MAURICE J. DEGENNARO et al. v. FRANCISCAN HEALTH SYSTEMS OF NEW JERSEY, INC. and ST. MARY'S HOSPITAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3519-04T33519-04T3

MAURICE J. DEGENNARO and JANET

DEGENNARO,

Plaintiffs-Appellants,

v.

FRANCISCAN HEALTH SYSTEMS OF NEW

JERSEY, INC. and ST. MARY'S HOSPITAL,

Defendants,

and

STEPHEN MANOCCHIO, M.D., JEAN

MESSIHI, M.D., ANGELO CAPRIO, M.D.

and ROBERT COSTOMIRIS, M.D.,

Defendants-Respondents.

_______________________________________

 
Telephonically argued October 5, 2006 - Decided April 20, 2007

Before Judges Lisa, Holston, Jr. and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Docket No.

L-6439-01.

Gerald Jay Resnick argued the cause for

appellants (Resnick Nirenberg & Siegler, attorneys; Mr. Resnick and Kathleen M. Ryder, on the brief).

Jill R. O'Keeffe argued the cause for

respondent Stephen Manocchio, M.D.

(Orlovsky, Moody, Schaaff & Gabrysiak,

attorneys; Thomas Conlon, on the brief).

Hugh P. Francis argued the cause for

respondents Jean Messihi, M.D., Angelo

Caprio, M.D. and Robert Costomiris, M.D.

(Francis & Berry, attorneys; Mr. Francis,

of counsel; Erik A. Hassing, on the brief).

PER CURIAM

Plaintiffs Maurice J. and Janice DeGennaro appeal following a jury trial on their complaint alleging medical malpractice. The jurors found that the defendant doctors, Stephen Manocchio, Jean Messihi, Robert Costomiris and Angelo Caprio, did not deviate from the standard of care in diagnosing and treating Mr. DeGennaro (DeGennaro) while he was a patient at St. Mary's Hospital.

DeGennaro was admitted to St. Mary's after 9:00 p.m. on Saturday, November 26, 1999. Although his condition was not diagnosed until November 30, there is no dispute that when DeGennaro was admitted he was suffering from heparin induced thrombocytopenia (low platelet count) with thrombosis (blood clot), known as H.I.T.T. Some patients produce antibodies in response to heparin when they are given that drug. The antibodies cause these patients' platelets to adhere to one another (H.I.T.) and, as a consequence, the patients can develop thrombosis (H.I.T.T.). Thus, heparin, which is generally prescribed as an anticoagulant or blood thinner to prevent blood clots, increases the potential for clotting in patients who produce the antibodies. Because the platelets clump together, blood tests of patients who have developed the antibodies show a reduced platelet count. Low platelet count, however, is also explained by other causes, including infection and blood loss.

Ten days before he was admitted to St. Mary's, DeGennaro had bypass surgery at Lenox Hill Hospital in New York. The operation was performed by Dr. Connolly. It required extraction of a vein from DeGennaro's left leg and an artery from his left arm, which were used to accomplish the bypass. As is customary, heparin was administered in connection with the operation.

While DeGennaro was hospitalized at Lenox Hill, his wife noted and inquired about swelling in her husband's arm and leg at the point where the vessels needed for the bypass surgery had been extracted. She was told that swelling and pain were to be expected. Prior to his discharge from Lenox Hill, DeGennaro, who is morbidly obese, hypertensive and a diabetic, developed sleep apnea and an irregular heartbeat. To address those problems, a second operation to install a pacemaker was performed.

DeGennaro was released from Lenox Hill on November 23, 1999. Swelling of his left leg was noted on the discharge form. The last platelet level reported on DeGennaro's hospital chart at Lenox Hill was 212,000. He was not taking heparin at the time of his discharge.

The pain and swelling in DeGennaro's left extremities increased after he returned to his home in Hoboken. On November 25, 1999, his wife called Dr. Connolly's office. Pain medication was prescribed. On November 26, 1999, she called again and was told to either bring her husband in or seek medical attention closer to their home.

After that call, DeGennaro's wife called a friend, Alex Corrado, who had "some medical training" in Italy. Corrado visited that afternoon. He noticed that DeGennaro's hand was black and blue and his left foot was swollen and discolored. Corrado advised DeGennaro to go to St. Mary's, but DeGennaro declined. Within a few hours, Corrado returned with a doctor, who also advised DeGennaro to seek medical attention. At 9:00 p.m. on Saturday, November 26, 1999, DeGennaro was taken to St. Mary's by ambulance.

When DeGennaro was admitted to St. Mary's, Dr. Caprio, a surgeon, saw him in the emergency room. He inserted an intravenous line and blood tests were done. The blood work showed an infection in DeGennaro's blood stream and a low platelet count. DeGennaro's platelet count was 52,000, which is below the low normal range of 130,000 to 150,000. His clotting factors were abnormal.

Dr. Caprio admitted DeGennaro as Dr. Manocchio's patient. Although DeGennaro had never been treated by Dr. Manocchio, the men had known one another for many years. Dr. Messihi, an internist with a specialty in infectious diseases, was covering for Dr. Manocchio when DeGennaro was admitted. Antibiotics were ordered at approximately 2:00 a.m. on Sunday, November 27.

Dr. Costomiris, a cardiologist who was asked to consult on the case, saw DeGennaro on the morning of November 27. He ordered Digoxin to reduce DeGennaro's irregular heart beat. He also noted that DeGennaro's left arm and leg were swollen and purplish-reddish in color. He believed the swelling was likely caused by the infection and clotting. He thought the patient was at risk of losing the limbs, a risk he estimated at eighty-five to ninety percent. He prescribed Lasix, a drug that would help eliminate any excess fluid in DeGennaro's system that could be contributing to the swelling.

When Dr. Costomiris saw DeGennaro, heparin had not been prescribed by anyone at St Mary's, and he did not prescribe it. The doctor was aware that the manufacturer of heparin advised against administering the drug to a patient whose platelet count is under 100,000. Although Dr. Costomiris had treated patients after bypass surgery for almost twenty years, he had never seen a patient who had H.I.T.T. He did not consider the diagnosis.

On the morning of November 27, Dr. Miller, who was covering for Dr. Caprio, also saw DeGennaro. She noted swelling of DeGennaro's lower left extremity and puss around the incision on his leg, indicating infection. The patient complained of pain in his left arm and hand. Dr. Miller noted that the patient's hand was swollen and there were signs that the blood supply was poor near the points of the incision on his arm. Dr. Miller determined it necessary to rule out "subclavin vein thrombosis" and ordered an ultrasound. Because DeGennaro had recent heart surgery and there was concern for post-operative bleeding, Dr. Miller noted that he should not receive heparin.

The ultrasound showed clots in DeGennaro's subclavin, axillary and brachial veins. On Sunday morning, Dr. Messihi, still covering for Dr. Manocchio, also saw DeGennaro. He spoke with Dr. Miller and saw the ultrasound results. He attempted to contact Dr. Connolly, who had performed the bypass surgery but was not successful. Attributing DeGennaro's low platelet count to the infection and considering the subclavin thrombosis shown by the ultrasound as falling within the "realm of a true emergency," Dr. Messihi ordered heparin. Dr. Messihi did not expect the heparin to dissolve the existing clots. He expected the drug to prevent additional clotting. Dr. Messihi selected heparin rather than Coumadin as the anticoagulant of choice because Coumadin is slower acting. Starting at about 12:30 p.m. on Sunday November 27, DeGennaro received a bolus of heparin and a heparin drip.

Dr. Messihi admitted that if he had known that DeGennaro was suffering from H.I.T.T. he would not have prescribed heparin and would have contacted a hematologist.

Dr. Manocchio assumed responsibility for DeGennaro's care from Dr. Messihi on Monday, November 28. Although he was aware of H.I.T.T., he did not consider that diagnosis. In his view, Dr. Messihi had taken the correct course by ordering antibiotics to treat the infection, which likely explained DeGennaro's reduced platelet count, and administering heparin to prevent additional clotting, which would otherwise pose a threat to the patient's life and his left limbs.

When DeGennaro's hand did not improve and worsened, Dr. Manocchio consulted with Dr. Caprio. They agreed that Dr. Caprio should perform a fasciectomy. A fasciectomy is a procedure in which the skin is opened and the fascia cut to expose the muscle, relieve the pressure in the limb and thereby avoid resulting internal damage. Dr. Caprio described the operation "as a last resort" to salvage an arm in which the muscles and nerves would otherwise die because of the pressure from the blood trapped in the extremity by the thrombosis blocking the veins. He explained that while less than a third of those in the general population who have thrombosis lose a limb, the percentage is considerably higher among those patients who are post-operative, morbidly obese and diabetic.

Prior to the fasciectomy, which was performed at 4:30 p.m. on Monday, November 29, the heparin drip was stopped. After the fasciectomy, Dr. Manocchio found the appearance of DeGennaro's arm to be "somewhat improved."

Dr. Caprio ordered resumption of the heparin drip on Tuesday, November 30, at 10:05 a.m. He viewed the prospect of potential increased clotting of the subclavin vein as capable of causing a stroke or pulmonary embolism. Dr. Caprio acknowledged that if he knew that DeGennaro had H.I.T.T., he would not have prescribed the medication. Although he was aware of the condition known as H.I.T.T., he concluded that the swelling and clotting in DeGennaro's limbs was secondary to the surgery performed on those limbs at Lenox Hill.

According to Dr. Caprio, the doctors did not discuss a diagnosis of H.I.T.T. Although Dr. Caprio knew there was a laboratory test that would aid in the diagnosis of H.I.T.T., that test was performed only at laboratories outside the hospital and results were not available for a week to ten days. Dr. Manocchio was not aware of a laboratory test for H.I.T.T. at the time.

Although the antibiotic effectively reduced DeGennaro's bacterial infection, his platelet count continued to drop. That count was 44,000 on November 29, and it was 36,000 on November 30. At that point, Dr. Manocchio asked Dr. Damle, a hematologist, to consult on DeGennaro's treatment.

Dr. Damle saw DeGennaro on November 30. She recommended ruling out H.I.T.T., discontinued the heparin therapy and started treatment with Coumadin. DeGennaro did not receive heparin after Dr. Damle wrote the order at 1:55 p.m. on November 30. Dr. Damle concluded that there was a need to rule out H.I.T.T. because the treatments previously ordered by her colleagues had not worked.

Dr. Caprio, like Dr. Messihi, had made several attempts to contact Dr. Connolly. When Dr. Connolly did return the call, he agreed that DeGennaro should be returned to his care at Lenox Hill when a bed became available. In the interim, Dr. Caprio performed a fasciectomy on DeGennaro's left leg. DeGennaro was transferred from St. Mary's to Lenox Hill on December 2. He subsequently had partial amputations of his left foot and arm.

Plaintiffs claimed that the doctors who treated DeGennaro at St. Mary's deviated from the accepted standard of care because they failed to diagnose H.I.T.T. until November 30 and, prior to that, administered heparin, which was a substantial factor leading to the amputations. Defendants contended that the amputations were inevitable when DeGennaro came to St. Mary's and that their diagnosis of infection was reasonable. Both parties presented expert testimony.

Dr. Bottino, a board certified internist, hematologist and oncologist, presented expert testimony on behalf of plaintiffs. Although he testified about the overlap between his specialties and specialties in infectious diseases, cardiology and surgery, the court accepted him as an expert in hematology. He testified, as had Dr. Costomiris, that "[t]he manufacturer [of heparin] recommends that . . . platelet count of 100,000 or less is a direct contraindication to give heparin." He explained that this is a general recommendation and that heparin should not be given when the platelet count is lower than 100,000 without a "really good reason" that should be documented in the patient's chart. He explained, as had Dr. Miller, that one concern is for bleeding, which is likely with a reduced platelet count and anticoagulants.

Dr. Bottino also explained that approximately twenty percent of patients who have cardiac surgery develop H.I.T. Approximately twenty-five to thirty percent of the cardiac bypass patients who develop H.I.T. subsequently develop H.I.T.T. According to Dr. Bottino, the duration of the period during which the patient receives heparin is more significant to the potential for developing thrombosis than the dosage amount. The antibodies produced in response to heparin remain in the patient's blood system for a period of time after heparin therapy is stopped, and the clotting can continue even if the patient does not receive additional heparin.

Based upon his knowledge of H.I.T. and H.I.T.T. and his review of DeGennaro's chart, Dr. Bottino concluded that the patient was suffering from H.I.T.T. and presented with a "classical" case when he was admitted to St. Mary's. He had recent bypass surgery that would have required heparin therapy and a low platelet count accompanied by pain and swelling of the extremities that were indicative of vascular obstruction. Dr. Bottino acknowledged that DeGennaro also had signs of infection, which would explain a less severe depression of the patient's platelet count but would not explain DeGennaro's severely depressed platelet count. In Dr. Bottino's opinion, the internists, cardiologists and surgeon who treated DeGennaro each deviated from the standard of care for doctors in their respective fields by failing to diagnose H.I.T.T., ordering heparin and continuing the heparin drip despite the low platelet count, recent bypass surgery and the deteriorating condition of his left extremities. Bottino explained that the heparin was "adding fuel to the fire" and causing progressive damage, which was indicated by increasing swelling and worsening of the color of DeGennaro's limbs and led to his amputations.

Dr. Bottino acknowledged the serious risk posed by the thrombosis detected in DeGennaro's subclavin vein. In his opinion, however, the doctors should have addressed that threat with either Hirudin, which is an alternative to heparin that had recently become available in November 1999, or Agartavan, which had not been approved but could be obtained for "compassionate use." Dr. Bottino also admitted that in November 1999, there was some thinking that it was reasonable to use low molecular weight heparin, but not heparin drip, as an anticoagulant for patients with H.I.T.T.

None of the four defense experts disputed Dr. Bottino's assertion that it is improper to administer heparin to a person with H.I.T. or H.I.T.T. or his claim that administering heparin to a patient with H.I.T.T. is analogous to adding fuel to a fire. In their opinion, however, the doctors who treated DeGennaro did not deviate in diagnosing and treating him for a bacterial infection of the blood and clotting that required decoagulation with heparin.

Dr. Sacher, a hematologist, asserted that ninety percent of the doctors with the same specialties as defendants would have handled DeGennaro in "exactly the same way" as the doctors who treated the patient at St. Mary's. He explained that there were many factors that made the diagnosis of H.I.T.T. difficult in this case. DeGennaro's blood test showed a high white blood cell count and was positive for bacteria, both indicative of infection in the blood stream and consistent with signs of infection apparent at the site of his surgical wounds. In addition, other factors pointed away from a diagnosis of H.I.T.T. DeGennaro's blood test results showed abnormal clotting factors, which he said are not typical in patients with H.I.T.T. In addition, DeGennaro's clots were located in the area where surgical procedures had been performed. According to Dr. Sacher, clots associated with H.I.T.T. tend to appear as a storm of clotting throughout the body.

Dr. Sacher noted that while a low platelet count in a person recently exposed to heparin is an indicator for H.I.T.T., the diagnosis is appropriate only when there is no other apparent and more likely reason for the low count, such as infection. According to Dr. Sacher, H.I.T.T. is seen in only three to five percent of bypass patients. He stressed that in 1999, vascular surgeons and hematologists were more likely to be aware of the condition than other doctors and explained that as late as 2002, many doctors did not know about H.I.T.T. For that reason, Dr. Sacher became involved in a program to educate doctors about H.I.T.T. during the years 2002, 2003 and 2004. Dr. Sacher emphasized that the drugs that are now more widely used for patients with H.I.T.T. do not eliminate clots that have been produced.

Defendants' other experts were doctors with certifications in internal medicine and infectious diseases, cardiology, and vascular surgery. Dr. Burstin explained that in 1999, the teaching was that once you stop heparin, H.I.T. goes away. Because DeGennaro had not had heparin since his discharge from Lenox Hill, which was ten days before his admission to St. Mary's, Dr. Burstin concluded it was not unreasonable for his doctors to disregard that diagnosis and view the infection as the cause of low platelets. According to Dr. Guss, a cardiologist, H.I.T. is a rare condition experienced by only one percent of patients who have cardiac surgery and H.I.T.T. is seen in only one-half of those patients. In his opinion, the doctors acted properly by viewing and treating infection as the cause of low platelets and ordering heparin to prevent further thrombosis. According to Dr. Wolodiger, a general and vascular surgeon, in 1999 the consensus of general and vascular surgeons would have been to treat a patient who presented as DeGennaro did in the manner that he was treated at St. Mary's.

DeGennaro testified about his condition prior to and following his bypass surgery, admission to St. Mary's and amputations. Over objection, DeGennaro was cross-examined extensively about his medical history from dates as early as 1993, including compliance with medical advice during the years preceding the bypass surgery, diet, hesitancy to undergo angioplasty and bypass surgery, refusal to return to Lenox Hill and delay in going to St. Mary's. Also over objection, DeGennaro and his expert were questioned about his earlier lawsuit in New York against Dr. Connolly and Lenox Hill, which was characterized as an action in which he asserted that Dr. Connolly and Lenox Hill were responsible for the injuries he now blamed on the defendants in this case.

During a lengthy conference on the jury instruction and verdict sheet, plaintiffs opposed defendants' requests to permit the jurors to consider the role of negligence on the part of DeGennaro or Dr. Connolly and whether standard medical practice allowed defendants to exercise judgment with respect to the diagnosis or treatment of DeGennaro's H.I.T.T. The court granted all three requests.

The jurors found that none of the defendant doctors deviated from accepted standards of medical practice. This appeal followed.

Plaintiffs raise the following issues on appeal:

I. IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO DENY PLAINTIFFS' MOTION IN LIMINE BARRING DEFENDANTS FROM ADMITTING EVIDENCE OF THE NEW YORK LITIGATION.

II. IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO PERMIT DEFENDANTS TO REPEATEDLY REFER TO PLAINTIFF'S REFUSAL OF TREATMENT WHICH HAD NO BEARING UPON THE TREATMENT BY ANY OF THE DEFENDANT PHYSICIANS.

III. THE COURT'S REFUSAL TO GIVE THE JURY A CURATIVE INSTRUCTION OR TO OTHERWISE ALLOW THE PLAINTIFF TO CORRECT THE MISCONCEPTION ABOUT THE TESTIMONY OF PLAINTIFF'S EXPERTS IN NEW YORK WAS SERIOUSLY PREJUDICIAL AND CONSTITUTES REVERSIBLE ERROR.

IV. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN SHE REFUSED TO PERMIT PLAINTIFF TO USE EITHER ON DIRECT OR CROSS-EXAMINATION THE STANDARD OF CARE AS SET FORTH IN THE PHYSICIANS DESK REFERENCE.

V. BY INCLUDING ON THE VERDICT SHEET THE DOCTOR FROM NEW YORK WHO WAS NOT A PARTY TO THIS ACTION AND BY ASKING THE JURORS TO ASSESS THE PLAINTIFF'S COMPARATIVE NEGLIGENCE IN THIS SCAFIDI CASE THE TRIAL COURT GAVE AN IMPROPER INSTRUCTION TO THE JURY AND OTHERWISE TAINTED THE JURY FINDINGS.

VI. THE COURT IMPROPERLY REFUSED TO CERTIFY PLAINTIFF'S EXPERT, GINO BOTTINO, M.D., IN THE FIELD OF INFECTIOUS DISEASES AND CARDIOLOGY.

VII. IT WAS REVERSIBLE ERROR FOR THE TRIAL JUDGE TO CHARGE THE "MEDICAL JUDGMENT RULE."

VIII. IT WAS IMPROPER FOR THE TRIAL JUDGE TO

GIVE A "CURATIVE INSTRUCTION," WHICH IDENTIFIED PLAINTIFF'S COUNSEL AS THE ONE WHO REGISTERED A COMPLAINT WITH THE COURT.

Review of the record in light of the arguments presented in Points I, II, III and V of plaintiffs' brief leads us to conclude that plaintiffs were deprived of a fair determination of their claim. All parties agreed that plaintiffs' claim was that the defendant doctors negligently failed to diagnose DeGennaro's condition and administered heparin, thereby increasing the risk of amputation presented by DeGennaro's preexisting H.I.T.T. and playing a relevant and significant role in causing the damage that required the amputations.

"New Jersey courts apply the substantial factor test in medical malpractice cases involving preexisting conditions." Reynolds v. Gonzalez, 172 N.J. 266, 280 (2002). There are three inquiries relevant to the liability of the defendant doctors in diagnosing and treating preexisting conditions: 1) Whether one or more of defendants deviated from the standard of care in failing to diagnose or rendering treatment; 2) Whether, within a reasonable degree of medical probability, their negligence increased the risk or lessened the chance of avoiding the harm threatened by the preexisting condition; and 3) Whether the increased risk of or lost chance to avoid the harm posed was a substantial factor in bringing about the harm. See id. at 282-83, 287-88.

Stated in terms of the evidence and the analogy discussed by the experts at trial, the questions in this case were the following. Whether the doctors negligently added fuel (heparin) to the fire (H.I.T.T.) that was already contributing to DeGennaro's clotting, impairing blood circulation and damaging DeGennaro's left limbs when he was admitted to St. Mary's. If so, whether the additional fuel increased the risk or diminished the possibility of avoiding amputation. If so, whether the altered risk of amputation was sufficient to play a relevant and significant role in producing the damage that required the amputations. See ibid.

The state of DeGennaro's health, the potential for intervention that would eliminate existing clots and prevent additional clotting, the potential for saving the limbs given any irreversible damage already done, and the potential to avoid additional damage if additional heparin had not been given were all relevant to the significance of the role played by defendants to the ultimate outcome. To the extent that evidence about DeGennaro's obesity, diabetes and delay in seeking treatment for the post-operative clotting was relevant to the potential for saving his limbs when he was admitted to St. Mary's, it was material to the question whether the conduct of the defendant doctors was a substantial factor. Ostrowski v. Azzara, 111 N.J. 429, 448 (1988).

In contrast, evidence about DeGennaro's prior inclination to defer medical treatment and disregard medical advice and his hesitancy to undergo bypass surgery was irrelevant. A patient's prior habits are not considered under the doctrine of comparative negligence when the doctrine of preexisting condition applies. Id. at 438, 441. "The pre-treatment health habits of a patient are not to be considered as evidence of fault that would have otherwise been pled in bar to a claim of injury due to the professional misconduct of a health professional." Id. at 444.

Evidence of a patient's post-treatment health habits is generally deemed relevant to the question of damages, not the question of liability, and is considered under the doctrine of avoidable consequences. Id. at 448; see Lynch v. Scheininger, 162 N.J. 209, 230 (2000) ("avoidable consequences [is] a doctrine that focuses on diminution of damages on the basis of a plaintiff's failure to avoid the consequences of a defendant's tortious conduct"). In this case, other than an inconsequential initial decision to decline a test that DeGennaro reversed, there was no evidence that he refused any test or treatment or failed to comply with any advice while hospitalized at St. Mary's.

This is not a case in which there was evidence of any conduct on DeGennaro's part that could have misled the defendant doctors in diagnosing his condition or deciding to administer heparin. Such evidence could bring this case within a narrow class where a patient's comparative fault upon seeking treatment can be relevant to liability for a preexisting condition. See Ostrowski, supra, 111 N.J. at 443-44, 448 (discussing evidence that the plaintiff failed to consult with her internist after coming under the care of a podiatrist who directed her to see her internist before returning for an avulsion). Nonetheless, the court instructed the jury that "the plaintiff[s] and defendant[s] each allege that the other was negligent and that said negligence was a proximate cause of the accident of the ultimate injuries alleged." The court further directed, "each party has the burden to persuade you by a preponderance or greater weight of the credible evidence of the negligence of the other, and that said injuries were the result or proximately caused by the negligence." In addition, the court instructed that "[i]n order for plaintiff[s] to recover against any defendant[s,] plaintiff[s'] percentage of negligent conduct or fault must be [fifty] percent or less."

Like DeGennaro's health habits prior to the bypass surgery, his view of the significance of Dr. Connolly's conduct in contributing to his amputations was irrelevant to defendants' liability. Where preexisting conditions are at issue, a defendant's deviation "need not be the only cause, nor a primary cause, [in order] to be a substantial factor in producing the ultimate result." Reynolds, supra, 172 N.J. at 288. It is enough that it is a "substantial factor," one which is neither remote nor inconsequential and plays a "role that is both relevant and significant." Ibid. Through cross-examination of DeGennaro and plaintiffs' expert, defendants' attorneys were permitted to suggest, unfairly, that plaintiffs' attempt to recover for damages based on Dr. Connolly's role in contributing to the amputations was inconsistent with their claim in this litigation that defendants' negligence was also "a substantial factor in producing the ultimate result." See ibid. Plaintiffs' attempts to clarify the position taken in that litigation were foreclosed on defendants' objection. The jury was not given any clear direction that an assertion of negligence on the part of Dr. Connolly was not inconsistent with an assertion that deviations by any of the defendants in this case also contributed to the ultimate harm.

The prejudicial impact of this line of questioning was enhanced by the fact that the jury was directed to consider whether Dr. Connolly was negligent. Because Dr. Connolly was not made a party to this case and had not reached a settlement with plaintiffs, the jurors should not have been instructed to consider his negligence. See McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 365 (2001); Ramos v. Browning Ferris Indus. of South Jersey, Inc., 103 N.J. 177, 193 (1986); Higgins v. Owens-Corning Fiberglas Corp., 282 N.J. Super. 600, 608-09 (App. Div. 1995); cf. Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102 (2004) (party removed due to bankruptcy proceedings). If the jurors concluded that the deviation of one or more of the defendants in this case was a substantial factor in causing the loss of DeGennaro's limbs, defendants' avenue of relief from responsibility for liability beyond the lost chance fairly attributable to them was through "the apportionment of damages between the increased risk [attributable to them] and the pre-existing condition." Reynolds, supra, 172 N.J. at 288.

Without conceding error on any of the foregoing points, defendants suggest that these errors must be deemed harmless on the ground that the jurors found no negligence and, therefore, did not confront questions related to allocation of responsibility. We cannot agree.

The errors had the capacity to distract the jurors from a fair evaluation of the question whether defendants' conduct fell below accepted standards. See Joy v. Barget, 215 N.J. Super. 268, 272 (App. Div. 1987) (concluding that references to potential for recovery in the form of workers' compensation could have "deflected the jury from appropriate consideration of the issues before it" and amounted to harmful error despite the fact that the jurors found no negligence). Irrelevant evidence about DeGennaro's health habits and his inclination to defer treatment and disregard medical advice was coupled with an unfair suggestion that it was improper for plaintiffs to seek recovery from each and every doctor whose negligence was a substantial factor leading to his amputations. The jurors were improperly directed to consider DeGennaro's comparative negligence. The potential for distraction of the jurors leading to an unjust result is clear. R. 2:10-2.

Moreover, there was additional error relevant to the question whether defendants deviated from the standard of care. Plaintiffs' attorney was improperly precluded from questioning defendants or their experts about their knowledge of information about heparin included in the "Physician's Desk Reference" (PDR). The PDR "is essentially a compilation of package inserts" prepared by the manufacturers of prescription drugs. Abbott S. Brown, New Jersey Medical Malpractice Law 52 (1999). The Supreme Court has recognized that "[p]hysicians frequently rely on the PDR when making decisions concerning the administration and dosage of drugs." Morlino v. Med. Ctr. of Ocean County, 152 N.J. 563, 579 (1998). While a plaintiff may not rely on "the PDR alone to establish negligence" or the standard of care, information included in the PDR is deemed relevant to a defendant doctor's knowledge and the appropriate standard of care. Id. at 578-81.

Prior to trial, defendants moved to preclude plaintiffs from relying on treatises and articles that had not been provided in response to questions to interrogatories. The trial court ruled that plaintiffs could not use any authoritative materials that were not provided to defendants prior to the motion.

At trial, plaintiffs' attorney called Dr. Messihi as a witness. The doctor acknowledged that the PDR was a source likely found on every doctor's desk and a source that a doctor would use to learn about a medicine, its side effects and warnings about its use. The attorney then brought the 1991 edition of the PDR to the doctor's attention. On the ground that the doctor treated DeGennaro in 1999, not 1991, the judge foreclosed additional questions.

On the following day of trial, prior to calling Dr. Manocchio to the witness stand, plaintiffs' attorney presented a copy of the relevant portion of the 1999 edition of the PDR to his adversaries. Defendants objected. Although plaintiffs' attorney argued that the 1991 and 1999 editions were identical in pertinent part, the court precluded use of the 1999 PDR on the ground that the 1999 edition had not been provided prior to the court's ruling on defendants' motion in limine.

The court subsequently confirmed that its ruling on the use of the PDR extended to plaintiffs' cross-examination of defendants' experts. In articulating the standard of care and concluding that defendants did not deviate, defendants' experts, in particular Dr. Sacher, placed great emphasis on the lack of awareness of H.I.T.T. among specialists in the fields of medicine practiced by defendants.

The court's prohibition of questions directed to defendants' experts based on the PDR was an abuse of discretion. Cross-examination of an expert witness is critical to permit the jurors to assess the soundness of the testimony. See State v. Clowney, 299 N.J. Super. 1, 19 (App. Div.), certif. denied, 151 N.J. 77 (1997). There is no question that the PDR includes information relevant to heparin and the standard of care in its usage. Because the trial court did not determine whether there was any variation between the 1991 and 1999 editions of the PDR, its decision to foreclose use of the PDR was based solely on a technicality, variance in edition date. There was no lack of notice. Defendants were fully aware of plaintiffs' intention to rely upon this well-recognized and widely-available source.

Our discovery rules are designed to eliminate unfair surprise and provide predictability in litigation so that cases are decided on the merits. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512 (1995). Given the clear relevance and ready accessibility of the material, the absence of surprise and the importance of cross-examination of experts who expressed opinions critical to the question of negligence, the ruling placed form over substance and did not serve any purpose sought to be furthered by the discovery rules. This was prejudicial error.

Because we conclude that the cumulative effect of the multiple errors discussed above had the clear capacity to lead to an unjust result, it is not necessary to consider the remaining claims. We add only that the basis for a jury instruction on "medical judgment" is far from clear on this record. The undisputed evidence is that the diagnosis of H.I.T.T. was not considered, and there is no evidence of a selection "among acceptable treatment alternatives." See Morlino, supra, 152 N.J. at 584.

Reversed and remanded for a new trial.

 

Plaintiffs' claims against defendants St. Mary's Hospital and the Franciscan Health Systems were dismissed on motion for summary judgment.

There were additional errors in the jury charge. Although the jurors were instructed on the modified standard for proximate cause applicable in cases involving preexisting conditions, they also were directed that they "must first determine whether the resulting injuries would not have occurred but for the negligent conduct of" the defendant doctors. "But for" cause is not required in cases of preexisting conditions. Scafidi v. Seiler, 119 N.J. 93, 109 (1990).

We do not see a basis for foreclosing DeGennaro from testifying about the positions he asserted in the New York litigation to clarify points made during cross-examination of his expert. Defendants injected the issue of inconsistent litigation based on the same injuries by cross-examining plaintiffs' expert in this trial about the testimony of DeGennaro's experts in the New York case. The defendants justified those questions on the ground that DeGennaro adopted by admission what his experts said in that case. Plaintiffs' attempt to explain the positions asserted by their experts in the New York trial was not offered for the truth of the position. The relevance was to rebut the claim of inconsistency.

To the extent that defendants suggested fault based upon Dr. Connolly's failure to contact them, they did not present any expert testimony indicating that his delayed response contributed to the outcome.

Plaintiffs' expert had previously testified about the information package insert. As noted above, the PDR is comprised of such information. Defendants' attorneys acknowledged that plaintiffs' expert had relied on the insert at depositions prior to trial. Further, the information was relevant. Review of copies of the 1991 and 1999 editions of the PDR included in plaintiffs' appendix on appeal shows that both editions list thrombocytopenia as a contraindication for heparin use by patients whose platelet counts are below 100,000. Both editions also list "new thrombus formation in association with thrombocytopenia, resulting from irreversible aggregation of platelets induced by heparin" under the heading precautions.

(continued)

(continued)

28

A-3519-04T3

April 20, 2007