Lanzet v. Greenberg
| Decision Date | 19 January 1990 |
| Citation | 579 A.2d 309,243 N.J.Super. 218 |
| Parties | Esther LANZET, administratrix ad prosequendum of the estates of Anna Lanzet and Max Lanzet, deceased, Plaintiff-Respondent, Cross-Appellant, v. Lawrence M. GREENBERG, M.D., Saveren Scannapiego, M.D., Tallat Bekhit, M.D., and Rose L. Oen, M.D., Defendants-Appellants, Cross-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Timothy J. Langan, for defendant-appellant-cross-respondent Dr. Oen (Francis & Berry, attorneys; Timothy J. Langan, Morristown, on the brief).
Robert D. Kretzer, for defendant-appellant-cross-respondent Dr. Bekhit (Lamb, Hartung, Coughlin, Kretzer & Reinman, attorneys; Robert D. Kretzer, Jersey City, on the brief).
Neil Reiseman, for defendant-appellant-cross-respondent Dr. Scannapiego (Reiseman, Mattia & Sharp, attorneys; Deirdre M. Dennis and Neil Reiseman, Roseland, on the brief).
Bradley M. Wilson, for defendant-appellant-cross-respondent Dr. Greenberg (Feuerstein, Sachs, Maitlin & Fleming, attorneys; Bradley M. Wilson, West Orange, on the brief).
Francis X. Dorrity, Jersey City for plaintiff-respondent-cross-appellant Esther Lanzet.
Before Judges ANTELL, ASHBEY and ARNOLD M. STEIN.
The opinion of the court was delivered by
ANTELL, P.J.A.D.
This medical malpractice case arises from the incapacitation and eventual death on September 7, 1984, of Anna Lanzet following cataract extraction and intraocular lens implantation surgery on August 29, 1983. A jury trial was held between February 6, 1986, and March 7, 1986, resulting in a verdict of liability against all four defendant physicians and awarding to the Estate of Anna Lanzet $208,232, her stipulated medical special damages, and to the estate of her husband, Max Lanzet, who died on July 4, 1984, $500,000 per quod.
Plaintiff moved for a new trial as to damages and the defendants cross-moved for judgment n.o.v. or, in the alternative, a new trial or a remittitur with respect to the per quod damages awarded Max Lanzet's estate.
By order of June 20, 1986, the trial court vacated the per quod award to Max Lanzet's estate and ordered a new trial. It also ordered a new trial on damages to Anna Lanzet's estate, limited to the claim of "disability and impairment," concluding that it had erred in refusing to charge that aspect of the claim to the jury. It denied plaintiff's application to have the question of Anna's pain and suffering, for which the jury had awarded nothing, also reconsidered at the new trial. The court denied defendants' cross-motions in all respects.
Following interlocutory review on plaintiff's application, in which we affirmed the order of June 20, 1986, with respect to plaintiff's appeal and in which we dismissed defendant's cross-appeal, Lanzet v. Greenberg, 222 N.J. Super. 540, 537 A.2d 742 (App.Div.1988), the issue of damages was retried in September 1988. That trial resulted in a verdict of $1,300,000 to the Estate of Anna Lanzet for disability and impairment from August 29, 1983, to September 7, 1984, and an award of $260,000 per quod to the Estate of Max Lanzet. The Estate of Anna Lanzet was also allowed prejudgment interest from April 2, 1984, to September 16, 1988, in the amount of $768,803. 35% of the liability was allocated to Greenberg, 35% to Bekhit, 20% to Oen and 10% to Scannapiego. Defendants now appeal from the liability and damage aspects of the judgment.
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.
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, 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.
In bringing this action, plaintiff alleges that each of the defendant doctors contributed by their negligence to the decedent's injury. As to Dr. Oen, the negligence is said to lie in her clearing the decedent for surgery on August 29 without further investigating the cause of her elevated blood pressure on the morning of the surgery. As to Dr. Bekhit, plaintiff maintains that he failed to apply timely and appropriate resuscitative measures in response to the drop in Mrs. Lanzet's pulse rate. As to Drs. Greenberg and Scannapiego, it is alleged that had they been paying attention to the "general well being" of the patient, they would have aborted the operation and would have begun resuscitative measures in sufficient time to avert the global hypoxia.
The pertinent legal principles are settled. Unlike the ordinary negligence case, it is necessary in a medical malpractice action to prove the applicable standard of care by expert testimony since it would otherwise lie beyond the competence of a technically unschooled jury. Where such expert testimony is not provided, "it is proper for the court to grant a dismissal at the close of plaintiff's case." Sanzari v. Rosenfeld, 34 N.J. 128, 135, 167 A.2d 625 (1961).
The basic rule is that a doctor must exercise in the treatment of his patient
the degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in his field. Failure to have and to use such skill and care toward the patient as a result of which injury or damage results constitutes negligence. [Schueler v. Strelinger, 43 N.J. 330, 344, 204 A.2d 577 (1964) ].
Not only must the plaintiff show a departure by defendant from the standard, she must also show "a fact equally essential to recovery of damages, i.e., that the deviation was the reasonably probable cause of the injurious condition arising thereafter." Germann v. Matriss, 55 N.J. 193, 208, 260 A.2d 825 (1970). The governing principles were woven together in the following language of Schueler v. Strelinger, 43 N.J. at 344-345, 204 A.2d 577:
The fact that a good result may occur with poor treatment, and that good treatment will not necessarily prevent a poor result must be recognized. So, if the doctor has brought the requisite degree of care and skill to his patient, he is not liable simply because of failure to cure or for bad results that may follow. Nor in such case is he liable for an honest mistake in diagnosis or in judgment as to the course of treatment taken. A physician must be allowed a wide range in the reasonable exercise of judgment. He is not guilty of malpractice so long as he employs such judgment, and that judgment does not represent a departure from the requirements of accepted medical practice, or does not result in failure to do something accepted medical practice obligates him to do, or in the doing of something he should not do measured by the standard above stated. [cases cited]. With rare exceptions (and this case is not one of them), evidence of a deviation from accepted medical standards must be provided by competent and qualified physicians.
The sole expert witness produced by plaintiff was Dr. David C.C. Stark, a professor of anesthesiology at the Upstate Medical Center, a teaching hospital in Syracuse, New York. He used the term "bradycardia" to describe in medical parlance the decedent's rapid, intense and progressive drop in pulse rate. Although there are variances in his testimony * Dr. Stark pointed to evidence in the record which he described as "proof positive" that the bradycardia "was specifically related to a cerebral-vascular accident." This compromised the action of the heart which, in turn, resulted in a substantially decreased flow of blood to the brain and the consequent global hypoxia, i.e., "a lack of oxygen throughout the whole brain as opposed to a situation where a, let's say, a stroke had occurred, then, a little bit of the brain would be damaged."
Dr. Stark explained that because...
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