MEEGAN LYBOLT v. GUY TAYLOR, M.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3958-04T23958-04T2

MEEGAN LYBOLT and CHRIS A. LYBOLT,

Plaintiffs-Appellants,

v.

GUY TAYLOR, M.D., and ANESTHESIA

ASSOCIATES OF MORRISTOWN, P.A.,

Defendants-Respondents.

__________________________________

 

Argued January 30, 2007 - Decided:

Before Judges Coburn, R.B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-792-01.

Bruce H. Nagel argued the cause for appellants (Nagel, Rice and Mazie, attorneys; Mr. Nagel, on the brief).

Louis A. Ruprecht argued the cause for respondents (Ruprecht, Hart and Weeks, attorneys; Mr. Ruprecht, of counsel and on the brief).

PER CURIAM

In this medical malpractice case, the judge denied plaintiffs' motion for a directed verdict, the jury found that plaintiffs had failed to prove that defendant deviated from the accepted standard of medical care, and the judge denied plaintiffs' motion for a new trial. Plaintiffs appeal, arguing that a directed verdict on liability should have been granted because the main thrust of their expert testimony was not denied by the defense experts; and, alternatively that a new trial should have been granted because surveillance films were improperly admitted into evidence, defense counsel engaged in misconduct, the jury charge was erroneous, and the verdict was against the weight of the evidence. We affirm.

I

Plaintiffs, Meegan and Chris Lybolt, married in May 1998, and on July 2, 1999, went to Morristown Memorial Hospital for the delivery of their child. During labor, Meegan asked for an epidural anesthetic to relieve pain and agreed to having the procedure performed by defendant Guy Taylor, M.D., a board certified anesthesiologist.

The procedure involves insertion of an epidural needle into the epidural space in the spinal canal. Taylor inserted the needle between the third and fourth lumbar spines intending to place its point in the epidural space for delivery of the anesthetic. During this procedure, the epidural space cannot be seen and the proper placement of the needle point is determined by feel; namely, a loss of resistance when the needle reaches the epidural space. Occasionally, and despite the exercise of due care, the point of the needle, after entering the epidural space, will penetrate the dura, a very thin membrane, and enter the subarachnoid space. This is called a "wet tap," indicating that the epidural needle has created a hole in the dura, and when it occurs there is a very high probability that the patient will develop a spinal headache. Taylor immediately determined that the needle had penetrated Meegan's dura when he observed cerebral spinal fluid at the end of the needle.

Although the wet tap was an unfortunate complication, plaintiffs do not contend that it was the result of malpractice or that malpractice occurred during the subsequent introduction of the anesthesia. Rather, they contend that Taylor committed malpractice in his treatment of the hole in the dura.

The treatment for a hole in the dura is known as a blood patch. It involves sealing the hole in the dura by taking blood from the patient and injecting the blood into the epidural space. The blood should form a clot, plugging the hole in the dura and preventing further leakage of spinal fluid into the subarachnoid space.

On July 3, about an hour after the baby was delivered, Taylor injected Meegan's blood through the epidural catheter used for introduction of the epidural anesthetic. Because Meegan's headache continued, Taylor performed a second blood patch at approximately 8:00 a.m. on July 5. Since the catheter had been removed, Taylor began the procedure by inserting a needle filled with a local anesthetic into the L-3/L-4 space. The performance of the blood patch is exactly the same as an epidural except that the patient's blood is injected instead of anesthesia. In both cases, the same loss of resistance technique is used for identifying the epidural space.

Plaintiffs allege that during this second blood patch procedure, Taylor negligently inserted twenty cc's of blood directly into the subarachnoid space. Taylor and the expert witnesses for both sides agreed that would be a deviation from the applicable standard of medical care, but Taylor and his expert witnesses testified that it did not occur.

When Taylor inserted the second blood patch, he was assisted by Patricia Feyrer, a registered nurse. In testimony confirmed by Chris, who was present, Meegan said that during the procedure she suddenly felt "the most horrific pain that you could ever imagine shoot parallel to [her] spine, through [her] neck and out [her] temple," and she began "screaming, oh my God, oh my God. I'm being paralyzed." She said the pain lasted thirty seconds, that she continued to scream throughout that period, and Taylor responded by telling her to keep still.

Taylor and Feyrer testified that no such event occurred, and Feyrer's contemporaneous procedural note stated that Meegan "tolerated [the] procedure well." Feyrer said that had the event occurred as described by the Lybolts, she would have documented it, and Taylor said that he would not have forgotten so extraordinary an event. Meegan admitted that she never questioned Taylor about what had occurred during the procedure, and the records of her subsequent treatment by other physicians and their testimony contain no evidence that she described the incident to any of them in anything approaching her dramatic trial testimony. Indeed, in the one recorded instance in which she referred to having pain during the procedure, her description contradicted her trial testimony. Whether or not the event occurred was clearly a matter of fact for the jury.

Meegan was discharged from the hospital on July 6, 1999. The next day she said that she had back pain in the coccyx region, could not move her legs, and feared that she was paralyzed. She was seen by her obstetrician, who confirmed that her coccyx was not broken, and then by a neurologist, who thought she had sciatica bilaterally but found no evidence of any neurological deficits. That night Meegan developed a fever and went to the emergency room at Morristown Memorial Hospital. An MRI revealed "[c]lumped nerve roots and/or clot within the left lateral subarachnoid space from L-2 through L-5"; a "[s]eparate clot within the most distal thecal sac not in association with nerve roots"; and "[n]o disc herniations or epidural collections." Meegan returned home, but the next day experienced pain, trouble walking, and a fever.

On July 10, 1999, Meegan returned to the hospital. A spinal tap ruled out meningitis, and a second MRI of her lumbar spine revealed "persisting left lateral intradural L2 through L5 nerve root clumping. No epidural abscess." After four days, she was released from the hospital with a discharge diagnosis of meningeal irritation syndrome secondary to dural puncture, fibromyalgia syndrome, recent vaginal delivery, and post lumbar puncture headache. Chris testified that during this hospitalization Taylor admitted to him that he was at fault, but Taylor denied making the statement.

On July 15, 1999, Meegan began a course of treatment with Richard Winne, M.D., an anesthesiologist. He diagnosed her condition as chemical arachnoiditis, secondary to a blood patch. The diagnosis was based, in part, on crediting Meegan's story of the great pain she endured during the second blood patch. He testified that she improved during the period of treatment. On October 26, 1999, he found no objective evidence of a problem with Meegan's spine and suggested that she get psychiatric or psychological counseling.

On November 6, 1999, and in September 2002, further MRIs were performed and read by Roy J. Cobb, M.D., the same physician who had read the earlier MRIs. Dr. Cobb's impressions were that both MRIs showed that the lumbar spine was normal.

On November 16, 2000, Dr. Winne saw Meegan for the last time, noting that she had lower back pain and nerve route irritation down her legs, secondary to arachnoiditis.

Between October 25, 1999, and December 1999, Meegan obtained treatment from George B. Jacobs, M.D., a neurosurgeon. Dr. Jacobs reviewed the July 1999 MRIs, and felt they showed evidence of clumping of the nerve roots at the lumbar area. To confirm his diagnosis, Dr. Jacobs had an electromyogram ("EMG") performed to test the nerves electrically for function, and an MRI with contrast. The test results were normal. However, he believed the November 1999 MRI showed some clumping of the nerve roots in the lumbar area, even though, as he acknowledged, Dr. Cobb found it to be normal.

Dr. Henry Wroblewski, Meegan's current physical rehabilitation physician, testified that Meegan had arachnoiditis, but he offered no opinion about whether the blood was injected directly into the subarachnoid space. He opined that Meegan was permanently disabled and would require treatment for the rest of her life.

Edmond Provder, a life care planner, and Matityahu Marcus, an economist, provided testimony in support of the propositions that Meegan's life care expenses would exceed $825,000 and that her lost wage claim was in excess of $1.3 million.

Dr. Yaakov Beilin, an anesthesiologist, testified that Dr. Taylor deviated from accepted standards of medicine by injecting blood directly into the subarachnoid space. He believed it unlikely that the amount of blood seen on the early MRIs represented seepage through the hole in the dura, and he further stated that Dr. Taylor deviated by failing to cease injection of the blood when Meegan screamed out in pain during the procedure. But he also acknowledged that in rare cases during a properly performed blood patch significant quantities of blood can enter the subarachnoid space.

Dr. Michael Tenner, a neurologist, also testified for plaintiffs. Although he agreed with Dr. Cobb's reading of the July 1999 MRIs, he disagreed with his reading of the November 1999 and September 2002 MRIs. In other words, contrary to Dr. Cobb, he believed the latter MRIs showed arachnoiditis, and he further believed that the amount of blood present showed direct injection rather than migration through a hole in the dura.

Dr. Taylor testifying in his own defense, denied the screaming incident, stated that he agreed with the plaintiffs' definition of the standard of care, and assured the jury that he had performed the blood patch in accordance with the accepted standard of care. His testimony was supported by Dr. Lorne Sheren, M.D., an anesthesiologist; by Dr. Carl Johnson, M.D., a neuroradiologist; and by Dr. Eric Fremed, M.D., a neurologist. Dr. Sheren testified that blood seepage through a hole in the dura can occur without malpractice, sometimes occurring when the hole of the needle is placed partly in the epidural space and partly in the subarachnoid space. When that occurs, spinal fluid may not come back and a test dose may not identify spinal involvement. But when the blood is injected, part of it may go into the subarachnoid space. Johnson and Fremed both testified that the November 1999 and September 2002 MRIs were normal. Dr. Fremed also noted that arachnoiditis is a permanent condition, which if present, would have been apparent on the later MRIs. He also noted that the normal nerve conduction and EMG studies done in November 1999 were entirely inconsistent with arachnoiditis. His physical examination of Meegan convinced him that she had no neurological condition resulting from the procedure at issue.

Video surveillance tapes showed Meegan walking, driving, bending over to talk to children, and lifting her daughter's bicycle into the back of a car, all without any difficulty whatsoever.

II

At oral argument, plaintiffs' counsel stated that one part of his first point, a supposed error in the jury charge on the standard of care, was the primary ground for reversal.

During the charge conference, plaintiffs requested Model Jury Charge (Civil), 5.36A, "Duty and Negligence," (March 2002), which, in pertinent part, advises the jury that "the standard of practice . . . must be furnished by expert testimony . . . ." After the judge gave the jury charge they requested, plaintiffs objected, arguing that the jury should be further told that the standard of care can also be established by the testimony of the defendant physician. Of course, as plaintiffs argue, the standard of care may be established by testimony from the defendant physician. Hutchinson v. Atlantic City Med. Ctr., 314 N.J. Super. 468, 478-81 (App. Div. 1998). But since there was no issue in this case about the standard of care, we perceive no basis for saying the judge committed prejudicial error in refusing plaintiffs' belated request. Nor is there any support for plaintiffs' claim that the charge instructed the jury "to ignore the critical testimony of the defendant on the standard of care," or that giving the charge as initially requested interfered with the ability of the jury to "properly assess all of the proofs supporting [their] case."

Next, plaintiffs argue, without supporting authority, that the judge erred in failing to instruct the jury that evidence regarding the risks of the procedure was irrelevant to the question of whether there had been a deviation. We perceive no error. As submitted to the jury, this was not an informed consent case, and there was no suggestion that Dr. Taylor's disclosure to his patient of the risks of a blood patch had anything to do with whether he was negligent in performing the procedure.

Next, plaintiffs argue, again without supporting authority, that they were prejudiced by aspects of the charge respecting the testimony of one of their damages experts. Although the charge was not erroneous, we need not discuss it because the jury never reached the issue of damages. The same is true, but even more so, with respect to plaintiffs' additional argument under this point heading that the judge erred in failing to tell the jury that Dr. Taylor had malpractice insurance for this claim.

 
Plaintiffs' arguments regarding the use of the surveillance films and the tactics employed by defense counsel are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Plaintiffs' claims that they were improperly denied a directed verdict and a new trial are equally without merit, and on both of these issues we affirm substantially for the reasons expressed by the trial judge, with these additional comments. Plaintiffs' case was severely undercut by the substantial direct and circumstantial evidence that Meegan did not scream during the second blood patch. Furthermore, her expert testimony on deviation was based primarily on the underlying conclusion that she has arachnoiditis. But based on the MRIs of November 1999 and September 2002, the EMG and MRI performed by Dr. Jacobs, and the physical examination by Dr. Fremed, the defense experts concluded that Meegan did not have arachnoiditis. The jury was entitled to credit this defense testimony, which, if true, provided a sound basis for rejecting the deviation claim. Of course, the defense was further buttressed by the surveillance films, which showed plaintiff functioning with ease and without any distress.

Affirmed.

Plaintiffs' brief inappropriately states the alleged admission without indicating Taylor's denial of having made it.

(continued)

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A-3958-04T2

February 28, 2007
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