CARYL MILLER v. THOMAS O'DOWD, M.D

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1166-07T21166-07T2

CARYL MILLER,

Plaintiff-Appellant/

Cross-Respondent,

v.

THOMAS O'DOWD, M.D.,

Defendant-Respondent/

Cross-Appellant,

and

STEVEN HOROWITZ, M.D., JEFFREY

DANIELS, M.D., FRANCES KASARDA, M.D.,

VINCENZO SCOTTO D'ANTUONO, M.D.,

ANDREW SCHWARTZ, M.D., BORIS

LIBSTER, M.D., M. ARIF HASHMI, M.D.,

JAMES M. PORCELLI, M.D., DAVID

AVELLA, M.D., DOMINIC COMPERATORE,

M.D., CYNTHIA REICHMAN, M.D., PARAQ

MODI, M.D., JAMES BRAVYAK, M.D.,

THOMAS GRABIAK, M.D., HOWARD WINGATE,

M.D., GEORGE HAGER, III, M.D.,

FREDERICK FISHER, M.D., IRWIN SPIRN,

M.D., JOSEPH SOKOLOWSKI, M.D., THOMAS

SERGI, M.D., MARK DANNENBAUM, M.D.,

LUCINDA SCHWARTZ, M.D., MEAGAN

VERMEULEN, M.D., DR. ANSARIO, K. DELVISCO,

R.N., KATHY HINES, R.N., VIRTUA WEST

JERSEY HOSPITAL VOORHEES, SOUTH

JERSEY ORTHOPEDIC ASSOCIATES,

ALLIED GASTROINTESTINAL ASSOCIATES,

WEST JERSEY ANESTHESIA ASSOCIATES,

REGIONAL SURGICAL ASSOCIATES,

SOUTH JERSEY RADIOLOGY ASSOCIATES,

REGIONAL PULMINARY ASSOCIATES,

JENNIFER HILDEBRAND, R.N., NANCY

RAUCH, R.N. and FRANCIS EBINGER, R.N.,

Defendants.

_____________________________________________

 

Argued December 2, 2009 - Decided

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5792-02.

Kevin Haverty argued the cause for appellant/cross-respondent (Williams Cuker Berezofsky, attorneys; Mr. Haverty, of counsel and on the briefs).

Charles C. Daley, Jr., argued the cause for respondent/cross-appellant (Orlovsky, Gras-so, Bolger, Mensching & Daley, attorneys; Mr. Daley, of counsel; Christopher J. Orlovsky, on the briefs).

PER CURIAM

In this appeal of a judgment that followed a jury's verdict of no cause in this medical malpractice action, we consider the sufficiency of the trial judge's charge to the jury. Because the judge did not provide adequate instructions regarding proximate cause, we reverse and remand for a new trial.

Plaintiff Caryl Miller elected to have a total hip replacement surgery. At the time of the surgery, which occurred on August 23, 2000, plaintiff was eighty-five-years old. Her orthopedic surgeon was defendant Thomas O'Dowd, M.D. Following the surgery, plaintiff endured catastrophic complications, which she alleged resulted from Dr. O'Dowd's negligence regarding the use of narcotics for pain management as well as the subsequent failure of the nurses and all others named as defendants to adequately communicate or resolve allegedly conflicting orders. Specifically, plaintiff alleged she developed ileus -- a progressive slowing of the bowels -- and, due to the administration of excessive narcotics, she vomited, tore her esophagus and developed aspiration pneumonia, which led to the development of sepsis, adult respiratory distress syndrome, congestive heart failure and disseminated intravascular coagulopathy. Plaintiff remained hospitalized for ninety-nine days; she was ventilator-dependent for all but nine of those days.

After some defendants were dismissed by way of summary judgment, and others settled, plaintiff's claims against Dr. O'Dowd and two nurses, Jennifer Warner and Nancy Rauch, went to trial. Before the trial's conclusion, plaintiff settled with defendants Warner and Rauch. The jury rendered a verdict on plaintiff's claim against Dr. O'Dowd, the only remaining defendant, after ten days of trial. Specifically, the jury determined that Dr. O'Dowd was negligent but his negligence was not a proximate cause of plaintiff's damages.

Plaintiff appealed, arguing that the trial judge erred in failing to sufficiently define proximate cause and in failing to tailor the jury charge to the facts of the case. Dr. O'Dowd cross-appealed, arguing that the trial judge erred in denying his motion for a directed verdict and, also, that in the event we were to hold the charge to be deficient, a new trial on both liability and causation should be ordered.

In considering these arguments, a more detailed description of the parties' disputes is helpful. Plaintiff's theory was that Dr. O'Dowd deviated from the standard of care by ordering post-operative morphine without first communicating with the anesthesiologist, Dr. David Paul Avella, who had provided "clear instructions that all narcotics were to be held." To support this theory, plaintiff called Dr. Anthony Brown, a clinical professor of anesthesiology and pain management at Columbia-Presbyterian Hospital in New York City, and Dr. David Smith, an orthopedic surgeon and former president of the medical staff and director of orthopedic surgery at the Medical Center at Princeton.

Dr. Brown testified that the morphine ordered by Dr. O'Dowd interacted with the epidural fentanyl ordered by Dr. Avella and contributed to the development of ileus:

Q. And how did the use of the patient-controlled analgesia with morphine as ordered by Dr. O'Dowd cause or contribute to the development of ileus?

A. Well, first of all, this is not a -- a common practice, and the reason that it isn't is because you're giving opioids in two different ways and they combine to cause -- to increase the side effects that appear with opioids.

Q. One of which is the development of ileus?

A. Well, one is ileus, and the other one is just routine depression; yes.

Dr. Brown also testified that it was a deviation from the accepted standard of care for Dr. O'Dowd to order patient-controlled analgesia with narcotics in conjunction with epidural narcotics because of "the risks associated with the side effects of the narcotics." According to Dr. Brown, post-operative pain management is controlled by the anesthesiologist and, therefore, Dr. O'Dowd was negligent in failing to first communicate with Dr. Avella before ordering a patient-controlled anesthesia (PCA) device.

Dr. Smith, plaintiff's orthopedic expert, considered the orders regarding pain management issued by both Dr. Avella and Dr. O'Dowd. He opined that Dr. O'Dowd deviated from accepted standards of care because

there was, clearly, a conflict in the two orders. And it was no -- there was no communication with the anesthesiologist as to who was going to handle the pain control. Meaning, was the epidural going to be pulled out and the PCA continued; or was the epidural going to stay in. And so there was no communication; there was a clear conflict in the two orders; and that was picked up neither by Dr. O'Dowd or the nurses.

Dr. Smith also testified that plaintiff "definitely had ileus" and that the combination of narcotics here could have caused an ileus.

The defense argued that Dr. O'Dowd's order regarding pain medication and his method of communication followed the standard of care, and that there was no evidence to suggest that plaintiff received an excessive dose of narcotics or exhibited any signs of being overmedicated. In support, Dr. O'Dowd called Dr. Frances DeLuca, a board-certified orthopedic surgeon at Saint Barnabas Medical Center in Livingston, and Dr. Stephen Akers, a board-certified physician at Cooper Memorial Hospital in Camden and associate professor at the University of Medicine and Dentistry of New Jersey.

Dr. DeLuca testified that an order for patient-controlled morphine for a patient also receiving fentanyl through an epidural was within the standard of care. In fact, according to Dr. DeLuca, the appropriateness of Dr. O'Dowd's order was "further supported by the fact that the anesthesiologist ordered morphine." Dr. DeLuca also testified it was standard practice to communicate with other doctors through written orders.

Dr. Akers testified that there was no evidence that plaintiff was overmedicated:

[i]t's very clear in the chart, and at no time did she ever demonstrate anything such as she was too sleepy, I couldn't wake her up, her blood pressure was too low, her respiratory rate was too low, her oxygen levels were low, all of the things that you would look for to determine whether or not she was over sedated or over medicated [sic].

He also testified that plaintiff's vomiting and ileus were probably not the result of overmedication but they are "fairly common things that occur after an operation of any type" and are events "we almost expect to occur."

The jury's resolution of the parties' factual disputes required accurate legal instructions. "Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). A trial court's instructions to the jury must correctly "state the applicable law in clear and understandable language," Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006), and should indicate how the jury should apply the facts it finds, Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591-92 (1966). In essence, the jury charge serves as a "road map that explains the legal principles, outlines the jury's function, and spells out 'how the jury should apply the legal principles charged to the facts of the case at hand.'" Toto v. Ensuar, 196 N.J. 134, 144 (2008) (quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)).

The judge charged Model Jury Charge (Civil), 6.10, "Proximate Cause -- General Charge To Be Given In All Cases" (May 1998), which provides for the jurors an overview of their essential obligation, in this way:

[t]he plaintiff must also prove by the preponderance of the evidence the nature and extent of her alleged injuries and/or disabilities and that the doctor's deviation from the accepted standard of care was a proximate cause of those injuries and/or disabilities.

. . . .

If you find that Dr. O'Dowd was negligent, you must find that Dr. O'Dowd's negligence was a proximate cause of plaintiff's injuries. Before you can find that Dr. O'Dowd was responsible for plaintiff's injuries or claimed injuries, it is a duty of the plaintiff to establish by a preponderance of the evidence that the negligence of Dr. O'Dowd was a proximate cause of the accident and/or injuries that was caused to plaintiff and allegedly to have resulted from the doctor's negligence.

The basic question for you to resolve is whether . . . plaintiff's injury, loss or harm is so connected with the negligent actions or inactions of Dr. O'Dowd, that you decide it is reasonable, in accordance with the instructions I will now give you, that Dr. O'Dowd should be held wholly or partially responsible for that injury or loss.

And as far as proximate cause is concerned, it is Dr. O'Dowd's burden to show that the nurses was -- or were negligent and that their negligence was a proximate cause of plaintiff's injuries.

And, in a later portion of the charge the judge advised the jury that the burden was on plaintiff to show negligence and "such negligence was a proximate cause of the accident." But the judge never provided a definition of "proximate cause." Nor did the judge provide the jury with directions from which it could decide whether Dr. O'Dowd's negligence was a proximate cause of plaintiff's injuries or with directions from which it could decide that the nurses' alleged negligence was a proximate cause of plaintiff's injuries. His only attempt to describe the parties' complex factual contentions consisted of this unenlightening statement: "In this case, plaintiff contends that the defendant or defendants were negligent in the diagnosis and/or treatment of [plaintiff] and that such negligence was a proximate factor in causing plaintiff's injuries or causing plaintiff to be injured."

Plaintiff argues that the following language in the judge's charge was particularly misleading:

[t]he basic question for you to resolve is whether . . . plaintiff's injury, loss or harm is so connected with the negligent actions or inactions of Dr. O'Dowd, that you decide it is reasonable, in accordance with the instructions I will now give you, that Dr. O'Dowd should be held wholly or partially responsible for the injury or loss.

[Emphasis added.]

We agree. The judge mistakenly omitted the promised additional instructions that would have -- or should have -- defined the concept of proximate cause. Indeed, the reference in the charge that additional instructions would be given comes from the very language of Model Jury Charge (Civil), 6.10, which presupposes that the judge will charge some other provision that would fully define proximate cause depending upon the particular facts of the case. Here, the judge omitted any additional instructions regarding proximate cause. And the "so-connected-with" language, without further explanation, suggested to the jury that plaintiff's burden was to show that Dr. O'Dowd's negligence was the only cause of the injuries, and thus failed to provide the jury with a sufficient or accurate road map once it found Dr. O'Dowd to be negligent.

In so holding, we reject defendant's argument that there was language in the charge that sufficiently conveyed the concept of proximate cause. We must, of course, consider the charge as a whole. Boryszewski, supra, 380 N.J. Super. at 374. Having examined its entirety, we are convinced that the jury was left without direction as to how to determine whether Dr. O'Dowd's negligence was a proximate cause of plaintiff's alleged damages. This lack of clarity certainly could have led to an unjust result because the jury found Dr. O'Dowd negligent but concluded that his negligence was not a proximate cause of plaintiff's injuries.

As said long ago in Brumberger v. Burke, 56 F.2d 54, 56 (3d Cir. 1932), proximate cause "standing in and by itself, is an expression of legal significance with which the average jur[or] is wholly unacquainted." In a case in which multiple factors were urged as causes for plaintiff's damages, it was important for the judge to explain the application of proximate cause by reference to the parties' contentions. Trial courts have the obligation in such circumstances

to explain to the jury in simple terms what the law means by [proximate cause] and to illustrate the application of its legal principles to the facts of the particular case which he is trying. Coupling an explanation of these legal principles with the facts of the particular case on trial is desirable, indeed, is necessary, in order that the jury may fully understand the line of their duty and how to perform it.

[Kreis v. Owens, 38 N.J. Super. 148, 156 (App. Div. 1955) (quoting Brumberger, supra, 56 F. 2d at 56).]

The Model Civil Jury Charge Committee's notes concerning the proximate cause charges are fully in accord with these older authorities, advising that "proximate cause should be carefully defined for the jury and tailored to the facts of the particular case" because "recent research and literature on jurors' comprehension of instructions uniformly indicates that jurors do not understand the technical language in most proximate cause charges." Notes to Judge, Model Jury Charge (Civil), 6.10.

Although not every charge's failure to tailor the law to the facts mandates reversal, this case presented a critical dispute about proximate cause. The judge here not only failed to describe for the jury the manner in which the concept of proximate cause applied to the parties' disputes but he completely failed to define proximate cause. There can be no doubt that these errors had the ability to mislead and require a new trial.

Dr. O'Dowd argues on appeal that should we require a new trial on proximate cause we should also order a new trial on negligence. We agree that even though there is no error in the judge's charge on negligence, it is appropriate in this case to order a new trial on all issues. The question turns on whether the issues in question -- here, negligence and proximate cause -- are separate and distinct. The Supreme Court has held that the "general rule [is] that issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues." Ahn v. Kim, 145 N.J. 424, 434 (1998); see also Negron v. Melchiorre, Inc., 389 N.J. Super. 70, 85 (App. Div. 2006), certif. denied, 190 N.J. 256 (2007); Corridon v. Bayonne, 129 N.J. Super. 393, 398 (App. Div. 1974). Notwithstanding the judge's adequate negligence instructions, we view negligence in this case as being "inextricably intertwined with the concept of proximate cause." Conklin v. Hannoch Weisman, 145 N.J. 395, 410 (1996). Considering also that in a partial retrial a jury would likely have trouble understanding how to resolve the difficult proximate-cause issues without having a full understanding of why Dr. O'Dowd was found negligent, we do not believe the interests of justice in this matter would be served by a partial new trial.

We lastly find insufficient merit in Dr. O'Dowd's argument that the trial judge erred in denying his motion for a directed verdict to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).

 
Reversed and remanded for a new trial on all issues.

(continued)

(continued)

13

A-1166-07T2

March 10, 2010