury had that option. Because it made that choice does not demonstrate error, let alone reversible error.
III.
Caratozzolo also contends that the court erred by instructing the jury that New Jersey did not follow the captain of the ship doctrine with respect to the family service physicians and Shindler. Throughout the trial, defense counsel objected to Caratozzolo's attempts to suggest that Shindler, as medical director, was ultimately responsible for the quality of patient care in the echo lab. The court sustained the objections.
During the charge conference, plaintiffs' counsel argued that the captain of the ship doctrine did not apply to the relationship between an attending physician and a resident. The court disagreed, and subsequently gave the following instruction to the jury:
But just another concept in the law with regard to . . . negligence, is that, in a case such as this, where there's multiple parties who have participated in the care, assessment and treatment of a patient, you should understand that there's another principle of law—and here in New Jersey . . . the law does not follow the doctrine that is sometimes known as the "Captain of the Ship" doctrine.
Even though the patient was admitted to the family service, you are not to look upon the family service attending doctors as being in charge of the patient's overall care. Rather, you must assess the conduct of each of the parties as to the care, assessment and treatment that they provided since each is to be evaluated in light of standards of care applicable to their respective specialties in determining if any party was negligent.
You must assess the conduct of such party independently . . . an[d] according to the standards of care applicable to each party. And in that same regard, Dr. Shindler . . . as the medical director of the echocardiography lab at Robert Wood Johnson is not responsible for the actions or inactions of other individuals in the laboratory. In other words Dr. Shindler cannot be found negligent in this case based upon the negligence of another individual.
In denying the motion for a new trial, the court rejected plaintiffs' argument that its instruction on the captain of the ship doctrine misstated the law as to Levine and that Levine must be negligent given the jury's finding as to the deviation by Cortinas. The court found that neither the facts nor the jury's decision supported this argument. Moreover, it found inappropriate and factually unsupported the suggestion by plaintiffs that the jury should have been given an instruction on vicarious liability, even though their counsel never proposed one.
Proper jury charges are essential to a fair trial, and the failure to provide them may constitute plain error. Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002); Das v. Thani, 171 N.J. 518, 527 (2002). Jury charges must outline the jury's function, set forth the issues, state the applicable law, and spell out how the jury should apply the legal principles to the facts. Wade v. Kessler Inst., 172 N.J. 327, 341 (2002); Velazquez v. Portadin, 163 N.J. 677, 688 (2000). Generally, an appellate court will not disturb a jury's verdict based on an error in the court's jury charge, "'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, supra, 172 N.J. at 341 (internal quotation marks omitted).
It is undisputed that New Jersey does not follow the captain of the ship doctrine. See Tobia v. Cooper Hosp. Univ. Med. Ctr., 136 N.J. 335, 346 (1994). The doctrine remains in disfavor. C.W. v. Cooper Health Sys., 388 N.J. Super. 42, 65-66 (App. Div. 2006); Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 34-36 (App. Div. 1998) (holding that it was improper for medical malpractice plaintiffs' counsel to refer to a doctor as the captain of the ship in the context of an administrative mistake); Johnson v. Mountainside Hosp., 239 N.J. Super. 312, 321-22 (App. Div.) (affirming court's refusal to give captain of the ship charge, where plaintiffs sought to hold physicians liable for failure to take steps to protect patient against consequences of negligence arising from someone turning off respirator), certif. denied, 122 N.J. 188 (1990).
Caratozzolo contends that the captain of the ship instruction caused the jury to wrongly conclude that Levine could not be held responsible for Cortinas's failure to obtain the echo results on a timely basis. Plaintiffs argue that Levine had a nondelegable duty to make sure that he got the results of Caratozzolo's study. Certainly, Levine testified that he was responsible as Cortinas's attending physician for ensuring that she provided proper care to Caratozzolo and that he expected her to obtain the results of the echo from the lab or the consulting cardiologist. Similarly, plaintiffs' expert testified that Levine was responsible for insuring that Caratozzolo's results were obtained.
The testimony, however, does not establish that Levine had specific duties to train or supervise Cortinas while she was on duty. There simply were no proofs presented that he had such a supervisory role and failed to meet it. See Tobia, supra, 136 N.J. at 346. Furthermore, Levine said that Cortinas, as a senior resident, knew that she could contact him at any time, and that she did not do so when she observed Caratozzolo experiencing uneven pulses.
In any event, the issue is moot because the jury concluded that Cortinas's deviation was not the proximate cause of Caratozzolo's strokes and resulting injuries.
Caratozzolo makes the same argument as to Shindler. This issue was not raised by Caratozzolo in the motion for a new trial.
In any event, Shindler was responsible for clinical services rendered by the echo lab, and for ensuring compliance by the medical and technical staff with national guidelines; he was an employee of UMDNJ, not the hospital, and the sonographers did not work for him. Shindler neither hired nor fired employees, and he did not evaluate them. He simply worked with the technicians and created a teaching environment. Thus Shindler could not be held liable for Christensen's actions. Again, the jury found that Christensen's deviation was not the proximate cause of the injury.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION