SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2785-95T2
PHUONG NGUYEN,
Plaintiff-Respondent,
v.
ALBERT TAMA, M.D., DR. MACCARONE,
M.D., SUE SHERMAN, K. GRIPPI,
E. BOALE, and COOPER HOSPITAL/
UNIVERSITY MEDICAL CENTER,
Defendants,
and
RONALD JAFFEE, M.D.,
Defendant-Appellant.
__________________________________________________
Argued January 28, 1997 - Decided February 27, 1997
Before Judges Dreier, Newman and Villanueva.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County.
Stacy L. Moore, Jr. argued the cause for appellant
(Parker, McCay & Criscuolo, attorneys for appellant
Mr. Moore, Jr., of counsel; Frank P. Cavallo, Jr.,
on the brief).
Carol L. Forte argued the cause for respondent (Blume,
Goldfaden, Berkowitz, Donnelly, Fried & Forte, P.C.,
attorneys; Ms. Forte, on the brief).
The opinion of the court was delivered by
VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).
Defendant, Ronald Jaffee, M.D. ("Dr. Jaffee" or "defendant"), plaintiff's obstetrician, appeals from a medical malpractice
verdict in the amount of $1,162,100 plus prejudgment interest. We
affirm.
Plaintiff became pregnant in early 1988. Plaintiff engaged
the services of defendant's medical group for her prenatal care.
She visited defendant's offices on April 10 and May 3, 1989, while
she was in her second trimester of pregnancy. Plaintiff had
additional prenatal visits on June 7, July 5, and July 25. During
these checkups, plaintiff's blood pressure was recorded as 100 over
70, urine samples were negative for protein, and she had
experienced normal weight gain.
Plaintiff had her last prenatal checkup on August 22, 1989.
At this time, plaintiff's blood pressure was 120 over 86. She had
a three plus reading for protein in her urine. Additionally, she
had gained nine pounds since her previous checkup. Defendant
indicated that these values, in light of the information he had
regarding his patient, did not in his judgment require aggressive
patient management, such as immediate admission to the hospital to
induce labor.
On August 31, 1989 at 10:00 a.m., plaintiff went to Cooper
Hospital, in an advanced stage of labor. Nurse Sue Sherman
admitted plaintiff to the delivery and labor unit. At 10:15 a.m.,
Sherman made a note in plaintiff's chart indicating that
plaintiff's initial blood pressure was 170 over 120. Plaintiff was
then rolled to her left side and another blood pressure reading was
taken which showed that plaintiff's blood pressure had changed to
186 over 118. Sherman's note also indicated that plaintiff's
reflexes were plus two and there was a "large amount of edema noted
in legs." A resident on duty at this time, Dr. Maccarone,
indicated that plaintiff's condition was not normal of edema in
that she had "massive pitting lower extremity, edema on both sides"
and that she also tested abnormally for deep tendon reflexes.
When defendant arrived on the scene, he was given plaintiff's
records and was asked if he wished to administer magnesium sulfate
to lower the patient's blood pressure. Dr. Jaffee did not order
magnesium sulfate, nor did he order a urine test for protein.
Plaintiff's blood pressure was recorded regularly up until
delivery. Plaintiff's baby was born at 12:05 p.m. and the next
recorded blood pressure was at 12:45 p.m. Plaintiff suffered a
stroke during or immediately after delivering the baby, her first
child.
Evidence was presented to the jury indicating that there were
some complications with plaintiff's delivery. Dr. Maccarone
testified that there was some indication that plaintiff's delivery
was slightly abnormal in that her leg fell out of the delivery
stirrup. Plaintiff's expert testified that, "We do know from
subsequent notes that at some point after the delivery before going
to recovery, the patient was felt to have a leg falling from the
stirrup and that she was particularly lethargic or drowsy."
In his deposition, defendant was asked about a visit he paid
to the plaintiff after he was informed of her paralysis later on
the day of her delivery. At that time he attributed the weakness
in plaintiff's leg to some cerebral accident. Later, in his
deposition, defendant stated that someone made a note in
plaintiff's chart that her leg had fallen off of the delivery
table. On cross-examination at trial, defendant was confronted
with this statement, and he stated that his deposition testimony
was "obviously incorrect" and he felt the plaintiff's stroke
occurred in the recovery room.
Defendant co-signed the standard postpartum orders written by
Dr. Maccarone. Recovery room nurses took plaintiff's blood
pressure at 12:45 p.m., 1:00 p.m. and 1:55 p.m. There were no
recorded blood pressures from 1:55 to 4:00 p.m. At 4:00 p.m.,
Nurse E. Boale found plaintiff's right arm dangling off of her
stretcher. Plaintiff was unable to control both her right arm and
leg.
Plaintiff sustained a stroke to the left side of her brain
which has interfered with her speech, rendered her right hand
virtually useless and impaired her ability to walk. She will never
be able to deal blackjack at the Atlantic City casino where she had
previously been employed prior to the delivery of this child.
Plaintiff filed a complaint against the various defendants.
The complaint alleged medical malpractice against defendants,
Cooper Hospital, Dr. Albert Tama, Dr. Ronald Jaffee, Dr. Maccarone,
Nurse Sue Sherman, Nurse K. Grippi and Nurse E. Boale. Plaintiff
charged that the careless, reckless and negligent acts of the
defendants, which took place over the course of her prenatal care
and delivery, deviated from accepted medical standards and caused
plaintiff to suffer severe, disabling and permanent injuries.
Prior to the trial, Tama, Maccarone and Sherman were dismissed
as defendants. At the conclusion of the plaintiff's case after
eight days of trial, defendants Cooper Hospital, Grippi and Boale
were dismissed as defendants.
Ultimately, the jury found defendant, Dr. Jaffee, liable and
awarded plaintiff damages in the amount of $1,162,100, which
including prejudgment interest constituted a total judgment of
$1,422,155.69. Defendant filed a motion for a new trial or for
judgment n.o.v. The motion was denied. This appeal followed.
Plaintiff alleges that defendant was negligent in failing to diagnose and treat the condition known as preeclampsia. This condition resulted in plaintiff suffering a cerebral hemorrhage, leaving her partially paralyzed and aphasic.
Preeclampsia is a fairly common condition of late pregnancy which is characterized by an increase in the patient's blood pressure, by a tendency toward excessive weight gain and excessive fluid accumulation, and by the appearance of protein in the urine which is not normally present even during pregnancy. Its exact cause is still unknown. It affects the body by causing spasms of the blood vessels. The main dangers to the mother suffering from untreated preeclampsia are seizures, strokes, coma, brain hemorrhage and death. Obstetricians normally look for evidence of preeclampsia at every prenatal visit. This is one of the reasons that the patient's blood pressure and weight are checked, why the extremities are checked for signs of edema, (excessive fluid
accumulation), and why the urine is tested for the presence of
protein. Preeclampsia causes an elevation in blood pressure which
can range from mild to severe or profound. The increased blood
pressure in turn causes spasm of the blood vessels with resulting
damage to the vessel.
The hospital records, which were admitted into evidence,
contain a preprinted form used by the obstetrical department, on
which there is printed a "checklist", and the definition of
preeclampsia. On a page from the patient's own hospital chart,
"severe preeclampsia" was defined as blood pressure greater than
160/110, or proteinuria greater than "2 +" after 26 weeks of
gestation. We noted earlier that the patient's blood pressure had
been as high as 186 over 118.
Plaintiff's treating neurologist, Dr. Hillard Scharf,
testified that plaintiff had suffered an intracerebral accident.
This "accident" caused language dysfunction and right side
paralysis. These conditions are permanent. Another expert, Dr.
Edward Feldman, a leading neurologist called by plaintiff,
indicated that, based on a review of plaintiff's patient record,
this stroke was caused by high blood pressure and occurred either
during plaintiff's delivery or just after it in the recovery room.
Dr. Feldman told the jury that the untreated high blood pressure of
preeclampsia is a known cause of intracerebral hemorrhage, and that
plaintiff's blood pressures upon admission were capable of causing
this hemorrhage. He concluded by testifying that if the patient
had received medication to treat her preeclampsia and lower the
blood pressure after it was found to be 180/118, it was more likely
than not her stroke would have been prevented.
Dr. Harlan Giles, a perinatologist, testified that Dr. Jaffee
had been negligent at three distinct times. First, Dr. Jaffee was
negligent on the last prenatal visit when he failed to diagnose
preeclampsia and either order a follow-up blood pressure check the
next day or admit her to the hospital. Second, he was negligent
prior to delivery when he again failed to diagnose preeclampsia and
did nothing to treat it and neglected to address her blood
pressure. At this point Dr. Jaffee should have ordered magnesium
sulfate to relax the spastic vessels, and assess its effect on the
blood pressure, ordering additional antihypertensives if necessary.
Third, he was negligent after the delivery by failing to order
frequent blood pressure checks and again in failing to continue the
magnesium sulfate for twelve to twenty-four hours after the birth.
Defendant raises five points on this appeal, none of which has merit. Defendant first contends that plaintiff's principal expert, Dr. Giles, offered only a net opinion. "The `net opinion' rule appears to be a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, is inadmissible. It frequently focuses ... on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). For an expert opinion to be admissible at trial it must be based
"primarily on facts, data or other expert opinion established by
evidence at the trial ...." Id. at 525 (quoting Evid. R. 56(2)(a),
currently embodied in N.J.R.E. 703).
Dr. Giles opinion was supported by his references to
defendant's office records, the hospital records and his own
experience. His opinion was confirmed by the Williams text that
defense counsel used to cross-examine him. This was clearly not a
net opinion.
Defendant also contends that Dr. Giles used the wrong standard
of practice and only stated what he thought the standards should
be. Dr. Giles was repeatedly asked what the accepted standard of
medical practice was and answered each question according to that
standard. At one point he stated that the accepted standard is
what "he thought" was the minimum standard that doctors should
apply. Defendant argues that Dr. Giles' reference to his own
opinion, when stating the minimum standard that doctors should
apply, shows that his testimony was completely subjective.
Defendant's argument is flawed. This witness was a professor at
two major medical schools which aided him in knowing what he
thought was a minimum standard. The standard to which Dr. Giles
testified comported with the textbook with which he was cross-examined. Even the defense expert acknowledged the same standard
in his testimony. Therefore, contrary to defendant's assertion
that the testimony of Dr. Giles' was completely subjective, Dr.
Giles testified to the proper standard.
Defendant next contends that Dr. Giles testimony should have been disregarded because it was against the weight of the evidence and in conflict with Ritondo v. Pekala, 275 N.J. Super. 109 (App. Div.), certif. denied, 139 N.J. 186 (1994). We are satisfied that the expert's testimony was in complete accord with the weight of the evidence. Furthermore, the Ritondo case involved a situation where an expert recanted his opinion. This did not happen here.
Plaintiff proved conclusively that she suffered from preeclampsia. Plaintiff's eminently qualified principal expert witness as well as her neurological expert clearly established the diagnosis, and this was even confirmed by defendant's expert. It is also clear that defendant should have administered magnesium sulfate initially, and then if the blood pressure did not come down, should have administered other anti-hypertensive drugs. He also should have taken a protein reading of plaintiff's urine, given the findings at the last office visit. It appears that even one of the hospital nurses recognized the problem and suggested to the defendant that magnesium sulfate be administered, but nothing was done. Defendant's expert could not overcome this conclusion.
Defendant claims that juror number three was dismissed without cause. Defendant notes that R. 1:8-2(d) permits a court to dismiss a juror for good cause in a civil trial. However, defendant argues that a hearing was required to determine if that standard was met, citing State v. Reevey, 159 N.J. Super. 130, 134 (App. Div.),
certif. denied,
79 N.J. 471 (1978). Defendant additionally states
that the court may not take into consideration a juror's
interaction with other jurors in deciding whether to dismiss,
citing State v. Valenzuela,
136 N.J. 458, 468-73 (1994). Defendant
concludes that in improperly dismissing juror number three the
court abused its discretion, and a new trial is warranted.See footnote 1
At the close of testimony one day, the trial judge was
informed by a juror that juror number three ("Black") was making
some comments regarding the case in the jury box during testimony.
The judge decided that it would be appropriate to question the
jurors regarding Black's comments. At a hearing, two other jurors
informed the court that they had heard Black expressing thoughts
regarding the case. Preliminarily, Black indicated that she had
formulated an initial opinion and could no longer be impartial.
The judge expanded his explanation of her responsibilities, and she
stated that she felt that she was "not locked in" to one side and
could remain fair and impartial.
The trial judge found, based on Black's comments, that she
should be dismissed from jury service, primarily because
"apparently on more than one occasion she has spoken to other
jurors contrary to the court's instruction."
The defendant does not contend that his right to a jury trial
was harmed or that the dismissal of this juror led to a finding of
liability from an inadequate jury. The trial judge exercised sound
discretion in dismissing this juror based on the reasons enumerated
in the record, which discloses that juror number three attempted to
influence other jurors about the case and entreated them to discuss
the issues prior to deliberations when instructed not to do so.
Moreover, in a commentary-like fashion, she exhibited facial
mannerisms and made audible sounds during the trial, behavior which
the juror claimed to be unaware of or at least did not admit.
Furthermore, a party in a civil case "is not entitled to any
particular juror, but only to an impartial jury of [6]
individuals." State v. Reevey, supra, 159 N.J. Super. at 134
(citing State v. Belton,
60 N.J. 103, 108 (1972)).
Defendant argues that the alteration of one word in one of the jury charges led the jury to find him liable unjustly. Defendant requested that a particular charge be given to the jury as follows:
In examining the conduct of a defendant physician to determine whether there was a deviation from [an] accepted standard of care, that is whether he was negligent, you should understand that the law recognizes that the practice of medicine is not an exact science. Therefore, the law recognizes that the practice of medicine according to accepted medical standards will not prevent a poor or unanticipated result. If a physician has applied the required knowledge, skill and care in the diagnosis and/or treatment of a patient, he is not negligent simply because a bad result has occurred.
[See Model Jury Charge, Civil § 5.36A (emphasis added.)]
Over defendant's objection, the trial judge charged the jury with this exact charge with the exception that the word "may" was
substituted for the word "will." Defendant contends that this
change altered the meaning of the charge to such a degree that a
new trial is warranted. We disagree.
A reading of the charge in this case indicates that the trial
judge was correct in substituting the word "may" for "will" in his
charge to the jury. The use of the word "will" does not make sense
in reference to the charge as a whole. The charge cautions the
jury that there are some situations when a doctor fully complies
with the accepted standard of medical care and, still, a bad result
can occur. In such a situation, the jury is not required to find
the doctor liable. In other words, this charge reminds the jury
they must find that the doctor deviated from the accepted standard
to find him liable, not just that a bad result happened. The
Supreme Court in Schueler v. Strelinger,
43 N.J. 330 (1964), noted
that, although a good result may occur with poor treatment, good
treatment will not necessarily prevent a poor result. Id. at 344.
Despite this statement, the Model Charge has remained unchanged.
As a result of the use of the word "may," the jurors would
properly understand that bad results are sometimes inevitable in
medical situations. This would be common sense to the average
person or juror. Obviously, the word should be "may".See footnote 2
Lastly, defendant contends that plaintiff should not have been permitted to remark during closing argument that the defense failed
to produce any expert testimony concerning recovery room conduct.
Defendant twists the facts of what had transpired. Defendant's
expert had been instructed by defendant's attorney at depositions
not to answer a question concerning the recovery room conduct.
Having been so instructed, plaintiff at trial demanded that the
witness not be permitted to testify on this subject. Since
defendant had produced no other witness on this subject, he had no
testimony to rebut plaintiff's claims concerning what the recovery
room conduct should have been. Plaintiff's comment on summation
that the defense expert had not testified in this area was proper.
Defendant cannot complain about a problem that he created.
Furthermore, there is no indication that this statement led to
an unjust result. R. 2:10-2. The statement related to only one
area of potential negligence, defendant's conduct after delivery.
This left two other possible grounds for finding negligence: during
the last prenatal check up and immediately prior to and during
delivery.
Affirmed.
Footnote: 1One juror had already been dismissed from service in this case because she was a patient of defendant's medical group. With the dismissal of juror number three, the court had six jurors and no alternates who could deliberate in this matter. Footnote: 2We suggest that the Committee on Model Jury Charges, Civil change this particular charge in accordance with this opinion.