Opinion
DOCKET NO. A-3477-11T1
07-30-2013
DAYTON LEE JACKSON, an infant, by his parents and Guardians Ad Litem, LISA M. ROMAN and DARIL L. JACKSON, and LISA M. ROMAN and DARIL L. JACKSON, Individually, in their own right, Plaintiffs-Appellants, v. LEONARD GOLDSMITH, D.O., KIM MIRYE, M.D., MARYANN MCCLARNON, R.N. a/k/a KAREN MCCLARNON, R.N., JUDITH NELSON, R.N., ROSEMARIE MUSCI, R.N., PHILOMENA JOSEPH, R.N., VIRTUA HEALTH, VIRTUA WEST JERSEY HOSPITAL VOORHEES, Defendants, and JANE IERARDI, M.D., NEWBORN HEALTH ASSOCIATES, and DANIELLE GREENO, N.N.P., Defendants-Respondents.
Joshua Van Naarden (Ross Feller Casey, LLP) argued the cause for appellants (Mr. Van Naarden and Robert Robert Ross, attorneys; Mr. Van Naarden and Mr. Ross, of counsel and on the brief). Jay J. Blumberg argued the cause for respondent Jane Ierardi, M.D. (Law Offices of Jay J. Blumberg, attorneys; Mr. Blumberg, of counsel and on the brief; Christopher M. Wolk, on the brief). Timothy P. O'Brien argued the cause for respondent Danielle Greeno, N.N.P. (Crammer, Bishop & O'Brien, attorneys; Mary Ann C. O'Brien, on the brief). William G. Theroux argued the cause for respondent Newborn Health Associates (Buckley Theroux Kline & Petraske, LLC, attorneys; Mr. Theroux, of counsel; Karla M. Donovan, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2110-07.
Joshua Van Naarden (Ross Feller Casey, LLP) argued the cause for appellants (Mr. Van Naarden and Robert Robert Ross, attorneys; Mr. Van Naarden and Mr. Ross, of counsel and on the brief).
Jay J. Blumberg argued the cause for respondent Jane Ierardi, M.D. (Law Offices of Jay J. Blumberg, attorneys; Mr. Blumberg, of counsel and on the brief; Christopher M. Wolk, on the brief).
Timothy P. O'Brien argued the cause for respondent Danielle Greeno, N.N.P. (Crammer, Bishop & O'Brien, attorneys; Mary Ann C. O'Brien, on the brief).
William G. Theroux argued the cause for respondent Newborn Health Associates (Buckley Theroux Kline & Petraske, LLC, attorneys; Mr. Theroux, of counsel; Karla M. Donovan, on the brief). PER CURIAM
On December 21, 2011, a jury returned a no cause of action verdict against defendants Jane Ierardi, M.D., Danielle Greeno, N.N.P., and Newborn Health Associates (Newborn Health). Plaintiffs are Dayton Lee Jackson, an infant, by his parents and guardians ad litem Lisa M. Roman and Daril L. Jackson, and Lisa M. Roman and Daril L. Jackson, individually. Dayton was born July 26, 2006, at twenty-seven weeks, weighing just under two pounds, and measuring twelve inches long. Plaintiffs appeal and we affirm.
I
Dayton was admitted to Virtua Hospital's neonatal intensive care unit (NICU) for preterm babies, after his birth on July 26, 2006. On August 3, 2006, two unsuccessful attempts were made to insert a PICC line. Such catheters, which are very thin and flexible, are inserted into the vein of the arm and then threaded through to a major vein near the heart. They provide prolonged access for the infusion of fluids, nutrients, and medications, in place of repeated intravenous injections.
During the early morning hours of August 4, 2006, Maryann McClarnon, R.N., also known as "Karen McClarnon, R.N.," inserted a PICC line in Dayton's left arm. Because she was not yet certified by the hospital to perform the procedure, she was supervised by Philomena Joseph, R.N., who had experience in the placement of PICC lines.
Also spelled Filomena in the appellate record.
Greeno was also working in the NICU that night as the on-call neonatal nurse practitioner. Following insertion, she ordered a chest x-ray to confirm the proper placement of the PICC line. Greeno explained that in order to administer fluids, the x-ray she ordered had to show the tip in a central location. The x-ray would also reveal if the PICC line was "coiled or flipping up into the neck or making a hairpin turn and coming back out."
The chest x-ray, taken at 2:40 a.m. on August 4, 2006, revealed that the catheter tip was beyond the mid-clavicular point and over the innominate vein. Greeno therefore concluded that the PICC line was in proper position for use.
Between 7:30 and 8:00 a.m. the following morning, Greeno advised Leonard Goldsmith, D.O., the attending neonatologist on the overnight shift, of the placement of the PICC line and asked him to look at the x-ray taken at 2:40 a.m. Goldsmith reviewed the film and considered it unremarkable.
At 8:00 a.m. on August 4, 2006, Ierardi replaced Goldsmith as the attending neonatal physician. Ninetta Dickerson, N.N.P., came on duty as the nurse practitioner.
At 8:10 a.m. on August 4, 2006, a second x-ray was taken of Dayton's chest to address breathing issues. Dickerson subsequently examined Dayton and wrote in the chart that the PICC line had been inserted the previous night in the left arm and that the most recent x-ray showed the line at his shoulder. At that time there were no perfusion, or blood flow, problems.
Ierardi also examined Dayton, whom she described as an "acutely ill premature baby with very severe lung disease." She also checked the PICC line. Ierardi's training did not limit PICC line placement to the superior vena cava (SVC), the largest vessel with the best longevity.
At approximately 5:00 p.m., Rosemarie Musci, R.N., examined Dayton and noticed his left hand and forearm were blanched, and informed Ierardi without delay. Ierardi, in turn, immediately examined the child. Musci told her that the blanching had just occurred. Ierardi described Dayton's left arm as blanched and having poor perfusion. As soon as she suspected that there was an ischemia or occlusion or some type of interruption of the blood supply to the arm and believed an artery was compromised, she pulled the line.
Although the perfusion of Dayton's arm slowly improved, some areas remained blanched. Ierardi noticed blood flow at the site where the catheter had been removed, confirming her belief that the PICC line had been placed in an artery. She attempted to take remedial steps, but by 8:00 a.m. concluded that Dayton's arm had sustained some permanent damage despite improvement. Ierardi believed that McClarnon had mistakenly placed the catheter in an artery, not a vein.
Goldsmith observed Dayton's ischemia and obtained a portable Doppler device to attempt to measure pulses. He could not identify any blood at the wrist or elbow. He reviewed the second x-ray, but did not consider the left axillary region in the shoulder area to be a central location. Goldsmith then called Sarah Jones, M.D., a pediatric surgeon, for a consult. Jones examined Dayton that morning, finding that his injury was significant. She did not review his chest x-rays. After taking additional ameliorative steps, Jones and Goldsmith decided to transfer the baby to NICU at Thomas Jefferson University Hospital, where Jones continued to treat him.
On September 11, 2006, Dayton was transferred to Children's Hospital of Philadelphia. Two days later, at the age of six weeks, surgeons amputated his left arm below the elbow.
Greeno, called by plaintiffs as an adverse witness in their case-in-chief, testified that the goal of any insertion was to place the PICC line in the SVC, one of the great vessels near the heart, as it provided the least resistance to the flow back to the heart of fluids, antibiotics, or blood itself. Greeno believed the PICC line could be placed in another vein, so long as it was centrally located. She had never encountered a situation where the PICC line was placed in an artery.
Greeno relied on the nurse who placed the PICC line to report problems, and had McClarnon expressed any concern regarding a possible arterial placement, she would have immediately removed it. McClarnon believed the PICC line had been successfully inserted into the SVC. Because the nursing staff did not report any difficulties, Greeno assumed the catheter had been placed in a vein, and did not order any further testing, which would have required an echocardiogram, arterial blood gas test, or ultrasound. Greeno did not recall discussing the x-ray with Goldsmith. She testified that the PICC line functioned throughout the night and she saw no indication of any perfusion problems with Dayton's arm.
Goldsmith, board certified in neonatal and perinatal medicine, also called by plaintiffs in their case-in-chief, understood proper insertion to mean placement of the PICC line in the SVC, but believed placement anywhere in the chest of a neonate was acceptable. He had placed approximately 400 PICC lines during his career, none in arteries. Goldsmith also relied on the person who inserted the PICC line to determine whether it was placed in an artery or a vein.
Ierardi explained that an x-ray would not reveal whether a PICC line had been placed in a vein or an artery. She too relied on the nurse who inserted the PICC line to place it into a vein. Prior to having Dayton as a patient, Ierardi had never encountered a case where a PICC line entered into an artery instead of a vein.
Based on her review of the x-rays, Ierardi believed that the PICC line was properly placed. Although she noted that in the first x-ray the tip sat in the area of the left innominate vein, a central location, in the second, the tip had migrated to the axillary area or armpit in the shoulder area. Movement was a known occurrence as a PICC line was often slippery for the first twenty-four hours and moved "in and out" all the time in babies. In Ierardi's view, the axillary vein was a central location appropriate for use. Nothing on the x-rays indicated that the PICC line should be removed. She commented that the line kept Dayton alive, two prior attempts at placement had failed, and there was no guarantee that a fourth would be more successful. Ierardi did not order other tests, because of the concern that an arterial gas test could ruin the lines, thereby increasing the jeopardy to which the baby was exposed, and the fact that during the night shift, an echocardiogram could take two to three hours to obtain. If she had suspected arterial placement, or that Dayton's arm was compromised in any way, she would have simply removed the catheter.
II
Jerrold S. Schlessel, M.D., was plaintiffs' expert in neonatal and perinatal medicine, having been employed for more than thirty years as a neonatologist in NICUs in the New York metropolitan region. Although he had, over his career, reviewed 300 to 400 x-rays to confirm proper PICC placement, he had never personally inserted a PICC line.
Schlessel opined, having reviewed both of Dayton's chest x-rays, that neither showed the PICC line in optimal placement. He believed optimal placement required placement of the catheter tip in the lower one-third of the SVC near the junction of the SVC and right atrium. Schlessel agreed, however, that it was also acceptable to place a PICC line in the chest area, including the innominate vein, although such placements carried a greater risk of complications such as pleural effusion.
Schlessel testified that the records showed no clinical evidence of perfusion problems in Dayton's left arm between the time the PICC line was inserted in Dayton's arm and the time Ierardi took over his care. He noted, however, that the first x-ray showed the catheter tip was over Dayton's clavicle, and that in the second x-ray the tip was outside the chest cavity in the shoulder or axillary region. Schlessel surmised that the tip had migrated peripherally as the blood flow in the artery pushed the catheter away from the heart.
Schlessel did not believe that a PICC line belonged in an artery, because of the high risk of an ischemic reaction. Since it was not possible to determine from an x-ray whether the PICC line was in a vein or artery, he believed the standard of care required a treating physician to order an echocardiogram or echovasculargram, or to obtain an arterial blood gas test through the PICC line. In his opinion, Greeno deviated from accepted standards of medical care by determining from only a chest x-ray that the PICC line was properly placed and appropriate for use. He believed Dayton would not have suffered the injury to his arm if Greeno had recognized the improper placement on the initial x-ray, and pulled the line between 2:40 to 3:00 a.m.
Schlessel also concluded that Ierardi deviated from accepted standards of care by failing to recognize from the x-rays that the catheter tip was improperly positioned, by failing to confirm that the PICC line was placed in a vein and not an artery through other tests, by continuing to infuse fluids and medicines through the catheter, and by failing to remove it in a timely manner. In his opinion, Ierardi's deviations contributed to the loss of Dayton's arm. Schlessel could not say to a reasonable degree of medical certainty, however, that Dayton's injury would have been avoided if Ierardi had realized the PICC line was improperly placed and removed it at the time of the second x-ray.
Ierardi's expert, Charles Bender, M.D., was a board-certified physician in pediatrics, neonatology, and perinatology. At the time of trial, he worked approximately five or six months each year as a neonatologist in the NICU at Magee-Women's Hospital of the University of Pittsburgh Medical Center, and also spent time teaching and performing administrative duties as Assistant Chief of Newborn Medicine for the University system. In the NICU, he regularly confirmed the placement of PICC lines, and monitored them. Bender testified that PICC lines were not designed to go into arteries, and that he had never seen that happen at Magee where 150 to 200 PICC lines were inserted each year. Misplacement occurred very rarely, and he never saw a PICC line jump from a vein to an artery.
Bender reviewed Dayton's medical records from Virtua Hospital from July 26 to August 5, 2006, including the two x-rays taken on August 4, 2006. He testified that the first x-ray showed the PICC line in the subclavian vein, which he considered acceptable and appropriate for use. He acknowledged that the optimal placement of the catheter tip would have been in the lower one third of the SVC, near the junction of the right atrium. Bender noted, however, that there was a difference between what was optimal and practical for critically ill babies. In his opinion, the standard of care did not require the insertion of the PICC line in the SVC for proper placement. Instead, Bender emphasized that the line had to be centrally placed, meaning the tip must be placed in a vessel with a high amount of blood flow such as the subclavian or axillary vein.
In Bender's opinion, Ierardi did not deviate from accepted standards of medical practice in her care and treatment of Dayton. He believed there was nothing in the x-ray taken at 2:40 a.m. to lead Ierardi to immediately remove the PICC line. Moreover, there was no indication from clinical examinations of any perfusion problem prior to the evening of August 4, 2006. Given the difficulty of inserting a PICC line, and the two previous unsuccessful attempts, he did not believe it would have been appropriate to remove the line earlier. He also did not believe that Ierardi violated the standard by failing to obtain an echocardiogram to confirm the line's placement, explaining that such tests rarely added any information beyond that revealed by an x-ray and that given Dayton's size and fragility, this test could have potentially stressed him.
John Lorenz, M.D., defendants' expert in neonatology and an attending physician in the NICU at Morgan Stanley Children's Hospital of New York-Presbyterian, believed the placement of the PICC line in the innominate vein as shown on the first x-ray was appropriate for its intended use, even if its location was not optimal. Although the second x-ray showed the tip of the catheter in a different location, "not as far into the venous system," he believed its placement was also acceptable to administer fluids and medications. Lorenz testified that only one of five PICC lines, or twenty percent, reached the optimal position, noting: "And the smaller the bab[y], the harder it is."
In Lorenz's opinion, it was not possible to tell from the x-rays whether the PICC line was in a vein or an artery because "until you get to the heart, the veins and arteries are very closely associated." He considered inadvertent arterial placements very rare, and indicated that he knew of only one other case. Lorenz said the best way to avoid misplacement was to take care when placing the PICC line, and noted that he never used an echocardiogram to confirm placement.
Based on Dayton's medical records, Lorenz believed the blanching of his left arm was due to sudden thrombosis. He explained that it was difficult to miss a baby's white forearm, and that a thrombosis caused by a catheter in an artery was usually "pretty abrupt."
Defendants also introduced the expert testimony of Paula Brill, M.D., a board-certified pediatric radiologist, who reviewed six to ten PICC line placement x-rays every day. She agreed with the interpretations of the radiologist at Virtua Hospital and of Greeno about the PICC line placement. Brill believed their readings fell within accepted standards.
Brill also assumed that the person who inserted the PICC line placed it in a vein. She explained that misplacement of a PICC into an artery rarely occurred and that the person who placed the line was in the best position to observe "arterial pulsations, the arterial appearance of the blood return, or clinical signs of arterial compromise." Brill never saw an arterial placement in a newborn infant. In her opinion, neither x-ray suggested the PICC line had been placed in an artery.
III
Initially, plaintiffs named defendants Goldsmith, Ierardi, Mirye Kim, M.D., McClarnon, Virtua Health and Virtua West Jersey Hospital Voorhees (collectively, Virtua Hospital) in their complaint. An amended complaint was subsequently filed adding Newborn Health, Greeno, Judith Nelson, R.N., Musci, and Joseph, Goldsmith and Greeno were employees of Newborn Health.
The court granted Goldsmith and Kim's motions for summary judgment for reasons not relevant to this appeal. Plaintiffs reached a settlement with Virtua Hospital, McClarnon, Nelson, Musci, and Joseph for $2,475,000 prior to trial.
Before the trial, plaintiffs sought to preclude any reference to the settlement, which motion was denied. In fact, the court gave the jury a preliminary and closing charge with regard to settling defendants. Pre-trial, the court granted Newborn Health's motion to preclude any vicarious liability claims against Dickerson. The court dismissed, by consent, the parents' individual claims against defendants along with any direct claims against Newborn Health.
Plaintiffs were not permitted to cross-examine witnesses with medical literature on the grounds that the potential use of such literature was not disclosed during discovery. The court also ruled that because plaintiffs had not properly authenticated hospital policies and procedure regarding the training of nurses in the insertion of the peripherally inserted central catheter (PICC) line, that those materials could not be introduced. Additionally, the court barred Goldsmith, whom plaintiffs claimed was an adverse witness, from commenting on x-rays that he did not review at the time he was treating Dayton. The court also struck portions of Jones's videotaped trial depositions.
Plaintiffs' motion for judgment notwithstanding the verdict, or alternatively, a new trial, was denied on February 17, 2012. This appeal followed.
On appeal, plaintiffs raise the following points for our consideration:
POINT I: THE LOWER COURT'S MEDICAL JUDGMENT CHARGE WAS IMPROPER
POINT II: THE LOWER COURT'S SETTLING DEFENDANT CHARGES WERE IMPROPER
POINT III: THE LOWER COURT'S REFUSAL TO PERMIT CROSS EXAMINATION WITH MEDICAL LITERATURE WAS IMPROPER
POINT IV: THE LOWER COURT'S REFUSAL TO PERMIT CROSS EXAMINATION WITH HOSPITAL POLICIES AND TRAINING MATERIALS WAS IMPROPER
POINT V: THE LOWER COURT'S REFUSAL TO PERMIT CROSS EXAMINATION OF ADVERSE WITNESS LEONARD GOLDSMITH, D.O., AND IN LIMITING HIS TESTIMONY REGARDING THE SECOND RADIOGRAPHIC CHEST FILM WAS IMPROPER
POINT VI: THE LOWER COURT'S STRIKING PORTIONS OF TREATING PHYSICIAN, SARAH JONES, M.D.'S TESTIMONY WAS IMPROPER
POINT VII: THE LOWER COURT'S PERMITTING NURSE MCCLARNON ON THE VERDICT SLIP WAS IMPROPER
POINT VIII: DISMISSAL OF PLAINTIFFS' VICARIOUS LIABILITY CLAIMS AGAINST NEWBORN HEALTH ASSOCIATES' EMPLOYEE/AGENT SERVANT, NETTA DICKERSON, NP WAS IMPROPER
IV
A court must provide clear and correct jury charges, and the failure to do so may constitute plain error. Das v. Thani, 171 N.J. 518, 527 (2002). Jury charges must set forth the issues, correctly state the applicable law, outline the jury's function, and plainly explain how the jury should apply the legal principles to the facts of the case. Velazquez v. Portadin, 163 N.J. 677, 688 (2000). "As a general rule, an appellate court will not disturb a jury's verdict based on a trial court's instructional error '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 v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)).
Our courts do not hold physicians liable for honest mistakes in diagnosis or in judgment as to the course of treatment. Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 627 (1999); Schueler v. Strelinger, 43 N.J. 330, 344-45 (1964). "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.'" Das, supra, 171 N.J. at 527 (quoting Velazquez, supra, 163 N.J. at 687). In cases involving the latter category, as here, "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." Id. at 527-28 (quoting Velazquez, supra, 163 N.J. at 690); see Shectman v. Bransfield, 403 N.J. Super. 487, 497-500 (App. Div. 2008) (holding that the trial court erred by failing to instruct the jury on medical judgment, where experts testified that there was sufficient evidence of two different "schools of medical treatment" with respect to how a psychiatrist monitors a patient, and that the choice was a matter of judgment); Saks v. Ng, 383 N.J. Super. 76, 95-97 (App. Div.) (holding that the defendants were entitled to "exercise of medical judgment" charge, where issue related to choice of anesthesia), certif. denied, 186 N.J. 605 (2006).
A medical judgment charge, however, does not apply when a physician selects a course of action that has no "substantial support as proper practice by the medical profession," Schueler, supra, 43 N.J. at 346, or when the alleged error involves the performance of a medical procedure, Aiello, supra, 159 N.J. at 632 (holding that a surgeon was not entitled to medical judgment instruction because his performance of laparoscopic tubal ligation did not involve exercise of judgment or choice between alternative courses of treatment); Patton v. Amblo, 314 N.J. Super. 1, 8-9 (App. Div. 1998) (holding the defendant was not entitled to an exercise of judgment charge when the alleged medical malpractice consisted of making too deep an incision).
Thus, while physicians are permitted to exercise their judgment, they will be liable for malpractice if such judgment departs from the requirements of accepted medical practice. Aiello, supra, 159 N.J. at 627. The medical judgment charge, therefore, must specify what action qualifies as an appropriate exercise of judgment. Velazquez, supra, 163 N.J. at 690. "Court and counsel should analyze the parties' testimony and theories in detail, on the record, to determine whether the charge is applicable at all and, if so, to which specific issues." Ibid. The court and counsel should then tailor the charge to the facts of the case. Ibid. Otherwise, an overly broad medical judgment charge may improperly insulate the defendant from liability. Id. at 689-91 (requiring new trial where court gave undifferentiated instruction on medical judgment when proofs implicated the question of deviation from the standard of care); see also Das, supra, 171 N.J. at 529-30 (holding that the court erred by failing to instruct the jury that the medical judgment defense was unavailable if it accepted patient's theory that the defendant deviated from the accepted standard of care by not using more modern fetal monitoring techniques during her pregnancy).
At the charge conference, defendants' counsel requested the court give the jury a medical judgment charge with respect to Greeno and Ierardi's decisions regarding confirmation of the PICC line placement and use. Plaintiffs' counsel objected, on the theory that the testimony had characterized the placement of the PICC line as a deviation from the standard of care. The court ruled, however, that defendants had made a judgment call when they interpreted the x-ray to mean the line was acceptable to use, instead of making the alternative choice to remove it.
The court essentially followed Model Jury Charge (Civil), 5.50(G), "Medical Judgment" (2002), and provided the jury with the following instruction:
A doctor and/or nurse practitioner may have to exercise judgment when treating a patient. However, alternate 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 treatment alternatives, and if so, . . . [w]hether or not the doctor and the nurse practitioner rendered services to this patient in accordance with accepted standards of medical practice.
If you determine that the standard of care for treatment with respect to the proper positioning and use of the PICC line did not allow for the choices or judgments the defendant doctor and/or nurse made here, then the doctor and/or nurse practitioner would be negligent.
In reliance on their expert's testimony, plaintiffs contend that Ierardi and Greeno deviated from the standard of care by failing to confirm the catheter was in a vein and not an artery, that Ierardi also deviated from the accepted standard by failing to obtain an echocardiogram or arterial blood gas test to confirm the line's placement, by continuing the infusion of fluids, nutrients, and medications, and by failing to remove the line in a timely manner.
But Schlessel acknowledged that an arterial blood gas test posed a risk of clotting the PICC line which could result in its removal. He also acknowledged that even if the PICC line did not reach the SVC, there were situations in which it was still acceptable for the intended use. Even plaintiffs' witness agreed that placement in a location in the chest such as the innominate vein is acceptable under the standard of care, despite greater risks for complications.
Defendants' expert, Bender, testified that placement of the tip of the PICC line in the SVC was optimal, but that it was nonetheless accepted medical practice to place the line in a central location. Dayton's PICC line, in his opinion, had been centrally placed and properly used. In the absence of any indications of perfusion and insertion problems, there was no reason for Ierardi to have removed it. Nor did Bender believe it was necessary to perform an echocardiogram or arterial blood gas test. He noted, like Schlessel, that drawing blood through such a small line created a substantial risk of clotting which could potentially lead to the removal of this lifeline.
Lorenz testified in similar fashion. He said that the two chest x-rays depicted the placement of the PICC line as appropriate for use.
Although Greeno and Ierardi agreed that placement of the PICC line in the SVC was optimal, it was also acceptable medical practice to place it in another vein, so long as that vein was centrally located in the body, as close to the heart as possible. Ierardi also noted that PICC lines were difficult to place, very important for Dayton's well-being, and two prior attempts at placement had been unsuccessful.
Thus all the experts testified that acceptable medical practice did not require placement of the PICC line in the SVC, while Schlessel agreed that placement of the PICC line in the innominate vein was acceptable. Given the difficulties experienced in placing the catheter into Dayton, and its important function, in the absence of perfusion or problems at insertion, the choice of its placement and the decision not to remove it were matters of medical judgment.
Furthermore, defense counsel asked the trial judge to provide the charge only as to decisions by Greeno and Ierardi regarding the proper placement and use of the PICC line. And plaintiffs' counsel agreed with the proposed charge. The court limited the charge to the issue of proper positioning and use. Use of the medical judgment charge was therefore not improper, nor did it improperly insulate Ierardi or Greeno from liability. See Velasquez, supra, 163 N.J. at 690-91. Hence, we conclude the court did not err by instructing the jury in that manner.
V
When one or more defendants settle with a plaintiff prior to trial, a court should advise the jury of that fact. Theobold v. Angelos, 40 N.J. 295, 303-04 (1963). The thrust of the policy is to avoid speculation by the jury "as to the reason for the absence from the proceedings of an additional potentially liable person." Id. at 304. It is also important to inform jurors about a settlement where the remaining and settling defendants are jointly responsible for a plaintiff's injuries and losses. Id. at 303-04.
As the trial judge said: "Absent some sort of knowledge on the part of the jury as to what's going on here and why certain parties or individuals are being addressed that are not sitting there at the table, it's risking confusion, it seems to me." Accordingly, the court gave the following instruction at the start of the trial:
Now Maryann McClarnon, R.N.; [sic] Philomena Joseph, R.N., Judith Nelson, R.N.; [sic] Rosemarie Musci, R.N. and Virtua Hospital were originally named as defendants in this case.See Model Jury Charge (Civil), 1.17, "Instructions to Jury in Cases in Which One or More Defendants Have Settled with the Plaintiff" (1997). In the final charge to the jury, the judge repeated this instruction only as to McClarnon.
Before the trial started, plaintiff and Maryann McClarnon, R.N.; [sic] Philomena Joseph, R.N.; [sic] Judith Nelson, R.N.; [sic] Rosemarie Musci, R.N. and Virtua Hospital resolved their differences. As a result, they will not be present or represented by an attorney during this trial.
You are not to speculate as to the reasons why the plaintiff and the settling defendants settled their dispute. You should not be concerned about the amount, if any, that may have been paid to resolve the claim against Maryann McClarnon, R.N.; [sic] Philomena Joseph, R.N.; [sic] Judith Nelson, R.N.; [sic] Rosemarie Musci, R.N. and Virtua Hospital. You must decide the case based on the evidence you find credible and the law presented at this trial.
Initially, you will have to decide whether or not the remaining defendants were negligent, proximately causing injuries to the plaintiff. The burden of proof on these issues is on the plaintiff. If you find that one or more of the remaining defendants were negligent, and that such negligence was a proximate cause of the injuries, you must next consider the conduct of the settling defendants.
You will have to determine whether or not one or more of the settling defendants, Maryann McClarnon, R.N.; [sic] Philomena Joseph, R.N.; [sic] Judith Nelson, R.N.; [sic] Rosemarie Musci, R.N. and Virtua Hospital were negligent and the proximate cause of the injuries. The burden of proving that the settling defendants [were] at fault is on the remaining defendants.
In the event that you find that one or more of settling defendants were negligent and a proximate cause of the injuries, you must apportion fault in terms of percentages
among or between the settling defendants and the remaining defendants.
Here the court's preliminary and final instructions tracked the language of Model Charge 1.17. The judge informed the jury that other defendants had settled their claims with plaintiffs, that jurors should not speculate about either the reasons therefor, or the amount of damages. The court also instructed the jury to consider the conduct of the settling defendant only if it found the remaining defendants were negligent. We presume the jury followed the court's instructions. See State v. Loftin, 146 N.J. 295, 390 (1996).
Moreover, in the final charge, the court tailored the instruction to the facts of the case by naming only McClarnon as a settling defendant and not the others. Contrary to plaintiffs' assertion, the jury had substantial evidence with which to evaluate the care that McClarnon rendered to Dayton without the need for expert testimony.
For example, it was undisputed that McClarnon was the nurse who placed the PICC line in Dayton's arm. Greeno, Ierardi, and Goldsmith testified that they relied on the person who inserted the catheter to place it into a vein, and to report any problems. Ierardi specifically said that McClarnon mistakenly placed the PICC line in an artery.
If the jury had found that the remaining defendants were responsible for Dayton's injuries, it would have apportioned damages between them and McClarnon. The fact of the settlement, therefore, was properly brought before the jury. In any event, because the jury found that the remaining defendants were not negligent, plaintiffs cannot show prejudice.
VI
Plaintiffs also contend the court erred by refusing to permit them to use medical literature to cross-examine adverse witnesses such as Greeno and Goldsmith, and Lorenz, a defense expert. Defendants served plaintiffs with an interrogatory that asked if they or their expert intended to rely on any treatises at trial; plaintiffs identified no medical literature. When defendants objected to witnesses being cross-examined based on medical literature, plaintiffs responded that they were not required to give notice so long as their use of the materials was limited to the cross-examination of an adverse witness. The court sustained the objection, explaining that plaintiffs should have known in advance the treatises it intended to use for impeachment, that the failure to provide notice had an ambush effect, and that the interests of fairness and justice required disclosure. It also found no prejudice because plaintiffs could have elicited similar testimony from their experts.
Clearly, the purpose of discovery is to eliminate, insofar as possible, concealment or surprise at trial. Liguori v. Elmann, 191 N.J. 527, 550 (2007). Interrogatories requesting the names of articles, books, or treatises for use by an attorney on cross-examination are proper subjects of discovery. Huie v. Newcomb Hosp., 112 N.J. Super. 429, 432 (App. Div. 1970); Myers v. St. Francis Hosp., 91 N.J. Super. 377, 390-91 (App. Div. 1966); Van Langen v. Chadwick, 173 N.J. Super. 517, 524-25 (Law Div. 1980). The mutual exchange of such information lets both sides know before trial what treatises or other texts could be used in cross-examination, and avoids surprises. Myers, supra, 91 N.J. Super. at 391-92. Statements from learned treatises may be used to impeach the credibility of defense and expert witnesses provided there is an acknowledgment that the texts are recognized and standard authorities on the subject. Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 486-88 (1992); See Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, 1991 Supreme Court Committee comment on N.J.R.E. 803(c)(18) (2013) (noting that the learned treatise exception to the hearsay rule followed the decision in Jacober).
Here, plaintiffs called Greeno and Goldsmith as adverse witnesses in their case in chief and, therefore, they knew in advance the medical literature they intended to use to impeach their credibility. Because they did not identify the medical works in their answers to interrogatories, the attempt to use them at trial posed the risk of unfair surprise. See Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000). Moreover, the failure to disclose the medical literature during discovery prevented defense counsel from exploring the issues in depositions. See ibid. (holding incomplete and inaccurate answers to interrogatories prevented counsel for plaintiffs from taking necessary depositions).
Lorenz, who had co-edited a book called Pocketbook in Neonatology, testified that he neither wrote nor edited the section on PICC line placement. The court therefore sustained an objection to questioning him about the treatise on the basis that the testimony could lead to jury confusion and that the relevant response had already been elicited. Such rulings by the court with regard to evidence are discretionary, and we see no abuse of discretion, Parish v. Parish, 412 N.J. Super. 39, 74 (App. Div. 2010), especially since plaintiffs failed to disclose their proposed use of these materials in discovery. Therefore, the court did not err by barring plaintiffs' use of medical literature in cross-examination.
VII
Plaintiffs sought to cross-examine defense witnesses using hospital policies and training materials, specifically, the patient care manual, PICC certification materials, and a nursing standard. The court barred plaintiffs from doing so, in part because the materials did not pertain to the witnesses' duties. Instead, they applied to nurses who provided bedside patient care. Greeno was a neonatal nurse practitioner and advanced practice nurse. Furthermore, when asked about a specific nursing standard, Greeno said it was the first time she had ever seen it, defense counsel objected based on a lack of foundation, and the objection was sustained. The court ruled that it was improper for plaintiffs to cross-examine Greeno with documents she had never seen before, although they could ask questions about the standards or any hospital procedures with which she was familiar.
Ierardi similarly testified she was unfamiliar with any such policies, and had never been informed by the hospital with regard to them. Lorenz testified that when he reviewed the materials, he did not rely upon them in formulating his opinions. In our view, there was simply no basis to allow cross-examination of Greeno or Ierardi with materials that were irrelevant to care they extended to patients in the hospital setting. Accordingly, the court properly excluded the materials on cross-examination. Since Lorenz did not rely upon the hospital policies and procedures to formulate his opinions, there was no impropriety in barring plaintiff from cross-examining him with regard to them.
VIII
The trial judge did not permit plaintiffs to ask leading questions of Goldsmith, nor to examine Goldsmith regarding his reading of the second x-ray. Plaintiffs aver that these rulings were erroneous.
The court stated at the time that the issue could be "revisit[ed]" should Goldsmith prove himself to be a hostile or unresponsive witness. A trial judge has ultimate responsibility to control the trial and is given wide discretion to perform this function. Ryslik v. Krass, 279 N.J. Super. 293, 297 (App. Div. 1995). "The court shall exercise reasonable control over the mode and order of interrogating witnesses . . . so as to . . . make the interrogation . . . effective for the ascertainment of truth, . . . and protect witnesses from harassment or undue embarrassment." N.J.R.E. 611(a). With regard to leading questions, N.J.R.E. 611(c) provides in relevant part:
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls an adverse party or a witness identified with an adverse party, or when a witness demonstrates hostility or unresponsiveness, interrogation may be by leading questions, subject to the discretion of the court.Thus, under N.J.R.E. 611(c), a court has discretion to allow leading questions on direct examination of an adverse witness, even without a showing that the witness is hostile or unresponsive. However, there must be "a real adversarial relationship between examiner and witness." Biunno, supra, comment 8 to N.J.R.E. 611. There was no such adversarial relationship between plaintiffs and Goldsmith. Additionally, the trial judge indicated he would reconsider use of leading questions should Goldsmith's responses prove to be less than forthright.
Goldsmith also stated that he did not examine the second x-ray until the decision had been made to transfer Dayton to Thomas Jefferson Hospital, and only while in the process of putting together necessary information. At that juncture, Dayton's ischemic event had already made it clear to Goldsmith that the PICC line had been inadvertently placed in an artery. He testified that the second x-ray by itself did not indicate whether the PICC line had been properly placed. For this reason, the court ruled that Goldsmith could not be asked about the second x-ray. This was reasonable, as a treating physician may only testify about facts known to him or her based on information received during the course of treatment. Carchidi v. Iavicoli, 412 N.J. Super. 374, 381 (App. Div. 2010). Goldsmith's review of the films were unrelated to diagnosis or treatment. Thus the court properly limited his testimony about the second x-ray and did not abuse its discretion either by denying plaintiffs the right to ask leading questions or by limiting Goldsmith's testimony with regard to the second x-ray.
IX
Jones, during her videotaped deposition, stated that she did not look at the x-rays while Dayton was at Virtua, not even after the line was removed. She also offered her opinion, within a reasonable degree of medical probability, that if Goldsmith had mistakenly interpreted the PICC line as centrally placed, it was more medically likely than not that his interpretation caused Dayton's injury. None of her opinions, however, came into play during the course of her treatment of the child. Therefore, Ierardi's counsel moved to strike those portions of her testimony where she expressed an opinion about the placement of the line and interpreted the x-ray. The court agreed and limited Jones's testimony to her treatment of Dayton at Virtua and Thomas Jefferson; she was not permitted to offer after-the-fact expert opinions.
A treating physician may testify about any subject relevant to his or her patient's evaluation and treatment. Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 314 (1995); Ginsberg v. St. Michael's Hosp., 292 N.J. Super. 21, 32 (App. Div. 1996). Such testimony may include the cause of a patient's 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. Testimony is deemed factual evidence if it is within the treating physician's personal knowledge, obtained from the patient in the course of treatment. Carchidi, supra, 412 N.J. Super. at 381, 383.
Jones was not plaintiffs' expert witness but rather a treating physician testifying as a fact witness. She was not named as an expert witness, nor did she provide a report to defense counsel. Accordingly, the court's decision to exclude portions of her testimony is unobjectionable.
X
Plaintiffs also object to McClarnon's name being placed on the verdict sheet because defendants did not establish through expert testimony that her conduct was the proximate cause of Dayton's injury. The court ruled that there was enough evidence to name her because it was undisputed that she was the individual who mistakenly placed the PICC line in the wrong vessel.
A reviewing court may not reverse a trial court's interrogatories to a jury unless they were "so misleading, confusing or ambiguous that they produced an unjust result." Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 468 (2000); accord Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997). "The purposes of submitting interrogatories to the jury 'are to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized.'" Sons of Thunder, supra, 148 N.J. at 419 (quoting Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968)).
The jury found that Ierardi and Greeno did not deviate from accepted standards of practice. Therefore, the jurors never reached the questions on the verdict sheet dealing with McClarnon, and this issue is moot.
In any event, this argument has no substantive merit. Ample testimony in the record established that McClarnon inserted the PICC line in Dayton's arm, that the PICC line was mistakenly placed in an artery, and that the improper placement caused Dayton's injury. Ierardi also testified that in her opinion as a treating physician, McClarnon had mistakenly placed the line in an artery. Hence McClarnon's name properly appeared on the verdict sheet for the purpose of apportionment of liability.
XI
In granting the pretrial motion for dismissal as to Dickerson, the court found the amended complaint did not name her as a defendant or include claims against her. The court noted that any criticisms regarding her care were made in the expert report and that it would be unfair to compel Newborn Health to assume her defense in the absence of any notice by way of complaint or allegations in the affidavit of merit. Plaintiffs could have amended their complaint but elected not to do so.
Although plaintiffs had ample time and opportunity to add Dickerson's name to the amended complaint, they failed to do so even though their expert reports addressed her conduct. While fictitious-party practice permits the initial filing against an unnamed defendant, it is subject to diligent action by the plaintiff to insert the defendant's real name. Greczyn v. Colgate-Palmolive, 183 N.J. 5, 17 n.3 (2005).
Moreover, contrary to plaintiffs' assertion, they did not submit an affidavit of merit raising issues about Dickerson's care and treatment of Dayton. Under the affidavit of merit statute, N.J.S.A. 2A:53A-27, a plaintiff must provide each defendant with an affidavit of an appropriate licensed person that the defendant's care fell outside acceptable professional or treatment practices. Fink v. Thompson, 167 N.J. 551, 558 (2001). The affidavit prepared by Schlessel addressed only "the defendants named in the Complaint." Additionally, plaintiffs can show no prejudice because the jury returned a no cause verdict as to Newborn Health and its agents Ierardi and Greeno and, therefore, it is highly unlikely that they would have found Dickerson liable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION