BARBARA GOODMAN, et al. v. YOUNG JO, M.D., and JOSEPH M. ROTH, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6330-03T16330-03T1

BARBARA GOODMAN, individually and

as administratrix ad litem of

THE ESTATE OF HAROLD STEINMAN,

and BARBARA GOODMAN, individually

and as guardian ad litem for

LISA GOODMAN,

Plaintiffs-Appellants,

v.

YOUNG JO, M.D., and JOSEPH M.

ROTH, M.D.,

Defendants-Respondents,

and

ISSAM MALLOUHI, M.D.,

Defendant.

________________________________________________________________

 

Argued January 24, 2006 - Decided

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-6489-00.

Bruce H. Nagel argued the cause for appellants (Nagel Rice & Mazie, attorneys; Mr. Nagel, on the brief).

Kenneth M. Brown argued the cause for respondent Young Jo, M.D. (Sharp & Brown, attorneys; Mr. Brown, on the brief).

Sean P. Buckley argued the cause for respondent Joseph M. Roth, M.D. (Buckley & Theroux, attorneys; Mr. Buckley, of counsel; Joanne Gaev Campbell, on the brief).

PER CURIAM

Plaintiff, Barbara Goodman, individually, as administratrix ad litem of the estate of her father, Harold Steinman, and as guardian ad litem of her daughter Lisa Goodman, sued Dr. Young Jo and Dr. Joseph M. Roth, alleging that their medical malpractice caused her father's death. The jury returned a verdict of no cause for action, finding that plaintiff failed to prove that either defendant was negligent. Plaintiff appeals and presents these arguments:

I.

THE COURT BELOW ERRED BY CHARGING [MEDICAL] JUDGMENT.

II.

THE COURT BELOW IMPROPERLY FAILED TO SUBMIT VARIOUS BREACHES TO THE JURY.

III.

DR. ROTH CHANGED HIS TESTIMONY ON A CENTRAL ISSUE AND THE COURT FAILED TO GRANT THE REQUESTED RELIEF.

IV.

THE DEFENSE IMPROPERLY STRESSED THE LACK OF AUTOPSY AND TAINTED THE TRIAL.

V.

THE COURT BELOW IMPROPERLY PERMITTED TESTIMONY REGARDING A SUDDEN GASTRIC BLEED WHEN THESE OPINIONS HAD BEEN EARLIER BARRED.

VI.

THE NUMEROUS INTERRUPTIONS BY COUNSEL AND THE COURT INSTRUCTIONS NULLIFIED OUR CLOSING AND REQUIRES A NEW TRIAL.

VII.

MR. BUCKLEY'S CLOSING ARGUMENT [WAS] NOT PROPER.

VIII.

IN THE EVENT OF REMAND, THE PORTEE CLAIMS OF THE DAUGHTER AND GRANDDAUGHTER SHOULD BE REINSTATED.

We reject these arguments and affirm. With respect to Points VI and VII, we are satisfied from our review of the record that no reversible error occurred and plaintiff's appeal arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Because of our affirmance, there will be no remand, and we therefore will not address the argument in Point VIII pertaining to the individual claims of plaintiff and her daughter for emotional distress. We will fully discuss the arguments raised in Points I through V.

I

On July 18, 1999, Steinman, age seventy-two, vomited all night after dinner and could not stop. He went to the emergency room (ER) at Passaic General Hospital. Steinman, who suffered from asthma and chronic obstructive pulmonary disease (COPD), had most recently been treated for pneumonia in February 1999. Jo, an internist with a specialty in pulmonary medicine, had treated Steinman since 1992 and was called to attend to him on July 18, 1999, after Steinman was seen by the ER doctor.

The ER doctor had ordered abdominal X-rays, which, according to the radiologist's report, showed swelling of the mucous membrane of the small bowel, as well as air fluid levels in six areas. This was indicative of either ileus (paralysis of the small bowel) or a partial small bowel obstruction. After examining Steinman and finding that he had no signs of a severe inflammatory process, Jo's first impression was that the patient had acute gastritis, an infectious process of the stomach. Steinman's blood test results were indicative of dehydration, which was consistent with someone who had been vomiting repeatedly.

Jo admitted Steinman to the hospital, indicating that the patient had gastrointestinal problems, vomiting, an inability to tolerate liquids, and abdominal distention. He ordered additional blood tests for the following morning, prescribed Compazine every four hours as needed for the nausea and vomiting, and instructed that the patient get nothing by mouth. He also ordered a chest X-ray if one had not been done in the ER, but he did not order any additional abdominal X-rays. Contrary to the radiologist's report, Jo believed it was highly unlikely that there was any mechanical obstruction in Steinman's abdomen because he was not complaining of abdominal pain, his bowel sounds were not hyperactive, and there was no abdominal tenderness. On July 19, the patient underwent two additional sets of chest X-rays, in addition to the one done in the ER the night before. However, only one report was prepared.

When Jo examined Steinman on July 20, he determined he had vomited only twice since being admitted, which Jo took as a sign of improvement. His abdomen was soft and not distended and he was not in any active distress. Jo ordered some blood and urine cultures to rule out a kidney infection; later that same day, he ordered a repeat electrolyte study for the following morning and changed the Compazine order to every six hours. He also started the patient on a clear liquid diet and asked for a consultation by a gastrointestinal (GI) specialist.

Jo did not order any follow-up abdominal X-rays because the patient was improving, his vomiting had diminished and then stopped completely, and he had a benign physical examination. He admitted, however, that the only way to see whether differential air fluid levels or prominent small bowel lobes changed in size or location was to do a repeat X-ray. He advanced the patient to a clear liquid diet despite the absence of new radiological information because, based on the clinical information he had, Jo did not believe that the patient's small bowel loop had increased in size or changed location. According to Jo, an abdominal X-ray would not have told him as much as the clinical findings and patient symptomatology.

Roth was the gastroenterologist whom Jo called to consult. According to Roth, the reasons for the consultation were abdominal distention and gastroenteritis. When Roth saw Steinman on July 20, he learned that the patient had not vomited since the previous day and that he had received eight to nine doses of Compazine since arriving at the hospital. The chart showed that Steinman had initially been given two doses of Compazine on July 18, in the ER. He was given four doses on July 19, and two doses on July 20, prior to Roth's seeing him. According to Roth, Compazine was effective for only three to four hours and was inactive, or out of the system, after four to six hours.

Roth determined that Steinman was not in any acute distress and that he had tolerated clear liquids. His abdomen was soft, his bowel sounds were present though decreased, and he had mild to moderate abdominal distention. Roth's differential diagnosis was gastroenteritis and paralytic ileus. He recommended observing the patient for twenty-four hours; if he was not any better, then Roth intended to order a CAT scan to delineate "ileus versus small bowel obstruction" in evolution.

Roth noted that the abdominal X-ray report indicated an abnormal small bowel pattern, consistent with partial or early mechanical obstruction. Although Roth did not have a specific recollection of seeing the X-rays himself on July 20, his notation of "ileus versus small bowel obstruction" indicated to him that he did see the X-rays because these terms had not been used in the radiology report. He then testified, contrary to his deposition testimony, that he did recall going down to the X-ray department to look at Steinman's abdominal X-rays.

In any event, according to Roth, the indicated treatment was the same for ileus and a partial small bowel obstruction, namely the patient is observed to see if the process spontaneously resolves, which it often does. A patient who develops a complete small bowel obstruction would not want to eat, would develop a fever, and would have a distended belly. If a patient with an ileus or partial obstruction could tolerate liquids, he could be advanced to a soft diet.

On July 20, Roth left Steinman's diet at clear liquids. He did not see any need for a follow-up abdominal X-ray because the patient was not in acute distress, was tolerating liquids, had no acute tenderness and no rebound, had not vomited since July 19, and because there was no evidence of a complete bowel obstruction. Roth ordered a complete metabolic profile on the patient and directed the nurses to administer an enema in order to stimulate his rectum.

Plaintiff and her daughter Lisa arrived from Florida in the early afternoon of July 20. According to plaintiff, her father looked terrible and had a big distended belly. He complained that he was gassy and bloated. Contrary to the doctors' beliefs that her father was getting better, plaintiff believed he was very sick and had a stomach problem. When plaintiff and Lisa came back later that evening, Steinman looked even worse.

Nurse Barbara Bivin cared for the patient on July 20, from 3:00 p.m. to 7:00 p.m. He told her that his abdomen was "comfortable." On her initial shift assessment flow sheet, Bivin noted that Steinman had taken 80% of his dinner and that his abdomen was firm, soft, and flat, with slight distention. At 4:00 p.m., he complained of having vomited a small amount of mucous, so she administered Compazine at 6:00 p.m. When her shift ended at 7:00 p.m., Steinman said he felt fine. The previous shift nurse had noted that he passed some gas.

On July 21, Roth examined the patient at about 7:30 a.m. According to Roth, Steinman was in good spirits and said he had several small bowel movements during the night, had been passing gas, felt better, and wanted to eat. Roth's abdominal exam revealed markedly reduced distension. The abdomen was soft with active bowel sounds and the patient was not in any pain. Accordingly, Roth decided to advance the diet to a soft diet with no milk products. Roth was adamant that a decision to advance a diet is not based on radiological, but on clinical information. In Roth's view, Steinman's clinical picture was markedly improved.

Steinman's blood had not yet been drawn for the tests that had been ordered. However, according to Roth, there was no reason to wait for the blood work before advancing the diet because the patient could be given a "feeding trial." Roth intended to continue to monitor the patient and check his white blood count.

Jo examined the patient later that morning, at 9:20 a.m. He noted that the patient had not vomited any further, that he said he felt fine, and that there was no change in his physical exam. Jo ordered a repeat chest X-ray. He then checked out for the day and left his colleague, Dr. James V. Abraham, in charge of Steinman's care.

Bivin also cared for the patient on July 21, starting at 8:00 a.m. She found him comfortable, cheerful, and conversant, with a slight pot belly. At 9:00 a.m., he was eating breakfast in a chair located in the hallway outside his room. He then was taken down for his chest X-ray and returned around 11:00 a.m. Plaintiff and Lisa were waiting for him upon his return. According to plaintiff, her father looked awful. His belly was even larger than the night before and he "looked like he was eight or nine months pregnant." However, she admitted that he made some business phone calls that morning from the hospital.

At about 11:45 a.m., Steinman started having respiratory difficulties. Bivin called Jo's pager service and was instructed to have a technician draw arterial blood gases and to order oxygen for the patient. At 12:05 p.m., Steinman vomited approximately 150 cubic centimeters (cc's) of "coffee-ground" fluid. The term "coffee-ground" in this context refers to digested blood, i.e., blood digested by gastric acid. Plaintiff and Lisa witnessed this event. Bivin instructed the patient not to eat or drink anything further. She then started to call Jo again when, at about 12:25 p.m., she heard plaintiff scream for help.

According to plaintiff, she saw the eyes in her father's head roll back and it sounded like something was percolating inside of him, like a volcano erupting. As plaintiff went to get a larger basin for her father to vomit into, more coffee ground material spilled out all over. When Bivin entered the room, she saw Steinman's eyes rolled back in his head and a small amount of vomit on his shirt. She called a "code" at 12:28 p.m. and started to push the button to lower the bed when a projectile of vomit gushed from his mouth, consisting of about 1000 cc's of coffee ground fluid.

Bivin then turned the patient on his side and the fluid spilled to the floor. Another nurse, who was assisting Bivin, wrote that Steinman expelled about 2000 to 3000 cc's of vomitus; this was an estimate based on what both nurses saw on the floor. When Bivin called the code, the patient had no pulse and was not responding to his name.

Roth had been notified when the patient coded. He ordered Pepcid, an intravenous tube, and a nasogastric (NG) tube. He inserted the NG tube and observed coffee ground emesis coming out of it. After the patient died, Roth spoke to plaintiff about what she had observed right before her father arrested. He then recorded that conversation in a written note. According to Roth, plaintiff never told him that her father had experienced abdominal distress prior to his arrest.

As the doctor who was covering for Jo, Abraham was called when the patient was transferred to ICU and was responsible for managing the patient's respiratory support. He arrived at the hospital at 3 p.m., and pronounced Steinman dead at 4:17 p.m. Abraham recorded on the death certificate that the immediate cause of death was respiratory failure and that the respiratory failure was due to, or a consequence of, aspiration pneumonia. That is, he thought that the aspiration of vomit into the patient's lungs had caused the respiratory failure.

According to Abraham, respiratory failure leads to respiratory arrest, which is different from cardiac arrest. When he completed the death certificate, he had not looked at the CPR form that had been prepared at 12:38 p.m., which said the patient had suffered cardiac arrest. Although his entries on the death certificate were within a reasonable degree of medical probability and were based on information he had available to him at the time, Abraham stated that an autopsy would have provided him with more information as to the cause of death.

When Jo looked at Steinman's chart subsequent to his death, he too concluded that the patient had suffered from aspiration pneumonia. That conclusion was based on the third chest X-ray taken on July 21, at 2:15 p.m. However, according to Jo, neither the first chest X-ray taken on July 21, at 10:30 a.m., nor the second one taken at 1:45 p.m., showed any evidence of aspiration pneumonia.

II

According to Dr. David Befeler, a board-certified general surgeon called by plaintiff, the standard of care required Jo, as the patient's primary care physician, to evaluate the patient completely upon his admission to the hospital, do a physical exam, evaluate the laboratory data, evaluate the X-rays, and make a determination as to what had to be done, i.e., what consultants to call and what orders to write. Specifically, "[u]ntil the ileus or obstruction cleared or was defined [Jo] needed to order X rays on a daily basis so that he could evaluate this patient." Thus, according to Befeler, Jo should have ordered abdominal X-rays on July 19, July 20, and July 21 in order to assure himself that there was no progression of the GI problem. The risk of ordering a solid diet for a patient with a partial bowel obstruction is that the bowel obstruction could become complete. The risk of stomach contents aspirating into the lungs is potentially lethal for a COPD patient.

Befeler opined that Jo breached the standard of care by failing to order such repeat X-rays because he allowed his clinical findings of the patient to cloud the issue. A doctor can not rely just on a patient's appearance when treating an ileus or obstruction. The only way to know what is going on with such a patient is to follow the laboratory results and X-rays. Had repeat X-rays of Steinman's abdomen been taken, the patient would not have gotten to the point of a GI tract full of fluid, which he then vomited and aspirated into his lungs, causing his death.

With respect to Roth, Befeler opined that the standard of care required him to review the films of the abdominal X-rays taken in the emergency room on the night the patient was admitted. It was not clear from the record whether Roth had seen these films. If he had in fact looked at the films himself, then Befeler had no disagreement with Roth's interpretation of them. Nor did Befeler have any disagreement with the radiologist's report of the X-rays. Roth also had the obligation to determine whether to advance the patient's diet and whether the patient had a resolving problem. He, too, should have ordered additional X-rays, which in Befeler's view, would have disclosed abdominal distention and an ongoing problem, i.e., either an unresolved ileus or an unresolved partial obstruction, and would have revealed the considerable amount of fluid in the patient's upper GI tract. According to Befeler, Roth could have then dealt with these problems by inserting an NG tube, to empty the fluid from the patient's stomach, and by ordering the patient not to be fed by mouth. Adding solid food to Steinman's diet made his pre-existing problems worse. Hence, Roth deviated from the standard of care by advancing the patient to solid food without first knowing what was happening in his abdomen.

Befeler believed that when Steinman went into respiratory distress at 11:45 a.m. on July 21, he was beginning to have "silent aspirations." This is when fluid comes up the esophagus and goes down into the trachea or lungs, causing the patient to become short of breath or have difficulty breathing. The cardiologist who attended to Steinman after he coded noted in the chart that the patient first had respiratory arrest followed by cardiac arrest. An echocardiogram taken during the period after the initial arrest showed normal left ventricular function, which would be incompatible with a heart attack. In addition, Steinman had no prior cardiac history. Ultimately, however, Befeler admitted that the only way to be positive whether a heart attack caused Steinman to stop breathing or whether his respiratory arrest caused him to have a heart attack would be to conduct an autopsy.

Befeler also admitted that there was no evidence of any significant pulmonary problem, such as aspiration pneumonia, prior to 11:45 a.m. on July 21. Nevertheless, Befeler did not think that the cause of Steinman's respiratory distress was something sudden and acute. The amount of fluid the patient expelled could not have accumulated quickly; rather, it had been building up and was present on the morning of July 21 when both defendants examined him. Befeler believed the nurses' notes were mistaken in describing Steinman's condition as improving. He also believed Roth was mistaken when he found markedly decreased abdominal distention on the morning of July 21.

Plaintiff also called Dr. Lawrence J. Nastro, who is board certified in internal medicine, infectious diseases, and pulmonary diseases. He also opined that Steinman had shortness of breath on the morning of July 21 due to the contents of his stomach aspirating into his lungs, and that this led to respiratory arrest, which then caused the patient to go into cardiac arrest. Like Befeler, he suspected that the patient was aspirating small amounts before he had any episodes of vomiting. He, too, admitted that the patient did not have any difficulty breathing prior to 11:45 a.m. on July 21.

Assuming the patient did not have any vomiting or aspiration prior to his first vomiting episode at 12:05 p.m. on July 21, then Nastro believed there were four possible causes of his respiratory distress: heart failure; a blood clot; acute infection with sepsis; and aspiration. In his opinion, aspiration "fit the bill" 100%. None of the chest X-rays showed any evidence of congestive heart failure or a worsening infection. In addition, Steinman did not have any chest pains or other cardiac symptoms.

Defendants' experts took a different view of Steinman's medical progress. According to Dr. E. Kevin Bell, a board-certified internist who testified on behalf of Jo, there was no need for Jo to order any follow-up abdominal X-rays on July 19, 20, or 21, because Steinman was clinically improving on those three dates. A doctor is supposed to treat the patient, not the lab results or X-ray reports. Although Bell admitted that differential air fluid levels and small bowel loops cannot be detected from a clinical exam, he believed that if repeat X-rays had been done, they would have shown improvements in both these areas because the patient was improving clinically. In addition, by July 21, Roth, as a GI specialist, was in charge of the patient's abdominal care.

In Bell's opinion, it was within Jo's clinical judgment to advance the patient's diet to clear liquids on July 20. The record showed the patient was able to tolerate this diet and he had no further vomiting. Bell did not believe it was necessary for Jo to insert an NG tube into the patient at this time because there were risks associated with such a tube, such as discomfort and gastric perforations. In addition, a tube can sometimes trap the vomit and fail to prevent aspiration. According to Bell, the proper treatment for a partial small bowel obstruction is to hydrate the patient and let the bowel rest. If the bowel improves, the diet can be advanced. Clinicians often advance a patient's diet without taking X-rays first, especially to a clear liquid diet, which is very easy on the GI tract.

Bell believed that Steinman was bleeding in his stomach and that it was the combination of blood and acid that filled up his stomach and contributed to the amount he vomited. In Bell's opinion, the cause of Steinman's acute bleed was probably an ulcer, either gastric or duodenal, though he admitted that the patient's medical records contained no indication of such. An abdominal X-ray would not have detected such bleeding. In general, Bell did not believe that aspiration was a risk of vomiting because many patients vomit without aspirating. Although COPD patients are not at any higher risk of aspirating, the problems for them are worse once they do aspirate.

Dr. Charles S. Goldberg, a board-certified gastroenterologist and internist, testified on behalf of Roth. In Goldberg's opinion, Roth delivered care to Steinman that was well within the standard of care of the medical community. In particular, he noted that with a partial obstruction, a conservative approach is called for, such as observing the patient and advancing the diet. Based on Steinman's blood work, X-rays, and physical examination, such a conservative approach was warranted here.

According to Goldberg, Steinman's chart showed that his last vomiting episode occurred at 8:00 a.m. on July 19, that he was passing gas on both July 19 and July 20, and that he felt better after he started taking clear liquids. The amount and frequency of the Compazine given to Steinman would not have masked the vomiting, and the enema given to him would not have eliminated his obstruction. If his obstruction had been getting worse, he would have felt worse after the enema. In addition, the lack of any complaint of abdominal pain by the patient led Goldberg to conclude that he likely had a resolving ileus or resolving bowel obstruction.

Goldberg also found it appropriate for Roth to have advanced the diet to soft solid foods on July 21. Additional X-rays would not have provided the doctor with any pertinent information in this regard. Moreover, the fact that Steinman was able to eat breakfast that morning showed that he did not have a complete bowel obstruction, and Goldberg did not believe it was likely that the breakfast had anything to do with his partial obstruction.

However, Goldberg admitted that if an X-ray had been taken on July 21 that showed the same abnormalities as the X-ray taken on July 18, then the patient's diet should not have been advanced. That is, if the patient's bowel obstruction had stayed the same or was getting worse, then it would have been improper to feed the patient with soft solid foods.

Goldberg also opined that there was no need for Roth to insert an NG tube, a procedure which offered no possible gain and risked everything because the patient was improving. The risks associated with the procedure were significant, including pain, heart stimulation, arrhythmia of the heart, choking, spasms, and cardiac and respiratory events.

Goldberg disagreed with Befeler's theory of "silent aspirations," because the classic symptoms, difficulty chewing or swallowing, choking, and appearing groggy or sedated, were not present. Thus, Goldberg did not believe that Steinman's respiratory distress was related to any silent aspirations. Rather, he believed there were other possible causes for his distress, such as lack of oxygen in the blood or lack of oxygen delivery to the bowel muscle, and that it was some acute event that occurred that caused the respiratory arrest. Goldberg also disagreed with Befeler's opinion that Roth had an obligation to review the X-ray films himself; rather, he felt it sufficient if Roth had merely looked at the radiologic report.

Dr. Thomas H. Gouge, a board-certified surgeon with a concentration in GI diseases, also testified for Roth. He opined that Steinman suffered an acute cardiac event on the morning of July 21 and that, after that event, he had an episode of vomiting and went on to have another cardiac arrest from which he could not be resuscitated. All of the facts spoke to an episode of cardiac and respiratory decompensation followed by vomiting, not vomiting or aspiration causing the cardiac or respiratory problems. Vomiting following a cardiac event is quite common. Moreover, Steinman's asystolic cardiac arrest was inconsistent with multiple aspirations or with respiratory problems; rather, it was consistent with a heart slowing down and then stopping. According to Gouge, the patient's EKGs from both January 1999 and July 1999 showed abnormalities consistent with heart disease.

However, Gouge admitted that he had no direct evidence of any cardiac condition sustained by Steinman on the morning of July 21, before he vomited. His opinion was based on the patient's cardiac rhythms, which went from very rapid to very slow, and then to no heartbeat at all. Gouge also admitted that the cardiologist who attended to the patient that afternoon did not note any such condition, nor was there any mention of such a condition in the patient's final discharge summary.

Gouge did not believe that the patient's breakfast that morning had anything to do with either his aspiration or his cardiac event. The food he ate for breakfast could not have caused a progressive bowel obstruction because it would not have been sufficient either in volume or in its timing. However, Gouge admitted that an empty stomach contains less than 150 cc's of gastric contents and that someone in Steinman's condition might have been expected to have about 400-500 cc's. Although he recognized that Steinman vomited a much larger quantity than that, he believed that the patient had only about 1500 cc's of gastric materials in his stomach before he vomited the first time. While this was a substantial amount, it was far less than the number recorded--incorrectly, Gouge believed--by the code team.

Gouge also did not believe that Steinman had any sort of mechanical obstruction of his stomach because a partial blockage would not have caused a build-up of fluid to the extent experienced by this patient. Rather, Gouge believed that some sort of "peptic process" caused the outlet of Steinman's stomach to be inflamed, and that gradually the amount of volume in his stomach built up. That is, with gastritis (inflammation of the stomach lining) can come bleeding. When bleeding occurs, it combines with the acid in the stomach to turn the blood to "coffee grounds" color. Hence, the presence of this material in Steinman's vomit indicated to Gouge that the patient had experienced a small amount of bleeding in his stomach over a period of time.

Gouge also did not believe the patient had any episodes of silent aspiration or that silent aspiration had anything to do with his arrest. Evidence would have shown up on a chest X-ray; moreover, in a conscious patient, a silent aspiration is not really silent, but would be accompanied by symptoms of coughing, hoarseness, or difficulty swallowing or eating.

According to Gouge, Roth did not deviate from the standard of care by failing to order an abdominal X-ray on the morning of July 21, because the patient was continuing to feel better that morning. In particular, Roth found that he had decreased abdominal distention, a soft abdomen, and the presence of bowel sounds, and that he was passing gas and had a bowel movement. Similarly, there was no deviation in advancing the diet without ordering another X-ray, because the patient was improving, had no symptoms indicating he was getting worse, and had already tolerated clear liquids. If Steinman's partial obstruction had progressed to a complete obstruction, it would have been accompanied by cramping, abdominal pain, green or brown vomiting, the absence of the passing of gas, high-pitched bowel sounds, and abdominal tenderness.

III

Plaintiff contends that the court erred in giving the jury a medical judgment charge with respect to advancing Steinman's diet because this was not a case where the doctors made a choice between two medically acceptable treatment options. We disagree.

The charge instructs the jury that the defendant's actions "may constitute an exercise of medical judgment that would excuse that defendant from liability for a poor result." Das v. Thani, 171 N.J. 518, 527 (2002) (citing Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 632 (1999)). "To constitute a medical judgment, a medical decision must involve 'misdiagnosis or the selection of one of two or more generally accepted courses of treatment.'" Das, supra, 171 N.J. at 527 (quoting Velazquez v. Portadin, 163 N.J. 677, 687 (2000); Aiello, supra, 159 N.J. at 628-29).

The testimony and theories of the case must be carefully analyzed to determine whether the charge applies and, if so, to what issues. Das, supra, 171 N.J. at 528; Velazquez, supra, 163 N.J. at 690. "If . . . the physician's professional conduct implicates only the exercise of reasonable care in the performance of a medical procedure and not the exercise of medical judgment in selecting among acceptable and medically reasonable courses of treatment, the medical judgment rule should not be invoked." Aiello, supra, 159 N.J. at 632. The danger of giving the charge when it does not apply is that, in a case that involves only the exercise of reasonable care, "the aspect of the rule that excuses a physician for 'mistakes' would enable the physician to avoid responsibility for ordinary negligence." Das, supra, 171 N.J. at 528 (quoting Aiello, supra, 159 N.J. at 632). The charge is ordinarily appropriate only when the doctor "selects one of two courses, 'either one of which has substantial support as proper practice by the medical profession.'" Patton v. Amblo, 314 N.J. Super. 1, 8 (App. Div. 1998) (quoting Schueler v. Strelinger, 43 N.J. 330, 346 (1964)).

Following Model Jury Charge (Civil), 5.36G, Medical Judgment, (revised March 2002), over plaintiff's objection, the judge charged the jury as follows:

In this case defendants contend that the standard of care permitted them to exercise their judgement [sic] with respect to advancing the diet. A doctor may have to exercise judgement [sic] when treating a patient. However, alternative treatment choices, such as keeping the patient NPO or advancing him to liquids or soft foods, must be in accordance with accepted medical practice.

Therefore, your focus should be on whether standard medical practice allowed judgement [sic] to be exercised as to advancing the diet. And if so, whether what the doctor actually did to treat this patient was accepted as standard medical practice.

If you decide that the standard of care for treatment with respect to gastritis, gastroenteritis and possible ileus or partial small bowel obstruction did not allow for the choice or judgement [sic] the defendant doctors made here, to whit [sic], advancing the diet without follow-up abdominal x-rays, then the doctors would be negligent.

The court determined that the charge was appropriate because defendants presented evidence that there were two alternative choices that could have been made here, both of which met the standard of care. One was to X-ray the patient and then advance the diet; the other was to advance the diet based on the patient's clinical progression. The court noted that Gouge, one of Roth's experts, had acknowledged that there were some doctors who believed that the standard of care required daily follow-up X-rays. Also, Bell, Jo's expert, said there were two courses that were both appropriate within the standard of care.

We agree. Goldberg testified that a "more conservative approach" may be taken with a partial obstruction, and that this approach entails observing the patient and slowly advancing the diet. Bell specifically testified that doing follow-up X-rays would have been within the standard of care but was not "necessary." Gouge similarly testified that waiting to advance the diet until test results were received would have been within the standard of care and that some doctors believe that repeat abdominal X-rays are mandatory.

Plaintiff's essential argument on appeal is that none of the defense experts specifically testified that the treatment of the patient involved an issue of "medical judgment." However, that precise phrase did not have to be used in order for the experts to convey their opinions that what was at issue here was a matter of choice between two equally appropriate medical decisions. This case was not like Aiello, supra, 159 N.J. at 620, where the alleged error arose out of the performance of a medical procedure, or Adams v. Cooper Hosp., 295 N.J. Super. 5, 9-10 (App. Div. 1996), certif. denied, 148 N.J. 463 (1997), where the alleged error was the failure of a nurse to constantly monitor a trauma patient. Here, no one disputed that defendants monitored the patient; the only question was whether they could rely on their clinical impressions and judgments in advancing his diet or whether they had to rely on radiologic evidence. The judge carefully limited the medical judgment charge to the issue of advancing the diet.

IV

We next address plaintiff's contention that the court erred in limiting her cause of action to the failure of defendants to order follow-up X-rays, to conduct a proper physical examination of the patient on July 21, and to insert an NG tube on July 21 (Roth only). According to plaintiff, her experts testified to multiple additional breaches of the standard of care committed by both defendants. We disagree.

As a general rule, a medical malpractice plaintiff must establish through expert testimony the relevant standard of care, the breach of that standard, and a causal connection between the breach and the plaintiff's injuries. Lanzet v. Greenberg, 126 N.J. 168, 193 (1991) (Pollock, J., dissenting); Rosenberg v. Tavorath, 352 N.J. Super. 385, 399 (App. Div. 2002). The jury here was asked only to determine whether Jo was negligent in failing to: (1) order follow-up abdominal X-rays on July 19, July 20, and July 21; or (2) perform an abdominal examination on July 21. They were asked to determine whether Roth was negligent in failing to: (1) order follow-up abdominal X-rays on July 21; (2) conduct a proper physical exam on July 21; or (3) insert an NG tube on July 21.

Plaintiff contends the evidence supported the following additional breaches of the standard of care: that Roth failed to personally review the patient's abdominal X-ray films; that both defendants failed to look at the patient's blood test results before advancing the patient's diet; that Jo failed to review the X-ray films himself or consult with a radiologist; that Jo failed to evaluate the progression of the ileus or bowel obstruction; and that both defendants failed to order an NG tube on the morning of July 21.

Prior to the first (aborted) trial in this case, Jo sought to restrict plaintiff's cause of action to the specific breaches identified by her expert, Befeler, in his expert report or deposition testimony. After reviewing that report and the deposition transcripts, the court ruled that plaintiff's attorney would be limited in his opening statement to inadequate care rendered by Jo on July 21. If plaintiff intended to elicit testimony with respect to alleged malpractice committed on July 19 or July 20, the court would rule at the time such evidence was about to be introduced. The first trial was aborted after plaintiff's counsel, in his opening statement, violated the court's ruling.

Prior to the second trial, Befeler testified at an N.J.R.E. 104 hearing and clarified that in his opinion Jo should have ordered daily follow-up abdominal X-rays and Roth should have inserted an NG tube prior to July 21. At trial, Befeler testified that Jo breached the standard of care by failing to order abdominal X-rays on July 19, 20, and 21 and by failing to have such X-ray results before advancing the diet. He opined that Roth breached the standard of care by failing to personally review the abdominal X-rays taken on July 18, by failing to order follow-up X-rays before advancing the diet to solid food, and by failing to insert an NG tube.

At the charge conference, the judge determined that Befeler never testified that it was a breach of the standard of care for Jo to have failed to consult with a radiologist when he received the abdominal X-ray report. According to the judge, this contention was never at issue in the case and plaintiff's attorney had withdrawn the question when examining Befeler; therefore, the issue would not be charged to the jury. Our review of the trial record reveals that the judge was correct.

When plaintiff's attorney, on direct examination, asked Befeler whether the standard of care required Jo to personally read the X-ray films, he answered:

It requires him to at least look at the X ray films. We know that he's presumably expert in looking at chest X rays because he does pulmonology. He may not be that expert in reviewing abdominal films, in which case he has to rely on the radiologist to assist him in the reading of it and the significance of it. If there's any problem beyond that then he has to call a consultant right away.

When plaintiff's attorney then asked whether failure to read the films or to get a proper consultation with a radiologist would constitute a breach of the standard of care, defense counsel objected on the ground that this allegation had never been addressed in the expert's report or in his deposition testimony. Plaintiff's attorney ultimately agreed to withdraw the question and move on to a different area.

Plaintiff also argued, at the charge conference, that there was a claim against Roth for his alleged failure to personally read the abdominal X-rays. However, the judge agreed with Roth that any failure in this regard was not a proximate cause of the harm that came to the patient because plaintiff's own expert conceded that Roth had the right diagnosis based on those X-rays. That is, there was no dispute as to the interpretation of the films, so it made no difference whether Roth read them or whether he instead relied on the radiologist's report.

We agree. Neither of plaintiff's experts challenged Roth's diagnosis that the patient's initial condition was either an ileus or a partial small bowel obstruction. Befeler's opinion did not distinguish between the two conditions. He opined that Roth negligently advanced Steinman's diet and failed to recognize the risk that he would aspirate vomit into his lungs regardless of which condition affected Steinman.

At the charge conference, plaintiff's attorney also insisted that the allegations against Jo were more than just the mere failure to order follow-up X-rays; rather, the allegations included a failure to monitor the patient in general. However, the judge noted that she had conducted an N.J.R.E. 104 hearing for the express purpose of identifying the allegations against Jo and that the general failure to monitor the patient had never been mentioned. But plaintiff's counsel argued that the trial testimony showed both defendants failed to monitor and treat the patient, and their negligence was not limited to their failure to do follow-up abdominal X-rays.

As an example, counsel cited defendants' failure to compare the patient's original (i.e., July 18) blood test results with the results obtained on July 20 or July 21. In the judge's view, this issue, though possibly relevant to the credibility of plaintiff's assertion that her father's condition was not improving while he was under defendants' care, was irrelevant to the question of defendants' malpractice. Later, during the discussion of the medical judgment charge, Roth's attorney pointed out that plaintiff's expert had never testified that it was a deviation for Roth to have advanced the patient's diet before knowing the results of his July 21 blood tests, and the court correctly agreed.

While there was much testimony at trial regarding whether or not Steinman's condition was improving, what his blood test results showed, and what his cause of death was, plaintiff's experts ultimately opined that the only negligent act committed by defendants that increased the risk of harm was their failure to do repeat abdominal X-rays before advancing his diet (and, in Roth's case, to insert an NG tube to prevent the patient's aspiration). Any other testimony regarding what defendants did or did not do was not expressed in terms of reasonable medical probability or increased risk of harm, and was essentially background testimony to help the jury understand plaintiff's version of how and why the patient died. The patient's untimely death, by itself, was not proof of any negligence on defendants' part. Rather, only with the aid of expert testimony, expressed in terms of reasonable medical probability and proximate causation, could the jury consider the additional claims alleged against defendants by plaintiff.

V

Relying on McKenney v. Jersey City Med. Ctr., 167 N.J. 359 (2001), plaintiff contends that Roth's trial testimony, that he personally viewed the patient's abdominal X-rays, differed from his deposition testimony and that this change, without prior notice to plaintiff, required the testimony to be stricken and failure to do so was reversible error. We reject this contention.

In McKenney, the Court held that where an attorney knows that a client or material witness intends to deviate from his or her deposition testimony in a crucial way, the attorney has an ethical obligation to convey that fact to his or her adversary. Id. at 370. An attorney's failure to apprise his or her adversary that the witness's "prior deposition was incorrect in a material respect when made, or . . . that the deposition, though correct when made, is no longer true in a material respect[,] . . . may result in sanctions, such as preclusion or the declaration of a mistrial." Id. at 371.

Roth testified that he had no specific recollection of seeing, on July 20 (the day of his initial consultation), the patient's abdominal X-rays. On that date, however, he did review the X-ray report, which stated that there was an abnormal small bowel pattern, consistent with partial or early mechanical obstruction. The word "ileus" did not appear in the report. According to Roth, after he went down to the X-ray department and looked at the X-rays himself, he wrote "ileus versus small bowel obstruction" on the patient's chart under X-ray studies.

Plaintiff objected and asked that the testimony be stricken, contending that, at his deposition, Roth had testified that he saw only the radiologist's report, not the films. Plaintiff specifically did not ask for a mistrial, because the case was too expensive and too complicated to retry. Roth pointed out, however, that he gave inconsistent answers on this issue at his deposition. At one point, when asked, he said he was not sure whether he saw the films. Then, at trial, he was explaining why he thought he did see them.

After carefully reviewing Roth's deposition testimony, the judge agreed with plaintiff that Roth's trial testimony was "180 degrees" from the portion of his deposition testimony where he said he "only looked at the radiologist report the day of the consult." However, Roth initially said at his deposition that he did not "recall" whether he went to radiology and looked at the X-ray films at that time. Thus, the judge noted there were three versions that Roth gave: "I can't remember, I didn't go, I did go." As the judge saw it, the question was whether the change in Roth's testimony was prejudicial "or whether it's something that can be adequately addressed by impeaching the heck out of him." Distinguishing the severe prejudice in McKenney, she was satisfied that "in the context of the way this case has gone in and the theory of liability that this is not the same kind of prejudice."

This evidence doesn't deprive the jury of, nonetheless, concluding that in fact he did not look at the X-rays on the 20th. It doesn't deprive them of concluding that he didn't look at the X-rays before Mr. Steinman's death, because it's going to be very clearly highlighted here, the inconsistent deposition testimony, it doesn't go to an issue of proximate cause because there isn't an issue here as to whether the differential diagnoses are right or wrong. . . . [T]here's no dispute that the X-rays show either ileus or small bowel.

The judge therefore denied plaintiff's motion to strike the testimony and to give a limiting instruction to the jury. Counsel for plaintiff was free, however, to impeach Roth's "newfound recollection."

We find no error in the judge's handling of this issue. Unlike the situation in McKenney, the offending testimony here was not all that significant. Whether Roth saw the X-rays himself or only read the radiologist's report was a question that went to his ultimate credibility as a witness, something the jurors were particularly qualified to assess. Any alleged discrepancy between what was contained in the X-rays themselves and what the radiologist had concluded in his report was not relevant to any issue of malpractice or proximate causation.

Hence, whether Roth did or did not read the X-rays did not have any impact on the jury's assessment of how he treated the patient. Even if Roth breached a standard of care by failing to read the films, such negligence was not a proximate cause of the patient's death because everyone agreed the X-rays showed either a partial small bowel obstruction or ileus. This was not a case where Roth was alleged to have misdiagnosed the patient.

VI

Plaintiff contends the judge erred in allowing the jury to consider the lack of an autopsy on the issue of her credibility for purposes of the emotional distress claim. The emotional distress claim was submitted to the jury. Finding no malpractice, the jury never reached the issue, and the judge ultimately dismissed the claim as a matter of law after the jury returned its verdict. Plaintiff argues it was reversible error to allow Roth's attorney in his summation to use the lack of an autopsy beyond the limited purposes allowed by the court in its earlier rulings in the trial. We agree there was error in this ruling, and we must analyze whether the error entitles plaintiff to a new trial.

Roth's attorney mentioned in his opening the lack of an autopsy. Plaintiff's objection was sustained and the jury was instructed to disregard the comment and later instructed that no one had any obligation to conduct or consent to an autopsy. Over plaintiff's objection, Roth's attorney was permitted to ask Befeler, plaintiff's expert, whether the only way to tell if the patient initially suffered a cardiac arrest or a respiratory arrest was to do an autopsy. Befeler answered affirmatively. Later in the trial, the judge again instructed the jury that plaintiff did not have a legal duty to either request or consent to an autopsy and that defendants had no duty to perform one. Moreover, plaintiff did not have the burden to prove what an autopsy would have shown. Goldberg, Roth's expert, began to explain why, without an autopsy, he could not say for certain what happened to the patient on the morning he died. Plaintiff objected and the judge instructed the jury that they could consider the lack of an autopsy on this limited issue (that is, the expert's inability to express a more certain opinion), but again reiterated there was no duty on the part of either plaintiff or defendants to obtain, conduct, or consent to an autopsy.

A similar issue arose when Abraham, the doctor who signed the death certificate, testified. The judge allowed him to explain that the absence of an autopsy affected his opinion on the cause of death, but did not allow him to testify that plaintiff declined an autopsy. Abraham testified that an autopsy would have led him to a more definite cause of death.

During the charge conference, Roth argued that the lack of an autopsy was also relevant to another issue in the case, i.e., whether plaintiff believed, when her father died and she declined an autopsy, that there had been malpractice. According to Roth, this was relevant to plaintiff's emotional distress claim and her credibility when she stated that she witnessed the malpractice committed upon her father. The judge agreed. Accordingly, during Roth's closing argument, his attorney commented that an autopsy would have provided better information regarding the patient's cause of death, and asked the rhetorical question why plaintiff, if she really believed that medical malpractice had occurred at the time of the events leading to her father's death, did not allow an autopsy. Later in his summation, counsel returned to the issue of the cause of death and argued:

Now when you get through the evidence on proximate cause you really get back to, again and again, the whole issue of the fact that there really wasn't an autopsy report in terms of the cause of death. And in terms of that you have to think about the evidence that was put before you regarding Dr. Abraham and the certificate of death. The certificate of death is dated a certain day. You will have Dr. Abraham's record in the progress notes on the day that Mr. Steinman died, where the last record -- last notation is before he signed it, "Autopsy was offered. Family declined."

So you have to know, based upon what he's told us, of what might have transpired, that he wasn't really sure of what was going on. And that's why obviously when Mr. -- told [Jo's attorney] an autopsy would provide him with additional information, he offered an autopsy to the family. And you have to take that into consideration because all the Defense experts told you without an autopsy all he can tell you, particularly Dr. Goldberg -- I can only tell you about possibilities and what I think is more likely. But without that autopsy I can't give you a more definitive answer within probability.

The judge charged the jury as follows with respect to the lack of an autopsy:

You may recall that I instructed you during the course of the trial that plaintiff, Barbara Goodman, had no duty to consent to an autopsy, nor did the doctors have a duty to request or perform one. Also, I instructed you that plaintiffs did not have a burden to prove what an autopsy would have shown.

When testimony was offered respecting an autopsy I instructed you that the evidence could be considered only for limited purposes. You have heard that more information about the cause of Harold Steinman's death would have been available had an autopsy been done. You may consider that evidence in deciding whether the expert opinion evidence offered by plaintiffs' experts and by Dr. Bell on the probable cause of Harold Steinman's death is credible and trustworthy.

Similarly, you may consider that evidence in deciding the credibility and trustworthiness of the testimony of defendants' other experts to the effect that they could not opine as to which of several potential causes of death was the most likely, most probable.

Finally, you may consider the evidence that plaintiff, Barbara Goodman, was given the opportunity to have an autopsy performed in deciding the credibility and trustworthiness of her testimony, that she believed Drs. Jo and Roth were negligent at the time her father began to have respiratory distress late in the morning of July 21st 1999.

[Emphasis added.]

On appeal, plaintiff argues that the judge erred in expanding upon her original ruling with respect to the limited relevancy of the lack of an autopsy and in permitting Roth's attorney's "pernicious closing arguments," in which he referred to the lack of an autopsy six times and told the jury they should consider it on the issues of both negligence and proximate cause.

We agree with the original ruling that the absence of an autopsy was relevant to the issue of the experts' inability to express with greater certainty their opinions as to the cause of death. At this point, the jury did not know whether plaintiff had been offered an autopsy and declined one, or whether defendants had failed to perform one, and they were told that neither party had any obligation in this regard.

However, we agree with plaintiff that the judge erred in allowing Roth's attorney to also argue that plaintiff's decision to decline an autopsy that was offered to her was relevant to her credibility with respect to her emotional distress claim. In order to prevail on such a claim, a plaintiff must be able to show that she witnessed the malpractice and immediately connected or associated it with the injury suffered by her loved one. Gendek v. Poblete, 139 N.J. 291, 300 (1995). We are not convinced that a family member's decision to forego an autopsy is relevant to this issue.

To be relevant, evidence must have a "tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The probative value of evidence is its tendency "to establish the proposition that it is offered to prove." Mani v. Mani, 183 N.J. 70, 90 (2005); State v. Wilson, 135 N.J. 4, 13 (1994). There may be many reasons prompting a family member to decline an autopsy even when she has witnessed an act of malpractice and associates it with the decedent's injury. Plaintiff argues, for example, that her religious beliefs do not permit an autopsy, and had she known the judge was going to permit this argument she would have testified accordingly.

In our view, the refusal of an autopsy does not tend to establish the proposition that the family member did not witness such an act or did not associate it with the injury. The error, however, was harmless. Plaintiff could not prevail on her emotional distress claim. First, she ultimately failed to prove that any malpractice occurred. Second, the evidence did not show that she witnessed any act of malpractice that she associated with her father's injury. Hence, neither counsel's summation nor the court's charge could have led the jury to a result it would not have otherwise reached on the emotional distress claim. R. 2:10-2.

We reject plaintiff's contention that defense counsel's closing argument improperly affected the jury's verdict with respect to the underlying malpractice claim. Once the defense experts were allowed to testify that the absence of an autopsy hampered their ability to identify the precise cause of death, rulings that plaintiff does not challenge on appeal, it was appropriate for counsel to comment on this testimony. In any event, this evidence went primarily to the issue of proximate cause, an issue the jury never reached because it found neither defendant negligent.

VII

Finally, we address plaintiff's argument that the court erred in allowing Bell, Jo's expert, to offer testimony that the patient had sustained gastric bleeding. According to plaintiff, similar testimony had previously been barred when offered by another defense expert, Bell offered no factual basis for his testimony, and plaintiff did not open the door to this testimony. We disagree.

The issue of gastric bleeding first arose during Roth's attorney's direct examination of Goldberg. The expert was asked what could have potentially caused the sudden change of events on the morning of July 21. When he included gastric bleeding as one such cause, plaintiff objected on the ground that the witness had never said anything about gastric bleeding in his expert report or at his deposition. Plaintiff agreed that the witness could testify about peptic ulcers, but not general gastric bleeding. The court instructed the jury to disregard the testimony with regard to gastric bleeding.

Then, during Roth's attorney's cross-examination of Bell, the expert was questioned regarding the makeup of the coffee-ground material in the patient's stomach. Plaintiff objected on the ground that Roth was attempting to delve into a "sudden bleed" issue, which had not been included in the expert's report. Counsel for Roth responded that this issue was "all over [Bell's] deposition," where the expert explained that the coffee-ground fluid with a distended belly would be a bleed. Plaintiff claimed that the witness could not testify that this is what happened within a reasonable degree of medical probability and that such an opinion had not been elicited from the witness on Jo's direct examination of him.

Roth's attorney assured the court he was going to ask the witness only what the coffee-ground material was made up of and he would not ask any questions regarding a sudden bleed in the stomach. The court believed that the question regarding the coffee-ground material went to the direct testimony because it explained how the patient could have vomited such a large amount when there was apparently no evidence of distention. However, the court did not want the witness to blurt out that "a sudden bleed from an ulcer could result in a massive amount into the belly quickly." In accordance with the court's ruling, Roth's attorney questioned Bell regarding the makeup of the material in the patient's stomach, i.e., a mixture of blood and acid, but did not question him regarding a sudden bleed.

Plaintiff's attorney's cross-examination of Bell included the following:

[Plaintiff's counsel]: And, in this case, how much fluid did you understand came out of Harold's stomach that day?

[Bell]: One thousand, one hundred fifty cc's.

[Plaintiff's counsel]: Anything more?

[Bell]: After the code and all that, there was more vomiting.

[Plaintiff's counsel]: Well, how much was in his stomach before the -- how much was in his stomach before the first episode of vomiting?

[Bell]: I think what they list was 125 cc's, and then -- and then 1,000 cc's.

[Plaintiff's counsel]: Okay. So are you saying -- are you telling the jury that that which -- that which continued to come out during the code that was not in his stomach before he vomited the first time?

[Bell]: Well, I think he was bleeding, and blood and acid will -- you know, as long as you're bleeding, you're going to just keep filling up the stomach with blood and acid.

[Plaintiff's counsel]: But my question -- my question to you is this, your assumption in this case was about 1,100 cc's before he vomited, correct?

[Bell]: Well, it's what the nurses put in their notes.

[Plaintiff's counsel]: Okay.

[Bell]: Which was --

[Plaintiff's counsel]: Do you consider that to be a very full stomach?

. . . .

[Bell]: Yes.

[Emphasis added.]

In anticipation of his re-cross examination of Bell, Roth's attorney argued that, in light of plaintiff's having broached the subject, he should be allowed to ask the witness whether he believed there was a bleeding episode that caused the contents of the patient's stomach to fill with fluid. The court agreed that counsel for plaintiff had opened the door when he asked the witness about the volume in Steinman's stomach.

Plaintiff's attorney responded that he had limited his questioning to volume and the risk of vomiting and that he had deliberately steered clear of the bleeding issue because he knew the witness could not link it up with medical probability. Roth's attorney argued:

Judge, Dr. Bell in his deposition -- obviously, [plaintiff's attorney] knew about it because it's in his deposition, he asked him, "What is the source of the blood and acid that vomited out by Mr. Steinman? It is either gastric or duodenal or esophageal ulcer." Then Dr. Bell goes on on the next three pages to describe a bleeding phenomena that would occur with this ulcer perforating over a blood vessel and then causing a sudden change in a patient's condition.

He has essentially told this jury -- he said, so what you're telling this jury is is that -- the lines that we're just reading was that essentially that this stomach wasn't full with any fluid beforehand, and implying to the jury that somehow that Dr. Bell has, you know, in terms of his opinions in this case, he's off base completely, and he must be because there had to be distention and this fluid here before. When obviously he has another opinion that this was a bleed from an ulcer going on at that point in time and was continuing.

I think the door was open with that question. [Plaintiff's attorney] knew it. He looked over to me right away. The doctor gave his answer, and I should be permitted now to ask that question, particularly when he has given that answer in his deposition. There's no surprise to [plaintiff's attorney].

The court ruled that plaintiff's attorney had opened the door to this line of questioning and allowed Roth's attorney to pursue it on his own re-cross. The court noted that the issue did not go to the cause of death in any event, but only to the cause of the stomach distention, and that the stomach contents had been in this case from the start.

On Roth's re-cross, the following line of questioning was pursued:

[Roth's counsel]: Do you recall being asked questions about the stomach contents and the fluids that were coming up after Mr. Steinman's arrest?

[Bell]: Yes.

. . . .

[Roth's counsel]: Okay. And you -- did you mention that you believed that that -- those materials were not present earlier, but it was due to bleeding?

[Bell]: An acute bleed, yes.

[Roth's counsel]: Okay. And why do you believe that those fluids, mixed coffee-ground material, were due to an acute bleed?

[Bell]: Coffee ground is acid and blood cells. If you get a major bleed into the stomach, the stomach fills up, and you throw up.

When Roth's attorney began to ask the witness what he meant by an acute bleed, plaintiff objected, noting that a third cause of death, i.e., an acute bleed, had now been interjected into the case. The court disagreed and allowed the witness to explain that "acute" meant within one hour. The court also overruled plaintiff's objection when Bell was asked about the cause of the acute bleed, ruling that the witness was not opining as to a cause of death, but was merely giving an explanation for the contents of the stomach that were vomited. "[I]t goes to the issue of whether [plaintiff's] description of his condition was truthful and accurate at the time that she gave it, or whether there is some other explanation for having 4,156 cc's of fluid in your stomach." The court did not agree with plaintiff that the jury could use this testimony to conclude that an acute bleed is what killed Steinman. Rather, "[a]ll they have to do is conclude that there was a sudden and acute bleed, and, therefore, the doctors were not negligent in failing to know anything but [sic about?] the volume of the stomach." Bell was then allowed to express his opinion that the cause of the acute bleed was either a gastric or duodenal ulcer and that this would explain why, on the morning of July 21, there was minimal or no abdominal distention even though such distention was noted later. Bell admitted there was no indication anywhere in the patient's hospital chart that he had an ulcer.

In his closing argument, Roth mentioned Bell's testimony that these coffee-ground fluids were probably due to gastric bleeding from a peptic ulcer that started within one hour of the patient's code. He further argued that "an improving picture and an acute and sudden event cut completely against plaintiffs' arguments," and that there was no way to distinguish a cardiac arrest from a respiratory event.

We agree that plaintiff's attorney opened the door to this line of questioning in his cross-examination of Bell. Although Goldberg's testimony on this subject was stricken, ostensibly because it had not been covered in his expert report or deposition testimony, plaintiff's attorney broached the subject with Bell. As such, Roth's attorney was then allowed to pursue the issue.

The basic purpose of redirect examination is to respond to new material elicited during cross-examination of the witness. Brambley v. McGrath, 347 N.J. Super. 1, 8 (App. Div. 2002). Its proper function is to explain, rebut, or avoid the effect of new matter brought out on cross-examination. Clawans v. O'Connor, 105 N.J.L. 117, 119 (E. & A. 1928). Thus, redirect testimony may be allowed to "correct an otherwise inaccurate impression which may have been given to the jury." Brambley, supra, 347 N.J. Super. at 8.

More problematic, however, is the fact that the witness in this case was an expert who was rendering an opinion. It is possible that Bell's opinion on this subject was not covered either in his expert report or in prior deposition testimony. Although plaintiff does not allege this as a separate basis for excluding this testimony, she does argue that the jury was improperly allowed to hear an opinion as to a third cause of death, one that was never previously expressed by any expert.

It is recognized that an expert's testimony may be limited to the matters contained in his or her report. McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987). However, "the logical predicates for and conclusions from statements made in the report are not foreclosed." Ibid. Evidential support for an expert's opinion may include what the witness learned from personal experience. Rosenberg, supra, 352 N.J. Super. at 403. The weight to which such an opinion is entitled can rise no higher than the facts on which it is based. Ibid.

Plaintiff has not included either Bell's expert report or deposition testimony in the appellate record, and has therefore failed to refute defendant's contention that the subject was covered in Bell's deposition. And we agree with the trial court that the testimony regarding an acute gastric bleed, precipitated by an ulcer, was never presented as a third explanation for decedent's demise; rather, it was used to explain how the patient could have vomited so large a volume of material when both defendants claimed his stomach was not distended earlier that morning. The entire theory of plaintiff's case was premised on the argument that defendants failed to see the distention or the patient's deteriorating condition. Bell's testimony properly addressed that contention.

Affirmed.

 

The complaint also named Dr. Issam Mallouhi as a defendant, but the complaint was voluntarily dismissed as to him.

Because Bell was Jo's witness, Roth's further examination of him was technically re-cross examination, but it was more akin to redirect examination in light of the parties' interests.

(continued)

(continued)

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A-6330-03T1

March 1, 2006