RICHARD CONIGLIO v. GENNARO J. MARINO D.O.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6060-11T3

RICHARD CONIGLIO, Executor of

the Estate of Laura A. Coniglio,

deceased, and RICHARD CONIGLIO,

individually,

Plaintiffs-Appellants,

v.

GENNARO J. MARINO, D.O.,

Defendant-Respondent,

and

RAJNIK W. RAAB, M.D., NORTH JERSEY

SPINE GROUP, STEPHANIE FISCHER, R.N.,

PAULA BROSSMAN, R.N., NIGHTHAWK

RADIOLOGY SERVICES, L.L.C., and

CHILTON MEMORIAL HOSPITAL,

Defendants.

_____________________________________

July 22, 2014

 

Argued April 28, 2014 Decided

 

Before Judges Ashrafi, St. John, and Manahan.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic county, Docket No.

L-3947-09.

 

Bruce H. Nagel argued the cause for appellants (Nagel Rice, L.L.P., attorneys; Mr. Nagel, Barry M. Packin, and Alex J. Buckley, on the brief).

Heather M. LaBombardi argued the cause for respondent (Giblin & Combs, L.L.C., attorneys; Ms. LaBombardi, on the brief).

PER CURIAM

In this medical malpractice case, plaintiff Richard Coniglio appeals from the jury's verdict in favor of the lone defendant who stood trial among several defendant doctors, nurses, and medical providers. Plaintiff alleged that defendant Gennaro J. Marino, D.O., an emergency room doctor, was negligent in the treatment of plaintiff's wife, resulting in her death from brain injury after she fell and struck her head.

Five expert physicians testified at the trial, with specialties in emergency medicine, neurology, and neurosurgery. Plaintiff's allegation of medical malpractice was that Dr. Marino did not act quickly and aggressively enough to treat Laura Coniglio's brain injury. The defense was that Marino was not negligent; that primary responsibility for the patient's care was in the hands of her treating neurosurgeon, defendant Rajnik W. Raab, M.D., with whom Marino communicated during the several hours that he was treating Laura Coniglio in the emergency room; and that the patient had a history of such severe and complex medical conditions that her death could not be prevented after the accident.

Laura Coniglio's medical history included a stroke, an unknown number of "mini-strokes," brain surgery within the prior three months, earlier surgeries on other body organs, and ten different prescription medications at the time of her last injury and illness. The jury concluded that Marino's treatment of the patient did not increase the risk of harm from her fatal injury and did not cause her death.

Plaintiff raises a number of issues on appeal. Most notably, he contends the trial court erred in permitting the jury to consider the alleged negligence of Dr. Raab, who had settled with plaintiff before trial. We find no reversible error in the trial. We affirm the judgment.

I.

Plaintiff filed his medical malpractice complaint in September 2009, individually and as executor of the estate of his deceased wife. He alleged malpractice by defendants Marino, Raab, North Jersey Spine Group, Stephanie Fischer, R.N., Paula Brossman, R.N., Nighthawk Radiology Services, L.L.C., and Chilton Memorial Hospital. In October 2009, Marino served an answer with separate defenses and a demand for contribution and indemnification from the co-defendants. His answer also put plaintiff on notice, in accordance with Young v. Latta, 123 N.J. 584, 597 (1991), that Marino would allege at trial that if any medical malpractice were found to have occurred, it was others and not he who were at fault.

In 2011, several defendants were dismissed from the case by summary judgment. Sometime before trial, plaintiff settled with Raab, the neurosurgeon. Plaintiff also settled with Chilton Memorial Hospital and its employee nurse. At the outset of trial in April 2012, plaintiff moved in limine to bar the remaining defendant, Marino, from arguing that settling defendant Raab had been negligent. The court ruled that Marino's experts could testify that Raab was primarily responsible for the patient's care, but not that Raab was negligent, because the defense expert reports had not alleged negligence on the part of any co-defendants.

At the time the case was introduced to the jury, the judge informed the jury that Dr. Raab was a defendant who had settled with plaintiff and therefore was not represented by an attorney at the trial. During the trial, the court denied plaintiff's motion to exclude Raab as a potentially at-fault party on the jury verdict sheet. Also during the trial, the court denied several motions by plaintiff for a mistrial and motions by each side for a favorable judgment or elimination of certain issues from jury deliberations. On May 16, 2012, the jury reached a unanimous verdict, finding that although Marino had deviated from accepted standards of medical practice, his deviation did not increase the risk of harm posed by the decedent's preexisting medical conditions and accidental injury, and so, it was not a proximate cause of Laura Coniglio's condition and death. On May 25, 2012, the court entered judgment in favor of Marino, and it subsequently denied plaintiff's motion for judgment notwithstanding the verdict or for a new trial.

II.

Because the issues raised on appeal are tied closely to the facts of the case, we recite the trial evidence at length. We begin with the evidence that was in the hospital charts and provided through the testimony of the parties, plaintiff Richard Coniglio and defendant Dr. Marino.

A.

Laura1 was forty-five years old and had three children. She was a registered nurse, although at the time before her death she was working in a different capacity as an administrator of an organization for special needs children.

Her medical history included a stroke and pulmonary embolism (obstruction of a blood vessel in a lung) in 2007, and recurring temporary ischemic attacks (temporary lack of blood supply to the brain), sometimes called "mini-strokes." She had hypercoagulability, a disorder that caused her blood to clot too quickly, for which she took an anti-coagulant medication named Lovenox. She also had episodes of tachycardia, a heart rate that exceeds the normal range. Between February and May 2008, she went to the hospital several times for chest pain, shortness of breath, and palpitations.

In August 2008, Laura went to Chilton Memorial's emergency room complaining of pain in her head. In October 2008, she returned to Chilton Memorial complaining of headaches, and she saw Dr. Raab, who diagnosed hydrocephalus, the build-up of fluid in the brain. That month, Raab inserted a ventriculo-peritoneal (VP) shunt into Laura's brain with a tube leading into her abdominal region to drain excess fluid and relieve pressure in her brain. Laura had follow-up surgery on November 17, 2008, to adjust the drainage tube.

On December 2, 2008, Laura complained to Raab of falling, dizziness, and slurred speech. Three days later, she lost her balance and fell backwards while sitting in a chair, striking her head. She was taken by ambulance to Chilton Memorial's emergency room, where Marino examined her. She denied a loss of consciousness, but complained of chronic nausea and severe pain. Marino took her medical history and learned that Raab was treating Laura for "normal pressure hydrocephalus," which Marino described as "a fluid collection from over production of the cerebral spinal fluid in the brain." He also learned that Laura's history included a stroke, a pulmonary embolism, and a blood clotting disorder, and that Raab had inserted the VP shunt in October 2008.

Marino ordered a CT scan of the head and a cervical spine x-ray of Laura's neck. The CT scan revealed "no shift, no hemorrhage and no fracture." The radiologist reported, however, that the CT scan of the head showed some cerebral spinal fluid attenuation which was not seen on a previous study. Marino consulted with Raab, who told him that Laura could be discharged, that he would follow-up with her in his office, and that Marino should tell Laura to call him if she had any further issues or concerns.

Laura returned to Chilton Memorial five days later, on December 7, 2008, because her symptoms persisted. She remained at the hospital until December 12, 2008. During her admission, she was seen by Raab, who thought her vertigo, slurred speech, and ataxia (lack of voluntary coordination of muscle movements) were caused by a vertebral basilar insufficiency (insufficient fluid in the brainstem), which Laura had been taking Lovenox to avoid. Raab ordered a CT scan on December 7, 2008, but did not reach any conclusions as to the cause of Laura's condition.

Nine days after her discharge, on December 21, 2008, Laura fell down steps at home in the middle of the night and struck her head. The local first aid squad transported her to Chilton Memorial's emergency room, where she was triaged by Nurse Brossman at 2:16 a.m. The triage note listed the chief complaint as a severe headache, with the level of pain rated ten on a ten-point scale. Brossman described the patient as awake, alert, and oriented to person, time, and place, with pupils that were equal and reactive to light and accommodation. The triage note also indicated that Laura had a complex medical history, including a stroke in 2007, an arterial venous malformation of her kidney, a shunt, removal of her appendix, and surgery on her ovaries and part of her kidney. At the time of her admission, Laura was taking Lovenox, Protonix (for gastric reflux), Spiriva (for respiratory problems), Lexapro (for depression), Flovent (for respiratory problems), Toprol-XL (for heart conditions, high blood pressure, or migraine prevention), Fosamax (for osteoporosis), Klonopin (for seizures), Enablex (for urinary issues), Topamax (for seizures), and a calcium supplement.

Marino examined Laura at 2:30 a.m. His notes indicate that the patient was weak and lethargic with minimal recall of events. He noted that she had hypercoagulability and was taking Lovenox, that she had a VP shunt for hydrocephalus, and that she had a history of a pulmonary embolus. Marino's physical examination revealed that Laura was alert and oriented to person, time, and place. She had good insight, her memory was intact, and both pupils were reactive to light and accommodation. She had normal motor and sensory examinations and deep tendon reflexes, and normal hand grips.

At 2:32 a.m., Marino ordered a "STAT" CT scan of the head, a cervical spine x-ray, laboratory studies, a complete chemistry panel, and PT and PTT studies (blood plasma testing) to make sure Laura's coagulation was intact. A "STAT" order was Chilton Memorial's highest priority, and meant the patient moved to the front of the line for that test. But Marino also testified that all orders out of the emergency room for imaging studies were labeled "STAT," and that he would have had to call the radiologist to expedite the reading, which he did not do. The CT scan order was sent to Nighthawk Radiology, an offsite radiology interpretation center, which would then fax the results and call the emergency room physician if there was a positive finding.

The CT scan was done at 3:11 a.m., and Laura returned to the emergency room at 3:15. At 3:20, she was found walking in the hall looking confused. Nurse Brossman performed a neuro focus assessment and found Laura disoriented as to time and place, with some slurred speech, and unable to perform the same hand grips she had performed earlier. Brossman advised Marino of the change in status, and at 3:30, he reassessed the patient. After reorienting Laura, Marino repeated his earlier questions and found her responses appropriate, and her speech normal with no slurring. He also performed a complete neurological examination, which was equivalent to her baseline on admission.

Marino received the results of the CT scan at 3:49 a.m., one hour and seventeen minutes after he ordered the study. The findings showed a subarachnoid hemorrhage in the left frontal area (bleeding inside the skull), an acute right frontal subdural hematoma ("a collection of blood beneath the dural[2] space of the brain") measuring three millimeters (one eighth of an inch) in thickness, a cerebral edema (swelling of the brain caused by excess accumulation of fluid), and a five-millimeter midline shift of the brain to the left. Marino knew that the findings were potentially life threatening, and that if the edema persisted, a process called downward herniation (increased pressure) would push on an area of the brain that would cause the heart and lungs to stop.

At 4:00 a.m., Marino called Raab, the on-call neurosurgeon. He told Raab the patient's name, medical history, and list of medications including Lovenox, and the results of four neurological assessments from the time of the patient's arrival until 3:30 a.m. According to his testimony, Marino also told Raab that the patient had an episode, meaning her being found confused in the hospital hallway, but that her neurological reassessment was normal. He read verbatim to Raab the CT scan report from the radiologist.

The two doctors also discussed Lovenox, and in response to Raab's questions, Marino reported that he ordered coagulation studies and a complete blood count, and that the results were within normal limits. Raab recommended close evaluation of the patient, and told Marino to call him if there was any significant neurological change. He said he would see the patient between 5:00 and 6:00 a.m. He also told Marino to contact the on-call primary physician to initiate the patient's admission to the hospital.

Raab did not order Mannitol or intubation during the 4:00 a.m. telephone consultation. Mannitol is an osmotic diuresis, a medicine that acts to dehydrate and shrink the brain to decrease pressure and reduce swelling, but it has a rebound effect that can cause an acute expansion of the subdural bleeding. Marino believed Raab exercised reasonable judgment in not ordering Mannitol at that time. Marino also saw no reason for Raab to order Protamine at 4:00 a.m., explaining that drug was not approved by the Food and Drug Administration and was not routinely administered by emergency room physicians to reverse the anti-coagulant effect of Lovenox. Protamine also had serious side effects, including a sudden decrease in blood pressure and anaphylaxis, a sudden and severe allergic reaction. Marino further testified that it was not reasonable to intubate the patient at 4:00 a.m., given the risks of the procedure and the fact that Laura was awake, alert, and oriented with normal neurological assessments.

After speaking with Raab, Marino placed a call to the on-call primary doctor, who was being covered that night by Dr. Matalkah, an internist with fellowships in pulmonary and critical care medicine. Matalkah had admitted Laura to the hospital two weeks earlier. Marino advised Matalkah of Laura's clinical findings, lab results, CT scans, and hypercoagulable state. Marino also told Matalkah that he had consulted with Raab, that Raab wanted the patient admitted by Matalkah, and that Raab planned to evaluate the patient later that morning. Following their conversation, Marino received admission orders from Matalkah, which included an order to consult with Raab. Matalkah did not order Protamine, Mannitol, or intubation. At 4:02 a.m., Brossman started an intravenous (IV) line for normal saline in Laura's right thumb. According to Marino, the patient's vital signs were within normal limits. But at 4:35, Brossman was alerted by a radiology technician that Laura was "really out of it." On examination, the nurse found that the patient was unresponsive to verbal, tactile, and painful stimuli, and that she was foaming at the mouth with dilated pupils and snoring respirations. The patient also had an elevation in her blood pressure, a drop in her pulse rate, and an increase in her respiratory rate.

Marino was notified at 4:35 a.m. about Laura's change of status. He documented that Laura had decreased levels of consciousness, responsiveness, and reflex. Her pupils were dilated, but still somewhat reactive. Marino believed the foaming around the mouth was consistent with a seizure or an expansion of the subdural hematoma. He told the nurse to get the patient ready for another STAT CT scan, ordered the administration of oxygen by nasal cannula (tubes), and directed the nurse to start another IV line.

Marino immediately placed a call to Raab, and spoke with him at 4:55 a.m. They discussed the changes and Marino's neuro assessment. Raab ordered a second CT scan to determine whether Laura was having a seizure or a re-bleed, because the former did not require surgery. He also ordered Cerebyx, an anti-seizure medication, along with an anti-nausea medicine. Marino told Raab to come to the hospital to see the patient, and Raab said he would be in as soon as possible.

Marino acknowledged on cross-examination that he did not call Nighthawk Radiology to tell it that the patient had a CT scan at 3:11 a.m. with a subdural hematoma and a subarachnoid hemorrhage, that she was now unconscious, and that he needed the results of the second scan immediately. Instead, he waited approximately an hour and twenty minutes for the results before deciding to intubate the patient.

Marino relied on Raab to decide when certain medications were appropriate. He believed Raab wanted to wait for the results of the repeat CT scan before ordering Protamine, Mannitol, or intubation, and did not consider it necessary to override Raab's neurosurgical decisions.

At 5:15 a.m., Marino spoke again with Matalkah and updated him on the developments. Matalkah gave no orders, but indicated he was coming to see the patient. At that time, Brossman started a second IV line in a more secure place than the left thumb. At 5:30, Brossman's notes indicate that Laura was unresponsive with dilated pupils. At 5:38, the repeat CT scan was performed.

Hospital records indicate that Marino intubated the patient sometime between 6:15 and 6:45 a.m., and put her on a ventilator. Marino's notes indicate that Laura's pupils were four millimeters and fixed. Marino testified that she had been unresponsive for approximately one hour and that he had based the decision to intubate on his emergency room experience.

At 6:22, Marino received the faxed CT scan results from Nighthawk Radiology, and at 6:34, he received a telephone call about the results. The second scan revealed an increased right-sided subdural hematoma (mass of clotted blood inside the head) to a maximal thickness of eight millimeters (about a third of an inch), an increased crowding of the basilar cisterns (a cavity in the brain) worsened for a downward herniation, a stable nine millimeter right-to-left midline shift, and evidence of bi-temporal foci of petechial hemorrhage ("tiny little bruises within the substance of the brain on both temporal sides").

Raab and Matalkah arrived at about 7:00 a.m. and took charge of the patient's treatment, with Marino assisting. Marino also called Richard Coniglio at about that time to tell him that his wife was in a coma.

Raab assessed the patient, reviewed the CT scan, and ordered Mannitol to reduce the swelling of the brain along with fresh frozen plasma and Protamine to reverse the effect of the Lovenox. He also made arrangements for an operating room team, noting it took about three hours to "round everyone up." At about 9:30 a.m., Raab performed surgery to relieve the pressure on Laura's brain.

The next day, December 22, 2008, Richard was told that Laura's condition had not improved. After additional testing revealed no brain activity, Richard signed a "do not resuscitate" form. Laura was taken off life support at 5:00 p.m. that day, and died shortly after.

B.

One of plaintiff's experts, Paul Pirigyi, M.D., was board-certified in emergency medicine. He criticized Marino's care of Laura in several ways, generally concluding that Marino had not acted fast enough and had failed to take certain steps that were necessary to save Laura's life.

Pirigyi testified that the results of the initial CT scan were significant. The findings showed the presence of bleeding around the brain, and Marino should have understood the increased risks to a patient like Laura who was taking anticoagulant medication. Pirigyi believed Laura's wandering and confusion at 3:20 a.m. indicated that her subdural hematoma was expanding and that her neurological condition was deteriorating, which was "quite worrisome."

Relying on Raab's deposition testimony rather than Marino's version of the telephone consultation of 4:00 a.m., Pirigyi criticized Marino for not alerting Raab about the patient's change of status based on her being found confused in the hallway. He also noted that after Laura was found unresponsive at 4:35, Marino made no effort to address the anticoagulation issue or relieve the intracranial pressure until 6:35, when he informed Raab of the results from the second CT scan. In Pirigyi's opinion, an emergency room physician should have understood the implications of the first CT scan findings and Laura's symptoms. Marino did not intervene to relieve the intracranial pressure until 6:45 when he intubated the patient. The first intervention to reverse the effects of the Lovenox did not occur until after 7:00, when Raab ordered Protamine and fresh frozen plasma to assist with clotting.

In Pirigyi's opinion, Marino deviated from the accepted standards of medical care by an emergency physician by failing to recognize that Laura was a very high risk patient based on her head injury, retrograde amnesia ("a problem remembering what happened before the event"), anticoagulation medication, and history of a VP shunt, and by failing to respond properly to the severity of her condition. He believed Marino should have called Nighthawk Radiology to expedite the CT scan results, should have insisted that Raab perform an immediate neurosurgical evaluation even before the results of the second scan were received, and should have objected to Raab's instruction to admit the patient on the service of her primary care physician. Pirigyi testified that when Raab told Marino at 4:55 to order a repeat scan and administer anticonvulsive medicine, Marino should have insisted that Raab come to the hospital "right now" or he would call the department chairman. If the chairman did not respond, Pirigyi said Marino should have called the administrator on call.

Other deviations alleged by Pirigyi were Marino's failure to attempt to reverse the effects of the Lovenox, failure to administer Mannitol to draw fluid from the brain, failure to order a more appropriate IV line than the one initially placed in the patient's thumb, failure to order adequate neurological checks, and failure to intubate the patient sooner. In Pirigyi's opinion, Laura had a very good chance of survival if Marino had aggressively pursued these measures.

Pirigyi testified that, as Laura's brain began to swell, it "herniated down," or compressed the brain stem's vital function sections, causing an "irretrievable circumstance." He concluded that Marino's deviations from the standard of care contributed to Laura's death.

On cross-examination, Pirigyi admitted he had never reversed Lovenox in a patient during his entire career. He also acknowledged it was unlikely that a community hospital like Chilton Memorial had the ability to measure the level of anticoagulation caused by Lovenox. He further acknowledged that the neurosurgical consult was the doctor who generally ordered Mannitol for a patient, if it was indicated. Regarding his reliance on Raab's version of the initial telephone consultation, Pirigyi knew that Raab was a defendant at the time he gave his deposition testimony, and that he subsequently settled with plaintiff.

Stephen M. Bloomfield, M.D., plaintiff's expert in neurosurgery and neurology, described Laura's injury and the cause of death. He testified that Laura's head injury occurred when she fell at home and tore a blood vessel on the surface of her brain. As the blood gathered in the subdural space between the brain and skull, it caused pressure on the brain stem, a life-threatening event. According to Bloomfield, the symptoms of a subdural hematoma included: headaches, nausea, and vomiting; elevated blood pressure and lowered pulse rate; neurological changes such as sleepiness, confusion, disorientation, and weakness on one side of the body, such as the inability to perform proper hand grips; dilated pupils; unresponsiveness; and "neurological death."

Based on his review of the medical records, Bloomfield considered the finding of lethargy about fifteen minutes after Laura's arrival at the hospital as the first recorded neurological deficit. As of 3:20 a.m., even though the nurse reported Laura's wandering, confusion, disorientation, and inability to perform hand grips, her pupils continued to respond normally to light, suggesting some continuing function. At 4:00, according to Bloomfield, Laura's prognosis was still excellent. He testified that a patient could recover from a subdural hematoma, "especially if there's demonstration that the pupils have some reactivity to light reflect."

By 4:30, the medical records showed a significant slowing of Laura's heart rate, and five minutes later, Brossman described the patient as unresponsive with dilating pupils. Bloomfield believed Laura still had some neurological function because she was breathing spontaneously and her pupils retained some reactivity to light. The neurological examination at 5:30 had similar findings.

At 5:38, however, the CT scan showed the subdural hematoma had grown from three to eight millimeters in thickness, the midline shift had increased from five to nine millimeters, and the temporal lobes of the brain had sustained some bruising or hemorrhaging from the pressure applied by the subdural hematoma. By 7:00, Laura's pupils showed sluggish reactivity to light, and by 9:00, they were fixed and no longer reactive. At that point, Bloomfield believed the change in Laura's mental status and function predicted a significantly worse outcome.

In Bloomfield's opinion, there were two types of medical management to reduce intracranial pressure: the use of osmotic diuretics such as Mannitol to pull fluid out of the brain; and intubation to control hyperventilation and reduce the level of carbon dioxide in the blood. He explained that these interventions slowed the process and increased a patient's chance of successful surgery. He also believed it was necessary to reverse the effects of Lovenox, which allowed the subdural bleeding to continue faster, harder, and longer. In Bloomfield's opinion, "[p]atients who are operated on within four hours of injury may have mortality rates as low as 30 percent with functional survival rates as high as 65 percent."

C.

Following the testimony of his expert witnesses, plaintiff subpoenaed Raab to testify in plaintiff's case in chief. Raab presented a different version of the initial 4:00 a.m. call from that depicted by Marino. He acknowledged knowing at the time that Laura's medical history included a stroke, a pulmonary embolism, and a hypercoagulable disorder, for which she was taking Lovenox. Raab, however, did not recall being told by Marino about the patient's change of status after returning from the first CT scan, that is, her wandering confused in the hallway at 3:20 a.m.

Raab considered any neurological change at that time as significant because it suggested a re-bleed, a seizure, or an expanding subdural hematoma. He testified that, if he had known about Laura's change of status at 4:00 a.m. when Marino first called him, he would have ordered another CT scan and considered going to the hospital immediately to examine the patient. Even so, Raab noted that a three-millimeter subdural hematoma, by itself, was not life-threatening, although there was a greater potential for bleeding in a patient taking Lovenox.

Raab explained that he did not tell Marino to intubate the patient because he relied on the emergency room physician to know what to do. Raab also assumed Marino had attempted to reverse the effects of the Lovenox as soon as he got the first CT scan report showing intracranial bleeding. Raab did not know at the time that Lovenox could only be reversed with Protamine. On cross-examination, Raab acknowledged that he had settled plaintiff's case against him.

D.

The defense experts responded to the contentions of plaintiff's experts. Steven Sachs, M.D., a board-certified neurologist, was defendant's expert on the neurologist's perspective of the relative responsibilities of an emergency medicine physician and a treating neurologist or neurosurgeon. He offered the opinion that it was Raab's responsibility as treating neurosurgeon to determine whether and when to administer Protamine and Mannitol, and whether and when to hyperventilate the patient.

Sachs believed "[t]his patient died from a diffuse head injury that caused bilateral hemorrhagic contusions and right-sided cerebral edema." He explained that the contusions indicated bleeding into the brain. He did not believe Laura died from a subdural hematoma that grew from three to eight millimeters, explaining instead that "it went from being very small to small." The court did not allow Sachs to express his opinion that the cause of death was edema, or swelling of the brain, not the expanding subdural hematoma, because "[t]hose words [did] not appear in his report."

In Sachs's opinion, Raab became responsible for Laura's care after the 4:00 a.m. phone consultation, "as not only the neurosurgeon on call but actually the patient's treating operating neurosurgeon." He believed Laura's deterioration at 4:35 indicated she had herniated and the pressure in her head was pushing her brain down the opening at the base of her skull. While acknowledging that it was reasonable at first to believe she had a seizure based on the foaming around her mouth and her unresponsiveness, Sachs believed the subsequent increase in blood pressure and drop in pulse rate were signs of the Cushing reflex, meaning the pressure inside her skull was increasing. At that point, he believed that no treatment, including surgery, could have changed the outcome.

Sachs described Laura as a "complicated, complex patient," and believed her prognosis was grave when she entered the hospital. He did not believe her outcome would have improved even if Raab had ordered Mannitol earlier, explaining that its benefits were short-lived and it was generally given a half-hour or hour at the most before surgery to avoid the rebound effect of taking on more fluids. In his view, because Laura did not get into the operating room until 9:30, there would have been an increased risk of more bleeding if Mannitol had been ordered at 4:00 a.m. Sachs also believed there were risks of giving Protamine earlier, explaining that Protamine was not clearly a benefit in reversing the effects of Lovenox and that it could cause a severe drop in blood pressure as well as a lethal anaphylactic reaction. He further noted that the reversal of Laura's anticoagulation with Protamine could have put her at risk of clotting.

Moreover, earlier intubation and hyperventilation would not have changed the outcome. He explained that hyperventilation decreased blood flow to the head by blowing off carbon dioxide, but that it also had a rebound effect and should only be done when surgery was imminent. In fact, Laura was given Mannitol and Protamine, and intubated before she was taken to surgery.

Donlin Martin Long, M.D., testified for defendant as a board-certified neurosurgeon. Like Sachs, he believed Raab assumed responsibility for the management of Laura's head injury after receiving Marino's call at 4:00 a.m., including decisions concerning medications, CT scans, and surgery. Long did not believe Laura's outcome would have changed if given Protamine at 4:00. In his view, the potential risks of Protamine, including anaphylaxis and decreased blood pressure, were unreasonable given the unlikely benefits. He explained that Protamine did not reverse all of the effects of Lovenox, that there was debate over its use, and that there was no evidence it would have prevented the hematoma's expansion.

Long also believed Laura's condition would have deteriorated more rapidly if she had been given Mannitol earlier. He explained that Mannitol was used to shrink normal brain tissue, which created space for more blood to gather, and that its use probably would have increased the size of the patient's blood clot. In his view, Raab made the right decision to wait until 7:00 to give the Mannitol pending surgery.

Likewise, Long did not believe earlier hyperventilation would have changed Laura's outcome. He explained that a patient had to be sedated or put to sleep in order to insert the endotracheal tube to be connected to the ventilator. The patient became anesthetized, or paralyzed, making it impossible to talk with the patient or perform a neurological examination, except to judge the vital signs. Given the small gains from hyperventilation, Long believed Laura should not have been intubated as long as she was awake and reasonably alert. Additionally, Long noted that a three-millimeter subdural hematoma, as indicated on the initial CT scan, rarely required surgical treatment.

According to Long, once the serious deterioration occurred at 4:35, "it was too late for any reparative action to have much chance of success." Nonetheless, he considered it worth the risk to administer Protamine and Mannitol before surgery, and to intubate Laura after she started having increased difficulties. In Long's opinion, there was no treatment available to change the patient's outcome.

Glenn Birnbaum, M.D., who was board-certified in emergency medicine, testified as defendant's expert that Marino met the standard of care for an emergency room doctor. He considered this case very complex because the patient had a rare combination of hydrocephalus, hypercoagulability, a VP shunt, Lovenox, and head trauma.

Birnbaum held the opinions that Marino's initial order for a STAT CT scan was appropriate, that the time it took to obtain the report from the radiologist was consistent with accepted standards, and that it was proper for Marino to wait for the scan results before contacting the neurosurgeon. He also believed it was appropriate for Marino to defer to Raab's expertise as a neurosurgeon, especially because Raab had previously operated on Laura and knew she was taking Lovenox.

In Birnbaum's opinion, it was outside the scope of Marino's experience and practice as an emergency room physician to know the procedure for reversing Lovenox. He did not believe it was appropriate for Marino to give Mannitol to the patient unless advised by the neurosurgeon that surgery was imminent, because its effects were temporary. Birnbaum further believed that Marino used his judgment as to when to intubate the patient and that his decision fell within the accepted standard of care, adding that neither Raab nor Matalkah had ordered intubation and that the patient had previously shown no absolute need for this emergency procedure.

In his view, Marino properly relied on Raab to make decisions regarding the patient's care and to say when it was appropriate to come to the hospital to see her. Birnbaum also believed there was no need for Marino to call Nighthawk Radiology to expedite its report, given that he had ordered the scan "STAT" and gotten the results within the expected time frame.

III.

Plaintiff contends that the trial court erred in denying his motion in limine to bar Marino from presenting evidence that Raab was negligent and responsible for plaintiff's death. Specifically, he argues that Marino did not serve any expert reports critical of Raab's actions and omissions, and his experts did not adopt the opinions of plaintiff's experts.

Before trial, the court ruled that the case could not be tried without presenting evidence of Raab's role, but the court limited testimony to the opinions expressed in the experts' reports. Plaintiff's counsel agreed that defendant's experts offered opinions that an emergency room physician should defer not only to the expertise of Raab as a neurosurgeon but to his familiarity with this very complex patient. The court, therefore, permitted Marino's experts to testify that Raab was responsible for Laura's care, but not to testify that Raab was at fault.

A defendant at trial has the right to have a settling defendant's liability apportioned by the jury. Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112-13 (2004). A defendant may assert the liability of a settling defendant and seek credit in every case, whether or not a cross-claim for contribution has been filed. Young, supra, 123 N.J. at 596-97. To avoid surprise, however, a defendant who stands trial may not "assert the liability of a settling defendant without first providing the plaintiff with fair and timely notice" of an intent to do so. Id. at 597; R. 4:7-5(c).3

Thus, "[a] defendant who produces no expert report (whether its own or that of another party) and fails to allege well before trial the causative fault of a co-defendant may be precluded from asserting at trial that co-defendant's fault in the event of a settlement." Young, supra, 123 N.J. at 597. But when the requirements of notice and proof are met, a defendant at trial may obtain an allocation of fault to the settling defendant. Town of Kearny v. Brandt, 214 N.J. 76, 100 (2013).

In Young, supra, 123 N.J. at 585, a plaintiff alleging medical malpractice settled before trial with one defendant-physician, and proceeded to trial against another. The Supreme Court allowed the jury's apportionment of fault between the two doctors, holding that the plaintiff had fair and timely notice through discovery that the defendant on trial intended to argue the settler's fault. Id.at 596-98. It explained that the answers to interrogatories contained a denial of negligence and asserted any fault was that of the settling defendant. Id.at 598. Also, the defendant's motion in limine sought the allocation of fault between himself and the settling defendant, and he proved the negligence of the settling defendant on the basis of the testimony and written report of the plaintiff's expert. Ibid.

Here, although Marino did not assert a cross-claim against Raab, he provided notice that Raab's alleged fault would be an issue at trial. In his answer, Marino demanded "contribution and indemnification from the co-defendants pursuant to the applicable statutes of the State of New Jersey." His answer also explicitly included a notice pursuant to Young and Rule 4:7-5(c) as follows:

If any co-defendant(s) settles prior to verdict, this defendant(s) will seek an allocation of the percentage of negligence by the fact finder against the settling defendant(s). We will seek this allocation whether or not we have formally filed a cross-claim against the settling defendant(s). We will rely upon the examination and cross-examination of plaintiff's expert witnesses and any and all other witnesses at the time of trial in support of this allocation. You are being apprised of this pursuant to Rule 4:7-5(c) and Young v. Latta, 123 N.J. 584 (1991).

 

Moreover, one of the separate defenses in Marino's answer asserted:

Pursuant to Rule 4:7-5, this defendant reserves the right to seek a credit reducing the amount of plaintiff's judgment, if any, to reflect the degree of fault allocated by the jury to any co-defendant, regardless of settlement by any co-defendant. This defendant asserts that the liability of any settling co-defendant shall be an issue at the time of trial.

 

Additionally, Marino's expert, Birnbaum, stated in his report that it was "within the standard of care for an emergency room physician to rely on the expertise and advice of specialists in treating patients, especially complex patients with problems not previously encountered." He added: "Dr. Marino appropriately sought the specialist Raab's advice as to the proper treatment of this complex patient. Given the complexity of this patient, Dr. Marino was within the standard of care to rely on Dr. Raab's advice." Likewise, Marino's neurology expert, Sachs, stated in his report that after Marino spoke with Raab at 4:00 a.m., "the neurological management of Laura Coniglio was appropriately left to Dr. Raab's discretion by Dr. Marino." Sachs elaborated:

[W]hen I am called by an emergency room physician for a patient with a neurological problem, it is assumed by myself as well as by the emergency room physician that I am taking over the neurological aspects of the patient's care. This would be equally true, if not more so, for a neurosurgical patient. The timing and manner of osmotic diuretics, anticoagulation reversal, antiepileptic prophylaxis, hyperventilation, and neurosurgical operative intervention are all appropriate decisions for the consultant neurosurgeon.

 

Marino's neurosurgery expert, Long, reached a similar conclusion in his report:

Dr. Marino . . . called a neurosurgeon and followed the advice of that neurosurgeon. When the patient deteriorated he called the neurosurgeon again and then followed that advice for a second time. There was no need for him to be more aggressive to contradict the management of the neurosurgeon initially. There was no need for him to question the neurosurgeon's recommendation

after the second call either.

 

Defendant's expert reports, therefore, alerted plaintiff of defendant's intention to place into evidence the issue of Raab's responsibility for the care of the patient.

Marino's experts did not state in their reports that Raab had been negligent, but plaintiff's expert, Pirigyi, made reference to Raab's alleged negligence by testifying that Marino should have insisted during the initial telephone call that Raab needed to come to the hospital "right now" and not wait until the morning. In Pirigyi's opinion, Marino should have told Raab: "If you don't do that, I don't believe that you're upholding the standard of care and you're failing the patient."

Furthermore, by testifying about Laura's chances of a better outcome had surgery been performed earlier, plaintiff's neurosurgeon expert, Bloomfield, also suggested that Raab had deviated from the accepted standard of care in failing to act with more urgency and dispatch to treat the emergency. The expert testimony offered by plaintiff supported a claim by Marino that, if the doctors were at fault for increasing the risk to Laura, it was primarily Raab for failing to recognize the dire condition of his own patient and to attend to her more promptly.

Plaintiff also argues that defense counsel improperly cross-examined witnesses about Raab's conduct. For example, he claims defense counsel improperly asked: (1) Pirigyi whether a neurosurgeon would be contributing to a delay in patient care if he did not go to the hospital when asked by an emergency room physician; (2) Raab whether he realized that it was his responsibility to inform Marino about medications; and (3) Sachs whether Raab was responsible to determine when and how to reverse the effects of Lovenox. Contrary to plaintiff's assertions, these questions were consistent with the court's ruling that Marino was permitted to argue to the jury that Raab had primary responsibility for the patient's care and treatment.

In sum, the trial court did not err in denying plaintiff's motion in limine to exclude any reference before the jury to Raab's alleged responsibility and in denying plaintiff's motions to exclude Raab from the verdict sheet.

IV.

Plaintiff contends the court erred by allowing defense counsel to suggest to the jury that the fact of Raab's settlement indicated his liability. But the record shows that it was plaintiff's counsel who opened the door to the disputed testimony by injecting Raab's factual contradiction of Marino's version into the trial through the testimony of Pirigyi.

On direct examination, Pirigyi testified that he reviewed Raab's deposition testimony on the subject of Raab's initial telephone call from Marino. When plaintiff's attorney asked Pirigyi what Raab said, defense counsel objected on the ground that the testimony would be hearsay. Following argument, the court ruled that Pirigyi could testify about the materials on which he relied in forming his opinions, pursuant to N.J.R.E. 703, and that the court would give the jury a limiting instruction. The court also ruled that defense counsel could cross-examine Pirigyi to explain the context in which Raab made the statements, including "the fact that he was a defendant in this lawsuit and that he settled. [The jurors] know that already because I told them."

Pirigyi then testified that Raab said at his deposition that Marino did not tell him about the patient's status change during their initial conversation. The court immediately gave the jury a limiting instruction. Among other things, the court instructed the jury that it was permitting Pirigyi "to testify as to what Dr. Raab said at his deposition for the purpose, a limited purpose, of explaining to you why [Pirigyi] came up with the opinions that he did," but that the jury was not to accept as true the statement by Raab that Marino did not tell him about the status change.

Plaintiff's argument on appeal focuses on the following exchange during defense counsel's cross-examination of Pirigyi:

Q. And are you aware that Dr. Raab, at the time he gave that testimony, was a named defendant in this lawsuit? Are you aware of that status at the time he gave the test deposition?

 

A. Am I aware that, at the time he gave the deposition, he was [a] defendant? Yes.

 

Q. And are you aware that Dr. Raab subsequently settled after making those statements? Are you aware of that?

 

A. Yes.

 

Plaintiff's counsel did not immediately object to this testimony, but later argued that the cross-examination was improper because it asked the jury to speculate on the reasons why a settlement was reached. After argument the following day, the court denied plaintiff's motion for a mistrial, stating:

So there will be no mistrial based upon that and I see no reason for a curative instruction or to go back into it. . . . [Y]ou began with bringing out certain testimony of Raab that he has [a] different recollection and it was proper cross-examination to bring out the fact that he was a defendant, and the fact that he settled is something the jury already knows. So I don't see how the plaintiff is prejudiced whatsoever by that.

 

In the final jury charge, the court reminded the jury that if it "gave a limiting instruction as to how to use certain evidence, the evidence must be considered by you for that purpose only." It further instructed the jury pursuant to Model Jury Charge (Civil), 1.17 "Instructions to Jury in Cases in Which One or More Defendants Have Settled with the Plaintiff" (1997):

Dr. Raab was originally named as a defendant in this case. Before the trial started, plaintiff and Dr. Raab resolved their differences. As a result, Dr. Raab was not represented by an attorney during this trial.

 

You are not to speculate as to the reasons why the plaintiff and Dr. Raab settled their dispute. You should not be concerned about the amount, if any, that may have been paid to resolve the claim against Dr. Raab. You must decide the case based on the evidence you find credible and the law presented at this trial.

 

Plaintiff acknowledges that this was a correct instruction.

N.J.R.E. 408 prohibits the admission of settlement offers or negotiations as evidence of "liability for, or invalidity of, or amount of the disputed claim." But "[s]uch evidence shall not be excluded when offered for another purpose." Ibid. Here, the disputed questions elicited admissible testimony relevant to the credibility of both Pirigyi and Raab.

"[A]n expert witness is always subject to . . . cross-examination as to the basis of his opinion." State v. Wakefield, 190 N.J. 397, 452 (2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The court has broad discretion to determine the scope of cross-examination. State v. Silva, 131 N.J. 438, 444 (1993); Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003). An appellate court will not interfere in the absence of a clear abuse of discretion. Persley, supra, 357 N.J. Super. at 9.

Pirigyi testified that he relied on Raab's deposition to conclude that, contrary to Marino's version, Raab was not told about the patient's status change in the initial phone consultation between the two doctors. Since he relied on Raab's version of that event, it was appropriate for defense counsel to cross-examine him regarding the potential bias of Raab as a co-defendant in giving that version in his deposition testimony. Defense counsel could also explore whether Raab's subsequent circumstance as a settling defendant made any difference to Pirigyi's reliance on the deposition testimony.

In addition, N.J.R.E.806 permitted defense counsel to challenge the credibility of Raab as a source of information that Piriygi relied upon. That rule provides: "When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness." Ibid.

While the question of Raab's settling had the capacity for speculation and misuse by the jury, so did plaintiff's use of Raab's hearsay statements contradicting Marino's version of what was communicated to Raab during the first consultation at 4:00 a.m. The trial court instructed the jury appropriately as to the limited use of both items of information. Plaintiff having introduced Raab's hearsay statements to the jury cannot complain that the fact of Raab's status as a co-defendant and subsequent settlement resurfaced as relevant to his credibility and that of Pirigyi.

We conclude there was no prejudicial error in the questions and answers on that subject in Pirigyi's cross-examination, and the trial court did not abuse its discretion in denying a mistrial on that ground.

 

 

V.

Plaintiff contends the court erred in allowing defendant's experts in neurology, Sachs, and emergency medicine, Birnbaum, to testify regarding the negligence of Raab, who was a specialist in neurosurgery. Assuming that plaintiff's pretrial motion to limit defense testimony about Raab's alleged negligence preserved plaintiff's objection on the ground he now raises on appeal, the abuse of discretion standard of review applies to the trial court's evidentiary rulings on the scope of expert testimony. See, e.g., State v. Summers, 176 N.J. 306, 312 (2003); see also Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (uniform endorsement in case law that trial court's evidential rulings are subject to abuse of discretion standard of review on appeal).

In considering plaintiff's motion in limine to exclude any reference to alleged negligence of Raab, the court determined that the disciplines of emergency medicine, neurosurgery, and neurology overlapped and were so "inextricably intertwined" in the factual circumstances of this case that the parties could not avoid referring to the actions of both Raab and Marino in describing Laura's treatment. The court further determined it would be fundamentally unfair to preclude the defense experts, whose reports were submitted almost a year before trial, from opining as to the relative responsibilities of one "team member" to the other in these circumstances. The court explained: "it is a distinctive situation where you have two disciplines working together and this jury is going to have to eventually come to a conclusion as to who was responsible for what and what did that proximately cause." The court emphasized that the defense experts could testify from their own perspectives and disciplines as to the responsibilities of the team members, but could not testify as to the standard of care of an emergency medicine physician or a neurosurgeon.

"To prove medical malpractice, ordinarily, 'a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury.'" Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (quoting Gardner v. Pawliw, 150 N.J. 359, 375 (1997)). A witness qualifies "as an expert by knowledge, skill, experience, training, or education." N.J.R.E. 702.

In medical malpractice cases, N.J.S.A. 2A:53A-41 restricts the qualifications that a physician must have to testify as an expert on medical issues pertinent to a specialty or subspecialty field. Nicholas, supra, 213 N.J. at 479. Essentially, an expert testifying about "the appropriate standard of practice or care" of a physician must be a specialist in the same field in which the defendant physician specialized in the case. N.J.S.A. 2A:53A-41; see also Ryan v. Renny, 203 N.J. 37, 52 (2010) (the statute provides "more detailed standards for a testifying expert . . . generally requiring the challenging expert be equivalently-qualified to the defendant").

No party disputed that emergency medicine, neurology, and neurosurgery were distinct medical specialties with their own board certifications. Moreover, no party disputed that physicians who practice in these three specialty areas might treat the same patient. Even though there is overlap among these specialties, there is no statutory exception that permits a physician specializing in emergency medicine or neurology to serve as an expert witness against a physician specializing in neurosurgery, even if each expert was credentialed by a hospital to treat patients with the same medical condition. Nicholas, supra, 213 N.J. at 484. Thus, under N.J.S.A. 2A:53A-41(a), neither Sachs nor Birnbaum could offer expert testimony to establish the standard of care applicable to Raab.

Sachs and Birnbaum, however, did not offer opinions at the trial regarding the standard of care of a neurosurgeon. They testified only as to Raab's responsibility, relative to that of Marino, as part of the team of physicians who were charged with diagnosing and treating Laura when she came to the emergency department.

Sachs stated at trial that he was familiar with the responsibilities of an emergency room physician, a neurosurgeon, and a neurologist in the treatment of a patient on anti-coagulation medication who had a subdural hematoma. In his opinion, Raab would have been responsible for the patient after being called in consultation by Marino at 4:00 a.m. Sachs was of the opinion that Raab would have been responsible for determining whether and when to attempt to reverse the Lovenox, whether and when to administer Mannitol, and whether and when to intubate and perform hyperventilation. Sachs also offered the opinion that the decedent presented with "a fatal brain injury that was not something that could have been reversed based upon what occurred thereafter." Thus, Sachs did not attribute fault to Raab for Laura's death.

Birnbaum testified that he saw patients in the emergency room with head trauma and that he knew when an emergency medicine physician should defer to the recommendations of a neurosurgeon. Based on his training and experience, and his review of the record, he believed Marino properly treated the decedent and properly deferred to Raab's instructions. He believed this was a very complex case because the patient had several rare conditions simultaneously, and that it was proper for Marino to consult with Raab after receiving the results of the initial CT scan and to defer to Raab's expertise as a neurosurgeon. Birnbaum further believed it was appropriate for Marino to contact Raab after the patient's change in status and to rely on Raab's representation that he was coming into the hospital to see the patient.

None of this testimony alleged that Raab did something improper, that he deviated from the acceptable standard of care of a neurosurgeon. Rather, it merely explained the relative roles of the different doctors in making decisions about the care and treatment of the patient. As the trial court stated: "There's a big difference between who makes that call and whether or not the call was wrongly made." The defense experts testified that it was Raab's responsibility to make the call on appropriate treatment, not that he made the wrong call.

There was no violation of the N.J.S.A. 2A:53A-41(a) or the holding of Nicholas, supra, 213 N.J. at 485, in the testimony of Marino's experts.

VI.

Plaintiff contends the court erred in permitting defense counsel to exceed the scope of proper cross-examination of Raab. Before presenting Raab as an adverse witness, plaintiff's counsel moved to limit cross-examination to the scope of the direct, and to preclude any questions attempting to link the settlement with liability. Noting it had already informed the jury about the settlement, the court permitted defense counsel to ask Raab if he had settled, but not to elaborate on the reasons that Raab had settled.

Raab testified on direct examination that he received a call from Marino at about 4:00 a.m., and that Marino told him the patient was awake and alert with a three-millimeter subdural hematoma, but that he did not recall whether Marino told him the patient had been found confused, wandering in the hall. Raab acknowledged on direct examination, however, that he had testified at his deposition that he was sure Marino did not tell him about the patient's change of status before the phone call "[b]ecause that would have constituted a change in the neurological exam . . . [a]nd would have prompted at least further questioning or at least another CAT scan on it."

Raab also testified that he did not tell Marino to intubate the patient because he depended on the emergency room physician to know the intubation protocols. He also assumed the emergency room physician would have taken steps to reverse the Lovenox as soon as the intracranial bleeding was recognized.

At the beginning of cross-examination, defense counsel asked Raab if he had settled his case with plaintiff. Raab replied "correct." Immediately afterwards, defense counsel asked: "Now, when you got to the hospital, am I correct that you realized that it was your responsibility to inform Dr. Marino of your plan, especially when it comes to ordering medications, for example, reversing Lovenox; is that ." At that point, plaintiff's counsel objected. After a sidebar conference at which the court overruled the objection, defense counsel asked Raab if he realized when he got to the hospital that he had to inform Marino of his plan for ordering medications and reversing anticoagulation. Raab initially answered no, but later admitted stating at his deposition that he would have spoken to Marino at the hospital about the plan.

Defense counsel also asked Raab if he recalled being asked at his deposition when he had last seen the decedent before her admission on December 21, 2008. Plaintiff's counsel objected on the ground that the question was beyond the scope of direct, but the judge overruled the objection. Raab acknowledged that he had mistakenly stated at his deposition that he last saw the decedent on November 21, 2008, when, in fact, he saw her in the hospital on December 7, 2008.

Raab further testified that at 4:00 a.m. on December 21, 2008, he believed it would have been a mistake to operate on a three-millimeter subdural hematoma on an anti-coagulated patient, and that he did not believe it was necessary for him to go to the hospital immediately to examine the patient. Raab did not dispute that the second call from Marino meant there was an emergency, but said he would have needed another CT scan to know whether or not it was a surgical emergency.

On appeal, plaintiff argues that these lines of cross-examination improperly exceeded the scope of his limited direct examination of Raab as an adverse witness and prejudiced plaintiff's right to a fair trial by attempting to cast blame on Raab for the outcome to the patient. We previously rejected the plaintiff's related argument regarding the inclusion of Raab on the jury verdict sheet.

In addition, the scope of cross-examination rests within the sound discretion of the trial court. State v. Adames, 409 N.J. Super. 40, 61 (App. Div.), certif. denied, 200 N.J. 504 (2009); Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div.), certif. denied, 122 N.J. 391 (1990). An appellate court will not interfere in the absence of clear error and prejudice. Glenpointe Assocs., supra, 241 N.J. Super. at 54.

Cross-examination is generally limited to the subject matter of direct examination and matters affecting the witness's credibility. N.J.R.E. 611(b). Inconsistent statements of any witness are admissible for purposes of impeachment. Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985). A court may, in its discretion, "permit inquiry into additional matters as if on direct examination." N.J.R.E. 611(b). The extent of allowable cross-examination on collateral matters is measured in light of the effect such examination may have upon substantial justice. Glenpointe Assocs., supra, 241 N.J. Super. at 54-55.

As the trial court stated, there was no link between defendant's initial question about the settlement and his following question about Raab's responsibilities for the care of the patient. Defense counsel limited most of the cross-examination to matters affecting Raab's credibility by exploring inconsistencies between Raab's deposition and trial testimony. In fact, plaintiff's counsel used the same tactic in his direct examination of Raab.

We find no reversible error in the trial court's rulings on permissible cross-examination of Raab.

VII.

We need comment only briefly on plaintiff's argument that the court erred in allowing the jury to deliberate upon proximate cause. He contends that once the jury found Marino to have deviated from the accepted standard of care in his treatment of Laura, the jury was required to award damages given that her brain ceased functioning within hours. This argument neglects the testimony of Marino's expert witnesses that the outcome could not have been prevented. The jury could credit the defense expert testimony that, because of Laura's complex medical history and existing condition before Marino's involvement in her care, the treatments that plaintiff's experts testified should have been attempted did not have a substantial chance of success. Clearly, proximate cause was a disputed factual issue that the jury was required to decide.

Finally, we find insufficient merit in plaintiff's remaining arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). There was no reversible error in defense counsel's reference in summation to plaintiff having subpoenaed Raab to testify, or in the cross-examination of Pirigyi on the subject of Dr. Matalkah's role, or in an accumulation of errors entitling plaintiff to a new trial.

Affirmed.

 

 

 

1 We sacrifice formality and use the decedent's first name for easier recognition by the reader. We mean no disrespect.

2 The outermost thick layer of covering between the brain and the skull.

3 Rule 4:7-5(c) provides in relevant part:

A non settling defendant's failure to have asserted a cross-claim for contribution against a settling defendant, however, shall not preclude either an allocation of a percentage of negligence by the finder of fact against the settling defendant or a credit in favor of the non-settling defendant consistent with that allocation, provided plaintiff was fairly apprised prior to trial that the liability of the settling defendant remained an issue and was accorded a fair opportunity to meet that issue at trial.