Lanzet v. Greenberg

• Citation: 126 N.J. 168,594 A.2d 1309
• Parties: Esther LANZET, administratrix ad prosequendum of the Estates of Anna Lanzet and Max Lanzet, deceased, Plaintiff-Appellant, v. Lawrence M. GREENBERG, M.D.; Saveren Scannapiego, M.D.; Rose L. Oen, M.D.; and Tallat Bekhit, M.D., Defendants-Respondents, and (fictitiously named) John Doe, M.D.; Richard Row, M.D.; Jane Doe, R.N.; Mary Roe, R.N.; and Greenville Hospital, Defendants.
• Decision Date: 04 September 1991
• Court: United States State Supreme Court (New Jersey)

Page 168

126 N.J. 168

594 A.2d 1309

Esther LANZET, administratrix ad prosequendum of the Estates

of Anna Lanzet and Max Lanzet, deceased, Plaintiff-Appellant, v. Lawrence M. GREENBERG, M.D.; Saveren Scannapiego, M.D.;

Rose L. Oen, M.D.; and Tallat Bekhit, M.D.,

Defendants-Respondents,

and

(fictitiously named) John Doe, M.D.; Richard Row, M.D.;

Jane Doe, R.N.; Mary Roe, R.N.; and Greenville

Hospital, Defendants.

Supreme Court of New Jersey.

Argued Feb. 13, 1991.

Decided Sept. 4, 1991.

Francis X. Dorrity, Jersey City, for plaintiff-appellant.

Hugh P. Francis, for respondent Rose L. Oen, M.D. (Francis & Berry, attorneys, Evelyn C. Farkas, on the brief), Morristown.

Robert D. Kretzer, Jersey City, for respondent Tallat Bekhit, M.D. (McDonough, Korn & Eichhorn, Westfield, attorneys).

Neil Reiseman for respondent Saveren Scannapiego, M.D. (Reiseman, Mattia & Sharp, attorneys, Deirdre Dennis Ferrie, on the brief), Roseland.

Bradley M. Wilson, for respondent Lawrence M. Greenberg, M.D. (Feuerstein, Sachs, Maitlin & Fleming, attorneys), West Orange.

The opinion of the Court was delivered by

O'HERN, J.

In this medical-malpractice case, a patient undergoing a rather common cataract procedure lapsed into a coma from which she never recovered. There was clear evidence of neglect by the operating-room physicians adduced from the testimony of the physicians themselves. Their testimony independently established that they did not know among themselves who had the duty to terminate the operation when the patient's vital signs declined. The Appellate Division reversed a jury verdict for damages against the operating-room physicians and a consulting internist, primarily on the basis that plaintiff's expert testimony did not establish a deviation from a required standard of care that was the proximate cause of plaintiff's injuries. We find that the aggregate of the testimony of the parties and the experts was sufficient to sustain the verdict, but we remand for a new trial on other grounds.

Plaintiff's decedent, Anna Lanzet, sustained oxygen deprivation to her brain as a result of cardiac arrest during an eye operation. That deprivation caused brain damage that left her in a persistent vegetative state until her death thirteen months later. During her lifetime, Anna and her husband, Max, instituted this proceeding. Max Lanzet died, and their daughter, Esther Lanzet, has continued the litigation as administratrix ad prosequendum. A jury found all four defendants liable and awarded to the estate of Anna Lanzet damages in the amount of $208,232, the stipulated amount of her medical expenses, and to Max's estate $500,000 on his per quod claim. It awarded nothing to Anna's estate for her pain and suffering. All four defendants moved for judgment notwithstanding the verdict, a new trial, a remittitur on Max's damages, or "any other relief pursuant to Rule 4:49-1 and 2." Plaintiff moved for a new trial on Anna's damages. The trial court denied the motions for judgment notwithstanding the verdict, granted defendants' motions for a new trial on the per quod award, and granted plaintiff's motion for a new trial on Anna's damages, limited to damages arising from her disability and impairment. The Appellate Division denied defendants' motions for interlocutory appeal from the judgment on liability but granted plaintiff leave to appeal. It then affirmed the trial court's order that limited Anna's claim to disability and impairment, explicitly excluding pain and suffering. 222 N.J.Super. 540, 537 A.2d 742 (1988).

On retrial, the jury returned a verdict of $1,300,000 for Anna's disability and impairment and $260,000 on Max's per quod claim. Defendants appealed. The Appellate Division held that plaintiff had failed to prove a prima facie case because the medical expert's testimony had failed adequately to establish the relevant standard of care and causation. The court therefore held that the defendant physicians were not liable and reversed the order denying judgment notwithstanding the verdict. 243 N.J.Super. 218, 579 A.2d 309 (1990). We granted certification, 122 N.J. 396, 585 A.2d 395 (1990), and now reverse in part the judgment of the Appellate Division. We hold that the evidence sufficed to establish a standard of care, a deviation from that standard, and a causal link between the deviation and the injury. We believe, however, that in the circumstances of this case, because the instructions to the jury did not recite sufficiently the principles of medical causation that applied to the proofs before the jury, the proper appellate response is to order a new trial rather than enter judgment for either party.

I

Because we are reviewing the denial of a judgment notwithstanding the verdict, we view the facts in the light most favorable to plaintiff. Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969); R. 4:40-2. Judge Antell, writing for the Appellate Division, accurately and concisely summarized what happened in the hospital:

Anna Lanzet was admitted on August 28, 1983, to Greenville Hospital in Jersey City for surgery the following day. Dr. Oen, an internist, examined her on the day of her admission and prescribed Hydro-DIURIL, a diuretic, to lower her blood pressure. Mrs. Lanzet, who was 65 years old, had been treated for high blood pressure for the previous two years. Dr. Oen then cleared the patient for surgery the following morning and recommended a local anesthesia.

On the morning of surgery Dr. Oen was notified that Mrs. Lanzet's blood pressure was again elevated to a reading of 170/100. By telephone, Dr. Oen then prescribed an administration of Lasix, another diuretic. The medication was given and the patient's blood pressure returned to 140/94. She was then again cleared for surgery by Dr. Oen.

Dr. Bekhit, the anesthesiologist, also examined Mrs. Lanzet on the evening of August 28 and again on the morning of surgery. He knew that a drug had been administered to lower the patient's elevated blood pressure, and he concluded from his examination that surgery was not contraindicated. Before the operation, Dr. Bekhit discussed the case with Dr. Greenberg, who, assisted by Dr. Scannapiego, was to perform the cataract surgery. Since it was to be done under a local anesthetic, Dr. Bekhit's role was essentially to monitor the patient and to respond to emergencies involving her vital signs. [243 N.J.Super. at 222-23, 579 A.2d 309.]

We note several additional details regarding the operation for a complete record. Dr. Oen's initial assessment of Anna's readiness for surgery included a review of her radiologist's x-ray report. The radiologist had concluded that she suffered from chronic congestive heart failure and an enlarged heart. Dr. Oen disagreed with that reading. She did not consult with the radiologist about the divergent readings.

The cataract operation was performed under local anesthesia. The anesthetic was injected into the sensory nerves behind the eyeball. That anesthetic will, in many instances, prevent stimulation of the vagal nerve, which in turn will slow the heart rate. The operation consisted of a surgical slice into the eye, removal of the cataract, insertion of a plastic lens, and resealing of the eye.

One of the ophthalmologic surgeons, Dr. Greenberg, performed the surgery. Dr. Scannapiego, also an ophthalmologist, acted as assistant surgeon. Throughout the operation, both of the surgeons had to maintain a constant focus on the patient's eye, each through a separate microscope in the operating room, somewhat as if they were viewing the eye through a twin set of binoculars. The rest of Anna Lanzet's body was under what was described as a tent-like drape. Only her upper face was visible to the eye surgeons.

Throughout the operation, Dr. Greenberg sat at the head of the operating table. Dr. Scannapiego sat just to his left. Dr. Bekhit, the operating-room anesthesiologist, was at Dr. Greenberg's right, beside the patient. He had access to the patient's arm and hand. There was also an electrocardiogram (EKG) machine in the operating room. When attached to the patient, that machine constantly reports a patient's pulse rate and emits (we are told in this case) both audible and visible signals. The former is referred to as a "beep" and the latter as a "monitor," presumably an illuminated numerical reading. A "code" is a signal to available heart emergency teams to report immediately to the scene of need to administer cardio-pulmonary resuscitation (CPR) to the patient.

Judge Antell recounted the events during the operation:

Surgery began at approximately 11:15 a.m. after the patient had been given 1 cc of Innovar (a very small dose), a sedative which plaintiff's expert acknowledged to be a "perfectly appropriate medication to give preoperatively." At 11:20 a.m. it was noted that the patient's pulse had dropped to 45 from a reading of 65 at 11:10 a.m. Dr. Bekhit responded by administering intravenously .4 milligrams of Atropine and after one or two minutes the rate returned to 60, an acceptable level for surgery. Between 11:32 and 11:35 a.m. the pulse rate resumed its decline and fell below 40. Thereupon another .2 milligram dose of Atropine was administered and a third administration was given between 11:36 and 11:37 a.m. At 11:40 a.m., when the rate dropped to 20 and the patient became cyanotic [blue discoloration attributable to loss of oxygen], a code was called and the operating team applied themselves exclusively to resuscitative measures. By this time, however, the curtailed blood flow to the brain and the resulting oxygen starvation resulted in a global cerebral hypoxia which left Mrs. Lanzet in a chronic persistent vegetative state until her death some 13 months later. [243 N.J.Super. at 223, 579 A.2d 309.]

II

The qualitative difference between the standard to grant a new trial and the standard to grant a judgment notwithstanding the verdict must be recognized. A motion for a judgment...