ELIZABETH BOGNER et al. v. RAHWAY HOSPITAL

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0856-06T30856-06T3

ELIZABETH BOGNER and

GEORGE BOGNER, her husband,

Plaintiffs-Appellants,

v.

RAHWAY HOSPITAL,

Defendant-Respondent.

________________________________________________________________

 

Submitted December 17, 2007 - Decided

Before Judges Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-836-05.

Butler Conti, LLP, attorneys for appellants (Thomas J. Butler, Jr., of counsel and on the brief).

Amdur, Maggs & Shor, P.C., attorneys for respondent (Richard A. Amdur, of counsel and on the brief).

PER CURIAM

Plaintiffs Elizabeth Bogner and George Bogner, her husband, appeal from the August 23, 2006, order of the Law Division that entered a judgment of no cause for action following a jury verdict in favor of defendant Rahway Hospital (Rahway). Plaintiff had sued Rahway as a result of injuries she sustained from a fall while getting out of her hospital bed. We affirm.

I.

Plaintiff was admitted to Rahway on March 7, 2003, following an epileptic seizure. On March 10, 2003, between 8:30 p.m. and 11:30 p.m., she fell when she attempted to leave her hospital bed in order to use the bathroom. Plaintiff claimed that for approximately thirty to forty-five minutes prior to attempting to leave the bed, she rang the call buzzer, but no one responded. As she attempted to leave her bed, she leaned on the food tray table, which rolled away, causing her to fall to the floor and fracture her hip and elbow. During cross-examination, plaintiff conceded that she never mentioned in her deposition that she had rung the call buzzer or that no one had responded.

Radame Orji was the nurse on duty the night plaintiff fell. She wrote a note in plaintiff's medical chart describing plaintiff's response to Orji's question of how she fell. Orji wrote, "when I asked her how she fell, she stated that she wanted to find out what was happening on the other side of the room. She got up and tripped on the leg of the bedside table." Plaintiff never said anything to Orji about the call bell not working. The first time Orji heard that plaintiff was claiming she fell because the call bell did not work was when counsel for Rahway told her so. Orji would have called Rahway's maintenance department to request a repair of the call buzzer if plaintiff had mentioned anything about the call bell the night of her fall, but, according to Orji, plaintiff never told Orji the call bell was inoperable.

At the time plaintiff fell, plaintiff was permitted to leave her bed and go into the bathroom without assistance. According to Orji "the problem plaintiff had that day" was not her seizure disorder, but instead the aftereffects of a biopsy of her liver. Orji explained that hospital staff "were assessing the biopsy site for bleeding and drainage and . . . after [plaintiff] recovered from the biopsy, [she was allowed] to go to the bathroom without assistance."

On cross-examination, Orji acknowledged that even though the doctor authorized plaintiff to ambulate unassisted, such authorization would not "bar her from asking for assistance" if she felt she needed it. Orji agreed that if plaintiff had activated the call bell, nursing staff would have been obligated to respond by going into plaintiff's room to help her. The jury returned a verdict in Rahway's favor, finding that the hospital was not negligent.

II.

Plaintiff's sole argument on appeal concerns the judge's decision to bar her from making any reference to the contents of the "high risk fall assessment" document (fall assessment form) that hospital staff completed during the first three days of plaintiff's stay in the hospital, from March 7 to 9, 2003. The hospital staff only completes a fall assessment form on any given day if a patient's medical condition on that day presents a significant risk of causing the patient to fall.

For plaintiff, the fall assessment form was completed on March 7, 8 and 9 because, according to a notation on the form, plaintiff's arthritis and seizure disorder placed her at high risk of falling. The form directs hospital staff to: 1) answer the call buzzer promptly; 2) teach the patient that the bedside table rolls and may not support the patient if he or she leans on it; 3) keep the two upper siderails on the bed in an upright position while the patient is in bed; and 4) instruct the patient to ask for assistance for any patient activities. Although there was a "high risk fall assessment" completed for plaintiff's remaining days in the hospital following her fall, no such document existed for the day of the fall, March 10, 2003.

Prior to the commencement of trial, Rahway moved in limine for an order barring plaintiff from referencing any duty of the hospital to: 1) maintain the side rails of her bed in an upright position; and 2) instruct her not to lean on the bedside tray table because it could roll away from the bed. Rahway also sought an order barring plaintiff from making any reference to the fall assessment forms that were prepared on March 7, 8 and 9, 2003. Rahway argued that plaintiff was proceeding on a theory of negligence based on common knowledge, not any theory of professional malpractice that would have required expert testimony.

In support of its in limine motion, Rahway pointed to a portion of plaintiff's certification in opposition to Rahway's earlier motion to dismiss. In her certification, plaintiff asserted that her case was based on "simple negligence or common knowledge" and therefore a jury could make a determination "without the need for expert testimony" because "this was non-medical, administrative, routine care in a hospital which a jury is competent to determine . . . using a reasonable care standard, without the help of an expert."

During argument on the in limine motion, the judge reviewed plaintiff's answers to interrogatories and her deposition testimony. Based on that review, the judge concluded that plaintiff limited her allegation of negligence to the non-working condition of the buzzer and the failure of nursing staff to respond to the buzzer within forty-five minutes. The judge and counsel also discussed plaintiff's claim that hospital staff was negligent for failing to keep the bed's siderails in the upright position. The judge ruled that whether the siderails should have been kept in an upright position was a subject which required expert testimony and was not within a jury's common knowledge. For that reason, the judge barred plaintiff from referring to the siderails not being in an upright position.

The judge also ruled that plaintiff was barred from arguing that Rahway had a duty to instruct her not to lean on the bedside tray table. The judge reasoned that nothing in plaintiff's discovery ever pointed to any negligence concerning the tray table, and accordingly plaintiff was precluded from raising that claim at trial. Finally, the judge ruled that the fall assessment forms prepared on March 7, 8 and 9 were inadmissible because: plaintiff's need for enhanced supervision on those days was irrelevant to her condition on March 10, the day of her fall; the fall assessment forms would have unfairly introduced the tray table issue that plaintiff had never before relied on; and the forms would also have introduced the issue of the siderails not being kept in an upright position, which the court had determined was inadmissible in the absence of expert testimony.

On appeal, plaintiff argues that the trial judge erred when she excluded the March 7, 8, and 9 fall assessment forms and the nursing staff obligations that were encompassed therein. Plaintiff contends that the fall assessment forms for those three days contain information that is relevant to Rahway's notice of plaintiff's tendency to fall and Rahway's duty of care.

In reply, Rahway argues that in light of plaintiff's failure to present any expert testimony to support her claim that Rahway was negligent in the manner in which it guarded against a fall by plaintiff, the trial judge was correct in excluding the fall assessment forms for March 7, 8 and 9. In particular, Rahway argues that because plaintiff had no expert, plaintiff was not permitted to argue that Rahway should have kept the siderails on the bed in an upright position or should have prohibited plaintiff from leaving the bed by herself. Rahway maintains that these subjects fall outside the common knowledge of laymen. It further argues that because plaintiff was not on fall precaution status on March 10, as evidenced by the lack of a fall assessment form for that date, the judge properly excluded the fall assessment forms from March 7 to 9 as immaterial to the events of March 10, 2003. Rahway argues that the judgment in its favor should therefore be affirmed.

III.

When we are presented on appeal with a party's claim that the trial judge committed reversible error by excluding evidence, we are required to accord substantial deference to the judge's evidentiary ruling. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Only when that decision constitutes an abuse of discretion is our intervention warranted. Schaefer v. Cedar Fair, L.P., 348 N.J. Super. 223, 238 (App. Div. 2002).

Plaintiff has not presented any meritorious argument to support a conclusion that Judge Brock abused her discretion. We agree with the judge's determination that evidence of whether Rahway was required to keep the siderails upright on March 10, 2003 was not admissible as common knowledge.

Ordinarily, the standard of care must be established by expert testimony. F.G. v. MacDonell, 291 N.J. Super. 262, 272 (App. Div. 1996), rev'd on other grounds, 150 N.J. 550 (1997). Expert testimony is required whenever a plaintiff asserts liability based on the manner in which a "licensed person" exercised professional responsibilities and judgment. Aster v. Shoreline Behavioral Health, 346 N.J. Super. 536, 542 n.4 (App. Div. 2002). We agree with Judge Brock's determination that the decision of whether the siderails should have been kept in the full upright position implicated a professional judgment that was beyond the common knowledge exception, and which therefore required expert testimony.

The common knowledge doctrine "transforms" a professional malpractice case, where expert testimony is required, "into an ordinary negligence case where . . . the jury, from its fund of common knowledge, assays the feasibility of possible precautions . . . the defendant might have taken to avoid injury to the plaintiff." Sanzari v. Rosenfeld, 34 N.J. 128, 141-42 (1961)(dentist failed to take adequate history from patient, which would have disclosed sensitivity to anesthesia and avoided death). See also Hubbard v. Reed, 168 N.J. 387, 396 (2001)(dentist pulled the wrong tooth); Palanque v. Lambert-Woolley, 168 N.J. 398, 407 (2001)(doctor misread lab report and performed unnecessary surgery); Jones v. Stess, 111 N.J. Super. 283, 287-90 (App. Div. 1970)(podiatrist dropped an instrument on a diabetic patient's leg, resulting in later amputation). Unquestionably, all of the failures in these cases could be evaluated by a jury using its own everyday experience. In contrast, whether plaintiff was sufficiently unstable on March 10 to have required that the siderails be fixed in the full upright position differs qualitatively from the conduct in Hubbard, Palanque, Jones, and Sanzari. We accordingly reject plaintiff's contention that the bed siderail issue was capable of evaluation under the common knowledge doctrine. We determine that the judge's decision was correct, and did not constitute an abuse of discretion.

We also agree with Rahway's argument and the judge's conclusion that the March 7, 8 and 9 fall assessment forms should have been excluded. Plaintiff never asserted prior to trial that Rahway was negligent in not instructing her that the table would roll if leaned upon. In contrast, plaintiff did assert that the nursing staff did not respond when she rang the buzzer for forty-five minutes before she got out of bed, and the fall assessment forms did indeed create an obligation to respond "promptly" when the call buzzer rang. We conclude, nonetheless, that the exclusion of the March 7, 8 and 9 fall assessment forms was correct because the form would have introduced issues above and beyond the duty to respond to the call buzzer promptly. As we have discussed, the form would also have introduced the subjects of the siderail and the duty to instruct patients that the tray table could slide, which we have already determined were properly excluded.

Under those circumstances, the probative value of the March 7, 8 and 9 fall assessment forms, i.e. the nursing staff's duty to promptly respond to a call buzzer, was "substantially outweighed by the risk of undue prejudice [or] confusion of issues," N.J.R.E. 403(a), that would have resulted from introduction of a document that also included references to a duty to keep the guardrails upright and instruct the patient that the tray table could roll. Accordingly, the judge's conclusion that N.J.R.E. 403(a) barred admission of the March 7, 8 and 9 fall assessment forms was not error.

Affirmed.

George Bogner sued per quod. All references to "plaintiff" shall refer to Elizabeth Bogner.

A motion judge had previously denied defendant's pretrial motion to dismiss plaintiff's complaint for failure to supply the affidavit of merit that is required by N.J.S.A. 2A:53A-27 whenever a plaintiff's complaint alleges "malpractice or negligence by a licensed person." The motion judge ruled that because plaintiff was proceeding on simple negligence based on common knowledge rather than professional malpractice, neither an affidavit of merit, nor an expert report, were required.

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A-0856-06T3

January 10, 2008