PER CURIAM.
Plaintiffs Phyllis Rabinowitz (Phyllis),
Rebecca was born prematurely on July 13, 2006, by cesarean section, at thirty-five weeks gestation at St. Barnabas Hospital. Because Rebecca's mother, Phyllis, had a positive urine culture for group B streptococci, Rebecca remained in a neonatal intensive care unit (NICU) until July 18, 2006. Rebecca was administered antibiotics and treated for jaundice, transient tachypnea, and other conditions. None of the test results from her NICU stay, including from an x-ray, indicated any significant health issues, such as respiratory distress syndrome.
The day following discharge, on July 19, the baby appeared to be suffering from nasal congestion. As a result, Phyllis and Andrew, Rebecca's father, phoned their pediatrician Constantino Kintiroglou, M.D., after hours. He suggested they take Rebecca to the hospital emergency room. Reyman, a board-certified physician in internal and emergency medicine, examined her at St. Barnabas. Reyman is employed by EMA, which staffs St. Barnabas with emergency medicine physicians.
Andrew testified at trial that at the time of the emergency room visit, Rebecca was wheezing and breathing like an eighty-year-old asthmatic man. He also testified that he told Reyman that she had been in the NICU for the prior five days because she was a premature baby. According to Andrew, he and his wife insisted that Rebecca be admitted to the hospital because they believed there was something seriously wrong with her, while Reyman minimized the child's symptoms as similar to those of a common cold or as symptomatic of some transient irritant to her nasal passages. Rebecca's parents took her home.
Reyman testified in sharp contrast to Andrew's description of the emergency room visit. She said Kintiroglou contacted her, requesting that she examine the baby for nasal congestion and informing her that he was scheduled to see Rebecca the following day. Reyman did not recall any specific information that the parents may have conveyed or that they informed her the baby had been in the NICU. She did not remember the consultation, nor did she remember reviewing the nurse's notes. She testified that it was her custom and habit to read them, in addition to performing a head-to-toe physical examination of the baby and discussing her condition with the parents. The nurse's notes and hospital record indicated that Rebecca's airway was open, her breathing "unlabored[,]" she had normal chest expansion upon each breath, there was "no indication . . . [of] any . . . cough or anything productive coming out in terms of mucous," and her breath was clear. The baby had no fever, did not appear lethargic, and did not appear to be in distress. Her vital signs were normal.
Reyman watched Rebecca take a bottle and observed that she was able to breathe while doing so. No bloodwork or chest x-rays were ordered because Rebecca's "oxygenation level was [ninety-nine] percent, . . . which is perfect. The lung exam was perfect and . . . there was no indication to order an x-ray and radiate this child." Reyman's clinical impression was merely congestion of a newborn, who did not present with any "significant respiratory compromise and [was] appropriate for discharge."
The following morning, on July 20, Phyllis and Andrew took Rebecca to her scheduled appointment with Kintiroglou, who, in addition to reviewing her medical history and information from the NICU admission, performed a physical examination. Kintiroglou was not concerned about the baby's breathing, but did detect a heart murmur. An appointment was scheduled for Rebecca to be seen by a pediatric cardiologist the following day.
The next morning, on July 21, at approximately 5:30 a.m., Rebecca awoke crying. When Phyllis went to the nursery to assist the housekeeper, the baby began to bleed from her nose. Phyllis asked Andrew to call the doctor's office, which in turn instructed him to call 9-1-1. Andrew performed CPR on Rebecca until paramedics transported her by ambulance to St. Barnabas, where she died. An autopsy revealed the cause of death to be "[c]omplications of enterovirus infection involving brain, heart and lungs."
Before trial began, the judge granted plaintiffs' in limine motions barring: (1) defendants' experts, who did not specialize in emergency medicine, from testifying regarding the standard of care applicable to an emergency room physician; (2) defense counsel from eliciting testimony from Reyman describing her reaction to the news of Rebecca's death; and (3) defense counsel from arguing that it is improper for a parent to bring an action for damages on behalf of a deceased child. We add greater detail regarding the rulings later in this opinion.
On appeal, plaintiffs raise numerous points of error for our consideration:
Turning to plaintiffs' first two points, they contend that improper defense tactics resulted in multiple prejudicial errors, including multiple violations of in limine orders, and that the errors require, either cumulatively or alone, a new trial. Certainly, it is undisputed that "a trial is a dynamic organism which can be desensitized by too much error or too much curative instruction."
Nonetheless, in reviewing for cumulative error, we do not simply count mistakes. "[E]ven a large number of errors, if inconsequential, may not operate to create an injustice."
In this case, however, most of the allegedly improper defense tactics resulted in rulings favorable to plaintiffs and their objections were sustained. In many instances, plaintiffs' objections triggered curative instructions.
For example, plaintiffs argue that despite the May 28, 2009 in limine order barring standard of care opinions from doctors who were not emergency medicine doctors, defendants repeatedly elicited such opinions from unqualified defense experts. Defendants respond that proximate cause was the main issue at trial, that the in limine order did not bar the expert testimony to which plaintiffs objected, and challenge the efficacy of the care that Rebecca would have received had she been admitted to the hospital given her condition. In other words, defendants suggest that their experts merely opined as to proximate cause and did not stray into testimony regarding the standard of care applicable to emergency room physicians. The judge's order barred defendants' experts, Stephen Ludwig, M.D., Philip Graham, M.D., and Thomas Hegyi, M.D., "from testifying at the trial in this matter on the appropriate standard of practice or care in regard to defendant [] in defense of the malpractice claim against her."
Hegyi, defendants' expert in the field of pediatrics and neonatology, testified regarding the cause of Rebecca's death and the treatment that might have supported her survival. Hegyi said that the emergency room chart did not document any fever or respiratory distress, from which he concluded that Rebecca was asymptomatic and "not suffering from the beginnings or the middle of any kind of progressive deterioration at th[at] point."
When asked to describe the supportive care Rebecca would have received if admitted, Hegyi replied, "supportive care is required by indications. . . . [H]ad the baby been admitted from the emergency room the baby would have appeared like she appeared in the pediatrician's office the next day, perfectly normal." In other words, admission on the evening of July 19 would not have affected her condition and she would have been in the same state the following morning. He went on to state that the hospital would not have administered supportive care because Rebecca displayed no signs of requiring treatment and that the hospital administrators would have questioned the admission. When plaintiffs' counsel objected, the trial judge instructed the jury to disregard the comment.
Graham testified as an expert in pediatrics and pediatric infectious diseases. He was asked, on redirect examination, why "even in the hospital[,] there would not necessarily [have been] a survival by the child of cardiac arrest." Graham responded that plaintiffs made "too many presumptions," for instance, "if Rebecca had been admitted she would have gotten something different and that something different would have helped and their supposition is wrong, [] it doesn't make sense." He elaborated that had Rebecca been admitted to the hospital "she would have been sent home the next day because she was fine. She had no symptoms that were noted by a medical professional." Plaintiffs objected to the response and the trial judge struck Graham's testimony as nonresponsive.
We review decisions regarding the admission of expert testimony under an abuse of discretion standard.
To prevail in a medical malpractice action, "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."
The judge's in limine order merely provided that Hegyi and Graham, who were not specialists in the field of emergency medicine, could not render opinions about the standard of care in that field. Nothing in the judge's May 28 order, however, barred them from testifying about the standard of care in their respective specialties, or their opinions regarding Rebecca's condition from their specialty's vantage point. To have done otherwise would have made their testimony meaningless. Essentially, Hegyi and Graham testified, from the perspective of their specialties, that there was no indication for any type of supportive care to be administered to Rebecca.
Based on Hegyi's review of the records, it appeared that at 3:20 a.m. on the morning of Rebecca's death, the housekeeper observed that the baby was a "normal baby[.]" The clinical symptoms leading to the child's cardiac arrest developed sometime within the subsequent two-hour window. Hegyi said that the symptoms the baby would have demonstrated during that two-hour period, when she was becoming critically ill, would "likely" have included increased and problematic breathing, and temperature changes. Although difficult to say exactly what those symptoms would have been, clearly, Hegyi testified that had they been observed, they would have warranted immediate medical intervention and treatment. His opinion about the development of Rebecca's infection was that since the symptoms did not develop until so close to her death, supportive care, even if administered, may not have resulted in a better outcome. As he explained it, "I feel this baby's condition was so severe that instituting supportive care an hour, an hour and a half before the cardiac arrest would more likely than not have ended in the same outcome."
Hegyi also said fulminate enteroviral sepsis was a condition that could develop critical symptoms in a very short period of time. Rebecca was probably infected several days prior to developing any outward signs of disease, and her system was attempting to fight the virus.
Hegyi also opined that the reason for Rebecca's death was that the virus overwhelmed her immunological system. This key testimony as to proximate cause was neither objected to nor objectionable, and it was not barred by the judge's in limine order.
The issue of whether the experts' testimony strayed from the in limine order was intensely disputed during the trial. Our review of the record establishes, however, that there were many occasions when plaintiffs' counsel objected to the experts' testimony, the objections were sustained, and counsel was directed away from the material, even when we could not discern a basis for the objection. In fact, in some of these instances, the judge actually struck the testimony. He reiterated in his final charge that testimony that he struck was to be ignored during deliberations. He also told the jury that whether Reyman met her specialty's standard of care was a subject about which only Pamela Dyne, M.D., and Marc Bornstein, M.D., testified, and that only their testimony could be considered on the issue. Thus, even if we agree for the sake of argument that the in limine order was violated by some of the expert testimony, which we do not, the error was harmless.
Plaintiffs contend that defendants' closing argument, which included the comment that "there's a lot of wonderful reasons why people [have kids], usually the financial benefit is not one of them," was highly prejudicial and requires a new trial. Certainly, the comment was inappropriate. Plaintiffs' counsel promptly objected, reminding the trial judge that earlier the parties agreed such argument would be excluded. The trial judge sustained the objection, instructed the jurors to disregard the comment, and told them not to consider it in their deliberations. Given the trial judge's prompt instruction, the comment was not so consequential as to have prejudiced the jury's deliberations.
Certainly, attorneys are afforded broad latitude in making closing statements.
In this case, defendants' inappropriate argument did not cause a miscarriage of justice. The judge immediately gave a curative instruction. Additionally, in his closing charge, the judge reminded jurors that counsels' statements were merely arguments and were not binding on them. We therefore disagree that defense counsel's comment was fatal to the jury's verdict.
Plaintiffs also contend that in her opening and on cross-examination, defense counsel suggested that Phyllis was inattentive to her child's medical needs. Specifically, they point to defense counsel's reference to documents Phyllis completed at the pediatrician's office on July 20, that did not indicate concerns about asthma, and the fact that Phyllis asked Kintiroglou's office if the pediatric cardiologist's appointment, scheduled for the morning of July 21, could be postponed to the following week.
This was certainly not a theme during the defense's case, and had it been urged, would have been refuted by the proofs in the record. In any event, the judge instructed the jury that the law does not require a parent to obtain a second opinion in the context of emergency room and pediatric visits.
The crucial issue in this case was proximate cause. That Phyllis briefly considered postponing the cardiologist's appointment, or that she did not write down any concern that the child was suffering from asthma on the pediatrician's questionnaire, were simply negligible facts when contrasted with the pivotal question of proximate cause. Thus, this claim also lacks merit.
Plaintiffs also point to defense counsel's question to Reyman regarding her reaction to Rebecca's death as significant error. This subject had been discussed pretrial, and defense counsel was instructed to avoid it.
The question elicited a prompt objection, which was sustained. Counsel moved on, and Reyman only stated that she did not call Rebecca's parents upon learning of the child's death. When counsel asked Reyman if she usually reached out to a family when an untoward event such as a death occurred, the objection to that question was sustained. Counsel asked Reyman if she had ever had a baby die in the emergency room, also objected to and the objection sustained.
Regardless of any impropriety about the line of questioning as a general proposition, before trial, the court granted plaintiffs' request that Reyman not be asked any questions eliciting expressions of sympathy by her towards the parents. The questions we have described, arguably beyond the scope of the pretrial ruling, were inconsequential in the context of this ten-day trial. All of the objections were sustained, and no prejudice resulted.
When plaintiffs' expert Dyne testified, defense counsel asked about a fine the federal government imposed on the hospital where he was employed "for conduct that took place in [his] emergency department[.]" After objection, the trial judge struck the testimony, finding there was no reason to link the expert to the federal investigation and fine. The judge took appropriate remedial action. We presume the jury followed the prompt curative instruction.
In his final charge, the trial judge reminded the jury that all testimony that was stricken, even if remembered, was not to be included in the jurors' discussions or deliberations. The question alone was not an error capable of affecting the jury's deliberation.
Plaintiffs also argue that the court erred when it permitted Bornstein, defendants' expert, to vary from his deposition testimony at trial. At deposition, he had agreed that the standard of care for an emergency room physician included asking if a child Rebecca's age had been in the NICU, and if so, to obtain those records.
When asked on redirect why Reyman would not have considered inquiries to the NICU relevant, plaintiffs' counsel objected, but the trial judge permitted the response. Bornstein said:
We do not agree that his testimony improperly mixed issues of proximate cause and negligence or was intended to confuse and mislead the jury. Bornstein considered Reyman's failure to obtain the NICU records as ultimately irrelevant, and whether she deviated from the standard of care by failing to obtain them was equally irrelevant.
Plaintiffs' reliance on
Here, it was not surprising to plaintiffs that Bornstein would opine that Reyman's failure to meet the standard of care did not affect the tragic outcome. Plaintiffs were well aware of defendants' position that the child's illness developed more than twenty-four hours after she was seen by Reyman, that the critical onset of the disease was swift, and that an admission to the hospital, given her condition when seen the prior evening in the emergency room, would not have been justified nor made a difference to the terrible outcome of the disease. Thus the trial judge did not abuse his discretion by allowing Bornstein to elaborate on his deposition testimony.
Plaintiffs next argue that the trial court erred by allowing Reyman to testify regarding her "habit, custom and routine practice" of reaching out to the pediatrician when parents are uncomfortable with a child's discharge and allowing the pediatrician to directly speak to the parents. By doing so, she allows the pediatrician and the family to make the ultimate choice about whether the child should remain in the hospital or go home.
Plaintiffs contend that Reyman could not establish any foundation because she claimed that parents so infrequently disagreed with her hospital discharge and admittance decisions. Plaintiffs argue that by allowing the testimony, the judge permitted Reyman to bolster her credibility on an important point to their prejudice. We conclude, however, that the trial court properly found that just because this situation rarely occurred did not mean Reyman did not establish adequate foundation. The court correctly reasoned that a response could be habitual or customary, even if its trigger infrequent.
"Generally, a person's habit or routine practice refers to his repeated behavioral responses to a specific factual stimulus[.]" Biunno,
We agree with the trial judge that the frequency of occurrence was not dispositive. An infrequently encountered situation does not defeat the response from being "semi-automatic" in nature.
Plaintiffs allege that the trial court erred by barring references to the defense expert's drunken driving plea. We consider this point to have no merit, as a violation of the motor vehicle code, even one of a serious nature such as
Finally, plaintiffs contend that the dismissal of their
The trial judge stated that even assuming, as plaintiffs contended, that Rebecca's symptoms of congestion and wheezing were severe when examined by defendant, they were not as extreme as they were a day and a half later when she began "spitting up blood[.]" Thus he found the factual scenario insufficient to establish "a shocking observation of the result of the misdiagnosis." The judge found there was no "contemporary observation of the injury resulting from the misdiagnosis. . . . [N]othing changed in the symptoms of the child — giving all reasonable inferences that the child stayed the same. So [] the parents — until two days later, did [not] observe any results of the misdiagnosis." He concluded the passage of time was too great between the exam and the onset of the child's critical moments. As a result, the judge granted defendants' motion for summary judgment on that count of the complaint.
In reviewing the grant or denial of summary judgment, we apply the same standard that governs the trial court under
In order to prevail on a
We will not address defendants' cross-appeals, made moot by our affirmance of the jury's no cause verdict.
Affirmed.
