SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued February 11, 2002 -- Decided May 8, 2002
COLEMAN, J., writing for a unanimous Court.
This matter sounds in obstetrical medical negligence. Dr. Suresh R. Thani assessed fetal movement in a gestational-diabetic patient during her pregnancy by asking her to count the number of times she felt the fetus kick in her womb, a technique referred to as maternal fetal monitoring, rather than by using modern ultrasound, electronic fetal monitoring, and biophysical profile methods that were available in his office. The issue raised in this appeal is whether the trial court was obligated to instruct the jury that the medical judgment defense was unavailable to Dr. Thani if it accepted the theory that it was a deviation from the accepted standard of care for Dr. Thani not to have used the more modern fetal monitoring techniques.
Dr. Thani was a specialist in obstetrics and gynecology. Regi Das became Dr.
Thani’s patient in the spring of 1994 when she was pregnant with her
first child. On October 5, 1994, Dr. Thani informed Regi that she was
diabetic and prescribed her insulin. In her thirty-ninth week of pregnancy, Regi went
to the hospital because she could not feel any fetal movement. At the
hospital, doctors performed an ultrasound, electronic fetal monitoring, and a biophysical profile. Those
tests revealed that there was fetal movement but the fetal heart rate was
abnormal and the amniotic fluid volume was low, indicating that the fetus was
not getting enough oxygen. The doctors explained that this condition had developed over
a prolonged period of time and that the baby had to be delivered
immediately. Regi delivered a son by Caesarian section. The child needed immediate resuscitation
and died four days later.
Regi Das and her husband, Walter, sued Dr. Thani, alleging that he was
negligent in failing to use modern methods to monitor the fetus, resulting in
the premature birth and death of their baby. Throughout Regi’s pregnancy, Dr. Thani
did not use equipment that was in his office to perform ultrasound examinations,
fetal monitoring, or biophysical profiles to monitor the health and development of the
fetus. Instead, he used maternal-fetal monitoring and finger measurements to determine fetal health
and growth.
The Das’ presented an expert at trial who opined that Dr. Thani should
have used more accurate and standard methods of ultrasound examinations, fetal monitoring, and
biophysical profiles once he had prescribed insulin during Regi’s thirty-second week of pregnancy.
The expert asserted that those tests should be performed prior to fetal maturity
in cases of gestational diabetes because insulin-dependent diabetics are at a greater risk
for fetal death in the third trimester. According to the expert, testing was
necessary to determine if this high-risk pregnancy should be terminated early to save
the fetus. The expert further testified that each of the monitoring procedures that
Dr. Thani should have used had been available for many years prior to
Regi’s pregnancy. It was the opinion of the expert that Dr. Thani breached
the standard of care by not performing those tests.
Dr. Thani also provided expert testimony at trial. Dr. Thani’s expert acknowledged that
the tests referred to by the Das’ expert had been in use for
fifteen years, but opined that maternal-fetal monitoring complied with the standard of care.
Dr. Thani stated that it was simply for “medical reasons” that he did
not use the more accurate tests that his office was equipped to perform.
At the conclusion of trial, the judge submitted the case to the jury
with a medical judgment charge. The jury returned a verdict for Dr. Thani.
The Das’s moved for a new trial. The trial court denied the motion,
reasoning that the case came down to a “battle of the experts” and
the jury believed the defense expert.
On appeal, The Das’s argued that the trial court failed to tailor the
medical judgment charge to the facts of the case, thereby allowing the jury
to excuse Dr. Thani’s negligence as medical judgment. The Appellate Division affirmed the
decision of the trial court. On petition for certification granted, the Supreme Court
remanded the case to the Appellate Division in light of the decision in
Velazquez v. Portadin. On remand, the Appellate Division acknowledged that the trial court
failed to tailor the jury instruction to the facts of the case but,
nonetheless, reaffirmed its prior decision. The Supreme Court again granted certification.
HELD: The trial court was obligated to instruct the jury that the medical
judgment defense was unavailable to Dr. Thani if it accepted the theory that
it was a deviation from the accepted standard of care for Dr. Thani
not to have used the more modern fetal monitoring techniques. The failure to
appropriately tailor the charge to the particular facts and specify what actions may
constitute a proper exercise of medical judgment was reversible error.
Because the Das’s failed to object to the jury charge at the time
of trial, any error in the jury charge is reviewable only as plain
error. Clear and correct jury charges are essential to a fair trial, and
the failure to provide them may be plain error. (pp. 9-13)
To constitute medical judgment, a medical decision generally must involve misdiagnosis or the
choice of one of two or more generally accepted courses of action. In
the latter category, the course of treatment followed must be an “equally acceptable
approach” in order not to be considered a deviation from the appropriate standard
of care. If the medical judgment rule were misapplied to a case that
involves only the exercise of reasonable care, the aspect of the rule that
excuses a doctor for mistakes would enable the doctor to avoid responsibility for
ordinary negligence. Therefore, the court and counsel should analyze the parties’ testimony and
theories in detail, on the record, to determine whether the medical judgment charge
is applicable at all and, if so, to which specific issues. The charge
should then be tailored accordingly. (pp. 13-16)
The trial court failed to tailor the jury charge to the theories and
facts presented. The failure to specify what actions may constitute a proper exercise
of medical judgment was reversible error. The jury should have been instructed that
in order for Dr. Thani to prevail based on the exercise of medical
judgment, the jury had to find that maternal fetal monitoring represented an equally
acceptable approach to the other, more modern alternatives. (pp. 16-17)
Because the jury was not properly instructed regarding medical judgment based on the
evidence and legal theories presented, the jury was free to excuse Dr. Thani’s
actions by using a lesser standard. The jury was not properly instructed that
it could believe the defense expert testimony -- that using modern equipment was
not required by the appropriate standard of care-- only if the decision not
to use the modern equipment represented an equally acceptable and objectively reasonable determination
based on Regi Das’s condition. That shortcoming created a substantial likelihood of improperly
insulating Dr. Thani from liability. (pp.17)
The medical judgment charge was grossly inadequate when viewed in the context of
the evidence presented and the claims made by the Das’. Because these inadequate
jury instructions had the tendency to mislead the jury, there was plain error
that was clearly capable of producing an unjust result. (pp. 18-19)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to
the Law Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in
JUSTICE COLEMAN’S opinion.
SUPREME COURT OF NEW JERSEY
A-
44 September Term 2001
WALTER DAS, Individually and as Administrator of the Estate of Emmanuel Andrews Das,
and as Administrator ad Prosequendum of the Estate of Emmanuel Andrews Das, and
REGI ANDREWS DAS, h/w,
Plaintiffs-Appellants,
v.
SURESH R. THANI, M.D.,
Defendant-Respondent,
and
JAMES L. KUSNIERZ, M.D., JOHN
DOE, M.D., a fictitious person, and JANE DOE, a fictitious
person,
Defendants.
Argued February 11, 2002 – Decided May 8, 2002
On certification to the Superior Court, Appellate Division.
Donna L. Freidel argued the cause for appellants.
Judith A. Wahrenberger argued the cause for respondent (Wahrenberger & O'Brien, attorneys).
The opinion of the Court was delivered by
COLEMAN, J.
This is an obstetrical medical malpractice case in which the defendant treating physician
relies on the medical judgment rule. Defendant Dr. Suresh R. Thani chose to
assess fetal movement by asking the mother-to-be to count the number of times
she felt the fetus kick, a technique referred to as maternal fetal monitoring,
rather than by using modern ultrasound, electronic fetal monitoring and biophysical profile methods
that were available in his office. Based on expert testimony for the defense
that it was a question of medical judgment which technology to use, the
trial court submitted the case to the jury with a medical judgment charge.
The jury exonerated defendant of all liability. The Appellate Division affirmed.
The critical issue raised in this appeal is whether the trial court was
obligated to instruct the jury that the medical judgment defense was unavailable to
defendant if it accepted plaintiff’s theory that it was a deviation from the
accepted standard of care for defendant not to have used the more modern
fetal monitoring technique. We hold that such an instruction was required because a
finding of deviation by the jury removes from the case the factual underpinning
required to support a medical judgment defense. Failure to give that instruction in
this case constitutes reversible error.
Defendant Dr. Suresh R. Thani is a specialist in obstetrics and gynecology. Plaintiff Regi Das became defendant’s patient in the spring of 1994 when she was pregnant with her first child. On September 9, 1994, defendant advised plaintiff that her blood sugar was high and that she might be diabetic. Defendant did not, however, confirm whether plaintiff had diabetes until October 5, when he prescribed insulin for the first time.
On November 19, in the thirty-ninth week of pregnancy, plaintiff called defendant because she had not been experiencing any fetal movements. Defendant was off duty, but another physician covering for him advised plaintiff to go to the hospital. Doctors at the hospital performed an ultrasound, electronic fetal monitoring and a biophysical profile. Those tests revealed there was fetal movement, but the fetal heart rate was abnormal and the amniotic fluid volume was low, indicating that the fetus was not receiving enough oxygen. The physicians explained to plaintiff that the condition of the fetus had developed over a prolonged period of time and that labor should be induced immediately. Plaintiff accepted that advice and delivered a son by Caesarian section. The child required immediate resuscitation and died four days later.
Throughout plaintiff’s pregnancy, defendant did not use equipment that was in his office to perform ultrasound examinations, fetal monitoring or biophysical profiles to monitor the health and development of the fetus. Instead, he used maternal fetal monitoring, a technique that requires a mother to tell the doctor how often the fetus has moved during a two-hour period. In addition, to monitor fetal growth and determine whether the fetus was either abnormally small or large, defendant would place his fingers on plaintiff’s abdomen and count the number of fingertips from top to bottom to determine the length of the fetus.
Plaintiff’s theory of liability at trial was that defendant’s failure to use more modern methods to monitor the fetus resulted in the premature birth and death of the baby. To support that theory, plaintiff presented an expert who described defendant’s method of treating plaintiff as “1960’s medicine.” According to that expert, defendant should have used the more accurate and standard methods of ultrasound examinations, electronic fetal monitoring and biophysical profiles when defendant started prescribing insulin during the thirty-second week of the pregnancy. That expert asserted that those tests should be performed prior to fetal maturity in cases of gestational diabetes because insulin-dependent diabetics are at risk of fetal death in the third trimester. The testing, therefore, was necessary to determine whether the pregnancy should be terminated prematurely by either inducing labor or performing a Caesarian section in order to prevent the death of the fetus.
Plaintiff’s expert also testified that each of the monitoring procedures that defendant should have used had been available for many years prior to plaintiff’s pregnancy. With regard to electronic fetal monitoring, the expert testified that it became available to obstetrics and gynecology practitioners in the early 1970’s and is performed by placing an electronic device on the mother’s chest and abdomen to assess the fetal activity and fetal heart rate. With regard to ultrasounds, the expert testified that “in the early ‘80’s and certainly into the ‘90’s, ultrasounds took on a much more active role . . . in making sure that the infant’s condition was good enough that delivering was not apt to be affected by premature diabetes.” Lastly, with regard to biophysical profiles, which incorporate both the electronic fetal monitoring and ultrasound evaluation, the expert testified that they were used for high-risk patients and allow physicians to “look at the amniotic fluid, continue with the biophysical monitoring, the so-called non-stress test, [and] come up with a score.” The score determines whether the fetus needs to be delivered right away. It was the opinion of plaintiff’s expert that defendant breached the standard of care by not performing any of those tests. Plaintiff’s expert concluded that if such tests had been performed, physicians could have prevented the death of the baby. The physician who delivered the baby corroborated that conclusion in finding that the baby’s condition had deteriorated over a prolonged period and was not a recent condition.
Defendant’s expert acknowledged that the techniques referred to by plaintiff’s expert had been in use for fifteen years, but opined that maternal fetal monitoring, which defendant used, complied with the standard of care. Defendant’s expert testified that, for purposes of fetal surveillance, physicians can “have the patient count fetal movements” or “monitor [the] fetus by ultrasound . . . [or] biophysical testing. There's a whole array of ways you can monitor a fetus.” Defendant’s expert also testified that, for purposes of fetal surveillance in cases of diabetes, the same methods are available and that using any or all of them would have complied with the standard of care in 1994 when plaintiff’s baby was born.
With regard to the gestational diabetes, the defense expert was asked: “Is it your opinion that as soon as insulin was initiated in the treatment of gestational diabetes that the standard requires that an ultrasound, biophysical profile, non-stress testing be initiated?” He responded:
Well, again, when we talk of fetal testing . . . they’re all in one package with the fetal movement and I think we discussed that about when you might institute that. Now ultrasound for the sheer measurement of the fetus, well, you need an indication for that. So if you had a very high blood glucose levels or you suspected the fetus was large, you will do an ultrasound for evaluation of fetus size . . . . The other value is if you suspect that the fetus was undergrown and was getting into trouble because it was undergrown.
Defendant’s explanation for not using the more accurate tests, which his office was equipped to perform, was simply that it was for “medical reasons" without further explanation. On cross-examination, however, defendant stated that he had not performed those tests because there had been no indications of any problems with the fetus prior to delivery. Defendant clarified that if there were medical reasons for not performing those tests, those reasons would have been noted in his records.
The trial court submitted the case to the jury with a medical judgment charge. The jury returned a verdict for defendant. In denying plaintiff’s motion for a new trial, the court reasoned that “[a]s in many of these malpractice cases, this was a battle of the experts. The experts gave two different opinions based on the same facts, and the jury chose to believe the defense expert.”
On appeal, plaintiff argued that, although there was a battle between experts, the ultimate verdict was caused by the trial court’s failure to tailor the medical judgment charge to the facts of the case, thereby allowing the jury to excuse defendant’s negligence as medical judgment. The Appellate Division affirmed, but this Court granted certification, 165 N.J. 674 (2000), and remanded the case to the Appellate Division for reconsideration in light of our decision in Velazquez v. Portadin, 163 N.J. 677 (2000), which was rendered subsequent to the trial in this matter. On remand, the Appellate Division, although acknowledging that the trial court had failed to tailor the jury instructions to the facts and legal theories, nonetheless reaffirmed its prior decision. We again granted certification, 170 N.J. 387 (2001), and now reverse.
Plaintiff argues that the trial court failed to tailor the medical judgment charge to the facts of the case and that that error impermissibly allowed the jury to excuse defendant’s deviation from the standard of care as medical judgment when no judgment was exercised. Plaintiff also contends that the trial court erred by not instructing the jury that if it found there was a deviation from the appropriate standard of care, then the medical judgment rule has no application. Because plaintiff did not object to the jury charge at the time of trial, any error in the jury instructions is reviewable only as plain error. R. 2:10-2.
The trial court gave the following relevant jury charge:
Negligence is conduct which falls below a standard of care required by law for the protection of persons and property from foreseeable risks of harm. Negligence may result from the performance of an act or the failure to act. The determination of whether a defendant was negligent requires a comparison of a defendant’s conduct whether that was the performance of an act or the failure to act against the standard of accepted conduct.
If the defendant’s conduct is found to have fallen below an accepted standard
of care, it is said that he or she is negligent. Therefore, to
decide the case properly, you must know the standard of care imposed by
all up against which the defendant’s conduct as a physician is to be
measured.
Now the defendant, in this case, is a specialist in the field of
Obstetrics and Gynecology. Specialists in a given field of medicine represent that they
will have and employ not merely the knowledge and skill of the general
practitioner, but that they will have and will employ knowledge and skill normally
possessed and used by the average specialist in the field.
Thus, when a physician holds himself out as a specialist and undertakes to
diagnose and treat the medical needs of a patient, the law imposes a
duty on that physician to have and use that degree of knowledge and
skill which is normally possessed and used by specialists in the field --
having regard to the state [of] scientific knowledge at the time that he
attended the plaintiff.
In view of what I have just said, it becomes important for you
to know the standard of care which a specialist in Obstetrics and Gynecology
is required to observe in the treatment of his patient under the circumstances
of this case.
Based upon common knowledge alone and without technical training, jurors normally cannot know
what conduct constitutes the standard medical practice. Therefore, the standard of practice by
which a physician’s conduct is to be judged, must be furnished by expert
testimony. That is to say, by the testimony of persons who by knowledge,
training, experience are deemed qualified to testify and to express their opinions on
those subjects.
You as jurors should not speculate or guess about the standard by which
the defendant physician should have conducted himself in the diagnosis and treatment of
plaintiff. Now you must determine the applicable medical standard from the testimony of
the expert witnesses that you have heard in this case.
Where there is a conflict in the testimony of the medical experts on
the subject as there is in this case, it is for you, the
jury, to resolve that conflict and you use the same guidelines in determining
credibility that I just mentioned earlier.
You are not required to accept arbitrarily the opinions offered. You should consider
the expert’s qualifications, training, experience, as well as his understanding of the matters
to which he testified. Where an expert has offered an opinion upon an
assumption that certain facts are true, it is for you, the jury, to
decide whether the facts upon which the opinion is based are, in fact,
true.
The value and weight of an expert’s testimony in such instances are dependent
upon and most [sic] stronger than the facts upon which it is predicated.
After deciding what the standard medical practice is in the circumstances of this
case, you must then determine whether the defendant physician has conformed with or
deviated from the standard of care.
In examining the conduct of the defendant physician to determine whether there was
a deviation from an accepted standard of care, that is where he was
negligent, you should understand that the law recognizes that the practice of medicine
is not an exact science. Unfortunately, even when a doctor acts properly in
accordance with accepted medical standards, the patient still may not be cured and
a poor, unanticipated result may occur.
Accordingly, you may not find Dr. Thani negligent merely because you find that
his patient has had a poor or [unanticipated] result. The defendant, Dr. Thani,
may be found negligent only if he failed to follow accepted medical standards
when diagnosing and treating his patient. In diagnosing and treating a patient, a
doctor must exercise his judgment in accordance with accepted medical standards.
Doctors must make their diagnosis and select treatment options from the body of
scientific and medical information available at the time. However, in such a situation,
the doctor can exercise in his judgment in diagnosing and treating a patient
is still [sic] required to use the degree of skill and knowledge normally
possessed and used by the average specialist in the field.
The doctors should not act mechanically, but should take into account all relevant
medical facts pertaining to the patient. He may not do something which standard
medical practice prohibits or fail to do something that requires [sic] in this
situation. When the accepted standards of medical practice permit two or more courses
of action and the physician in the exercise of his judgment selects one
of those alternatives, he cannot be found negligent if the course chosen produces
a poor result.
However, if the doctor, in exercising his judgment, does something which standard medical
practice forbids or fails to do something the standard medical practice requires, the
doctor is negligent. Similarly, if the doctor, in exercising his judgment, fails to
do something which is required by standard medical practice, then he is also
negligent. I’ve just repeated myself.
In summary, if you find the defendant has complied with the accepted standard
of medical care then he is not liable to the plaintiff regardless of
the result. On the other hand, if you find the defendant has departed
from the accepted medical standard, then you must determine whether such deviation or
negligence was a proximate cause of any injury sustained or any loss incurred
by plaintiff.
It is axiomatic that clear and correct jury charges are essential to a
fair trial, and the failure to provide them may constitute plain error. State
v. Robinson,
165 N.J. 32, 40 (2000). "A charge is a road map
to guide the jury, and without an appropriate charge a jury can take
a wrong turn in its deliberations. . . . [T]he court must explain
the controlling legal principles and the questions the jury is to decide." State
v. Martin,
119 N.J. 2, 15 (1990). Therefore, "[e]rroneous instructions are poor candidates
for rehabilitation as harmless, and are ordinarily presumed to be reversible error." State
v. Afanador,
151 N.J. 41, 54 (1997).
The charge given here closely mirrors the Model Jury Charge for medical malpractice.
See Model Jury Charges (Civil), § 5.36A Medical Malpractice, Duty and Negligence (Feb. 2001).
The Model Jury Charge instructs the jury that a physician must exercise the
standard of care appropriate to the average member of the profession practicing in
that field. See Walck v. Johns-Manville Prods. Corp.,
56 N.J. 533, 560 (1970);
Schueler v. Strelinger,
43 N.J. 330, 344 (1964). The model charge further instructs
the jurors that they must rely on expert testimony and “not speculate or
guess” about the standard of care applicable to the diagnosis and treatment at
issue in the case. See Walck, supra, 56 N.J. at 562; Schueler, supra,
43 N.J. at 345.
After giving the charge relating to the standard of care, a trial court
must decide whether to instruct the jury that defendant’s actions may constitute an
exercise of medical judgment that would excuse that defendant from liability for a
poor result. Aiello v. Muhlenberg Reg’l Med. Ctr.,
159 N.J. 618, 632 (1999).
To constitute a medical judgment, a medical decision generally must involve “misdiagnosis or
the selection of one of two or more generally accepted courses of treatment.”
Velazquez, supra, 163 N.J. at 687; Aiello, supra, 159 N.J. at 628-29. In
the latter category, which is involved in the present case, the course of
treatment followed must be an “equally acceptable approach” in order not to be
considered a deviation from the appropriate standard of care. Velazquez, supra, 163 N.J.
at 690. Otherwise, “[i]f the exercise of judgment rule is inappropriately or erroneously
applied in a case that involves only the exercise of reasonable care, the
aspect of the rule that excuses a physician for ‘mistakes’ would enable the
physician to avoid responsibility for ordinary negligence.” Aiello, supra, 159 N.J. at 632.
Therefore, to avoid jury confusion, we recently held that “[c]ourt and counsel should
analyze the parties’ testimony and theories in detail, on the record, to determine
whether the [medical judgment] charge is applicable at all and, if so, to
which specific issues. The charge should then be tailored accordingly.” Velazquez, supra, 163
N.J. at 690. Following Velazquez and subsequent to the trial in this case,
the Model Jury Charge relating to medical judgment was revised to state:
A doctor may have to exercise judgment when diagnosing and treating a patient.
However, alternative diagnosis/treatment choices must be in accordance with accepted standard medical practice.
Therefore, your focus should be on whether standard medical practice allowed judgment to
be exercised as to diagnosis and treatment alternatives and, if so, whether what
the doctor actually did to diagnose or treat this patient was accepted as
standard medical practice. If you determine that the standard of care for treatment
or diagnosis with respect to [specify what type(s) treatment or diagnosis is involved]
did not allow for the choices or judgments the defendant doctor made here,
then the doctor would be negligent.
[Model Jury Charges (Civil), § 5.36G Medical Malpractice, Medical Judgment (Feb. 2001).]
That revised model jury charge reflects the mandate in Velazquez that a medical
judgment charge that does not specify what action may qualify as an appropriate
exercise of judgment may result in an overly broad charge that has “the
potential to improperly insulate defendants from liability.” Velazquez, supra, 163 N.J. at 690-91.
Like Velazquez, the trial court here failed to tailor the jury charge to
the theories and facts presented in the case. Thus, the risk that was
present in Velazquez is present here. Defense counsel, “knowing the power of the
judgment charge, took every opportunity to lead the court and jury into thinking
that the entire case revolved around the exercise of judgment.” Id. at 690.
Just as the failure to specify what actions may constitute a proper exercise
of medical judgment was reversible error in Velazquez, it is reversible error here.
In this case, the jury first should have been instructed that if it
believed plaintiff’s expert that defendant deviated from the standard of care by not
monitoring plaintiff’s pregnancy with ultrasounds, electronic fetal monitoring and biophysical profiles, then it
may not excuse defendant’s omissions as medical judgment. Conversely, if it believed defendant’s
expert that maternal fetal monitoring complied with the standard of care, then the
selection of one of two generally accepted courses of treatment was an exercise
of medical judgment for which defendant could not be liable. Stated differently, the
jury should have been instructed that in order for defendant to prevail based
on the exercise of medical judgment, the jury had to find that maternal
fetal monitoring represented an equally acceptable approach to the other, more modern alternatives.
The jury instructions must incorporate the evidence and the legal theories of liability
and make clear that medical “judgment does not represent a departure from the
requirements of accepted medical practice.” Schueler, supra, 43 N.J. at 345. That is
the only way to make clear to a jury what action may qualify
as an acceptable exercise of medical judgment.
Because the jury was not properly instructed regarding medical judgment based on the
evidence and legal theories presented, the jury was free to excuse defendant’s actions
by using a lesser standard, such as by finding that defendant’s omissions constituted
a “good faith” or “bona fide” judgment. See Morlino v. Med. Ctr. of
Ocean County,
152 N.J. 563, 585 (1998). The instructions did not make clear
to the jury that “[t]he selection of an alternative that is objectively unreasonable
would violate the doctor’s duty of care to the patient.” Id. at 584.
In exercising medical judgment, doctors must act “with due regard for the individual
needs of each patient” and consider the patient’s physical and mental condition “[i]n
making diagnoses and selecting among treatment options.” Ibid.
Here, plaintiff was a first-time expectant mother with gestational diabetes. Defendant was an
experienced physician who had modern equipment in his office that would have enabled
him to comply with the standard of care described by plaintiff’s expert. Although
the jury was entitled to believe defendant’s expert’s testimony that using the modern
equipment was not required by the appropriate standard of care, the jury was
not given a road map on how to make that determination. The jury
was not properly instructed that it could do so only if the decision
not to use the modern equipment represented an equally acceptable and objectively reasonable
determination based on plaintiff’s medical condition. That shortcoming created a substantial likelihood of
improperly insulating defendant from liability.
The Appellate Division found that, although “the trial court did not precisely tailor
the jury charge to the respective claims of the parties and the evidence,
there was no error because the issue was sharply focused. Counsel for both
sides made their respective position clear to the jury.” We reject that conclusion.
Regardless of how clearly trial counsel may have articulated their arguments to the
jury, the ultimate responsibility rests with the court to instruct the jury regarding
the appropriate law that is applicable to the evidence. Robinson, supra, 165 N.J.
at 42. The medical judgment charge here was not inaccurate; it was grossly
inadequate when viewed in the context of the evidence presented and the claims
made by plaintiff. Because the inadequate jury instructions had the tendency to confuse
or mislead the jury, we find plain error that was clearly capable of
producing an unjust result. See Conklin v. Hannoch Weisman,
145 N.J. 395, 409
(1996).
III.
We reverse the judgment of the Appellate Division and remand to the Law Division for a new trial.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE COLEMAN’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-44 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
WALTER DAS, etc., et al.,
Plaintiffs-Appellants,
v.
SURESH R. THANI, M.D.,
Defendant-Respondent.
DECIDED May 8, 2002
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST