PATRICIA LIGUORI, et al. v. ELIE ELMANN, M.D., et al.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1819-04T5

PATRICIA LIGUORI, individually
and as Administratrix ad
Prosequendum of the ESTATE OF
GERALDINE LIGUORI, deceased, and as
Executrix of the ESTATE OF JOHN J.
LIGUORI, deceased, and JOHN C. LIGUORI,

Plaintiffs-Appellants,

v.

ELIE ELMANN, M.D., JAMES B.
HUNTER, M.D., and CARDIAC
SURGERY GROUP,

Defendants-Respondents,

and

PETER PRAEGER, M.D., DIANE ANDERSON,
R.N, LYNNANN ANDERSON, R.N., NILO
ANTONIO, R.N., SHARON BREADY, R.N.,
ELLY CALLIAS, R.N., TOM CAREN, R.N.,
JESSICA CONNERS, R.N., LUCY COVINO,
R.N., TERRY DAVOREN, R.N., BETH DRONEY,
R.N., KATHY ENRIGHT, R.N., ERIN GIARRUSSO,
R.N., LAURA HYNES, R.N., JENNIFER
KRAWAIK, R.N., ISELA LAZICKI, R.N.,
MELANIE LENDIS, R.N., ANNE LOBASSO,
R.N., PATRICIA LOPEZ, R.N., LUZ MALIT,
R.N., RACHEL MARCHIONY, R.N., BARBARA
MARTIN, R.N., CESAR MARTOS, R.N.,
KELLIE MCGUIRE, R.N., CILA MERRIAM, R.N.,
WENDY MITCHELL, R.N., PATRICE O'CONNER, R.N.,
SUE PATLOCK, R.N., KATHY PAWLOSKI, R.N.,
JEANNE POLLEY, R.N., PATRICE PULFORIO, R.N.,
ALICIA QUINN, R.N., ANNIE READIE, R.N.,
SHELIA RHODES, R.N., DIANE RICHARD, R.N.,
DEBBIE RODITSKI, R.N., KEVIN ROONEY, R.N.,
PRATIVA SAHU, R.N., SHEILA SCOLLO, R.N.,
DONNA SENNA, R.N., GLADYS SILLERO, R.N.,
JOHN STANTON, R.N., BECKY THUM, R.N.,
DAWN TRUSIO, R.N., SUE TUDDA, R.N.,
MARIA VILLALONGO, R.N., TES WELCH, R.N.,
ALISON WRIGHT, R.N., JANET KILROY, R.N.,
GAIL VANDERHOVEN, R.N., HEATHER CASSIDY,
R.N., and HACKENSACK UNIVERSITY MEDICAL CENTER,

Defendants.

Text Box
 
July 24, 2006

Argued May 3, 2006 - Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from Superior Court of New Jersey, Law
Division, Bergen County, L-10176-01. See footnote 1

Adam M. Slater argued the cause for appellants
(Nagel, Rice & Mazie, attorneys; Mr. Slater, of
counsel and on the brief; Bruce H. Nagel, on the brief).

Scott T. Heller argued the cause for respondents
Elie M. Elmann, M.D. and Cardiac Surgery Group
(Giblin & Combs, attorneys, Mr. Heller, of counsel
and on the brief).

Judith A. Wahrenberger argued the cause for
respondent James D. Hunter, M.D. (Ms. Wahrenberger,
of counsel and on the brief).

PER CURIAM

Plaintiffs See footnote 2 appeal a verdict in favor of defendants Elie Ellmann, M.D. and James B. Hunter, M.D. in their medical malpractice/informed consent wrongful death suit arising out of the death of Geraldine Liguori (decedent) following surgery at Hackensack University Medical Center (Hackensack). Plaintiffs raise numerous contentions of error, of varying degrees of merit, but, after an exhaustive review of the facts and the law, we ultimately conclude that none warrant reversal of the jury's verdict.
I
On December 7, 2001, plaintiffs filed their complaint against Drs. Elmann, Hunter and Peter Praeger; Cardiac Surgery group (Elmann and Praeger's medical group); Hackensack; and fifty individually named nurses. On November 1, 2002, plaintiffs filed a second amended complaint. Defendants filed answers, affirmative defenses and cross-claims.
In January 2004, Elmann, Praeger, and the Cardiac Surgery group moved for summary judgment. Plaintiffs opposed the motion and cross-moved for partial summary judgment on their informed consent and battery claims against Elmann and Hunter. Hunter subsequently cross-moved for partial summary judgment. On March 5, 2004, Judge Harris conducted oral argument and granted Praeger's motion for summary judgment, denied plaintiffs' cross-motion for partial summary judgment, denied Hunter's cross-motion for partial summary judgment, and granted partial summary judgment in favor of Elmann dismissing plaintiffs' informed consent (failure to obtain consent to perform chest tube insertion procedure) and agency claims. The court entered an order on March 22, 2004. On May 10, 2004, we denied Hunter's motion for leave to appeal.
A jury trial was conducted before Judge Miller in September and October 2004. Elmann moved in limine to dismiss plaintiffs' claim for fraudulent misrepresentation and to convert it to a claim for lack of informed consent (failure to inform plaintiffs that Hunter had injured decedent's heart). The court granted the motion. Thereafter, during jury selection plaintiffs entered into a settlement agreement with Hackensack and the individual nurses. Trial then proceeded against Elmann and Hunter, the only remaining defendants. At the close of all the evidence the court granted plaintiffs' motion for a directed verdict on causation, based on defense counsel's concession that decedent expired as a result of complications stemming from the heart injury. At the conclusion of trial, the jury returned a verdict in favor of defendants finding that Hunter did not deviate from accepted standards in inserting the chest tube and that Elmann did not deviate in failing to obtain plaintiffs' informed consent.
On October 22, 2004, the court entered an order of judgment in favor of defendants. Plaintiffs moved for a new trial, which the judge denied in a written opinion dated November 19, 2004. This appeal followed, in which plaintiffs present the following arguments for our consideration:
I.
THE FRAUD CLAIM AGAINST DR. ELMANN BASED UPON POST-SURGICAL MISREPRESENTATIONS SHOULD NOT HAVE BEEN DISMISSED.

II.
IT WAS ERROR TO CONVERT THE FRAUD CLAIM TO AN INFORMED CONSENT CLAIM.

III.
THE TRIAL JUDGE ERRED BY DISMISSING THE NEGLIGENCE CLAIM AGAINST DR. ELMANN.

IV.
THE INFORMED CONSENT AND BATTERY CLAIMS AGAINST DR. HUNTER SHOULD NOT HAVE BEEN DISMISSED BASED ON THE MERE FACT THAT THERE WAS A "MEDICAL EMERGENCY."

V.
THE DEFENSE EXPERT'S MATERIAL CHANGE IN TESTIMONY FROM DEPOSITION TO TRIAL REQUIRES A NEW TRIAL.

VI.
DEFENSE COUNSEL'S CLOSING PLEA OF "GOD BLESS" THE DEFENDANTS REQUIRES A NEW TRIAL.

VII.
IT WAS ERROR TO REFER TO DR. HUNTER AS A GENERAL PRACTITIONER RATHER THAN A SURGEON IN THE JURY CHARGE.

VIII.
IT WAS ERROR TO ALLOW DR. HUNTER TO TESTIFY THAT HE HAS NOT CHANGED HIS TECHNIQUE FOR INSERTING CHEST TUBES AS A RESULT OF WHAT OCCURRED IN THIS CASE.

IX.
THE VERDICT IN FAVOR OF DR. HUNTER WAS AGAINST THE WEIGHT OF THE EVIDENCE.

X.
THE ANONYMOUS LETTER SHOULD NOT HAVE BEEN BARRED FROM EVIDENCE.

XI.
THE INTERPRETATION OF PLAINTIFFS' COUNSEL'S OPENING REQUIRES REVERSAL.

XII.
THE INTERPRETATIONS OF PLAINTIFFS' COUNSEL'S CLOSING REQUIRES A NEW TRIAL.

XIII.
THE TRIAL JUDGE ERRED IN NOT EXCUSING JURORS FOR CAUSE.
 
II
At 7:45 a.m. on December 9, 1999, Elmann, a cardiothoracic surgeon, successfully performed quadruple coronary artery bypass graphing surgery on decedent, then seventy-one years old, at Hackensack. He was assisted by Hunter, a cardiothoracic fellow or assistant cardiac surgeon employed by Hackensack. Prior to performing the surgery Elmann advised decedent and her family of the risks associated with the procedure, namely, bleeding, infection, stroke, and problems relating to the lungs. Elmann completed the procedure at approximately 12:00 p.m.
At 12:15 p.m., decedent, who Elmann described as "stable," was taken to the cardiac intensive care unit where she remained sedated and on a ventilator for respiratory support. Patricia Liguori, decedent's daughter, stayed in the waiting room while John C. Liguori, decedent's son, a physician trained in general surgery and a specialist in physical and rehabilitative medicine, took John J. Liguori, their elderly father, home to rest.
At approximately 1:15 p.m., Elmann, again assisted by Hunter, started another cardiac bypass surgery on a different patient. At approximately 2:30 p.m., Patrice Pulford, a staff nurse in the cardiac intensive care unit, notified Elmann, who was in the midst of performing the second surgery, that a chest x-ray revealed that decedent had developed a pneumothorax, or a collapsed lung. Elmann explained at trial that given that the pneumothorax had not occurred until two-and-half hours after the surgery, while decedent was on a ventilator, he suspected there was some "leakage of the positive pressure into the left chest," or a tension pneumothorax, defined as a completely collapsed lung thereby allowing the accumulation of air under pressure in the pleural space, the space between the chest wall and the lungs. Because Elmann could not leave the operating room at that time, he asked Hunter, who had previously inserted between 100 to 200 chest tubes, to assess decedent's condition and, if warranted, insert a chest tube. It is undisputed that Elmann specifically warned Hunter to "be careful" of decedent's enlarged heart. See footnote 3
Hunter, who was not eligible to be board certified because he had not completed his general surgery residency, arrived at the cardiac intensive care unit within thirty seconds of leaving the operating room and noted that the ventilator was "alarming," indicating that decedent's airway pressures were high. Hunter also observed that decedent was experiencing respiratory distress with asymmetrical expansion and retraction of the chest, and was bucking the respirator, a process Hunter described as "akin to coughing."
Hunter reviewed decedent's post operative x-ray, taken at 1:15 p.m., and reviewed the radiologist's report, which concluded that decedent had a "large left sided pneumothorax." Based on that review, Hunter confirmed the need for insertion of a chest tube "to relieve the air or carbon dioxide or both" that had "accumulated in the chest and prevent[ed] the lung from re-expanding." Hunter said he believed the pneumothorax had worsened since the time of the x-ray due to more oxygenated air entering the left mainstem bronchus as a result of the endotracheal tube, placed during the bypass surgery, being pulled back. Hunter, like Elmann, was concerned that the pneumothorax had become a "tension pneumothorax," or a build up of air pressure in the pleural cavity causing the medastinal organs, including the heart, to shift, thereby cutting off blood return to the heart and leading to cardiovascular collapse.
Hunter determined that the proper placement of the chest tube was at an "upward angle" on decedent's left side between the sixth or seventh intercostal space in the anterior axillary line. The apex of decedent's heart was located near the seventh intercostal space. Hunter admitted, however, that he did not remember if he had inserted the chest tube between the sixth and seventh intercostal space, or had made the incision higher, closer to the fifth intercostal space and further away from the heart. But Hunter said he knew decedent's heart was enlarged and took every precaution to avoid injuring it.
Hunter began the chest tube insertion approximately twenty to twenty-five minutes after being summoned by Pulford. After ascertaining the proper location for placement, Hunter made a small incision and then "dissected down to the chest wall through the adipose tissue." Hunter said decedent continued to "buck the ventilator" during this procedure. Once he reached decedent's ribs, Hunter used a Kelly clamp to dissect or make a hole in the fibers of the muscles between the ribs. He explained that a surgeon knows when he or she has reached the chest cavity because the sound or feel of a rush of air is evident, and at that point the surgeon stops and does not advance the clamp any further. He specifically recalled hearing a rush of air when he inserted the clamp into decedent's pleural space.
Hunter then inserted his finger into the incision and felt decedent's heart, which he said was "right on the other side of the chest wall." He placed the chest tube at an upward angle over his finger and into the incision, ultimately inserting the tube into the pleural space causing decedent's left lung to re-inflate, and then sutured the chest tube into place. The chest tube "went in pretty uneventfully." Pulford, who had observed the procedure, confirmed in her nurse's notes she had not documented any problems.
Thereafter, Hunter remained at decedent's bedside for approximately ten to fifteen minutes to insure that the tube was functioning properly. After determining that it was, Hunter returned to the operating room to continue assisting Elmann with surgery. Hunter claimed that he "had absolutely no indication at that time that . . . there was anything wrong."
But according to Pulford, shortly after Hunter inserted the chest tube, and while he was still attending to decedent, her blood pressure went down, her heart rate went up, and her heart began beating abnormally. Elmann testified at depositions that when Hunter returned to the operating room he "looked quite alarmed," and said that decedent had "increased bleeding in her drains." Nonetheless, Elmann maintained at trial that Hunter had been "in and out" of the operating room that afternoon and had not exhibited this reaction when he first returned from performing the chest tube insertion.
In any event, it is undisputed that at approximately 3:30 p.m., Pulford notified Elmann, who was still performing the second surgery, that decedent was experiencing significant bleeding from a pericardial tube, the tube inserted during the bypass operation, not the pleural tube inserted by Hunter. Elmann, who still could not leave his patient, told Pulford to contact Praeger, his partner in the Cardiac Surgery Group, to assess decedent's condition. Hunter meanwhile recalled that at that point he was so upset he thought he "was going to pass out," but managed to "pull[] [himself] together and went back" to decedent's bedside as "instructed" by Elmann. Praeger, a board certified cardiothoracic surgeon, evaluated decedent shortly thereafter and observed that the pleurovac connected to decedent's pericardial tube was full of blood and that she was hypotensive, or had very low blood pressure. At that time, decedent was losing in excess of 100cc's of blood every fifteen minutes; blood replaced by transfusion. Praeger performed exploratory surgery and discovered a hole in the apex of the left ventricle of decedent's heart, which he successfully repaired using a piece of pericardium. He prepared an operative report indicating that decedent had "tolerated the procedure well and left the operating room in satisfactory condition." Praeger concluded that the hole was "related to the insertion of the chest tube."
Following the surgery, Praeger reported to Elmann and then spoke to Hunter, who was again assisting Elmann, stating that he had saved decedent's life and had "saved [Hunter's] hide." But Praeger, who could not recall the specific conversation, claimed he was probably "joking." Praeger then left the hospital without meeting with decedent.
After completing the second surgery, Elmann examined decedent and then wrote a progress report indicating, in part, that the "LV [left ventricle] injury (CT [chest tube] related) [was] repaired with pericardial patch." Hunter later admitted that he had violated hospital policy, but not the applicable standard of care, by not preparing a progress note. Hunter explained, however, that he had not had time because he had to return quickly to continue assisting Elmann, and when he had finished, Praeger had already prepared a report, so completion at that time would have been akin to "locking the barn after the horses are gone."
Hunter also conceded that during the process of inserting the chest tube he had injured decedent's heart, but claimed he "cannot commit [to] how the injury actually occurred." He testified at depositions as follows:
Q. In your opinion, when you placed the clamp into [decedent's] body, the clamp struck the heart?

A. I don't know that, but that's the only place that I can think of that could have caused this type of injury to her heart.

Q. Were you ever trained that it was acceptable to strike the heart with a clamp during chest tube insertion?

A. No, it's never appropriate.
 
However, during trial Hunter explained that he meant the injury was probably caused by the clamp, as opposed to the chest tube, and that he intended to leave open the possibility that the heart had struck the clamp, as opposed to the clamp striking the heart. But he also conceded that the fifth intercostal space, the possible location of the chest tube, was nowhere near the left ventricle. And he said:
[t]hat's what I don't understand and this is what confuses me because even if I put it [the chest tube] in at the sixth interspace or the seventh, it's nowhere near the apex of the heart. . . . See footnote 4

In any event, it is undisputed that neither Elmann nor Hunter obtained decedent's family's consent to perform the chest tube insertion procedure, even though Patricia Liguori was in the waiting room and her brother, Dr. John Liguori, was available by phone at their parent's home. Hunter, who said he did not know Patricia was in the waiting room, claimed that if he had known he would "have gladly . . . spoken with [her]," but then explained "[m]aybe not . . . to get consent because I'm telling you, in the time that it takes to get consent and everything else, Mrs. Liguori could have easily gone into cardiac arrest." Hunter admitted, however, that in "most situations" patients, or their family members, are asked to sign an informed consent form before placement of a chest tube. But Elmann maintained that a "lung collapse after heart surgery is an emergency," and Pulford similarly described decedent's condition as an emergency.
It is further undisputed that at approximately 6:30 p.m. that day Elmann spoke to plaintiffs, although the content of that discussion is contested. Patricia Liguori set forth that, at her request, Elmann spoke to her brother on the phone, and she heard him say that:
at some point [decedent's] blood pressure started to drop and she started putting out a lot of blood. So a decision was made to return her to the O.R. and that the source of her problem was found and that it was a small bleeder.
 
Patricia said that Elmann did not discuss decedent's collapsed lung, Hunter's insertion of a chest tube, or the injury to decedent's heart.
Dr. Liguori similarly recalled that Elmann informed him that after the initial surgery, decedent "was putting out more blood than expected through her chest tubes," so "[r]ather than just continue to transfuse blood into her and wait for the clotting to occur [they] decided to be aggressive and take her back to the operating room." Elmann said that they found a "small bleeder," repaired it, and that "sometimes these things happen, and she's fine." Dr. Liguori maintained that if he had been asked for consent, he would have requested that Elmann or one of his partners perform the procedure "[b]ecause with an enlarged heart, there's a risk of poking a hole in the heart when you insert a chest tube." Moreover, Dr. Liguori claimed that if he had been told that decedent had suffered an injury during the chest tube insertion, he would have assumed a more active role in her post-operative care, and would have arranged to have her immediately transferred out of Hackensack because it "was an unsafe environment for her."
In contrast, Elmann maintained that he first spoke to Patricia, whom he "assumed . . . knew what was going on all this time" and said:
I'm sorry what happened. Mom had a collapsed lung. I wasn't available. I was in the middle of surgery. She required a chest tube to be placed. Shortly after that she had . . . a lot of bleeding. . . . She became unstable. She required [an] emergency, second operation.
 
Elmann claimed he further explained that Praeger had discovered "a small hole" in decedent's heart, "fixed it, and now she's stable." Thereafter, at Patricia's request, Elmann had a "brief" phone conversation with Dr. Liguori, where he essentially repeated the information he had given Patricia, noting that decedent "bled, she has a hole in the heart, the apex of the heart was fixed . . . and that she was stable."
Elmann admitted that he initially expected that decedent would be in intensive care for a day or two after the surgery and would be released from the hospital within a week. However, over the next several weeks, decedent, who was being treated by Elmann and Leonardo DiVagno, her cardiologist, remained in ICU in critical condition. While in ICU, decedent was intubated and sedated, suffered a heart rhythm disturbance and kidney failure while on dialysis, and required medication to maintain her blood pressure and stimulate her heart. She also required the insertion of a percutaneous endoscopic gastrostomy ("PEG") feeding tube, and underwent an exploratory laparotomy. She ultimately developed multiple bacterial infections, including two antibiotic-resistant infections and bacterial pneumonia, for which she was placed on an antibiotic regimen. She also developed a "sacral decubitus with a necrotic base," or a pressure ulcer with dead tissue formed as a result of decedent's lying on her back for long periods. The ulcer was infected with antibiotic resistant bacteria.
On January 6, 2000, Dr. Ligouri met with several of decedent's healthcare providers, during which he expressed his dissatisfaction with decedent's condition and made specific recommendations regarding her care.
On January 17, 2000, DiVagno spoke to Patricia and told her that shortly after the bypass surgery, decedent had suffered a pneumothorax, and that decedent's heart was lacerated during the placement of the chest tube causing her to suffer "a significant amount of bleeding," requiring surgery to repair the laceration. DiVagno said Patricia "broke down into tears" and was "very disturbed" by this information, explaining that "no one had told her that." Patricia confirmed that she was "shocked" by the information and asked why this was the "first time we're hearing about it." She then immediately called her brother and they began making arrangements to have decedent transferred to New Hanover Regional Medical Center ("New Hanover"), the hospital in North Carolina where Dr. Ligouri worked. Thereafter, in a thank you card dated January 21, 2000, and addressed to Praeger, Patricia wrote, "[d]uring the afternoon of December 9, I know you saved my mother's life."
On January 28, 2000, decedent was flown by Medivac Learjet to New Hanover. Upon arrival, Paul Kamitsuka, a board certified physician in internal medicine and infectious diseases, examined decedent and determined that she had experienced:
what can only be described as a catastrophic hospital course. As a result of her surgeries and complications thereof, by the time she came to us, she was really quite debilitated; quite deplete, in terms of her nutritional status, her ability to fight infection; and at the same time had this large pressure sore in the . . . sacral area, which was a major problem.
 
In addition to other medical complications, test results of decedent's decubitus ulcer were positive for antibiotic resistant bacteria. As a result, decedent underwent a surgical debridement or removal of almost her entire right buttock, and in addition to other treatment, was given a series of antibiotics. Initially, decedent began to show some improvement, but on February 12, 2000, she died from septic shock.
It was undisputed that decedent died from a series of cascading complications stemming from the injury to her heart caused by Hunter during the chest tube insertion procedure. Specifically, Kamitsuka explained:
the cardiac laceration that occurred immediately after surgery . . . triggered a cascade of events, which led to the hypotension and the need for dialysis, her persistent need for a ventilator, which
then predisposed her to becoming a carrier of [antibiotic] resistant organisms . . ., along with . . . the pneumonia; and then subsequently the peg tube, the need for abdominal surgery; and then, finally also the decubitus ulcer, which I think ultimately led to her death.
 
James Finnegan, plaintiffs' expert in the field of cardiothoracic surgery, opined that Hunter deviated from the accepted standards of care in perforating decedent's heart with the Kelly clamp, the chest tube, or both. He conceded that the chest tube inserted by Hunter had successfully reached the pleural space, resulting in re-expansion of the lung, but in the process Hunter had perforated decedent's heart. According to Finnegan, if the injury had been caused by the clamp, Hunter had deviated in inserting the clamp too deeply into decedent's pleural cavity and in inserting it in the direction of her heart. He also said that Hunter should have inserted the chest tube at the fifth intercostal space in the anterior axillary line, the most common location for insertion, and a location far from the apex of the heart.
Moreover, based on his review of decedent's 1:15 p.m. post-operative chest x-ray, Finnegan concluded that decedent had suffered a pneumothorax, a recognized complication of heart surgery, whereby her left lung had collapsed, but air had been able to enter and exit her pleural space. Finnegan found no evidence that decedent had suffered a tension pneumothorax, which occurs when air enters, but does not leave the pleural space, causing air to "build[] up" and push the important structures in the chest, such as the heart, major blood vessels, and airways, toward the other side of the chest, eventually compressing the other lung. He noted that the x-ray revealed that decedent's chest structures had not shifted, and he found no evidence of tension or the accumulation of air within her chest. Thus, he "seriously" doubted that decedent's heart had moved and struck the clamp when Hunter opened her pleural cavity. Finnegan admitted, however, that his conclusion that Hunter had deviated in inserting the clamp was based solely on the fact that decedent's heart had been perforated:
Q. [I]s there anything that you can see in any of the records, the deposition of Dr. Hunter, anything to point to that indicates that [Hunter's] technique was improper other than the fact that [decedent] ended up with a hole in her heart?

A. No.
 
Next, Finnegan opined that Hunter deviated from accepted standards in using a Kelly clamp, explaining that the only proper way to insert a chest tube was with a scalpel or forceps. But Finnegan conceded that he could cite to no medical literature in support of his theory that the use of a clamp constituted a deviation, and further admitted that numerous medical articles properly documented such use.
Additionally, Finnegan opined that if the injury had been caused by insertion of the chest tube itself, Hunter deviated in failing to properly locate decedent's heart and thus had erred in pushing the tube into the heart. He explained that even if Hunter said "he felt [the heart] . . . the fact that he perforated it would suggest . . . he either didn't feel it or didn't know what he was feeling."
Finally, Finnegan opined that Elmann deviated from the accepted standards of care in failing to inform decedent's family that Hunter had injured decedent's heart during the chest tube insertion and that as a result, she had lost a lot of blood. But he conceded that if Elmann's account of the conversation was correct, then Elmann had not deviated. Finnegan also admitted that as of 2:30 p.m. the situation qualified as an emergency when it was recognized that decedent had a completely collapsed left lung.
In contrast, Richard Kline, Hunter's expert witness in the field of general surgery, opined that Hunter had not deviated from the applicable standard of care. Kline concluded, based upon his review of decedent's 1:15 p.m. x-ray that her left lung had "completely collapsed," the effect of which can "be disastrous" and constitutes an emergency requiring insertion of a chest tube. He described the insertion of a chest tube as a "blind procedure" because you cannot see the tip of the clamp as it is inserted into the pleural cavity. This invasive procedure has several rare, but recognized complications, including perforation of the heart, lungs, diaphragm, liver, and stomach. And the insertion of the chest tube in this case was made more difficult because decedent had a thick layer of adipose tissue over her rib cage.
Kline maintained that Hunter, who he determined was "perfectly competent" to perform the procedure, had properly used a Kelly clamp, or a clamp with a curved blunt tip, because the clamp is ideally suited for chest tube insertions in that it is difficult to perforate organs with the relatively blunt end of the clamp as opposed to the sharp end of a scalpel. And he set forth that Hunter had properly inserted the chest tube between decedent's "sixth or seventh interspace in the midaxillary line."
Although Kline had testified at depositions that either the chest tube or the clamp were equally likely to have caused the heart perforation, upon further reflection before trial he had concluded that the probable cause of the injury was the clamp. He thus explained that when Hunter opened the pleural space by spreading the clamp, the air pressure within decedent's chest was released causing her heart, which had shifted as a result of that pressure, to move back down into place, and in the process had been impaled on the tip of the Kelly clamp. The heart, a "pretty soft" muscle, only had to move "about a half inch" to come in contact with the clamp.
Significantly, Kline opined that if decedent's heart was perforated when it shifted back into place, then Hunter did not deviate from the accepted standards of care in performing the procedure. In reaching the conclusion that Hunter had followed the standard of care, Kline relied upon Hunter's description of the procedure and Pulford's representation that she had observed nothing wrong with the insertion. He explained that a physician "can follow the standard of care with inserting a chest tube and still have a complication of an injury to the heart." Moreover, he stressed that the fact that the heart was injured did not mean that there was a deviation from the standard of care by not using the proper technique. Kline stated:
[Y]ou got to have evidence to indicate that [Hunter], in fact, did deviate from standards of care by not using the proper technique. You can't take the injury as being evidence [o]f improper technique because we know in the best of worlds, in the best of circumstances, people doing chest tube insertions perfectly, you can get this injury. So you can't use the injury to argue back.

However, Kline admitted that the radiologist who had examined the 1:15 p.m. post-operative x-ray had concluded that decedent had a "left-sided pneumothorax," not a "tension pneumothorax." But he explained that the tension pneumothorax may have developed sometime after the x-ray was taken, and in any event a tension pneumothorax is difficult to diagnose on a chest x-ray. Moreover, a tension pneumothorax is particularly problematic when a patient is on a respirator, as decedent was, because the respirator keeps pumping air into the patient's lungs and worsening the pneumothorax.
Finally, Kline opined that Hunter had not deviated from the applicable standards if he otherwise followed the proper procedures, but still had perforated decedent's heart with the chest tube, because perforation is a known risk of this procedure. However, he admitted that Hunter would have deviated from the accepted standard of care if Hunter had inserted the clamp in the manner described by Finnegan, namely too deep into the pleural cavity and in a straight rather than in an upward direction. Hunter would also have deviated if he inappropriately located the chest tube insertion site, failed to accurately explore the area to locate the heart, and failed to adequately clear the area where the chest tube was to be placed.
III

Plaintiffs argue, in their points I, II, and III, that the court erred in dismissing their claim against Elmann for fraudulent misrepresentation and in converting it to a claim for lack of informed consent. We find no error.
In count two of their complaint, plaintiffs sought punitive damages alleging that Elmann "intentionally and willfully misrepresented" the nature of the complications suffered by decedent. Specifically, plaintiffs alleged that Elmann failed to disclose that Hunter had lacerated decedent's heart during the chest tube insertion.
Elmann moved in limine to dismiss plaintiffs' fraudulent misrepresentation claim for failure to state a claim upon which relief can be granted, and to convert it to a claim for lack of informed consent. The court granted the motion, finding that pursuant to case law, in particular, Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 559-60 (2002), plaintiffs had failed to establish an independent cause of action for fraud. The court explained, "what I've done, in effect, is grant a motion in regard to converting this into an informed consent rationale as opposed to fraud and misrepresentation under the cause of action."
A complaint must set forth a claim for relief that contains "a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement." R. 4:5-2. In deciding a motion to dismiss pursuant to R. 4:6-2(e), "the plaintiff must receive every reasonable inference, and 'the complaint must be searched in depth and with liberality to determine if a cause of action can be gleaned even from an obscure statement, particularly if further discovery is taken.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005) (quoting Pressler, Current N.J. Court Rules, comment on R. 4:6-2 (2005)) (citing Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989)). We give no deference to a trial court's holdings on such a question of law. Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995).
The Court has recognized that a patient has three avenues of relief against a physician, namely: "1) deviation from the standard of care (medical malpractice); 2) lack of informed consent; and 3) battery." Howard, supra, 172 N.J. at 545 (citing Colucci v. Oppenheim, 326 N.J. Super. 166, 180 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000)). "Although each cause of action is based on different theoretical underpinnings, 'it is now clear that deviation from the standard of care and failure to obtain informed consent are simply sub-groups of a broad claim of medical negligence.'" Ibid. (quoting Teilhaber v. Greene, 320 N.J. Super. 453, 463 (App. Div. 1999)).
In Howard the plaintiffs brought a medical malpractice action following unsuccessful cervical surgery that rendered the patient a quadriplegic. 172 N.J. at 544. During discovery the plaintiffs learned that the defendant had misrepresented his credentials and experience at the time he obtained their consent to perform the surgery. Id. at 542-44. The plaintiffs moved to amend the complaint to add a claim based on fraud, alleging that they would not have consented to surgery had they known of the defendant's true qualifications. Id. at 544. The trial judge denied the motion, and we reversed. Howard v. Univ. of Med., 338 N.J. Super. 33 (App. Div. 2001), rev'd, 172 N.J. 537 (2002). The Court granted the defendant's motion for leave to appeal and reversed, holding that:
[t]he thoughtful decision of the Appellate Division notwithstanding we are not convinced that our common law should be extended to allow a novel fraud or deceit-based cause of action in this doctor-patient context that regularly would admit of the possibility of punitive damages, and that would circumvent the requirements for proof of both causation and damages imposed in a traditional informed consent setting. We are especially reluctant to do so when plaintiff's damages from this alleged "fraud" arise exclusively from the doctor-patient relationship involving plaintiff's corpectomy procedure. See Spinosa [v. Weinstein, 571 N.Y.S.2d 747, 753 (N.Y. App. Div. 1991)] (holding that concealment or failure to disclose doctor's own malpractice does not give rise to claim of fraud or deceit independent of medical malpractice, and noting that intentional tort of fraud actionable "'only when the alleged fraud occurs separately from and subsequent to the malpractice . . . and then only where the fraud claim gives rise to damages separate and distinct from those flowing from the malpractice'"). Accordingly, we hold that a fraud or deceit-based claim is unavailable to address the wrong alleged by plaintiff.

[Howard, supra, 172 N.J. at 553-54.]
 
Instead, the Court held that an informed consent claim was the more appropriate analytical basis for the amendment to the complaint. Id. at 559. Thus the Court
reverse[d] that portion of the decision below that would permit a separate action for fraud in view of our conclusion that misrepresentations concerning a physician's credentials and experience ordinarily are to be cognizable in a claim based on lack of informed consent. All aspects of decedent's complaint against defendant arise out of decedent's consent to a medical procedure and defendant's performance of that procedure. Permitting a cause of action based on lack of informed consent, in addition to the malpractice action, is all that is required and appropriate to address decedent's allegations.

[Id. at 559-60.]
 
Here plaintiffs contend the court erred, as a matter of law, in dismissing their fraud claim against Elmann, arguing that the Court in Howard preserved the right to sue a physician for fraud when the misrepresentation occurs after treatment and leads to additional injuries. We see no need to decide whether Howard recognized a fraud or deceit-based claim independent from a medical malpractice claim. Id. at 554. See footnote 5 Even if assume the existence of such a cause of action, the facts here did not support it and thus the court properly dismissed the claim. Printing Mart, supra, 116 N.J. at 746. Generally, concealment by a physician or failure to disclose his or her own malpractice does not give rise to a cause of action in fraud separate from a customary malpractice action. Gotlin v. Lederman, 367 F. Supp. 2d 349, 358 (E.D.N.Y. 2005); Hardaway Mgmt. Co. v. Southerland, 977 S.W.2d 910, 917 (Ky. 1998); Spinosa, supra, 571 N.Y.S.2d at 753; Coopersmith, supra, 568 N.Y.S.2d at 251. "'[I]t is only when the alleged fraud occurs separately from and subsequent to the malpractice that a plaintiff is entitled to allege and prove a cause of action for intentional tort . . . and then only where the fraud claim gives rise to damages separate and distinct from those flowing from the malpractice.'" Spinosa, supra, 571 N.Y.S.2d at 753 (quoting Coopersmith, supra, 568 N.Y.S 2d. at 251).
Here, as in Spinosa, even if plaintiffs proved that the fraud occurred "separate and subsequent to the malpractice," in that Hunter not Elmann performed the procedure, the damages sustained by virtue of the fraud were not separate and distinct from those caused by the alleged malpractice. Ibid. The record reveals that all of the patient's actual damages resulted from the malpractice, in that it was undisputed that decedent died from a series of complications stemming from the injury to her heart. Thus, the harm alleged to have resulted from the misrepresentation, namely the cascading series of complications, including the infected sacral decubitus, and decedent's ultimate death from septic shock as a result of that antibiotic resistant infection, is the same as that alleged to have resulted from the malpractice itself. Therefore, even if we were to recognize an independent cause of action for fraud, the facts in this case do not support such a claim.
Finally, plaintiffs argue, in their points II and III, that the court erred in converting their cause of action for fraud into a claim for lack of informed consent instead of a claim for deviation from the standard of care. Plaintiffs argued in limine that their claim for misrepresentation by Elmann was
a breach of the standard of care or it's fraud. It's not informed consent. You can't craft a conformed [sic] consent charge.

The court: What was the standard of care?

[PLAINTIFF]s' counsel]: The standard of care is to tell the truth.

The Court: No, that's not a standard of care.
 
At trial Finnegan testified that "[i]f what . . . [plaintiffs] say is correct that there was no communication with the family regarding the facts of this complication, then that failure to communicate that information would be below the standard." However, Finnegan admitted that if Elmann's version of the conversation was correct, then he met the applicable standard of care.
"[A] claim based on the doctrine of informed consent is predicated on the patient's right to self-determination." Canesi v. Wilson, 158 N.J. 490, 503-04 (1999). The doctrine recognizes that "choosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients." Matthies v. Mastromonaco, 160 N.J. 26, 34 (1999). Accord, Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972). Physicians "have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances." Ibid. In disclosing the level of disclosure required courts apply a "reasonable patient standard." Id. at 36.
The informed consent doctrine does not apply where the claim is that the physician erred in diagnosing the patient's condition by failing to obtain an adequate medical history, Eagel v. Newman, 325 N.J. Super. 467, 474-75 (App. Div. 1999), by failing to perform a sufficient number or type of diagnostic tests, Farina v. Kraus, 333 N.J. Super. 165, 178 (App. Div. 1999), certif. denied, 164 N.J. 560 (2000), or by failing to inform the patient of the risk of negligent treatment. Gilmartin v. Weinreb, 324 N.J. Super. 367, 374 (App. Div. 1999). The doctrine also does not apply when a physician makes an improper diagnosis, because he or she cannot be expected in that circumstance to give the patient information necessary to determine whether additional testing should be conducted. Linquito v. Siegel, 370 N.J. Super. 21, 33 (App. Div.), certif. denied, 182 N.J. 143 (2004). As Judge Pressler wrote in Eagel, supra:
the informed-consent basis of malpractice, as opposed to deviation from the applicable standard of care, rests not upon the physician having erred in diagnosis or administration of treatment but rather in the failure to have provided the patient with adequate information regarding the risks of a given treatment or with adequate information regarding the availability of alternative treatments and the comparative risks and benefits of each.

[325 N.J. Super. at 474-75 (citations omitted).]
Here, there is no allegation that Elmann failed to adequately diagnose decedent, perform sufficient tests, take an adequate medical history, or reveal the risk of negligent treatment. Instead, plaintiffs alleged that Elmann intentionally concealed Hunter's alleged malpractice by failing to tell them that decedent's heart had been injured during the chest tube insertion, thereby preventing them from making an informed decision regarding decedent's post-operative care. Thus, although not a typical informed consent case, this matter, as the trial court found, was similar to Howard, supra, 172 N.J. at 556, where the plaintiff had claimed that:
he was misled about material information that he required in order to grant an intelligent and informed consent to the performance of the procedure because he did not receive accurate responses to questions concerning defendant's experience in performing corpectomies and whether he was "Board Certified." Plaintiff allegedly was warned of the risk of paralysis from the corpectomy procedure; however, he asserts that if he had known the truth about defendant's qualifications and experience, it would have affected his assessment of the risks of the procedure. Stated differently, defendant's misrepresentations induced plaintiff to consent to a surgical procedure, and its risk of paralysis, that he would not have undergone had he known the truth about defendant's qualifications. Stripped to its essentials, plaintiff's claim is founded on lack of informed consent.
 
Similarly here, Dr. Liguori alleged that if he had been told about the injury to decedent's heart, he would have assumed a more active role in her post-operative care, and would have arranged to have her immediately transferred out of Hackensack because it "was an unsafe environment for her." In other words, plaintiffs claim that Elmann's misrepresentations induced them to consent to continued treatment of decedent at Hackensack, a decision that they would not have made had they known the truth about their mother's heart injury. Thus, as in Howard, the more appropriate analytical basis for plaintiffs' claims against Elmann was lack of informed consent and not for either fraud or deviation from the applicable standard of care.
In any event, even if we concluded that the allegations against Elmann should have been presented as a deviation from the applicable standard of care, there was no reversible error. Here, the jury unanimously found that Elmann had not failed to obtain informed consent from plaintiffs to the continued course of treatment. Thus, the jury found that Elmann's version of his conversation with plaintiffs credible. In that regard, as Finnegan admitted, Elmann did not violate the applicable standard of care, and thus would not have been found liable for medical malpractice.

IV
Plaintiffs argue, in their point IV, that the court erred in dismissing their claims against Hunter for lack of informed consent and battery. We find no error.
Judge Harris denied Hunter's motion for summary judgment on the informed consent and battery claims, finding that:
[t]his all turns on whether or not a rational fact finder could conclude that there was an emergency. . . . If a rational fact finder could conclude that there was adequate time for Hunter to have obtained the appropriate informed consent, then the motion has to be denied.

Hunter claims that no rational fact finder could conclude on that. The deposition merely points out that, although from beginning to end of the insertion of the chest tube there was 20 minutes, [and] that according to Hunter, he might have "gladly gone down there and spoken to . . . [the family]," . . . [h]e wouldn't [actually] have done that . . . "because
. . . in the time that it takes to get informed consent . . . [decedent] could have easily gone into cardiac arrest."

There doesn't seem to be any expert testimony to suggest that Hunter could have or should have obtained that informed consent in the time frame under those circumstances, and the [decedent] is urging that it's common sense emerging from the very mouth of Hunter that supports the idea that this was not an emergency.

I think this is a very close question, but I don't think it's just advocacy run amuck or an unfair spin. In other words, I think that under these circumstances, while it sure looks to me like it was an emergency, I can't say that a rational fact finder would not agree based upon and from the very lips of Hunter that within that 20 to 25 minute time period, communication, including consent, would have been obviated.
 
Thereafter, Judge Miller denied Hunter's renewed motion to dismiss, noting that he was "clearly . . . constrained" from addressing the motion. Nonetheless, the court sustained Hunter's objection during opening arguments to any specific reference by counsel to the informed consent claim.
Thereafter, at trial plaintiffs read portions of Hunter's deposition testimony in which he said he began the chest tube insertion procedure approximately twenty to twenty-five minutes after being summoned by Pulford. Hunter, who said he did not know Patricia was in the waiting room, claimed that if he had known he would "have gladly . . . spoken with [her]," but then explained "[m]aybe not . . . to get consent because I'm telling you, in the time that it takes to get consent and everything else, Mrs. Liguori could have easily gone into cardiac arrest." Hunter admitted, however, that in "most situations" patients, or their family members, are asked to sign an informed consent form before placement of a chest tube. Nevertheless, Finnegan conceded that decedent's condition constituted an emergency.
Hunter moved for judgment at the close of plaintiffs' case. In opposition, plaintiffs argued "we don't dispute that it's a technical medical emergency, but Dr. Hunter testified that there was time to talk to the family." The court granted the motion, explaining that "[t]his is a case that, until Dr. Finnegan testified . . . was going to go to the jury in regard to informed consent." Thus, the court entered judgment in favor of Hunter on the lack-of-informed-consent and battery claims, finding there was "no medical evidence" indicating that the chest tube insertion procedure was anything "other than an emergency," and that the procedure was necessary to save decedent's life.
In deciding a motion for judgment pursuant to R. 4:40-1 the court must accept as true all of the evidence which supports the position of the non-moving party, according him or her the benefit of all legitimate inferences, and if reasonable minds could differ, the motion must be denied. Pressler, Current N.J. Court Rules, comment on R. 4:40 (2006); Verdicchio v. Ricca, 179 N.J. 1, 30 (2004); Dolson v. Anastasia, 55 N.J. 2, 5 (1969). "The purpose of this test is to ensure that the jury resolves disputed factual matters." Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998). On appeal we apply the same standard. Verdicchio, supra, 179 N.J. at 30; Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). Thus, we must determine whether the evidence could sustain a judgment in plaintiffs' favor, and if reasonable minds could differ, the motion should have been denied. Estate of Chin by Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469 (1999).
In count five of their complaint plaintiffs claimed both lack of informed consent and battery. Generally, if the claim is characterized as a failure to obtain informed consent performance of the procedure may constitute an act of medical malpractice, and if the claim "is viewed as a failure to obtain any consent, it is better classified as a battery." Perna v. Pirozzi, 92 N.J. 446, 459 (1983). "Because battery is an intentional tort, it is reserved for those instances where either the patient consents to one type of operation but the physician performs a substantially different one from that for which authorization was obtained, or where no consent is obtained." Howard, supra, 172 N.J. at 550 (citing Matthies, supra, 160 N.J. at 35).
It is well established that "[a]bsent an emergency, patients have the right to determine not only whether surgery is to be performed on them, but who shall perform it." Perna, supra, 92 N.J. at 461; see also In re Conroy, 98 N.J. 321, 347 (1985); Samoilov v. Raz, 222 N.J. Super. 108, 113 (App. Div. 1987). Here plaintiffs concede that Finnegan, their expert, described decedent's condition as a medical emergency, but argue that under the law-of-the-case doctrine the trial court was bound by the prior decision denying Hunter's motion for summary judgment.
"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." Lanzet v. Greenberg, 126 N.J. 168, 192 (1991) (citing State v. Reldan, 100 N.J. 187, 203 (1985)). The doctrine "is designed to avoid re-litigation of the same issue in the same controversy." State v. Ruffin, 371 N.J. Super. 371, 390 (App. Div. 2004). Thus, "[a] court of equal jurisdiction had no right to 'reconsider' in the absence of substantially different evidence at a subsequent trial, new controlling authority, or specific findings regarding why the judgment was clearly erroneous." Monaco v. Hartz Mt. Corp., 178 N.J. 401, 413 (2004). However, the doctrine is discretionary, and courts are never irrevocably bound by prior interlocutory rulings. Reldan, supra, 100 N.J. at 205. Here, we conclude that the doctrine was not violated because the trial judge was presented with substantially different evidence, namely, Finnegan's admission that decedent's condition constituted an emergency.
In the alternative, plaintiffs argue that even if the court was not bound by its prior decision, the court erred as a matter of law in holding that "informed consent never needs to be obtained in any situation that is technically a 'medical emergency,' regardless of the circumstances or the amount of time available to obtain consent." In support of this argument, plaintiffs claim the Court in Perna "rejected the blanket rule that informed consent need not be obtained in an 'emergency.'" In Perna, the Court held that the plaintiff had established a cause of action for battery in a "ghost surgery" situation, which is where a different surgeon than the one to whom consent had been given actually performed the procedure. Id. at 459. In addressing the plaintiff's claim for battery, the Court wrote that "[a]bsent an emergency, patients have the right to determine not only whether surgery is to be performed on them, but who shall perform it." Id. at 461. And the Court further explained that:
[f]ew decisions bespeak greater trust and confidence than the decision of a patient to proceed with surgery. Implicit in that decision is a willingness of the patient to put his or her life in the hands of a known and trusted medical doctor. Sometimes circumstances will arise in which, because of an emergency, the limited capacity of the patient, or some other valid reason, the doctor cannot obtain the express consent of the patient to a surrogate surgeon. Other times, doctors who practice in a medical group may explain to a patient that any one of them may perform a medical procedure. In that situation, the patient may accept any or all the members of the group as his surgeon. In still other instances, the patient may consent to an operation performed by a resident under the supervision of the attending physician. The point is that a patient has the right to know who will operate and the consent form should reflect the patient's decision. Where a competent patient consents to surgery by a specific surgeon of his choice,
the patient has every right to expect that
surgeon, not another, to operate.

[Id. at 464-65 (emphasis added).]
 
Thus, contrary to plaintiffs' arguments, the Court did not reject a "blanket rule" that informed consent need not be obtained in an emergency, but instead noted that in emergency situations a physician may be unable to obtain informed consent.
Similarly, in Samoilov, supra, 222 N.J. Super. at 109-13, relied upon by the trial judge in this case, the plaintiff consented to surgery to remove a tumor, but claimed that he had authorized the resection of his facial nerve only if the tumor was malignant. During surgery, the defendant discovered that the tumor, which was later found to be benign, could not be removed without resecting the nerve, so he resected it, and then unsuccessfully attempted to repair it, causing the plaintiff to suffer facial paralysis. Id. at 112-13. On appeal, the plaintiff argued the court erred in refusing to submit the question of battery to the jury. Id. at 109.
We affirmed, holding that "absent proof to the contrary, the consent given, express or implied, should be construed to authorize the physician to employ surgical procedures which, in his professional judgment, are reasonably necessary to remedy his patient's condition." Id. at 120. We further explained that:
[o]f course, we recognize that, at least in a technical sense, discovery that the tumor surrounded or encased the facial nerve did not present a life-threatening emergency. It was possible for defendant to abort the operation upon learning of the exact location of the tumor. We note, however, that such a course would not have been without risks. In any event, it cannot fairly be said, based upon the record, that the operation performed by defendant was of a different sort from that to which plaintiff consented. Therefore, only a negligence issue was raised as to whether defendant should have proceeded as he did.
 
[Ibid.]

Here, in contrast, all of the witnesses testified that decedent's condition was a life threatening emergency. Furthermore, the model jury charge, in its caption, limits the informed consent charge to non-emergencies. Model Jury Charge (Civil), 5.36C(3/02) "Informed Choice and Consent (Competent Adult and No Emergency (emphasis added)." And emergencies have traditionally been recognized as exceptions to the informed consent doctrine. For example, N.J.S.A. 26:2H-12.8(d), provides in part that patients admitted to a hospital have a right
[t]o receive from the physician information necessary to give informed consent prior to the start of any procedure or treatment and which, except for those emergency situations not requiring an informed consent, shall include as a minimum the specific procedure or treatment, the medically significant risks involved, and the possible duration of incapacitation, if any, as well as an explanation of the significance of the patient's informed consent. . . .

[Emphasis added.]
 
And N.J.A.C. 8:43G-4.1(a)(7) provides, in part, that hospital patients have the right
[t]o give informed, written consent prior to the start of specified nonemergency procedures or treatments only after a physician or clinical practitioner has explained-in terms that the patient understands-specific details about the recommended procedure or treatment, the risks involved, the possible duration of incapacitation, and any reasonable medical alternatives for care and treatment. . . .

[Emphasis added.]
 
See also Unthank v. U.S., 732 F.2d 1517, 1521 (10th Cir. 1984) (under Utah law, absent emergency physician must inform patient of all significant risks); Delio v. Westchester County Med. Ctr., 516 N.Y.S.2d 677, 686 (N.Y. App. Div. 1987) (absent emergency, physician must obtain patient's consent before performing any medical procedure); In re Fiori, 673 A.2d 905, 910 (Pa. 1996) (absent emergency, medical treatment may not be imposed without the patient's informed consent).
Nonetheless, plaintiffs argue that even if decedent's medical condition had constituted a genuine emergency, Hunter had time to obtain Patricia's informed consent, and thus the claim should have been submitted to the jury. Although we did not find any New Jersey cases addressing that exact issue, in Canterbury v. Spence, supra, 464 F.2d at 788-89, a case cited with approval in a number of New Jersey opinions, see, e.g., Largey v. Rothman, 110 N.J. 204 (1988), the court wrote that:
[t]wo exceptions to the general rule of disclosure have been noted by the courts. Each is in the nature of a physician's privilege not to disclose, and the reasoning underlying them is appealing. Each, indeed, is but recognition that, as important as is the patient's right to know, it is greatly outweighed by the magnitudinous circumstances giving rise to the privilege. The first comes into play when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. When a genuine emergency of that sort arises, it is settled that the impracticality of conferring with the patient dispenses with need for it. Even in situations of that character the physician should, as current law requires, attempt to secure a relative's consent if possible. But if time is too short to accommodate discussion, obviously the physician should proceed with the treatment.
 
Here, contrary to plaintiffs' argument, there was no evidence that Hunter had time to obtain an informed consent. It was undisputed that decedent's collapsed lung constituted a medical emergency, and that Hunter began the chest tube insertion approximately twenty to twenty-five minutes after being summoned by Pulford. During that time Hunter assessed decedent's condition, reviewed her x-ray and the radiologist's report, and determined the proper placement of the chest tube. Although Hunter said that he would have been glad to speak with Patricia if he had known that she was in the waiting room, he specifically stated that he would not have had time to obtain her informed consent because taking the time to do so could have been detrimental to decedent's treatment. Plaintiffs presented no evidence to contradict that position. In fact, Finnegan specifically characterized decedent's condition as an emergency, a characterization that, without more, would tend to indicate that there was no time to obtain consent, thereby negating the need for it.
Thus, we conclude that the court did not err in granting Hunter's motion for judgment on the lack of informed consent and battery claims.

V
Plaintiffs argue, in their point V, that they are entitled to a new trial because the trial judge allowed Kline, Hunter's expert, to present testimony that significantly differed from his pretrial disclosures. We disagree.
"The discovery rules 'were designed to eliminate, as far as possible, concealment and surprise in the trial of law suits to the end that judgments therein be rested upon the real merits of the causes and not upon the skill and maneuvering of counsel.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000) (quoting Evtush v. Hudson Bus Transp. Co., 7 N.J. 167, 173 (1951)). Moreover, "[l]awyers have an obligation of candor to each other and to the judicial system, which includes a duty of disclosure to the court and opposing counsel." McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001). Thus, counsel has a continuing obligation to disclose to the trial court and opposing counsel any anticipated material changes in a party's or a material witness's deposition testimony. Ibid.
Kline testified at depositions as follows:
Q. It's your opinion, to a reasonable degree of medical probability, that the laceration was caused either by the release of the tension pneumothorax or by the chest tube itself?

A. That's true.

Q. Is there any way for you to tell me which one is more likely of these two, or is that something you can't opine on?

A. I can't tell you which is more likely.
 
At trial, Finnegan testified that Hunter had deviated from the accepted standards of care in perforating decedent's heart with the clamp, the chest tube, or both, but primarily focused on explaining how the injury had occurred with the clamp, and made just a brief reference to injury by the chest tube.
During direct examination defense counsel asked Kline:
Q. Doctor, do you have an opinion, within a reasonable degree of medical probability, what mechanism took place in this injury
. . . ?

A. Yeah. I was asked this in a deposition and -- I was unable to tell you whether the injury occurred with the introduction of the clamp, the mechanism there being the release of the air here and the movement of the heart impaling itself on the end of the clamp, or whether it was the chest tube insertion injured the heart as this was going in like this.
And I've thought about this considerably. My feeling is --
 
Plaintiffs' counsel objected, moved to limit Kline's trial testimony, and refused the court's offer to re-depose Kline. During an N.J.R.E. 104 hearing, Kline admitted that approximately two weeks before trial he had resolved that it was more likely that decedent's heart had been impaled on the clamp. Defense counsel did not disclose this opinion to plaintiffs. The court held that as a result of that discovery infraction, Kline could not "testify of [his] own right" as to his recent conclusion. Nevertheless, the court allowed Kline to testify in response to a hypothetical concerning Finnegan's testimony.
As a result defense counsel asked Kline, in part, to assume that Finnegan had testified that "the clamp was the most probable cause of the injury, though it could have been the chest tube as well," and asked if Kline agreed with that testimony, to which he responded, "[y]es." Thereafter, plaintiffs' counsel extensively cross-examined Kline on his deposition testimony.
Here, even though plaintiffs' were justifiably surprised by Kline's testimony, they cannot show sufficient prejudice to warrant a new trial. As set forth above, Kline testified at depositions that two mechanisms, the clamp and the chest tube, could have equally have caused the injury. Of course, the experts had disagreed in their pretrial disclosures as to how the clamp caused the injury, with Finnegan opining that Hunter punctured decedent's heart by inserting the clamp too far, and Kline opining that the release of pressure in decedent's chest had caused her heart to become impaled on the properly placed clamp. The only change in Kline's trial was his agreement with Finnegan that the most probable cause of the injury was the clamp. Thus, even if surprised by the change in position, plaintiffs cannot show prejudice because Kline's testimony tended to support the position asserted by their own expert. Moreover, Kline was subject to rigorous cross-examination regarding this change, thereby further alleviating any possible prejudice. As a result, although plaintiffs were justifiably surprised, we conclude they are not entitled to a new trial. However, we wish to make it clear that defense counsel for Hunter should have disclosed Kline's change in testimony as soon as it became apparent. We reject the suggestion made at oral argument that the change was not material. It was. Our conclusion on this issue should not be read as encouraging gamesmanship.
VI
Plaintiffs argue, in their point VI, that defense counsel's improper comment in her closing argument warrants a new trial. We see no basis for reversal.
In summation, defense counsel acknowledged that Hunter was ineligible to be board certified because after unsuccessfully pursuing a residency in a separate field of medicine he had decided not to begin a residency in cardiac surgery, choosing instead to become an attending or assistant surgeon. In that context, defense counsel commented "[m]embers of the Jury, I would submit, God bless the doctors that are willing to be assistants to the people like Dr. Elmann. God bless the Dr. Elmann's."
Plaintiffs' counsel objected, but the sidebar discussion was not recorded. In any event the court, without objection, gave the jury the following curative instruction:
[T]hose comments of appeal [to God] has [sic] no place. It was inappropriate and I'm asking you to disregard that situation of that appeal. We're dealing with the facts in this case only. So, that other appeal is not proper and I ruled that, and I would ask you to disregard those comments about appealing at this point in time. God bless, et cetera. Please.
 
In denying plaintiffs' motion for a new trial, the court found that any prejudice caused by the isolated comment was ameliorated by the prompt curative instruction.
Attorneys are generally afforded broad latitude in making closing arguments. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495 (2001). It is, however, "improper to construct a summation that appeals to the emotions and sympathy of the jury." State v. Black, 380 N.J. Super. 581, 594 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). Nevertheless, "a clear and firm jury charge may cure any prejudice created by counsel's improper remarks during opening or closing argument." City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 398 (App. Div.), certif. denied, 180 N.J. 356 (2004). Juries are presumed to follow such curative instructions. State v. Winter, 96 N.J. 640, 649 (1984).
Here, plaintiffs argue that "no instruction could have been expected to erase the immeasurable prejudice of the closing," claiming defense counsel's comment exceeded the level of misconduct addressed by this court in Geler v. Akawie, 358 N.J. Super. 437, 463-72 (App. Div.), certif. denied, 177 N.J. 223 (2003). In that case, the court found that the plaintiff's attorney had engaged in an extensive course of misconduct during summation including impermissibly invoking the "golden rule," misstating material elements of the evidence, and filing his closing argument with "derisive and derogatory comments regarding defendant, their counsel, their witnesses and their evidence in general." Id. at 463-68. For example,
[d]efendants' case was described as "rotten" and as "garbage"; their arguments, again, as "garbage," as "hogwash," designed "[t]o confuse, to muddle, put up smoke screens." Defendants' testimony was called a "joke," "bunk," "nonsense," and an "outrage." Defense counsel's factual explanation of the difference between the tests performed on men and women was characterized as a "Red Herring," a "smoke screen," designed to throw the jury "off track." Defendant's expert . . . was described as "wily and wiggly"; his opinions as "cute," "nonsense," "garbage," "absurd," and "not worth a hill of beans."
 
[Id. at 468.]

In contrast, here defense counsel's use of the term "God bless" was akin to saying "thank goodness" for assistant surgeons, and was made in direct response to plaintiffs' argument that Hunter was not qualified to perform the procedure. It was thus not an appeal to bias and prejudice. Moreover, even if the comment improperly appealed to the jurors' emotions, any prejudicial effect of the fleeting comment was ameliorated by the court's prompt curative instruction and by the subsequent instruction that comments by counsel were not evidence.

VII

Plaintiffs argue that the court erred in charging the jury that Dr. Hunter was a general practitioner in accordance with Model Jury Charge (Civil), 5.36A, Option B, (2002), which sets forth the law regarding the standard of care applicable to general practitioners. Plaintiff asserts that the jury should have been charged in accordance with Option A, which sets forth the standard of care applicable to medical specialists. The charge regarding the standard of care applicable to Dr. Hunter was appropriate under the circumstances. According to the trial testimony, he was not a specialist, he did not hold himself out as a specialist, and a specialist was not required to perform the chest tube insertion procedure.
At the charge conference, the court rejected plaintiff's request that the jury be charged that Dr. Hunter was a specialist. The judge reasoned that:
the doctor's indicated that [he] is as a fellow. They've indicated the scope -- I thought all those questions would be asked, what did you do, what he could not do, and you've gotten into this about being supervised or not, and who could put chest tubes in, all the experts were asked in regard to it. Indeed, your expert indicated that residents could do this at this point in time.

So, he's a medical doctor.

Consistent with that decision, the court gave the following charge to the jury:
In this case, Dr. Hunter has been described in his profession alternatingly as an assistant cardiac . . . thoracic fellow or assistant cardiac surgeon. Therefore
. . . to decide this case properly, you must know the standard of care imposed by law against which Dr. Hunter's conduct as assistant cardiac surgeon or assistant cardiac thoracic surgeon fellow should be measured.

Dr. Hunter, in this case, is a general practitioner. A person who is engaged in the general practice of medicine represents that he will have and employ knowledge and skill normally possessed and used by the average physician practicing his profession as a general practitioner. Given what I have just said, it is important for you to know that the standard of care which a general practitioner as an assistant cardiac surgeon or an assistant cardiac thoracic surgeon fellow is required to observe in his treatment of a patient under the circumstances of this case.

Based upon common knowledge alone and without technical training, jurors normally cannot know what conduct constitutes standard of medical practice. Therefore, the standard of practice by which a physician's conduct is to be judged must be furnished by expert testimony. That is to say, by the testimony of persons who by knowledge, training and experience are deemed qualified to testify and to express their opinions on medical subjects. You, as jurors, should not speculate or guess about the standards of care by which the defendant physician, Dr. Hunter, should have conducted himself in the diagnosis and treatment of the deceased plaintiff, Mrs. Liguori.

Rather, you must determine the applicable medical standard from the testimony of the expert witnesses that you have heard in this case. Where there is a conflict in the testimony of the medical experts on a subject, it is for you, the jury, to resolve that conflict using the same guidelines in determining credibility that I have mentioned earlier.

. . . .

When . . . determining the applicable standard of care, you must focus on accepted standards of practice as an assistant cardiac surgeon or assistant cardiac thoracic surgeon fellow and not on personal subjective belief or practice of the defendant doctor, Dr. Hunter.

(emphasis added).

The evidence supported that charge. Dr. Hunter was not a surgeon, and he did not hold himself out to be a surgeon. While he had three years of surgical residency, he did not complete the five-year program of study that was necessary to become a surgeon. He was neither board eligible nor board certified in general surgery.
His title at Hackensack University Medical Center was "cardiac assistant" or "fellow." He described his primary responsibilities as:
assisting in the open-hear[t] cardiac surgery program, which involves assisting in the coronary artery bypass grafting or CABG, if you will; valve replacements, aortic and mitral valve replacements; assisting in thoracic aneurysms and . . . a whole multitude of operations that they perform in the chest and on the heart.

Other responsibilities include taking in-house call, which means you're in the hospital, you sleep in the hospital, you eat in the hospital; fielding calls regarding the questions that the nurses may have about the patients; also performing any procedures that are required either on an emergent or non-emergent or elective basis, if you will. It involves the preoperative workup of the patients, including histories, physical examinations, consenting patients for surgery; any procedures related to any of the previous-mentioned operations such as chest tube placement, arterial line placement, central line placement, and also to be involved in the postoperative management of the patients.

Thus, while his responsibilities included the insertion of a chest tube, his non-surgical duties were much broader. He was not a specialist.
The alleged deviation from the standard of care against Dr. Hunter is that he pushed the Kelly clamp too far into decedent's chest, making a hole in her heart that ultimately caused her death. The evidence showed that insertion of the chest tube with the use of the Kelly clamp could be performed by doctors who were not surgeons. Richard Kline, M.D., Dr. Hunter's expert, while himself a general surgeon, testified that chest tube insertions are done at the patient's "bedside, in the emergency room, at the accident scene, anywhere they have to be done." Among the learned treatises upon which he relied to base his opinion was a textbook called Procedures For Primary Care. That text is intended to be used by primary care physicians to learn how to insert a chest tube. In other words, general practitioners as well as surgeons perform chest tube insertions. Indeed, in some states, though not in New Jersey, emergency medical technicians are trained to do chest tube insertions in the field.
In response to a question from a juror as to whether someone other than a surgeon could perform the procedure without supervision, Dr. Kline responded:
No, I don't have any problem with this and I've done this lots of times and usually it's . . . a surgical resident goes, puts the chest tube in, one of the surgical -- one of the house officers goes put the chest tube in. So you say -- I don't want to misquote the question -- have somebody other than a surgeon, is a surgical resident satisfactory for you as far as the other person being? Because I did that a lot.

I mean, on trauma service, you'd be in the operating room with one trauma patient, the helicopter lands on the roof and here comes somebody else down and you're in the operating room and somebody else puts chest tube in, that's fine. I would let [an] emergency room physician put a chest tube in.

A JUROR: So your statement was that your experience, a general surgeon, a fully-certified surgeon, or another person you've given a resident, or you've been training, which provision, would be someone that would be sent to do the chest tube insertion?

THE WITNESS: Yes. I did that many times.

A JUROR: So this resident would have supervision?

THE WITNESS: No, no, they may do it unsupervised. It . . . depends what the circumstances are. If there's nobody there to supervise them, you know, in an emergency situation, chest tube goes in.

. . . .

THE WITNESS: Yeah, sure, I'd let a resident put the chest tube in. Does that do it?

A JUROR: Without supervision?

THE WITNESS: Yeah, without supervision. . . . [A] first-year resident they will assist [a] senior resident in putting a chest tube in. . . .

. . . .

A JUROR: In the context of the hypothetical that I gave you, if you would refer the chest tube insertion, what you would do in that situation, given that you outlined those two genres of professionals to perform the chest tube insertion.

THE WITNESS: The genre you mean one is a resident with supervision, the other one's a regular general surgeon. Those are the two genre.

Well, there are residents with supervision and there[] [are] residents without supervision. . . . [T]here's residents without supervision who are just as competent as a general surgeon to put in a chest tube.

. . . .

A JUROR: So as the standard of care applies, it's not that you have to be stamped approved surgeon or resident with supervision to adhere to the standard of care.

. . . .

THE WITNESS: You have to have a competent physician putting in a chest tube.

(emphasis added)

The testimony of Dr. Kline clearly sets forth that general practitioners, emergency room doctors, and residents may insert a chest tube. One not need be a surgeon to perform the procedure.
A proper jury charge is essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002); Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 570 (App. Div.), certif. denied, 107 N.J. 48 (1986). A jury charge "'must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them . . . .'" Reynolds, supra, 172 N.J. at 289 (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000)). "The failure to tailor a jury charge to the given facts of a case constitutes reversible error where a different outcome might have prevailed had the jury been correctly charged." Ibid.
An incorrect jury charge constitutes reversible error, however, only if the jury could have reached a different result had the court provided the correct instruction. Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 18 (2002). A judgment will not be reversed when the jury would have reached the same result had it been instructed according to the correct legal standard. Murray v. United of Omaha Life Ins. Co., 145 F.3d 143, 156-57 (3rd Cir. 1998).
It is well established that "[a] physician must act with that degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field." Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 626 (1999). Thus, a physician who holds him or herself out as a specialist must employ not merely the skill of a general practitioner, but also that special degree of skill normally possessed by the average specialist in the field. Ibid.; Crego v. Carp, 295 N.J. Super. 565, 576 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997). The law does not make a physician a
guarantor of the cure of his patient. When he takes a case it imposes upon him the duty to 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.
[Schueler v. Strelinger, 43 N.J. 330, 344 (1964)].
Applying these legal principles to the facts here, we conclude that the charge fairly and adequately apprised the jury of the standard of care to be applied to Dr. Hunter's actions at the time he inserted the chest tube. While the court described Dr. Hunter to the jury as a general practitioner, it went on to say that it was important for the jury to know "the standard of care which a general practitioner as an assistant cardiac surgeon or an assistant cardiac thoracic surgeon fellow is required to observe" in the treatment of a patient "under the circumstances of this case." That instruction was consistent with the testimony by Dr. Hunter and Dr. Kline. And, while defendant's expert, Dr. James Finnegan, was himself a cardiac surgeon, his testimony was not inconsistent with the description of the standard of care the court charged to the jury. Dr. Finnegan did not testify that Dr. Hunter was a specialist or that only a surgeon could insert a chest tube.
The court instructed the jury to "determine the applicable medical standard from the testimony of the expert witnesses that you have heard in this case." The judge told the jury that: "When . . . determining the applicable standard of care, you must focus on accepted standards of practice as an assistant cardiac surgeon or assistant cardiac thoracic surgeon fellow and not on personal subjective belief or practice of the defendant doctor, Dr. Hunter."
Simply put, while at the charge conference the court indicated it would provide the standard of care as applicable to a general practitioner, the judge referred to Dr. Hunter in that capacity only in conjunction with Dr. Hunter's conduct as an assistant cardiac surgeon or assistant cardiac thoracic surgeon/fellow. The charge was entirely consistent with Dr. Hunter's qualifications and responsibilities, and with the testimony of the experts at trial.
Nevertheless, even if we were to consider the trial judge's fleeting reference to the standard of care as applicable to a general practitioner as error, it was harmless. The issue in this case, as Dr. Finnegan put it, was simple: the jury had to decide whether it was a breach of the standard of care in the way that Dr. Hunter inserted the chest tube. The experts' testimony conflicted on this issue. Dr. Finnegan opined that Dr. Hunter breached the standard of care by inserting the Kelly clamp too far into decedent's chest; on the other hand, Dr. Kline opined to the contrary that Dr. Hunter followed proper procedures and did not breach the standard of care. The jury charge as a whole adequately apprised the jury of the applicable law so as to enable it to decide this issue. The charge as given could not have caused the jury to reach a different result than it did. The charge as a whole did not mislead or confuse the jury, nor was it otherwise clearly capable of producing an unjust result. Domurat v. Ciba Specialty Chems. Corp., 353 N.J. Super. 74, 93 (App. Div.), certif. denied, 175 N.J. 77 (2002).
Consequently, we reject plaintiff's claim that the judge failed to properly instruct the jury as to the standard of care applicable to Dr. Hunter.

VIII
Plaintiffs argue, in their point VIII, that the court erred in allowing Hunter to testify that he had not changed his technique for inserting chest tubes after this case. Plaintiffs contend this testimony was analogous to subsequent remedial measure testimony and thus inadmissible pursuant to N.J.R.E. 407.
Plaintiffs asserted at trial that Hunter deviated from the standard of care in the manner in which he inserted the clamp, and in using a clamp, as opposed to a scalpel or forceps. During direct examination Hunter testified without objection as follows:
Q. Now . . . have you continued to place chest tubes at Hackensack University Medical Center on patients when they were needed?

A. Yes, I have.
 
. . . .
 
Q. Have you changed your technique in any way since [decedent] for placing chest tubes?

A. No, it's the same basic technique that I've used as I was taught as a resident, second-year resident, which would now be seventeen years.
 
Later, defense counsel again asked "[a]fter the chest tube insertion . . . did you do anything to make the process by which you insert a chest tube more careful than what you had done in the case of Mrs. Liguori?" Plaintiffs' counsel objected, but it is unclear on what basis because the side bar conference was not recorded. Defense counsel then asked, without objection:
Q. [S]ince [decedent], do you do anything to make the process to insert a chest tube more careful than what you did in that case?

A. No. I've always considered myself to be careful, as careful as I could. That's the way I've always been. I haven't tried to improve on that. I feel that I've always tried as best I could.
 
N.J.R.E. 407 provides that:
[e]vidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues.
 
N.J.R.E. 407, which tracks the language contained in former Evid. R. 51, embraces a well-established public policy, namely that "'evidence of remedial measures is excluded not because it lacks relevancy,' but because admission of said testimony might discourage corrective action and induce perpetuation of the damage and condition that gave rise to the lawsuit." Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 292 (App. Div. 1998) (quoting Hansson v. Catalytic Constr. Co., 43 N.J. Super. 23, 29 (App. Div. 1956)). "The theory behind the Rule is that a person should not be penalized for correcting a potentially deleterious situation." Biunno, Current N.J. Rules of Evidence, comment on N.J.R.E. 407 (2005).
Here, Hunter did not take any remedial action; instead he continued to perform the chest tube insertions in the exact same manner as he had prior to decedent's injury. That testimony had some relevance as to whether Hunter followed the applicable standard of care in conducting the procedure on decedent. Moreover the policy reasons for excluding subsequent remedial measure evidence, namely encouraging corrective action, are not applicable here.
IX
Plaintiffs argue, in their point IX, that the court erred in denying their motion for a new trial because the verdict in favor of Hunter was against the weight of the evidence. We find no error.
A trial court must grant a motion for a new trial "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). The standard for appellate review is also whether "a miscarriage of justice under the law" occurred. R. 2:10-1; Dolson, supra, 55 N.J. at 5-6. "[T]he appellate court must make its own determination as to whether there was a miscarriage of justice, deferring to the trial judge only with regard to those intangible aspects of the case not transmitted by the written record - described by the Court as witness credibility and demeanor and the 'feel of the case.'" Pressler, supra, comment 4 on R. 2:10-1. "[J]ury verdicts should be set aside in favor of new trials only with reluctance and then only in the cases of clear injustice." Crego, supra, 295 N.J. Super. at 577. "The fact that the evidence may also support a different outcome does not render the jury's verdict irrational or against the weight of the evidence." Estate of Chin, supra, 160 N.J. at 468.
In support of their motion for a new trial plaintiffs argued that the evidence revealed that Hunter had "placed the clamp right at the level of the left ventricle, which he admitted the standard of care required that he not do, and permitted the clamp to puncture the heart." In denying the motion, Judge Miller wrote that the jury had found that Hunter,
had not deviated from the accepted standard of care, and had not committed an act of negligence, even though the Court decided the proximate cause question in favor of the plaintiff[s] prior to the jury's actual deliberation. The jury vote here was also eight (8) to zero (0). The evidence was clearly and fully laid out before the jury. The jury resolved issues of credibility of lay and expert witnesses in accordance with the credible evidence. The Court has considered credible factors, inclusive of the feel of the case. . . . The Court finds that no showing of miscarriage of justice under the law exists here.
 
It was not clear where Hunter had actually inserted the chest tube. Hunter had determined that the proper placement was at an "upward angle" on decedent's left side between the sixth or seventh intercostal space in the anterior axillary line. The apex of decedent's heart was located near the seventh intercostal space. Hunter admitted, however, that he did not remember if he had actually inserted the chest tube between the sixth and seventh intercostal space, or had made the incision higher, closer to the fifth intercostal space and further from the apex of the left ventricle. He testified:
Q. [I]f you're nowhere near the left ventricle all the way up here, how is it that you got the clamp into the left ventricle down here?

A. That's what I don't understand and this is what confuses me because even if I put it [the chest tube] in at the sixth interspace or the seventh, it's nowhere near the apex of the heart which is down here.
 
In that regard, Hunter did not, contrary to plaintiffs' representation, admit that "the clamp and the chest tube had to have gone into the chest two levels lower than intended," and did not concede negligence. Instead, Hunter simply candidly expressed confusion as to how decedent's heart could have been injured if he had inserted the chest tube between the sixth and seventh interspace. He also did not concede he had hit the heart, although he admitted that that was never appropriate, asserting that the heart may have struck the properly placed clamp.
Moreover, the experts differed as to whether the placement of the tube constituted a deviation. Finnegan opined that Hunter should have inserted the chest tube at the fifth intercostal space, a location far from the apex of the heart, while Kline opined that Hunter had properly inserted the chest tube between decedent's "sixth or seventh interspace in the midaxillary line," or as far as appropriately possible from decedent's heart. And in response to a jury question Kline admitted that he "suppose[ed]" Hunter could have inserted the chest tube "higher," closer to the fifth interspace, but set forth, "I don't know if it would have avoided the injury or not, but he could have gone higher on the midaxillary line."
In any event, Kline testified that assuming Hunter had appropriately inserted the chest tube between decedent's "sixth or seventh interspace," when Hunter opened the pleural space by spreading the clamp, the air pressure within decedent's chest was released causing her heart, which had shifted as a result of that pressure, to move back down into place, and in the process had been impaled on the tip of the clamp. Kline noted that at the location between the sixth or seventh interspace, the heart only had to move "about a half inch" to come in contact with the clamp. And significantly, Kline opined that if decedent's heart were perforated when it shifted back into place then Hunter did not deviate from the accepted standards of care in performing the procedure. Thus, the jury could have found that Hunter properly inserted the chest tube between decedent's sixth or seventh interspace, as he had intended, and that such placement did not constitute a deviation from the standard of care.
We conclude the court did not err in denying plaintiffs' motion for a new trial.

X
Plaintiffs argue, in their point X, that the court erred in excluding from evidence a letter written by an anonymous author. Again, we find no error.
On January 28, 2000, decedent was transferred from Hackensack to New Haven, where she died on February 12, 2000. In a letter addressed to plaintiffs, dated June 6, 2000, an anonymous author wrote:
I wish to express my sincere sympathy to your family for the loss of your dear mother. A colleague of mine informed me of her passing. I hope that your family is well aware of the circumstances surrounding your mother's deterioration while at Hackensack Hospital.

I am a healthcare provider at the hospital, and would lose my job if this letter could be tracked back to me. On the day of your mother's surgery her chest x-ray showed that she had fluid on the left side that required the insertion of a chest tube. During the insertion of the tube your mother experienced a rapid decrease in blood pressure as well as cardiac arrhythmias. Along with these vital sign changes she was putting out a tremendous amount of blood into the newly inserted chest tube. As a result she had to return to the O.R. to be opened up again. I don't know if you have been aware of the reason for her return to the O.R., but her subsequent outcome was poor to say the least. I watched day after day, as her condition did not improve, knowing that the state she was in could possibly have been avoided. To add insult to injury the nurses on the unit were told by their head nurse to provide as little information to the family as possible. I believe that the hospital was afraid that there may be an impending lawsuit as a result of the botched chest tube insertion, and they wanted to make it appear that her decompensation was due to her initial surgery and her age.

I am truly sorry for not coming forward sooner. Just knowing that your family has been lied to in that manner, in an attempt to cover up their mishandling of her case is criminal.
 
Plaintiffs moved in limine to admit the letter into evidence. The court denied the motion, finding that the letter constituted inadmissible hearsay not subject to any exception, and was otherwise unduly prejudicial.
Trial courts are granted broad discretion in determining the relevance of evidence and whether its probative value is substantially outweighed by its prejudicial nature. Verdicchio, supra, 179 N.J. at 34; Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). Relevant evidence is defined as evidence "having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Unless otherwise provided by rule or law, "all relevant evidence is admissible." N.J.R.E. 402. However, hearsay is generally inadmissible, except when it falls within one of the recognized hearsay exceptions. N.J.R.E. 802; State v. Williams, 169 N.J. 349, 358 (2001). Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c).
Moreover, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of "undue prejudice." N.J.R.E. 403. A court's determination under N.J.R.E. 403 "should not be overturned on appeal 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.'" Green, supra, 160 N.J. at 492 (quoting State v. Carter, 91 N.J. 86, 106 (1982)).
Here, as the trial judge properly found, the letter, offered to prove the truth of the matter asserted, constituted hearsay. N.J.R.E. 401. See Lichti v. State, 827 N.E.2d 82, 95 (Ind. Ct. App.) (if offered for the truth of the matter asserted, an unsigned, anonymous letter constitutes hearsay), aff'd, in part, remanded in part, 835 N.E.2d 478 (2005). Plaintiffs argue that the letter was nonetheless admissible pursuant to N.J.R.E. 803(b)(4), as "[a] statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship . . . ." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (merchant's sales tag admissible as a statement of a party-opponent under N.J.R.E. 803(b)(4)); Beasley v. Passaic County, 377 N.J. Super. 585, 603 (App. Div. 2005). And under this exception "employees or agents of a defendant need not be specifically identified in order for their statements to be binding upon their employer." Reisman v. Great Am. Recreation, 266 N.J. Super. 87, 100 (App. Div.), certif. denied, 134 N.J. 560 (1993). But see Carden v. Westinghouse Elec. Corp., 850 F.2d 996, 1003 (3d Cir. 1988) (hearsay declarations of unidentified persons are rarely admitted); see also N.J.R.E. 901 ( authentication requirement satisfied by evidence sufficient to support finding that matter is what its proponent claims).
In any event, "[t]he failure to establish that the declarant was an agent, employee or representative of the party against whom the statement is offered is fatal to an offer under this rule." Biunno, supra, comment 4 on N.J.R.E. 803(b); see Gunter v. Fischer Scientific Am., 193 N.J. Super. 688, 694 (App. Div. 1984) (uncorroborated testimony that declarant was the "company's doctor" was insufficient in worker's compensation case to establish he was an agent, employee or representative); Ortiz v. Van Wagoner, 197 N.J. Super. 523, 529-30 (Law Div. 1984) (expert witnesses' reports not admissible under hearsay exception because witnesses were not agents, employees, or representatives of the defendant).
Here, as the trial court found, plaintiffs failed to establish that the anonymous declarant was an employee of one of the defendants. The letter, not written on hospital letterhead, sets forth in part: "I am a healthcare provider at the hospital, and would lose my job if this letter could be tracked to me." It is possible that the author was a nurse employed by Hackensack, but it is equally possible given decedent's critical condition in the days following the surgery that the author was a physician, physical therapist, or any of the other myriad healthcare providers who had attended her. It is thus possible that the anonymous declarant worked at, but was not employed by, Hackensack or the other defendants.
In that regard Reisman, supra, relied upon by plaintiffs, is distinguishable. In that case the plaintiff was injured while skiing alone on a beginner's slope when another skier crashed into him. 266 N.J. Super. at 89. After the accident, several of the defendant's employees, including the lift operator and ski patrollers, informed the plaintiff that the skier who had injured him was employed by the defendant and had previously had his lift ticket taken away and been asked to leave the slopes for skiing drunk. Id. at 90. Although the plaintiff could not specifically identify the employees, he "clearly recognized these individuals as employees of defendant due to the unique outerwear in which they were clad." Ibid. On that basis the court found the plaintiff had "plainly" established employment and thus the statements were admitted under the vicarious admissions exception to the hearsay rule. In contrast here, the identified declarant may or may not have been an employee. Thus, given the lack of specificity as to the unidentified author's employment, the court did not abuse its discretion in excluding the hearsay evidence.
Moreover, in the alternative the court also excluded the evidence pursuant to N.J.R.E. 403, finding that the probative value was substantially outweighed by the risk of undue prejudice. Here the letter had limited probative value in that it indicated that the nurses, not the physicians, had attempted to thwart the dissemination of information. The nurses had settled before trial and thus whatever limited probative value the letter had was outweighed by the very real risk of undue prejudice, particularly the reference to a "botched chest tube insertion," and Hackensack's fear of a medical malpractice lawsuit. Thus, even if the letter was subject to the exception set forth in N.J.R.E. 803(b)(4), the court did not abuse its discretion in excluding it pursuant to N.J.R.E. 403.

XI
Plaintiffs argue, in their points XI and XII, that their counsel was prevented from making an effective opening and summation to the jury by reason of constant interruptions and objections made by defense counsel and the court. We disagree.
Trial judges are given great latitude in the conduct of a trial, including setting the permissible boundaries of openings and summations. State v. Muhammad, 359 N.J. Super. 361, 381 (App. Div.), certif. denied, 178 N.J. 36 (2003); Colucci, supra, 326 N.J. Super. at 179. "The fundamental purpose of opening statements is 'to do no more than inform the jury in a general way of the nature of the action and the basic factual hypothesis projected, so that they may be better prepared to understand the evidence.'" Amaru v. Stratton, 209 N.J. Super. 1, 15 (App. Div. 1985) (quoting Passaic Valley Sewerage Comm'rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960)). Counsel "must be summary and succinct" and "[n]othing must be said which the lawyer knows cannot in fact be proved or is legally inadmissible." Passaic Valley, supra, 32 N.J. at 605 (citing Paxton v. Misiuk, 54 N.J. Super. 15, 20 (App. Div. 1959)).
During plaintiffs' counsel's opening he said, "[n]obody told them that she had the collapsed lung. Nobody told them a chest tube was going to be placed. And, most importantly, nobody asked them if they would agree to have Dr. Hunter. . . ." At that point, Hunter s counsel interrupted, arguing that "[t]his is not an issue in the case," apparently referring to the fact that the informed consent claim against Elmann had been dismissed. Outside the presence of the jury, the parties engaged in a lengthy argument during which defense counsel then asserted,
to tell this jury that Dr. Hunter had an obligation to get permission from the family to put a chest tube into Mrs. Liguori is a complete falsehood, under the circumstances of this case, where their own expert, at deposition an[d] in [a] report, says this is an emergency. Never does he say anything, but that it's an emergency. To suggest to the jury that Dr. Hunter had an obligation is wrong and should not be permitted. The only situation in which an obligation might arguably fall upon a doctor to seek consent of family is in a non-emergency setting, where a patient couldn t give consent.
 
Counsel further argued that "[u]nder the circumstances where it's an unrefuted emergency" it would be "absolutely improper to suggest otherwise" in an opening statement, although if facts revealed at trial supported such a claim, an argument could then be made in closing arguments.
Plaintiffs' counsel countered that defense counsel was simply repeating her motion for summary judgment, and thus moved for sanctions and a mistrial. The court denied the motions, finding that counsel's "opening statement is more like a summation," and then asked plaintiffs' counsel if their expert had admitted that the chest tube insertion procedure constituted an emergency. Counsel responded that he could not remember. The court sustained Hunter's objection and precluded plaintiffs from referring to the informed consent claim, but did not dismiss the claim, explaining that counsel should
[k]eep your powder dry, don t make [a] comment about this until your expert takes the witness stand. And then we may have to deal with that at the end of your case . . . But at this point in time, don t make those statements you have to be circumspect in regard to your statements - until you know exactly what your witness is going to say. . . .
 
Nonetheless, after the ruling, plaintiffs' counsel continued to argue the motion and again moved for a mistrial. When the jury returned, the court apologized for "interrupting" plaintiffs' opening statement, stating "[w]e have legal issues that, from time to time, [are] . . . evolving and we're trying to decide." Counsel then continued with a lengthy uninterrupted opening.
In that regard this case is distinguishable from Passaic Valley Sewerage, where the Court found counsel had been unnecessarily interrupted and harassed during his opening argument, which had prevented him from saying a good portion of what he should have been permitted to say. Id. at 608. Here, in contrast, one interruption led to a lengthy argument, much of which was occasioned by plaintiffs' counsel's refusal to accept the court's ruling and not as a result of any unnecessary harassment. Moreover, counsel finished his opening statement unencumbered by further interruptions, and does not contend on appeal that he had omitted any specific argument. Additionally, any possible prejudice caused by the interruption was cured by the court's cautionary instruction. Thus, plaintiffs are not entitled to a new trial on this basis.
With respect to plaintiffs' closing, counsel's extensive argument was interrupted twelve times; four times by the court and eight times by Hunter's counsel. The brief interruptions were, however, warranted and there is no indication that plaintiffs were deprived of a fair trial. Stec v. Richardson, 75 N.J. 304, 310 (1978). For example, early in his summation plaintiffs' counsel said "[w]hen I took these depositions, I didn't think this was a game. I thought this was when I was finding out everything I needed to know." The court interrupted and instructed counsel that "[i]t's not what you do. Comment on the evidence. . . . You're not to put yourself in the case."
Nonetheless, just a few minutes later counsel said, "so now I believe. . . ." The court again instructed him to comment only on the evidence and not to use the phrase "I believe." The court interrupted counsel later for a similar transgression. These interruptions were warranted, because counsel is limited to commenting on the evidence and issues at trial, and should not make improper expressions of personal opinion. State v. Frost, 158 N.J. 76, 88 (1999). Moreover, given the length of the summation, the interruptions were fleeting.
Similarly, defense counsel's objections were also brief and appropriate; in fact the court sustained six of counsel's eight objections. See Pierce v. Yaccarino, 72 N.J. Super. 252, 259 (App. Div. 1962) (counsel is obligated to make timely objections and ordinarily the court will not interfere with counsel's judgment of whether an objection is necessary). For example, defense counsel objected to counsel continually inserting himself into the proceedings, as he had been instructed not to do, by using the terms "I believe" or "I think." Defense counsel also objected to counsel's use of a football as demonstrative evidence, on the basis that the football had not been admitted into evidence and otherwise did not conform to the testimony that decedent's heart was the size of a small football. In that regard, defense counsel's interruptions were appropriate and limited. We conclude that plaintiffs have not demonstrated error in this regard.

XII
Plaintiffs argue, in their point XIII, that they were denied a fair and impartial jury because they were forced to use six peremptory challenges to excuse allegedly biased jurors. We find no error.
A civil litigant is entitled to an unbiased jury and a responsive jury selection process. Catando v. Sheraton Poste Inn, 249 N.J. Super. 253, 259 (App. Div.), certif. denied, 127 N.J. 550 (1991); see Wright v. Bernstein, 23 N.J. 284, 294 (1957) ("The fundamental right of trial by a fair and impartial jury is jealously guarded by the courts.") In a civil action each party is entitled to six peremptory challenges. N.J.S.A. 2B:23-13(a); R. 1:8-3(c). "The jury selection process is made up of distinct parts that include the challenge for cause (Rule 1:8-3(b)) and the peremptory challenge (Rule 1:8-3(d))." State v. W.A., 184 N.J. 45, 54 (2005). "Challenges for cause 'permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality . . . .'" Ibid. (quoting Swain v. Alabama, 380 U.S. 202, 220, 85 S. Ct. 824, 836, 13 L. Ed. 2d 759, 772 (1965), rev'd on other grounds, Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)).
In contrast, peremptory challenges generally require neither explanation nor approval by the court and are intended to be used to remove those prospective jurors who appear most likely to be biased. W.A., supra, 184 N.J. at 54. "[A] juror who expressly states that she cannot be impartial or that she is controlled by an irrepressible bias, and therefore will not be controlled by the law, is unable to continue as a juror for purposes of R. 1:8-2(d)(1), and must be removed from a jury." State v. Jenkins, 182 N.J. 112, 128 (2004). "Trial court decisions as to whether to excuse prospective jurors for cause are given substantial deference." Arenas v. Gari, 309 N.J. Super. 1, 18 (App. Div. 1998).
"A trial court must 'see to it that the jury is as nearly impartial 'as the lot of humanity will admit.''" State v. Williams, 113 N.J. 393, 441 (1988) (quoting State v. Jackson, 43 N.J. 148, 158 (1964), cert. denied sub nom, Ravenell v. N.J., 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965)). However, "[a]lthough a juror's professions of impartiality will not always insulate him from excusal for cause . . . , they will be accorded a great deal of weight. . . ." State v. Singletary, 80 N.J. 55, 64 (1979). Thus, when a juror testifies that he or she can render an impartial verdict on the evidence, and the court finds as a matter of fact that he or she will, then the juror is an impartial juror as required by the law. State v. Jackson, supra, 43 N.J. at 158 (quoting United States v. Chapman, 158 F.2d 417, 421 (10th Cir. 1946)); see State v. Fortin, 178 N.J. 540, 627 (2004) (courts given wide discretion to make voir dire decisions based on their first-hand opportunity to observe prospective jurors and are in the best position to make judgments about a juror's ability to be fair and impartial).
As prescribed by R. 1:8-3, the court conducted extensive voir dire of potential jurors, and specifically asked: "There has been extensive media coverage of medical negligence and the question of placing limits on the amount that a plaintiff may recover in these cases. Do you have an opinion on this question?" The court excused certain members of the pool for cause and permitted plaintiffs' to exercise seven peremptory challenges and defendants to use a total of nine peremptory challenges.
Nonetheless, plaintiffs argue that five of the prospective jurors exhibited bias in that they expressed an opinion in favor of tort limits and should have been dismissed for cause. We find that argument unpersuasive given that the jurors unequivocally indicated that they would apply the law and could be fair and impartial. For example, one juror said he believed there should be limits on damage awards, but was unaware whether New Jersey had such limits. The court informed the juror that New Jersey had no limits to recovery, and he unambiguously agreed to abide by that law and indicated that he could be fair and impartial. Similarly, another juror said that although he had been "bombarded" with information about malpractice cases, and believed there should be limits on awards, he explicitly agreed to abide by the law. Three other jurors also believed there should be limits on awards, but readily agreed to apply the law. All five jurors expressed their ability to decide the case impartially and were thus not subject to dismissal for cause.
Next, plaintiffs argue the court erred in failing to dismiss for cause, a juror, who was an operating room nurse employed by Hackensack. Although many of that juror's responses were not recorded, the court found that she had responded that she could be impartial and would apply the law. That finding is subject to deference. Moreover, at the time of the voir dire plaintiffs had settled with Hackensack and the individual nurses. As a result, we conclude that the court did not err in denying plaintiffs' request to dismiss this juror for cause. In that regard we need not address plaintiffs' argument that if he had had additional peremptory challenges, he would have excused at least three of the sworn jurors.
Finally, plaintiffs' argue they were unfairly prejudiced by the court's refusal to grant them additional peremptory challenges. R. 1:8-3(c) provides that:
[i]n civil actions each party shall be entitled to 6 peremptory challenges. Parties represented by the same attorney shall be deemed 1 party for the purposes of this rule. Where, however, multiple parties having a substantial identity of interest in one or more issues are represented by different attorneys, the trial court in its discretion may, on application of counsel prior to the selection of the jury, accord the adverse party such additional number of peremptory challenges as it deems appropriate in order to avoid unfairness to the adverse party.
 
"[T]the grant or denial of extra peremptory challenges under Rule 1:8-3(c) is a matter of discretion. . . ." Velazquez, supra, 163 N.J. at 692.
Here the court had initially granted plaintiffs three additional challenges; however, after Hackensack and the nurses settled, the court reduced that number to one additional challenge, finding that Hunter and Elmann had "different interests at this point." That finding is entitled to deference and was well supported. Plaintiffs were not denied a fair and impartial jury.
XIII
Despite plaintiff's vigorous and well-presented advocacy on appeal, as at trial, we discern no basis on which to overturn the jury's verdict in this hard-fought case. We conclude that the trial was ably managed by Judge Miller. None of his rulings constituted error. As we have noted, he either correctly interpreted the law or properly exercised his discretion in those instances where the law gave him that power.
Affirmed.

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WEISSBARD, J.A.D., concurring in part, dissenting in part.
 
 
Finding myself in disagreement with the majority on one important issue, I dissent.
At trial, plaintiffs requested the court to charge that Dr. Hunter should be held to the standard of a specialist, as reflected in the Model Jury Charge (Civil), 5.36A, Medical Malpractice, Duty and Negligence, option A: Specialist. The judge rejected that request and, instead, charged Option B: General Practitioner. On appeal, plaintiffs argue that this was error. I agree.
The heart of the majority ruling on this issue is that Dr. Hunter "was not a specialist, he did not hold himself out as a specialist, and a specialist was not required to perform the chest tube insertion procedure." (slip. op. at ____). After quoting the court's instruction, the majority again repeats that the charge was appropriate because the evidence showed that "Dr. Hunter was not a surgeon, and he did not hold himself out to be a surgeon." (slip. op. at ____). Noting that Dr. Hunter had only three years of surgical residency and "did not complete the five-year program of study that was necessary to become a surgeon," the majority emphasizes that "[h]e was neither board eligible nor board certified in general surgery." Ibid.
To me, all of this is essentially irrelevant to the question of whether Dr. Hunter should be viewed, for the purpose of jury instructions, as a "specialist" or a "general practitioner."
The critical inquiry is what it means to hold oneself out "as a specialist." Certainly it does not mean, and the majority does not suggest, that the doctor must hold himself out to the patient as a specialist. No case supports that proposition. See footnote 6 As I see it, if the physician undertakes to act as a specialist, and in that sense holds himself out, he or she should be judged as a specialist. It is what the physician purports to do, the way in which he or she acts, that should result in application of one or the other of the standards of care, i.e., specialist or general practitioner.
In this case, Dr. Hunter had no interaction with decedent, insofar as the record reveals, because she was unconscious when the need for his intervention arose. Thus, he could not have held himself out to her concerning his capabilities. To require some personal interaction under these circumstances would be manifestly unfair to the patient. As an example, what if Dr. Elmann had been incapacitated in the midst of the surgery, and Hunter, as assistant surgeon, had to step in and complete the highly specialized procedure? Clearly, in such a circumstance, Hunter should be held to the same standard as Elmann, even though he never met or conversed with the patient.
In any event, here, Hunter acted as a specialist in surgery; he not only was the assistant surgeon but also undertook to perform a delicate invasive procedure, the chest tube insertion, in the course of which the decedent was injured. While the majority quotes a portion of his testimony, defendant's expert, Dr. Kline, himself a surgeon, also testified as follows:
Q: Now during the course of your years of practice as a general surgeon and as a trauma surgeon, after you learned how to insert chest tubes, did you, from time to time, have occasion to insert a chest tube on patients that you were taking care of?

A: Oh, sure. It was -- it was the routine in Morristown, as it was at St. Barnabas, as a matter of fact, that general surgeons were called to the emergency room when a chest tube needed to be inserted.

And so I saw that frequently. There were the occasional circumstances where the patient I was operating on needed a chest tube and that was done interoperatively. And of course when you get on a trauma service, chest tubes are just a routine kind of thing. Most of our patients on trauma service are blunt trauma, chest injuries. Almost all of them require chest tubes or a lot of them require chest tubes, so inserting chest tubes is something I did quite frequently.

Q: Okay. Now, Doctor, in addition to actually performing chest tube insertions, did you also teach junior doctors, residents, interns, during the course of your career as a physician, to insert chest tubes?

A: Certainly. The -- both St. Barnabas and -- and Morristown Memorial have full surgical residency and training programs and part of the responsibilities there was to teach the residents how to insert chest tubes, supervise them when they do insert chest tubes, and it's a graduated sense of responsibility.
 
I find no support in that testimony for a charge that Dr. Hunter was acting as a general practitioner when he undertook the chest tube insertion, or that a general practitioner, in the sense that a lay juror would understand that term, was competent to perform the procedure. Certainly, whether Dr. Hunter was to be treated as a specialist cannot depend, as the majority suggests, on whether he considered himself a specialist or had completed all the requirements to become board eligible in surgery. To use the expression attributed to Oscar Wilde, "if it walks like a duck and talks like a duck, then it's a duck." So too here. If Dr. Hunter acted as a specialist, he should be treated as a specialist. As the court said in Valentine v. Kaiser Found. Hosps., 15 Cal. Rptr. 26, 33 (Cal. App. 1961), the words "holds himself out," in the standard malpractice charge, "do not have any independent significance under the law." Rather, "[t]he difference between the duty owed by a specialist and that owed by a general practitioner lies not in the degree of care required but in the amount of skill required." Ibid.
Even if there was a fact question as to whether Dr. Hunter was acting as a specialist, that issue should have been resolved by the jury as part of the malpractice/duty of care instruction. Gambrell v. Ravin, 764 P.2d 362, 365 (Colo. App. 1988) (citing Short v. Kinkade, 685 P.2d 210 (Colo. App. 1983)), aff'd on other grounds, 788 P.2d 817 (Colo. 1990). Indeed, the problem, reflected in this case, may be that our model jury instructions present a trial judge with only two options, specialist or general practitioner. A third choice should be to instruct the jury to determine whether the doctor is to be viewed as a specialist or general practitioner, and to apply the appropriate standard of care depending upon its resolution of that question. See Colorado Jury Instructions for Civil Trials, 15.3, Notes on Use, note 2.
While the judge here did, as the majority notes, instruct the jury to "determine the applicable medical standard from the testimony of the expert witnesses . . ." and to "focus on accepted standards of practice as an assistant cardiac surgeon or assistant cardiac thoracic surgeon fellow . . .," in the end, the judge instructed the jury that Dr. Hunter "is a general practitioner," to be judged in light of the knowledge and skill possessed "by the average physician practicing his profession as a general practitioner." The charge defined a general practitioner as one "who is engaged in the general practice of medicine."
In my view, such a charge was not consistent with the evidence and unacceptably lowered the standard by which Dr. Hunter's actions were to be evaluated. How the jury weighed Dr. Hunter's conduct against the articulated standard of care was central to plaintiffs' case. As a result, the charge as given, to which proper objection was made, was manifestly prejudicial to plaintiffs' case and justifies a new trial as to Dr. Hunter.
Since I agree with the majority's disposition of the other issues, I would affirm as to Dr. Elmann.

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Footnote: 1 The notice of appeal incorrectly lists the Docket Number as BER-L-10176-04.
Footnote: 2 Plaintiffs are Patricia Liguori, Geraldine's daughter, individually and as Adminstratratrix as Prosequendum of the Estate of Geraldine Liguori, and as Executrix of the Estate of John J. Liguori (Geraldine's husband who died subsequent to her death but before suit was instituted), and John C. Liguori, Geraldine's son.
Footnote: 3 A radiologist's report of a chest x-ray taken later that day at 4:01 p.m., indicated that plaintiff's heart was in the top of the normal range for size.
Footnote: 4 At the time of trial, Hunter continued to perform chest tube insertions on patients at Hackensack.
Footnote: 5 No other New Jersey cases have recognized such a cause of action. See Starozytnyk v. Reich, 377 N.J. Super. 111, 127 (App. Div. 2005) (Court in Howard "declined to extend common law to allow a deceit-based cause of action when the patient's damages from the alleged 'fraud' arose exclusively from the doctor-patient relationship involving the plaintiff's medical procedure").
Footnote: 6 Crego v. Carp, 295 N.J. Super. 565 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997), involved a doctor who "was known to plaintiff as a general practitioner . . . her 'family doctor' and . . . held himself out as such." Id. at 577. Crego also mentions the absence of evidence "that plaintiff was led to believe that [the doctor] was a specialist in orthopedics." Ibid. The Model Charge does not incorporate such a requirement. "It does not matter whether the physician led any specific patient to have an actual expectation that the physician would exercise a greater level of skill, so long as the physician has taken 'affirmative steps' to present himself or herself to the public as a specialist." Zaverl v. Hanley, 64 P.3d 809, 817 (Alaska 2003). See also Medlin v. Crosby, 583 So. 2d 1290, 1295 (Ala. 1991). None of the cases cited in Crego speak to this issue. See Lewis v. Read, 80 N.J. Super. 148 (App. Div.), certif. granted, 41 N.J. 121 (1963); Clark v. Wichman, 72 N.J. Super. 486, 493 (App. Div. 1962); Carbone v. Warburton, 22 N.J. Super. 5 (App. Div. 1952), aff'd, 11 N.J. 418 (1953).

A-1819-04T5