ESTATE OF RENE TEMPLIER v. AMBULATORY SURGICAL CENTER UNION COUNTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4052-09T1

ESTATE OF RENE TEMPLIER,

Deceased, by and through

MARIE N. TEMPLIER, General

Administratrix and

Administratrix ad Prosequendum;

and MARIE N. TEMPLIER, individually

and per quod,

Plaintiffs-Appellants,

v.

AMBULATORY SURGICAL CENTER,

UNION COUNTY; ADVANCED LAPAROSCOPIC

SURGERY OF UNION COUNTY; ELIZABETH

SURGICAL GROUP, LLC; and RONALD D.

PALLANT, M.D.,

Defendants,

and

STEFAN TRNOVSKI, M.D.,

Defendant-Respondent.

-

March 30, 2011

Submitted March 21, 2011 Decided

Before Judges Grall, C.L. Miniman, and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Docket No. L-2815-07.

Lombardi & Lombardi, P.A., attorneys for appellants (Paul R. Garelick, on the brief).

Lenox, Socey, Formidoni, Brown, Giordano, Cooley & Casey, LLC, attorneys for respondent (Jeremy P. Cooley, on the brief).

PER CURIAM

Plaintiffs the estate of Rene Templier and Marie N. Templier1 appeal an order involuntarily dismissing their medical-malpractice case against defendant Dr. Stefan Trnovski at the close of their proofs at trial. Because the evidence adduced during plaintiffs' case failed to establish a prima facie case of causation, we affirm.

On July 25, 2006, Rene Templier had outpatient surgery at the Ambulatory Surgical Center of Union County to have a fistula installed in his right arm. Templier, who was fifty-eight, had end-stage renal disease and the fistula would allow him to receive dialysis permanently. In addition to his renal disease, Templier suffered from hypertension and diabetes.

On Templier's arrival at the surgery center, his blood pressure was 188/97. Trnovski, the anesthesiologist for the procedure, placed Templier under "monitored anesthesia care," a mild form of sedation where Templier was awake and talkative during the procedure. The procedure took approximately one hour and fifteen minutes, during which Templier's blood pressure was elevated. His systolic pressure ranged from 170 to 220, and his diastolic pressure was over 100 for almost the entire procedure.

The surgery concluded at 1:15 p.m., after which Templier was released to the recovery room, where he remained until 3:40 p.m. When he arrived in the recovery room, he was given anti-hypertensive medications to control his blood pressure; he was given a dose of labetalol at 1:30 p.m. and the medications he would have taken at home pill forms of labetalol and enalpril at 2:15 p.m. While in the recovery room, Templier complained of a headache on and off and had significant vomiting. His vomiting was persistent, though the headache resolved itself at 2:50 p.m. Vomiting is a common side-effect of anesthesia, but vomiting and a headache combined following monitored anesthesia care is rare.

During his stay in the recovery room, Templier's blood pressure persistently increased. At 3:15 p.m., for instance, his blood pressure was 230/99. However, the anti-hypertensive drugs lowered Templier's blood pressure at discharge to the same as it was at admission. The parties agree that the applicable standard of care did not require Trnovski to bring Templier's blood pressure to lower than it was at admission. Indeed, there could have been complications had Trnovski lowered Templier's blood pressure more.

Upon discharge, Templier had no vomiting, no headache, no neurological deficits, and told a nurse that he "felt good." Nonetheless, aware of Templier's fluctuating blood pressure, Trnovski recommended that Templier visit his primary care physician for monitoring after discharge. Trnvoski believed that this was best because Templier's primary care physician knew Templier's medical history and could admit him directly to the hospital if his condition worsened.

After being discharged from the surgery center, Templier did not go to his primary care physician; he went home. When he arrived, he was not feeling well. He began vomiting again and alternately felt hot and cold. Templier told his grandchildren, who were present at the house, that he had to use the bathroom and they helped him up. But rather than go to the bathroom, Templier walked into the kitchen and urinated on himself. After this, Templier fell, hit his head and lost consciousness. An ambulance was called and the paramedics recorded Templier's blood pressure at 270/122 and 270/130. A CT scan performed at the hospital revealed a subdural hematoma. Further tests were conducted, and Templier was declared brain dead. He was pronounced dead on July 26 at 3:00 p.m.

Templier's estate filed a complaint alleging medical malpractice by his surgeon, the surgery center, and Trnovski. Over the course of pre-trial proceedings, all defendants except Trnvoski were voluntarily dismissed and Trnovski proceeded to trial alone.

At trial, Templier's expert anesthesiologist, Dr. Jonathan Abrams, testified that Trnovski deviated from the applicable standard of care by referring Templier to his primary care physician. Trnovski should have instead held Templier longer at the surgery center for observation or transferred him to the emergency room for evaluation. Abrams said that in light of Templier's medical history and the abnormalities observed in the recovery room, he should have been held longer for observation in the recovery room. Alternatively, transfer to the emergency room would have allowed close monitoring for a period of time to determine whether he needed to be admitted or evaluated by a specialist. The emergency room was preferable to monitoring by a primary care physician because less frequent monitoring would be available at a primary care doctor's office and there would be less immediate access to any needed specialists. The only difference in monitoring in the hospital and at the doctor's office that Abrams noted was the availability of an instrument that monitors blood pressure automatically and without need for a person to take the blood pressure. He did not testify about how monitoring would be conducted, like restrictions on Templier getting out of bed or walking. Trnovski admits and we must assume for purposes of this appeal that these failures were in fact a deviation from the applicable standard of care.

A neurologist, Dr. Anca Bereanu, testified regarding Templier's cause of death. Her opinion was that Templier died of the hematoma and that the hematoma was caused by a series of events starting with Templier's high blood pressure. In particular, Templier's elevated blood pressure led to his mental confusion and disorientation and caused him to fall. His fall, in turn, led to trauma to his skull, which caused the hematoma that led to his death. Bereanu, however, did not testify as she had apparently opined in her expert report that Trnovski's lack of monitoring was a substantial cause of Templier's death.

Following the close of plaintiffs' proofs, Trnovski moved for involuntary dismissal under Rule 4:37-2(b). The trial judge granted the motion, finding that the evidence did not establish a prima facie case for the requisite causal link between Trnovski's deviations from the applicable standard of care and Templier's death.2

On appeal, Templier renews his argument that Bereanu's testimony, combined with Abrams's, establishes the necessary causal link. We disagree. In reviewing a trial court's decision under Rule 4:37-2(b) to involuntarily dismiss a plaintiff's case at the close of plaintiff's proofs, we use the same standard as the trial court. See Dolson v. Anastasia, 55 N.J. 2, 5 (1969). Involuntary dismissal "only should be granted where no rational juror could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008).

To establish a prima facie case of medical malpractice, the plaintiff must show "(1) the applicable standard of care, (2) a deviation from that standard of care, and (3) that the deviation proximately caused the injury." Gonzales v. Silver, 407 N.J. Super. 576, 586 (App. Div. 2009). Trnovski concedes for purposes of the appeal that Abrams's testimony established both the applicable standard of care and Trnovski's deviation from it. The question is whether Abrams and Bereanu's testimony were sufficient to establish a prima facie case of proximate cause between Trnovski's deviation and Templier's death.

Where, as here, a plaintiff alleges that a doctor's malpractice has combined with the plaintiff's preexisting condition to cause the ultimate harm to the plaintiff, the plaintiff need not prove "but for" causation. Id. at 587. Instead, the plaintiff only needs to show that the defendant-doctor's deviation from the applicable standard of care was a "substantial factor" contributing to his injuries. See Scafidi v. Seiler, 119 N.J. 93, 109 (1990).

To prove substantial-factor causation, the plaintiff must satisfy a two-part test. First, the plaintiff must show that the doctor's deviation increased the risk of harm to him from the preexistent condition. Ibid. Second, he must show that "the deviation, in the context of the preexistent condition, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause." Ibid. Put another way, the two-part test requires plaintiff to prove that "defendant's negligence caused an increased risk of harm to plaintiff and that the increased risk was a substantial factor in causing the ultimate harm." Anderson v. Picciotti, 144 N.J. 195, 210 (1996).

Here, Templier's hypertension was a preexisting condition that was allegedly exacerbated by Trnovski's negligence. In terms of the two-part test, the question is whether Trnovski's deviations from the accepted standard of care not holding Templier for monitoring at the surgical center or not sending him to the emergency room for evaluation increased the risk of harm to Templier above that attributable to his hypertension alone, and whether that increased risk of harm was a substantial factor in his fall and death.

Templier argues that Abrams's testimony, when "linked up" with Bereanu's, satisfies the causal link. He asserts that because Abrams testified that Templier was improperly discharged and Bereanu testified that the high blood pressure, disorientation and fall occurred after that discharge, a jury could find causation. But this is faulty logic; that the injury happened after the improper discharge does not mean that the improper discharge caused the injury.

Bereanu's testimony, at most, established a temporal link between the discharge and the hematoma. But Bereanu did not testify that Trnovski's failure to monitor increased the risk high blood pressure posed to Templier; that the failure to monitor was a substantial cause of Templier's death; or that if Templier had been properly monitored, he would have been less likely to suffer the disorientation and take the fall that, in her opinion, was the cause of his death.

Testimony along those lines was essential given that Abrams admitted that Trnovski was not obligated to bring Templier's blood pressure any lower than it was at admission to the surgical center. There was nothing about Templier's high blood pressure at the time of his fall in and of itself that was suggestive of a causal link between Trnovski's failure to monitor that condition and Templier's injuries. Without expert testimony to explain how the failure to monitor as opposed to Templier's preexisting high blood pressure alone contributed to his fall and death, the jurors would be left to improperly speculate on the link without any basis in their own experience to justify their conclusions. See State v. Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000) (explaining when expert testimony is required). As such, the trial court did not err in finding that Templier did not present a prima facie case as to causation and in involuntarily dismissing Templier's suit.

Affirmed.

1 Because Marie Templier's individual claims are per quod, we will refer to plaintiffs collectively as "Templier."

2 Templier also requested permission to reopen his proofs so he could solicit Bereanu's opinion that Trnovski's deviations were a substantial cause of Templier's death. The trial judge denied the request, and Templier does not appeal that decision.