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
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
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:
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
Judge Antell recounted the events during the operation:
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 notwithstanding the verdict, R. 4:40-2, like one for involuntary dismissal, R. 4:37-2(b), must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b); see S. Pressler, Current N.J. Court Rules, R. 4:40-2 comment (1991). In each case, "the court must accept as true all the evidence which supports the position of the party defending against the motion and must accord him the benefit of all legitimate inferences which can be deduced therefrom, and if reasonable minds could differ, the motion must be denied." S. Pressler, supra, R. 4:40-2 comment (1991); see Dolson v. Anastasia, supra, 55 N.J. at 5-6, 258 A.2d 706 (distinguishing this "rather mechanical" standard from the more discretionary standard that the reviewing court may apply in connection with a new trial motion).
The critical issue in this appeal is whether there is any evidence from which a jury could have inferred that one or more of the physicians had deviated from accepted medical standards in their care of the patient and whether any such deviation was a factor that contributed to cause Anna Lanzet's brain to lose oxygen and to cause her to slip into the coma from which she never recovered.
Some of the confusion below may stem from the scattershot approach that plaintiff took to assess liability against the defendant physicians. At times plaintiff seemed to be pursuing an Anderson v. Somberg, 67 N.J. 291, 338 A.2d 1, cert. denied, 423 U.S. 929, 96 S.Ct. 279, 46 L.Ed.2d 258 (1975), approach to liability, suggesting that someone had to be responsible for plaintiff's misfortune. This is in no sense an Anderson v. Somberg case, in which one of the defendants had to have been responsible for leaving a broken tip from a surgical instrument in the plaintiff's body. In addition, plaintiff here pursued theories of liability that her expert could not or would not sustain. For example, plaintiff asserted that the reinjection of Atropine following the second decline in the heart rate was a deviation, but plaintiff's expert had to admit on cross-examination
One critical aspect of deviation plainly presented a jury question of liability, albeit perhaps under an incorrect theory of responsibility. That aspect questioned the failure of the operating surgeons to heed the anesthesiologist's suggestion to terminate the operation during the critical five-minute period when the patient's heart rate was failing and at a time when catastrophic results might have been avoided.
In considering the issue of sufficiency of the evidence, we cannot limit ourselves to what one witness said or even one expert's theory of neglect. The question under the rule of appellate review is whether, considering "all the evidence" from both plaintiff and defendants, there is an adequate basis in law for a finding of professional neglect. S. Pressler, supra, R. 4:40-2 comment.
By far the clearest examples of the sufficiency of the evidence of malpractice, at least with respect to the three operating-room physicians, came from Dr. Hein, one of the defense experts. A significant amount of trial time was devoted to the cause of Mrs. Lanzet's heart failure. Dr. Hein believed that a mechanical blockage had caused the heart failure and thus the loss of oxygen. As no autopsy was performed, there is no medical certainty about what caused her heart failure. At times the trial was confused by the question of whether the physicians' conduct was the cause of the heart problem. Plaintiff, however, had to establish not that the heart episode was caused by the physicians' neglect but rather that they had insufficiently attended to it when it developed.
That admission mirrors the opinion of plaintiff's expert, Dr. Stark, that an "earlier intervention would have saved Anna Lanzet's brain."
There is simply no doubt in this case that there was evidence of a standard of care required of all attending physicians in the operating room. Because the defense expert conceded that "if she were attended to faster, it might have made a difference," all that remained for the jury to determine, by that defense witness's own admission, was whether the "good sound operating room procedure for everyone in there * * * to be aware of the patient's needs" had been followed.
For each of the critical facts concerning "aware[ness] of the patient's needs," plaintiff did not rely on her expert to establish the facts. She established the facts by calling as her own witnesses the physicians who had attended to Mrs. Lanzet, as well as the operating-room personnel. Dr. Bekhit, the anesthesiologist, testified directly from his anesthesiology records, of which a blowup had been made and set up on a chart in the courtroom. He said that at 11:35 the patient's heart rate had dropped. Originally, in his deposition he had said that it had dropped to twenty heartbeats per minute at 11:35, but at trial he said he had made a note: "11:35, rate dropping to 30 and lower." He was asked, "did it continually go down?" He said, "it didn't go up." He was asked if he had informed the attending physicians. He said, "I told them what was there." He was asked if he had suggested that they discontinue the operation. He said, "I did suggest stopping the operation." (Emphasis added).
All of the operating-room physicians agreed that they were aware that the patient had had an episode of elevated blood pressure that morning and that they were to "monitor the patient closely." Dr. Bekhit conceded that at 11:35 the patient's condition had become serious, although he had still believed that he could maintain her heart function. Dr. Bekhit insisted that he had kept the surgeons informed of her condition. Dr. Greenberg agreed that if the patient had chronic congestive heart failure, a condition that the patient's records disclosed, it "is a serious condition * * * yes it is."
In addition, Dr. Bekhit's examination by plaintiff's counsel established the basis for a finding of inattention by the operating team:
To hold that a prima facie case of deviation had not been made out would render pointless the extended line of cross-examination of Dr. Stark by one of the defense counsel. He asked Dr. Stark to accept his view of the facts: (1) that Nurse Algeria's "poke" had occurred at 11:40 (not 11:35), and (2) that there had been "no communication between Dr. Bekhit [and the surgeons] as to [the patient's] heart rate between 11:35 and 11:40." He then asked Dr. Stark: "If that were a fact in this case, that would change your opinion with regard to any deviation on the part of Dr. Scannapiego and Dr. Greenberg as well. Correct?" Dr. Stark answered: "Yes." But the question proves the point. If the facts were otherwise, there was a deviation and the jury was uniquely qualified to resolve the factual dispute.
In addition, a reviewing court must consider what it totally misses in a dry record of the case — that indefinable sense of what went on in the courtroom. That ever-changing dynamic of facial expressions, belief, and disbelief is what inexorably leads a jury to its verdict. The trial court caught the essence of it when it reminded counsel in its letter opinion that a particular defense theory "must be viewed in light of the recapitulation of the evidence [as to the theory] here set forth, the words incapable of conveying the graphic detail of in-court testimony." (Emphasis added).
ADMISSION RESPONSES Dr. Bekhit Dr. Greenberg Dr. ScannapiegoThe operation on Admits "I have insufficient Admits Anna Lanzet started knowledge with respect at 11:15 a.m. on to this and accordingly August 29, 1983 I am unable either to admit or deny it." [For convenience, I will characterize this as "insufficient knowledge" in later questions.] The pulse rate of Admits Denies Anna Lanzet dropped from 65 to 40 at 11:20 a.m. The cardiac monitor Admits Denies Denies attached to Anna Lanzet during the eye surgery on August 29, 1983 made an audible beep at each heart beat The anesthesiologist Admits Denies Denies was announcing changes in the condition of Anna Lanzet during the surgery of August 29, 1983 as they were occurring Anna Lanzet stopped Admits Denies Denies breathing on the operating table on August 29, 1983 The cataract surgery Admits Insufficient Admits to Anna Lanzet knowledge concluded at 11:40 a.m. on August 29, 1983
[You] observed that Admits Denies Denies Anna Lanzet was cyanotic [blue discoloration attributable to loss of oxygen] after the operation was completed. A code was called at Admits Insufficient 11:40 a.m. on August knowledge 29, 1983 Anna Lanzet was not Admits Denies breathing when CPR began on August 29, 1983
Even at trial there seemed to be regrettable confusion about who was responsible for the patient's welfare. When each of the physician-defendants appeared to point the finger of blame at the others, it led the jury to the inevitable conclusion that each of the physicians had failed in his or her responsibility to attend to the patient. Dr. Bekhit, the anesthesiologist, said that he had continually informed the surgeons of the patient's condition, and that it was the "surgeon's decision [to stop the operation], but my opinion, if he asks my opinion * * * I will give him the answer." In contrast, Dr. Scannapiego, the assistant surgeon, said that the anesthesiologist, Dr. Bekhit, had been in charge of "when the surgery can proceed" and that when it came to stopping the operation, "the anesthesiologist was in charge."
The testimony of the doctors widely conflicted with respect to the awareness of the patient's life signs. Recall that Dr. Hein had said that everyone would know what the beeps meant. Yet Dr. Greenberg, at his deposition, said: "No one ever mentioned or requested me to stop the operation or made me aware of any specific problems during the operation." Dr. Scannapiego was asked:
Yet Dr. Bekhit insisted that he had continually informed the surgeons of the patient's condition, telling them that "the heart rate is falling," that between 11:35 and 11:40, "I was telling [the surgeons] what the signs were," and at another time, "I didn't ask [Dr. Greenberg] to stop the operation, I just informed him of the situation so he can evaluate in his own mind as well."
There were sharp conflicts in the physicians' testimony with respect to how long the patient had been deprived of oxygen. Dr. Bekhit, who on one occasion misunderstood the medical expression cyanotic for cyanide, stated that when he threw off the drape, the patient was cyanotic, which means that oxygen deprivation caused blue discoloration of her skin and fingernail beds, and that in addition she was sweating. At some times Dr. Bekhit said it was "a matter of seconds [before] she became cyanotic." In contrast, Dr. Scannapiego said that it is "closer to minutes" before skin tissue becomes cyanotic, suggesting that the patient had been deprived of oxygen for minutes. Dr. Bekhit admitted at other times that if the lungs were filled with oxygen, the brain would be damaged with "five or six minutes loss of oxygen."
Finally, although the following examples may be but poor choices of words by the physicians, they might well have conveyed to the jury an attitude of indifference. When Dr. Greenberg was asked if he had been concerned about the patient's blood pressure, he said, "Well, it's outside my province what her blood pressure was. I couldn't have done anything about it and I wasn't able to examine it." When Dr. Bekhit was questioned on why he had not changed the treatment between 11:35 and 11:40 when the patient had not been responding to the Atropine, he responded, "I just give the treatment and hope for the best." And Dr. Scannapiego used an unfortunate example to disabuse the jury of concern about the patient's
Although the foregoing are only isolated pieces of testimony in a long and very complex trial, the underlying fundamental issue was neither complex nor beyond the ken of a jury. It is almost paradoxical that had Mrs. Lanzet suffered her heart episode in other circumstances, those around her might have rushed immediately to administer cardiopulmonary resuscitation, but when stricken on the operating table, aid was too long delayed, rendering the damage to her brain irreversible. She seems to have had her heart attack in the wrong place and at the wrong time.
This is not a case like Whitfield v. Blackwood, 101 N.J. 500, 502 A.2d 1132 (1986), in which the medical malpractice involved a highly complicated question of whether a nerve had been cut in the course of surgery. There was no question here with respect to the technical proficiency of the eye surgery. This case rather came down to the simple question of whether the operating-room physicians had closely attended to their patient, particularly whether they had responded to her failing vital signs. Each of the defense counsel focused on the highly complex issues in the case, such as whether a vagal nerve response had caused the heart rate to decline, or whether there had been a mechanical blockage of the heart, or whether it had been appropriate to treat Mrs. Lanzet with the incremental doses of Atropine in an attempt to stabilize her heart condition. The case was extraordinarily well-tried by the defense team, but the jury did not buy the defense. The jury was left to decide the one simple proposition accepted by Dr. Hein, the
The Appellate Division set aside the verdict against Dr. Oen, the internist, because of what it described as a "net opinion" lacking in factual basis. The Appellate Division found that plaintiff had failed to show that the negligent clearance of the patient for surgery was causally related to the "cerebral-vascular accident which later occurred." 243 N.J. Super. at 227, 579 A.2d 309. But plaintiff need not establish that any of the doctors caused the "cerebral-vascular accident." They may be held liable for decreasing her chances to survive such an incident without devastating brain damage. See Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984) (describing the "increased risk" principle). Those principles were recently reaffirmed in Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990), and Olah v. Slobodian, 119 N.J. 119, 574 A.2d 411 (1990). Although the case against Dr. Oen was not as strong as that against the operating-room physicians, the proofs allowed the jury to infer that Dr. Oen's failure to consult with the radiologist and to realize that "this is not a normal conducting system of the heart" was in reasonable probability a factor that further contributed to the patient's failure to withstand the heart episode when it occurred on the operating table.
With respect to Dr. Bekhit, the Appellate Division emphasized a lack of a standard with respect to the use of Atropine versus Isuprel to restore the patient's heart rate, saying "a physician must be allowed a wide range in the reasonable exercise of judgment." 243 N.J. Super. at 230, 579 A.2d 309. However, that analysis overlooks the more fundamental failure on his part, noted previously, even to know who was to stop the operation when the patient's condition called for it.
Finally, with respect to the two operating surgeons, the Appellate Division found itself unable to "determine from the
In short, there was more than enough evidence in this case to sustain a jury finding of deviation. The "net opinion" rule, that experts' bare conclusions unsupported by factual evidence are inadmissible, Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981), does not invalidate the verdict. Evidence Rule 56(2) provides that a witness qualified pursuant to Evidence Rule 19 as an expert by knowledge, skill, experience, training, or education may testify in the form of opinion concerning matters requiring scientific, technical, or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. The facts or data on which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. In our recently-decided Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 579 A.2d 1241 (1990), we noted that the primary function of courts is to determine the admissibility of evidence, not its reliability. See James v. City of East Orange, 246 N.J.Super. 554, 588 A.2d 412 (App.Div. 1991) (once competency of medical expert has been established, the jury is "to determine the credibility, weight and probative value of the expert's testimony").
Of course some evidence is inherently scientifically unreliable. An example is the opinion given by an expert who attributes
In addition, as we have noted, we must give credence to all the testimony in this case, not just Dr. Stark's or Dr. Hein's, and we cannot escape that there is a factual issue of deviation. Dr. Bekhit, whom the surgeons described as the one in charge of deciding when the operation would stop, testified that he had suggested to the surgeons that they stop the operation. The surgeons denied having heard that suggestion. The operation had continued for several minutes after that advice. Surely that conflict in testimony presents a question of fact concerning the physicians' neglect that no appellate court can resolve.
Applying the mechanical test that we must when we review jury verdicts, we cannot fairly say that giving all the favorable inferences to the party postulating the proofs, there was not at the very least a misunderstanding about whose role it was to terminate this operation, leading to inattention to the patient's needs. We need not resolve the technical questions of whether three doses of Atropine were proper under the circumstances or whether the vagal nerve behind the eye, when affected by the anesthesia, had the effect of slowing the heart rate. Ultimately, the jury was presented with what was really a quite simple case. As one of the defense counsel said, "this
What was missing, however, from this case was the correct theory of liability. It was incorrect to ask the jury whether all of the harm that befell the patient was attributable to the physician-defendants. The correct instruction, not sought by the parties, was one that would require the jury to determine whether the physicians' neglect increased the risk of harm to the patient and whether that increased risk was a substantial factor in producing her injuries. Evers v. Dollinger, supra, 95 N.J. 399, 471 A.2d 405. We have the inestimable benefit of hindsight in assessing the merits of this case. In our 1990 decisions in Scafidi v. Seiler, supra, 119 N.J. 93, 574 A.2d 398, and Olah v. Slobodian, supra, 119 N.J. 119, 574 A.2d 411, we prospectively limited recovery in such circumstances to the value of the "lost chance" attributable to the physician's neglect.
This case illustrates, however, the complexities of presenting medical causation issues to a jury when there is a preexisting condition. Just as we believe that plaintiff's case did not fail because she could not prove that the physicians' neglect had caused the heart failure, her case also did not fail because she did not establish to a certainty that the prompt commencement of resuscitative measures by the physicians would have necessarily saved the patient's life or brain. The fact that Dr. Stark agreed that despite best efforts, there was always a "remote possibility" that she could not have been saved, does not mean that an effort to save her should not have been timely made. It is sufficient in law that she was deprived of the chance.
We also note that in its charge to the jury the court below seemingly limited the jury's consideration of deviation to the testimony of Dr. Stark and Dr. Hein. The court instructed the jury:
The court then proceeded to charge on proximate cause:
Much of the unease about the verdict exhibited by the Appellate Division panel and by the members of our Court may stem from this narrowed focus given to the jury. Absent the increased-risk charge of Evers v. Dollinger, supra, 95 N.J. 399, 471 A.2d 405, not only was the jury told to make an all-or-nothing judgment about the doctors' culpability, but in theory it was directed not to consider as proof of deviation all of the items of evidence that we may consider in assessing the record
We have no doubt that a properly charged jury could make the factual judgment that even within the narrow window of time on the operating table there had been a deviation from accepted medical standards. A much closer question is the fair allocation of responsibility for what ensued.
The absence of that focus in the jury charge leaves us with a sense that the only fair solution is that this case be tried again. Although the case passes muster under the "rather mechanical" test of Rule 4:40-2, an indefinable sense that there may have been a miscarriage of justice in laying all of Anna Lanzet's misfortunes at the feet of these physicians warrants a retrial of the case. See Gaido v. Weiser, 115 N.J. 310, 311, 558 A.2d 845 (1989) (Court declined to invoke "plain error" basis to set aside jury verdict, finding no showing that "substantial justice" has not been done).
Courts have struggled in these highly complex cases of medical causation, and we have considered whether we should exercise a greater supervisory role. See Frame v. Kothari, 115 N.J. 638, 651-53, 560 A.2d 675 (1989) (Wilentz, C.J., and Garibaldi, J., concurring); see also Note, Taking the Tort Out of Court — Administrative Adjudication of Medical Liability Claims: Is It the Next Step?, 20 Sw.U.L.Rev. 41 (1991) (recommending administrative system as alternative to judiciary to ease medical-liability crisis). There are no easy answers in this field. National concerns have prompted the present administration to suggest to Congress a system of revamping professional medical-malpractice claims. N.Y. Times, May 13, 1991, at A1, col. 1. In the meantime, all must strive for a just and balanced resolution of the interests of care providers and the patient
Plaintiff argues, in addition, that the law-of-the-case doctrine precluded reconsideration of liability by the second Appellate Division panel. We disagree. Under the law-of-the-case doctrine, decisions of law made in a case should be respected by all other lower or equal courts during the pendency of that case. State v. Reldan, 100 N.J. 187, 203, 495 A.2d 76 (1985); State v. Hale, 127 N.J.Super. 407, 410-11, 317 A.2d 731 (App.Div. 1974). Plaintiff asserts that the first Appellate Division denial of leave to appeal became the law of the case on liability. For the determination of an issue to constitute the law of the case, however, the issue must have been contested and decided. Reldan, supra, 100 N.J. at 204, 495 A.2d 76. A denial of leave to appeal does not satisfy those requirements. Courts frequently deny interlocutory appeals "for practical or other reasons which have nothing to do with the merits." Campbell v. Schlaifer, 88 N.J.Super. 66, 68, 210 A.2d 781 (App.Div. 1965). Thus, the court below did not violate the law-of-the-case doctrine by considering the issue of defendants' liability. It may be, however, that our current interlocutory-appeal practice, which permits partial retrial of damage claims with liability issues outstanding, should be reconsidered in the context of complex cases (of which medical malpractice would surely be one type). Our Civil Practice Committee may wish to consider such a change.
To sum up, there was clear evidence of neglect by the attending physicians in this case. The issue cannot be avoided or confused by speaking, as the dissent does, of the necessity of a "concrete factual explanation to support a finding that physicians have deviated from accepted medical standards, and that
The real issue in this case, then, is the constitutional office of the jury under our system of justice. While yet a young judge, Justice Brennan reflected on the two standards to be invoked in reviewing cases involving issues of fact determined by the verdict of a jury. He wrote: "`The appellate tribunal cannot invade the constitutional office of the jury; it may not merely weigh the evidence where it is fairly susceptible of divergent inferences and substitute its own judgment for that of the jury.'" Murphy v. Terzako, 14 N.J.Super. 254, 260, 82 A.2d 1 (App.Div. 1951) (quoting Hager v. Weber, 7 N.J. 201, 81 A.2d 155 (1951)). This Court would be substituting its own judgment for that of the jury if it were to dismiss plaintiff's case.
The judgment of the Appellate Division is reversed. The matter is remanded to the Law Division for further proceedings in accordance with this opinion.
POLLOCK, J., dissenting.
The majority opinion is a result in search of a rationale. In a system designed to provide litigants with one opportunity to prove their case, the majority provides plaintiff with a second chance. This, despite her failure at trial to prove a prima facie case against any of the defendants and despite "the scattershot approach that plaintiff took to assessing liability against the defendant physicians," ante at 175, 594 A.2d at 1313, and the absence of what the majority has constructed as "the correct theory of liability," ante at 188, 594 A.2d at 1320. The general rule in medical malpractice cases has long been that a plaintiff must establish through expert testimony the relevant standard of care, the doctor's breach of that standard, and a causal connection between the breach and the plaintiff's injuries. Furthermore, the testimony could not be a bare conclusion or "net
This case comes to us, in relevant part, on appeal from a denial of a motion for a judgment notwithstanding the verdict. Judgment notwithstanding the verdict under Rule 4:40-2, like involuntary dismissal under Rule 4:37-2(b), must be denied "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b); see Pressler, Current N.J. Court Rules, Comment R. 4:40-2 (1991). It is to be granted only if, under the applicable legal principles, reasonable minds could not differ. Dolson v. Anastasia, 55 N.J. 2, 5-6, 258 A.2d 706 (1969). A case should go to the jury, and a jury verdict should stand, unless the law clearly requires otherwise. We agree with the majority, ante at 181, 594 A.2d at 1316, that a jury is better situated than are we to assess the credibility of witnesses. The majority's point, however, begs the question, which is whether the evidence justified submission of the case to the jury. In brief, the question is whether plaintiff proved a prima facie case.
I therefore turn to the question of the requisite expert testimony for establishing a prima facie case of medical malpractice. Lay testimony generally does not suffice in medical malpractice actions. As we explained in Schueler v. Strelinger, 43 N.J. 330, 345, 204 A.2d 577 (1964),
The rationale is that jurors lack the technical training and experience needed to evaluate physicians' professional conduct.
Perhaps the majority opinion is best understood as an emotional response to a tragic event. When a medical procedure produces a bad result, a reviewing court may be tempted to close its eyes to legal requirements and sustain a judgment for money damages. When so tempted, however, a court must remind itself that defendants, as well as plaintiffs, are entitled to a fair hearing and that plaintiffs must satisfy evidentiary requirements to justify submission of their case to the jury.
The requirement for expert testimony in medical malpractice cases ensures that jurors will reach a reasoned judgment, not one resulting from mere sympathy. A bare conclusion unsupported by an adequate explanation, commonly called a "net opinion," does not suffice. Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981); Parker, supra, 78 N.J. Super. at 483-84, 189 A.2d 441. In fact, an expert's bare conclusions, unsupported by factual evidence, are inadmissible. Johnson v. Salem Corp., 97 N.J. 78, 91, 477 A.2d 1246 (1984); Buckelew, supra, 87 N.J. at 524, 435 A.2d 1150. The expert must offer a
Regarding the applicable standard of care, "[a] physician must be allowed a wide range in the reasonable exercise of judgment." Schueler, supra, 43 N.J. at 345, 204 A.2d 577.
Moreover, a deviation from that standard may not be assumed from a tragic result.
In addition to establishing the relevant standard of care and a defendant's breach of that standard, the plaintiff must also establish causation. Germann, supra, 55 N.J. at 208, 260 A.2d 825. Without such proof, the plaintiff has not proved a prima facie case. Id. at 205, 260 A.2d 825.
In rare cases, a plaintiff may prove malpractice without expert testimony. Under the "common knowledge" exception, expert testimony is not required when the standard of care, deviation, and causal link may be readily understood in light of the common knowledge and experience of laypersons. E.g.,
Given these legal principles, the question becomes whether, as to each defendant, plaintiff proved (1) a standard of care, (2) a deviation from that standard, and (3) a causal link between that deviation and the injury. Examining the testimony of plaintiff's sole expert witness, Dr. David Stark, an anesthesiologist, and all the other evidence presented, I conclude, as did the Appellate Division, that plaintiff's evidence was deficient as to each of the defendants. I cannot improve on Judge Antell's perceptive analysis of those deficiencies:
It therefore concluded that the
In sum, plaintiff alleges that the internist, Dr. Oen, committed malpractice by clearing Mrs. Lanzet for surgery on the morning of the operation without conducting a bedside reassessment. Dr. Stark testified that in his opinion, Dr. Oen "deviated from medically acceptable standards" by failing to make such a reassessment after learning of the patient's elevated blood pressure. He further testified that, in his opinion, "bedside assessment and reassessment would very well have resulted in a happier outcome." However, Dr. Stark gave no factual explanation to guide a jury in finding a causal link between deviation and injury. "Acceptable medical opinion of causation supported by expert explanation was an integral and indispensable part of plaintiff's case." Parker, supra, 78 N.J. Super. at 484, 189 A.2d 441. In the absence of proof of causation, plaintiff did not establish a prima facie case against Dr. Oen.
Plaintiff also argues that Dr. Oen should have consulted with the radiologist regarding the x-ray prior to clearing the patient for surgery. However, Dr. Stark's vague statement that "I think it's — it's sound to consult if you feel there's a disagreement" establishes neither a deviation from accepted medical standards nor a causal link between the failure to consult and the injurious outcome. Because plaintiff failed to present sufficient expert testimony to make out a prima facie case, I agree with the Appellate Division that Dr. Oen was entitled to a judgment notwithstanding the verdict.
The majority's argument for reinstating the verdict against Dr. Oen is incomprehensible. The majority states that "plaintiff need not establish that any of the doctors caused the
If the majority's theory is that Dr. Oen's conduct was not causally related to the cerebral-vascular accident, but only to the patient's inability to undergo surgery, then the majority must think something shows a causal link between the doctor's conduct and that inability. Any such evidence, however, is missing from the record. Nothing suggests that Dr. Oen's conduct "contribut[ed] to plaintiff's inability to withstand the heart episode when it occurred on the operating table."
Concerning the anesthesiologist, Dr. Bekhit, plaintiff's case is also deficient. Judge Antell analyzed the relevant facts:
Plaintiff thus alleges that when Atropine failed to increase the patient's pulse rate, Dr. Bekhit should have switched to another treatment. Dr. Stark testified that another drug might have prevented the global hypoxia by raising the pulse rate, and that Dr. Bekhit's third administration of Atropine was inappropriate. Missing from Dr. Stark's testimony, however, is any concrete statement of recognized medical standards. He offered no generally accepted standard for determining when an anesthesiologist should switch from Atropine to Ephedrine or Isuprel. An expert's personal opinion does not prove a standard of accepted medical practice. Fernandez v. Baruch, 52 N.J. 127, 131, 244 A.2d 109 (1968). As the Appellate Division concluded, plaintiff's failure to establish a standard of care through expert medical testimony means that plaintiff failed to prove a prima facie case against Dr. Bekhit. 243 N.J. Super. at 229-30, 579 A.2d 309.
The majority acknowledges that plaintiff failed to establish any negligence in Dr. Bekhit's continued administration of Atropine rather than Isuprel or Ephedrine. Ante at 175-76, 594 A.2d at 594. Concerning Dr. Bekhit's other conduct, the majority is unable to identify any breach of a generally accepted standard of care. That inability is understandable: Plaintiff's expert, Dr. Stark, not only failed to identify any such breach, but any standard that Dr. Bekhit might have breached. Like the majority, I accept that surgeons may rely on anesthesiologists to monitor the plaintiff's condition. The mere fact that something goes wrong, however, does not mean that the anesthesiologist was derelict. Plaintiff still must prove that the
Finally, plaintiff failed to prove a prima facie case against the two ophthalmologists, Drs. Greenberg and Scannapiego. Again I turn to Judge Antell's analysis:
In sum, plaintiff alleges that the surgeons should have been more aware of the patient's overall needs, and that they should have initiated resuscitative efforts earlier. As with the defendant internist and anesthesiologist, plaintiff relied on Dr. Stark in her case against the ophthalmologists. Dr. Stark opined that they "deviat[ed] from medically acceptable standards of operating room surgeons," and that their actions "were inimical to the patient." Again, Dr. Stark's testimony fell short, in that it does not explain the standards in concrete terms. Plaintiff failed to establish by expert testimony accepted medical standards relating to the conduct of Drs. Greenberg and Scannapiego, and thus failed to make out a prima facie case against them. They, like the other two defendant physicians, were entitled to a favorable judgment notwithstanding the verdict.
The majority urges that "there was some failure to `communicate'" in the operating room. Ante at 187, 594 A.2d at 1319. It does not, because on this record it cannot, state who had a duty to communicate what to whom. Again, the majority breezes past the requirement that plaintiff prove a standard of care and a breach of that standard.
In reaching its conclusion that plaintiff proved a prima facie case against Drs. Greenberg and Scannapiego, the majority relies on a snippet from Dr. Bekhit's testimony that "I did suggest stopping the operation." Ante at 178, 594 A.2d at 1314. By taking this statement out of context, the majority attempts to convey that Dr. Bekhit decided to stop the operation and that he so informed the surgeons. The doctor's full answer, however, reads: "I did suggest stopping the operation. Then, they see at which stage and whether it is safe for them to stop the operation and start resuscitation if needed or not.
The majority asserts variously that Dr. Stark's testimony sufficed to establish liability and that other evidence also sufficed for that purpose. Nothing in the majority's opinion, however, refutes the Appellate Division's painstaking determination that the expert testimony, as to each of the defendants, either failed to establish a standard of care or failed to establish causation.
Concerning the evidence other than Dr. Stark's testimony, the majority points to a defense expert's affirmative response to the following question on cross-examination: "It would be good, sound operating procedure for everyone in there, including the surgeons and the anesthesiologist, to be aware of the patient's needs. Isn't that fair to say?" Id. at 178, 594 A.2d at 1314. The majority infers from this that "there is simply no doubt in this case that there was evidence of a standard of care required of all attending physicians in the operating room." Ibid. The inference is unjustified. A procedure may be both "good" and "sound" without setting a generally accepted standard of medical care. The deficiency in plaintiff's case was not that plaintiff failed to present testimony that defendants might have behaved differently, but that she failed to prove that their behavior breached generally accepted medical standards. Moreover, "to be aware of the patient's needs" amounts to no more than an unhelpful bromide. The majority's standard, that doctors should be aware of their patient's needs, is no more helpful than one asserting that surgeons should make incisions in the right place or that physicians should prescribe the correct
I reach that conclusion without, as the majority fears, weighing the reliability and credibility of expert opinion testimony. Moreover, my reading of the record persuades me that this is not a case of mere oversight on the part of plaintiff's counsel or expert. Despite the best efforts of able trial counsel, aided by the testimony of an experienced expert witness, plaintiff was unable to prove that defendants deviated from generally accepted medical standards in any way causally connected to the tragic outcome. The picture that emerges is one of physicians trying hard in a tight situation. Even plaintiff's expert recognized that the critical period was confined to the five minutes between 11:35 and 11:40. At 11:35, Anna's heartbeat dropped below 40 and Dr. Bekhit administered the second dose of Atropine. At 11:40, the doctors called "the Code" and administered cardiopulmonary resuscitation. Dr. Stark acknowledged that the administration of Atropine at 11:35 was acceptable. Making an allowance of fifteen to thirty seconds for that dose to take effect, the critical period narrows further. During that period, it was Dr. Bekhit's medical judgment that the patient's condition was manageable. Plaintiff's expert never testified otherwise. In the few moments allotted to them, the doctors were reacting to an emergency. Perhaps a different course of conduct might have led to a happier outcome. An unsuccessful outcome, however, does not bespeak malpractice. As Dr. Stark acknowledged on cross-examination, "[p]eople have been known to die when they have been rendered standard medical treatment." When operating, a doctor's legal obligation is to conform to acceptable standards of medical care. Plaintiff has not proved a breach of those standards.
As a basis for a new trial, the majority embraces the "increased risk" theory of Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990), and Olah v. Slobodian, 119 N.J. 119, 574 A.2d 411 (1990). These cases, however, hold unmistakably that application of the increased risk theory to damages is to be prospective
The majority acknowledges that those decisions require a prospective-only application of the increased risk damage analysis. Ante at 188-189, 594 A.2d at 1320. Without offering any reason for ignoring that requirement, it casually asserts that an increased risk charge would have assisted the jury, and that the absence of such a charge constitutes reversible error. This, despite plaintiff's failure to request the charge or to object to the charge as given. I submit that the failure to give an increased risk charge is precisely what the Court anticipated in making the increased risk rule prospective. The majority's only explanation for ignoring that requirement is "[t]his case illustrates the complexities of presenting medical causation issues to a jury when there is a preexisting condition." Id. at 188, 594 A.2d at 1320. The majority does not suggest, however, that medical causation issues are any more difficult this year than last year. Just as it ignores the net opinion rule, the majority ignores the prospectivity requirement of Scafidi. The simple explanation for both oversights is that the majority cannot sustain its holding if it recognizes either requirement.
To conclude, plaintiff presented considerable evidence about the operation, but she did not prove a prima facie case against any of the defendants. Her expert's conclusory opinion, unsupported by any factual explanation, cannot support the verdict. Accordingly, I would affirm the judgment of the Appellate Division.
For reversal and remandment — Chief Justice WILENTZ, and Justices HANDLER, O'HERN and STEIN — 4.