BRENDA J. NELSON v. JERSEY CITY MEDICAL CENTER, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6525-03T56525-03T5

BRENDA J. NELSON,

Plaintiff-Appellant,

v.

JERSEY CITY MEDICAL CENTER;

JUANA HUTCHINSON-COLAS, M.D.;

EMMA HOWELL, C.R.N.A.;

VALENTIN VILLALUZ, C.R.N.A.;

ION PANCU, M.D.,

Defendants-Respondents,

and

ENIOLA FAGBONGBE, M.D.;

DAMALI M. CAMPBELL, M.D.;

ALFREDO WONG, M.D. and

MICHAEL CAHN, M.D.,

Defendants.

_______________________________

 

Submitted March 28, 2006 - Decided April 18, 2006

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

On appeal from the Superior Court of New Jersey, Law Division, Hudson County,

L-1381-02.

Francis X. Dorrity, attorney for appellant.

Stephen H. Schechner, attorney for respondent Ion Pancu, M.D. (Mr. Schechner and Ronald L. Langman, on the brief).

Lindabury, McCormick & Estabrook, attorneys for respondents Jersey City Medical Center and Juana Hutchinson-Colas, M.D. (Catherine J. Flynn and Monica Vir, on the brief).

Reiseman, Rosenberg & Pfund, attorneys for respondents Emma Howell, C.R.N.A. and Valentin Villaluz, C.R.N.A. (Sam Rosenberg, of counsel and Jayne E. Turner, on the brief).

PER CURIAM

Plaintiff, Brenda J. Nelson, appeals from a jury verdict of no cause for action in her medical malpractice case, and from orders of the trial court dismissing several of her claims during the trial. We affirm.

I

These are the most pertinent facts. Nelson's gynecologist, Dr. Juana Hutchinson-Colas, scheduled Nelson for a hysterectomy in February 2000, due to a fibroid condition. Dr. Hutchinson-Colas had Nelson sign a form for consent to surgery and consent for anesthesia. Because she was not an anesthesiologist, the doctor only advised Nelson of the risks of the surgery itself. She anticipated that an anesthesiologist would advise Nelson of the risks of anesthesia when Nelson went for pre-admission testing at the Jersey City Medical Center, where the surgery was to be performed. According to plaintiff, that never happened. Instead, when Nelson went to the Hospital for the evaluation on February 17, 2000, she saw a first-year obstetric and gynecology resident named Rita Vinod, who examined her and signed the pre-admission testing and pre-anesthesia evaluation form.

The pre-anesthesia form indicated that plaintiff was to have general anesthesia during the surgery, a procedure that would require placement of an endotracheal tube in her throat so that she could breathe during the operation. Nelson had undergone general anesthesia in 1996 and had recovered with no complications. But, according to Nelson, neither Dr. Hutchinson-Colas nor anyone at the Hospital discussed with her the risks of general anesthesia or intubation prior to the 2000 surgery.

When Nelson went to the Hospital for the surgery, on February 24, 2000, she was examined by Emma Howell, a certified registered nurse anesthetist (CRNA). Howell met with Nelson in the holding area of the operating suite and checked her chart to ascertain that the consent form and pre-anesthesia evaluation were in her chart. She also checked Nelson's temperature and breathing, and checked her mouth, neck, vocal cords and trachea to be sure that general anesthesia was still appropriate.

CRNAs are qualified and authorized to administer general anesthesia under the supervision of an anesthesiologist. N.J.A.C. 8:43G-6.3(e). The supervising anesthesiologist does not have to be in the room during the surgery, but must be in the operating suite and available in case of emergency. N.J.A.C. 8:43G-6.3(g). Dr. Ion Pancu was the anesthesiologist assigned, along with Howell, to plaintiff's surgery. He was not in the operating room when Dr. Hutchinson-Colas was ready to begin Nelson's surgery. At that time he was in a nearby operating room administering anesthesia to a patient who had been brought in with an emergency medical condition. According to Dr. Pancu's undisputed testimony, he did not know that Nelson had been brought from the holding area into the operating room or that her surgery was about to begin.

After Howell paged Dr. Pancu twice with no response, she began administering general anesthesia to Nelson. Complications developed when she and another CRNA, defendant Valentin Villaluz, were unable to intubate Nelson. After the CRNAs tried unsuccessfully three times, using a set of procedures known as the "Difficult Airway Algorithm," they sent someone to find Dr. Pancu. He arrived two to three minutes later and found plaintiff's oral cavity swollen and full of blood and secretions. He also was unable to intubate plaintiff. Because her oxygen levels were becoming dangerously low, to the point of being life-threatening, he called a surgeon, who performed an emergency cricothyrotomy. This procedure, which is faster than a tracheotomy, involves an incision through the larynx rather than the windpipe. Although it saved her life, the procedure also damaged plaintiff's vocal cords and cricothyroid muscle, destroying her ability to sing.

Nelson sued the Hospital, Dr. Hutchinson-Colas, Dr. Pancu and the two CRNAs. Although she claimed that the operation ended her career as a professional singer, she did not seek economic damages.

Elizabeth Koop, a certified registered nurse anesthetist, was called to testify as plaintiff's expert "for the purpose of rendering opinions . . . regarding the care and nurse anesthetist's activities in the procedure that took place on February 24th, 2000." She was not called as an expert with respect to alleged malpractice by Dr. Pancu and admitted she was not qualified to render opinions concerning Dr. Pancu.

Koop testified that the pre-anesthetic evaluation should have been done by an "attending anesthesiologist" or by a nurse anesthetist rather than by Dr. Rita Vinod, the first-year OB/GYN resident who signed the evaluation done on plaintiff.

Koop conceded that "[t]here are certain judgment calls that a nurse anesthetist will make," but she contended that the decision to proceed without Dr. Pancu in the room was a mistake in judgment. She went on to state that if the doctor had been in the room, he might have devised "a different plan for management of the airway."

Koop testified that informed consent for an anesthesia procedure must be obtained by a physician, not a nurse anesthetist. She also admitted that Dr. Pancu was in fact physically available in the immediate area, as required by the Administrative Code, although Nurse Howell may not have known that when she began administering the anesthesia. She admitted that a consent was signed on February 17, and that the specific risks and alternatives of the anesthesia "wouldn't typically appear on a consent form, that would occur in a discussion."

Dr. David Bronheim testified with respect to alleged malpractice by Dr. Pancu and, to some extent, by CRNA Howell. He contended that it was not proper for Dr. Vinod, an OB/GYN, to do the "preoperative evaluation for the purposes of anesthesia." He testified that an anesthesiologist should have done the evaluation on February 17, although not necessarily the same doctor who would administer the anesthesia during surgery. He also testified that Dr. Pancu should have interviewed plaintiff again on February 24 before administering the anesthesia. And he contended that Dr. Pancu should have discussed the anesthesia plan with Howell before the operation began. He agreed that if the Hospital's standard procedure was for the CRNA to wait for the anesthesiologist to arrive before starting anesthesia, then Dr. Pancu was not at fault. He also agreed that if Dr. Pancu did not know that the operation was about to start, he would have had no opportunity to speak with the patient before the surgery.

He testified that there are times when a practitioner must use clinical judgment when deciding the best approach to take in administering anesthesia, and he testified as to the various alternatives a practitioner could follow when having difficulty intubating a patient. But he disagreed with the choices Howell made after she encountered difficulty in intubating Nelson. He also testified that Nelson was at higher risk to have difficulty during intubation, because she was overweight and that Howell erred in choosing to use a long-acting muscle relaxant. Had Howell chosen a shorter-acting muscle relaxant, she might have been able to reverse its effects, thus allowing Nelson to start breathing on her own when it became clear that complications were developing. Dr. Bronheim testified that Dr. Pancu should have tried a reversal agent after he entered the operating room, but he could not testify to a reasonable degree of medical certainty that failure to administer the drug resulted in the need for the emergency cricothyrotomy.

Significantly, neither Nurse Koop nor Dr. Bronheim provided any testimony about what the risks are to a singer from being intubated. Nor did they testify as to whether vocal cord damage was a recognized risk of intubation. Nor did they state whether the standard of care for a doctor or a CRNA required that plaintiff be advised of such a risk before consenting to general anesthesia.

After plaintiff presented her case-in-chief, the trial judge granted defense motions to dismiss plaintiff's claims based on lack of informed consent. She reasoned that the CRNAs had no obligation to explain the risks of the procedure to plaintiff because they were not physicians. And Dr. Pancu, who was only called into the operating room at the last moment once an emergency developed, had no obligation because he had never entered into a physician-patient relationship with plaintiff prior to the surgery. The judge also dismissed all claims against Dr. Pancu, based on what she found to be undisputed evidence that he did not know that the surgery was starting and therefore had no opportunity to guide events in the operating room until the emergency developed. Further, plaintiff's expert did not criticize Dr. Pancu's medical decisions once Dr. Pancu began treating plaintiff.

Despite several comments from the court concerning the potential separate liability of the Hospital, plaintiff did not ask the court to submit a separate question to the jury concerning the Hospital's liability. Nor did plaintiff include Dr. Vinod in her complaint. When the jury returned its no cause verdict, it also sent the court a handwritten note indicating that the jurors sympathized with Nelson and believed that someone had been negligent. But the note also stated:

The consensus of all [eight] jurors is the wrong individuals were accused. Furthermore, we highly recommend an internal [investigation] by the [Hospital] to improve the overall operating efficiency of [its] employees and the execution of the policies and procedures of [the] anesthesiology department.

II

On this appeal, plaintiff raises the following issues:

POINT I: PLAINTIFF RECEIVED NO INFORMATION ABOUT RISKS, ALTERNATIVE OPTIONS AND ANESTHESIA PLAN TO GIVE AN INFORMED CONSENT TO GENERAL ANESTHESIA.

POINT II: ANESTHESIOLOGIST ASSIGNED TO ADMINISTER ANESTHESIA HAD DUTY TO SUPERVISE CRNAS.

POINT III: CRNAS HOWELL AND VILLALUZ DID NOT EXERCISE "MEDICAL JUDGMENT" WHEN ATTEMPTING TO INTUBATE PLAINTIFF WITHOUT PROPER SUPERVISION.

POINT IV: NOTE ACCOMPANYING VERDICT SHOULD HAVE BEEN DISCUSSED WITH COUNSEL AND COURT SHOULD INQUIRE OF JURORS ABOUT CONTENT BEFORE COURT ACCEPTED VERDICT.

Having reviewed the record, we conclude that plaintiff's contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E). We add the following comments.

We concur with the jury's sage observation that "the wrong individuals were accused." Even viewing plaintiff's evidence in the most favorable light, the die was cast when the Hospital permitted a first year resident OB/GYN to sign the pre-anesthesia evaluation of plaintiff on February 17, 2000, although no one had actually discussed with plaintiff the choice of anesthesia or its risks. Once the signed form was in plaintiff's chart, the defendant CRNAs could reasonably assume that plaintiff had already discussed these issues with an anesthesiologist and had consented to general anesthesia.

An equally fundamental flaw in plaintiff's case was the total absence of proof that vocal damage was a recognized risk of general anesthesia as to which plaintiff should have been counseled before consenting to the procedure. Frost v. Brenner, 300 N.J. Super. 394, 406 (App. Div.), certif. denied, 151 N.J. 471 (1997). As we stated in Febus v. Barot, 260 N.J. Super. 322, 327-28 (App. Div. 1992):

[T]he prudent patient standard does not always dispense entirely with the need for expert medical testimony in an informed consent case. Although, under this doctrine, no medical expert is required to prove that an undisclosed risk would have been material to the patient's consent, it must first be shown that the risk was one of which the physician should have been aware, and that it was recognized within the medical community. . . .

[T]he informed consent doctrine requires a plaintiff to prove that the medical treatment given "carries with it recognized and defined risks of adverse consequences."

[Id. at 327; citations omitted.]

Plaintiff's expert witnesses did not provide this essential testimony to support her informed consent claim.

Finally, we find no merit in plaintiff's objection to the judgment charge. Even plaintiff's experts conceded that the application of the Difficult Airway Algorithm involved judgment. The trial judge was scrupulously careful to limit the judgment charge only to the CRNAs and only to their multiple efforts to intubate plaintiff. And while plaintiff's attorney objected in general to the giving of a judgment charge, he offered no objection to court's narrow formulation of the charge:

The Court: "If you determine that the standard of care for treatment with respect to multiple attempts to intubate before calling for assistance did not allow for the choices or judgments the defendants CRNAs made here, then the CRNAs would be negligent. . . ."

I'm giving that charge, I don't suppose you object to that language, Mr. Dorrity?

Mr. Dorrity: I don't object to that language given that charge. . . . I object to the entire charge. That's on the record.

The Court: But if you had to have it, this language is - -

Mr. Dorrity: Obviously, I have to have it. I don't object to the last sentence being read.

Finding no merit in any of plaintiff's contentions, we affirm the judgment.

Affirmed.

 

Because plaintiff is not appealing the no cause verdict with respect to Dr. Hutchinson-Colas, we will limit our discussion with respect to that defendant.

Dr. Pancu agreed that the anesthesiologist should speak with the patient before the surgery. But he contended that he had no opportunity to do so, because he was involved in a surgical emergency elsewhere when Nelson was brought into the operating room, and no one advised him that Nelson's surgery was about to begin.

This may have been a tactical decision, because by statute the malpractice liability of a hospital is limited to $250,000. N.J.S.A. 2A:53A-8. Plaintiff may have been concerned that if the Hospital was listed separately as a defendant, the jury would be more likely to only return a verdict against the Hospital and not the individual defendants, whose liability was not limited.

The signature was illegible; hence defendants would not have been able to tell that the person who signed the form was not a member of the anesthesiology department.

(continued)

(continued)

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A-6525-03T5

April 18, 2006