NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited.
Lorraine Sheridan (plaintiff), individually and as administratrix of the estate of her husband, James Sheridan (Sheridan), appeals from an August 8, 2014 order dismissing the complaint based on a no-cause jury verdict in her medical malpractice lawsuit.
Sheridan committed suicide approximately two weeks after defendant Dr. Frederic Lehman prescribed the drug Lexapro to treat Sheridan's anxiety, depression and insomnia. Plaintiff asserted that defendant was professionally negligent in prescribing the drug and then failing to properly monitor Sheridan's condition for possible negative side effects of Lexapro. Plaintiff also alleged lack of informed consent, asserting that defendant failed to tell Sheridan about the drug's possible side effects.
The jury found that defendant did not deviate from professional standards. The jury found a lack of informed consent, and found that a reasonable person in Sheridan's situation either would not have taken Lexapro or would not have continued taking the drug, and that the "undisclosed risks" of the drug occurred. However, the jury also found that Lexapro was not a proximate cause of Sheridan's suicide.
On this appeal, plaintiff contends that defense counsel made improper statements during the trial; there were errors in the jury instructions on informed consent and in one question on the verdict sheet; the trial court improperly limited plaintiff's cross-examination of defendant and improperly limited the testimony of plaintiff's proximate cause expert; and the court should have granted plaintiff's new trial motion. After reviewing the record in light of the applicable legal standards, we find no merit in any of those contentions. Plaintiff presented the same arguments to the trial judge in her new trial motion. The judge thoroughly and correctly decided the issues in his November 6, 2014 written opinion rejecting the motion. Except as further addressed in this opinion, we affirm for the reasons stated by the trial judge.
We begin by outlining the most pertinent trial evidence. Lexapro is an anti-anxiety and anti-depressant drug belonging to the class of selective serotonin reuptake inhibitors (SSRIs). According to the prescribing information for Lexapro:
The prescribing information further provides that all patients being treated with antidepressants "should be monitored appropriately and observed closely for clinical worsening, suicidality
The black box warning stated:
Plaintiff testified that in late May 2009, while she was still recovering from a torn Achilles tendon, Sheridan began experiencing an increase in work-related stress. On May 31, Sheridan told her that he was not breathing right and that he needed to go to the hospital. Sheridan drove himself to the Community Medical Center in Toms River complaining of anxiety and panic. He was given a psychiatric screening and a referral to outpatient psychiatric care.
Nicole Liberto, an outpatient social worker at the Community Medical Center, spoke to Sheridan, who told her that he was having a lot of anxiety and difficulty breathing due to a lot of people being let go in his department and having to do their work. In addition, he was taking on a lot of the responsibilities at home due to his wife's recovery. Liberto diagnosed him as having an anxiety disorder with panic attacks. After reviewing Sheridan's case with her superiors, Liberto gave him a referral for a psychiatrist.
The same day, plaintiff obtained a ride to the hospital and spoke to a social worker, whom she did not identify, who asked her whether she thought Sheridan was suicidal. Plaintiff replied that she did not believe he was. She testified that before this time Sheridan had not been diagnosed with depression. The social worker recommended to plaintiff that Sheridan make an appointment with a psychiatrist. He attempted to do so, according to plaintiff, but there were no openings that would be covered by his insurance for thirty days. Instead, he made an appointment with a social worker/psychologist, Kathy Freit.
Prior to that appointment, Sheridan saw defendant, his regular physician, on June 2, 2009. When Sheridan came home from the appointment, he told plaintiff that defendant had diagnosed him with anxiety and had given him medication. She saw ten "blister packs" of Lexapro with seven in each pack. Sheridan also was given a prescription for anxiety, according to plaintiff.
Freit's deposition was read into the record. Freit stated that she saw Sheridan on June 4, and that he presented with moderate depression, but she did not believe that he had severe psychiatric problems. He complained of constant stress and worry, but denied any thoughts of suicide. Freit determined that Sheridan had thought disturbances that were at least partially due to his inability to help his wife in her recovery from surgery. He also complained of feeling overwhelmed by his work and home responsibilities. Based on the examination, Freit did not believe that Sheridan was a threat to harm himself.
After about a week on the medication, Sheridan called defendant and plaintiff heard him say that he did not like the way the medication was making him feel, and that he was not sleeping any better and had trouble focusing. After he hung up, Sheridan told plaintiff that defendant said that this was normal in the early stages of taking Lexapro.
A little later that day, Sheridan told plaintiff that he had to go see defendant, and then left for the defendant's office. When Sheridan returned, he told plaintiff that defendant had given him a note putting him on disability until further notice for severe anxiety and depression.
Plaintiff testified that Sheridan began taking the Lexapro "almost immediately"; she stated that after doing so, there were times when he "wasn't there," "lacked focus," and was agitated. Sheridan had never behaved like this before. He told her that he did not like the way the Lexapro made him feel, at one point saying that it made him feel "like a mental freak."
Sheridan's mother-in-law testified that she saw Sheridan after he started taking the medication. He told her that he felt worse on the Lexapro, that he was very anxious, had trouble sleeping, and was having nightmares when he did sleep. Sheridan's son testified that in late May and early June 2009, Sheridan became very withdrawn. Over the next week or two, Sheridan seemed worse. On June 18, the son found Sheridan dead in the shed next to their house. Sheridan had taken an overdose of various medications, none of which were Lexapro.
Sheridan left a suicide note, which read as follows:
Defendant testified that Sheridan had become his patient in 2002. At the June 2, 2009 appointment, Sheridan complained of an increase in stress at home and at work, and an inability to sleep. He told defendant that he had a panic attack a couple of days before and that he was feeling anxious and depressed. However, he did not tell defendant that he had gone to the Community Medical Center and that he had undergone a psychiatric crisis evaluation. Defendant testified that he did not ask Sheridan if he had suicidal thoughts because he knew Sheridan and his family, knew Sheridan had no history of mental illness, and based on Sheridan's personal circumstances, believed he "was low risk for suicide."
Defendant noted that Sheridan had lost about thirty pounds in less than a year, and defendant believed this was due to the anxiety and depression. He ordered a blood test, and the results were normal.
Defendant testified that he had prescribed Lexapro to patients many times and was aware of the black box warning. He sought to treat Sheridan's depression with the Lexapro and the anxiety with Ativan. He gave Sheridan a starter dose so that he would not have to spend money in case the Lexapro did not work. Defendant did not have samples of the Ativan, so he gave Sheridan a prescription. He told Sheridan that both medicines could make him feel tired, but did not tell him about the black box warning because it did not apply to someone his age.
Defendant spoke to Sheridan the following day, June 3, and Sheridan told him that he was feeling better. Defendant told Sheridan that if he had any concerns or problems, or began feeling worse, to call him immediately. Sheridan called him five to seven days later to tell him that he was still feeling anxious and depressed. Defendant asked him how he felt in comparison to the June 2 appointment. Sheridan replied, "A little bit better." Defendant told him that it took a while for the drug to build up in his system to the point where it would start making a difference. Defendant denied that Sheridan said he felt weird, or like a freak. Had he done so, defendant would have told him to come in immediately.
Dr. William Wertheim testified for plaintiff as an expert in internal medicine. In Wertheim's opinion, defendant deviated from the standard of care for an internal medicine physician by failing to do an adequate assessment of Sheridan's depression, failing to provide information about the risks of the treatment he was offering, and failing to provide appropriate monitoring for the treatment.
Wertheim noted that the Physician's Desk Reference (PDR) on Lexapro warned that patients given Lexapro should be monitored for worsening of the condition, suicide and unusual behavior, especially in the initial period of taking the drug. In addition, there was a black box warning from the Food and Drug Administration (FDA), which indicated a serious level of concern regarding the risk of suicidal thinking. Physicians were also advised to inform patients about the benefits and risks associated with the drug and counsel them in its appropriate use.
Wertheim further testified that the applicable standard of care was to disclose the black box warnings to the patient, particularly the increase in suicidality and worsening of depression symptoms. An adequate assessment would have included an assessment of Sheridan's suicide risk. Based on Sheridan's presentation, defendant should have immediately given Sheridan an appointment for a follow-up appointment within a week or two, rather than relying on Sheridan to schedule an appointment.
Wertheim opined that the failure to perform an adequate assessment, failure to disclose the risks of the medication, and failure to provide adequate monitoring and follow-up were proximate causes of the suicide. The deviation was also a proximate cause of Sheridan's suicide, according to Wertheim, because the failure to monitor and to have a follow-up appointment constituted a lost opportunity to prevent Sheridan from acting on his suicidal ideation. In addition, because defendant failed to disclose the risks of the medication, Sheridan was unable to give an informed consent to the treatment, according to Wertheim.
On cross-examination, Wertheim admitted that suicide was "the greatest known risk" of depression; it was therefore important for a doctor to put a patient with depression on anti-depressant medication; and prescribing Lexapro was a proper treatment for Sheridan's depression. He also admitted that, if plaintiff's statements about her husband were correct, Sheridan took twice as much Lexapro as defendant had instructed him to take. Dr. Wertheim further admitted that the Black Box warning for Lexapro did not state that the drug posed a risk of increased suicidal thinking and behavior for persons of Sheridan's age. He also admitted he knew of no scientific evidence that Lexapro increased the risk of suicide in adults over the age of twenty-four.
Focusing on a telephone call between Sheridan and plaintiff a few days before the suicide, Dr. Wertheim admitted that, if Sheridan did not say he was feeling "weird" but instead said that he was feeling a little better, then there was no need for defendant to schedule an immediate follow-up appointment for Sheridan. He admitted that his opinion thus hinged on whether the jury believed plaintiff's version of the phone call or defendant's version.
Dr. Peter Breggin, a psychiatrist, testified for plaintiff on the issue of proximate cause. Breggin stated that a patient could undergo a side effect from just one dose of an SSRI drug like Lexapro, and a lot of side effects in the first three days. He further testified that nightmares were one of "the single most common adverse effects of SSRI's." In addition, he believed that Sheridan's reported behavior was consistent with the side effect of a distortion of reality. These side effects are particularly acute, according to Breggin, in the first few weeks of taking the drug. "It's a very common way people report the adverse effect. They feel different or changed in a way they can't describe."
In Breggin's opinion, based on the available literature, Lexapro can cause suicidal behavior in adults as well as adolescents. He analyzed Sheridan's suicide note and found that it was consistent with Lexapro being a substantial factor in the suicide because Sheridan did not blame anyone for his situation, and because Sheridan felt as though something weird was going on inside of him, and that he did not want to live "like a freak." Thus, Breggin concluded that the Lexapro was a substantial factor in Sheridan's suicide.
On cross-examination, however, Dr. Breggin admitted that the FDA had not found that Lexapro actually causes suicide, even in children. He also testified that he did not believe that antidepressant medications were an effective treatment for depression. He admitted that his views were contrary to the conclusions of the FDA and "the overwhelming literature in the field of psychiatry[.]" Defense counsel also confronted Dr. Breggin with numerous quotations from his own articles which appeared to undermine the conclusions to which he testified on direct examination.
Dr. Kenneth Granet testified for defendant as an expert in internal medicine. He opined that defendant did not deviate from the applicable standard of care. He did not agree that defendant's initial assessment of Sheridan was inadequate, particularly in view of their lengthy doctor-patient relationship. He opined that prescribing Lexapro was both safe and reasonable and that defendant acted properly in ordering a blood test.
Granet did not believe defendant acted improperly in not discussing all the risks of the medicine contained in the PDR, because "you cannot give every single side effect to a patient." He testified that that would be time consuming and inappropriate. Telling Sheridan that the drug would take seven to thirty days to start to work, and that it could cause tiredness, complied with the standard of care. Granet also believed that the dosage of Lexapro was appropriate, and that prescribing Ativan at the same time was appropriate to relieve the stress and anxiety immediately. Giving a patient starter samples "happens all the time[,]" according to Granet, and failing to give Sheridan the information material that came with the samples was not a breach of the standard of care. He added that only a small percentage of those taking Lexapro suffered the side effects listed in the PDR.
Granet testified that defendant did not breach the standard of care in his monitoring of Sheridan. Two contacts within a week's time and blood work was "perfectly reasonable." Nor did failing to set a specific follow-up appointment breach the standard of care. A physician would not schedule an appointment within two weeks, according to Granet, because it typically takes longer than two weeks for the drug to work. Had Sheridan reported that he felt worse with the medication, then defendant should have scheduled an appointment, or at least questioned him further
Even assuming that defendant breached the standard of care, Granet opined that the breach was not a substantial factor in the suicide. Rather, the substantial factor was Sheridan's depression. Granet pointed to the suicide note in which Sheridan said that he had been sick for some time. Granet concluded defendant could not have foreseen Sheridan's suicide.
The defense also presented Dr. John Thompson, an expert in psychiatry. Dr. Thompson opined that the most likely cause of the suicide was Sheridan's depression, and that Lexapro was not a proximate cause. Thompson testified that he did not know of any literature that showed an increase in suicidality among Sheridan's age group while taking Lexapro. He opined that the studies Dr. Breggin relied on were limited in scope and outdated. Dr. Thompson also testified that, in general, suicide due to taking Lexapro was "extremely rare."
When asked why Sheridan would have committed suicide while taking Lexapro, Thompson explained that the medicine may not have "kicked in fully yet[,]" or it might not have been the right SSRI for Sheridan. He explained that the same SSRI may be effective in treating one patient but not another. Thompson saw nothing in the evidence to indicate that the Lexapro made Sheridan's mental condition worse. Plaintiff's attorney did not cross-examine Thompson, except to ask him how much he charged for his testimony.
Dr. David Dunner, also testified for defendant as an expert in psychiatry, specializing in the treatment of depression. Dunner opined that the Lexapro did not cause or contribute to Sheridan's suicide. He knew of no studies that found an increase in suicide or suicidal thoughts among those in Sheridan's age who took Lexapro. According to Dr. Dunner, akathisia, or agitation, which plaintiff contended may have contributed to the suicide, occurs in less than one percent of those taking SSRIs. Dr. Dunner criticized the data in the studies Dr. Breggin relied upon as "brief" and "anecdotal" and not scientifically valid.
On this appeal, plaintiff contends that defense counsel made improper statements, warranting reversal of the verdict and a new trial. Plaintiff's trial counsel did not object to most of those statements, and we presume he did not object because he did not perceive the comments as unfair or otherwise objectionable.
Plaintiff first argues that defense counsel made disparaging remarks about plaintiff's liability expert, Dr. Wertheim. Taken in context, the comments about Dr. Wertheim were not improper. Counsel merely pointed out to the jury that Dr. Wertheim was in the courtroom and therefore would be aware of the defense's legal theories when he testified.
Moreover, counsel's primary comments about Dr. Wertheim — and the focus of his attack on plaintiff's entire case — concerned the lack of evidence that Lexapro causes suicide. Indeed, defense counsel repeatedly reminded the jury that, in his opening statement, plaintiff's counsel admitted to them that he could not prove that Lexapro caused Sheridan's suicide. Defense counsel also pointed out to the jury some information that plaintiff's counsel failed to tell them in his opening statement — that Lexapro has only been shown to cause an increase in "suicidality" among young people up to age twenty-four, but not in adults over twenty-four.
Defense counsel also highlighted damaging admissions that Dr. Wertheim had made in his deposition. Those perfectly proper comments were far more damaging to plaintiff's case than defense counsel's passing remarks about Dr. Wertheim being in the courtroom. As previously noted, there was no objection to the latter remarks and we find no plain error.
We agree with plaintiff that defense counsel improperly speculated to the jury that Sheridan probably looked up information about Lexapro on Google. However, that isolated remark, to which there was no objection, did not have a clear capacity to produce an unjust result.
In response, defense counsel told the jury that during the case, they would hear that plaintiff, and one of the family's children, also took antidepressants similar to Lexapro and, therefore, Sheridan would have had access to package directions accompanying those antidepressants. In that context, counsel also argued to the jury that Sheridan, having a "type A" personality and being a good parent, would not likely have allowed his child to take an anti-depressant drug without reading about the medication and its side effects. During those comments, counsel stated that Sheridan probably Googled Lexapro. That was improper speculation. However, we conclude it had no unfair impact on the jury, because in its verdict, the jury found that defendant failed to tell Sheridan about the side effects of Lexapro
We find nothing improper in defense counsel's telling the jury that they might, understandably, feel very sorry for plaintiff, but that they should decide the case based on the trial evidence and not on sympathy for her. In his opening remarks, defense counsel skillfully anticipated and attempted to defuse aspects of plaintiff's case that could be prejudicial to defendant. The sympathy factor was one of those. There was no objection to defense counsel's comments, because they were not objectionable.
Although she raised no objection at trial, plaintiff now complains about defense counsel's use of an analogy concerning a banana peel. In his opening statement and his summation, the attorney asked the jury to think of two situations — one where he dropped a banana peel on the steps to the judge's bench, causing the judge to slip and fall on the peel; and another in which he dropped a banana peel elsewhere in the courtroom and nobody slipped on it. The attorney explained that in both situations there was negligence, but the negligence only caused injury in the first situation. The analogy was designed to explain to the jury the defense theory that, even if defendant was professionally negligent or failed to fully inform Sheridan about the risks of Lexapro, his conduct did not cause Sheridan's suicide. Viewed in context, there was nothing improper in the banana peel analogy. Contrary to plaintiff's argument, the analogy was not likely to mislead the jury into believing that plaintiff needed to prove Lexapro was the only causal factor in Sheridan's injury.
In a related argument, plaintiff contends that defense counsel misstated the law in his summation, in telling the jury that if they did not find that Lexapro caused defendant's suicide, the case was "over." However, after an objection and a sidebar conference, defense counsel backtracked, properly urged the jury to focus on whether Lexapro was "a substantial factor in causing [Sheridan's] death[,]" and argued that it was not a factor. Additionally, in the final charge to the jury, the trial judge correctly instructed them about the concept of proximate cause. The verdict sheet also correctly asked the jury whether the medication was
Next, plaintiff contends that in his summation, defendant's attorney crossed the line of proper cross-examination in questioning plaintiff's proximate cause expert, Dr. Breggin. Again, the trial judge thoroughly and correctly rejected the same argument in his November 6, 2014 opinion.
We agree with plaintiff that defense counsel should not have stated to the jury that if they Googled Dr. Breggin's name after the trial was over, they would discover "that he was against his own field of psychiatry" and "does whatever he can to promote his books... against the psychiatric field." However, on this record, we find no plain error.
Plaintiff's remaining appellate arguments were presented to the trial judge on plaintiff's motion for a new trial. In his comprehensive opinion, the judge thoroughly and correctly addressed those issues and we affirm for the reasons he stated. Except for the following brief comments, no further discussion is required as to those issues.
At the charge conference, defense counsel not only failed to request a
Plaintiff's argument that the trial judge unduly limited Dr. Breggin's testimony is likewise without merit. Dr. Breggin was precluded from testifying about the standard of care or defendant's alleged deviation from the standard, because he did not practice medicine in the same specialty area as defendant.
In summary, plaintiff's case, while sympathetic, suffered from fundamental weaknesses of proof. In particular, the Physician's Desk Reference and package inserts for Lexapro indicated there was no scientific evidence that Lexapro caused suicide, or even suicidal thinking, in adults over the age of twenty-four. In addition to the defense experts, plaintiff's own liability expert, Dr. Wertheim, admitted there was no scientific evidence establishing that Lexapro causes suicide. His testimony contradicted the testimony of plaintiff's causation expert, Dr. Breggin. Additionally, with the exception of Dr. Breggin, all of the relevant witnesses testified that suicide was the most serious risk posed by depression, a view confirmed by the PDR and the package insert for Lexapro.
According to defendant, Sheridan told him he was feeling "a little bit better" a few days after starting to take the Lexapro. And Sheridan left a suicide note indicating that he had not been feeling normal for a long time, thus casting doubt on plaintiff's theory that the Lexapro caused Sheridan's suicide. Moreover, plaintiff's causation expert, Dr. Breggin, was effectively impeached on cross-examination, and reasonable jurors may have found his testimony unpersuasive.
Like the trial judge, we cannot conclude that the verdict was a miscarriage of justice.