L. RICHARD HARRIS v. PAUL H. REYES, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5527-08T25527-08T2

L. RICHARD HARRIS, ROSE

HARRIS, per quod,

Plaintiffs-Appellants,

v.

PAUL H. REYES, M.D.,

Defendant-Respondent,

and

SALEM HOSPITAL CORP.,

CHS, INC., a/k/a COMMUNITY

HEALTH SERVICES, INC., and

THOMAS C. MUELLER, M.D.,

Defendants.

____________________________

 

Argued: March 24, 2010 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4726-06.

Michael M. Mulligan argued the cause for appellants.

Sharon K. Galpern argued the cause for respondent (Stahl & DeLaurentis, P.C., attorneys; Ms. Galpern, on the brief).

PER CURIAM

Plaintiff L. Richard Harris appeals from a no-cause verdict in his medical malpractice case in favor of defendant, Dr. Paul H. Reyes, an emergency care physician at Salem Hospital. He challenges various rulings of the trial court and its subsequent denial of his motion for a new trial. We examine, among other items, the court's admission, over objection, of testimony by defendant and his expert as to the content of defendant's telephonic conversation with a non-testifying consulting neurologist. We reverse and remand for a new trial.

On January 8, 2006, plaintiff filed a medical malpractice action against Dr. Reyes and Salem Hospital relative to treatment during his stay in the emergency room after having presented with signs of an apparent ischemic stroke, specifically, the doctor's decision not to administer tissue plasminogen activator (TPA), a clot-busting drug thought to minimize post-stroke neurologic deficits. Plaintiff thereafter filed an amended complaint to include as an additional defendant Dr. Thomas Mueller, a neurologist at Christiana Hospital with whom Dr. Reyes consulted telephonically during plaintiff's stay and purportedly suggested that TPA not be administered. Responsive pleadings were filed by all defendants. By orders of April 30, 2007 and March 7, 2008, summary judgment was granted in favor of Salem Hospital and Dr. Mueller, respectively.

Plaintiff filed a motion in limine to bar as hearsay reference to the substance of Dr. Reyes' telephone conversations with Dr. Mueller and Dr. Greenberg, plaintiff's family doctor. The court denied the motion during trial on March 11, 2009, memorialized in an order of the same date.

During opening argument by defense counsel, in which he referred to purported statements made by Dr. Mueller during the telephone conversation, plaintiff objected and moved for a mistrial, but the motion was denied. After closing arguments in the multi-day trial, the court granted plaintiff's motion to conform the pleadings to the evidence pursuant to Rule 4:9-2. The court denied plaintiff's request to give a jury instruction on informed consent and on alteration of medical records and inaccurate medical records. The jury entered a verdict in favor of defendant, finding plaintiff failed to prove by a preponderance of the evidence that the doctor deviated from accepted standards of medical practice. On March 17, 2009, the court entered an order for no cause, dismissing plaintiff's claims against defendant with prejudice. By order of May 28, 2009, the court denied plaintiff's motion for a new trial. This appeal ensued.

On appeal, plaintiff argues the court committed reversible error, warranting a new trial by: (1) denying plaintiff's in limine motion to exclude inadmissible hearsay statements pertaining to his complex medical diagnosis and medication needs; (2) failing to instruct the jury on informed consent and alteration of medical records; (3) denying plaintiff's motion to admit into evidence the relevant TPA policy of the hospital; and (4) denying plaintiff's mistrial motion during defense counsel's opening statement. Based on our review of the record and applicable law, we reverse and remand for a new trial based on the court's admission of inadmissible and prejudicial hearsay evidence.

I.

The following testimony and evidence was adduced at trial. On March 25, 2005, at about 7:00 p.m., seventy-two-year-old plaintiff experienced right side neurologic deficit symptoms consistent with a stroke. He arrived at the Salem Hospital emergency room by ambulance at approximately 7:55 p.m. Plaintiff became defendant's patient in the emergency room and remained his patient until plaintiff's transfer to Cooper Hospital in Camden at l2:45 a.m. the next day. The paramedics who transported plaintiff had called defendant shortly after arrival at plaintiff's home to advise that the patient had complete paralysis of the right side but en route they advised the doctor that the patient was improving. According to Donna Gardiner, plaintiff's primary care nurse, during her physical examination upon admission, she noted that plaintiff had feeling in his right arm but no movement, and feeling and movement in both of his legs was equal.

Defendant examined plaintiff and ordered lab studies and a CT scan, which all the experts agreed were appropriate and timely ordered. Based on the CT scan results, which were available at about 8:45 p.m., defendant diagnosed plaintiff as suffering from an ischemic stroke, as opposed to a hemorrhagic stroke, because there was no bleeding inside plaintiff's brain.

This case involves what ultimately occurred afterwards and whether the drug TPA should have been administered to plaintiff. Plaintiff contended defendant committed malpractice in deciding not to administer TPA, which resulted in plaintiff's right arm paralysis. Defendant's position at trial was that he consulted with Dr. Mueller by phone shortly after making the diagnosis. Plaintiff's primary evidentiary challenge on appeal involves defendant relating to the jury, over objection, the purported contemporaneous agreement of the neurologist with his decision not to administer TPA.

During trial, the parties stipulated as to the hospital's policy on administration of TPA to stroke patients, with plaintiff's counsel noting their intention just to read the statement of the policy so the document itself would not have to be admitted into evidence. The following statement was read to the jury: "'Policy. The critical care registered professional nurse may administer the prescribed thrombolytic agent Activase' -- and, our agreement is that's what TPA is -- [']upon written order of a neurologist, internist, family practice, or emergency medicine physician with qualified experience in this area or at their discretion.'"

Plaintiff's daughter, Rebecca Plasha, testified that she arrived at the hospital around 8:45 p.m. and asked defendant whether he could administer TPA, which she had learned about on the Discovery Health Channel. Plasha stated that defendant responded that TPA was a "double edged sword" that "can actually hurt" plaintiff by causing bleeding; however, defendant never gave her a good explanation of why her father could not receive the drug. She also indicated she took notes of her discussions with defendant.

Plaintiff's experts, Dr. Ira Mehlman, accepted in the fields of emergency medicine, internal medicine and neurologic disorders, and Dr. Jennifer Lee Yanoschak, accepted in the fields of emergency medical care and treatment and neurology, testified that TPA absolutely should have been administered to plaintiff. In contrast, defense expert Dr. Michael D'Ambrosio, accepted in the fields of emergency room medicine, neurology and vascular neurology, and defendant testified that under the circumstances TPA was not a reasonable medical option to be administered by defendant. The expert medical testimony was undisputed that there was a three hour window from the onset of symptoms to administer TPA where appropriate, and a favorable outcome was more likely if TPA were administered within the first ninety minutes. It was also undisputed that the ninety minute window had already passed by the time defendant was informed of the test results and made the diagnosis of the ischemic stroke. In fact, in his opening, plaintiff's counsel stated the case was all about defendant's unwillingness to give the TPA in the hour from 9:00 p.m. to l0:00 p.m.

Dr. Mehlman testified that, considering the hospital had a policy for treating with TPA, an emergency room doctor such as defendant could make the determination whether to administer the drug but he would be acting within accepted standards of care to contact a neurologist for advice if he were unsure as to whether or not the patient met the criteria for TPA. Dr. Yanoschak agreed that it was appropriate for defendant to call Dr. Mueller and the neurologist at Cooper Hospital to inquire whether or not the use of TPA in this situation was appropriate.

The experts agreed that if a patient's symptoms were rapidly improving from the onset of the stroke to when he presented to the doctor, TPA should not be administered because the risks outweigh the benefits of treatment. Plaintiff's experts testified that the hospital records did not reflect that his condition had improved during his stay at Salem Hospital. According to Dr. Mehlman, plaintiff did not have any significant improvement and his right arm remained paralyzed from 8:00 p.m. until he was transferred to Cooper Hospital. He explained plaintiff had 0/5 muscle strength in his dominant right arm (with 5/5 being full muscle strength), slurring, central facial paralysis and weakness in his right leg. Dr. Yanoschak testified that plaintiff had 4/5 movement in his right leg as reported clinically by defendant, which had worsened to 3/5 by the time he presented at Cooper Hospital, and that plaintiff's paralysis in his right arm never resolved itself after 8:00 p.m.

In contrast, Dr. D'Ambrosio testified that by the time plaintiff got to the hospital, his leg was almost normal and his face and speech were better, which constituted an improvement in the first hour or so, although his arm was still paralyzed. He further explained that if a patient has improved by four or more points on a stroke scale, the patient is considered to be rapidly improving and TPA is not indicated. Based on his review of the records, the defense expert concluded that plaintiff had improved at least four points from onset of his symptoms to his evaluation by defendant. Dr. D'Ambrosio acknowledged that he would have given plaintiff TPA, explaining that "in the neurology community, there's a lot of debate whether or not to give a 72 year old man with rapid[ly] improving symptoms TPA" since some neurologists are more conservative and some, like himself, are more aggressive, but that both are within the standard of care. He noted that the earliest plaintiff could have gotten TPA was around 9:40 p.m., about l50 minutes into the l80 minute window, and was of the opinion it probably would not have made a significant difference in plaintiff's outcome.

Dr. D'Ambrosio also testified that the Salem Hospital policy authorized an emergency room doctor who was experienced using TPA to administer it but the policy did not require such doctor to do so. Furthermore, it was an appropriate procedure for defendant to have consulted with a neurologist. Based on his review of the medical records and litigation file, Dr. D'Ambrosio also testified about the content of Dr. Mueller's conversation with defendant as follows:

And Dr. Mueller said, when he was -- when he was deposed and testified, that he didn't remember specifically the phone call, but, yes, he was on-call that night and yes, he would have expected to get that call, and [based on] that information presented to him that day, he would have said don't give TPA. That was the advice he would have given Dr. Reyes at the time, which is what Dr. Reyes recalls as well.

Defendant testified as to his observations of plaintiff in the emergency room, his physical examination, the test results, and his diagnosis of ischemic stroke. Defendant explained that he did not administer TPA because plaintiff "had an improvement of his neurological deficits," noting, for example, that the paramedics had informed him plaintiff initially had complete right sided paralysis, but by the time he got to the emergency room, he was moving his right lower leg. He also considered plaintiff's past history for a bleeding ulcer as that is a contraindication for administering TPA. Defendant testified that he did not give plaintiff's family the option of electing to have him administer TPA to plaintiff, explaining that was only required under hospital procedure if the patient was a candidate for TPA.

Defendant related that after he found out the CT scan was negative, around 9:00 p.m., he phoned Dr. Greenberg and they agreed that plaintiff should be transferred to a stroke center. He further testified that around 9:00 p.m. he called the emergency room at Christiana Hospital, a stroke center in Delaware, then called Christiana Care to find out who the neurologist on-call was, and at 9:07 p.m. called the neurologist's answering service, as reflected on the Salem Hospital phone records. Defendant testified that Dr. Mueller returned the call within fifteen to twenty minutes. Defendant then repeated verbatim what Dr. Mueller purportedly told him during their conversation as follows:

Q. (Defense counsel): Once you are able to get in touch with [Dr. Mueller], he returned your call. What transpired? Tell the Jury what you told him, what he said to you?

A. "Well, Dr. Mueller, this is Dr. Reyes from Salem Emergency Room. I have a 72 year old gentleman here, probably -- most likely has a -- a stroke and I would like to transfer him to your facility. And -- and, yes, he presented -- initially presented complete paralysis on the right side, based on the fact -- in the history given by the medics and by his wife. And by the time he got to our facility, there was some resolution of his right leg and . . . resolution of his . . . sensation in his extremities. And --

. . . .

A. -- and all his blood work are normal. His [CT] scan was negative. Do you think he is still a candidate for TPA?"

Q. What was Dr. Mueller's recommendation to you?

A. He said, "Since there's an improvement in his neurological deficits," he recommended "not to give TPA."

Defendant further related that Dr. Mueller originally accepted the transfer of plaintiff to Christiana Hospital, but called back about twenty minutes later and said there were no beds available. Defendant then contacted Cooper Hospital around 9:40 p.m. and spoke with a neurologist who he told about plaintiff's situation and "he also did not recommend TPA." Cooper accepted the transfer of plaintiff. Defendant testified that he relied on his contact with Dr. Mueller and Dr. Rubin, the neurologist at Cooper Hospital, in deciding whether or not to give TPA.

Defendant documented his conversations on plaintiff's hospital chart as follows:

"9 p.m., case discussed with Dr. Greenberg. He recommended to transfer the patient to a stroke unit center."

"l0:40 [p.m.], Dr. Mueller, Christiana neurologist, does not recommend thrombolytic since there is recovery of the right leg. May transfer the patient tomorrow."

"11 p.m., spoke with Cooper neurologist at Cooper Hospital. He accepted the transfer. No thrombolytics to be given."

He further testified as to Nurse Gardiner's entry that as of l0:00 p.m., Cooper Hospital had already accepted plaintiff and assigned him a room number. Defendant explained that he often did not have time to contemporaneously document the chart because he was so busy in the emergency room and that the above referenced chart correctly reflected the time the entries were made.

II.

We turn now to plaintiff's contention that he was prejudiced by the trial court's erroneous admission of hearsay evidence pertaining to the substance of statements by Drs. Mueller and Rubin involving a complex medical diagnosis and their purported treatment recommendation. See N.J.R.E. 80l (definition of hearsay), 808 (exclusion of expert opinion contained in medical records relating to complex medical conditions), 403 (exclusion of relevant evidence on grounds of prejudice). The hearsay which plaintiff finds objectionable, and which he sought to bar in his in limine motion, was testified to by defendant and referenced by defendant's expert.

Defendant argued that what the neurologists said would be a hearsay exception under N.J.R.E. 804(b)(l) (testimony of an unavailable declarant in a prior proceeding), 803(c)(6) (business records), 803(c)(4) (statements for purposes of medical treatment or diagnosis) and 803(c)(l) (present sense impression). The court held that defendant could testify "consistent with the hearsay rules regarding his analysis and his thought processes and the procedure that he was using to come to the conclusion as to whether to administer the TPA or not." It did not bar the testimony referencing the purported contemporaneous statements attributed to the non-testifying consulting neurologists, Drs. Mueller and Rubin, that TPA not be administered to plaintiff.

"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 80l(c). Long considered "untrustworthy and unreliable," State v. White, l 58 N.J. 230, 238 (1999), "[h]earsay is not admissible except as provided by these rules or by other law." N.J.R.E. 802. The Supreme Court further elaborated:

The hearsay prohibition "ensure[s] the accuracy of the factfinding process by excluding untrustworthy statements, such as those made without the solemnity of the oath, and not subject to cross-examination . . . or the jury's critical observation of the declarant's demeanor and tone." State v. Engel, 99 N.J. 453, 465 . . . (l985); see McCormick on Evidence 245 (5th ed. l999) (indicating that hearsay statements made out-of-court, not under oath, or not subject to cross-examination may suffer infirmities of perception, memory, and narration if admitted).

[Neno v. Clinton, 167 N.J. 573, 579-80 (2001).]

At trial there was admissible evidence that defendant made phone calls to the consulting neurologists. And the evidence also reflects that defendant acted, as a result of those phone calls, by not administering TPA. Plaintiff acknowledges he would not have objected to that testimony. What was absent, however, was admissible evidence as to what Drs. Mueller and Rubin told defendant, as neither of those doctors testified. Defendant now argues he could testify as to what these out-of-court declarants told him, without running afoul of the hearsay rule, because the content of those communications was not offered to prove the truth of the matter. He equates the situation to Jugan v. Pollen, 253 N.J. Super. 123, 136 (App. Div. l992), in which we held that statements made to the plaintiff by his physicians regarding limitations on his activity were not objectionable as hearsay as "they appear to have been offered to explain [the] plaintiff's actions, and not for the truthfulness of their content." In other words, the statements were offered to prove that the plaintiff "limited his activity based upon advice given to him; [i]t was the fact that these statements were made to him that was evidential, not the truthfulness of the statements' contents." Id. at 137. Defendant submits that the standard of care required defendant to obtain a "go or no go" decision from a neurologist for administration of TPA for ischemic stroke, i.e., an emergency room physician could not unilaterally administer TPA. He contends that to meet the standard of care he consulted with Drs. Mueller and Rubin, both of whom advised defendant not to administer TPA. He urges that this testimony was not admitted for the purpose of saying that Drs. Mueller and Rubin were accurate in their direction not to administer TPA but, rather, the testimony was admitted to prove that defendant met the standard of care by consulting with the neurologists and did not administer TPA based upon their "no go" direction.

We disagree. First of all, none of the experts testified that the standard of care required defendant to consult a neurologist; to the contrary, Dr. D'Ambrosio acknowledged that the Salem Hospital policy authorized an emergency room doctor who was experienced in administering TPA to give it. Everyone agreed, however, that it was appropriate for defendant to consult a neurologist to inquire whether or not the use of TPA in this situation was appropriate. Moreover, defendant testified that he relied on the recommendation of Drs. Mueller and Rubin, explaining, "they're the experts . . . [i]t would be nice to have a -- a specialty in the field to more or less guide me." He further explained that if it were just himself, he would follow the guidelines and that plaintiff would not be a candidate for TPA but if the neurologists determined he was a candidate and said "go and give it," defendant "would give it." Thus, key to the defense was defendant's position that the consulting neurologists told him not to administer TPA. Therefore, the content of those communications was offered to prove the truth of the matter.

We are likewise not persuaded by defendant's argument that even if the consults are deemed inadmissible, the information regarding the consults contained in plaintiff's chart would be admissible under N.J.R.E. 808. N.J.R.E. 808 states:

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

Defendant's notations regarding Drs. Mueller and Rubin's TPA recommendations are far from the "straightforward observation of a treating physician" regarding a patient's medical condition, i.e., no spasm present, which we found admissible in Blanks v. Murphy, 268 N.J. Super. l52, 164 (App. Div. l993). Rather, the expert opinion of the non-testifying declarants contained in the otherwise admissible hospital records involved a complex medical diagnosis, which our courts have consistently held to be inadmissible under this Rule. See Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 808 (2009). The diagnosis and treatment of an ischemic stroke was specifically alleged at trial to be a complex matter by defendant and his expert neurologist, Dr. D'Ambrosio.

There are also significant issues regarding the likelihood of accuracy of the opinions. Defendant could have given inaccurate or self-serving reasons to the neurologists and that is why they told him not to administer TPA to plaintiff. Defendant did not contemporaneously enter in plaintiff's chart that a conversation occurred with the consulting neurologists within the three-hour window and the l0:40 p.m. notation contains the potentially self-serving statement that Dr. Mueller recommended that TPA should not be administered "since there is recovery of the right leg." Moreover, there is the issue of Dr. Mueller not remembering the conversation with defendant. We must also consider the inability of plaintiff to cross-examine the consulting neurologists on a critical issue in the case. Contrary to defendant's assertion, the phone records are insufficient to establish the trustworthiness of the substantive statements. As previously mentioned, defendant properly could have testified he made the calls and, based thereon, formed an opinion not to give TPA. The jury could have drawn the inference of what he was told by the neurologists. The repetitive references, however, by defendant and his expert to the purported contemporaneous recommendations of the consulting neurologists not to administer TPA to plaintiff is what was "clearly capable of producing an unjust result." R. 2:10-2. It improperly bolstered defendant's credibility and medical judgment while hamstringing plaintiff's ability to cross-examine the declarants two experts from stroke centers upon which defendant admittedly relied in determining not to administer TPA to plaintiff. The jury could very well have given great weight to the unchallenged and inadmissible statements, used them as a template by which to decide the case, and made its findings based upon an assumption about the truth of what Drs. Mueller and Rubin told defendant. See Beasley v. Passaic County, 377 N.J. Super. 585, 604 (App. Div. 2005). Accordingly, we are satisfied the challenged hearsay testimony created a reasonable doubt the verdict was tainted, warranting remand and retrial. See Neno, supra, 167 N.J. at 586 (for an improvidently admitted hearsay statement to warrant reversal, the possibility of an unjust verdict must be real and sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached).

We are not persuaded the record supports plaintiff's argument that a key theory of his case was defendant's failure to obtain an informed consent and therefore we discern no error in the judge's decision not to give this instruction. Despite his assertion to the contrary, plaintiff did not argue this theory in his opening and it was not developed as part of his case through expert testimony. Plasha's statement that she mentioned TPA to defendant and requested he give it to her father, which defendant does not dispute, and the fact the jury requested Plasha's notes, declined by the trial judge, is not sufficient to transform the case into an informed consent one. Nor was plaintiff's conclusory request after the jury conference to conform the pleadings to the record under Rule 4:9-2, and the judge's perfunctory acceptance, sufficient to do so. Moreover, plaintiff initially stipulated to a reading of the policy statement from the hospital's TPA manual rather than having the document admitted into evidence, specifically to avoid confusion by the jury. Thus, he cannot now contend the document encompassed an informed consent requirement and assert error in the judge's denial of his request at the end of trial to move the document into evidence.

Based on our review of the record, we are also satisfied there was insufficient evidence at trial to support a charge on alteration of medical records and inaccurate medical records pursuant to N.J.A.C. l3:35-6.5. Neither of plaintiff's experts testified that the delayed documentation in the chart was a deviation from the standard of care. Nor did plaintiff demonstrate that the delayed documentation in the chart was the proximate cause of the injury. The fact the entries bore the time they were written, and not the time the calls were made, did not make them illegal entries under Model Jury Charge (Civil), 5.50H or rise to an independent cause of action upon which the judge should have charged.

 
Reversed and remanded for a new trial.

For ease of reference we refer only to plaintiff, although his wife filed a per quod claim and is a party to this appeal.

Dr. Mueller testified in his deposition that he had no specific recollection of ever talking to defendant.

At the time, Dr. Greenberg was the on-call doctor for plaintiff's family doctor, Dr. Diaz. Dr. Greenberg's conversation with defendant, and the determination to transfer plaintiff to a stroke center, was not an issue in the case. Plaintiff's expressed position was that because there was a contemporaneous entry in his medical chart concerning defendant's 9:00 p.m. call with Dr. Greenberg but no contemporaneous note regarding his 9:00 p.m. telephone conversation with Dr. Mueller, see infra, he did not want to "open the door" by allowing testimony regarding Dr. Greenberg's statements.

We take no position as to whether Model Jury Charge (Civil), 5.50C on informed consent would have been appropriate under the facts of this case.

(continued)

(continued)

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A-5527-08T2

April 26, 2010