BETTY J. HUTCHINS v. MARIA C. CARTA-MANGIONE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5806-05T15806-05T1

BETTY J. HUTCHINS, Individually and

as the Administrator, Ad Prosequendum

of the ESTATE OF REGINA T. HUTCHINS,

Deceased,

Plaintiff-Appellant,

v.

MARIA C. CARTA-MANGIONE and

NEUROLOGICAL REGIONAL ASSOCIATES,

Defendants-Respondents.

_____________________________________

 

Argued: September 24, 2007 - Decided:

Before Judges A.A. Rodr guez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Burlington County, L-3100-01.

Joseph L. Messa, Jr., argued the cause for appellant (Messa & Associates, attorneys; Mr. Messa, on the brief).

Donald J. Grasso argued the cause for respondents (Orlovsky, Grasso, Bolger, Mensching & Daley, attorneys; Mr. Grasso, of counsel; Colleen L. Brandt, on the brief).

PER CURIAM

This is a medical malpractice action filed by plaintiff Betty J. Hutchins as the Executrix of the Estate of her daughter, Regina T. Hutchins. Plaintiff seeks compensatory damages for herself and on behalf of Regina's Estate. The matter was tried to a conclusion and the jury returned a verdict in favor of defendants Maria C. Carta-Mangione and Neurological Regional Associates. On appeal, plaintiff challenges an evidence ruling, the sufficiency of a curative instruction to the jury and the judge's refusal to give a Scafidi charge. We affirm.

I.

In 1999 Regina Hutchins was a twenty-year-old junior at George Washington University (GWU). On November 2, 1999, she went to the emergency department at GWU Hospital complaining of acute frontal headache associated with nausea and vomiting. The staff noted on her chart that she had a history of migraine headaches. She was diagnosed with a migraine and instructed to follow up with the Student Health Center at GWU and return to the emergency room if she experienced severe headaches, blurred vision, flashing lights or intractable vomiting.

Two days later Regina went to the Student Health Center to follow up on her emergency room visit. She told the student health staff that she had not had a recent evaluation for migraines, but that the headache she had recently was "more severe" than past headaches. She admitted to an increase in stress and was instructed to follow up with her primary care physician for evaluation or referral to a neurologist.

On November 24, 1999, while home for the Thanksgiving holiday, Regina went to her primary care physician, Dr. Friedman, who referred her to a neurologist. She did not, however, pursue the referral at that time. Instead, Regina returned to college. On December 9, 1999, she returned to the GWU Hospital emergency room complaining of a right-sided "typical throbbing" migraine with nausea and photophobia. The emergency room medical staff gave her Compazine, which eased the nausea. She was diagnosed with a migraine and instructed to follow up with a neurologist in five to seven days.

On December 15, 1999, defendant saw Regina for a neurological evaluation. At that time Regina reported "rather subacute onset of pounding right-sided head pain while walking on the street last month which was associated with nausea but no dizziness, blurriness of vision, or focal, motor or sensory disturbance." She also told defendant about her prior evaluations at the GWU Hospital emergency room and said that she had experienced similar symptoms approximately two to three times a week, which worsened with exertion.

Defendant performed a physical examination on Regina. At that time, Regina was not suffering from a headache or any residual symptoms of a headache. Defendant found that Regina had equal pupils and intact visual fields and fundi. At trial, defendant explained that intact visual fields and fundi were important because "patients who have had any kind of aneurysm or bleed can have pupil size abnormalities and they also can have hemorrhages in the back of their eyes." The doctor administered a motor examination, which was normal and revealed no neck or nuchal rigidity. This was significant because, as the doctor testified, bleeding or hemorrhage in the subarachnoid space would cause irritation of the meninges, which would cause neck stiffness in all but the rarest of cases. Defendant diagnosed Regina with a migraine. She ordered an MRI, EEG and bloodwork; she also prescribed Maxalt to use for symptoms of a migraine.

On December 20, 1999, Regina had an MRI performed, which was normal. If there had been any blood in Regina's brain, defendant testified that the "MRI [would] light[] up like a Christmas tree" because "[y]ou can't miss [blood]." An MRI will show aneurysms that are greater than five millimeters in size, which are generally the type that rupture and bleed.

On December 21, 1999, Regina went to LabCorp for the blood work ordered by defendant. Later that day Regina complained to plaintiff that she had another headache. Regina had not taken her prescribed medication but proceeded to do so at her mother's behest. Plaintiff testified that after Regina took her medicine, she told her mother that she felt better.

Later that evening, between 7:30 p.m. and 8:00 p.m., Regina called her mother at work complaining of another headache. Plaintiff returned home to find Hutchins on the bathroom floor with the water running. Regina had vomited. Plaintiff immediately called 9-1-1 and Hutchins was taken to Rancocas Valley Hospital where a CT scan of her head revealed evidence of a subarachnoid bleed on the right side, "presumably from rupture of an aneurysm." Regina was transferred to Willis Eye Hospital in Philadelphia and admitted to the Neurosurgical Intensive Care Unit where she was declared brain dead. A CT scan of the head was performed which confirmed a diffuse subarachnoid hemorrhage but "no definite aneurysm" was seen. Regina was pronounced dead at 10:40 a.m. on December 22, 1999.

II.

The matter was reached for trial on April 25, 2006, and began with the testimony of plaintiff and one of Regina's classmates. Daniel Rosenbaum, M.D., a neurologist, testified on behalf of plaintiff. He opined that defendant deviated from accepted standards of medical care by not ordering appropriate diagnostic tests to determine the cause of Regina's headaches. Specifically, he opined that defendant should have ordered a lumbar puncture or a Magnetic Resonance Angiogram ("MRA") to determine if Regina had an aneurysm or other malformation in the brain.

He also opined that the two headache episodes that brought Regina to the emergency room were actually sentinel bleeds, or a small rupture of an aneurysm. He opined that, had defendant performed a lumbar puncture and MRA, blood would have been discovered in the subarachnoid space and there would be evidence of an aneurysm. Finally, he opined that had Regina's aneurysm been diagnosed and treated, either medically or surgically, she would have survived.

During cross-examination Dr. Rosenbaum conceded that there was no medical record that confirmed the presence of an aneurysm. He further conceded that his opinion was based on statistics. Moreover, Dr. Rosenbaum agreed that no test had been performed that would support his opinion that the headaches were caused by sentinel bleeds.

Defendant was called as a witness by plaintiff on May 1, 2006. Plaintiff objected to the defense attorney's use of two pieces of expert literature during his questioning of defendant. Defense counsel sought to examine his client with respect to the substance of a chapter in a medical text written by Steven Silberstein, M.D., and an International Headache Society (IHS) journal article. Plaintiff's counsel argued that he had not been given enough information sufficiently in advance of trial to locate the Silberstein text. The judge overruled the objection on the ground that plaintiff's counsel did not adequately pursue additional information from defendant to permit him to locate the text.

The IHS article discussed classifications of migraine headaches, diagnostic criteria and testing. Plaintiff objected that the article was published in 2003, well after Regina's death, and that it had not been previously supplied to him. The judge required the defense attorney to establish that the standards had not changed since the time of Regina's care and overruled the objection on the ground that plaintiff's counsel had questioned the doctor on direct regarding the IHS standards.

On May 3, 2006, the second day of defendant's testimony, during cross-examination, plaintiff's counsel questioned her regarding her deposition testimony and a discrepancy in her records:

Q On line 17, page 46, ma'am. Question, "But is it fair to assume that given that you wrote acute onset in the note, that Regina described to you, I'm sure she didn't use the word acute but she described a sudden onset?"

And your answer was what?

A My answer was, "Well, the definitive document in my report so you know, you have to understand if I was, if I were writing here when I'm talking to you, my pen, my hand goes while I'm trying to look at you. So if I write subacute in the report and -- I think that's what I was convinced that the patient had."

Yeah, but I was asked to speculate on what, why I wrote acute or subacute. And your expert said it doesn't matter yesterday so why are you --

Q Next question, ma'am. Next question was, "Okay, so where it says acute onset, that's just an error then, that's a clerical error?"

What was your answer?

A I said, "Well, that is my pen going."

That was my best speculation at the time I was asked to make a hypothesis of why I wrote one instead of the other, from the first lawyer who dropped this case, so-.

Plaintiff's counsel objected, moved to strike and requested a curative instruction. The trial court immediately instructed the jury, "The reference to the prior lawyer, the jury is not to give any attention to that." At that point, plaintiff's counsel asked for a sidebar and stated that the testimony was completely untrue and required "a little more," to cure the prejudicial effect. However, at sidebar the trial court stated that

Do you think that to go into such great detail is only going to make it considerably worse? It just sort of fell out of her mouth. But I'm just concerned that, I told them to disregard that. To get some explanation --"

At that point, plaintiff's counsel stated that he understood the trial court's apprehension in highlighting the statement further and requested instead that defendant be admonished. The court did so and defense counsel further advised the court that he would speak to defendant during the break.

Defendant called John Greenberg, M.D., a neurologist, who testified that defendant did not deviate from accepted standards of care. Dr. Greenberg opined that the emergency-room physicians were in the best position to make a determination as to whether Regina had a migraine or subarachnoid hemorrhage. He further testified that emergency-room doctors are able to call neurologists, perform lumbar punctures and order appropriate tests to determine whether the patient has a migraine. Dr. Greenberg testified that it was significant that Regina responded to Imitrex because a patient with a hemorrhage would not respond to that type of medication. Dr. Greenberg concluded that the emergency-room doctors did not believe that Regina suffered from anything more than a migraine headache.

Dr. Greenberg opined that it was "highly improbable" that Regina had a bleed from an aneurysm. Patients with subarachnoid hemorrhages typically present with stiffness in the neck, hemorrhages around the optic nerve sheath, clinical signs attributable to clot formation and vasospasm forming around the aneurysm which would produce a stroke syndrome at the time of the bleed. These symptoms were not present during Regina's examinations and, therefore, there was no indication of an aneurysm that bled prior to defendant's evaluation or the fatal event.

Dr. Greenberg also opined that if there had been a bleed prior to defendant's evaluation, the MRI would have shown a clot adjacent to the aneurysm, vasospasm as a stroke from the occlusion of the vessels around the aneurysm, the actual aneurysm and arteriovenous malformation. Because there were no signs that would indicate a subarachnoid hemorrhage, Dr. Greenberg concluded that Regina only had symptoms of a migraine headache without aura.

III.

After all the evidence was presented and the parties had rested, plaintiff requested a Scafidi charge. Defendant objected to such a charge because plaintiff's expert opined that, had defendant diagnosed the aneurysm, Regina would have made a full recovery. Furthermore, defendant argued that she did not present any proof of a specific percentage of risk that Regina would not survive the aneurysm even if it had been diagnosed by defendant or that Regina would have survived with disabilities. Defendant further argued that she did not attempt to reduce the amount of damages that could be awarded for Regina's pain and suffering or for the wrongful death damages. As a consequence, she argued that it was "a straight[-]forward proximate[-]cause case."

Plaintiff argued that the aneurysm was a preexisting medical condition, which the jury would have to find existed before Regina saw defendant in order to conclude that defendant was negligent. She argued that if the jury made this determination, then defendant would be "responsible for every bit of harm that results from her failure to intervene irrespective of whether or not they believe some bad outcome could have occurred anyway from an aneurysm." Plaintiff further argued that what had to be communicated to the jury, whether it was a Scafidi charge or a proximate cause charge, was that defendant was responsible for any harm that she failed to prevent if it was a preventable harm.

In this failure-to-diagnose case, the trial judge concluded that a proximate-cause charge was appropriate and not a Scafidi charge. The judge gave the following proximate-cause charge to the jury:

If you find that the defendant was negligent, you must find that the defendant's negligence was a proximate cause of the injury and death sustained by the decedent, Regina Hutchins. It is the duty of the plaintiff, Betty Hutchins, to establish by a preponderance of the evidence that the negligence of the defendant was a proximate cause of the plaintiff's death, allegedly to have resulted from defendant's negligence.

The basic question for you to resolve is whether decedent, Regina Hutchins's injury and death are so connected with the negligent action or inactions of the defendant that you decide it is reasonable in accordance with the instructions I have given you and continue to give you that the defendant should be held responsible for the death - for the death of Regina Hutchins.

By proximate cause, I refer to the cause that in a natural and continuous sequence produces the resulting death, and without, the resulting death would not have occurred. A person who is negligent is held responsible for any injury, loss or harm that results in the ordinary course of events from his or her negligence. This means that you must first find that the resulting death of the decedent, Regina Hutchins, would not have occurred but for the negligent conduct of the defendant.

Secondly, you must find that the defendant's negligent conduct was a substantial factor in bringing about the resulting death. By substantial, I mean that the cause was not remote, trivial or inconsequential. If you find that the defendant's negligence was a cause of death of Regina Hutchins, and that such negligence was a substantial factor in the death of Regina Hutchins, then you should find that the defendants were a proximate cause of the death of Regina Hutchins.

Defendant renewed her objection to the proximate-cause charge.

The jury returned its verdict on May 8, 2006. It determined in its answer to the first question on the verdict sheet that defendant did not deviate from accepted standards of medical care in her evaluation and treatment of Regina. Thus, the jury did not answer the second question, which was the proximate-cause question. A final judgment dismissing plain-tiff's complaint was entered on May 16, 2006. Plaintiff then filed a motion for a new trial, which was denied on June 15, 2006.

In his written decision, the trial judge explained that, because the jury concluded defendant did not deviate from the accepted standard of care, the Scafidi issue was "not determinative." He pointed out that there was no evidence that an aneurysm existed at the time Regina saw defendant. He found that she in fact "had no symptoms at all." In addition, all the test results "came back normal." Thus, he concluded that with no established pre-existing condition a Scafidi charge was not warranted. As to the comment made by defendant, the trial judge concluded "that this comment does not warrant a mistrial because its alleged prejudicial potential was buffered by the Court's curative instruction." Finally, he determined that the evidence issues lacked merit. This appeal followed.

IV.

Plaintiff contends on appeal that the trial judge erred (1) in permitting the use of the above-described medical literature, (2) in failing to give an adequate curative instruction regarding defendant's remark about prior counsel and (3) in failing to give a Scafidi charge to the jury.

The scope of our review of trial errors is limited. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2 (emphasis added). We grant substantial deference to discretionary rulings and review those rulings only for a mistaken exercise of judicial discretion. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Verdicchio v. Ricca, 179 N.J. 1, 34 (2004).

Plaintiff contends that the trial judge erred in failing to bar the use of the medical literature pursuant to the requirements of R. 4:17-7. That rule requires amendments to interrogatory answers to be served twenty days prior to trial and requires a showing of due diligence with respect to untimely answers. Ibid. Here, plaintiff contends that defendant failed to provide adequate citations to the medical literature and plaintiff was, thus, not prepared to rebut the information contained in that literature.

A decision to relax the Rules of Court pursuant to R. 1:1-2 is committed to the sound discretion of the trial judge. Zaccardi v. Becker, 88 N.J. 245, 251 (1982) ("The court has discretion to relax [a rule] pursuant to R. 1:1-2 to prevent injustice."); Schweizer v. MacPhee, 130 N.J. Super. 123, 125 (App. Div. 1974). This discretion applies to the requirements of R. 4:17-7. Androvich v. Lassach, 156 N.J. Super. 499, 503 (App. Div. 1978); Falcone v. N.J. Bell Tel. Co., 98 N.J. Super. 138, 145 (App. Div. 1967), certif. denied, 51 N.J. 190 (1968); Branch v. Emery Transp. Co., 53 N.J. Super. 367, 374-75 (App. Div. 1958).

Germane to plaintiff's charge of a mistaken exercise of discretion is the fact that plaintiff and defendant both supplemented their answers to interrogatories on March 29, 2006. Plaintiff identified twenty-five medical articles and texts, some of which were published between 2002 and 2005. On April 4, 2006, plaintiff asked defendant for complete reference cites for three of the articles and texts identified by defendant without objecting to the timeliness of defendant's amendment to her interrogatory answers. However, plaintiff did not ask for a more specific cite to the Silberstein textbook. The decision to relax the time limits for amendments to interrogatory answers was clearly not a mistaken exercise of discretion in light of the fact that both parties exchanged amendments on the same day.

We also note that plaintiff suffered no harm from the Silberstein text because a review of the record reveals that defendant never used it in examining any witness. Indeed, plaintiff herself used the Silberstein text in redirect examination of defendant and in cross-examination of Dr. Greenberg.

With regard to the IHS material, plaintiff opened the door to this medical literature by questioning defendant extensively about the IHS criteria during her direct examination by plaintiff's counsel, who had also addressed this information when he deposed defendant prior to trial. Thus, there was no surprise to plaintiff from the information in the IHS literature. Although the literature was published in 2003, the sources it cited had all been published between 1988 and 2000. As a consequence, it reflected the state of medical knowledge available at the time of Regina's examination by defendant. We are more than satisfied that there was no mistaken exercise of discretion in permitting defendant's counsel to use the IHS criteria and no prejudice to plaintiff when he did so.

Without a doubt defendant's remark about the first attorney dropping plaintiff's case was improper and demanded a curative instruction. Where a jury has heard a statement from counsel or a witness that is irrelevant, inadmissible or otherwise improper and has the capacity for prejudice, the court's curative instruction must be prompt and sufficient to overcome the potential prejudice. Pressler, Current N.J. Court Rules, comment 9.2 on R. 1:8-7 (2007).

Here the judge gave an immediate curative instruction after the offensive testimony. Plaintiff agreed that any more specific instruction than the one given by the judge would unduly emphasize the comment in the minds of the jury. Plaintiff then abandoned her request for a more specific curative instruction and instead requested that defendant be admonished. The judge did so.

"It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Because plaintiff abandoned her request for a more specific curative instruction, we will not entertain this issue on appeal.

With respect to the proximate-cause instruction to the jury, we need not consider whether it was in error. The jury never reached the issue. The first question on the verdict sheet concerned negligence and the second question addressed the issue of proximate cause. When the jury answered the first question "no," any error in the proximate-cause charge became moot. Tindal v. Smith, 299 N.J. Super. 123, 137 (App. Div.), certif. denied, 150 N.J. 28 (1997) ("We cannot conclude that 'the issues of negligence and causation issues [were] so interrelated' that a new trial on liability is warranted because of the erroneous instructions on proximate cause." (quoting Ahn v. Kim, 145 N.J. 423, 434 (1996))).

Affirmed.

The trial judge dismissed all claims against defendant Neurological Regional Associates at the end of the trial. Plaintiff has not appealed from this ruling. As a consequence, any reference to "defendant" in this opinion refers to Dr. Carta-Mangione alone.

Scafidi v. Seiler, 119 N.J. 93 (1990).

(continued)

(continued)

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A-5806-05T1

November 16, 2007