Professional Documents
Culture Documents
Plaintiff-Appellant,
v.
Defendant-Respondent.
PER CURIAM
Joseph Carino, individually and as the executor of the Estate of his wife
I.
record.
A.
headache. The pain was so intense that she asked Joseph to call 9-1-1,
arrived within five to ten minutes. An EMS worker checked Grace's vital
Grace did not go to the hospital and apologized for having called 9-1-1,
The next day, January 2, Grace complained that her headache would
she drove herself to see Muenzen, an internist, whom she had been seeing
Grace told a nurse at Muenzen's office about the headache she had on
1
Because Joseph and his late wife share the same last name, we refer to
them by their first names for the sake of convenience.
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over her head. She had no vomiting, nausea, fever or photophobia. Based
When examined by Muenzen, Grace told him that the headache she
"as if somebody came and whacked you on the back of the head with a
baseball bat." According to Muenzen, the fact that Grace's headache started
out slowly drew his thinking away from a catastrophic type of headache. The
length of time she had the headache was also significant because, with
had normal flexion and extension (up and down motion), but decreased
exam excluded any meningeal problem, anything dealing with the brain that
might affect the tissues that surround the brain and go down into the spinal
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ordered lab work to rule out conditions such as Lyme disease and temporal
arteritis.
with Grace because it was not "[his] habit to scare somebody with that
possibility unless you feel certain that that's what you're dealing with, or
the CAT scan was performed that day. The CAT scan was negative.
negative CAT scan, the results of Grace's physical exam, and her history,
specifically the fact that her severe headache was preceded by a frontal
headache, which was indicative of "a much more benign origin of headache."
He did not discuss with Grace the fact that a negative CAT scan is only
procedure during which spinal fluid is removed from the spinal canal for the
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On January 5, Grace still did not feel well. She went to see Muenzen
again, and was accompanied by Joseph. She presented with a cough, back
pain, ear pain, nausea, photophobia, and generalized body aches. According
to Muenzen, the new symptoms drew him further away from a subarachnoid
hemorrhage, both are common with migraines. He did not associate them
getting worse, her neck problem was a decreased range of lateral motion
rather than flexion and extension, and she was not vomiting.
emergent, life threatening condition. Muenzen did not suggest that Grace go
did not state that there was an urgent need for it. He gave Grace and Joseph
a list of four neurologists. Joseph called them right away, but could not get
Grace an appointment until January 13. Neither Joseph nor Grace informed
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Muenzen that they were having trouble getting an appointment, or that the
Muenzen also ordered MRIs of the head and neck. Grace drove to get
the MRIs on January 6. The MRI of the neck was performed that day. It
neck. Muenzen called Grace that day with the results. According to
Muenzen, those findings were consistent with her neck pain on lateral or
rotational motion.
Muenzen also told Grace that she should go back for the second MRI.
On January 7, Grace drove herself to get the MRI of her head. The second
doing. She reported that she still had a mild headache. He did not ask her if
neurologist, Grace lost consciousness and fell face forward to the ground.
She was taken to Morristown Memorial Hospital. Upon arrival, she was
performed.
Critical Care Services at Morristown Memorial, the CAT scan showed that
Grace had two different types of bleeds in the brain; a subdural hematoma
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been the result of the fall, but added that subarachnoid hemorrhages could
occur without trauma. The CAT scan also revealed "that there was pressure
over the right side of the brain pushing [against] the left side of the brain,
the brain by removing the subdural hematoma. Grace was admitted to the
Neuro Special Care Unit following the surgery. However, her post-operative
examinations were consistent with brain death. She was pronounced dead
on January 14.
subarachnoid hemorrhage, which was at the base of the brain, resulted from
herniation, which is a herniation of the hole at the base of the brain through
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which the spinal cord passes, caused by the intracranial bleeding and related
pressure.
Because Alfonso was not concerned at the time of the autopsy about
whether there had been bleeding from the aneurysm prior to Grace's fall, he
did not perform tests to identify prior bleeding. However, he did not see any
B.
care in treating Grace. The complaint also alleged that Muenzen failed to
The jury trial started on May 14, 2009. During jury selection, Joseph's
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....
THE COURT: No, no, here is the rule. The rule is it's
my courtroom and I control it.
argue his "theory" of "lack of informed consent" to the jury. The judge
her to the emergency room the first time he saw her. He opined that
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recognizing Grace's condition as "a neurological life threatening emergency
and sending [her] to the hospital immediately and getting a neurologist and
this case no matter what the CAT scan showed this patient had to go to the
the CAT scan "stat" in order to rule out a subarachnoid hemorrhage, CAT
Consequently, the negative CAT scan did not definitively rule out a
deviated from the accepted standard of medical care by assuming that the
testified that a spinal tap is the definitive test to rule out subarachnoid
hemorrhage and that Muenzen should have sent Grace to the emergency
2
Joseph also presented a damages expert. Because damages are not at
issue in this appeal, we do not summarize his testimony.
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was not qualified to form an opinion with respect to treatment because he
A: Yes.
A: That is correct.
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After hearing the deposition testimony, the trial judge sustained defense
judge explained:
....
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Grace did not deviate from accepted standards of medical care. Based on
his review of the medical records, he concluded that there was nothing that
would make the level of suspicion very high for intracranial bleeding, such as
stated that there was a severe headache, it was preceded by a mild frontal
vomiting, and Grace had neither. Nevertheless, Muenzen sent Grace for a
scan, Weine concluded that the standard of care did not require Muenzen to
send Grace for a lumbar puncture to rule out a bleed, or to refer her to a
with increased risks for an individual with spinal stenosis, to rule out bleeding
Weine also concluded that Muenzen did not deviate from the accepted
referral was not required on that date because the nature of the headache
and, when she returned on January 5, there was nothing that "would cause a
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reasonable internist to raise their index of suspicion as to a bleed." In fact,
been very low to begin with because Grace's initial headache was very brief
[Grace's] headaches."
persists "and the second, or maybe the third, event is a massive bleed."
Finally, Weine explained that a physician can miss the proper diagnosis
or make the wrong diagnosis and still meet the appropriate standard of
medical care.
action, finding that Muenzen did not deviate from the accepted standard of
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medical care. On the same date, the trial judge entered an order of
dismissal.
II.
On appeal, Joseph argues that the trial judge erred in (1) refusing to
allow him to present a claim for lack of informed consent to the jury; (2)
precluding his attorney from accessing the internet during jury selection; (3)
subarachnoid hemorrhage and their likely outcomes; and (4) giving a flawed
when considered cumulatively. For the reasons set forth below, we affirm
A.
precluding him from presenting his cause of action for lack of informed
consent to the jury. The gist of his argument is that Muenzen was obligated
that the negative CAT scan was only a ninety-three to ninety-five percent
accurate diagnostic test, and that a spinal tap would be definitive, allowing
Muenzen explained the relative risks. Muenzen responds that the judge
correctly refused to allow the claim to go to the jury, arguing that the lack of
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informed consent theory was inconsistent with Lewinter's opinion that the
necessary.
The New Jersey Supreme Court has recognized that a patient has three
care (medical malpractice); (2) lack of informed consent; and (3) battery."
Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002).
underpinnings, 'it is now clear that deviation from the standard of care and
medical negligence.'" Ibid. (quoting Teilhaber v. Greene, 320 N.J. Super. 453,
physicians "have a duty to evaluate the relevant information and disclose all
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The informed consent doctrine does not apply where the claim is that
the physician failed to diagnose the patient's condition. See Farina v. Kraus,
333 N.J. Super. 165, 178 (App. Div. 1999) (failure to perform sufficient
diagnostic testing), certif. denied, 164 N.J. 560 (2000); Eagel v. Newman, 325
N.J. Super. 467, 474-75 (App. Div. 1999) (failure to take adequate medical
history). The doctrine also does not apply when a physician makes an
improper diagnosis. Linquito v. Siegel, 370 N.J. Super. 21, 33 (App. Div.),
of bladder cancer. Id. at 25. The plaintiff's expert testified that he deviated
from the accepted standard of care by, among other things, not taking a
The defendant's expert testified that the standard of care did not require
that diagnostic test. Id. at 31. Although the jury found no deviation from the
In reversing, we wrote:
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number or type of diagnostic tests. Farina v. Kraus,
333 N.J. Super. 165, 178-79 (App. Div. 1999) (holding
that alleged failure to perform sufficient diagnostic
testing); Eagel v. Newman, 325 N.J. Super. 467, 474-
75 (App. Div. 1999) (alleged failure to take adequate
medical history or to attend to the matter, Judge
Pressler stating that "the informed-consent basis of
malpractice, as opposed to deviation from the
applicable standard of care, rests not upon the
physician having erred in diagnosis or administration
of treatment but rather in the failure to have
provided the patient with adequate
information regarding the risks of a given treatment
or with adequate information regarding the
availability of alternative treatments and the
comparative risks of each"). We adhere to those
cases. Compare Gilmartin v. Weinreb, 324 N.J.
Super. 367, 390 (App. Div. 1999) (citing out-of-state
cases holding that informed consent doctrine does
not require doctor to advise of alternative diagnoses,
but noting it might apply where a specific diagnosis
was considered possible by physician but not
pursued).
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care and skill in choosing the diagnostic
tests and interpreting the results. If he
does not, he is vulnerable.
[Id. at 34-36.]
diagnostic testing, especially when there is a viable claim that the defendant
doctor deviated from the standard of care. See id. at 34-35. Here, as in
informed consent claim presented to the jury, and affirm the trial judge's
19 A-5491-08T1
B.
Joseph contends that the trial judge abused his discretion during jury
him of "the opportunity to learn about potential jurors . . . one of the most
The purpose of voir dire is to ensure that a fair and impartial jury is
Howard, 192 N.J. Super. 571, 576 (App. Div. 1983) (quoting Turner v.
Virginia, 273 S.E.2d 36, 41 (1980), cert. denied, 451 U.S. 1011, 101 S. Ct.
great deference to the trial judge, who has broad discretion in conducting
voir dire. State v. Koedatich, 112 N.J. 225, 274 (1988), cert. denied, 488 U.S.
1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); see also State v. Manley, 54
N.J. 259, 269 (1969) (explaining that New Jersey law vests trial courts with
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discretion to do so." Horn v. Village Supermarkets,
Inc., 260 N.J. Super. 165, 175 (App. Div. 1992), certif.
denied, 133 N.J. 435 (1993). The exercise of this
authority, however, is circumscribed by the judge's
responsibility to act reasonably and within
constitutional bounds. Ryslik v. Krass, 279 N.J.
Super. 293, 297-98 (App. Div. 1995).
In making his ruling, the trial judge cited no authority for his
requirement that trial counsel must notify an adversary and the court in
advance of using internet access during jury selection or any other part of a
We note, however, that on April 25, 2008, the trial court administrator
users. The press release quotes the assignment judge as stating that the
counsel. There was no suggestion that counsel's use of the computer was in
any way disruptive. That he had the foresight to bring his laptop computer
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to court, and defense counsel did not, simply cannot serve as a basis for
field." The "playing field" was, in fact, already "level" because internet
access was open to both counsel, even if only one of them chose to utilize it.
any prejudice resulting from the trial court's ruling. He has not pointed to a
inasmuch as jury selection took two days, Joseph's counsel could have
certainly could have done so before the testimonial portion of the trial
C.
Joseph also argues that the trial judge erred in barring his expert,
experience with patients who have been treated for the condition, as based
internist in practice for nearly fifty years." Muenzen responds that the trial
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deposition that he was not qualified to render an opinion on those issues
argues that Joseph suffered no prejudice, even if the testimony should have
been allowed, because it was addressed to the issue of causation and the
jury did not reach that issue, having concluded that Muenzen did not deviate
trial court. Carey v. Lovett, 132 N.J. 44, 64 (1993); Muise v. GPU, Inc., 371
N.J. Super. 13, 58 (App. Div. 2004). Our scope of review of a trial judge's
exercise of that discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000).
Rulings on evidence will not provide a basis for reversal unless they reflect a
clear abuse of that discretion. Benevenga v. Digregorio, 325 N.J. Super. 27,
702:
In State v. Kelly, 97 N.J. 178, 208 (1984), the Supreme Court held that one of
the rule's basic requirements for the admission of expert testimony is "the
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possession of such facts as will enable him to express a reasonably accurate
Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.) (quoting
Clearwater Corp. v. City of Lincoln, 277 N.W.2d 236, 241 (Neb. 1979)), certif.
Before the objection, Lewinter had testified that there were treatments
there was "a very good neurological unit" at Morristown Memorial, and that
the trial judge did not abuse his discretion in precluding the testimony. We
will not disturb that ruling on appeal. See Carey, supra, 132 N.J. at 64; Little
Egg Harbor Twp. v. Bonsangue, 316 N.J. Super. 271, 278 (App. Div. 1998).
dealt with the issue of causation and proximate cause, rather than deviation
from accepted medical standards. Because the jury never reached causation
D.
charge and that his cumulative errors warrant a new trial, are without merit
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and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(1)
(E).
With respect to the jury charge, we agree that the trial judge's charge
with respect to causation was flawed. However, although we are aware that
"negligence and causation generally intertwine," Ahn v. Kim, 145 N.J. 423,
434 (1996), we nevertheless conclude that the judge's charge with respect
to the issue of deviation from accepted standards of care was correct and
not infected by the problems with the remainder of the charge. Proof of a
case such as the one before us. Gonzalez v. Silver, 407 N.J. Super. 576, 586
(App. Div. 2009). Because the jury responded to the first question on the
verdict sheet by finding that Joseph had not proven that Muenzen deviated
from accepted standard of medical care, it necessarily did not reach the
issue of causation. Thus, the error with respect to the remainder of the
Finally, although we have found that the trial judge should have
allowed Joseph's counsel to utilize his computer during jury selection and
that a part of the jury charge was flawed, we have found no error, whether
which was fully supported by the evidence adduced at trial. See Biruk v.
Wilson, 50 N.J. 253, 262 (1967) ("[T]he cumulative effect of small errors may
Affirmed.
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